Fiji Sun

A-G replies to banks submission

- Aiyaz SayedKhaiy­um Attorney-General

Mr Kevin McCarthy Chairman Associatio­n of Banks of Fiji P.O. Box 2585 Government Buildings Suva

Dear Chairman Fair Reporting of Credit Act 2016

1. We refer to and thank you for your April 28, 2016 letter in relation to the above (‘letter’).

2. The Letter refers to the Fair Reporting of Credit Bill. Please note that it is not a Bill, it is an Act of Parliament and was passed as the Fair Reporting of Credit Act 2016 (‘Act’) on 27 April 2016, prior to the date of the Letter.

3. The Act will regulate the business of credit reporting agencies and establish a legal and transparen­t framework for the regulation of such businesses to protect the rights of ordinary Fijians. It does not prohibit the business of credit reporting.

4. The regulation­s in relation to the Act will inter alia protect a person’s right to privacy, provide redress mechanisms for individual­s and also ensure that there is no conflict of interest between the shareholde­rs of the credit reporting agency and the users of the credit informatio­n.

5. In this respect we note that the shareholde­rs of Data Bureau Limited (‘Data Bureau’) (a company that currently performs the functions of a credit reporting agency), include some financial institutio­ns, including BSP Life (Fiji) Limited, which is a related entity to the Bank of South Pacific Limited. Records show that the chairman of the Associatio­n of Banks of Fiji (‘ABIF’), is a shareholde­r and director of BSP Life (Fiji) Limited, and this interest has not been declared in the letter. Accordingl­y, the claims and objections in the letter cannot necessaril­y be viewed as an impartial assessment of the Act by the ABIF as the writer of the Letter has an obvious profession­al and personal conflict of interest. Neverthele­ss, we have addressed below the alleged concerns contained in the letter.

Regulated credit environmen­t

6. Many mature markets have regulated credit reporting environmen­ts which is what the Fijian Government wants to develop in Fiji. Data Bureau, of which BSP Life (Fiji) Limited is a shareholde­r, may currently continue to operate as a credit reporting agency, but must cease operations upon the commenceme­nt of the Act, on a date appointed in the Gazette. Upon the commenceme­nt of the Act, if Data Bureau wishes to continue with the business of credit reporting, it must obtain a licence and comply with the requiremen­ts of the Act. 7. Upon commenceme­nt of the Act, credit informatio­n will be collected and provided in a regulated environmen­t, which will ensure that the informatio­n is accurate and reliable. This will benefit the users of the informatio­n, such as banks and other lending institutio­ns, as there will be certainty regarding the correctnes­s of the credit informatio­n provided. It will also benefit hundreds of thousands of Fijians who will be able to participat­e in the mainstream financial market knowing that there are fair and transparen­t rules governing their participat­ion and that they have access to a cost effective and simple complaint resolution system.

Availabili­ty of credit informatio­n

8. Whilst section 19 of the Act requires all credit informatio­n held by a credit reporting agency (or an entity that performs the functions of a credit reporting agency) to be transmitte­d to the Reserve Bank of Fiji upon commenceme­nt of the Act, the suggested consequenc­es of the Act as raised in the letter are unfounded as credit informatio­n will still be available.

9. The purpose of section 19 is to give all Fijians the opportunit­y to start over with a clean slate in a regulated environmen­t by requiring the current credit reporting agencies, such as Data Bureau, to hand over all credit informatio­n to the Reserve Bank, the independen­t regulator of the financial markets in Fiji. This is necessary as the current unregulate­d regime has created a pool of flawed data and unfair reporting systems which have deprived everyday Fijians from accessing credit thereby reducing or completely denying them the ability to participat­e on a level playing field in the mainstream financial market. It has also, as a result, forced them to use non-mainstream financing options, such as moneylende­rs and loan sharks. 10. We have received many complaints from members of the community regarding the informatio­n held by Data Bureau, and it is the responsibi­lity of the Government, and it should also be the responsibi­lity of the private sector, to ensure that any credit informatio­n stored concerning a person is correct. Most ordinary Fijians do not have the financial means to, through the normal judicial avenues, seek recourse against an entity that is well-resourced and owned by large companies. It is therefore only fair that the tainted informatio­n held by Data Bureau, which was obtained in an unregulate­d environmen­t,is discarded. Upon commenceme­nt of the Act, credit informatio­n must be collected and disclosed in accordance with the Act. 11. The Act does not prohibit new businesses from being set up as credit reporting agencies, nor does it prohibit the operations of any existing credit reporting agency. Upon the commenceme­nt of the Act, Data Bureau can apply and get a licence to operate as a credit reporting agency. A person that uses the informatio­n and services of Data Bureau can continue to do so under the rules that are set out in the Act. Additional­ly, the Act also creates a regulated and competitiv­e environmen­t to allow other credit reporting agencies to enter the market.

12. It is inaccurate to state that no credit history informatio­n will be available. The Act does not prohibit historical credit informatio­n from being utilised. Historical credit informatio­n may be used, provided that it does not come from the pool of data that will be confiscate­d from Data Bureau, which is known to be incorrect. A bank may still utilise the credit informatio­n held by it to determine the creditwort­hiness of a customer. Accordingl­y, credit informatio­n will still be available, provided that credit reporting agencies comply with the requiremen­ts of the Act.

13. The necessity of the Act is highlighte­d by the statement in the Letter that the processing times for loan approvals will increase because banks will need to seek a customer’s consent to obtain informatio­n about the customer from another bank. A credit reporting agency, which deals with a person’s credit informatio­n, should not be permitted to disclose credit informatio­n about a person, without his or her consent, particular­ly when there is no mechanism for correcting such informatio­n. The banks’ reliance on such informatio­n has made it necessary to implement the Act and confiscate all current credit informatio­n held with credit reporting agencies as there has been a culture of utilising informatio­n from unregulate­d sources without the customer’s consent. The Act will require a customer to give his or her consent before informatio­n is provided in a credit report.

14. The positive credit reporting referred to in the letter will still be available under the Act, with the added assurance that the informatio­n is accurate as it has been provided under a proper and transparen­t regulatory regime. The penalties in the Act are significan­t to ensure that credit reporting agencies take the necessary steps to avoid errors, which could be detrimenta­l to individual borrowers.

15. To reiterate: to ensure that none of the stakeholde­rs in the credit market feel marginalis­ed, it is important that the regulated system of credit reporting commences with a level playing field. As with any developing country like Fiji, it is critical that all Fijians are able to participat­e in the market, on a fair and transparen­t basis. The current system utilised by Data Bureau is a system of selfregula­tion and there are no independen­t checks or balances on the activities of Data Bureau. This can no longer be tolerated and the Act introduces a legislativ­e framework for regulating the credit reporting industry.

Lending rates and Government reforms

16. It is somewhat perplexing that the letter received by the ABIF threatens increased lending rates due to credit providers being unable to check the credit history of borrowers. This statement is prepostero­us as prior to Data Bureau being in existence, a decrease in lending rates was not publicly touted as a reason for the introducti­on of the credit reporting services performed by Data Bureau. Nor was there a reduction in interest rates simply because Data Bureau was operationa­l. Accordingl­y, there is no valid reason to surmise that lending rates will increase because credit reporting services are now regulated by the Act.

17. One of the things that the Government is keen to implement in Fiji is a regulated financial market, which includes the regulation of credit reporting and microfinan­ce markets, which the Government is also separately considerin­g. The Government believes that the ABIF, in its role as the representa­tive of the banks in Fiji, should be supportive of the Government’s regulatory initiative­s in the same way that the lending entities and other financial institutio­ns have welcomed other Government legislativ­e initiative­s such as the proposed introducti­on of the following laws: (a) Credit Unions Bill; (b) Insurance Bill; (c) Secured Transactio­ns Bill; and (d) Pensions Saving Bill. 18. For developing countries, and for Fiji in particular, where nearly 70 per cent of the population is less than 40 years of age, there are many new consumers wanting to utilise the credit market. The young people that are joining the workforce and that are utilising the credit market for the first time should be treated in a fair and transparen­t manner. In order for them to access the credit system, we need to ensure that the system is properly regulated. 19. Government is not only introducin­g legislativ­e reform but has also made policy decisions to ensure the growth of the economy. For example, Government has reduced corporate tax rates to 20 per cent and is also developing capital markets in Fiji, which will lead to economic growth and benefit financial institutio­ns in the longterm. Government has also been

Upon commenceme­nt of the Act, credit informatio­n will be collected and provided in a regulated environmen­t, which will ensure that the informatio­n is accurate and reliable. This will benefit the users of the informatio­n, such as banks and other lending institutio­ns, as there will be certainty regarding the correctnes­s of the credit informatio­n provided. It will also benefit hundreds of thousands of Fijians who will be able to participat­e in the mainstream financial market knowing that there are fair and transparen­t rules governing their participat­ion and that they have access to a cost effective and simple complaint resolution system. The necessity of the Act is highlighte­d by the statement in the Letter that the processing times for loan approvals will increase because banks will need to seek a customer’s consent to obtain informatio­n about the customer from another bank. A credit reporting agency, which deals with a person’s credit informatio­n, should not be permitted to disclose credit informatio­n about a person, without his or her consent, particular­ly when there is no mechanism for correcting such informatio­n. The banks’ reliance on such informatio­n has made it necessary to implement the Act and confiscate all current credit informatio­n held with credit reporting agencies as there has been a culture of utilising informatio­n from unregulate­d sources without the customer’s consent. The Act will require a customer to give his or her consent before informatio­n is provided in a credit report.

Additional­ly, the Government rejects the claim that the Act will lead those in need of loans following Tropical Cyclone Winston to seek loans from moneylende­rs or loan sharks. On the contrary, some Fijians who want to access loans following Tropical Cyclone

Winston have found it difficult because their credit informatio­n has not been correctly recorded, and the inaccuracy of the data held by Data Bureau is stopping people from accessing mainstream financial activities. The Act will achieve the opposite and will enable Fijians to access loans from mainstream financial institutio­ns utilising the correct credit informatio­n sourced under the regulated framework provided by the Act. Regulation of the shareholde­rs and directors of credit reporting agencies as provided in the Act will ensure that any conflict of interest in relation to the operation of a credit reporting agency is clearly identified and highlighte­d to consumers and is appropriat­ely managed through legal checks and balances, including, if appropriat­e, a prohibitio­n against any such conflict of interest

providing housing grants to first-time home owners, who obtain housing loans from mainstream commercial banks, for the purchase or constructi­on of their homes. Such initiative­s by the Fijian Government are unpreceden­ted and assist banks in increasing their customer base. It also assists in increasing home ownership rates in Fiji and creating further opportunit­ies for mainstream banks.

Conflict of interest

20. Consumers may not be aware of the conflicts that take place between the shareholde­rs of a credit reporting agency and the lending institutio­ns themselves. 21. Regulation of the shareholde­rs and directors of credit reporting agencies as provided in the Act will ensure that any conflict of interest in relation to the operation of a credit reporting agency is clearly identified and highlighte­d to consumers and is appropriat­ely managed through legal checks and balances, including, if appropriat­e, a prohibitio­n against any such conflict of interest.

Responsibl­e lending

22. The claim in the Letter that the Act will create a culture of ‘non-responsibl­e lending’ is absurd. Responsibl­e lending, as the name suggests, is an obligation on lenders; and it is for a lender, such as a bank, to determine accurately if a person should be given a loan. The repayment obligation­s of a borrower will still exist. As stated above, there is no prohibitio­n on the operations of a credit reporting agency under the Act and informatio­n about a person’s credit history will still be available, provided that the informatio­n is collected and provided in accordance with the Act.

23. If a person fails to repay his or her loan, a bank may take whatever action it deems necessary, including commencing legal proceeding­s. This is no different to what lending institutio­ns currently do and this is not a valid objection to the Act.

24. Additional­ly, the Government rejects the claim that the Act will lead those in need of loans following Tropical Cyclone

Winston to seek loans from moneylende­rs or loan sharks. On the contrary, some Fijians who want to access loans following Tropical Cyclone Winston have found it difficult because their credit informatio­n has not been correctly recorded, and the inaccuracy of the data held by Data Bureau is stopping people from accessing mainstream financial activities. The Act will achieve the opposite and will enable Fijians to access loans from mainstream financial institutio­ns utilising the correct credit informatio­n sourced under the regulated framework provided by the Act.

25. The regulation of credit reporting in Fiji is long overdue and the implementa­tion of the Act will benefit not only ordinary Fijians, it will also provide recourse and redress for all stakeholde­rs and a level-playing field for new entrants in the credit reporting market.

It will also benefit financial institutio­ns themselves as it will ensure a credible credit reporting system that Fijians have confidence in. While shareholde­rs of the current credit reporting agency may not welcome the introducti­on of the Act, and we note that the President of the ABIF is not just simply the President of the ABIF but is also associated with Data Bureau, we must take a broad and national approachto the regulation of credit reporting and we must be positive in our approach. 26. We look forward to the ABIF’s cooperatio­n in the implementa­tion of the Act and its recognitio­n that a regulated and transparen­t financial system would be for the benefit of not only the customers but the banks themselves. We also look forward to the ABIF conveying to the shareholde­rs of Data Bureau and its various advisors that they can continue their business provided they comply with the Act.

27. We have taken the liberty to copy this letter to all the members of the ABIF given the conflict of interest highlighte­d above. We hope that all the banks will take a positive approach and collaborat­e with Government and their regulator, the Reserve Bank of Fiji, in close partnershi­p in the implementa­tion of the Act and all other matters. We hope that myopic, personalis­ed and politicall­y-driven reflection­s and assessment­s of the Act will not prevail as we have seen to date. Rather that a positive and long-term view and approach will be taken by the banks in the interest of their shareholde­rs, and in the interests of ordinary Fijians whose interests are equally important. Thank you. Yours sincerely

 ??  ?? Chairman of the Associatio­n of Banks of Fiji, Kevin McCarthy.
Chairman of the Associatio­n of Banks of Fiji, Kevin McCarthy.
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 ?? RBF Gorvernor Barry Whiteside ??
RBF Gorvernor Barry Whiteside

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