Accreditation should be a barrier to entry. The concern about costs should not be used as a way to undermine the effectiveness of accreditation. Individuals need to be able to trust accreditation as a standard and it should be a high standard. There needs to be a clear process to remove accreditation in the event of a data breach(es) and complaints. Recommendation 2.11 remedies – Remedies and access to justice is a key right for individuals. Access to justice for individuals must include: Access to free internal dispute resolution to respond to a dispute Access to a free external dispute resolution scheme (the Australian Financial Complaints Authority) Access to Court or the OAIC if the individual does not accept the outcome of the AFCA decision There is considerable confusion at the moment how the remedy process would work in open banking. A major concern would be that individuals would be forced to take disputes about open banking to the OAIC as the dispute is privacy related. The OAIC currently provides a dispute resolution process for privacy disputes. There are a number of serious problems with that process including: The OAIC can discontinue the investigation of the dispute under section 41 of the Privacy Act for a range of reasons. This means that the vast majority of disputes are never decided. There have only been 26 determinations since 2010 and before that there was only 1. There is considerable delay (due to a lack of resources) for the OAIC making any determinations. The OAIC is a regulator and it does not have expertise in dispute resolution (compared to EDR). There is a 12-month time limit to make a complaint to the OAIC compared to a 6-year time limit in EDR. This is a significant difference and considerably reduces access. Currently, the Financial Ombudsman Service excludes privacy disputes from its terms of reference as follows: 5.1 Exclusions from FOS’s jurisdiction The Service may not consider a Dispute: a) about whether a Financial Services Provider has met confidentiality or privacy obligations unless the Dispute about confidentiality or privacy: (i) is part of a broader Dispute between the Financial Services Provider and the Applicant; or (ii) relates to or arises out of the provision of credit, the collection of a debt, credit reporting and/or the banker-customer relationship;
Accreditation should be a barrier to entry. The concern about costs should not be used as a way to undermine the effectiveness of accreditation. Individuals need to be able to trust accreditation as a standard and it should be a high standard. There needs to be a clear process to remove accreditation in the event of a data breach(es) and complaints. Recommendation 2.11 – remedies Remedies and access to justice is a key right for individuals. Access to justice for individuals must include: Access to free internal dispute resolution to respond to a dispute Access to a free external dispute resolution scheme (the Australian Financial Complaints Authority) Access to Court or the OAIC if the individual does not accept the outcome of the AFCA decision There is considerable confusion at the moment how the remedy process would work in open banking. A major concern would be that individuals would be forced to take disputes about open banking to the OAIC as the dispute is privacy related. The OAIC currently provides a dispute resolution process for privacy disputes. There are a number of serious problems with that process including: The OAIC can discontinue the investigation of the dispute under section 41 of the Privacy Act for a range of reasons. This means that the vast majority of disputes are never decided. There have only been 26 determinations since 2010 and before that there was only 1. There is considerable delay (due to a lack of resources) for the OAIC making any determinations. The OAIC is a regulator and it does not have expertise in dispute resolution (compared to EDR). There is a 12-month time limit to make a complaint to the OAIC compared to a 6-year time limit in EDR. This is a significant difference and considerably reduces access. Currently, the Financial Ombudsman Service excludes privacy disputes from its terms of reference as follows: 5.1 Exclusions from FOS’s jurisdiction The Service may not consider a Dispute: a) about whether a Financial Services Provider has met confidentiality or privacy obligations unless the Dispute about confidentiality or privacy: (i) is part of a broader Dispute between the Financial Services Provider and the Applicant; or (ii) relates to or arises out of the provision of credit, the collection of a debt, credit reporting and/or the banker-customer relationship;
T282002-Australian-Privacy-Foundation.docx