CDR set for senate showdown

Denham Sadler
Senior Reporter

A showdown has been set in the Senate over the Consumer Data Right legislation, with Labor pledging to move a number of amendments after a government-led committee gave the controversial bill the green light, despite admitting numerous concerns about it.

The Economics Legislation Committee last week tabled its report on the Consumer Data Right (CDR) legislation, which gives consumers and businesses a right of access to specified data about them held by other businesses.

The report contained only one recommendation: that the bill should be passed by Parliament unammended.

There have been widespread concerns that government is rushing the consultation phase in order to pass the legislation before the May election, allowing for testing of the scheme to begin in July.

The verdict came despite the report outlining widespread concerns about the new powers, centred on privacy, consumer protection, sectoral coverage and the rushed process by the government.

In dissenting comments to the report, the committee’s two Labor senators said the Opposition shares a number of the concerns outlined by stakeholders, and would move amendments should the government seek to pass the bill during next week’s budget sittings, the last before the May election.

The committee held two public hearings and received 31 submissions. Many of these submissions raised concerns about the inadequacy of current privacy laws and the confusion that new Privacy Safeguards included in the legislation would create.

But these concerns were mostly rejected by the government-led committee.

“In one sense, the CDR is actually an enhanced privacy regime. The committee notes the concerns about the privacy arrangements in the bill. However, it also notes the views of the Australian Privacy Commissioner and the Interim Chair of the Data Standards Body that the bill at the very least is an expansion of current protections,” the report said.

“The committee notes there are a number of consumer issues which require vigilance. However, most of these exist in the present arrangements. The rules making facility under the bill offers the possibility of addressing problems as they arise.”

A number of submissions and witnesses also said too much is being left to ministerial discretion with the new powers.

“The bill as currently drafted has extremely broad ministerial discretion, and we consider that that is a poor legislative practice. This parliament has the capability to give much better structure and limits to those discretions. The particular concern around the ministerial discretion is that currently the default is set to ‘completely open’,” the Law Council of Australia said in its submission.

But the committee said it was “comfortable” with the level of ministerial discretion allowed for in the bill, saying it provides “flexibility”.

Another central criticism of the legislation is the perceived rushed process behind its development and a lack of adequate consultation. But the committee said there had been a “good deal of discussion of the various elements over a number of years”.

While the committee largely rejected these concerns and recommended the bill be passed as is, Labor senators pledged to move amendments to address these issues.

“Labor Senators are supportive of the broad policy intent of the consumer data right but do hold concerns about the government’s current proposed framework,” they said.

“Due to the compressed timeframes involved in this inquiry process, Labor Senators will continue to work with all stakeholders in order to improve the legislation should it be listed for Parliamentary debate in budget week.

“What is clear is that this bill has undergone a truncated development process. Labor Senators believe all those involved in working on the legislation, rules and standards have given their best efforts, but are working to deadlines set by the government.

“Labor Senators believe it is politics, not policy that are driving these compressed time frames, a government desperate to get a headline, but have failed to deliver the substance behind the headline.”

According to the Opposition, not enough time had been given to the development of the legislation and surrounding rules, with this work being conducted in parallel by the ACCC and Data61.

“While there are benefits to conducting this work in tandem, notably collaboration and adaptation between the work groups, it is far from clear that sufficient time has been given to ensure that each of the work streams complements the others and that a coherent regulatory framework will be an end product,” the Labor Senators said.

It is also “far from clear that adequate consumer testing has been carried out”, they said.

“Consumers will only exercise their rights under the CDR if they understand what the purpose of the scheme is and are satisfied with the level of consumer and privacy protections.

“Given the current evidence base already indicates significant concerns, it is important that sufficient time by given to address any current and future shortcomings,” they said.

Open data schemes could also unfairly impact vulnerable Australians, the Opposition said.

“There is significant risk that vulnerable customers could be directly or indirectly excluded from essential services. Labor Senators are yet to be convinced that the government’s proposed policy framework adequately responds to these very real risks,” the Labor Senators said.

The “meager” amount of less than $200,000 set aside for the ACCC’s educational campaigns will mean many Australians are not even aware of the new schemes, they said.

“It is likely that if people are not aware of, and do not understand the scheme, take up could be very low,” the Senators said.

The government is likely to want to pass the legislation in next week’s budget sitting session, as this is the last chance before the upcoming May election, with some elements in the legislation being meant to kick off in July.

In response to questions from, Treasurer Josh Frydenberg didn’t commit to list the legislation for debate next week.

“The government remains committed to passing the legislation and continues to negotiate with all parties, noting that the Senate Standing Committee on Economics recently reported ‘general support for the introduction of the Consumer Data Right’ and its ‘potential to protect and empower consumers and drive competition and innovation’,” Mr Frydenberg said in a statement.

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