Schedule of Amendments to Privacy Amendment (Enhancing Privacy Protection) Bill 2012 released

November 28, 2012 |

The Senate has released the Schedule of Amendments to the Privacy Amendment (Enhancing Privacy Protection) Bill 2012. I have also extracted the Hansard of the debate in the Senate.

The amendments are:

2010-2011-2012

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

THE SENATE

Privacy Amendment (Enhancing Privacy Protection) Bill 2012

Schedule of the amendments made by the Senate

(1)     Govt (1) [Sheet BP262]

Clause 2, page 2 (table item 2, column 2), omit “9 months”, substitute “15 months”.

(2)     Govt (2) [Sheet BP262]

Clause 2, pages 2 to 3(table items 3 to 9), omit the table items, substitute:

3.  Schedule 5, items 1 to 155 The day after the end of the period of 15 months beginning on the day this Act receives the Royal Assent.

(3)     Govt (3) [Sheet BP262]

Clause 2, page 3 (table item 11, column 2), omit “9 months”, substitute “15 months”.

(4)     Govt (4) [Sheet BP262]

Clause 2, pages 3 to 4 (table items 13 to 15), omit the table items, substitute:

13.  Schedule 5, items 163 to 180 The day after the end of the period of 15 months beginning on the day this Act receives the Royal Assent.

(5)     Govt (5) [Sheet BP262]

Clause 2, page 4 (table item 17, column 2), omit “9 months”, substitute “15 months”.

(6)     Govt (6) [Sheet BP262]

Clause 2, page 4 (table item 19, column 2), omit “9 months”, substitute “15 months”.

(7)     Govt (7) [Sheet BP262]

Schedule 1, item 88, page 23 (lines 4 and 5), omit the item, substitute:

88  Subsection 95(1)

After “privacy”, insert “by agencies”.

(8)     Govt (8) [Sheet BP262]

Schedule 1, item 104, page 29 (line 6), at the end of paragraph 2.2(b) of Australian Privacy Principle 2, add “or who have used a pseudonym”.

(9)     Govt (9) [Sheet BP262]

Schedule 1, item 104, page 30 (after line 24), at the end of Australian Privacy Principle 3.4, add:

Note:          For permitted general situation, see section 16A. For permitted health situation, see section 16B.

(10)   Govt (10) [Sheet BP262]

Schedule 1, item 104, page 34 (after line 4), at the end of Australian Privacy Principle 6.2, add:

Note:          For permitted general situation, see section 16A. For permitted health situation, see section 16B.

(11)   Govt (11) [Sheet BP262]

Schedule 1, item 104, page 35 (line 7), omit the heading to Australian Privacy Principle 7.1, substitute:

Direct marketing

(12)   Govt (12) [Sheet BP262]

Schedule 1, item 104, page 39 (after line 3), at the end of Australian Privacy Principle 8.2, add:

Note:          For permitted general situation, see section 16A.

(13)   Govt (13) [Sheet BP262]

Schedule 1, item 104, page 39 (line 34), omit “Note”, substitute “Note 1”.

(14)   Govt (14) [Sheet BP262]

Schedule 1, item 104, page 39 (after line 35), at the end of Australian Privacy Principle 9.2, add:

Note 2:       For permitted general situation, see section 16A.

(15)   Govt (15) [Sheet BP262]

Schedule 2, item 39, page 52 (lines 24 and 25), omit “an act relating to the collection of”, substitute “the act of collecting”.

(16)   Govt (16) [Sheet BP262]

Schedule 2, item 69, page 63 (line 12), at the end of subsection 6L(3), add “or a person prescribed by the regulations”.

(17)   AG (2) [Sheet 7326]

Schedule 2, item 69, page 65 (line 31), omit “$100”, substitute “$150”.

(18)   Govt (17) [Sheet BP262]

Schedule 2, item 72, page 77 (lines 7 and 8), omit all the words from and including “recipient” to and including “licensee”, substitute:

                   recipient of the information is:

                     (a)  a credit provider who is a licensee or is prescribed by the regulations; or

                     (b)  a mortgage insurer.

(19)   Govt (18) [Sheet BP262]

Schedule 2, item 72, page 84 (lines 2 and 3), omit “the assessment of the credit worthiness of individuals”, substitute “credit”.

(20)   Govt (19) [Sheet BP262]

Schedule 2, item 72, page 84 (line 10), omit “the assessment of the credit worthiness of individuals”, substitute “credit”.

(21)   Govt (20) [Sheet BP262]

Schedule 2, item 72, page 84 (lines 15 and 16), omit “the assessment of the credit worthiness of individuals”, substitute “credit”.

(22)   Govt (21) [Sheet BP262]

Schedule 2, item 72, page 100 (line 11), omit “complaint.”, substitute “complaint;”.

(23)   Govt (22) [Sheet BP262]

Schedule 2, item 72, page 100 (after line 11), at the end of subsection 21B(4), add:

                      (i)  whether the provider is likely to disclose credit information or credit eligibility information to entities that do not have an Australian link;

                      (j)  if the provider is likely to disclose credit information or credit eligibility information to such entities—the countries in which those entities are likely to be located if it is practicable to specify those countries in the policy.

(24)   Govt (23) [Sheet BP262]

Schedule 2, item 72, page 101 (line 25), omit “complaint.”, substitute “complaint;”.

(25)   Govt (24) [Sheet BP262]

Schedule 2, item 72, page 101 (after line 25), at the end of subsection 21C(3), add:

                     (e)  whether the provider is likely to disclose credit information or credit eligibility information to entities that do not have an Australian link;

                      (f)  if the provider is likely to disclose credit information or credit eligibility information to such entities—the countries in which those entities are likely to be located if it is practicable to specify those countries in the credit reporting policy.

(26)   Govt (25) [Sheet BP262]

Schedule 2, item 72, page 102 (line 3), after “scheme”, insert “or is prescribed by the regulations”.

(27)   Govt (26) [Sheet BP262]

Schedule 2, item 72, page 102 (line 22), after “licensee”, insert “or is prescribed by the regulations”.

(28)   Govt (27) [Sheet BP262]

Schedule 2, item 72, page 102 (line 35), omit “a reasonable period has”, substitute “at least 14 days have”.

(29)   Govt (28) [Sheet BP262]

Schedule 2, item 72, page 105 (line 12), omit “and the body corporate has an Australian link”.

(30)   Govt (29) [Sheet BP262]

Schedule 2, item 72, page 105 (lines 13 to 17), omit paragraph 21G(3)(c), substitute:

                     (c)  the disclosure is to:

                              (i)  a person for the purpose of processing an application for credit made to the credit provider; or

                             (ii)  a person who manages credit provided by the credit provider for use in managing that credit; or

(31)   Govt (30) [Sheet BP262]

Schedule 2, item 72, page 105 (after line 32), at the end of subsection 21G(3), add:

Note:          See section 21NA for additional rules about the disclosure of credit eligibility information under paragraph (3)(b) or (c).

(32)   Govt (31) [Sheet BP262]

Schedule 2, item 72, page 106 (lines 7 to 10), omit paragraphs 21G(5)(c) and (d), substitute:

                     (c)  the credit provider discloses the credit eligibility information under paragraph (3)(b), (c), (e) or (f); or

                     (d)  the credit provider discloses the credit eligibility information under paragraph (3)(d) to an enforcement body.

(33)   Govt (32) [Sheet BP262]

Schedule 2, item 72, page 111 (line 18), omit paragraph 21M(1)(b).

(34)   Govt (33) [Sheet BP262]

Schedule 2, item 72, page 111 (lines 19 and 20), omit “for the purpose of the collection of payments”, substitute “to the person or body for the primary purpose of the person or body collecting payments”.

(35)   Govt (34) [Sheet BP262]

Schedule 2, item 72, page 111 (after line 26), at the end of subsection 21M(1), add:

Note:          See section 21NA for additional rules about the disclosure of credit eligibility information under this subsection.

(36)   Govt (35) [Sheet BP262]

Schedule 2, item 72, page 113 (after line 9), after section 21N, insert:

21NA  Disclosures to certain persons and bodies that do not have an Australian link

Related bodies corporate and credit managers etc.

             (1)  Before a credit provider discloses credit eligibility information under paragraph 21G(3)(b) or (c) to a related body corporate, or person, that does not have an Australian link, the provider must take such steps as are reasonable in the circumstances to ensure that the body or person does not breach the following provisions (the relevant provisions) in relation to the information:

                     (a)  for a disclosure under paragraph 21G(3)(b)—section 22D;

                     (b)  for a disclosure under paragraph 21G(3)(c)—section 22E;

                     (c)  in both cases—the Australian Privacy Principles (other than Australian Privacy Principles 1, 6, 7, 8 and 9.2).

             (2)  If:

                     (a)  a credit provider discloses credit eligibility information under paragraph 21G(3)(b) or (c) to a related body corporate, or person, that does not have an Australian link; and

                     (b)  the relevant provisions do not apply, under this Act, to an act done, or a practice engaged in, by the body or person in relation to the information; and

                     (c)  the body or person does an act, or engages in a practice, in relation to the information that would be a breach of the relevant provisions if those provisions applied to the act or practice;

the act done, or the practice engaged in, by the body or person is taken, for the purposes of this Act, to have been done, or engaged in, by the provider and to be a breach of those provisions by the provider.

Debt collectors

             (3)  Before a credit provider discloses credit eligibility information under subsection 21M(1) to a person or body that does not have an Australian link, the provider must take such steps as are reasonable in the circumstances to ensure that the person or body does not breach the Australian Privacy Principles (other than Australian Privacy Principle 1) in relation to the information.

             (4)  If:

                     (a)  a credit provider discloses credit eligibility information under subsection 21M(1) to a person or body that does not have an Australian link; and

                     (b)  the Australian Privacy Principles do not apply, under this Act, to an act done, or a practice engaged in, by the person or body in relation to the information; and

                     (c)  the person or body does an act, or engages in a practice, in relation to the information that would be a breach of the Australian Privacy Principles (other than Australian Privacy Principle 1) if those Australian Privacy Principles applied to the act or practice;

the act done, or the practice engaged in, by the person or body is taken, for the purposes of this Act, to have been done, or engaged in, by the provider and to be a breach of those Australian Privacy Principles by the provider.

(37)   Govt (36) [Sheet BP262]

Schedule 2, item 72, page 125 (line 20), at the end of the heading to section 22E, add “etc.”.

(38)   Govt (37) [Sheet BP262]

Schedule 2, item 72, page 125 (lines 26 and 27), omit “for use in managing credit provided by the provider”.

(39)   Govt (38) [Sheet BP262]

Schedule 2, item 72, page 126 (lines 3 and 4), omit “in managing credit provided by the credit provider”, substitute “for the purpose for which it was disclosed to the person under paragraph 21G(3)(c)”.

(40)   Govt (39) [Sheet BP262]

Schedule 2, item 72, page 126 (lines 8 to 10), omit all the words from and including “information” to the end of subsection 22E(3), substitute:

                   information if:

                     (a)  the disclosure is to the credit provider; or

                     (b)  the disclosure is required or authorised by or under an Australian law or a court/tribunal order.

(41)   Govt (40) [Sheet BP262]

Schedule 4, item 189, page 193 (after line 18), at the end of section 80Z, add:

Note:          In determining the pecuniary penalty, the court must take into account all relevant matters including the matters mentioned in subsection 80W(6).

Rosemary Laing

Clerk of the Senate

The Senate

27 November 2012

 The Hansard provides as follows:

BILL READ A SECOND TIME

Senator WRIGHT (South Australia) (16:00): I rise to speak on the Privacy Amendment (Enhancing Privacy Protection) Bill 2012. The Australian Greens support the aims and objectives of this bill, in particular the unification of the National Privacy Principles and the Information Privacy Principles into the new Australian Privacy Principles that apply to both Commonwealth agencies and private sector organisations.

The bill amends to the Commonwealth Privacy Act 1988. It has been developed following numerous reviews and inquiries, which have included significant consultations with stakeholders. However, as was pointed out during this inquiry process, the reforms have been a long time coming. For example, this is the first major reform to credit reporting since its introduction in the 1990s. While there was majority support for the contents of this bill amongst stakeholders, some concerns were expressed that although the bill did improve on the current position—that is because it is an important step towards that goal of harmonisation and simplification—it could not necessarily be said that it was an enhancement. Indeed, during the Senate committee inquiry into the bill three different stakeholders expressed some concerns that this bill was a missed opportunity and it did not go far enough in either streamlining provisions or in providing consumers and citizens with better protections.

Changes to Australian law to modernise, strengthen and streamline privacy and credit reporting provisions are important. In doing this we need to be careful that we strike the right balance between privacy rights and the free flow of information. The Australian Greens strongly support the strengthening of Australian law to ensure enhanced compatibility with our obligations under international human rights law. As a signatory to the International Covenant on Civil and Political Rights, the ICCPR, Australia has an obligation to promote and protect the right to privacy. Indeed, article 17 of the ICCPR provides that:

1. No one shall be subjected to arbitrary or unlawful interference with his—

And I use that word advisedly; it is slightly anachronistic—

privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.

2. Everyone has the right to the protection of the law against such interference or attacks.

In signing up to the ICCPR Australia has agreed to take all the necessary steps to respect, protect and fulfil human rights.

We agree with the findings and recommendations made in the committee report, and we made some additional comments directed at improving consumer protection and privacy rights. We acknowledge that the government has agreed to implement many of those changes and is putting forward amendments today. However, we feel that a couple of additional changes should be made to improve consumer protections. I will turn to these now.

In relation to proposed paragraph 6Q(1), the Australian Greens would have preferred to go further than what was recommended by the Senate committee. We are of the view that a default listing should not occur until at least 30 days after a default notice has been given. In practical terms that gives a borrower sufficient time to receive the notice, which may be subject to the vagaries of the post, contact the credit provider and/or try to rectify a default before a listing can be made, and is consistent with other credit laws. This recommendation was made in the inquiry by the Consumer Credit Legal Centre NSW. The Consumer Credit Legal Centre submitted that the current provisions in the bill essentially enabled a credit provider to list a default immediately after issuing written notice to an individual, and submitted that this is procedurally unfair as it is the notice that is important in notifying the consumer that there actually is a default. It is more than possible to be unaware of the default simply because there was a bank error in direct debits—that is given as an example.

The Consumer Credit Legal Centre has significant expertise in providing consumer assistance advocacy and representation. It sees how these sorts of legal provisions work in practice and how they can impact on, particularly, vulnerable Australians. I think it is important that we respect this expertise and on-the-ground knowledge, which often speaks on behalf of consumers. The Consumer Credit Legal Centre recommended that the bill should be amended to require 30 days to have elapsed from the date of the written notice, before listing can occur, to avoid unintended and unfair consequences.

The submission of the Australian Communications Consumer Action Network also suggested that a listing should not occur until the credit provider has made ‘reasonable attempts’ to contact the debtor and has provided a specific warning regarding the default listing.

We recognise the practical reality for consumers who face financial strain, and we think that it is important they are provided with sufficient notice about overdue payments and the consequences of failing to pay such overdue payments. For this reason we support the recommendation by the Consumer Credit Legal Centre that the bill should be amended to require 30 days to have elapsed from the date of the written notice, before a default listing occurs. For that reason the Australian Greens will be moving an amendment to that effect.

We also support he recommendations made by consumer advocates that the threshold minimum amount for which a consumer credit default listing can be made should be increased. During the Senate committee inquiry stakeholders also suggested that the threshold overdue amount that gives rise to a default listing was unrealistic. The Energy and Water Ombudsman NSW, the Australian Communications Consumer Action Network and the Consumer Credit Legal Centre advocated for increasing the overdue amount from $100 to $300. The purpose of increasing the threshold overdue amount is to exclude small utility bills from the adverse consequences of credit listing. It also recognises increases in costs of living over recent years.

The Australian Greens agree that there should be an amendment to reflect recent changes in the cost of living and we suggest that the threshold amount be changed from $100 to $150. We also note that there is provision in the bill for a higher amount to be prescribed by regulation, which provides flexibility in responding to consumer concerns and cost-of-living increases down the track when $150 is not sufficient. However, we think that this minor change goes some way towards a more realistic situation. We feel that these changes will improve consumer protections in the Privacy Act.

During the inquiry process we noted that some concerns were raised by consumer advocates that the amendment to the definition of ‘serious credit infringement’ would not address the serious problems that this definition currently creates. As serious credit infringement is, apart from bankruptcy, the most serious type of listing that can be made—and it will ordinarily remain on a credit report for seven years—it is very significant and has substantial ramifications for individuals. For these reasons, consumer advocates such as the Consumer Action Law Centre, considered that it is essential that such listings are proportionate to the type of credit infringement and are accurate and based on clear evidence. The Consumer Action Law Centre, CALC, expressed concerns with the amendment to the bill that requires that a serious credit infringement cannot be listed unless six months has elapsed since the credit provider last had contact with the debtor. It appears that the intent of this change is to ensure that credit providers attempt to make contact with the debtor so as to avoid an incorrect listing. By its intent, the amendment seeks to enhance consumer protections. However, as CALC points out, there is no guarantee that this amendment will achieve its purported aim as the credit provider is not required to be proactive and attempt to make contact. The only requirement is that the credit provider waits six months before listing a serious credit infringement.

CALC referred to a previous submission by consumer advocates and recommended that the definition of ‘serious credit infringement’ should be replaced with two new definitions: ‘uncontactable default’ and a ‘never paid flag’. The Australian Greens gave serious consideration to this stakeholder recommendation. We considered it in detail in our additional comments and raised it with the government. However, we are not satisfied that the recommendation could be adequately implemented so as to take into account instances where there was intentional fraud, and we were of the view that, practically speaking, it was not appropriate to remove the fraud from the definition of ‘serious credit infringement’. We do however understand the concerns raised by stakeholders and we will endeavour to follow up with them as to how this could be reconsidered in the future.

Finally, we note that, during the inquiry process, significant concerns were raised by the Australian Privacy Foundation and the Consumer Credit Legal Centre regarding the lack of determinations that have been made under section 52 of the act. As a result of this history, the Australian Privacy Foundation, the APF, is apprehensive about the effectiveness of new reform under section 96, which provides a right of appeal to the Administrative Appeals Tribunal against decisions by the commissioner to make a determination of a complaint under section 52(1) or 52(1A). In its view, this new right of appeal is of little use unless complainants can require the commissioner to make formal decisions under section 52 of the act. It recommends that the Privacy Commissioner should be required to make a determination under section 52 wherever a complainant so requests and for complainants to be informed that they are entitled to such a formal resolution of their complaint.

The Australian Law Reform Commission, the ALRC, in its Report 108: for your information: Australian privacy law and practice,made a similar recommendation in 2009. The Office of the Australian Information Commissioner provideda supplementary submission to the inquiry and noted that the government specifically rejected the recommendation of the ALRC in 2009 on the ground that, as an independent statutory officer, the Australian Information Commissioner should be responsible for exercising the administrative decision-making powers under the Privacy Act. We understand the tension here and the importance of promoting and respecting the independence of the OAIC, the Office of the Australian Information Commissioner, and we believe that it would be prudent for the government to reconsider this matter and conduct a review of the functions and powers of the OAIC in relation to its system for managing complaints, conciliations and determinations. In our additional comments to the Senate committee, we recommended that, 12 months after the enactment of the bill, the government should conduct a review into the effectiveness of the OAIC’s system for managing complaints, conciliations and determinations because, if there is a right to appeal against a determination but no determination is made, essentially there is no right of appeal.

The Australian Greens take an interest in ensuring that the privacy rights of Australians are adequately promoted and protected and we will be monitoring the impact and effectiveness of this bill when it becomes law. While we have some concerns with this bill, overall we feel that it improves and streamlines privacy laws and we support its passage. We note that the government is introducing some amendments which respond to many recommendations put forward by the Senate committee and we will be putting forward our own amendments. On this basis, we support the passage of this bill.

Senator XENOPHON (South Australia) (16:13): I indicate my support for the Privacy Amendment (Enhancing Privacy Protection) Bill 2012, with amendments. I believe it makes a number of important and necessary changes in relation to privacy law in Australia. However, I would like to express my concerns in relation to the credit reporting provisions in this bill. I agree that Australia needs a strong and robust credit reporting system. I know that some organisations have concerns about privacy in relation to disclosing credit history and I believe there must be checks and balances in place to address those concerns. But we need to remember that credit reporting forms an important role in our banking and finance sector. It gives credit providers the information they need to make informed decisions about risk. We do not want to see greater risk in this area, particularly in the current financial climate.

I am very concerned about the fact that lenders mortgage insurers have not been included in the parties allowed access to credit history information with respect to this bill. Lenders mortgage insurance has been part of the Australian housing and mortgage market since the 1960s. Insurers offer protection to lenders if a borrower defaults on their loan, and the insurance products are usually required where borrowers have contributed less than 20 per cent of the purchase price as a deposit.

This insurance means that lenders have a safeguard in place and it also means that they have the flexibility to allow borrowers to rectify the loan in cases of default.

So, lenders mortgage insurance is a critical part of the housing market and it is a critical part of finance in this nation, and without it housing would be less affordable and fewer Australians would be able to have access to that finance. Overall, the insurers provide a level of protection and security to the market. They also act as an additional level of scrutiny by assessing risk in terms of loan conditions and credit history. It is simply not in the insurer’s best interest to cover high-risk loans, given that they bear the risk of borrowers defaulting on their loans.

Lenders mortgage insurers currently have access to credit reporting information. I understand the need for privacy protection in these circumstances, but I am concerned that it will come at the cost of overall increased risk in this area. I know that there is the possibility for lenders to pass on that information to insurers under the bill. I believe that this is not good enough; it should not be up to mortgage insurers, who bear their own risk and who have their own financial structures and models, to rely on a third party to pass on information. Insurers need access to independent, accurate information, such as credit reports, firsthand.

There are also concerns that this will lead to lenders acting as gatekeepers of such information and choosing to insure the low-risk loans themselves, leaving only the higher risk loans for independent insurers. That is untenable in the impact it would have on the market. There are also further concerns that with this increase in self-insurance, lenders may take greater risks themselves or not make appropriate allowances to cover debts. The likely outcome of this in the long term is less choice, and worse, for consumers as insurers fold under the strain of covering high-risk loans. It is important to note that in similar jurisdictions, such as Canada, which operates in a similar regulatory system, insurers have direct access to credit-reporting information.

Lenders mortgage insurance is regulated by APRA, and there are currently specific controls on how credit-reporting data can be used. Insurers are also licensed under consumer credit protection laws and regulated by ASIC. There are multiple reasons why providers of lenders mortgage insurance should be granted access to credit-reporting information. To this end, I have had some very useful discussions with Senator Brandis and his office, the Australian Greens and Senator Williams in relation to this, and that is why I have circulated an amendment in the names of a number of parties in order to rectify this. I understand that the government will be moving its own amendments in relation to this to deal with the same issue, and that is welcome. I really query why it had to come to this, but I do welcome any changes that will rectify what is a glaring anomaly in respect of mortgage insurers.

So I look forward to discussing this amendment further in the committee stage, but it is a problem that must be fixed. With that caveat, I support this legislation.

Senator LUDWIG (Queensland—Minister for Agriculture, Fisheries and Forestry and Minister Assisting on Queensland Floods Recovery) (16:17): I would like to thank senators for their contributions to this debate. I would also like to put on the record my thanks to the Senate Legal and Constitutional Affairs Legislation Committee for its report and detailed work in considering this bill.

The Senate committee made 21 recommendations. The government has accepted 20 in full or in principle, and has noted the final recommendation, which calls on the Senate to pass the bill. The Senate committee has asked that a number of issues be addressed through amendments to the bill and in the revisions to the explanatory memorandum.

I foreshadow that opposition senators have also sought revisions to the explanatory memorandum and review of certain provisions. The government has carefully considered these requests and agreed to them. These changes will result in privacy laws that balance more appropriately the privacy of individuals and the legitimate activities of government agencies and the private sector.

The bill is ultimately the culmination of an extensive process of consultation with stakeholders and, of course, scrutiny by this parliament. It will implement more than half of the Australian Law Reform Commission’s 295 recommendations. The bill will bring Australia’s privacy regime into the digital age, reflecting our new approach to providing personal information over the internet. In particular, consumer privacy protection will be strengthened; and can I add that the Commonwealth Privacy Commissioner will also have the power to get an enforceable outcome—an apology, a retraction, a takedown notice or compensation from a court. The commissioner will be able to apply to the courts for a civil penalty, and there are new civil penalties for serious repeated breaches of privacy, for which companies may be liable for a significant penalty.

In dealing with this bill in the summing-up stage, can I then say that the bill contains what this government considers the most significant reforms to privacy law since Labor introduced the act in 1988. They are long-overdue reforms that will give effect to key aspects of the ALRC’s landmark report on privacy in Australia. I take this opportunity to thank the numerous stakeholders, from the industry associations to the law reform and privacy advocates, and also those opposite and on the cross benches, for the detailed discussions, arguments and feedback to finalise this bill before parliament.

In conclusion, I add that I am confident that we have struck the right balance in privacy law for Australia in this bill. I commend the bill to the Senate.

Question agreed to.

Bill read a second time.

IN COMMITTEE

It relevantly provides:

Senator LUDWIG (Queensland—Minister for Agriculture, Fisheries and Forestry and Minister Assisting on Queensland Floods Recovery) (16:22): I am happy to do that as well. By leave—move government amendments (1) to (16), (18) to 26) and (28) to (40) on sheet BP262 together:

(1) Clause 2, page 2 (table item 2), omit “9 months”, substitute “15 months”.

(2) Clause 2, pages 2 to 3 (table items 3 to 9), omit the table items, substitute:

3. Schedule 5, items 1 to 155

The day after the end of the period of 15 months beginning on the day this Act receives the Royal Assent.

(3) Clause 2, page 3 (table item 11), omit “9 months”, substitute “15 months”.

(4) Clause 2, pages 3 to 4 (table items 13 to 15), omit the table items, substitute:

13. Schedule 5, items 163 to 180

The day after the end of the period of 15 months beginning on the day this Act receives the Royal Assent.

(5) Clause 2, page 4 (table item 17), omit “9 months”, substitute “15 months”.

(6) Clause 2, page 4 (table item 19), omit “9 months”, substitute “15 months”.

(7) Schedule 1, item 88, page 23 (lines 4 and 5), omit the item, substitute:

88 Subsection 95(1)

   After “privacy”, insert “by agencies”.

(8) Schedule 1, item 104, page 29 (line 6), at the end of paragraph 2.2(b) of Australian Privacy Principle 2, add “or who have used a pseudonym”.

(9) Schedule 1, item 104, page 30 (after line 24), at the end of Australian Privacy Principle 3.4, add:

Note: For permitted general situation, see section 16A. For permitted health situation, see section 16B.

(10) Schedule 1, item 104, page 34 (after line 4), at the end of Australian Privacy Principle 6.2, add:

Note: For permitted general situation, see section 16A. For permitted health situation, see section 16B.

(11) Schedule 1, item 104, page 35 (line 7), omit the heading to Australian Privacy Principle 7.1, substitute:

Direct marketing

(12) Schedule 1, item 104, page 39 (after line 3), at the end of Australian Privacy Principle 8.2, add:

Note: For permitted general situation, see section 16A.

(13) Schedule 1, item 104, page 39 (line 34), omit “Note”, substitute “Note 1”.

(14) Schedule 1, item 104, page 39 (after line 35), at the end of Australian Privacy Principle 9.2, add:

Note 2: For permitted general situation, see section 16A.

(15) Schedule 2, item 39, page 52 (lines 24 and 25), omit “an act relating to the collection of”, substitute “the act of collecting”.

(16) Schedule 2, item 69, page 63 (line 12), at the end of subsection 6L(3), add “or a person prescribed by the regulations”.

(18) Schedule 2, item 72, page 84 (lines 2 and 3), omit “the assessment of the credit worthiness of individuals”, substitute “credit”.

(19) Schedule 2, item 72, page 84 (line 10), omit “the assessment of the credit worthiness of individuals”, substitute “credit”.

(20) Schedule 2, item 72, page 84 (lines 15 and 16), omit “the assessment of the credit worthiness of individuals”, substitute “credit”.

(21) Schedule 2, item 72, page 100 (line 11), omit “complaint.”, substitute “complaint;”.

(22) Schedule 2, item 72, page 100 (after line 11), at the end of subsection 21B(4), add:

(i) whether the provider is likely to disclose credit information or credit eligibility information to entities that do not have an Australian link;

(j) if the provider is likely to disclose credit information or credit eligibility information to such entities—the countries in which those entities are likely to be located if it is practicable to specify those countries in the policy.

(23) Schedule 2, item 72, page 101 (line 25), omit “complaint.”, substitute “complaint;”.

(24) Schedule 2, item 72, page 101 (after line 25), at the end of subsection 21C(3), add:

(e) whether the provider is likely to disclose credit information or credit eligibility information to entities that do not have an Australian link;

(f) if the provider is likely to disclose credit information or credit eligibility information to such entities—the countries in which those entities are likely to be located if it is practicable to specify those countries in the credit reporting policy.(25) Schedule 2, item 72, page 102 (line 3), after “scheme”, insert “or is prescribed by the regulations”.

(26) Schedule 2, item 72, page 102 (line 22), after “licensee”, insert “or is prescribed by the regulations”.

(28) Schedule 2, item 72, page 105 (line 12), omit “and the body corporate has an Australian link”.

(29) Schedule 2, item 72, page 105 (lines 13 to 17), omit paragraph 21G(3)(c), substitute:

(c) the disclosure is to:

   (i) a person for the purpose of processing an application for credit made to the credit provider; or

   (ii) a person who manages credit provided by the credit provider for use in managing that credit; or

(30) Schedule 2, item 72, page 105 (after line 32), at the end of subsection 21G(3), add:

Note: See section 21NA for additional rules about the disclosure of credit eligibility information under paragraph (3)(b) or (c).

(31) Schedule 2, item 72, page 106 (lines 7 to 10), omit paragraphs 21G(5)(c) and (d), substitute:

(c) the credit provider discloses the credit eligibility information under paragraph (3)(b), (c), (e) or (f); or

(d) the credit provider discloses the credit eligibility information under paragraph (3)(d) to an enforcement body.

(32) Schedule 2, item 72, page 111 (line 18), omit paragraph 21M(1)(b).

(33) Schedule 2, item 72, page 111 (lines 19 and 20), omit “for the purpose of the collection of payments”, substitute “to the person or body for the primary purpose of the person or body collecting payments”.

(34) Schedule 2, item 72, page 111 (after line 26), at the end of subsection 21M(1), add:

Note: See section 21NA for additional rules about the disclosure of credit eligibility information under this subsection.

(35) Schedule 2, item 72, page 113 (after line 9), after section 21N, insert:

21NA Disclosures to certain persons and bodies that do not have an Australian link

    Related bodies corporate and credit managers etc.

(1) Before a credit provider discloses credit eligibility information under paragraph 21G(3)(b) or (c) to a related body corporate, or person, that does not have an Australian link, the provider must take such steps as are reasonable in the circumstances to ensure that the body or person does not breach the following provisions (the relevant provisions) in relation to the information:

   (a) for a disclosure under paragraph 21G(3)(b)—section 22D;

   (b) for a disclosure under paragraph 21G(3)(c)—section 22E;

   (c) in both cases—the Australian Privacy Principles (other than Australian Privacy Principles 1, 6, 7, 8 and 9.2).

(2) If:

   (a) a credit provider discloses credit eligibility information under paragraph 21G(3)(b) or (c) to a related body corporate, or person, that does not have an Australian link; and

   (b) the relevant provisions do not apply, under this Act, to an act done, or a practice engaged in, by the body or person in relation to the information; and

   (c) the body or person does an act, or engages in a practice, in relation to the information that would be a breach of the relevant provisions if those provisions applied to the act or practice;

the act done, or the practice engaged in, by the body or person is taken, for the purposes of this Act, to have been done, or engaged in, by the provider and to be a breach of those provisions by the provider.

Debt collectors

(3) Before a credit provider discloses credit eligibility information under subsection 21M(1) to a person or body that does not have an Australian link, the provider must take such steps as are reasonable in the circumstances to ensure that the person or body does not breach the Australian Privacy Principles (other than Australian Privacy Principle 1) in relation to the information.

(4) If:

   (a) a credit provider discloses credit eligibility information under subsection 21M(1) to a person or body that does not have an Australian link; and

   (b) the Australian Privacy Principles do not apply, under this Act, to an act done, or a practice engaged in, by the person or body in relation to the information; and

   (c) the person or body does an act, or engages in a practice, in relation to the information that would be a breach of the Australian Privacy Principles (other than Australian Privacy Principle 1) if those Australian Privacy Principles applied to the act or practice;

the act done, or the practice engaged in, by the person or body is taken, for the purposes of this Act, to have been done, or engaged in, by the provider and to be a breach of those Australian Privacy Principles by the provider.

(36) Schedule 2, item 72, page 125 (line 20), at the end of the heading to section 22E, add “etc.”.

(37) Schedule 2, item 72, page 125 (lines 26 and 27), omit “for use in managing credit provided by the provider”.

(38) Schedule 2, item 72, page 126 (lines 3 and 4), omit “in managing credit provided by the credit provider”, substitute “for the purpose for which it was disclosed to the person under paragraph 21G(3)(c)”.

(39) Schedule 2, item 72, page 126 (lines 8 to 10), omit all the words from and including “information” to the end of subsection 22E(3), substitute:

information if:

   (a) the disclosure is to the credit provider; or

   (b) the disclosure is required or authorised by or under an Australian law or a court/tribunal order.

(40) Schedule 4, item 189, page 193 (after line 18), at the end of section 80Z, add:

Note: In determining the pecuniary penalty, the court must take into account all relevant matters including the matters mentioned in subsection 80W(6).

In dealing with these amendments, I may also touch on government amendments (17) and (27) on sheet BP262. I note that the addendum to the explanatory memorandum was tabled in the Senate on 22 November 2012. It addressed recommendations made by the Senate Legal and Constitutional Affairs Legislation Committee in its report on the bill, which was tabled on 26 September 2012. The government is introducing certain amendments to items in schedules 1, 2 and 4 of the bill. Many of these amendments, as I think I indicated in my second reading speech, respond to the recommendations of the committee report on the bill.

The amendments to schedule 1 of the bill respond to recommendations 1, 2 and 8 of the committee’s report and will improve the effectiveness and operation of the proposed Australian Privacy Principles. These amendments are as follows: amendment (8), clarify the pseudonymity principle in Australian Privacy Principle 2; amendment (11), remove the word ‘prohibition’ from the subheading of APP 7, which deals with direct marketing, to more accurately reflect the content of the provisions; amendments (9), (10), (11), (12), (13) and (14) will add notes under those APPs that refer to permitted general situations and permitted health situations to provide useful cross-references to those meanings of those terms; and amendment (7) makes a minor amendment to the provisions dealing with medical research. The government will also expand the list of provisions that will be reviewed 12 months after commencement. The review commitment was given in response to a recommendation of the House of Representatives Standing Committee on Social Policy and Legal Affairs. As a result of discussions with the opposition, the government will add APP 7, which deals with direct marketing, to that list of matters to be reviewed.

The amendments to schedule 2 of the bill respond to recommendations 10 and 15 of the committee’s report about the credit reporting provisions. The amendments to schedule 2 will also address a number of additional stakeholder concerns. These amendments are as follows. We will deal with amendment (27) shortly. Amendments (18), (19) and (20) broaden the identification provisions to permit research to be generally about credit. The Australian link requirement will be redrafted to ensure credit providers can continue to undertake various offshore processing activities in relation to credit eligibility information, clarify the scope of the managing credit and debt collection provisions, and make a number of related changes. We will deal with amendment (17) later. Amendments (16), (25) and (26) add regulation, making powers to allowed prescribed credit providers that are not licensees, such as Indigenous Business Australia, to access repayment history information, exempt and prescribe credit providers, such as IBA, from certain obligations to be a member of an external dispute resolution scheme and allow additional relay services that may be developed in the future to be exempt from the requirements to obtain prior written authorisation where the prescribed service is used to assist an individual and access seeker to communicate for the purpose of obtaining access to their credit reporting information.

Amendments (1) to (6) will extend the commencement period of the bill to 15 months after royal assent. This longer commencement period will ensure industry has sufficient time to make necessary changes to their systems and procedures. Amendment (40) will add a note to the civil penalty provisions in schedule 4 of the bill to clarify the matters that a court must consider in determining an appropriate penalty for multiple breaches of the act. That will ensure that a court will take into account all relevant circumstances in deciding on the total penalty to impose where there have been multiple breaches relating to the same conduct. In summary, we may be able to deal with any questions related to those issues that may have arisen, but I commend those amendments.

Before I conclude, it seems I could, by leave, add government amendment (17) on sheet BP262 to the government amendments, as it is a more efficient way of dealing with it, if there is no objection. I understand that there is not, but I seek leave to do that.

Leave granted.

Senator LUDWIG: I move government amendment (17) on sheet BP262:

(17) Schedule 2, item 72, page 77 (lines 7 and 8), omit all the words from and including “recipient” to and including “licensee”, substitute:

recipient of the information is:

   (a) a credit provider who is a licensee or is prescribed by the regulations; or

   (b) a mortgage insurer.

Having moved that amendment, I will speak briefly on it. Amendment (17) permits credit reporting bodies to disclose repayment history information to mortgagee insurers.

Senator BRANDIS (Queensland—Deputy Leader of the Opposition in the Senate) (16:29): I just want to say a few words on behalf of the opposition in relation to the government’s amendments. The bill, in its exposure and first reading considerations, attracted a great number of representations and submissions from affected stakeholders, including from the telecommunications, utilities, banking, insurance and direct marketing sectors.

Fifty-nine submissions were received by the Senate Legal and Constitutional Affairs Legislation Committee, which reported on 25 September.

I want to take the opportunity to thank the committee for the comprehensive nature of its hearings and its report. I want in particular to thank my colleague and, indeed, my parliamentary secretary, Senator Gary Humphries, for his tremendous industry in the work of the committee. The majority of the committee made 21 recommendations including substantive amendments, new transitional provisions and a comprehensive review within 12 months of the passage of the bill. The coalition members of the committee made an additional four recommendations.

I will speak momentarily to amendment (17) among the government amendments. That amendment is to substantially the same effect as an amendment jointly circulated in my name and the names of Senators Xenophon, Williams and Wright. Given that government amendment (17) is to substantially the same effect, I just indicate to the minister that we are happy for it to be considered among the government amendments. But let me speak briefly to it.

That amendment, government amendment (17), raises an issue specifically identified in the hearings by coalition members of the committee. In their report, the coalition members of the committee said:

Proposed new subsection 20E(1) (item 72 of Schedule 2) of the Privacy Act prohibits a ‘credit reporting body’ which holds ‘credit reporting information’ about an prohibits a ‘credit reporting body’ which holds ‘credit reporting information’ about an individual from using or disclosing that information. There are a number of exceptions to this general prohibition (proposed new subsections 20E(2)-(3)); however, under proposed new subsection 20E(4) a ‘credit reporting body’ cannot disclose ‘credit reporting information’ derived from ‘repayment history information’ to recipients who are not ‘licensees’ under the National Consumer Credit Protection Act 2009, including, for example, lenders mortgage insurers (LMIs), … which are regulated by the Australian Prudential Regulation Authority.

The Insurance Council of Australia highlighted that LMIs assume the same risk as lenders:

[I]mpeding their ability to assess this risk by denying direct access to the full range of credit information is likely to significantly affect the LMI providers’ ability to actually provide [lenders mortgage insurance]. This will impact on the availability and accessibility of borrowers (particularly first home buyers).

Coalition Senators note that such an outcome would be contrary to some of the benefits of privacy reform identified by the Attorney-General in her second reading speech and, in particular, the enhanced ability of the finance and credit industry to make more accurate risk assessments. Consistent with the introduction of more comprehensive credit reporting, Coalition Senators consider that, with the appropriate safeguards, there is no sound justification for disallowing LMIs from receiving ‘credit reporting information’ from a ‘credit reporting body’.

And that is the effect of the amendment, government amendment No. (17).

I acknowledged Senator Gary Humphries a moment ago, but I should also acknowledge Senator John Williams, who was a participant in the hearings of the committee and who, I think, had a particular interest in this amendment. As to the rest of the government amendments, as I have indicated, the opposition supports them. They are in each case a reflection of the recommendations of the Legal and Constitutional Affairs Legislation Committee and their adoption is the result of a very productive discussion that took place between the Attorney-General, myself and Senator Humphries last Tuesday afternoon. So the government amendments have the support of the coalition.

Senator XENOPHON (South Australia) (16:34): I note the comments of Senator Brandis and also acknowledge the role that Senator John Williams has played in relation to that particular amendment with mortgage lending insurance, because it would have been quite anomalous for this bill not to include that. To not give mortgage lending insurers access to credit reporting information would have caused chaos in that industry and would have had quite severe effects.

I am also grateful for the discussions that I have had with Senator Wright from the Australian Greens in relation to this. I think that common sense has prevailed. The weight of numbers in any event is such that the combination of the coalition and the Greens and myself would have been overwhelmingly one of needing to fix up the anomaly, and so it has been fixed. I am very pleased that the government has moved this amendment which, in effect, reflects the amendment that was in the joint names of Senators Brandis, Williams, Wright and myself. I am pleased that this has been fixed, much to the relief of the mortgage lenders, and I think to home lenders and intending homeowners in Australia as well.

Senator WILLIAMS (New South Wales—Nationals Whip in the Senate) (16:35): I would just like to add some comments following Senator Xenophon. For some 46 years, I think, mortgage insurance companies have had access to individual credit history and I believe that it is very important that the status quo remains. Those mortgage insurance companies have got to provide the insurance and they need to know who they are insuring.

I do not know whether this was an oversight by the government or by the Attorney-General when this legislation was brought in to the other place. I hope it was just an oversight not with some other meaning as far as the mortgage insurance companies go. I do welcome the government’s amendment, which is basically the amendment put forward by Senators Brandis, Xenophon, Wright and myself. It was a serious problem and I am glad that that problem has been solved.

I thank Senator Brandis for his input to this very important issue, and his staff. I thank Senator Xenophon and I acknowledge Senator Wright as well. Through the weight of numbers, as Senator Xenophon said, I am glad the government has listened to this very important issue. No doubt they have had plenty of meetings and plenty of people knocking on their door, saying, ‘You have got this wrong.’ The Senate inquiry has obviously had the problem highlighted by coalition senators, and it is a pleasing result. Mortgage insurance companies will have that problem fixed so that they can access credit history, knowing what sorts of individuals they are dealing with when they put their money at risk. That is only fair and, as I often say, life is about fairness.

Senator HUMPHRIES (Australian Capital Territory) (16:37): I want to make a few comments on all the amendments the government has moved, except amendment (17). I welcome this raft of amendments, which in part exhibits a responsiveness and attentiveness to coalition senators’ concerns in a dissenting report. We are unaccustomed to this but welcome that tendency by the government in this case at least to take these matters on board and to move amendments that respond to them. I particularly welcome the extension of the commencement date of the legislation. It was very clear from the inquiry that the new regime will be very complex and the stakeholders themselves made clear that the time frame originally provided for—nine months from royal assent for the commencement of the legislation—was too short. The Australian Bankers Association, for example, said:

… as far as the general privacy provisions are concerned, the proposed implementation timeframe in the Bill will be insufficient for our members to implement those reforms effectively.

It has taken four years since the Law Reform Commission initiated this process of improving our privacy regime until the legislation was tabled this year. It would be a pity if such a long period of time had elapsed and then the implementation were so rushed that the process was not effectively consummated.

I also note what the minister said about Australian Privacy Principle 7 and the issue of direct marketing. I welcome the fact that the drafting of that privacy principle has been amended to make it clear that not all direct marketing is prohibited—except that which is expressly exempted by the principle. I want to put on record that I am aware of still serious concerns in some parts of industry, in this case particularly the online sector, that this issue is not yet resolved. They have concerns that the model used for marketing on platforms such as Yahoo, Facebook and so forth is not accommodated by this legislation as currently drafted. They remain concerned that they may not be able to deliver, because of the arrangements in place with our privacy principles outlawing direct marketing based on the private information supplied to those platforms by their customers, a product to Australian customers which they can deliver to customers pretty well anywhere else in the world.

I believe the minister said he would be ensuring a review was conducted. I welcome that. I hope that inherent in that there would not be any prosecution of parties in circumstances where current business practices were continued which have been thought and understood by suppliers of those services to be acceptable under these new arrangements but which in fact are not covered by the new legislation. Those matters are not clear. I hope the government will exercise restraint in addressing its discussions with the online sector as to how it overcomes any differences of view about how these changes are to be implemented.

Having said that, I think these amendments take this legislation to a better place. I personally welcome them.

Senator WRIGHT (South Australia) (16:41): Some concerns were raised in the inquiry process by stakeholders. We feel that the majority of these have been addressed through the government’s response to the committee report. They are actually now in the form of these amendments. As a result, we feel the bill has been significantly improved. I acknowledge the government’s willingness to be responsive in this event both to the report and to concerns raised by the Australian Greens, my colleague Senator Xenophon and the coalition about mortgage insurance as well. However, there are two additional amendments I will be moving in order to improve consumer protection in the bill.

Senator LUDWIG (Queensland—Minister for Agriculture, Fisheries and Forestry and Minister Assisting on Queensland Floods Recovery) (16:42): I want to deal with Senator Humphries’s last issue. I think it is worth putting on the record the way the government would expect it to work. For the online group, if I can generally call them that, the Privacy Commissioner will develop guidelines. You would expect the commissioner—and I cannot direct the commissioner—would develop those guidelines in consultation with the online industry. That will take a certain amount of time, one would expect, but in doing that the online community can express the issues Senator Humphries also raised. That would fall prior to the review, so one would expect that those issues would be managed in that way.

Question agreed to.

Senator WRIGHT (South Australia) (16:43): by leave—I move Greens amendments (1) and (3) together:

(1) Schedule 2, item 69, page 65 (after line 27), after paragraph 6Q(1)(b), insert:

(ba) at least 30 days have passed since the day on which the notice was given; and

(3) Schedule 2, item 72, page 102 (line 35), omit “a reasonable period has”, substitute “at least 30 days have”.

These amendments relate to the time period after which notice is given before a default credit listing can occur. The Australian Greens are of the view that a default listing should not occur until at least 30 days after a default notice has been given. In practical terms that gives a borrower sufficient time to receive the notice, to become aware of the fact that there is an amount owing—there may be vagaries of the post that interfered with the delivery of that notice—to contact the credit provider and/or to try to rectify the default before a listing can be made. This is consistent with other credit laws.

In some cases the listing may arise out of an event of which the borrower is not aware—for instance, if there is a bank error—and it will give them time to become acquainted with that and to do something to rectify it. This was a recommendation that was made by the Consumer Credit Legal Centre of New South Wales, which submitted that the current provisions in the bill essentially enabled a credit provider to list a default immediately after issuing written notice to an individual. That is clearly procedurally unfair as it is the notice itself that is important in notifying the consumer that there actually is a default. It is more than possible to be unaware of the default where, for instance, it is out of the control of the borrower—as I said with the bank error.

The Consumer Credit Legal Centre has significant expertise in providing consumer assistance advocacy and representation and it sees how these sorts of legal provisions work in practice and how they can impact on vulnerable Australians. I think it is important that we respect this expertise and avoid unintended consequences by applying on-the-ground knowledge, and it often speaks on behalf of consumers. The Consumer Credit Legal Centre recommended that the bill should be amended to require 30 days to have elapsed from the date for the written notice before listing can occur. The submission of the Australian Communications Consumer Action Network also suggested that a listing should not occur until the credit provider had made reasonable attempts to contact the debtor and provide a specific warning regarding the default listing.

We recognise the practical reality for consumers who face financial strain and we think that it is important that they are provided with sufficient notice about overdue payments and the consequences of failing to pay such overdue payments. For that reason we support the recommendation by the Consumer Credit Legal Centre that the bill should be amended to require 30 days to have elapsed from the date of the written notice before a default listing occurs.

Senator LUDWIG (Queensland—Minister for Agriculture, Fisheries and Forestry and Minister Assisting on Queensland Floods Recovery) (16:46): The government does not support the motion. The government has, in the alternate—and as I think we will be doing—accepted the committee’s recommendation to require at least 14 days to elapse after a notice has been provided to an individual before default information about the individual can be included in the credit reporting system. The government has agreed with the committee’s view that a 14-day period provided sufficient time for an individual to receive the final notice warning them that a default would be listed for the overdue payment and to contact the credit provider to make appropriate arrangements for the payment of the overdue amount. The government has looked at the issue of extending it to 30 days and does not believe it is appropriate. I note, if you put it in this context, that an individual must be 60 days overdue in making a payment before a credit provider can send the individual a notice warning them that their default will be listed. A 30-day period before listing would mean that the individual was overdue by at least 90 days and has not contacted the credit provider in that time to make alternative arrangements. The government considers that that is an excessive period of time. It is more important that the credit provider can contact and talk to the creditor in those instances. It is, of course, only a minimum period. The government notes that the credit reporting code of conduct may provide additional obligations in relation to listing defaults, including addressing situations where a longer time period may be appropriate. The credit reporting code will be developed by all stakeholders and, once registered by the Information Commissioner, compliance with the code will be mandatory for all credit providers. Having given that short synopsis, those are the reasons why the government will not be supporting the Greens amendments.

Senator BRANDIS (Queensland—Deputy Leader of the Opposition in the Senate) (16:48): The opposition will not be supporting Greens amendments (1) and (3) either, essentially for the reasons recited by the minister. Under the way the legislation works, a notice cannot be issued until there has been a default of at least 60 days so the mischief identified by Senator Wright, which these amendments would correct, really does not arise because already there has been a default for a period of two months. While I am on my feet I might say that Greens amendment (2) does seem to us to be reasonably innocuous and therefore we have no objection to it.

Question negatived.

Senator WRIGHT (South Australia) (16:49): I move Greens amendment (2) relating to the threshold for overdue payments:

(2) Schedule 2, item 69, page 65 (line 31), omit “$100”, substitute “$150”.

The Australian Greens are seeking to extend the threshold from $100 to $150. There was evidence given in the committee inquiry from various stakeholders, including the Consumer Credit Legal Centre who said:

We now have a generation of young people with mobile phones. Over 50 per cent of the default listings on the current credit reporting list are for telcos. It should not be, under any circumstances, that people’s lives completely stop for five years over a hundred bucks. A hundred bucks is just too small an amount. We need to put that up to $300. A hundred bucks is just too small an amount. We need to put that up to $300. Another example is electricity: many, many people are struggling with paying their electricity bills. A hundred dollars for a default listing is catastrophic; it should be higher. I understand that some of the energy and water ombudsmen are advocating for that minimum listing to be increased. I also understand the Telecommunications Industry Ombudsman is as well.

In its submission, the centre said:

The overdue amount needs to be commensurate with the detriment caused by a default listing. A listing for $200 being a small amount remains on a consumer’s credit report for 5 years. This is a severe detriment for a small amount of money overdue. … The overdue amount needs to reflect rising loan amounts. Many years ago $100 would be a reasonable amount but now as loans get larger, it is inappropriate to list a default over such a small overdue amount. For example, it is possible to have a home loan and an investment loan and suddenly be unable to refinance due to a mix up at the bank on the payment amount over a 60 day period in the amount of $200 on a $400,000 home loan. … There are a number of utilities where it is very common for consumers struggling with living expenses and other financial hardship to be a bit behind on payments. As it stands that “bit behind” in the Bill would be $100. With rising electricity prices and problems with capping costs on mobile phones, it is essential that consumers are given a bit more leeway than $100 overdue before they are prevented from getting a home loan, credit card, personal loan etc. for 5 years.

That came from the submission by the centre.

Comments by the Consumer Credit Legal Centre for increasing the overdue amounts from $100 to $300 were supported by the Energy and Water Ombudsman New South Wales and the Australian Communications Consumer Action Network. The purpose of increasing the threshold of overdue amount is to exclude small utility bills from the adverse consequences of credit listing. It also recognises increases in the cost of living over recent years.

The Australian Greens agree that there should be an amendment here to reflect recent changes in costs of living and, after some negotiation and an awareness of what is likely to be agreed to by the chamber, we suggest that the threshold amount be changed from $100 to $150. We also note that there is a provision in the bill for a higher amount to be prescribed by regulations, which provides flexibility in responding to consumer concerns down the track that $150 is not in fact sufficient. However, we do think that this minor change will go some way towards a more realistic situation. We feel that these changes will improve consumer protections in the Privacy Act.

Senator LUDWIG (Queensland—Minister for Agriculture, Fisheries and Forestry and Minister Assisting on Queensland Floods Recovery) (16:52): The government agrees.

Senator BRANDIS (Queensland—Deputy Leader of the Opposition in the Senate) (16:52): As I said, the opposition supports the amendment as well. But I cannot let the occasion pass by without making the observation, through you, Mr Acting Deputy President: Senator Wright, if you are so concerned about the rise in the cost of living and the effect upon poor people of rising electricity prices, why are you imposing upon this country the world’s greatest carbon tax for no environmental gain and whose very purpose is to force up electricity prices and will hurt poor people most?

Question agreed to.

Senator LUDWIG (Queensland—Minister for Agriculture, Fisheries and Forestry and Minister Assisting on Queensland Floods Recovery) (16:53): I move government amendment (27) on sheet BP262:

(27) Schedule 2, item 72, page 102 (line 35), omit “a reasonable period has”, substitute “at least 14 days have”.

This amendment refers to the 14-day issue. It is just putting it back on the record.

Senator BRANDIS (Queensland—Deputy Leader of the Opposition in the Senate) (16:53): The opposition supports that.

Question agreed to.

Bill, as amended, agreed to.

Bill reported with amendments; report adopted.

BILL READ A THIRD TIME

Senator LUDWIG (Queensland—Minister for Agriculture, Fisheries and Forestry and Minister Assisting on Queensland Floods Recovery) (16:55): I move:

That this bills be now read a third time.

Question agreed to.

Bill read a third time.

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