PC makes far-reaching recommendations on data availability

The Productivity Commission (PC) has released its long awaited final report on data availability and use which contains far-reaching recommendations on the future use of data.

The report calls for a major change in governance structures around data — ‘changes that deal head-on with the fact that data is increasingly digital, revealing of the activities and preferences of individual people or businesses, and distributed widely in the private sector’.

It notes: ‘The nature of data sources and data analytical techniques are evolving rapidly and moving away from any effective control by individuals, and will continue to do so — doing nothing is no longer an option’.

It recommends two facets to Australia’s data framework for the future:

  1. A new right that enables both opportunities for active data use by consumers and fundamental reform in Australia’s competition policy
  2. A structure for data sharing and release that would allow access arrangements to be dialled up or down according to the different risks associated with different types of data, uses and use environments.

The report notes: ‘Effective use of data is increasingly integral to the efficient functioning of the economy. Improved availability of reliable data, combined with the tools to use it, is creating new economic opportunities. Increasing availability of data can facilitate development of new products and services, enhance consumer and business outcomes, better inform decision making and policy development, and facilitate greater efficiency and innovation in the economy.

‘As in Australia, international governments are encouraging greater use of data through open data policies. This will increase the transparency and accountability of government processes.’

One of its key recommendations is a new comprehensive right for consumers to provide them with greater control over their data.

The report notes: ‘A new comprehensive right for consumers would give individuals and small/medium businesses opportunities for active use of their own data and represent fundamental reform to Australia’s competition policy in a digital world.’

The comprehensive right would enable consumers to:

  • share in perpetuity joint access to and use of their consumer data with the data holder
  • receive a copy of their consumer data
  • request edits or corrections to it for reasons of accuracy
  • be informed of the trade or other disclosure of consumer data to third parties
  • direct data holders to transfer data in machine-readable form, either to the individual or to a nominated third party.

The PC notes: ‘Although we would have preferred to find solutions that are non-regulatory, it is a clear conclusion of the inquiry that legislative change is needed to implement the PC's recommended reforms. This change primarily involves the creation of new Commonwealth legislation — a new Data Sharing and Release Act — that would apply to all digital data.

The PC also recommends the creation of a National Data Custodian to guide and monitor new access and use arrangements, including proactively managing risks and broader ethical considerations around data use.

In addition, it believes that the government, in consultation with state and territory governments, establish a process whereby public (and in some exceptional cases, private) datasets are nominated and designated as National Interest Datasets (NIDs).

However, the report notes that while allowing data to be more available will provide enormous benefits, there are risks involved.

The types of risks that Inquiry participants pointed to as being most significant — related to the potential to identify persons or businesses within datasets — were:

  • discrimination
  • loss of control over the boundaries around the ‘you’ that the world sees
  • reputational damage or embarrassment
  • identity fraud
  • other criminal misuse of the data
  • commercial harm.

‘That these risks exist is undeniable, but it is important not to fall victim to fear. Some, indeed most, apply to every form of data management, including pen and ink,’ the report states.

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