Guidance for data holders — CDR products and eligible consumers (updated 20 January 2021)

Purpose

This document is designed to assist data holders in identifying whether a particular banking product is in scope for sharing under the Consumer Data Right (CDR). Using Phase 3 products as a reference point, we set out a number of factors we consider would be relevant.

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

We intend to keep this guidance document under review and will update it to reflect amendments to the Rules, the addition of new sectors to the CDR, and in any other circumstance we consider to be appropriate.

Eligibility

This guidance is primarily aimed at assisting data holders in determining whether a product is in scope for the CDR. At a practical level, however, we recognise that data holders are likely to consider this issue in conjunction with the eligibility of consumers to make CDR requests in determining how they can meet their obligations under the Rules.   

Before 22 December 2020, eligible consumers were limited under the Rules to individuals who hold single or joint accounts. In an Explanatory Statement published in June 2020,[1] we stated that for data holders that operate separate retail and more specialised business digital banking channels (through internet banking and/or mobile apps), the ACCC considered that it would be appropriate for a data holder to meet its obligations under the Rules by leveraging its primary retail digital channel.

Amendments to the Rules made on 22 December 2020 extended consumer eligibility to non-individuals (such as companies) and more business partnerships. In light of these changes, which will begin to take effect on 1 November 2021 for the primary brands of the major banks, the ACCC has reviewed its guidance on how data holders can meet their obligations. 

The ACCC considers it would be appropriate for a data holder to meet its obligations to its eligible consumers under the Rules by leveraging both its primary retail and primary business digital banking channels.

Further, a business consumer who does not ordinarily transact through one of the data holder’s primary digital banking channels, but wishes to utilise the CDR for any publicly offered products it obtains from the data holder, should be given the option to access one of the primary digital banking channels to use the CDR.  The consumer should be able to make consumer data requests in relation to the in-scope products provided to them by the data holder, if those products are also accessible or can reasonably be made accessible to consumers who use the relevant digital banking channel. [2]

Relevant factors

1. Is the product listed in cl 1.4 of Schedule 3 of the Rules?

• If the answer is ‘no’, the product is not in scope for the CDR. [3]
• If the answer is ‘yes’, the following factor must be considered.

2. Is the product publicly offered?

In determining whether a product is publicly offered, the primary 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.

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

The data holder may also consider the following supporting factors in helping to determine whether a product is ‘publicly offered’:

• Is the product offered to larger commercial and wholesale banking consumers only?
• Is the product only available via relationship managers?

These two supporting factors will not be determinative of whether a product is in scope and should be considered in conjunction with the primary factor, being the level of negotiation involved in obtaining a product. The primary factor should be given the most weight when conducting the assessment of whether a product is publicly offered or not.

If there are high levels of negotiation involved, and the answer to one or both of these supporting factor questions is ‘yes’, then it is more likely that the product is not ‘publicly offered’ and is not within scope for the CDR.

While it is a matter for the data holder to determine its CDR obligations in relation to each of its products, if a data holder is able to demonstrate that it has reasonably considered each of the above factors in deciding that a particular product is out-of-scope for the CDR, the ACCC would take this into account in considering whether a particular product was in scope from an enforcement and compliance perspective. 

Appendix: 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. 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. 

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 Eligibility criteria is not restricted to large corporate or wholesale customers Product can be obtained by means other than via a relationship manager (e.g. application process can be commenced 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 and wholesale banking clients Available only via a 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 Eligibility criteria is not restricted to large corporate or wholesale customers Product can be obtained by means other than via a relationship manager 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	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 and wholesale banking clients Available only via a 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 to be in scope for CDR data sharing.
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 to large corporate or wholesale customers Product can be obtained by means other than via a relationship manager	✔ 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 and wholesale banking clients	❌ 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	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 both individual and business consumers (i.e. not restricted to large corporate or wholesale customers) Product can be obtained by means other than via a relationship manager	✔ 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 Eligibility criteria is not restricted to corporate or wholesale banking clients Product can be obtained by means other than via a relationship manager	✔ 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 and wholesale banking clients only Available via 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 and wholesale banking clients only Available via 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 wholesale 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

[1] Explanatory Statement, Competition and Consumer (Consumer Data Right) Amendment Rules (No. 1) 2020.

[2] Consistent with the Rules, we do not consider the fact that a product or account is closed or only available offline would make it inaccessible for these purposes.

[3] 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.