Empowering consumer choice – ACCC to regulate the Consumer Data Right

3 minute read  17.08.2018 Tova Gordon, Paul Schoff, Geoff Carter

The Federal Government has released its Exposure Draft of the Treasury Laws Amendment (Consumer Data Right) Bill 2018.

The proposed Bill reflects the Government's commitment to implementing a 'Consumer Data Right' (CDR) in line with the recommendations of the Productivity Commission's Review into Open Banking.

The introduction of a CDR is likely to have a profound impact upon competition in the banking (and eventually other) sectors. It is intended that consumers will have the right to access their own data and direct it to be transferred to certain third parties. This is intended to improve consumers’ ability to compare product offerings and switch providers where desired. In addition to dealing with a significantly increased regulatory burden, more established businesses will need to consider the commercial implications of a regime that allows consumers to compare and change service providers more easily. Others, such as potential new entrants, ‘fintechs’ and disruptors will be considering how they can take advantage of this regulatory change. At the heart of this reform will be the ACCC, who will be given a significant new role as the arbiter of how and to whom data can be shared. Submissions on the Exposure Draft are due by 7 September 2018.

  1. Geographic Scope – Where will the CDR apply?
    The geographic scope of the CDR is broad. It applies to (1) CDR data generated or collected in Australia or (2) CDR data generated or collected outside of Australia by or on behalf of (a) a company registered under Parts 2A.2 or 5B.1 of the Corporations Act 2001 or (b) an Australian citizen or permanent resident.
  2. Penalties and Offences – What are the consequences?
    The ACCC will have the power to make a breach of part or all of the CDR rules a pecuniary penalty provision. In addition, the Exposure Draft makes it a criminal offence and a pecuniary penalty provision to engage in certain misleading or deceptive conduct in relation to the CDR.
  3. CDR Rules – What are the CDR rules?
    The Exposure Draft gives little insight into how the CDR Rules will operate in practice. It gives the ACCC broad powers to make rules for each designated sector in relation to, amongst other things, the disclosure, use and storage of CDR data, the accreditation of CDR recipients and reporting and record keeping requirements.
  4. Designated Sectors – Who will the CDR apply to?
    The Exposure Draft does not identify the sectors that will be subject to the CDR. Rather, it gives the relevant Minister the power to ‘designate’ a sector of the economy as subject to the CDR. The Government has indicated that the Exposure Draft will apply initially to the banking sector, but eventually to the telecommunications and energy industries as well.

How can we assist your business in response to the Draft Bill?

  • Advise you on how the proposed CDR is likely to affect your business
  • Draft a submission on your behalf in relation to the Exposure Draft, due on 7 September
  • Help you to prepare for the roundtables taking place on 23 and 28 August.
  • Consider the impact of proposed amendments to the Exposure Draft.