Guidance for data holders — assessing whether a product is in scope for CDR

Note: Updated advice as of 21st of December 2021

Purpose

This document is designed to assist data holders identify whether a particular banking product is in scope for sharing under the Consumer Data Right (CDR).

This guidance reflects recent amendments to the CDR Rules and the increase in products now considered in scope as a result of the phased implementation of CDR. It is intended as general guidance and does not represent or attempt to provide legal advice. It is a matter for the data holder to consider its CDR obligations and whether legal advice is required in relation to each of its products.

We have also provided a series of examples (see Appendix A) indicating how the ACCC is likely to apply the factors when considering whether a particular product is in scope for the CDR.

Data holders should note that this guidance may be revised as the CDR rollout progresses and the ecosystem matures.

Relevant factors

Under the CDR Rules, a product will be in scope for the CDR if it is generally known as being a type of product listed in clause 1.4 of Schedule 3 of the CDR Rules and it is publicly offered.

Factor 1 — Is the product listed in cl 1.4 of Schedule 3 of the CDR Rules?

• If the answer is ‘no’, the product is not in scope for the CDR.[1]
• If the answer is ‘yes’, the product will be in scope if it is publicly offered.

Clause 1.4 is reproduced at Appendix B.

Factor 2 — Is the product publicly offered?

The CDR Rules do not provide a definition about when a product is “publicly offered”.  The general approach taken by the ACCC, in accordance with the objects of the CDR, is that this criteria should be interpreted broadly, in order to make the benefits of the CDR as widely available to consumers as is practicable.

Accordingly, a product will generally be considered publicly offered if it is available to customers, or a group of eligible customers. In the ACCC’s view, most banking products available to consumers will be regarded as publicly offered products.

In particular, if the product is available to customers as a ‘standard form contract’ that involves only low levels of negotiation (for example, in relation to interest rates or fees) then it is very likely to be publicly offered and within scope for the CDR.

A product can be a publicly offered product even if it is not able to be acquired by every member of the public — that is, a publicly offered product may be subject to eligibility requirements. For example, a business overdraft may be publicly offered despite not being available to individual consumers, or a farm management account may only be available to particular individuals operating a primary production business.

To determine whether a product is not publicly offered, a major (although not determinative) factor a data holder should consider is whether the product is highly negotiated between the customer and the data holder.  

The higher the level of negotiation between the data holder and the customer (in particular where a product is especially designed, or highly customised, for the customer) the more likely the product is not publicly offered and therefore out of scope for the CDR.

New products and pilot programs

When a data holder develops a new banking product for market release, it  will need to consider whether the new product satisfies  the criteria discussed above and will therefore be in scope for the CDR.

Consistent with the approach to assessing products more generally, a product being trialled as part of a pilot will be considered in scope for the CDR where:

• the product is a type of product listed in cl 1.4 of Schedule 3 of the CDR Rules; and
• the pilot of the product is publicly offered (i.e. it is available to customers, or a group of eligible customers, and involves low levels of negotiation).

A product to be piloted will usually not be considered to be publicly offered where it is limited to employees of the data holder. To be excluded from the CDR obligations, a pilot will need to be of limited scope and with a duration of no more than  6 months.  For product offerings with more than one entity involved, such as white label arrangements, employees of each entity may be included in a pilot.  However, a product to be piloted will usually be considered to be public offered if it is offered to members of the public and involves low levels of negotiation.

If the product is in scope for the CDR, we expect data holders to:

• treat the CDR as an essential feature of product development and testing (including when preparing for pilot programs), and
• factor the CDR into product launch considerations and ensure that any in-scope products they intend to offer as part of pilot programs are CDR-ready.

Applying for an exemption

Data holders may apply for an exemption where they wish to pilot new products that are in scope for the CDR without complying with applicable CDR obligations. For example, we recognise that smaller data holders may not be able to conduct effective pilots using only employees, and it is therefore more likely that their products would be offered to a group of customers as part of the pilot program.

The ACCC will make a decision on each exemption application on a case-by-case basis, having regard to the facts and circumstances relevant to the particular data holder. When considering whether to grant an exemption for a pilot program, the ACCC will consider a variety of factors including:

• the duration of the pilot and the number of participants - as a guide, pilots involving less than 1000 participants and lasting up to 6 months may be eligible for exemption from CDR obligations
• the impact that the need to comply with CDR obligations during the pilot program would have on innovation and the development of competitive products
• the impact on the broader CDR ecosystem and consumer confidence in the CDR

For more information about how to apply for an exemption please see the ACCC’s Guidance for Applicants Seeking Exemption under Section 56GD.

Making “in scope” products accessible to eligible consumers

Before 22 December 2020, eligible CDR consumers were limited under the Rules to individuals who held single or joint accounts. Amendments to the Rules made on 22 December 2020 extended consumer eligibility to non-individuals (such as companies) and more business partnerships. These changes began to take effect on 1 November 2021 for the primary brands of the major banks.

A data holder must provide a service enabling an eligible CDR consumer to make consumer data requests in relation to the in-scope products provided to them by the data holder.

The ACCC considers it appropriate for a data holder to meet CDR obligations by leveraging (at a minimum) its primary retail and primary business digital banking channels.

An eligible consumer who does not ordinarily transact through one of the data holder’s CDR enabled banking channels but wishes to utilise the CDR for any publicly offered in-scope products it obtains from the data holder, must be given the option to access one of the primary digital banking channels to use the CDR. Where access to an existing product is enabled in a primary digital banking channel, the terms of the product should remain as favourable for the CDR consumer as they were prior to that access being enabled.  

The ACCC does not consider it reasonable for a data holder not to offer consumer data sharing for in-scope products on the basis that the product is not generally accessible via a primary retail or business banking digital channel where a consumer wishes to access the CDR for that product.

Appendix A: applying the factors to product examples

The following table sets out examples of how the above factors could be applied to assess whether a particular product is in or out of scope for CDR.

Please note that the following products and their product characteristics are for illustrative purposes only, and should not be taken to indicate that a particular category of product will always be in or out of scope for the CDR. For example, in some particular circumstances, an invoice finance product or inventory finance product may not be highly negotiated, and therefore could be considered in scope for the CDR. It is important that the data holder consider each of the above factors on a case-by-case basis to arrive at its conclusion regarding its obligations as it is the data holder’s responsibility to ensure it is compliant with its CDR obligations. 

Product	Product description	Application of factors	Conclusion
Business loan	A loan product that can only be used for business purposes. The loan can be of a fixed balance or one that reduces over time. It can be a secured or unsecured loan.	Phase 3 product: business finance Low levels of negotiation involved, e.g. in relation to whether loan secured or unsecured, amount to be borrowed and structure of repayments Product advertised on bank’s website Product can be obtained by application online, over the phone or in branch	In scope: this type of business loan is a publicly offered phase 3 product that should be made available for product data and consumer data sharing by the bank
Invoice finance	A facility that advances funds against unpaid invoices prior to the business customer/s making payments.	Phase 3 product: business finance Highly negotiated Offered only to institutional banking clients via a specialised relationship manager	Out of scope: this type of invoice finance product is unlikely to be considered a ‘publicly offered’ product, and therefore is unlikely to be considered to be in scope for CDR data sharing.
Equipment loan (also known as a chattel mortgage or a goods loan)	A loan that allows a business to borrow money to purchase an asset. The lender has the asset as security until the business’ repayments are completed.	Phase 3 product: asset finance (including leases) Product advertised on bank’s website Very low level of negotiation involved	In scope: this equipment loan is a publicly offered phase 3 product that should be made available for product data and consumer data sharing by the bank.
Inventory finance 1	A facility that allows the business to pay its supplier to fulfil a purchase order prior to invoicing its customers.	Phase 3 product: asset finance (including leases) Highly negotiated Offered only to institutional banking clients via a specialised relationship manager	Out of scope: this type of inventory finance product is unlikely to be considered a ‘publicly offered’ product, and therefore is unlikely to be considered in scope for CDR data sharing.
Inventory finance 2	A facility that allows the business to pay its supplier to fulfil a purchase order prior to invoicing its customers.	Phase 3 product: asset finance (including leases) Low level of negotiation involved Offered only to institutional banking clients via a specialised relationship manager	In scope: this product is a phase 3 product. While it is only offered to large institutional banking clients, it is subject to low levels of negotiation and is therefore considered to be publicly offered.
Margin loan	Loan which enables a customer to borrow funds to invest in the share market. The margin loan is secured against the customer’s existing shares or managed funds.	Phase 3 product: a loan for an investment Low level of negotiation involved Product advertised on bank’s website Eligibility criteria is not restricted Product available via a variety of channels	In scope: this type of margin loan is a publicly offered phase 3 product that should be made available for product data and consumer data sharing by the bank
Structured investment product with a loan component	Capital guaranteed investment product that includes a loan component to businesses. Product involves a combination of a bank deposit with an option or a leveraged investment in the underlying asset.	Phase 3 product: a loan for an investment, or business finance Highly negotiated Offered primarily to institutional banking clients by negotiation	Out of scope: this type of structured investment product is unlikely to be considered a ‘publicly offered’ product, and therefore is unlikely to be considered to be in scope for CDR data sharing.
Foreign currency transaction account - pilot	Transaction account that allows customer to make and receive payments in a range of different foreign currencies	Phase 3 product: foreign currency account No substantive negotiations involved Product not advertised to the general public for duration of pilot (2 months) Product only available to limited number of bank employees for duration of pilot	Out of scope: while this type of account is a phase 3 product it is unlikely to be considered ‘publicly offered’ for the duration of the pilot given it is only being offered to a limited number of employees. It would be considered in scope once it is publicly offered (see below).
Foreign currency transaction account	Transaction account that allows customer to make and receive payments in a range of different foreign currencies.	Phase 3 product: foreign currency account No substantive negotiations involved Product advertised on bank’s website Generally available to individual and business consumers	In scope: this type of foreign currency account is a publicly offered phase 3 product that should be made available for product data and consumer data sharing by the bank
Business line of credit	Line of credit that can be drawn on by a business if and when needed for a specified term. This line of credit may be secured or unsecured	Phase 3 product: line of credit (business) Low levels of negotiation involved Product advertised on bank’s website	In scope: this type of line of credit for business purposes is a publicly offered phase 3 product that should be made available for product data and consumer data sharing by the bank
Multi-option credit facility	Credit facility which allows the customer to utilise multiple products within the overall credit facility. The credit facility has an overall limit and the credit products that are linked to the credit facility are able to be used to drawn down from that umbrella limit.	Phase 3 product: line of credit (business) Facility itself more likely to involve higher level of negotiation The line of credit products that can be used within this facility may be captured separately under CDR	Out of scope: this type of credit facility is unlikely to be considered a ‘publicly offered’ product, and therefore is unlikely to be considered to be in scope for CDR data sharing.
Trade finance	A financial instrument or product that is used by businesses to facilitate trade (importing and/or exporting goods or services).	These types of products are not currently listed in the Rules	Out of scope: we do not consider this type product to be a phase 1, 2 or 3 product for the purposes of the current Rules.
Trade payable finance	An uncommitted revolving trade finance facility available to a buyer of goods and services where the bank finances the buyer's payments to approved suppliers before the invoice due date.	These types of products are not currently listed in the Rules Highly negotiated Offered on limited basis to larger commercial banking clients via specialised relationship managers only	Out of scope: we do not consider this type of product to be a phase 1, 2 or 3 product for the purposes of the current Rules.    Additionally, this product is unlikely to be considered ‘publicly offered’.
Trade receivable finance	Short-term finance to sellers of goods and services whereby the bank purchases individual eligible trade receivables.	These types of products are not currently listed in the Rules Highly negotiated Offered on limited basis to larger commercial banking clients via specialised relationship managers only	Out of scope: we do not consider this type of product to be a phase 1, 2 or 3 product for the purposes of the current Rules.    Additionally, this product is unlikely to be considered ‘publicly offered’.
Corporate and structured finance	Covers a range of complex financial solutions and is typically provided to large banking clients in a highly tailored manner.	These types of products are not currently listed in the Rules Highly negotiated and tailored product	Out of scope: we do not consider this type of product to be a phase 1, 2 or 3 product for the purposes of the current Rules.   Additionally, this product is unlikely to be considered ‘publicly offered’.
Financial markets products	Products traded via regulated financial markets	These types of products are not currently listed in the Rules	Out of scope: we do not consider this type of product to be a phase 1, 2 or 3 product for the purposes of the current Rules.
Bank guarantees or undertakings	Commitments by the bank on behalf of a customer to pay a specified amount to a third party	A guarantee or undertaking may be associated with a loan product or business finance, but is not itself currently listed in the Rules	Out of scope: we do not consider this type of product to be a phase 1, 2 or 3 product for the purposes of the current Rules

Appendix B – Clause 1.4 of Schedule 3 to the Competition and Consumer (Consumer Data Right) Rules 2019

1.4  Meaning of phase 1 product, phase 2 product and phase 3 product

                   For this Schedule, the table has effect:

Meaning of phase 1 product, phase 2 product and phase 3 product
	The following term:	means a product that is publicly offered and is generally known as being of any of the following types:
1	phase 1 product	(a)     a savings account;       (b)     a call account;       (c)     a term deposit;       (d)     a current account;       (e)     a cheque account;       (f)     a debit card account;       (g)     a transaction account;       (h)     a personal basic account;       (i)      a GST or tax account;       (j)      a personal credit or charge card account;       (k)     a business credit or charge card  account.
2	phase 2 product	(a)  a residential home loan;       (b) a home loan for an investment property;       (c)  a mortgage offset account;       (d) a personal loan.
3	phase 3 product	(a)     business finance;       (b)     a loan for an investment;       (c)     a line of credit (personal);       (d)     a line of credit (business);       (e)     an overdraft (personal);       (f)     an overdraft (business);       (g)     asset finance (including leases);       (h)     a cash management account;       (i)      a farm management account;       (j)      a pensioner deeming account;       (k)     a retirement savings account;       (l)      a trust account;       (m)   a foreign currency account;       (n)     a consumer lease.

[1]For clarity, we do not consider trade finance or structured finance products, as highly specialised products, to fall within any of the product categories currently listed in cl 1.4 of Schedule 3 of the Rules.