Consumer Rights

Overview

• The centrepiece of consumer law in Australia is the Competition and Consumer Act 2010 (Cth) which provides for competition and fair trading among businesses and establishes a statutory regime of consumer protection. The Australian Consumer Law (a schedule to the Act) contains a series of general and specific consumer protections, a product safety regime and regulatory enforcement mechanisms.

Background

• On 26 November 2017, the Australian Government announced the introduction of a consumer data right (CDR) in Australia, which will give consumers greater access to and control over their data. The purpose of the CDR regime is to improve consumers' ability to compare and switch between products and services, thereby encouraging competition and innovation. The CDR will first apply to the banking sector (from 1 July 2020), followed by the energy and telecommunications sectors.
• The CDR is regulated by Treasury, the Australian Competition and Consumer Commission, the Office of the Australian Information Commissioner and Data Standards Body.

Legal Framework

Australian Consumer Law

• The Australian Consumer Law is contained in Schedule 2 of the Competition and Consumer Act 2010 (Cth).
• Chapter 2 of the ACL contains general consumer protection provisions prohibiting misleading or deceptive conduct, unconscionable conduct and unfair terms in standard form consumer contracts.
• Part 3-1 of the ACL contains specific protections against ‘unfair’ practices, including particular instances of misleading or deceptive conduct, pyramid selling, unsolicited supplies of goods and services, component pricing and the provision of bills and receipts.
• Part 3-2 of the ACL regulates consumer transactions by creating a system of statutory consumer guarantees for goods valued below $40,000, and a national legal framework for unsolicited selling.
• Parts 3-3 and 3-5 of the ACL create a national law for consumer product safety and recall.
• Chapter 4 establishes a criminal offences regime for particular contraventions of Chapter 3 of the ACL.
• Chapter 5 provides for enforcement powers, civil penalties and consumer redress provisions.

Consumer Data Right

• Part IVD of the Competition and Consumer Act 2010 (Cth) establishes a consumer data right regime that enables consumers in certain sectors of the Australian economy to require their data to be disclosed safely, efficient and conveniently to them or accredited persons for use subject to privacy safeguards.
• The Competition and Consumer (Consumer Data Right) Rules 2020 (Cth) set out the specific means by which an eligible consumer can access and share their CDR data. Under the Rules, at the consumer's discretion, a data holder must share a consumer's data with either an 'accredited data recipient' to whom the consumer has provided consent, or the consumer themselves.
• The pool of accredited data recipients will grow and change but is intended to include 'fintechs' (financial technology firms) and other authorised deposit-taking institutions. Notably, fintechs use the internet, mobile devices, software technology and cloud services to perform or connect with financial services.
• Data to be shared under the CDR includes:
  • customer data (including personal details)
  • account data
  • transaction data
  • product-specific data
• The CDR is accompanied by significant privacy measures that seek to protect and strengthen the privacy of consumers' data. These measures include mandatory accreditation, transfer protocol, deletion and de-identification requirements, extending the application of the Privacy Act 1988 (Cth), enhanced oversight by the OIAC and avenues for redress for breaches.

Regulatory & Policy Framework

• Competition and Consumer (Consumer Data Right) Rules 2020 (Cth)

Relevant Organisations

• Australian Competition and Consumer Commission
  • ACCC - Consumer Data Right
• Consumer Data Right
  • Consumer Data Right - Legal obligations for data recipients
  • Consumer Data Right FAQs (May 2020)
  • ACCC/OAIC Compliance and Enforcement Policy for the Consumer Data Right (May 2020)
• Data Standards Board
• Office of the Australian Information Commissioner
  • OAIC - Consumer Data Right
• Treasury
  • Treasury - Consumer Data Right
  • Treasury - Consumer Data Right Overview (September 2019)

Inquiries & Consultations

• Senate Standing Committee on Economics, Treasury Laws Amendment (Consumer Data Right) Bill 2019 [Provisions] (March 2019)

Industry Materials

• Mark Burdon and Tom Mackie, 'Australia’s Consumer Data Right and the uncertain role of information privacy law' (2020) 10(3) International Data Privacy Law 222
• James Meese, Punit Jagasia and James Arvanitakis, 'Consumer Rights to Personal Data: Data Access in the Communications Sector', Australian Communications Consumer Action Network (2019)
• Consumer Data Right, Allens Linklaters (ongoing)

Related Topics

• Directors' Duties
• Privacy Law
• Online Content and Services
• Unsolicited Communications