Joint Submission to Treasury on the Open Banking Review Final Report

Abstract

This submission responds to the Final Report of the Review into Open Banking in Australia released by Treasury on 9 February 2018. The proposed ‘Open Banking’ regime, if implemented, will be the first incarnation of the broader ‘Open Data’ regime proposed for Australia. The Productivity Commission recommended the enactment of a ‘Consumer Data Right’ to secure the necessary ‘social licence’ for the greatly increasing collection and disclosure of personal information contemplated as part of the proposed ‘Open Data’ regime. The stated goal of the Consumer Data Right is that consumers should be empowered. This goal will not be achieved if the net effect of the Open Data regime is that a much larger amount of Australian consumers’ personal information is collected, processed and disclosed in a way that exacerbates inequalities in bargaining power, information asymmetries, discriminatory treatment and exclusion of vulnerable groups, especially if their existing exposure to risk without an effective remedy is not addressed. It is unsafe to promote a revolutionary increase in the exposure of the personal information of Australians without proportionate increases in the currently deficient legal protection of that personal information. This submission advocates increased substantive privacy protections, broader application of those protections, greater supervisory, investigative and representative powers for the relevant regulator, and penalties which are sufficient to achieve appropriate deterrence.