Chapter 2

Views on the bill

2.1        This chapter summarises the views held by stakeholders on the provisions of the bill and its effects.

General support for the bill

2.2        Submitters and witnesses were broadly supportive of the bill and its key intention of increasing competition and providing Australians with better access to finance through mandating comprehensive credit reporting (CCR).[1]

2.3        The Australian Retail Credit Association (ARCA) welcomed the certainty that the introduction of mandatory CCR will provide, noting that it agrees with the Treasurer, the Hon Scott Morrison MP's, description of a functioning CCR system as 'a vital part of Australia's economic infrastructure'.[2]

2.4        ARCA further submitted that:

ARCA considers that the Bill establishes an appropriate mechanism for mandating the supply of credit reporting data by the major banks, and—subject to the finalisations of the Regulations—ensures that the industry developed frameworks relating to on-disclosure are supported.[3]

2.5        Mr Michael Laing, Executive Chairman of ARCA, told the committee that because of the introduction of a mandatory CCR regime for the four major banks, as proposed by the bill, 'other credit providers have joined or are close to the point of joining the system'.[4] Mr Laing also noted that 'one of the major banks, the National Australia Bank, is already reporting, with the other three having invested in and developed systems to share their comprehensive information shortly'.[5]

2.6        ANZ characterised CCR as 'an important tool for credit providers (CP) to improve outcomes for consumers and the quality of credit decisions'. ANZ also noted that 'CCR will help credit providers improve the level and efficiency of compliance with responsible lending provisions in the National Consumer Credit Protection Act 2009 (NCCP Act)'.[6]

2.7        Westpac Group (Westpac) expressed its support for the bill, noting that it 'will provide long term benefits for both consumers and credit providers'.[7]

2.8        illion submitted that with poor take-up of CCR following its introduction in 2014, it 'strongly concurs with the need for a mandatory approach'.[8] illion described the bill as 'an important and pressing next step towards the full implementation of an effective CCR regime in Australia'.[9]

2.9        Mr Poli Konstantinidis, Executive General Manager, Credit Services and Decision Analytics A&NZ, Experian, applauded the progress which has been made on CCR in Australia. Mr Konstantinidis further commented that 'I think we are well on our way to an effective CCR regime'.[10]

Benefits of CCR

2.10      Inquiry participants were in broad agreement with regard to the consumer and economic benefits of CCR. Specifically, submitters and witnesses noted the positive impact that an effective CCR regime will have with regard to increasing competition in the market. Overall, participants agreed that by better supporting credit providers' understanding and thereby the pricing of credit risk, CCR will facilitate consumers' access to suitable credit and better enable credit providers to meet their responsible lending obligations.

Increased competition

2.11      The provision of CCR data into the credit-reporting system will facilitate competition in the market by allowing for a more granular assessment of consumer credit risk. As summarised by ANZ, 'CCR allows CPs [credit providers] to share information and gain a more detailed picture of a consumer's financial situation'.[11]

2.12      Mr Steven Brown, Director, Bureau Engagement at illion, explained for the committee how CCR would increase competition and thereby benefit consumers by reducing information asymmetries and 'levelling the playing field' between credit providers:

Not only does an information asymmetry exist between lenders and borrowers, there are also data differences between lenders. In other words, if I am a very large bank, I may have a lot of information on which to draw upon to make credit decisions; if I am a small fin tech, a start-up lender, clearly I would have less information available to me to make a credit decision, so the information asymmetry between borrowers and lenders is even greater if I am a smaller player. The provision of this information into the credit-reporting system allows a level playing field across lenders, which makes the small lenders more competitive. So borrowers should expect higher degrees of competition in financial services. They should also expect to see a lender that's got a greater understanding of their ability to take on additional credit and therefore better credit decision-making.[12]

Consumer benefits

2.13      PERC summarised the flow-on benefits to consumers of a CCR system that promotes competition between credit providers:

Improved access to credit, particularly for the under-served, lower costs for both consumers and lenders, and lower default rates have all been proven to be the outcome of a CIS [credit information system] system designed to promote competition among lenders, particularly in markets where monopolies or oligopolies exist.[13]

2.14      Similarly, illion submitted that for consumers, 'CCR will facilitate greater competition in the market, thereby increasing access to more affordable and innovative products'. illion elaborated on this point, commenting that:

Borrowers with positive credit histories, for example, will have greater opportunities to benefit from their actions and behaviour, while those previously excluded due to a lack of information may now be able to access mainstream credit (as opposed to being unable to borrow at all, or reverting to unscrupulous credit providers).[14]

2.15      Importantly, illion also noted that the introduction of CCR data better allows for individuals in a vulnerable credit situation to be identified and assisted earlier.[15]

2.16      ARCA referred the committee to a KPMG report on the benefits of enhanced credit data. The KPMG report recognised that the more detailed assessments of consumers' ability to service debts 'would reduce the proportion of credit applications declined on a relatively arbitrary basis due to lack of credit data' and that, in turn, 'this could provide considerable social benefits to those currently marginalised by the financial system'.[16]

2.17      Mr Laing of ARCA argued that the increased competition brought about by the supply of CCR data 'is already delivering benefits to Australian consumers through better-tailored products, empowering fintech entrants to challenge the established financial service providers and spark industry into better servicing Australians'.[17] Mr Laing provided the committee with the following example:

Recent advice from a well-known fintech is that, following the sharing of comprehensive data by NAB and HSBC, fintech found it could reduce interest rates that it was already charging for most of those banks' customers, saving those customers, on average, up to $1,000 over the term of a three- to five-year loan.[18]

2.18      Mr Brown from illion presented the committee with examples of the benefits of CCR experienced in other jurisdictions, including better access to credit, particularly for those consumers who are younger or on lower incomes, and reductions in the number of individuals that default on loans:

For example, in the US, CCR enabled an uplift of 40 per cent for what we classify as the underserved segments—so some of the lower income, younger segments—according to 2010 research by the Organisation for Economic Cooperation and Development. In Hong Kong, credit card lending increased by almost 10 per cent in two years following the introduction of CCR according to the Hong Kong monetary authority. And in Japan, we saw the probability of delinquencies greater than 16 days past due date reduced by 34 per cent, according to the policy and economic research council.[19]

Meeting responsible lending obligations

2.19      Under the NCCP Act, holders of an Australian credit licence must comply with the responsible lending conduct obligations. The responsible lending obligations are aimed at ensuring that credit licensees do not enter into a credit contract with a consumer, suggest a credit contract to a consumer, or assist a consumer to apply for a credit contract if the credit contract is unsuitable for the consumer.[20]

2.20      Before providing credit assistance to a consumer, a credit licensee must make a preliminary assessment about whether the credit contract will be unsuitable for the consumer. To do this, a credit licensee must make reasonable inquiries about the consumer's financial situation, and their requirements and objectives; and take reasonable steps to verify the consumer's financial situation.[21] A credit licensee is prohibited from providing credit assistance to a consumer in relation to a credit contract if the contract will be unsuitable for the consumer.[22]

2.21      Mr Ian Gilbert, Executive Director, Legal and Regulation at the Australian Banking Association (ABA), explained how CCR will allow credit providers to better meet their responsible lending obligations once a consumer is already approved for a loan:

A customer's financial situation is important to understand. We've heard this morning, and we support, that the responsible lending obligations under the National Credit Code or the National Consumer Credit Protection Act are very strong provisions. But they don't provide for what happens after a loan has been made, responsibly, and a customer subsequently falls into financial difficulty. The credit-reporting system is going to provide that additional piece of information about how that customer's going with their credit facility, including the fact that the bank may record the fact that there's a missed payment and to understand why that has occurred.[23]

2.22      Mr Laing of ARCA also commented on the benefits that CCR will provide with regard to credit providers meeting their lending obligations under the NCCP Act, noting that the need to enhance responsible lending has been a key matter under consideration in the current financial services Royal Commission:

[CCR] will ensure a more robust environment that enables financial service providers to lend more responsibly, which benefits both consumers and lenders. The need to enhance responsible lending has been a key take-out of the current royal commission into banking. The commissioner has already highlighted the need to use actual data to verify information on a lending application. And I can say with certainty that comprehensive information is a critical independent verification tool that will better support responsible lending. It's a tool that allows a lender to have greater transparency over what credit cards, home loans, personal loans and other types of credit a consumer has and, equally important, their track record for repayment.[24]

Other consumer benefits

2.23      Mr Brown from illion argued that, by increasing the overall transparency of credit reporting, CCR will have benefits for consumers in the form of increased financial literacy:

I think what we should expect from a comprehensive credit-reporting system with all the big banks data in it as a result of this bill is a much more understandable system for consumers. By relying more on the repayment history information, with their performance as a borrower being more clearly visible then consumers can reasonably understand whether they can afford additional credit and understand how their credit worthiness is measured and impacted and understood by borrowers. It's a much more transparent system.[25]

2.24      The committee also heard from Mr Brown that effective CCR will result in a fairer system for consumers, whereby borrowers are better able to 'rehabilitate' their credit history when they acquire a default on their credit report:

The other thing that consumers should expect is obviously a fairer system. If we think about how the system operates today in a negative credit-reporting environment, we've got a situation where I can have a default on my credit report, which could essentially lock me out of mainstream credit for up to five years. In a properly operating comprehensive credit-reporting environment I have the ability to rehabilitate myself through making regular repayments. Those repayments then become visible to lenders and, indeed, I can then take on more mainstream credit. Borrowers should expect a fairer credit-reporting system under this bill.[26]

Interaction with the hardship provisions

2.25      A key concern raised by most inquiry participants was the interaction between the mandatory credit information required to be provided under the CCR regime—specifically, the requirement to provide repayment history information (RHI) in accordance with section 6V of the Privacy Act 1988 (Privacy Act)—and the hardship provisions contained under the National Credit Code (NCC).

Operation of financial hardship provisions

2.26      Financial hardship is regulated under the NCC in Schedule 1 of the
NCCP Act, which is overseen by the Australian Securities and Investments Commission (ASIC).

2.27      Section 72 of the NCC provides for a debtor to give a credit provider a 'hardship notice', either orally or in writing, when they are unable to meet their repayment obligations under a credit contract, and when they reasonably expect to be able to discharge those obligations if the terms of the contract were changed.[27]

2.28      The credit provider may request further information from the debtor, either orally or in writing, within 21 days of receiving the hardship notice. The debtor must provide the relevant information within 21 days of the credit provider's request. The credit provider must respond to the debtor's hardship notice within a set time frame, notifying the debtor of the decision and, if the hardship notice is refused, the reasons for refusal.[28]

2.29      Where a credit provider agrees to enter into an agreement with the debtor to change a credit contract as a result of financial hardship (a financial hardship agreement), section 73 of the NCC requires that the credit provider give the consumer a notice in writing within 30 days after the agreement is made stating the particulars of the change.[29]

2.30      However, there is an exception to this section 73 requirement for a credit provider to provide a written notice to a debtor. Under section 203A of the NCC, ASIC may exempt a person, contract, mortgage, guarantee or consumer lease from all or specified provisions of the NCC.[30]

2.31      Accordingly, ASIC Class Order [CO 14/41] exempts a credit provider from the obligation to provide a written notice to a debtor if the financial hardship agreement entered into is a 'simple agreement'. A simple agreement is defined as 'an agreement that defers or reduces the obligations of a lessee [debtor] for a period of no more than 90 days'.[31]

2.32      A range of different payment arrangements may be made between a credit provider and an individual where the individual is in financial hardship and unable to meet the terms of a consumer credit contract. An arrangement may involve a formal variation to the terms of a consumer credit contract. Alternatively, a simple agreement made between a credit provider and debtor may not result in a formal variation—known to industry as an 'indulgence'.

2.33      Ms Angelene Falk, the Acting Information Commissioner and Acting Privacy Commissioner, summarised in simple terms what an indulgence may look like:

In other cases there might be what's known in the industry as an indulgence made—that is, perhaps not a formal variation to a contract but a meeting of the minds between the consumer and the credit provider that monthly payments have been changed for perhaps a particular period of time and that the credit provider will not call on the original contract price for payment.[32]

Reporting of Repayment History Information

2.34      Concurrent to the financial hardship requirements under the NCC, as outlined above, credit providers have obligations under the Privacy Act 1988 (Privacy Act) in regards to the way they report an individual's repayment history information (RHI) to credit reporting bodies.

2.35      Credit providers are required to report an individual's RHI in accordance with section 6V of the Privacy Act. Subsection 6V(1) of the Privacy Act defines repayment history information as:

(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:

  1. 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;
  2. the day on which the monthly payment is due and payable;
  3. 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.[33]

2.36      As explained by Ms Falk, in circumstances where an individual has made an application to a credit provider for hardship assistance, currently, the Privacy Act prevents the credit provider from disclosing to a credit reporting body the fact that a hardship application has been made by that individual. Consequently, this information—often referred to by industry representatives as a 'hardship flag'—cannot be included in an individual's credit report.[34]

2.37      The ABA described how the reporting of RHI works in practice under the current legislative framework for CCR:

Currently, the CCR system provides for a bank to report to its credit bureau whether the customer has met the monthly payment(s) due under their credit facility. If the payment is made on time (within the 14 days period of grace) the CCR system records a "0". If the payment is missed (after the grace period of 14 days) the system will record this as "1" (missed payment) and so on if the payment remains unpaid (for the next month as "2" etc). These entries are maintained as a record of performance by the customer for 24 months.

OAIC Guidance

2.38      As noted in Chapter 1, in an effort to enhance clarity in regards to the way credit providers report information about an individual's RHI to credit reporting bodies, the Office of the Australian Information Commissioner (OAIC) has published guidance about the reporting of RHI and default information in circumstances of financial hardship. The OAIC has also published guidance about the meaning of 'repayment history information' where a consumer credit contract is varied or an 'indulgence' is in place.[35]

2.39      The OAIC guidance clarifies how the term 'due and payable', which is not defined in the Privacy Act, is to be interpreted. For the purposes of section 6V of the Privacy Act (see paragraph 2.35), the OAIC understands the term 'due and payable' to mean 'that the credit provider has a legal entitlement to maintain an action for recovery against a consumer in respect of a missed monthly payment'.[36]

2.40      The OAIC guidance also clarifies how the meaning of 'due and payable' is applied in regard to the different financial hardship arrangements that may be made between a credit provider and an individual where the individual is unable to meet the terms of a consumer credit contract:

  1. Where the arrangement is a variation to the terms of the consumer credit contract, then an assessment of whether RHI is 'due and payable' under s 6V(1) should be by reference to the terms of the varied contract.
  2. Where there is no variation to the consumer credit contract and an indulgence is made, whether RHI should be assessed by reference to the terms of the indulgence or by reference to the underlying credit contract will depend on the nature of that arrangement, particularly, whether the credit provider could maintain enforcement action against the individual for default of the original contract despite compliance with the indulgence.[37]

2.41      ARCA submitted that it and industry welcome the legal clarity given by the OAIC's guidance.[38]

Stakeholder views

2.42      Submitters and witnesses had differing opinions as to the extent of credit providers' RHI reporting obligations when an individual is in financial hardship.

2.43      Consumer representatives strongly contested the OAIC's guidance as to when an amount is 'due and payable', submitting that:

Consumer Representatives strongly disagree with the Office of the Australian Information Commissioner's (OAIC's) interpretation of when an amount is 'due and payable' under the Privacy Act as per its guidance that was recently published on its website. The OAIC has limited its interpretation of 'due and payable' to the legal entitlement to maintain an action for recovery, but has not considered the requirements under the Credit Act which impact directly on when an action for recovery can be maintained.[39]

2.44      Consumer representatives argued that, if an arrangement has been made with a consumer to change their payments in circumstances of financial hardship, and the consumer is meeting their payment obligations under that arrangement, then the original amount cannot be due and payable.[40]

2.45      ANZ disagreed with this view and expressed concern that, when reporting RHI, it cannot report customers in hardship programs as being up to date as this would not meet its reporting obligations.[41]

2.46      ANZ further outlined its position with regard to its reporting obligations under the Privacy Act, submitting that:

ANZ sees its obligations under the Privacy Act as requiring the reporting of RHI based on the customer’s status in relation to contractual minimum monthly repayments. Where a customer enters into a temporary arrangement because they are experiencing financial hardship, and this does not involve a variation to the contract, our view is that reporting of repayment information must be by reference to whether the customer has met, and/or continues to meet, their originally contracted repayments, not the repayments under their temporary arrangement.[42]

2.47      Westpac expressed a similar view, commenting that, under the current legislative framework, credit providers 'will not have the option to withhold the fact that customers have not met repayments in accordance with their original contract'.[43]

Consequences and concerns

2.48      While the reporting obligations for the CCR regime are well established under the Privacy Act, a number of inquiry participants expressed concern that they thought the bill had proceeded to legislative enactment without clear legislative provision as to how credit providers must report repayment history information where a customer has entered into a financial hardship agreement with the credit provider.[44]

2.49      In their joint submission to the inquiry, consumer representatives commented:

Consumer representatives are deeply concerned that RHI data will be wildly inaccurate if the banks start reporting customers as making payments late when those consumers have called up and arranged a hardship variation as they are legally able to do under the credit law. It is our strong view that they are not making late payments since the contract has been mutually agreed to be varied. It is critical that this area of the law (and how it will work in practice) is clarified as soon as possible.[45]

2.50      Similarly, the Australian Finance Industry Association (AFIA) argued that this 'is a critical issue for consumers and industry alike and should be resolved as a priority'.[46] AFIA also warned that omitting information relating to customers financial hardship 'devalues the credit reporting process' and 'potentially creates risk of inadvertent irresponsible lending to consumers'.[47]

2.51      AFIA further reflected on the importance of obtaining clarity on this issue to ensure that individual's credit reports are accurate and do not adversely affect consumer credit decisions:

Credit providers regularly work with their customers when they experience periods of financial difficulty to provide relief and a way for the customer to 'get back on track'. We believe the issue of how these situations should be reported needs to be addressed so that an individual's credit report remains a clear and objective historic record of all facts relevant to future consumer credit decisions.[48]

2.52      The ABA underlined that, without an agreed resolution and legislative change as to how financial hardship arrangements are to be reported under the CCR framework, customers in financial hardship are likely to be detrimentally affected and 'lumped together with those customers who simply don't comply with their repayment obligations'.[49]

2.53      Consumer representatives noted that most consumers will have limited understanding of how entering into financial hardship arrangements with a credit provider and how their credit report may be adversely affected. This could lead to further distrust of the industry and increased complaints.[50]

2.54      Consumer representatives also expressed concern that the potential for the mandatory reporting of RHI to reflect negatively on a consumer's credit standing may 'discourage people from accessing the financial hardship arrangements that they are legally entitled to'.[51] Consumer representatives provided the following context:

The consumers we speak to on the National Debt Helpline are overwhelmingly concerned about their credit reports and credit scores and the impact upon this information by any actions they take. These people need to be confident that they will be treated fairly if they do the right thing and contact their credit provider for a financial hardship arrangement when they cannot pay, but will be able to get back on track within a reasonable time.[52]

2.55      The Queensland Law Society (QLS) emphasised the importance of mandatory CCR not reducing the flexibility of credit providers responses to circumstances where a consumer is in financial hardship, including whether or not to report a default. Elaborating on this point, QLS observed that:

There may be particularly sensitive circumstances giving rise to the default, such as financial abuse or domestic violence, and it is crucial that lenders be able to take appropriate steps, including making indulgences, to ensure that the consumer is not further disadvantaged.[53]

Hardship flag

2.56      As noted at paragraph 2.36, the Privacy Act does not currently permit a credit provider to disclose to a credit reporting body the fact that an individual is in financial hardship—often referred to by industry as a 'hardship flag'.

2.57      Most inquiry participants were supportive of proposals to amend the Privacy Act to introduce a hardship flag into the credit reporting system to identify that a consumer has asked their credit provider to change their credit contract on the grounds of financial hardship and provide a true indications of their financial position.[54]

2.58      ARCA noted that additional hardship data would allow for differentiation between repayment history that is reported for a varied credit contract, compared to that being reported for a consumer's original payment obligations.[55]

2.59      The ABA drew the committee's attention to what it considered the potential risks posed to consumers by inconsistent and inaccurate RHI reporting under different financial hardship arrangements:

Some options mean the credit provider has no visibility that the customer is in financial difficulty and may extend further credit, while other options will not reflect that the customer is actively engaged with the credit provider to work through their current difficulties.

On the other hand, if the payment is recorded as paid because the customer is adhering to a different payment arrangement made with their bank, other credit providers could conclude the individual is a good credit risk and may place the customer under greater hardship by extending further credit.[56]

2.60      The ABA considered this to be 'an unacceptable exposure of customers to risk' and one that could be avoided 'if a hardship indicator is permitted to be added to the relevant RHI reporting under the Privacy Act'.[57]

2.61      Westpac also supported the proposals for inclusion of a hardship flag to RHI reporting, arguing that it would enable credit providers to perform better lending assessments and ensure the quality of credit information:

In Westpac’s view, the customer benefits from including a 'hardship flag' because it allows for a transparent and fair representation of a customer’s situation—it would represent the current status of the arrears and protect customers from inappropriate lending when the customer is at the height of their financial stress.[58]

2.62      In contrast, consumer representatives disagreed with these views, arguing that '[h]ardship flags will only serve to further disincentivise consumers from proactively reaching out to lenders when they are in financial difficulty, undermining the current financial hardship protections'.[59]

Attorney-General's review

2.63      On 28 March 2018, the Attorney-General, the Hon Christian Porter MP, announced that the government will conduct a review of financial hardship arrangements, including looking into the intersection between hardship arrangements and the credit reporting framework.[60]

2.64      Inquiry participants were generally welcoming of the Attorney-General's review, however noted that the timing of the review and any resultant changes are unlikely to be completed prior to the proposed commencement of the mandatory CCR regime.[61]

2.65      ARCA noted that, in the absence of a means to identify consumers in financial hardship in consumer credit reports, 'the repayment history information reported for those consumers could be misleading'. ARCA contended that:

Given this issue will become more significant as the number of credit providers supplying comprehensive credit data increases, we strongly urge that this review be brought forward.[62]

2.66      Similarly, AFIA recommended that the government expedite the review into hardship reporting with the purpose of allowing credit providers to transparently report instances of customers in hardship.[63]

2.67      Westpac also submitted that an earlier review time frame is necessary in order to 'ensure the fairest possible outcome for any customers who are in hardship during the reporting period'.[64]

Scope of mandatory CCR

2.68      Some inquiry participants expressed concern that the bill restricts the mandatory CCR regime to large ADIs with total resident assets are greater than
$100 billion—effectively compelling the Australia's big four banks to participate in CCR.[65]

2.69        For instance, Westpac contended that the CCR regime should apply to all credit providers. Westpac reasoned that:

Restricting the Scheme to the majors leaves 20 per cent of consumer credit lending out of the picture...Without full coverage, Westpac will not have access to the credit history details of accounts a customer holds with CPs who are not supplying comprehensive information, potentially resulting in an incomplete assessment of their financial situation.

2.70      Westpac recognised that while 'the Government is open to including other [credit providers] at a later date'[66], there appears to be no mechanism to monitor which and when other credit providers come on board. Westpac suggested that the statutory review of the mandatory CCR regime, to be completed by 1 January 2022, examine any unintended consequences for customers of smaller credit providers not contributing comprehensive credit information.[67]

2.71      illion acknowledged that mandating the major banks to participate in CCR 'will undoubtedly prove significantly more effective than the voluntary CCR framework currently in place'. However, illion considered that the mandated CCR participation threshold 'be lowered to $50 billion so that large, "second tier" ADIs are also obliged to participate in CCR 12 months after the largest institutions if this has not occurred voluntarily'.[68]

2.72      illion also contended that restricting the scope of the mandatory CCR regime to the big four banks will limit the potential positive impact on competition in the market that would result from a more fully inclusive regime:

By restricting mandatory CCR to effectively only the largest four lenders, illion contends the competitive effects arising from the regime will fall far short of what is possible, in that competition is likely to be largely felt between the big four rather than with other lenders...Should competition only be improved amongst Australia’s four largest lenders, consumers will be faced with an unchanged market amongst small lenders that are not compelled to participate.[69]

2.73      In further evidence to the committee, Mr Brown from illion argued that
broad-based adoption of CCR 'is key to making sure that the maximum information is available to ensure that banks can detect undisclosed liabilities and lend responsibly'.[70]

2.74      The Customer Owned Banking Association (COBA), the industry association for Australia's customer owned banking institutions such as mutual banks, credit unions and building societies, took a differing view. COBA supported the government's decision to limit mandatory CCR to only large ADIs. COBA submitted that this approach avoids 'imposing unnecessary costs on smaller ADIs while creating a critical mass of CCR data to encourage all credit providers to undertake the investment needed to participate'.[71]

Regulation to prescribe eligible licensees

2.75      The bill allows for the extension of the mandatory CCR regime to credit providers other than those considered 'large' ADIs under a regulation-making power. As noted in the explanatory memorandum, the government expects that regulations would be made after the mandatory regime has been in operation for a period of time and other credit providers are not voluntarily supplying data.[72]

2.76      The ABA reminded the committee of the burden that ongoing regulatory change has on its members, and particularly for regional and smaller ADIs with more limited resources. The ABA recommended that, if the government were to consider prescribing regulation to extend the mandatory CCR regime to smaller ADIs, an additional period of consultation with these ADIs be afforded 'to identify an appropriate and achievable implementation timeframe'.[73]

2.77      AFIA conveyed support for the current scope of the CCR regime as proposed in the bill, where mandated participation is restricted to large ADIs.[74] However, AFIA stressed that its preferred position is not to mandate CCR participation across the sector as a 'one-size fits all' approach. AFIA reasoned that industry participation outside the mandated large ADIs will grow organically over time.[75]

2.78      Ms Helen Gordon, Chief Executive Officer of AFIA, elaborated on this point in evidence to the committee:

Our position there is really that the smaller entities will benefit from that information in the system, so they will want to participate. They will want to include their data about their customers in the system because they will get the benefit of information from other players, which have a lot more information about a lot more people, in return. There'll be an organic kind of outcome, if you like. So that statutory obligation is not appropriate for all of the players in the system. The government will achieve the outcomes it's seeking, but not necessarily through having to mandate compliance across all participants.[76]

2.79      AFIA also reflected on the internal resources required to engage in CCR, noting that smaller credit providers would need 'a significant lead time to make the necessary capital expenditure in IT, credit criteria redevelopment and retraining'.[77]

Data privacy and security

2.80      The Privacy Act sets out the regulatory model for credit reporting information including use and disclosure, de-identification of credit reporting information, using credit reporting information for marketing purposes, and how this information must be protected from unauthorised access or misuse.[78]

2.81      Part IIIA of the Privacy Act, supported by the Privacy (Credit Reporting) Code 2014 (Privacy Code) and the Privacy Regulation 2013, regulates consumer credit reporting in Australia. As summarised by the Attorney-General's Department (AGD):

Part IIIA of the Privacy Act provides the statutory basis for limitations on how credit reporting information may be used. Credit reporting information means credit information or 'CRB derived information' and broadly extends to any information that has a bearing on an individual’s credit worthiness or could be used to establish an individual’s eligibility for consumer credit.[79]

2.82      The OAIC has regulatory oversight of credit reporting, ensuring that credit reporting bodies and credit providers comply with their requirements under the Privacy Act, including the requirements in Part IIIA. The Privacy Act confers broad powers on the Australian Information Commissioner, via the OAIC, in relation to monitoring, investigation and enforcement.

2.83      As noted in Chapter 1, the amendments proposed in the bill 'do not require or allow disclosure, use or collection of credit information beyond what is already permitted under the Privacy Act and Privacy Code'.[80]

2.84      Inquiry participants were generally welcoming of the fact the bill preserves and is reliant on the existing consumer protections under the Privacy Act and Privacy Code relating to the security and privacy of consumers' credit information.

2.85      Ms Falk, the Acting Information Commissioner and Acting Privacy Commissioner, contended that '[t]hese laws provide a robust and effective framework for ensuring that risks to personal information are appropriately mitigated'.[81]

2.86      ARCA expressed a similar view, submitting that:

Given the detailed and extensive consumer protections already contained in Part IIIA and the CR Code, we consider that the draft Bill does not raise additional issues in relation to consumer rights.[82]

2.87      In relation to data privacy, ARCA pointed out that under a mandatory CCR regime, existing consumer records will be expanded, rather than created. ARCA further explained:

Most consumers will already have identity information held by a credit reporting body. Anyone who has applied for credit; including loans by banks and other finance providers, such as in-store finance or motor vehicle finance; a telecommunications service, such as a mobile telephone; or access to an energy supplier, will have a record at a bureau.[83]

Non-compliance with section 20Q

2.88      Section 20Q of the Privacy Act requires a credit reporting body to take reasonable steps to protect the information it receives, including from misuse, interference and unauthorised access.

2.89      The bill enables an eligible licensee to withhold the supply of mandatory credit information where a licensee does not believe the credit reporting body is meeting its information security obligations under section 20Q of the Privacy Act. In such circumstances, a licensee is required to notify the credit reporting body, ASIC and the Australian Information Commissioner.[84]

2.90      Representatives from the Treasury outlined the reasoning behind the inclusion of these additional security obligations in the bill:

The risk in mandatory participation in comprehensive credit reporting was that if they were mandated to provide data, whatever the circumstances, in a sense, they would lose their bargaining power around the contracts. So the bill makes provision that if a bank has concerns about the security of the data it's providing to a credit bureau then it can go through various steps. Effectively, it can make the decision not to supply that data, and then there are various kinds of processes and time lines that sit in the bill in respect of that.[85]

2.91      Some submitters noted their support for the enhanced security obligations imposed by the bill in relation to suspected non-compliance by a credit reporting body with section 20Q of the Privacy Act.

2.92      For example, in their joint submission to the inquiry, consumer representatives commented that:

We believe this subsection will drive better security standards across the entire industry by forcing banks to take responsibility for the security compliance of CRBs when they hand over customer data. This subsection also empowers banks to cease supplying customer data if a CRB demonstrates a major security breach which the banks reasonably believe amounts to non-compliance with s. 20Q.[86]

2.93      Westpac Group also welcomed the addition of a mechanism to raise concerns with credit reporting bodies security management, arguing that:

In today's fast-moving data security landscape, data security standards will be ever changing. A breach of security of personal or credit information in Australia would be disastrous for confidence in the Australian financial system.[87]

2.94      illion expressed a differing view, arguing that this mechanism by which credit providers can be exempted from their obligation to share information with credit reporting bodies is 'superfluous' given the existing safeguards enshrined in the Privacy Act. Elaborating on this point, illion submitted that:

Our view is also based on the fact that the adequate information security protocols are already in place, allowing CRBs to receive credit enquiries from a bank in the present ‘negative’ data environment, is prima facie evidence that information security is adequate in a more comprehensive regime. There is no added risk associated with the sharing of further data, as current safeguards in place do not differentiate between the volume or type of protected data.[88]

2.95      illion also commented on what it considers potential practical effects of such an exemption; specifically, that it may be utilised by credit providers as a barrier to the provision of data.[89]

Interaction with existing Privacy Act provisions

2.96      Under existing section 21U of the Privacy Act, credit providers are required to take reasonable steps to correct credit information that is inaccurate, out-of-date, irrelevant or misleading. Further, section 21U provides that where a credit provider corrects information in this way, it must, with some limited exceptions, notify credit reporting bodies to which it has previously given the information.[90]

2.97      The OAIC expressed concern that proposed section 133CV(4) of the bill—which provides an exception to the bulk and ongoing supply requirements where an eligible licensee has a reasonable belief that a credit reporting body is not complying with its security obligations under the section 20Q of the Privacy Act—will limit the operation of requirements regarding notices of correction in existing section 21U of the Privacy Act.

2.98      The OAIC acknowledged that while it appreciates the intent of these provisions in not mandating disclosures of credit information where there may be security risks, the operation of these provisions could have a detrimental effect on data quality and flow on consequences for a consumer's credit report. The OAIC explained:

An effect of proposed section 133CV(4) of the Bill appears to be that other CPs may obtain information from the relevant CRB that is out-of-date, incomplete, irrelevant or misleading. The OAIC's concern is that CPs may then make credit worthiness decisions on the basis of poor quality information. The quality of credit reporting information is of fundamental importance to individuals, given the significant consequences that may flow, in terms of future access to credit, from an adverse credit report.[91]

2.99      The OAIC suggested that the enhanced security protections envisaged by these provisions 'could be achieved by limiting the mandated supply requirements under the bill, without limiting the correction requirements under the Privacy Act'.[92] The OAIC further stated that:

This would mean that an eligible licensee would not be required to disclose information about individuals as envisaged under the Bill, while preserving the data quality protections in the Privacy Act.[93]

Increased amount of data in the system

2.100         Consumer representatives drew the committee's attention to the significant increase in the amount of data on a consumer's credit report as credit providers are mandated to participate in the CCR regime.[94] In their joint submission, the Financial Rights Legal Centre (FRLC) and other consumer representatives argued that this increase in data:

...will proportionally increase the potential errors that might occur that consumers will need to dispute. This is particularly the case with RHI which will be updated monthly with up to two years of data available at any one time.[95]

2.101         The OAIC also recognised the increased volume of credit information in the consumer credit reporting system as a result of the mandating of CCR. The OAIC submitted that this 'will require proactive oversight and accountability for participants in the scheme', and further contended that:

To enhance consumer trust in the scheme, it will be important to ensure the OAIC is resourced to exercise its functions to effectively oversee the handling of credit information in the system.[96]

2.102         Ms Falk, the Acting Information Commissioner, explained to the committee the practical implications of the legislation with regard to the OAIC's regulatory oversight of the credit reporting system:

We would expect that the mere fact of having an increased volume of credit-reporting information in the system would result in increased regulatory activity required by the OAIC.

...

Similarly, we would expect an increase in the volume of complaints. When the credit-reporting provisions were amended in 2014, we experienced a significant increase in complaints from consumers in terms of credit reporting. On average, about 25 per cent of about 2½ thousand complaints that we receive relate to credit reporting. However, in 2014 we received more than 2,000 complaints simply on credit-reporting matters.

We've also got powers—they're outlined in pages 4 to 5 of the submission—to undertake regulatory activity on our own initiative where issues arise. The bill will also envisage a role for the OAIC where a credit provider has some security concerns about a credit-reporting body. Under that provision a notice would need to be given to the OAIC and we would then need to apply our regulatory action policy to decide what, if any, further regulatory action is needed.[97]

2.103         In response to questions on notice regarding the regulatory environment supporting CCR and the OAIC's oversight role in consumer credit reporting, AGD advised the committee that:

AGD and OAIC have been consulted through the development of the proposed legislation and AGD considers that the powers conferred on the OAIC are appropriate for the OAIC to be able to effectively regulate the credit reporting sector after the introduction of mandatory comprehensive credit reporting.[98]

Vulnerable and lower income consumers

2.104         The implications of the mandatory CCR regime as proposed by the bill for vulnerable and lower income consumers was raised by a number of submitters and witnesses. In particular, the potential for increased price differentiation, consumer use of 'credit-cleaning' organisations, and the use of pre-screening for marketing purposes were highlighted as matters of concern.

Increased price differentiation

2.105         QLS expressed concern that the increase in available credit information resulting from mandatory CCR 'may result in lower income applicants being charged more for credit due to greater differential pricing'.[99]

2.106         QLS took the view that:

This is likely to push these applicants more towards higher cost lower-tiered lenders, like the providers of small amount and medium amount credit contracts. It may also mean that a consumer’s credit score/risk score is going to increase and could have a negative affect when a person tries to purchase credit.[100]

2.107         The committee heard a similar view from consumer representatives, who submitted that:

We are also concerned that some lenders are likely to use this increased information not to deny people credit where it appears their finances are already stretched, but to charge those customers more for credit. We may see a significant increase in price discrimination including an influx of expensive, priced-for-risk products...Risk based pricing exacerbates inequality, as consumers deemed higher risk not only pay more for credit, but are at greater risk of default because of those higher repayments.[101]

2.108         Reflecting on the possibility of increased price differentiation between consumers as a result of CCR, Mr Konstantinidis from Experian suggested that increased price differentiation based on consumers' credit history would be a reflection of more responsible lending practices:

Senator McALLISTER:  Will the system create a capacity for rewards to consumers with positive credit histories?

Mr Konstantinidis:  Yes.

Senator McALLISTER:  By implication, it will also create penalties, relative to those with positive histories, for people with poor credit histories, will it not? You can't have one without the other.

Mr Konstantinidis:  That is a fair question. I would probably look at it in the way that there will definitely be the reward element. Whether it is a penalty, I look at it going back to using the terminology more-responsible or appropriate—whether or not it is an extension of credit, and I think in a better position not to place a consumer in a vulnerable situation.[102]

Use of 'credit-cleaning' organisations

2.109         QLS considered that, as a consequence of greater price differentiation, the introduction of mandatory CCR may drive more consumers to use credit repair—often called 'credit-cleaning'—organisations. QLS noted that, in some cases, such organisations 'have not led to the best consumer outcomes'.[103]

2.110         Dr Andrew Grant from the University of Sydney also cited the growth of 'credit-cleaning' businesses as a possible outcome of introducing CCR:

The outcomes for individuals on the lower end of the credit spectrum may be negative; evidence from Dun and Bradstreet's implementation of CCR in New Zealand has indicated as much. This may lead to the growth of
so-called 'credit-cleaning' businesses or the introduction of products specifically targeting the borrowers with adverse events in their credit histories.

2.111         Similarly, Ms Katherine Temple, Senior Policy Officer at the Consumer Action Law Centre (CALC), asserted that the increase in information on consumers' credit reports as a result of CCR 'will just turbo-charge these unregulated and harmful businesses'.[104]

2.112         Consumer representatives described the unscrupulous practices of unregulated credit-cleaning organisations in their joint submission to the inquiry:

DMFs [debt management firms] target people struggling with debt, promising to clean or fix their credit reports. DMFs regularly mislead people about the nature of their service/product and charge thousands of dollars for poor quality services. They also use customer's enquiries about fixing their credit report as an opportunity to steer debtors into unsuitable debt agreements or other expensive and often inept debt negotiation services.[105]

2.113         Representatives from the Treasury recognised the concerns raised by consumer groups with regard to the provisions proposed in the bill giving rise to growth in the credit-cleaning industry, and advised that it thinks it is 'an issue that needs further consideration'.[106] Mr James Kelly, Chief Advisor, Financial System Division, Treasury, further told the committee that:

My understanding is that consumer affairs ministers, Commonwealth and state, have also flagged that as an area requiring consideration, and it is something that's on the agenda to look at.[107]

Pre-screening

2.114         Consumer representatives highlighted the use of 'pre-screening' under section 20G of the Privacy Act to direct marketing of more costly credit products to consumers whose credit information indicates that they are of higher risk.[108]

2.115         However, as clarified by a number of industry representatives, under section 20G of the Privacy Act, pre-screening is limited to using 'negative only' data and, moreover, only to assess whether the individual is eligible to receive the communication.[109] Pre-screening 'is a safeguard to ensure that offers of credit are not sent to consumers who, because they already have defaults and other adverse information on their credit report, are unlikely to be approved if they take up the offer and apply for the product'.[110]

2.116         As explained by AFIA:

A key objective of this provision was to assist credit providers ensure financially vulnerable customers, in particular, do not receive offers potentially increasing their exposure to credit and financial difficulties.[111]

Other matters raised

2.117         Other matters raised by inquiry participants in relation to the bill included: the drafted definition of 'evidential burden'; and the requirement to provide statements of compliance to the Treasurer.

Drafted definition of 'evidential burden'

2.118         The bill inserts the definition of the term 'evidential burden'—that being, 'in relation to a matter, means the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist'—into subsection 5(1) of the NCCP Act.[112]

2.119         QLS criticised this definition as drafted in the bill, contending that it 'adopts a standard of proof contrary to that developed by the law over time'.[113] QLS argued that this drafting 'will create confusion rather than clarification', and advocated for a 'more orthodox approach'.[114]

2.120         Specifically, QLS recommended that:

Where the evidential burden relates to a civil matter, the normal civil burden, on the balance of probabilities, should apply and, in the case of the evidential burden relating to a criminal matter, the standard should be beyond a reasonable doubt.[115]

Statements of compliance to the Treasurer

2.121         As noted in Chapter 1, credit providers and eligible credit reporting bodies will be required to provide statements to the Treasurer relating to their compliance with the initial bulk supplies of credit information under the mandatory CCR regime.[116]

2.122         The ABA questioned why this requirement to make statements of compliance to the Treasurer is necessary, contending that it is a regulatory impost which duplicates the role of the regulator, ASIC. The ABA submitted that it 'believes only the one process of audited compliance reporting should be made to ASIC. These statements can then be provided by ASIC to the Treasurer'.[117]

2.123         In response to a question from the committee regarding the reasoning behind this requirement in the bill to provide statements of compliance, representatives from the Treasury explained:

It's an accountability measure on the banks. It reflects the history of what has been a very long process to actually establish a comprehensive reporting regime. When it was set up and legislated in 2012, the expectation was that we would now have a fully functioning comprehensive credit-reporting regime. It has always been a disappointment. So, in some ways, I think you can see that report to the Treasurer as a way of emphasising the importance the government attaches to it.[118]

Committee view

2.124         There is broad agreement amongst stakeholders with regard to the consumer and economic benefits of comprehensive credit reporting. Participants in the inquiry noted the positive impact that an effective CCR regime will have with regard to increasing competition in the market by reducing information advantages and levelling the playing field between lenders. Stakeholders agreed that by allowing credit providers to obtain a comprehensive view of an individual's financial situation, effective CCR will also facilitate consumers' access to tailored and suitable credit, and ensure credit providers better meet their responsible lending obligations.

2.125         Importantly, the committee notes that CCR's 'principle of reciprocity' ensures that all present and future credit providers must supply their own collected credit information into the CCR system in order to get information out. In these terms, it is recognised that all credit providers can have the confidence that everyone participates in the system on equal terms providing full credit data.

2.126         However, it is also apparent to the committee that there is a disjunct between credit providers' RHI reporting obligations under the Privacy Act and financial hardship arrangements under the NCCP Act. Stakeholders strongly disagreed on how circumstances of financial hardship are to be reflected, or in fact not reflected, in an individual's credit information, and the potentially adverse consequences this can have on a consumer's credit report.

2.127         The committee agrees that this is an issue that should be resolved as a matter of urgency and welcomes the government's review of financial hardship arrangements. However, the committee is cognisant that, under the current time frame, outcomes of the review will come after the enactment of the bill.

Recommendation 1

2.128         The committee recommends that the Australian Government consider expediting its review of financial hardship arrangements.

2.129         Regarding the scope of CCR as proposed in the bill, the committee is confident that mandating the big four banks to participate in CCR will create a critical mass of data and should encourage other credit providers to voluntarily partake in the CCR regime.  The committee also recognises the significant resources required for credit providers to engage in CCR, and is of the view that considered consultation be undertaken should the government decide to extend the mandatory CCR regime to credit providers other than large ADIs in future.

2.130         Credit-related information is one of the most strictly regulated forms of personal information under the Privacy Act. The committee is confident that the existing consumer protections under the Privacy Act, as well as the security enhancements in the bill in relation to how and where credit information is stored and suspected non-compliance, will ensure that risks to consumers' personal information are mitigated. 

2.131         The committee notes the OAIC's concerns regarding the interaction of certain provisions in the bill with those existing in the Privacy Act. The committee also acknowledges the concerns of some stakeholders regarding the implications of the mandatory CCR regime for vulnerable and lower income consumers; in particular, a potential growth in so-called 'credit-cleaning' businesses as a result of CCR. The committee suggests that any implications of the credit reporting framework—including unintended interactions or limitations imposed on other legislation and consumer use of 'credit-cleaning' services—be examined as part of the Treasurer's statutory review into the operation of the credit reporting system.

2.132         The committee also encourages the relevant regulatory bodies to engage early with plain English information campaigns to facilitate greater public awareness and financial literacy of these new arrangements.

2.133         Australians have been waiting for comprehensive credit reporting for a long time. The committee considers the reforms in the bill to be an important and essential next step in transforming Australia's current negative and assumption-based credit reporting system into one that provides for a holistic, accurate and comprehensive view of consumers' credit standing. A fully functioning and effective CCR regime will bring Australia into line with arrangements equivalent to CCR in other OECD countries.

2.134         The committee notes that the reforms proposed by the bill are not new, and have been born out of recommendations from multiple and extensive inquiries and consultations. The legislative framework for comprehensive credit reporting has been in place since March 2014 when amendments to the Privacy Act came into effect. The changes proposed by the bill will ensure that the full benefits of comprehensive credit reporting are realised.

Recommendation 2

2.135         The committee recommends that the bill be passed.

Senator Jane Hume
Chair


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