Australian Retail Credit Association

An ACCC determination purported to be made on 19 November 2020 did not take into account a submission received from an interested party (the Australian Privacy Foundation).  The submission, in response to the ACCC’s draft determination, was received within the specified timeframe on 30 October 2020, but due to an IT issue, was not seen by the ACCC.  As required by section 91C of the Competition and Consumer Act 2010 (the Act), the ACCC is required to take into account all submissions it receives within the specified timeframe before making a determination. 

Following an additional consultation period for ARCA and others to provide comments on the Australian Privacy Foundation’s submission, the ACCC has made a determination in relation to ARCA’s application for re-authorisation.  It has taken into account the Australian Privacy Foundation’s submission and subsequent submissions received.

The ACCC immediately implemented new processes that will avoid any recurrence of this problem.   

 The ACCC removed the purported determination (of 19 November 2020) from this page to avoid any confusion. 

Background – ARCA’s application for reauthorisation

On 26 June 2020 the Australian Retail Credit Association (ARCA) lodged an application to revoke its existing authorisation (A91482) and substitute a new authorisation, seeking the continued authorisation of certain provisions of the Principles of Reciprocity and Data Exchange (PRDE).   The PRDE establishes a standardised system for exchanging comprehensive consumer credit information between credit reporting bodies and credit providers.

Specifically, ARCA sought re-authorisation, on behalf of itself and current and future signatories to the PRDE, to make and give effect to certain provisions of the PRDE, that fall into the following categories:

• Reciprocity provisions: credit providers can only receive consumer credit information from credit reporting bodies up to the same level at which they are willing to supply information: paragraphs 4, 8, 10, 14, 34, 35, 36, 38, 39 and, by way of anti-avoidance, 11, 12 and 44;
• Consistency provisions: credit providers must supply the same consumer credit information to all credit reporting bodies with whom they have a services agreement: paragraphs 9, 15 and 16; and
• Enforceability provisions: procedures and sanctions to address non-compliance with the PRDE: paragraph 89.

The ACCC’s 2015 Authorisation (A91482) of the relevant provisions of the PRDE expires on 25 December 2020. ARCA sought re-authorisation for a period of 6 years.

Since the PRDE was authorised by the ACCC in 2015, there have been a number of legislative and regulatory developments, such as mandatory comprehensive credit reporting and hardship legislation.  The operation of the PRDE was also independently reviewed in 2019.  ARCA submitted that improvements to the PRDE and its operation were proposed under the application for re-authorisation.

A full copy of ARCA’s application for authorisation is available below. A copy of the proposed PRDE (as amended) was provided at Appendix A to ARCA’s application for re-authorisation.

On 9 October 2020, the ACCC issued a draft determination proposing to re-authorise ARCA, and current and future signatories to the PRDE, to give effect to certain reciprocity, consistency and enforceability provisions contained in the PRDE, for six years.

On 19 November 2020, the ACCC purported to issue a determination granting authorisation until 31 December 2026. This previous purported determination has been removed from the public register.

After the purported determination (of 19 November 2020) was released, the ACCC discovered that due to an IT issue, it had been unaware that a submission was received from the Australian Privacy Foundation in response to the draft determination within the specified timeframe and hence it had not been considered.  A copy of the Australian Privacy Foundation’s submission, and subsequent submissions received, are  available under the ‘Submissions - after draft decision’ heading below.

Determination and interim authorisation

On 15 December 2020, the ACCC issued a determination authorising the specific provisions of the PRDE for a further six years, until 31 December 2026.  This authorisation is in respect of the specific provisions within the revised PRDE (attached to the ACCC’s determination, available under the Decisions heading below).

If no application for review is made with the Australian Competition Tribunal, the ACCC’s determination takes effect on 6 January 2021.

The ACCC also granted interim authorisation to allow the signatories to the PRDE to continue to give effect to the specific provisions of the PRDE on the same terms as the 2015 Authorisation.  Interim authorisation will remain in place until it is revoked or the date the ACCC’s final determination comes into effect.

A revised timetable of the ACCC’ consideration of this matter is set out below.