Government Confirms New Framework for Data Availability and Use – We have discussed the Federal Government’s response to the Productivity Commission’s proposed new Consumer Data Right before (see https://www.compliancequarter.com.au/new-consumer-data-right-2018-know-far/).

Now that the Government has released its formal response to the Productivity Commission’s (the Commission’s) inquiry report Data Availability and Use[1], it’s worth looking in more detail at the Data Right and other proposed data reforms. There are three planks to the Government’s reforms:

  • A Consumer Data Right;
  • A National Data Commissioner;
  • Legislative and governance arrangements for data sharing and release.

 

New Framework for Data Availability
Photo by Hunter Harritt on Unsplash
By Dr Drew Donnelly, Compliance Quarter.

We discuss each of these changes in turn and contrast the Government’s changes with some of the recommendations from the Commission.

  1. The Consumer Data Right

The Consumer Data Right will allow consumers to access specific data, including transaction, usage, and product data, in a digital format.[2] Consumers will have the power to direct a business to transfer data to a data recipient.

Initially the right will be applied in the energy, telecommunications and banking industries, but will applied across the board over time.

It will be introduced through legislation amending the Competition and Consumer Act 2010. This is slightly different than the Commission’s recommendation that the new right be incorporated into a new Data Sharing and Release Act.

The regulators will be the Office of the Australian Information Commissioner (OIAC) and the Australian Competition and Consumer Commission (ACCC), with the former having responsibility for the individual complaints and the latter having responsibility for oversight of the system as a whole.

  1. National Data Commissioner

The new role, the National Data Commissioner (the NDC) will be responsible for providing a “consistent and well-defined approach to data management, including proactively managing risks, dealing with complaints and monitoring the integrity of the data sharing and release framework”.[3]

The NDC will received technical support from the Australian Bureau of Statistics and a new National Data Advisory Council to advise on ethical use and international developments.

The Government will also establish a framework to identify those datasets whose availability and use will generate community-wide benefits, so-called ‘designated datasets’.[4]

  1. Legislative and Governance arrangements

The Government has accepted, on recommendation from the Commission, a range of high-level governance changes including:

  • taking a risk-based approach to releasing available publicly-funded datasets;
  • publishing registers of available publicly-funded datasets;
  • developing best practice guidance on data availability and use;
  • working to identify and release high value datasets;
  • streamlining data sharing arrangements, and
  • monitoring the performance of Australia’s data system.[5]

In addition, a new Data Sharing and Release Act will be introduced which will balance secrecy provisions with data sharing and release for public interest purposes. As part of this new legislation, ‘Accredited Data Authorities’ will be created to determine whether datasets of public interest are to be linked, shared (and who to be shared with), or released. [6]

  1. Comment

The Government’s response leaves out a lot of detail as to how the reforms will be implemented. For example, the compliance burden of the new Consumer Data Right on businesses will depend on the scope of data that must be provided to consumers. The Productivity Commission recommended this be determined by industries themselves entering into ‘data specification’ agreements with the ACCC setting out the scope of data.[7] The Government thus far is silent on this.

The Government seems to be less enthusiastic about across-the-board data release than the Commission. For example, the Commission states that “All non-sensitive data held by agencies and Accredited Release Authorities (ARAs) should be explicitly presumed to be made public, consistent with the Australian Government’s Public Data Policy Statement.”[8] The Government, while agreeing that its approach should be risk-based, says that “the new legislation will not affect existing protections applying to particularly sensitive data, such as national security and law enforcement data”.[9] It remains to be seen how much ‘sensitive data’ will remain outside the new data release framework.

Some have expressed concern about resourcing issues in the Government’s proposals. For example, it has been suggested that the OIAC will struggle to handle the massive increase in workload associated with being responsible for complaints relating to the new Consumer Data Right.[10]

We will no doubt have more to report on the data use and availability reforms as the Government develops and consults on legislation to implement the reforms – contact us by clicking here if you’d like to know more or ask a question.

 

[1] See https://www.mhs.gov.au/media-releases/2018-05-01-government-response-productivity-commission-inquiry-data-availability-and-use.

[2] The Australian Government’s response to the Productivity Commission Data Availability and Use Inquiry, p11.

[3]Ibid., p7.

[4] Ibid., p9.

[5] Ibid., p10.

[6] Ibid., p11.

[7] Inquiry Report on Data Availability and Use, p37.

[8] Ibid., p46.

[9] The Australian Government’s response to the Productivity Commission Data Availability and Use Inquiry, p11.

[10] See https://www.theregister.co.uk/2018/05/02/australian_government_looks_to_facebook_model_for_citizens_data/.

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