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Regulatory update: Overview of the Productivity Commission’s inquiry into harnessing data and digital technology and what this means for marketers

Following a request to the Productivity Commission by Government to identify regulatory reform opportunities to achieve productivity growth across five key government priority areas (or pillars), the Commission at the end of last year published final reports in the areas of:

Across the five pillars, the Commission makes 47 reform recommendations to support productivity growth across the economy. The third pillar is of particular interest to ADMA members and marketers, as it is focused on improving access to data and accelerating the responsible adoption of emerging technologies, including AI.

Data and digital technologies are the engines of modern economic growth. From AI-driven personalisation to data-enabled competition, Australia’s ability to lift productivity increasingly depends on how effectively it uses digital tools while managing risk and maintaining trust.

The Commission’s report on the third pillar sets out how it considers Australia can unlock these benefits and puts forward some key proposals for reforms to support this.

The Commission received 774 submissions from organisations, individual members of the public, and Aboriginal and Torres Strait Islander individuals and organisations. The consultations included 193 meetings with 138 organisations and three roundtables.

Five recommendations were made in the report across AI adoption, data access, privacy, and digital reporting. The key points for marketers to be aware of are set out below.

1. AI regulation, enable first, regulate carefully

The Commission is clear; data and digital technology are central to future productivity growth. Emerging technologies like artificial intelligence (AI) could materially lift Australia’s economic performance over the next decade.

The Commission supported an outcomes-based approach to AI regulation. Rather than introducing new, technology-specific rules upfront, it recommended using existing laws and regulatory frameworks to manage harm wherever possible. This aligns with the Australian Government’s National AI Plan.

In the Commission’s view, AI-specific regulation should only be introduced as a last resort, and only where existing frameworks cannot be adapted, and technology-neutral approaches are not effective. The Commission explicitly cautions against whole-of-economy AI regulations, such as the EU AI Act or blanket for mandatory guardrails, unless clearly justified.

To support this approach, the Commission recommends that governments complete and publish gap analyses of existing laws as a priority. These reviews should assess how AI is being used, whether it creates additional risks compared to current practices, and whether existing regulations can manage those risks with better guidance or enforcement.

For marketers using AI in targeting, content generation, or customer experience, the message is clear. Focus on responsible use within existing legal boundaries, rather than waiting for new AI-specific rules. Regulators are already adapting the existing regulatory framework to uses of AI, including the Privacy Act and the Australian Consumer Law, and have ample scope to enforce the law against organisations that are not compliant.

2. Copyright and AI, wait and watch

The Commission noted that training AI models is a global commercial opportunity worth billions of dollars, that existing copyright rules make it difficult for AI developers to train their models in Australia and the Government's decision to rule out the introduction of a text and data mining exception in the Copyright Act.

However, it considered that there is insufficient information available for it to recommend copyright reforms at this point in time. In particular, it cited the following three areas where further information is required:

  • The scope and feasibility of AI-related copyright exceptions overseas, which impact the relative attractiveness of Australia for AI development
  • The effect of AI training on incentives to create Australian content –which mean that the effect of any changes to the law would have uncertain effects on existing economic activity; and
  • Whether licensing markets for open web material would emerge without intervention, which means that it is unclear whether changes to copyright settings are needed to attract domestic AI training investment.

Ultimately it recommended monitoring developments over the next three years, including by tracking how licensing markets evolve, how AI affects creative incomes, and how overseas courts interpret copyright exceptions such as fair use, before considering reforms.

For marketers, if adopted, this approach would reduce near-term uncertainty with existing copyright settings remaining in place while the market evolves. However, it also means that for those wanting to train AI models in Australia, more restrictive legal requirements need to be met.

3. Data access as a productivity lever

In the short term, the Commission recommends simplifying the Consumer Data Right (CDR) in banking and energy by removing excessive restrictions, enabling easier data sharing with third parties, and simplifying business onboarding.

Over time, it is recommended that the CDR be made more flexible so it can support a broader range of use cases beyond its original sectors. This includes simplifying accreditation, technical standards and designation processes, and aligning CDR privacy safeguards more closely with the Privacy Act.

For marketers, a more effective CDR would mean greater potential for consent-driven data sharing, richer insights and more competitive customer experiences.

The Commission noted that the safety of data access and use is key to realising productivity growth opportunities. However, it also found that some current Privacy Act requirements constrain innovation without delivering meaningful protection, turning consent and notification into compliance exercises rather than genuine safeguards.

4. Privacy reform, from tick boxes to outcomes

In line with a recommendation of the recent Privacy Act review to a great extent, the Commission recommends addressing this by embedding ‘an overarching outcomes-based privacy duty’ in the Privacy Act, and that businesses should be required to handle personal information in a way that is fair and reasonable in the circumstances, guided by factors such as proportionality, necessity and transparency.

However, the Commission recommends that over time the existing Australian Privacy Principles should be phased out, supported by guidance, sector-specific codes and templates, and that the Office of the Australian Information Commissioner be appropriately resourced to support this transition.

For marketers, this signals further support for an overarching ‘fair and reasonable’ requirement to be introduced into the Privacy Act, which ADMA has broadly supported. If the proposal to phase out the APPs entirely were adopted, this would be a huge change and entirely different approach to privacy management. However, this is not likely to happen in the near term.

5. Digital financial reporting, modernising transparency

The Commission also identifies digital financial reporting as a practical productivity reform. Making digital reporting the default for publicly listed companies and other public interest entities would improve efficiency, enhance risk detection and boost Australia’s visibility in global capital markets.

It recommends mandating digital reporting using existing formats, removing hard copy and PDF requirements, and ensuring reports are freely available and easily downloadable.

While not directly a marketing reform, this move supports better data accessibility, transparency and analysis across the economy.


What this means for marketers

The Productivity Commission’s inquiry reinforces a consistent theme. Productivity growth will come from better use of data, faster adoption of digital tools, and regulation that enables innovation rather than constraining it.

For marketers, success will depend on building AI capability responsibly, leveraging data access frameworks like the CDR, earning trust through fair and transparent data practices, and staying ahead of regulatory change.

The opportunity is significant, but so is the responsibility. Those who get this balance right will be best placed to be key drivers in Australia’s next phase of productivity growth.

 

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