Guidance for industry on ‘publicly available information’ and ‘court proceedings information’

Publication date: 27 September 2023

Under the Privacy Act, credit information includes a number of different types of information. Each information type provides different insights into an individual’s overall credit worthiness and is subject to unique requirements (see s 6N of the Privacy Act).

Outlined below is guidance for industry on ‘publicly available information’ and ‘court proceedings information’, which are both types of credit information under section 6N of the Privacy Act.

What is publicly available information?

Credit information about an individual includes personal information (other than sensitive information) that is publicly available information about the individual.

‘Publicly available information’ is information about the individual that:

• relates to the individual’s activities in Australia or the external Territories and the individual’s credit worthiness; and
• is not ‘court proceedings information’ about the individual or information about the individual that is entered or recorded on the National Personal Insolvency Index.

Whether information is publicly available information

When assessing whether information meets the definition of publicly available information, it is important to consider the Privacy Act’s definition of credit worthiness. There are three components to the definition of an individual’s credit worthiness. These components are the individual’s:

• eligibility to be provided with consumer credit, or
• history in relation to consumer credit, or
• capacity to repay an amount of credit that relates to consumer credit.

Consumer credit is defined in s 6 of the Privacy Act as credit:

• for which an application has been made by an individual to a credit provider, or that has been provided to an individual by a credit provider, in the course of the provider carrying on a business or undertaking as a credit provider, and
• that is intended to be used wholly or primarily:
  • for personal, family or household purposes; or
  • to acquire, maintain, renovate or improve residential property for investment purposes; or
  • to refinance consumer credit that has been provided wholly or primarily to acquire, maintain, renovate or improve residential property for investment purposes.

It is also important to consider paragraph 11 of the CR Code, which further restricts the definition of publicly available information in the Privacy Act.

Whether information is publicly available information is an assessment that must be made on a case-by-case basis taking into account all relevant circumstances, such as the extent to which access to information is restricted in some way, for example by a fee.

Matters to consider when assessing whether information is ‘publicly available information’

Drawing together the requirements in ss 6N of the Privacy Act and paragraph 11 of the CR Code, information will likely be publicly available information if it meets the following criteria:

• access to this information is provided without condition or restriction
• it relates to the individual’s credit worthiness
• it does not fall within the definition of court proceedings information
• it is not information that is entered or recorded on the National Personal Insolvency Index
• it is collected from a state or territory authority (as defined by s 6C(3)(g) of the Privacy Act, see para 11.1 of the CR Code).

Paragraph 11.2 of the CR Code further provides that publicly available information does not include:

• originating processes from a Court or Tribunal
• any judgments or proceedings where the individual’s rights have been subrogated to an insurer, and
• any judgments unrelated to credit.

The CR Code states that this is because the types of information above do not relate to an individual’s credit worthiness. It means that a credit reporting body (CRB) is prohibited from collecting this information as publicly available information.

Note: The practical effect of ss 6N(i), 6N(k) and paragraph 11 of the CR Code taken together is that information about court judgments cannot be collected on the basis that it is publicly available information. Information about court judgments can only be collected on the basis that it is court proceedings information.

What is court proceedings information?

Credit information about an individual includes personal information (other than sensitive information) that is court proceedings information about the individual.

‘Court proceedings information’ about an individual means information about a judgment of an Australian court:

• that is made, or given, against the individual in proceedings (other than criminal proceedings), and
• that relates to any credit that has been provided to, or applied for by, the individual.

Whether information is court proceedings information

When assessing whether information is court proceedings information, it is important to assess this on a case-by-case basis, taking into account the relevant definitions in the Privacy Act.

Court proceedings information is restricted to information about a judgment that relates to credit provided to, or applied for by, an individual.

‘Credit’ is a term that is defined in the Privacy Act. In this context, ‘credit’ is broader than consumer credit, and it is important to give consideration to the meaning of credit provided at s 6M of the Privacy Act.

Credit is defined at s 6M(1) of the Privacy Act as a contract, arrangement or understanding under which:

• payment of a debt owed by one person to another is deferred, or
• one person incurs a debt to another person and defers the payment of the debt.

Further, s 6M(3) of the Privacy Act states that credit includes:

• a hire-purchase agreement, and
• a contract, arrangement or understanding of a kind referred to in that subsection that is for the hire, lease, or rental of goods, or for the supply of services other than a contract, arrangement or understanding under which:
  • full payment is made before, or at the same time, the goods or services are provided, and
  • in the case of goods, an amount greater than, or equal to, the value of the goods is paid as a deposit for the return of the goods.

Principles to consider when assessing whether a court judgment is ‘court proceedings information’

Below are some guiding principles to consider when assessing whether a court judgment is ‘court proceedings information’:

• The practical effect of ss 6N(i), 6N(k) and paragraph 11 of the CR Code taken together is that information about court judgments cannot be collected by a CRB on the basis that it is publicly available information. Information about court judgments can only be collected on the basis that it is court proceedings information. This is because:
  • CRBs cannot collect court judgments that meet the definition of ‘court proceedings information’ as ‘publicly available information’. The Privacy Act excludes ‘court proceedings information’ from the definition of ‘publicly available information’ (see s 6N(k)(ii)).
  • In summary, court proceedings information is a court judgment that must relate to ‘credit’ (see s 6N(i), the definition of court proceedings information in s 6, and the definition of ‘credit’ in s 6M). By contrast publicly available information must relate to an individual’s ‘credit worthiness’ (see s 6N(k), and the definition of credit worthiness in s 6).
  • Paragraph 11.2 of the CR Code states that publicly available information does not include ‘judgments unrelated to credit’ as they do not relate to an individual’s credit worthiness.
  • It is unlikely that a court judgment would relate to an individual’s ‘credit worthiness’, and not also be ‘credit-related’ (and therefore fall within the definition of court proceedings information). Therefore in practice, a CRB can only collect court judgments on the basis that they are court proceedings information.
• An originating summons cannot be included in an individual’s credit report as ‘court proceedings information’, because it is not a judgment, and it is also excluded from the definition of ‘publicly available information’ (see para 11.1 of the CR Code), on the basis that this information does not relate to the individual’s credit worthiness.
• Each judgment needs to be assessed on a case-by-case basis.  Whether a CRB can collect information about a court judgment, will depend on whether the underlying judgment is related to ‘credit’ provided to, or applied for by, an individual.
• ‘Credit’ involves either the deferral of a payment of a debt or incurring of a debt which is subsequently deferred, under a contract, arrangement or understanding. This needs to involve a positive, voluntary act that signifies the parties’ willingness and intention to be bound.
• Judgments that relate to claims for damages or professional negligence do not relate to credit.
• The following judgments are also unlikely to relate to credit:
  • judgments relating to driving or professional competency
  • judgments in family law proceedings, such as those relating to disputed (non)payments and/or overpaid child support
  • a person who disputes the quality or extent of building work and ends up with a judgment for an amount owing.
• For judgments relating to the payment of council debts, whether these are credit-related would depend on the particular circumstances of the case. While a failure to make a council rates payment would not ordinarily be ‘credit-related’, there may be cases that involve the provision of credit as defined in s 6M (for example, a payment plan relating to an overdue amount) and this therefore needs to be considered on a case-by-case basis.
• A CRB has an obligation under the Privacy Act and CR Code to ensure that the ‘court proceedings information’ and ‘publicly available information’ that it handles is credit information. If information is collected and used on the basis that it is ‘court proceedings information’ or ‘publicly available information’ but is found to not meet the definition of credit information, this may constitute a breach of Part IIIA of the Privacy Act and a CRB should look to delete such information to ensure compliance with the Privacy Act and the CR Code.