‘Pre-screening’

57.74 There was industry support for the idea that, notwithstanding a prohibition on direct marketing, credit providers should be able to use credit reports to ‘exclude’ individuals from direct marketing offers, for example, to increase credit limits or refinance loans (‘pre-screening’).[75]

Application of the Privacy Act

57.75 While it is clear that Part IIIA of the Privacy Act does not permit the use and disclosure of personal information for the purposes of direct marketing, the legal position with regard to pre-screening is more complex.

57.76 The ALRC understands that pre-screening operates as follows. First, a credit provider generates a list of the names of ‘prospects’ to whom credit may be offered. Such a list may have been generated from the credit provider’s own customer lists or may have been acquired elsewhere. The list is then provided to a credit reporting agency, which matches the names on the list with credit information files. Where the credit information relating to an individual is adverse, according to criteria provided by the credit provider, the name is removed from the list. Finally, the ‘cleaned’ list is provided directly by the credit reporting agency to a mailing house, which sends out an offer prepared by the credit provider.

57.77 In examining the legal position of pre-screening, it is necessary to consider whether the Privacy Act permits the:

  • disclosure of lists of names and contact details by the credit provider to the credit reporting agency;

  • use of the list of names and contact deals in the data-matching process undertaken by the credit reporting agency; and

  • disclosure of a ‘cleaned’ list of names and contact details by the credit reporting agency to the mailing house.

Disclosure by the credit provider to the credit reporting agency

57.78 Section 18N regulates the disclosure by credit providers of ‘reports relating to credit worthiness’. The disclosure of a list of prospective borrowers by a credit provider to a credit reporting agency, however, will not be covered by this provision where the list contains names and contact details only. This is because the list probably does not constitute a ‘report’, as defined in s 18N(9). In other words, the information it contains does not have ‘any bearing on an individual’s credit worthiness, credit standing, credit history or credit capacity’.

57.79 Accordingly, the provisions of Part IIIA do not prevent the disclosure of the list for the purposes of pre-screening. The disclosure, however, also must comply with the NPPs. Under NPP 2.1, the disclosure would be permitted if:

  • the names and contact details were collected for the primary purpose of direct marketing and disclosure is for this primary purpose; or

  • use by the credit provider (that is, in disclosing the list to the credit reporting agency)[76] is for the secondary purpose of direct marketing and the requirements of NPP 2.1(c) have been satisfied.

57.80 The former case might apply where the list was bought from an information broker for direct marketing. In this case, it is arguable that the reason the list is disclosed to the credit reporting agency is clearly to facilitate direct marketing by the credit provider. It is common for organisations who engage in direct marketing to ‘clean’ lists with personal information from other sources. One interpretation is that the disclosure is, therefore, for the primary purpose of direct marketing and complies with NPP 2.1. Alternatively, it may be argued that disclosure is for the related secondary purpose of checking the credit history of those on the list. If this argument is accepted, the disclosure will breach NPP 2.1(a) unless it is within the reasonable expectation of the individuals concerned.[77]

57.81 Where the list comprises existing customers of the credit provider, it may be possible to argue that the disclosure of the list by the credit provider to the credit reporting agency is for the secondary purpose of direct marketing, and is permitted provided that the requirements of NPP 2.1(c) have been satisfied.

Use of information by the credit reporting agency

57.82 In pre-screening, the credit reporting agency uses personal information contained in its credit information files to ‘clean’ the personal information contained in the list. That is, a data-matching exercise is undertaken. Part IIIA does not provide limitations on the use of credit information files by credit reporting agencies. Rather, s 18K focuses on the disclosure of personal information by credit reporting agencies. NPP 2.1, however, generally applies to the use of personal information, including that in credit information files.[78]

57.83 Whether the use of personal information for pre-screening breaches NPP 2.1 depends, first, on a construction of the primary purpose of collection of the information. A narrow construction would be that the information is collected to enable the credit reporting agency to provide a credit report ‘to a credit provider who requested the report for the purpose of assessing an application for credit made … to the credit provider’[79] or, more generally, to assess the credit worthiness of individuals. A wider construction would be that the primary purpose of collection is to serve the needs of the credit reporting system. These might include disclosure for any of the purposes permitted under s 18K.

57.84 Whichever construction is taken, the use of the credit information files to pre-screen seems to be a secondary purpose in terms of NPP 2.1(a). This secondary purpose is clearly not related to the primary purpose of assisting a credit provider to assess applications for credit. At the time the list is provided to the credit reporting agency, no application for credit has been made. It is arguable, however, that the secondary purpose is related to a wider construction of the primary purpose—for example, the assessment of credit worthiness.

57.85 In the ALRC’s view, the better interpretation is that the use of credit information files by credit reporting agencies for pre-screening direct marketing lists is not permitted by NPP 2.1(a). This interpretation is more consistent with the restrictive and prescriptive provisions of Part IIIA of the Privacy Act dealing with the use and disclosure of credit reporting information.

57.86 The use of credit information files by a credit reporting agency to pre-screen lists, however, may be permitted under NPP 2.1(c) if the use of the information by the credit reporting agency can be said to be for the secondary purpose of direct marketing and the other requirements of NPP 2.1(c) have been satisfied.

Disclosure by the credit reporting agency to the mailing house

57.87 Section 18K places limits on the disclosure, by a credit reporting agency, of personal information contained in an individual’s credit information file. The purposes for which such information may be disclosed are set out exhaustively in the section. Disclosure to facilitate direct marketing is not such a purpose.

57.88 The question is whether the disclosure of a pre-screened list by a credit reporting agency to a mailing house constitutes the disclosure of personal information contained in an individual’s credit information file in terms of s 18K. From one perspective, all that is being disclosed to the mailing house is a list of names and addresses, which are not derived from the credit information file, but from the list provided by the credit provider. Where the credit information file contains relevant information (that is, showing an adverse credit record) the information is used to delete names from the list. This may distinguish pre-screening from other disclosure of credit reporting information for direct marketing purposes, which is prohibited by s 18K.[80]

57.89 If the ‘cleaned’ list is returned to the credit provider, rather than to the mailing house directly, there may be an argument that this would constitute a disclosure that breaches s 18K. The absence of some names from the list would be readily apparent and effectively constitutes disclosure that these individuals have the characteristics defined by the credit provider as being sufficient to exclude them from the offer.

57.90 The disclosure of the list by a credit reporting agency to the mailing house is permitted by NPP 2.1 because disclosure is for the primary purpose of collection, that is, for direct marketing purposes.

Conclusions

57.91 The current legal position under the Privacy Act with regard to the pre-screening of direct marketing lists is complex. It appears, however, that the use of credit information files by credit reporting agencies to pre-screen lists is not authorised by NPP 2.1(a), as it is not for a secondary purpose related to the primary purpose of collection.

57.92 The credit reporting agency, however, may be able to rely on NPP 2.1(c), which applies only when the use of information is for the secondary purpose of direct marketing. That is, in order to comply with the Privacy Act, those engaged in the practice of pre-screening currently must rely on an exception applicable to direct marketing generally. Further, any disclosure of the ‘cleaned’ list back to the credit provider by the credit reporting agency may breach s 18K.

57.93 The situation under the model UPPs would be similar. The ‘Use and Disclosure’ principle in the model UPPs follows the wording of NPP 2.1(a) in relevant respects.[81] The ALRC also recommends that the model UPPs contain a separate ‘Direct Marketing’ principle. This would remove the current distinction, in NPP 2.1(c), between the use or disclosure of personal information for the primary and secondary purpose of direct marketing.[82] It would not, however, significantly change the analysis. Whether pre-screening complies with privacy principles will still depend on the application of the privacy principles dealing specifically with direct marketing.

Discussion Paper question

57.94 In DP 72, the ALRC asked whether credit providers should be permitted to use credit reporting information to pre-screen and, if so, should credit providers be required to allow individuals to opt out. Alternatively, should credit providers only be permitted to engage in pre-screening if the individual in question has expressly opted in to receiving credit offers.[83]

Submissions and consultations

57.95 Credit reporting agencies and credit providers submitted that credit reporting information should be able to be used for pre-screening.[84] ARCA stated that pre-screening is

the process by which a credit reporting agency uses credit reporting information to identify individuals with poor credit worthiness and to exclude them from a list provided by a credit provider without disclosure of credit reporting information to the credit provider or another party.[85]

57.96 ARCA submitted that credit providers should be able to use credit reporting information on a ‘no-eyes’ basis and only using ‘negative customer records’ (as opposed to more comprehensive credit reporting information). This, it was said, would ensure that pre-screening provides a ‘harm reduction outcome’ and enhances ‘the principle of responsible lending’. ARCA submitted that the definitions used in credit reporting regulation should

work together to ensure that the use of the centrally held credit information can not be used as a marketing database for the purpose of developing lists for solicitation. It is also not the intention that the information held at each institution about the accounts that their customers hold with them be precluded from use in marketing. The intention is to neither expand nor reduce the personal information available to credit providers from which to develop lists to direct market their products as a result of the introduction of more comprehensive credit reporting.[86]

57.97 Stakeholders referred to pre-screening as being consistent with responsible lending.[87] Dun and Bradstreet stated that allowing pre-screening would ‘be a significant step towards an environment in which unaffordable and unsustainable credit was not offered’.[88] MasterCard noted the importance in the credit card industry of decisions to extend credit limits and submitted that:

As is current practice, credit report information should be accessible for excluding individuals from credit increase offers … It should be noted that this is very different from using credit reports to identify individuals for marketing purposes who should be approached to be offered additional credit. MasterCard opposes the selling of credit information for proactive marketing.[89]

57.98 The AFC stated that, from a public policy perspective, pre-screening ‘assists credit providers to offer credit responsibly to individuals and to target their marketing rather than adopting a more-privacy intrusive blanket approach’.[90] Veda Advantage stated:

All stakeholders agree that it is undesirable for credit to be marketed to individuals who potentially have poor credit worthiness and or are overcommitted. Pre-screening helps achieve that outcome. For an individual consumer whose credit reporting information is used to remove them from a specific direct marketing offer, there is benefit if they are a poor credit risk.[91]

57.99 Veda Advantage noted that mailing houses are required, by contract with the credit reporting agency, to destroy the list after mailing and are prohibited from disclosing the list to any other organisation, including the credit provider.[92] In Veda’s view, therefore, the privacy risks involved in pre-screening are ‘very slight’:

There is no disclosure of credit reporting information, so there is no additional risk of data breach. If a consumer is wrongly excluded from a marketing list, the outcome is simply that they do not receive a piece of unsolicited marketing information. On the other hand, if a consumer is not removed when they should have been, the outcome is exactly the same as would have occurred if pre-screening were generally prohibited—the consumer receives credit marketing that some might argue they should not.[93]

57.100 Veda Advantage submitted that pre-screening should be permitted only where the individuals concerned are given specific notice that their personal information may be used for pre-screening at the time it is collected; and are given the right to opt out of direct marketing generally.[94] It also noted that further discussions are being held between the industry and consumer and privacy advocates on the related subjects of pre-screening, direct marketing and responsible lending. In the light of these discussions, Veda requested that the ALRC not make a final recommendation on the position of pre-screening under the new Privacy (Credit Reporting Information) Regulations.[95]

57.101 Other stakeholders strongly opposed allowing credit reporting information to be used for pre-screening[96]—primarily on the ground that pre-screening may facilitate more intensive marketing of credit or undesirable credit marketing practices.

57.102 The Consumer Action Law Centre noted that, unless offers are ‘pre-approved’, an individual always will have to submit a credit application, at which point credit reporting information can be used by a credit provider to assess credit worthiness. A prohibition on pre-screening, therefore, could not ‘cause credit to be provided to consumers who have negative information on their credit reports’.[97] The Centre noted that

rejecting credit applications made by consumers who have received personally addressed invitations to apply, may cause some consumers to be annoyed. Nevertheless, we do not believe that credit reporting information should be used for the purpose of reducing negative impacts that direct marketing may have on the credit provider’s image or brand.[98]

57.103 The Consumer Action Law Centre also considered the position of ‘pre-approved’ (conditionally approved) offers. It noted that rejection of credit applications in response to such offers would pose ‘a higher reputational risk for the credit provider’. Pre-screening, therefore, may be ‘even more desirable’ for credit providers in relation to these offers—particularly when the offers are being made to individuals who are not current customers.[99]

However, consumer groups such as ours have concerns about the practice of offering ‘pre-approved’ credit, where from a psychological point of view, consumers seem to be placed in a position of deciding whether to ‘reject’ credit that is already ‘theirs’, in circumstances where the consumer has often had no need or desire to obtain credit. We do not support the use of credit reporting information to assist in the making of these offers, or to make the offering of ‘pre-approved’ credit more attractive to credit providers.[100]

57.104 The Financial Counsellors Association of Queensland submitted that, by allowing pre-screening, ‘extra offers of credit could be offered to existing risky consumers’ because the financial position of individuals is not subject to proper scrutiny.[101]

57.105 Galexia noted that pre-screening does not necessarily facilitate responsible lending.

The pre-screened marketing campaigns themselves are often poor examples of responsible conduct. Many of the invitations imply that credit has been pre-approved (some campaigns even include a sample plastic credit card with the target consumer’s name embossed on the front of the card). The marketing material contains little information about the risks of credit. Application forms are typically very brief and provide insufficient space for a person to list details of all of their liabilities – they are certainly shorter than the application forms available in branches for the same products.[102]

57.106 The Consumer Action Law Centre and others contested the view that pre-screening reduces the volume of direct marketing of credit.[103] Consumer Action Law Centre stated:

Pre-screening may reduce the number of offers in a particular campaign, but overall it could actually increase direct marketing of credit, if it makes such campaigns more attractive to credit providers, and therefore leads to more direct marketing campaigns. It may be that some campaigns would not be viable, or would be less viable, without the capacity to screen potential offerees.[104]

57.107 Legal Aid Queensland expressed concern that pre-screening could be used to target particular groups. For example, it was suggested that a credit provider might identify individuals: with housing loans who have a default listed in order to offer refinancing; or with more than two credit cards in order to offer a consolidating loan. Legal Aid Queensland stated that, while it recognised the possible benefit in excluding individuals from direct marking offers, it did not see how pre-screening could be limited in this way.[105] The Consumer Action Law Centre stated that, if pre-screening were to be allowed, it would be essential to define the permitted practices ‘very narrowly’ because

‘pre-screening’ could be used in a variety of ways, to screen-out various factors, to determine ‘pre-approved’ limits and to offer differential interest rates—and it could be used by a larger range of lenders than it is currently (including fringe and sub-prime).[106]

57.108 The Cyberspace Law and Policy Centre observed that allowing pre-screening would ‘effectively get round the current limitation that a credit report can only be drawn in relation to an actual application’; and submitted that the wider issue is ‘whether unsolicited direct marketing of credit should be allowed and if so under what conditions needs addressing in consumer credit legislation’. It also submitted that ‘without compensating lending reforms’, pre-screening should be prohibited by the new credit reporting regulations.[107] Similarly, Galexia expressed the view that allowing pre-screening would be contrary to the prohibition on the use of credit reporting information for direct marketing and would send a ‘mixed message’.[108]

57.109 While most concern about pre-screening focused on the implications for the marketing of credit, stakeholders also noted the privacy risks associated with the practice. The OPC submitted that pre-screening is ‘inconsistent with the policy objective of a robust regulatory scheme for credit information, as well as being inconsistent with community expectations’.[109] Galexia emphasised that pre-screening occurs without the knowledge of the community and could be ‘well outside the expectations of the specific consumers whose data is being used in this way’.[110] The Consumer Action Law Centre stated that:

While the process of pre-screening does not involve credit providers directly accessing individuals’ credit reports, we do not believe that this addresses the privacy concerns. Consumers would generally be surprised, and concerned, to find that their personal information was being used in this way.[111]

ALRC’s view

57.110 The current legal position under the Privacy Act with regard to the pre-screening of direct marketing lists is uncertain. Some stakeholders maintain that neither Part IIIA nor the NPPs prohibit the pre-screening of lists by credit reporting agencies. Conversely, the OPC considers it ‘likely that the Privacy Act currently prohibits pre-screening of credit offers through the use of the credit reporting system’.[112]

57.111 As discussed above, the legality of the practice depends primarily on whether the credit provider and credit reporting agency are able to rely on the direct marketing provisions of the NPPs—and on the use of mailing houses as intermediaries to avoid disclosure of information to the credit provider.[113]

57.112 If pre-screening using credit reporting information were to be permitted, then this would have to be made clear in the new regulations. There are some international precedents for such a course. A report on the international regulation of pre-screening, prepared by Baker & McKenzie for Veda Advantage, identified two jurisdictions—the United States (US) and Ontario, Canada—in which pre-screening is ‘impliedly permitted’.[114] In both the US and Ontario, however, the relevant statutory provisions are focused on processes for the ‘pre-qualification’ or ‘pre-approval’ of credit, rather than on pre-screening itself.

57.113 In the US, under the Fair Credit Reporting Act 1970 (US), a consumer reporting agency may furnish a report in connection with a transaction that is not initiated by the consumer if the transaction consists of a ‘firm offer’ of credit or insurance; and the consumer has not elected to be excluded from pre-screening lists.[115]

57.114 In Ontario, the Consumer Reporting Act 1990 (Ontario) prohibits the supply of ‘a list of names and criteria to a consumer reporting agency in order to obtain an indication of the names of the persons named in the list who meet the criteria’ without prior notification of the persons named.[116] This prohibition is subject to an exception where ‘a person proposes to extend credit to a consumer’.[117] Under this provision, if direct marketing material given to the consumer informs them that a ‘consumer report containing credit information’ has been used, the pre-screening exercise is authorised.

Responsible lending

57.115 The possible use and disclosure of credit reporting information in order to pre-screen direct marketing lists presents a range of policy considerations that do not apply to direct marketing more generally. Notably, there is a strong link with consumer protection concerns about responsible lending, the practices of the credit card industry and the direct marketing of credit.

57.116 Industry stakeholders have argued that the ability to pre-screen direct marketing communications assists them in lending responsibly. There is, it is said, a clear commercial and consumer benefit in ensuring that direct marketing of credit products and services is not directed towards those whose applications for credit would, in any case, be refused.

57.117 From one perspective, permitting pre-screening is consistent with a policy of encouraging or requiring credit providers to assess more fully the financial position of prospective borrowers. On the other hand, pre-screening using credit reporting information could be used as a ‘half-measure’ in assessing capacity to repay—in substitution for fuller inquiry.

57.118 Consumer groups have expressed concern that pre-screening, by facilitating direct marketing of credit to individuals who have not applied for or expressed an interest in obtaining credit, will result in the granting of excessive amounts of credit. It has been suggested, for example, that pre-screening may encourage the offering of ‘pre-approved’ loans or increased credit limits.

57.119 The making of unsolicited credit card offers, described as ‘pre-approved’, has been an issue of significant concern to consumer groups and governments over the last few years.[118] In 2002, the ACT amended the Fair Trading Act 1992 (ACT) to address concerns about ‘pre-approved’ credit cards and credit limits.[119] The Fair Trading Act now prohibits a credit provider from issuing a credit card, or increasing a credit card limit, unless the credit provider has carried out a ‘satisfactory assessment process’.

57.120 A satisfactory assessment process, for these purposes, means

an assessment of the debtor’s financial situation sufficient to satisfy a diligent and prudent credit provider that the debtor has a reasonable ability to repay the amount of credit provided or to be provided.[120]

57.121 It must include asking for (and taking into account), a statement of the debtor’s financial situation, including income, all credit accounts and applicable limits and balances, and repayment commitments.[121] To date, no other jurisdiction has followed the example of the ACT.

57.122 The states and territories have sought to maintain harmonisation of consumer credit law through the uniform Consumer Credit Code. Issues concerning responsible lending are included on the current Strategic Agenda[122] of the Ministerial Council on Consumer Affairs.[123] After its May 2007 meeting, the Council stated, in a communiqué, that

Ministers continue to be concerned about the lending practices of credit card issuers in granting excessive amounts of credit to the most vulnerable consumers and look forward to consulting with stakeholders on options for dealing with this issue.[124]

Conclusion

57.123 While pre-screening may be used to assist responsible lending practices, it also has the potential to facilitate more aggressive marketing of credit. As in the case of more comprehensive credit reporting,[125] pre-screening is a tool that may be used by credit providers in different ways and will, as such, not automatically result in more responsible lending practices. To ensure that pre-screening does promote responsible lending would require the enforcement of detailed rules relating to the criteria on which pre-screening may take place.

57.124 It is common ground among stakeholders that using credit reporting information in direct marketing generally should be prohibited. It is artificial to distinguish between ‘selecting in’ direct marketing prospects (by using credit reporting information to generate a list) and ‘selecting out’ (by pre-screening an existing list).[126]

57.125 Pre-screening provides clear commercial advantages for credit providers through the better targeting of marketing. One bank observed that ‘approval rates following pre-screening for customers applying for credit, can be up to four-fold higher than for non pre-screened data’.[127] Such commercial advantages do not, however, outweigh the privacy and consumer protection concerns raised by pre-screening.

57.126 The new Privacy (Credit Reporting Information) Regulations should prohibit expressly the use or disclosure of credit reporting information for the purposes of direct marketing, including in relation to the ‘pre-screening’ of direct marketing lists.

57.127 Credit reporting information includes some publicly available information—such as bankruptcy (personal insolvency) and court judgment information—as well as information from the records of credit providers. The definition of ‘credit reporting information’[128] in the new Privacy (Credit Reporting Information) Regulations should, however, continue to ensure that publicly available information maintained by a credit reporting agency is covered by credit reporting regulation only where the information is maintained ‘in the course of carrying on a credit reporting business’—that is, consumer credit reporting.

57.128 As is presently the case, an organisation should be able to conduct other business undertakings using publicly available or other personal information that it holds, subject to compliance with the UPPs and other obligations under the Privacy Act. This might include, for example, using personal information from the National Personal Insolvency Index to pre-screen direct marketing lists.[129]

Recommendation 57-3 The new Privacy (Credit Reporting Information) Regulations should prohibit the use or disclosure of credit reporting information for the purposes of direct marketing, including the pre-screening of direct marketing lists.

[75] American Express, Submission PR 257, 16 March 2007; MasterCard Worldwide, Submission PR 237, 13 March 2007; GE Money Australia, Submission PR 233, 12 March 2007; Dun & Bradstreet (Australia) Pty Ltd, Submission PR 232, 9 March 2007.

[76] NPP 2.1(c) refers only to ‘use’, rather than ‘use or disclosure’. As discussed in Ch 26, it is not clear that this has any significance given that ‘disclosure’ can be cast as ‘use’. The ‘Direct Marketing’ principle in the model UPPs refers to use or disclosure.

[77]Privacy Act 1988 (Cth) NPP 2.1(a)(ii).

[78] Except in the case of NPP 2.1(c), which refers only to the ‘use’, rather than the ‘use or disclosure’, of personal information for direct marketing.

[79] To adopt the words of Privacy Act 1988 (Cth) s 18K(1)(a).

[80] An alternative analysis is that, in pre-screening, the credit reporting agency acts as an agent of the credit provider.

[81] See Ch 25.

[82] See Ch 26.

[83]Australian Law Reform Commission, Review of Australian Privacy Law, DP 72 (2007), Question 53–2.

[84] Veda Advantage, Submission PR 498, 20 December 2007; Westpac, Submission PR 472, 14 December 2007; ANZ, Submission PR 467, 13 December 2007; Telstra Corporation Limited, Submission PR 459, 11 December 2007; National Australia Bank, Submission PR 408, 7 December 2007; Dun & Bradstreet (Australia) Pty Ltd, Submission PR 401, 7 December 2007; Australian Finance Conference, Submission PR 398, 7 December 2007; Australasian Retail Credit Association, Submission PR 352, 29 November 2007; American Express, Submission PR 257, 16 March 2007; MasterCard Worldwide, Submission PR 237, 13 March 2007; GE Money Australia, Submission PR 233, 12 March 2007; Dun & Bradstreet (Australia) Pty Ltd, Submission PR 232, 9 March 2007.

[85]Australasian Retail Credit Association, Submission PR 352, 29 November 2007.

[86]Ibid.

[87] For example, Veda Advantage, Submission PR 498, 20 December 2007; Telstra Corporation Limited, Submission PR 459, 11 December 2007; Australian Finance Conference, Submission PR 398, 7 December 2007.

[88] Dun & Bradstreet (Australia) Pty Ltd, Submission PR 232, 9 March 2007.

[89] MasterCard Worldwide, Submission PR 237, 13 March 2007.

[90]Australian Finance Conference, Submission PR 398, 7 December 2007.

[91]Veda Advantage, Submission PR 498, 20 December 2007.

[92] Ibid.

[93]Ibid.

[94]Ibid. On direct marketing generally, see Ch 26.

[95]Ibid.

[96] Australian Privacy Foundation, Submission PR 553, 2 January 2008; Consumer Action Law Centre, Submission PR 510, 21 December 2007; Office of the Privacy Commissioner, Submission PR 499, 20 December 2007; Legal Aid Queensland, Submission PR 489, 19 December 2007; Cyberspace Law and Policy Centre UNSW, Submission PR 487, 19 December 2007; Banking and Financial Services Ombudsman, Submission PR 471, 14 December 2007; Galexia Pty Ltd, Submission PR 465, 13 December 2007; Financial Counsellors Association of Queensland, Submission PR 371, 30 November 2007; N Waters—Cyberspace Law and Policy Centre UNSW, Submission PR 277, 3 April 2007; Australian Privacy Foundation, Submission PR 275, 2 April 2007.

[97]Consumer Action Law Centre, Submission PR 510, 21 December 2007.

[98]Ibid.

[99]Ibid.

[100]Ibid.

[101]Financial Counsellors Association of Queensland, Submission PR 371, 30 November 2007.

[102]Galexia Pty Ltd, Submission PR 465, 13 December 2007.

[103]Consumer Action Law Centre, Submission PR 510, 21 December 2007; Financial Counsellors Association of Queensland, Submission PR 371, 30 November 2007.

[104]Consumer Action Law Centre, Submission PR 510, 21 December 2007.

[105] Legal Aid Queensland, Submission PR 489, 19 December 2007.

[106]Consumer Action Law Centre, Submission PR 510, 21 December 2007.

[107]Cyberspace Law and Policy Centre UNSW, Submission PR 487, 19 December 2007.

[108]Galexia Pty Ltd, Submission PR 465, 13 December 2007.

[109]Office of the Privacy Commissioner, Submission PR 499, 20 December 2007.

[110]Galexia Pty Ltd, Submission PR 465, 13 December 2007.

[111]Consumer Action Law Centre, Submission PR 510, 21 December 2007.

[112] Office of the Privacy Commissioner, Submission PR 499, 20 December 2007.

[113]Galexia referred to the latter practice as a ‘technical loophole’: Galexia Pty Ltd, Submission PR 465, 13 December 2007.

[114]Veda Advantage, Submission PR 498, 20 December 2007, Attachment 7.2.2, Baker & McKenzie, International Pre-screening Regulation: An Analysis of the Regulation of ‘Pre-screening’ by Credit Reporting Agencies in Major Overseas Jurisdictions (2007), 7.

[115]Fair Credit Reporting Act 1970 15 USC § 1681 (US), § 1681b(c)(1)(B).

[116]Consumer Reporting Act 1990 (Ontario) s 11(1).

[117] Ibid s 10(3).

[118] See, eg, D Tennant, ‘Safe and Fair Credit Card Marketing: Why the Credit Industry is So Keen Not to Speak to its Customers’ (Paper presented at Consumer Affairs Victoria Credit Law Conference, Melbourne, 8 November 2004); Ministerial Council on Consumer Affairs, Joint Communiqué: Ministerial Council on Consumer Affairs Meeting, 18 May 2007.

[119]Fair Trading Act 1992 (ACT) s 28A.

[120]Ibid s 28A(3).

[121]Ibid s 28A(3)–(4).

[122]Ministerial Council on Consumer Affairs, Ministerial Council on Consumer Affairs: Strategic Agenda (2007) <www.consumer.gov.au/html/mcca_projects.htm> at 5 May 2008.

[123] The Ministerial Council on Consumer Affairs consists of all Commonwealth, state, territory and New Zealand ministers responsible for fair trading, consumer protection laws and credit laws.

[124]Ministerial Council on Consumer Affairs, Joint Communiqué: Ministerial Council on Consumer Affairs Meeting, 18 May 2007.

[125] See Ch 55.

[126]Consumer Action Law Centre, Submission PR 510, 21 December 2007.

[127]ANZ, Submission PR 467, 13 December 2007.

[128] See Rec 54–3.

[129] The National Personal Insolvency Index is established and maintained in accordance with the Bankruptcy Regulations 1996 (Cth) pt 13.