02 May 2018

A new era for open data in Australia: the Government responds to the Productivity Commission

This article was written by Prudence Buckland, Lauren Murphy and Patrick Gunning.

This week the Australian Government issued its long-awaited response to the Productivity Commission’s Data Availability and Use Inquiry. The response affirms the Government’s commitment to data reform, in line with other policy measures such as Open Banking and the Data Integration Partnership for Australia. The Government proposes to invest $65 million (over the forward estimates) to implement the Productivity Commission’s key recommendations. The response does not, however, set out a timeframe for implementation.

The response is brief – committing the Government to:

  • implement a Consumer Data Right as a new competition and consumer measure to allow consumers to access their data and to direct data holders to ‘transfer’ that data to third parties; and
  • create a framework that enables the sharing and release of public sector data in Australia including institutional and governance arrangements.

There will be different Ministers responsible for these two elements: the Treasurer will lead implementation of the Consumer Data Right and the Minister Assisting the Prime Minister for Digital Transformation will be responsible for the data sharing and release initiatives.

These reforms resonate with the Turnbull Government’s innovation agenda – particularly the Government’s open data policy, which ‘recognises that Australian Government data is a strategic national resource that holds considerable value for growing the economy, improving service delivery and transforming policy outcomes’. But what does this mean for you?

A new “Consumer Data Right”

Arrangements to implement a Consumer Data Right are closely linked to initiatives outlined in the Open Banking Report commissioned by the Government in 2017. As stated in the response, the Consumer Data Right will allow consumers to access particular data, including transaction, usage, and product data, in a useful digital format. Consumers will also be able to direct a business to ‘transfer’ that data to a data recipient.

The Consumer Data Right will initially be introduced in the banking, energy and telecommunications sectors, and will be rolled out to other sectors in due course. Prior to rollout, the Government will consult with each sector (and relevant consumers) to determine the scope of data that will be subject to the regime – to ensure the regime will be workable and will achieve the intended choice and competition benefits.

The Consumer Data Right will be implemented through amendments to the Competition and Consumer Act 2010 (Cth). The Office of the Australian Information Commissioner (OAIC) and the Australian Competition and Consumer Commission (ACCC) will both oversight and regulate exercise of the Consumer Data Right – the OAIC will have primary responsibility for complaints and the ACCC will be responsible for ensuring the system operates as intended (supporting competition and good consumer outcomes).

A framework for data sharing and release

The response commits the Government to introducing a new Data Sharing and Release Act (DSR Act) to underpin arrangements for the sharing and release of data. The DSR Act will:

  • create a new statutory office – the National Data Commissioner (NDC) – to oversee and monitor the integrity of Australia’s data system. The NDC will:
    • provide independent advice to data holders in respect of their data management activities and work with government and private sector data holders to facilitate consistent approaches to data sharing and release; and
    • develop strategies for stakeholder consultation in relation to Australia’s open data regime, undertaking a complaints-handling function;
  • establish arrangements for accrediting entities as “Accredited Data Authorities” (ADAs). ADAs will work with data custodians (through formal agreements) to decide whether a particular dataset is to be made available for public release or whether release should be limited (on a risk basis) to “trusted users” within the context of published formal risk management processes; and
  • create a framework to help identify datasets whose availability and use would generate significant community-wide benefits (National Interest Datasets). The method for identifying (and sharing) National Interest Datasets will be developed through the legislative consultation process.

The response states that the DSR Act will provide a robust authorisation process, balancing the operation of secrecy provisions with data sharing and release for public interest purposes. If a dataset released under this process is derived from identifiable data, it will continue to be important to assess the extent to which that dataset contains information about individuals who are reasonably identifiable. It remains to be seen whether the DSR Act will supersede the Government’s guidelines for release of unit level data as open data.

And this is only the beginning…

The proposed reforms will affect business and government. A thorough understanding of the implications of the new regime will be essential for organisations to prepare for the new open data landscape heralded by the Government’s response.

If you have any questions about what your organisation should be doing to get ready for this new regime, please contact us.

Key contacts

Data Central

Have you checked out our new Data Hub? Data Central contains a range of resources to help our clients minimise the legal, regulatory and commercial risks this data-driven environment presents and ensure that its full value is being realised.


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