Responding to the financial abuse of older people - Loddon ...

69. Mandatory reporting may give reporters an impression that only those matters
that are specifically required to be reported are relevant and they may therefore
fail to exercise judgement as to whether any other factors should be considered.
70. The Banking and Financial Services Ombudsman issued its Bulletin 56,
Financial abuse of the vulnerable older person, in December 2007 and addressed
issues of privacy and confidentiality on pp. 21 and 22. Most of the privacy issues
discussed in Bulletin 56 have already been discussed above, except that the
Bulletin suggests obtaining early consent to notify ‘named, trusted third parties’
of suspicious account activities where the third party cannot operate the account.
An example of such a third party may be a trusted relative who may have access
to view account information but is not permitted to operate the elder’s account.
71. K. Wills, ‘Privacy of debtors’ information’ in Australian Consumer Credit Law,
LexisNexis, [17.075].
72. See the exceptions regarding NPP 2 (use and disclosure) discussed in section 6.5
of this report.
73. See F. Gurry, ‘Breach of confidence’ in P. D. Finn (ed.), Essays in Equity, Law Book Co,
Sydney, 1985, p. 116; Telstra Corp Ltd v First Netcom Pty Ltd (1997) 148 ALR 202;
Cornelius v De Taranto [2002] EMLR 6.
74. Smith Kline and French Laboratories (Aust) Ltd v Secretary, Department of
Community Services and Health (1991) 20 IPR 643. This is a case where the
Department used the information provided in one pharmaceutical company’s
application to assess another pharmaceutical company’s drugs and the first
pharmaceutical company argued that the Department was only authorised to use
the information to assess its own products but not the second company’s products.
75. Our view is based on the assumption that any report of suspected abuse will
necessarily entail the bank’s disclosure of information of a confidential nature;
in particular, information relating to the operation of a customer’s account
(see section 6.2(d) above). For example, if a bank teller observes that a third party
is exerting undue pressure on a customer to withdraw money and makes a report
of suspected abuse, that report will include information in respect of the operation
of the customer’s account and is therefore information of a confidential nature.
76. See NRMA Ltd v Geeson (2001) 39 ACSR 401; and NP Generations Pty Ltd v Feneley
(2001) 80 SASR 151.
77. For example, Commonwealth v John Fairfax & Sons Ltd (1980) 147 CLR 39 at 51–52;
Attorney General (UK) v Heinemann Publishers Australia Pty Ltd (1987) 75 ALR 353
at 454. Compare: NRMA Ltd v Geeson (2001) 39 ACSR 401.
78. This is an overlap of a bank’s obligations under the Privacy Act, further discussed
in section 6 of this report.
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