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May 30, 2008

Privacy Commissioner publishes case notes 1 – 7 for 2008

The Privacy Commissioner has released the first case notes for 2008.

In A v Private School [2008] PrivCmrA 1 the OFPC found that a private school was entitled to refuse access to certain documents held by it relating to an investigation of a student as giving access to the investigation documents would amount to an interference
with the privacy of other individuals as the individuals in question
had provided that information on the understanding that their details
would not be revealed to the complaint for fear of reprisal.

In B v Hotel [2008] PrivCmrA 2 – The OFPC found that the disclosure of details of one hotel guest by a hotel to another hotel guest was an improper disclosure of personal information by an organisation. In the unusual circumstances of this case, the complaint was resolved by conciliation and an apology.

In C v Health Service Provider [2008] PrivCmrA 3 a health service provider disclosed details of a letter from a member’s relative to the member.The matter was resolved by an apology to the relative by the provider.

In D v Health Service Provider [2008] PrivCmrA 4 a patient of a private clinic complained about its security of personal information when advised that notes about her had been lost or destroyed. As there was no evidence the notes had her name or identifying details the matter was not taken further.

In E v Insurance Company [2008] PrivCmrA 5 an insured complained that the insured’s insurance company disclosed the complainant’s contact details to
the third party who was involved in the car accident. The third party
subsequently contacted the complainant via telephone wanting to discuss
the amount of money the third party was being required to pay as a
result of the accident. The insurer acknowledged it was an improper disclosure of personal information and apologised and paid a cheque to the complainant in settlement of the privacy complaint.

In F v Australian Government Agency [2008] PrivCmrA 6 the complainant, a former employee of a government agency,
complained that their personal record held by the agency had been
accessed by a current employee of the agency. The employee, for reasons
unrelated to their employment, used the records to locate where the
complainant was living. The complainant stated this caused them to fear for their safety,
and resulted in the complainant having to change their name and place
of residence.  The Commissioner took the view that the agency had not taken
reasonable steps in the particular circumstances to protect the
complainant’s personal information and that the complainant’s
personal information had been used for an unauthorised purpose. The complainant accepted a confidential settlement for costs associated with the complainant’s change of name and place of residence.

In G v Financial Institutions X and Y [2008] PrivCmrA 7 the complaint related to the disclosure of a person’s information under significant cash transaction reports to AUSTRAC. Although 1 of the financial institutions made an error in respect of the person’s occupation (which it corrected) the OFPC decided that both organisations were required by law to make such disclosures
and could rely on the exception in National Privacy Principle 2.1(g).

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Posted 30th May 2008 by David Jacobson in Privacy

Code of Banking Practice Review

The Independent Reviewer has published an Issues Paper(pdf) which outlines
draft recommendations on changes to the Code of Banking Practice. The recommendations include a recommendation that a general principle of responsible lending be included in the set of guiding principles for the Code.

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Posted 30th May 2008 by David Jacobson in Financial Services

Regulation of Direct Offshore Foreign Insurers – Draft Regulations

On 8 April 2008, the Assistant Treasurer announced the limited exemption arrangements that would apply under the Financial Sector Legislation Amendment (Discretionary Mutual Funds and Direct Offshore Foreign Insurers) Act 2007.
The Assistant Treasurer also announced that data would be collected
from AFSL holders in relation to business placed with discretionary
mutual funds and direct offshore foreign insurers and that consumer
protection would be enhanced.

The draft regulations set out the data collection arrangements and consumer protection measures.

Data collection from AFSL holders will now commence from 1 October 2008.

Submissions are invited on the draft regulations and explanatory
material by 2 June 2008.

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Posted 30th May 2008 by David Jacobson in Financial Services, Insurance

May 29, 2008

Mandatory Comparison Rates (MCR) Review

The Ministerial Council for Consumer Affairs (MCCA) has agreed to reform the scheme of Mandatory
Comparison Rates in the Consumer Credit Code. There was in principle
agreement to repeal the requirement to provide consumers with
“schedules” of comparison rates, while the format and calculation of
comparison rates in credit advertisements will be substantially
revised.

MCCA has publicly released the Final Impact Statement on Mandatory Comparison Rates (pdf).

The Statement concludes that:

The effect of ceasing the MCR regime would appear to have minimal negative impacts on credit providers and a slightly increased risk of confusion for consumers that is partly offset, in the mortgage industry particularly, by the existence and growing use of secondary market players: independent information providers and brokers…

It has not been possible to demonstrate that a net benefit to the community will be derived from the continuation of the MCR regime in its current form, resulting in a strong case for MCR to sunset.

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Posted 29th May 2008 by David Jacobson in Financial Services

May 28, 2008

APRA Service Charter

The
Australian Prudential Regulation Authority (APRA) has released
the APRA Service Charter (pdf) which explains how APRA
carries out its role and what those who deal with the prudential
regulator can expect.

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Posted 28th May 2008 by David Jacobson in Financial Services

First Home Saver Accounts Bills introduced

The Treasurer has introduced the 3 Bills that contains the legislation for First Home Saver Accounts:

The  main features of the accounts are as follows:

  • An individual can open an account if they are aged 18 or
    over and under 65; have not previously purchased or built a first home
    in which to live; do not have, or have not previously had, a First Home
    Saver Account; and provide their tax file number to the provider.
  • Personal contributions can be made by the account holder or a parent or
    grandparent, and can only be made from after-tax income.
  • The account is supported by Government contributions.  The Government
    will contribute an extra 17 per cent on the first $5,000 of personal
    contributions made into the account each year.  This will be indexed to
    average weekly ordinary time earnings.  This means that an individual
    contributing $5,000 will receive a Government contribution of $850.
  • There is an overall account balance cap of $75,000, which is indexed to
    average weekly ordinary time earnings.  Earnings can still accrue once
    the cap is reached.
  • In addition, earnings on account
    balances are taxed at the account provider level at the statutory rate
    of 15 per cent, rather than in the hands of the individual account
    holder at their marginal tax rate.
  • As a general rule, in
    order to access money to purchase a first home, personal contributions
    of at least $1,000 must have been made in each of at least four
    financial years.
  • Individual contributions are not taxed as
    they are made from after-tax income; Government contributions are not
    taxed and withdrawals to purchase a first home are not taxed.

From 1 October 2008, accounts can be offered by banks, building
societies and credit unions, public offer superannuation providers,
life insurance companies, and friendly societies.

The  Bill also provides a framework to prudentially regulate public offer superannuation  providers. 

Providers that are banks, building societies and credit unions; and
life insurance companies will continue to be prudentially regulated
under the Banking Act 1959 and Life Insurance Act 1995 respectively.

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Posted 28th May 2008 by David Jacobson in Financial Services

Same-Sex Discrimination and Commonwealth superannuation schemes

Attorney-General
Robert McClelland
has introduced  the
Same-Sex Relationships (Equal Treatment in Commonwealth Laws –
Superannuation) Bill 2008
to remove same-sex
discrimination from Acts governing Commonwealth superannuation schemes.

The Bill makes amendments so that same-sex couples are
no longer denied the payment of death benefits from superannuation
schemes or the tax concessions on death benefits currently made
available to opposite-sex couples.

The superannuation schemes covered by the reforms are:

  • the Commonwealth Superannuation Scheme
  • the scheme under the Superannuation Act 1922
  • the Defence Force Retirement and Death Benefits Scheme
  • the Defence Forces Retirement Benefits Scheme
  • the Judges’ Pensions Scheme
  • the Federal Magistrates Disability and Death Benefits Scheme
  • the Governor-General Pension Scheme, and
  • the Parliamentary Contributory Superannuation Scheme.

Other
Commonwealth superannuation schemes, such as the Military
Superannuation and Benefits Scheme and the Public Sector Superannuation
Scheme, will be amended by delegated legislation. 

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Posted 28th May 2008 by David Jacobson in Business Planning

Consumer Credit Code update

The MCCA has agreed to refinements to the
Consumer Credit Code. The amendments are intended to enhance the operation of the
Consumer Credit Code by:

  1. Tightening current exemptions to the Code for short term credit and pawnbrokers ;
  2. Dealing with abuses of business purpose declarations aimed at avoiding the Code;
  3. Enhancing consumer remedies under the Code by broadening existing powers of courts to review credit fees and charges and changes of interest;
  4. Providing Government Consumer Agencies with standing to conduct proceedings under the Code on behalf of consumers;
  5. Prohibiting lenders from taking ‘blackmail’ security over essential household items; and
  6. Requiring that consumers be provided with information about their rights and responsibilities regarding direct debit payment arrangements

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Posted 28th May 2008 by David Jacobson in Financial Services

May 26, 2008

Reserve Bank Review of settlement practices for Australian equities

The Reserve Bank has undertaken an extensive review of settlement
practices in the Australian equity market
(pdf). This review sets out some
possible modifications to current arrangements in order to avoid the significant delays in the settlement of Australian equities which occurred on 29 and 30 January 2008.

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Posted 26th May 2008 by David Jacobson in Financial Services

Extension of time for licensing of foreign insurers

The
Australian Prudential Regulation Authority (APRA) has announced that
the deadline for foreign insurers wishing to apply for a licence to
write business in Australia after 1 July has been extended.

The
application deadline will now be 30 June instead of 31 May. Those
foreign insurers who submit their application and pay the application
fee by 30 June will be allowed to continue to operate in the Australian
market for up to six months while their application is processed.

Following the passage of the Financial Sector Legislation Amendment (Discretionary Mutual Funds and Direct Offshore Foreign Insurers) Act 2007 on 13 September 2007, foreign insurers wishing to continue operating in the Australian market must be authorised by APRA.

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Posted 26th May 2008 by David Jacobson in Insurance