Privacy Amendment (Enhancing Privacy Protection) Act 2012 (197 of 2012)

Schedule 2   Credit reporting

Privacy Act 1988

69   After section 6F

Insert:

Division 2 - Key definitions relating to credit reporting

Subdivision A - Credit provider

6G Meaning of credit provider

General

(1) Each of the following is a credit provider :

(a) a bank;

(b) an organisation or small business operator if:

(i) the organisation or operator carries on a business or undertaking; and

(ii) a substantial part of the business or undertaking is the provision of credit;

(c) an organisation or small business operator:

(i) that carries on a retail business; and

(ii) that, in the course of the business, issues credit cards to individuals in connection with the sale of goods, or the supply of services, by the organisation or operator (as the case may be);

(d) an agency, organisation or small business operator:

(i) that carries on a business or undertaking that involves providing credit; and

(ii) that is prescribed by the regulations.

Other credit providers

(2) If:

(a) an organisation or small business operator (the supplier ) carries on a business or undertaking in the course of which the supplier provides credit in connection with the sale of goods, or the supply of services, by the supplier; and

(b) the repayment, in full or in part, of the amount of credit is deferred for at least 7 days; and

(c) the supplier is not a credit provider under subsection (1);

then the supplier is a credit provider but only in relation to the credit.

(3) If:

(a) an organisation or small business operator (the lessor ) carries on a business or undertaking in the course of which the lessor provides credit in connection with the hiring, leasing or renting of goods; and

(b) the credit is in force for at least 7 days; and

(c) no amount, or an amount less than the value of the goods, is paid as a deposit for the return of the goods; and

(d) the lessor is not a credit provider under subsection (1);

then the lessor is a credit provider but only in relation to the credit.

(4) An organisation or small business operator is a credit provider if subsection 6H(1), 6J(1) or 6K(1) provides that the organisation or operator is a credit provider.

Exclusions

(5) Despite subsections (1) to (4) of this section, an organisation or small business operator acting in the capacity of:

(a) a real estate agent; or

(b) a general insurer (within the meaning of the Insurance Act 1973); or

(c) an employer of an individual;

is not a credit provider while acting in that capacity.

(6) Despite subsections (1) to (4) of this section, an organisation or small business operator is not a credit provider if it is included in a class of organisations or operators prescribed by the regulations.

6H Agents of credit providers

(1) If an organisation or small business operator (the agent ) is acting as an agent of a credit provider (the principal ) in performing, on behalf of the principal, a task that is reasonably necessary:

(a) in processing an application for credit made to the principal; or

(b) in managing credit provided by the principal;

then, while the agent is so acting, the agent is a credit provider .

(2) Subsection (1) does not apply if the principal is an organisation or small business operator that is a credit provider because of a previous application of that subsection.

(3) If subsection (1) applies in relation to credit that has been provided by the principal, the credit is taken, for the purposes of this Act, to have been provided by both the principal and the agent.

(4) If subsection (1) applies in relation to credit for which an application has been made to the principal, the application is taken, for the purposes of this Act, to have been made to both the principal and the agent.

6J Securitisation arrangements etc.

(1) If:

(a) an organisation or small business operator (the securitisation entity ) carries on a business that is involved in either or both of the following:

(i) a securitisation arrangement;

(ii) managing credit that is the subject of a securitisation arrangement; and

(b) the securitisation entity performs a task that is reasonably necessary for:

(i) purchasing, funding or managing, or processing an application for, credit by means of a securitisation arrangement; or

(ii) undertaking credit enhancement in relation to credit; and

(c) the credit has been provided by, or is credit for which an application has been made to, a credit provider (the original credit provider );

then, while the securitisation entity performs such a task, the securitisation entity is a credit provider .

(2) Subsection (1) does not apply if the original credit provider is an organisation or small business operator that is a credit provider because of a previous application of that subsection.

(3) If subsection (1) applies in relation to credit that has been provided by the original credit provider, the credit is taken, for the purposes of this Act, to have been provided by both the original credit provider and the securitisation entity.

(4) If subsection (1) applies in relation to credit for which an application has been made to the original credit provider, the application is taken, for the purposes of this Act, to have been made to both the original credit provider and the securitisation entity.

6K Acquisition of the rights of a credit provider

(1) If:

(a) an organisation or small business operator (the acquirer ) acquires, whether by assignment, subrogation or any other means, the rights of a credit provider (the original credit provider ) in relation to the repayment of an amount of credit; and

(b) the acquirer is not a credit provider under subsection 6G(1);

then the acquirer is a credit provider but only in relation to the credit.

(2) If subsection (1) of this section applies in relation to credit that has been provided by the original credit provider, the credit is taken, for the purposes of this Act, to have been provided by the acquirer.

(3) If subsection (1) of this section applies in relation to credit for which an application has been made to the original credit provider, the application is taken, for the purposes of this Act, to have been made to the acquirer.

Subdivision B - Other definitions

6L Meaning of access seeker

(1) An access seeker in relation to credit reporting information, or credit eligibility information, about an individual is:

(a) the individual; or

(b) a person:

(i) who is assisting the individual to deal with a credit reporting body or credit provider; and

(ii) who is authorised, in writing, by the individual to make a request in relation to the information under subsection 20R(1) or 21T(1).

(2) An individual must not authorise a person under subparagraph (1)(b)(ii) if the person is:

(a) a credit provider; or

(b) a mortgage insurer; or

(c) a trade insurer; or

(d) a person who is prevented from being a credit provider by subsection 6G(5) or (6).

(3) Subparagraph (1)(b)(ii) does not apply to a person who provides the National Relay Serviceor a person prescribed by the regulations.

6M Meaning of credit and amount of credit

(1) Credit is a contract, arrangement or understanding under which:

(a) payment of a debt owed by one person to another person is deferred; or

(b) one person incurs a debt to another person and defers the payment of the debt.

(2) The amount of credit is the amount of the debt that is actually deferred, or that may be deferred, but does not include any fees or charges payable in connection with the deferral of the debt.

(3) Without limiting subsection (1), credit includes:

(a) a hire-purchase agreement; and

(b) a contract, arrangement or understanding of a kind referred to in that subsection that is for the hire, lease or rental of goods, or for the supply of services, other than a contract, arrangement or understanding under which:

(i) full payment is made before, or at the same time as, the goods or services are provided; and

(ii) in the case of goods - an amount greater than, or equal to, the value of the goods is paid as a deposit for the return of the goods.

6N Meaning of credit information

Credit information about an individual is personal information (other than sensitive information) that is:

(a) identification information about the individual; or

(b) consumer credit liability information about the individual; or

(c) repayment history information about the individual; or

(d) a statement that an information request has been made in relation to the individual by a credit provider, mortgage insurer or trade insurer; or

(e) the type of consumer credit or commercial credit, and the amount of credit, sought in an application:

(i) that has been made by the individual to a credit provider; and

(ii) in connection with which the provider has made an information request in relation to the individual; or

(f) default information about the individual; or

(g) payment information about the individual; or

(h) new arrangement information about the individual; or

(i) court proceedings information about the individual; or

(j) personal insolvency information about the individual; or

(k) publicly available information about the individual:

(i) that relates to the individual’s activities in Australia or the external Territories and the individual’s credit worthiness; and

(ii) that is not court proceedings information about the individual or information about the individual that is entered or recorded on the National Personal Insolvency Index; or

(l) the opinion of a credit provider that the individual has committed, in circumstances specified by the provider, a serious credit infringement in relation to consumer credit provided by the provider to the individual.

6P Meaning of credit reporting business

(1) A credit reporting business is a business or undertaking that involves collecting, holding, using or disclosing personal information about individuals for the purpose of, or for purposes including the purpose of, providing an entity with information about the credit worthiness of an individual.

(2) Subsection (1) applies whether or not the information about the credit worthiness of an individual is:

(a) provided for profit or reward; or

(b) provided, or intended to be provided, for the purposes of assessing an application for consumer credit.

(3) In determining whether a business or undertaking carried on by a credit provider is a credit reporting business, disregard the provision of information about the credit worthiness of an individual to a related body corporate by the provider.

(4) Despite subsection (1), a business or undertaking is not a credit reporting business if the business or undertaking is included in a class of businesses or undertakings prescribed by the regulations.

6Q Meaning of default information

Consumer credit defaults

(1) Default information about an individual is informationabout a payment (including a payment that is wholly or partly a payment of interest) that the individual is overdue in making in relation to consumer credit that has been provided by a credit provider to the individual if:

(a) the individual is at least 60 days overdue in making the payment; and

(b) the provider has given a written notice to the individual informing the individual of the overdue payment and requesting that the individual pay the amount of the overdue payment; and

(c) the provider is not prevented by a statute of limitations from recovering the amount of the overdue payment; and

(d) the amount of the overdue payment is equal to or more than:

(i) $150; or

(ii) such higher amount as is prescribed by the regulations.

Guarantor defaults

(2) Default information about an individual is informationabout a payment that the individual is overdue in making as a guarantor under a guarantee given against any default by a person (the borrower ) in repaying all or any of the debt deferred under consumer credit provided by a credit provider to the borrower if:

(a) the provider has given the individual written notice of the borrower’s default that gave rise to the individual’s obligation to make the overdue payment; and

(b) the notice requests that the individual pay the amount of the overdue payment; and

(c) at least 60 days have passed since the day on which the notice was given; and

(d) in addition to giving the notice, the provider has taken other steps to recover the amount of the overdue payment from the individual; and

(e) the provider is not prevented by a statute of limitations from recovering the amount of the overdue payment.

6R Meaning of information request

Credit provider

(1) A credit provider has made an information request in relation to an individual if the provider has sought information about the individual from a credit reporting body:

(a) in connection with an application for consumer credit made by the individual to the provider; or

(b) in connection with an application for commercial credit made by a person to the provider; or

(c) for a credit guarantee purpose of the provider in relation to the individual; or

(d) for a securitisation related purpose of the provider in relation to the individual.

Mortgage insurer

(2) A mortgage insurer has made an information request in relation to an individual if:

(a) the insurer has sought information about the individual from a credit reporting body; and

(b) the information was sought in connection with the provision of insurance to a credit provider in relation to mortgage credit provided by the provider to:

(i) the individual; or

(ii) a person for whom the individual is, or is proposing to be, a guarantor.

Trade insurer

(3) A trade insurer has made an information request in relation to an individual if:

(a) the insurer has sought information about the individual from a credit reporting body; and

(b) the information was sought in connection with the provision of insurance to a credit provider in relation to commercial credit provided by the provider to the individual or another person.

6S Meaning of new arrangement information

Consumer credit defaults

(1) If:

(a) a credit provider has disclosed default information about an individual to a credit reporting body; and

(b) the default information relates to a payment that the individual is overdue in making in relation to consumer credit (the original consumer credit ) that has been provided by the provider to the individual; and

(c) because of the individual being so overdue:

(i) the terms or conditions of the original consumer credit that relate to the repayment of the amount of credit are varied; or

(ii) the individual is provided with other consumer credit (the new consumer credit ) by a credit provider that relates, wholly or in part, to that amount of credit;

then new arrangement information about the individual is a statement that those terms or conditions of the original consumer credit have been varied, or that the individual has been provided with the new consumer credit.

Serious credit infringements

(2) If:

(a) a credit provider is of the opinion that an individual has committed a serious credit infringement in relation to consumer credit (the original consumer credit ) provided by the provider to the individual; and

(b) the provider has disclosed the opinion to a credit reporting body; and

(c) because of the provider having that opinion:

(i) the terms or conditions of the original consumer credit that relate to the repayment of the amount of credit are varied; or

(ii) the individual is provided with other consumer credit (the new consumer credit ) by a credit provider that relates, wholly or in part, to that amount of credit;

then new arrangement information about the individual is a statement that those terms or conditions of the original consumer credit have been varied, or that the individual has been provided with the new consumer credit.

6T Meaning of payment information

If:

(a) a credit provider has disclosed default information about an individual to a credit reporting body; and

(b) on a day after the default information was disclosed, the amount of the overdue payment to which the information relates is paid;

then payment information about the individual is a statement that the amount of the overdue payment has been paid on that day.

6U Meaning of personal insolvency information

(1) Personal insolvency information about an individual is information:

(a) that is entered or recorded in the National Personal Insolvency Index; and

(b) that relates to:

(i) a bankruptcy of the individual; or

(ii) a debt agreement proposal given by the individual; or

(iii) a debt agreement made by the individual; or

(iv) a personal insolvency agreement executed by the individual; or

(v) a direction given, or an order made, under section 50 of the Bankruptcy Act that relates to the property of the individual; or

(vi) an authority signed under section 188 of that Act that relates to the property of the individual.

(2) Despite subparagraph (1)(b)(i), personal insolvency information about an individual must not relate to:

(a) the presentation of a creditor’s petition against the individual; or

(b) an administration under Part XI of the Bankruptcy Act of the individual’s estate.

(3) An expression used in paragraph (1)(b) or (2)(a) that is also used in the Bankruptcy Act has the same meaning in that paragraph as it has in that Act.

6V Meaning of repayment history information

(1) If a credit provider provides consumer credit to an individual, the following information about the consumer credit is repayment history information about the individual:

(a) whether or not the individual has met an obligation to make a monthly payment that is due and payable in relation to the consumer credit;

(b) the day on which the monthly payment is due and payable;

(c) if the individual makes the monthly payment after the day on which the payment is due and payable - the day on which the individual makes that payment.

(2) The regulations may make provision in relation to:

(a) whether or not an individual has met an obligation to make a monthly payment that is due and payable in relation to consumer credit; and

(b) whether or not a payment is a monthly payment.

Division 3 - Other matters