Gregory Ross, Partner at Eakin McCaffery Cox debates whether private schools can obtain credit checks on payment of school fees by examining the Privacy Act 1988 as to whether a school could constitute a “credit provider”.
Issue & Summary
Private schools have, from time to time, asked whether they can obtain credit checks on in respect of payment of school fees. Some think not.
I recently had to consider the issue, and now summarise our view. There is “no one size fits all” answer.
The position of each school would need to be considered individually and each School would have to obtain its own legal and accounting advice.
Background and Basics
Many private schools will have a turnover[1] sufficient to attract the operation of the Commonwealth Privacy Act and therefore the Australian Privacy Principles.
Some Schools understand that they can not conduct “credit checks” nor report default as schools are not “credit providers” for the purposes of the Privacy Act 1988 (“Privacy Act”).
Law
Privacy Act, section 6G presently deals with “credit providers”. In our view:-
- “Credit”, for the purposes of the above section, is relevantly defined under the Privacy Act in a way to include the deferral of the debt, which could sometimes apply to school fees;
- depending on details of the particular payment plan, .it is a question of fact, whether the extent and detail (including instalments and or interest arrangements) of the deferral and fee payment arrangements of particular schools amount to conduct falling within the definition of “providing credit”;
- a school could constitute a “credit provider”.
Whether any particular school is within the definitions depends upon detailed examination of of a particular schools’ fee payment operations.
Examples
Some private schools already consider themselves to be “credit providers”, for the purposes of the Privacy Act.
Some of them have published credit reporting policies where they say they are a ‘credit provider’ with in the definition of the Privacy Act, as they offer deferrals of payments such as school fees and tutoring fees. The policies set out material such as:-
- scope of the credit reporting obligation;
- types of information the schools are allowed to collect;
- use of information;
- when information can be disclosed.
Conclusion
Depending on the circumstances of each individual school[2], fee payment arrangements for some schools can be classed as ‘credit providers‘ under the Privacy Act and, so, may be involved in credit checks and credit reporting.
Schools wishing to consider the issue further can ask me to comment on their particular circumstances.
Nothing in this brief note is intended to be and is not to be taken to be legal or accounting advice to any particular school or individual.
Practical Options For Consideration
In context of concerns historically raised which hinder “credit checks” (and noting that this note does not tell schools whether their operations attract “credit provider” and hence “credit reporting” provisions), there are options available for dealing with credit worthiness of school fee payers, particularly for schools not involved in or able, willing or prepared to be involved in providing “credit” or “credit reporting”.
If we can be of any assistance to you in connection with the above, please feel free to contact the writer or your usual Eakin McCaffrey Cox contact.
The above was prepared for and is intended to provide a broad general overview about the topics covered. It is not intended, and must not to be relied upon, as definitive legal advice. Whilst Eakin McCaffery Cox have made every effort to ensure the information in this work is up to date and accurate, they do not accept any responsibility or liability for any errors or inaccuracies. 2.10.20
[1] Over $3,000,000.00 per annum. To the extent private schools having a smaller turnover provide “health” services in respect of students, those laws will be similarly attracted- Section 6D, Privacy Act.
[2] Such as turnover and the period of which payments are able to be deferred and interest being charged.
Gregory Ross is a partner at Eakin McCaffery Cox, Lawyers. During his time with the firm he had a part-time appointment with the Independent Commission Against Corruption. Connect with Gregory via email ross@eakin.com.au or LinkedIn
