Joint Submission to Treasury on the Open Banking Review Final Report

(2018) Submission to Treasury, Final Report of the Review into Open Banking in Australia, 9 February 2018

UNSW Law Research Paper No. 18-23

21 Pages Posted: 28 Mar 2018  

Katharine Kemp

University of New South Wales (UNSW) - Faculty of Law

David Vaile

University of New South Wales (UNSW) - Faculty of Law; Cyberspace Law and Policy Centre

Date Written: March 23, 2018

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.

Keywords: open banking, open data, big data, data privacy, data security, privacy law, competition, consumer protection, financial consumer protection, digital financial services, fintech

Suggested Citation

Kemp, Katharine and Vaile, David, Joint Submission to Treasury on the Open Banking Review Final Report (March 23, 2018). (2018) Submission to Treasury, Final Report of the Review into Open Banking in Australia, 9 February 2018; UNSW Law Research Paper No. 18-23. Available at SSRN: https://ssrn.com/abstract=3150138 or http://dx.doi.org/10.2139/ssrn.3150138

Katharine Kemp (Contact Author)

University of New South Wales (UNSW) - Faculty of Law ( email )

Kensington, New South Wales 2052
Australia

David Vaile

University of New South Wales (UNSW) - Faculty of Law ( email )

Kensington, New South Wales 2052
Australia

Cyberspace Law and Policy Centre

Sydney, NSW 2052
Australia

HOME PAGE: http://www.cyberlawcentre.org

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