Greenleaf, Graham --- "Complaint against the Minister for Housing (NSW) and others" [1994] PrivLawPRpr 117; (1994) 1(8) Privacy Law & Policy Reporter 153
Complaint against the Minister for Housing (NSW) and Others
Australian Privacy Commissioner, C1375(P), 1994
Privacy Act 1988 (Cth) Pt IIIA - mortgage assistance scheme - State Government agencies - s11B meaning of ''credit provider' - s18N disclosure of a ''report' by a credit provider -settlement - compensation
Mr and Mrs. X had made statements, reported in the media, that were critical of the NSW Department of Housing's Homefund Scheme. In response, the NSW Land and Housing Corporation (the corporation) was involved in the production of two press releases in May 1992 which contained information such as the amount of mortgage assistance advanced to the complainants, their financial position in relation to other debts, the amount of arrears on their mortgage account, and the fact that eviction action was pending. The press releases were under the signatures of the then Minister for Housing (Mr Schipp) and the Acting Minister for Housing (Mr Fahey), but the Commissioner accepted that the Corporation was responsible for the disclosures, and consequently there was no disclosure by the Minister for Housing.
The Commissioner considered that the corporation was a ''credit provider' within the meaning of s11B of the Privacy Act. The Commissioner advanced the view that the State of NSW, through either the department or the corporation, administered the mortgage assistance scheme (MAS). The State of NSW is itself a body politic, and therefore is a ''person' for the purposes of the Privacy Act by virtue of s22(1)(a) Acts Interpretation Act 1901 (Cth). The Privacy Acts4(1) specifically binds the Crown in right of the States.
The Commissioner took the view that the corporation administered the MAS, and that it was a body corporate (Housing Act 1985 (NSW) s6), and as such within the meaning of ''corporation' in the Privacy Act s6 as a ''financial corporation' (State Superannuation Board v Trade Practices Commission (1982) 150CLR 282). Under s11B(1)(b)(iii), a person is a credit provider if the person is a corporation, a substantial part of whose business or undertaking is the provision of loans. Mortgage assistance is clearly a loan as defined in the Privacy Act (and therefore also falls within the s6 definition of ''credit'). The Commissioner considered that the MAS formed a substantial part of the activity of the corporation. The corporation was therefore a ''credit provider'. The corporation was therefore bound by s18N, and a disclosure of information which constituted a ''report' under s18(9) would be unlawful unless it was permitted by one of the provisions of s18N. The information disclosed appeared to fall within the meaning of ''report'.
The Commissioner was not required to formally determine these matters, and discontinued his investigation under s41(1)(a), as the Commissioner was able to negotiate a settlement between the complainants and the corporation. The settlement included the publication of an apology in local newspapers and in the Sydney Morning Herald, which stated in part:
The Privacy Commissioner has negotiated with all parties to achieve a mutually acceptable settlement of all the issues giving rise to the complaint. The settlement includes an amount of compensation for the embarrassment, hurt and damage to the [X's] feelings resulting from the disclosure of this information.
The NSW Land and Housing Corporation apologises to [Mr and Mrs X] for any pain, embarrassment, distress or hurt caused as a result of the disclosure of information concerning each of them.
[Comment: Mr and Mrs X were identified in the public apology.]
Graham Greenleaf