Can Australia have its data 'cake' and eat it too?

The Productivity Commission's recently published report, Data Availability and Use (Draft Report), calls for freer access to data by consumers and agencies and flags large-scale reforms to improve the availability and use of public and private sector data in Australia. If the Commission's recommendations are implemented, they will have significant ramifications for individuals, as well as the public and private sectors.

Background to the Draft Report

The Draft Report was prepared against the background of the Commonwealth's drive to improve the availability and use of datasets, major digitisation and the associated explosive growth in the amount of data being created worldwide. The Commonwealth Government sees this data as a potentially untapped and lucrative resource needed for the efficient functioning of the economy and to drive innovation.[1]

Findings and recommendations

The Productivity Commission finds that Australia's largely risk averse approach to data access and availability has hindered our capacity to reap the rewards of effective use of data. While the Productivity Commission acknowledges the challenges associated with freer availability and access to data, its Draft Report states:

"….Australia can have its cake and eat it too — we can maximise the benefits of data and minimise potential harm to Australians through robust risk assessment and management processes and a high level of transparency over how data is used".[2]

The Productivity Commission concludes that Australia's laws and policies will need significant reform in order to drive efficiencies in the use of data, align with comparable countries with similar governance structures and to give consumers greater control over the data that is collected about them. To this end, Australia will need to move from "a system based on risk aversion and avoidance, to one based on transparency and confidence in data processes".[3]

Some of the Productivity Commission's key recommendations and findings include:

  • access to and sharing of data should be made more readily available;
  • individuals be given greater control and rights with respect to their data, such as improved rights to "opt-out" of collection in certain circumstances and a greater ability to direct the transfer and use of their data by different data holders; and
  • certain datasets (across both the public and private sector) deemed to be in the national interest are made more broadly accessible to the public and other entities. These datasets would either be released publicly where they do not involve confidential and personal information, or shared with a more limited set of government agencies and other "trusted users" where confidential and personal information is involved.

To implement these recommendations, the Productivity Commission proposes:

  • review and amendment of Australia's existing legislative framework governing privacy and access to information, including the Privacy Act 1988 (Cth);
  • enactment of a new Data Sharing and Release Act, which would establish a framework for the control, sharing and handling of certain datasets in Australia (including datasets held by private entities); and
  • establishment of a new National Data Custodian and a set of Accredited Release Authorities to enable streamlined access to certain datasets. The Productivity Commission proposes that some of its recommendations take place as early as October 2017.

Implications of the findings and recommendations

The Draft Report captures the benefits of a more open approach to data usage and availability, including greater access to data by consumers and the public and private sectors. However, these benefits are not without significant hurdles.

  • Establishing and navigating a new legislative regime: The proposed new legislative framework cannot happen overnight. New legislation will require a comprehensive review of gaps in the existing regime (including current privacy and freedom of information legislation), and a balancing of consumer, business and government concerns and interests.
  • Effecting institutional change: Large-scale reform in this area will require the review and overhaul of existing institutional practices and policies which have built up over time to ensure consistency with the new legislative framework.
  • Managing and mitigating risks: In making data more freely available, there will be additional risks and issues around privacy, security, data ownership and intellectual property (IP) that will need to be carefully and appropriately managed and mitigated. The more open that data becomes, the greater the security risks (and chances of misuse) and the greater the risk of the potential re-identification of individuals from de-identified datasets.
  • Reconsidering contracts: The free flow of data as flagged in the Draft Report will require contracts to be appropriately drafted, including with respect to provisions around IP and data ownership.
  • Addressing private sector concerns: The Draft Report is proposing private sector entities facilitate greater access to consumer data. This may involve sharing of data that entities hold with their competitors. As data is increasingly seen as a key asset and commodity for the private sector, businesses are likely to be resistant to opening up the data they hold.
  • Addressing consumer concerns: Consumers may benefit from improved access to public and private sector datasets and more control over their data. However, to leverage these benefits will require consumers to get comfortable with greater sharing of their information. The recent Australian census illustrates the challenges of facilitating and collecting large datasets and the concerns that many individuals harbour over the manner in which their information is used by agencies. Safeguards will need to be built into entities' institutional practices and policies and any new legislative framework to create consumer confidence in the way that their data is stored and shared and the technologies used to facilitate this.

Want to have your say on the Draft Report?

The Productivity Commission is currently accepting submissions on the Draft Report and is holding a public hearing in Sydney on 28 November 2016. The closing date for submissions is 12 December 2016.

The Productivity Commission's final report is expected to be finalised by March 2017. We will be closely monitoring the progress of the Productivity Commission's findings and recommendations, and will continue to keep clients informed of the latest changes.

Want more information about the Draft Report?

You can access the full Draft Report here. If you would like to discuss any aspect of the Draft Report and the potential implications for your business or sector, please contact us.

We are grateful for the assistance of Adam Murphy, solicitor, in preparing this Insight.

[1] Productivity Commission 2016, Data Availability and Use, Draft Report, Canberra, pages v to vii.
[2] Ibid, page 293.
[3] Ibid, page 2.

Peter Mulligan

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Peter is a specialist in all areas of commercial and technology law, with a particular focus on projects involving complex contractual structures and arrangements. He is recognised by his clients and peers as an expert in tendering and procurement.

Peter's clients call upon him to advise on projects involving the acquisition, licensing or supply of large-scale hardware, information technology, telecommunications systems and other goods and services. His expertise includes outsourcing, managed services and bespoke contractual arrangements.

In the government sector, Peter is an expert in State and Federal procurement, advising government departments and agencies on procurement reform, tendering, legislative compliance, delegations of authority and agency restructures.

One of Peter's career highlights has been acting for Global Television (now NEP Australia), on its agreement to design, install and operate the international broadcast centre for the 2014 Commonwealth Games in Glasgow, Scotland. This included advising on the tender by the Organising Committee, structuring of arrangements for the supply of host broadcast services for the Games, and negotiations in London of a complex suite of contracts to document the deal including with UK joint venture partner Sunset + Vine.

Peter regularly presents to clients and industry on complex contractual issues, including indemnities, the Civil Liability Act 2002 (NSW), limitations and exclusions of liability, the law of penalties, product liability and the Australian Consumer Law.

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Monique Azzopardi

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Monique is a specialist in commercial and government law, with a particular focus on procurement, technology projects and transactions, intellectual property and privacy.

Monique has broad commercial experience acting for government and private sector clients, particularly those in the technology, health, education and transport industries.

Monique provides specialist advice relating to technology projects and transactions, the procurement of goods, services and major works, intellectual property, data protection and the Australian Consumer Law. She is regularly called upon to negotiate and draft complex commercial agreements.

With strong public sector knowledge and experience, Monique advises government clients on statutory interpretation and compliance, administrative law, probity issues, government decision making and all aspects of tendering and procurement.

Monique has gained significant in-house experience by undertaking secondments for different entities, including as Relieving Principal Legal Officer at the Department of Education and more recently as Acting Legal Counsel Commercial, Projects and Safety at Transport for NSW.

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