Note:
Version 1 - 9 November 2020
Version 2 - 21 December 2021 - clarifies the ACCC’s view on the meaning of ‘publicly offered’ and reflects rules updates up to Competition and Consumer (Consumer Data Right) Amendment Rules (No. 2) 2021
Version 3 - 27 March 2024 - includes the exemption for trial products and reflects general rules updates up to Competition and Consumer (Consumer Data Right) Amendment Rules (No. 1) 2023
Purpose
This document is designed to assist data holders in the banking sector identify whether a particular banking product is in scope for data sharing under the Consumer Data Right (CDR). It reflects recent amendments to the CDR Rules, including to allow data holders to release trial products without being subject to CDR data sharing obligations, in limited circumstances.
This article 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 relevant 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.
Trial products
Data holders are not required to comply with CDR obligations in relation to an in-scope product while it is a trial product. A product is considered an in-scope product if it is a phase 1, 2 or 3 product and is ‘publicly offered’ by the data holder. An in-scope product is a trial product if it is:
- supplied to 1000 customers or less;
- offered with the description ‘pilot’ or ‘trial’; and
- offered with a statement specifying:
- a trial period of 6 months or less; and
- the product may be terminated before the end of the trial period in which case, CDR data in relation to the product may not be available.
However, a product will be subject to data sharing obligations if it ceases to be a trial product. That is, if the product continues to be offered after the end of the trial period or is supplied to over 1000 customers. In these circumstances, a data holder is required to comply with its CDR obligations in relation to the product. This involves responding to consumer or product data requests, including in relation to any CDR data generated while the product was a trial product.
Making “in scope” products accessible to eligible consumers
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.
Applying for an exemption
Data holders may also apply for an exemption in relation to data sharing or other CDR obligations. For more information about how to apply for an exemption please see the ACCC’s Guidance for Applicants Seeking Exemption under Section 56GD.
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.
|
|
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.
|
|
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. |
|
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. |
|
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. |
|
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. |
|
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. |
|
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 – Trial product | Transaction account that allows customer to make and receive payments in a range of different foreign currencies |
|
Trial product: this type of account is a phase 3 product which satisfies the factors in clause 1.5 of Schedule 3. |
Foreign currency transaction account | Transaction account that allows customer to make and receive payments in a range of different foreign currencies. |
|
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 |
|
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. |
|
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).
|
|
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. |
|
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. |
|
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. |
|
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 |
|
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 |
|
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.
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