An FMA Opinion: What the Productivity Commission’s digital regulation roadmap means for brands, media, and marketers — and how it compares with OAIC’s rights-based reforms.
This week, the Productivity Commission released its Interim Report on Data and Digital Technology, marking a significant moment in Australia’s evolving privacy and digital regulation landscape.
Rather than rejecting the OAIC/AGD-led reforms, the Commission proposes an alternative path — one that prioritises utility and innovation while still addressing real privacy risks. The big idea: target regulation where the risk is high, not everywhere equally.
The result? A growing divergence in Australia’s regulatory future — with two frameworks emerging: one focused on protection and rights, the other on productivity and innovation.
🔑 1. What Did the Productivity Commission Propose?
One of the most significant proposals in the report is the adoption of a “dual-track” privacy compliance model — a system where businesses would either:
- Follow a high-trust, outcomes-based pathway for low-risk data uses (like analytics and campaign measurement),
- Or continue with traditional controls-based compliance for high-risk use cases (like profiling, targeting minors, or biometric use).
The goal is to remove unnecessary barriers to digital innovation while retaining strong protections where they matter most.
Other notable recommendations include:
- ❌ Rejecting a right to erasure — citing high compliance burden and low benefit
- ⏸ Delaying AI-specific guardrails — recommending gap analysis before any new legislation
- 🔹 Supporting text and data mining under fair use for AI training (TDM exceptions)
- 📊 Mandating digital financial reporting in machine-readable formats
- 📁 Promoting industry-led data access frameworks for high-impact sectors
🗺️ 2. Where It Aligns — and Where It Differs — From OAIC / AGD Reforms
Both the Productivity Commission and the OAIC / Attorney-General’s Department (AGD) agree that Australia’s privacy laws need modernisation. But their approaches differ in emphasis and execution.
Here’s a practical breakdown — including what it means for FMA clients:
🔍 Key Policy Contrasts: Productivity Commission vs OAIC / AGD — and What It Means for FMA Clients
| Policy Theme | Productivity Commission | OAIC / AGD Reform Direction | What This Means for FMA Clients |
| Regulatory Philosophy | Flexible, risk-based; focus on productivity and utility | Rights-based, universal protections; global alignment | Less red tape for low-risk use cases, but agencies still need to track OAIC progress |
| Compliance Model | Dual-track: lighter touch for low-risk, stricter rules for high-risk use | Single-track: apply full obligations uniformly | May allow lighter approaches for campaign tagging and analytics in future — but not yet law |
| Approach to Consent | Outcome-focused; allow contextual and implied consent | Explicit, informed, voluntary, and opt-in; no dark patterns | More flexible UX if PC path is adopted, but risk if OAIC enforces stricter standards |
| AI & Emerging Tech | Delay mandatory guardrails; do gap analysis first | Push for proactive governance and biometric/ADM protections | Innovation runway is open, but governance expectations (e.g. transparency, fairness) still growing |
| Tracking & AdTech | Low risk unless profiling/sensitive; focus on proportionality | High risk; requires consent, clear purpose, and governance | Could reduce compliance overhead for pixels and tags — but OAIC still has audits and enforcement priorities |
| Consumer Rights | No right to erasure; focus on practicality and business cost | Expansion of erasure, access, and correction rights under review | Less immediate change in obligations, but dual pressure if AGD proceeds with broader rights |
| Data Access & Sharing | Sector-specific frameworks; use-case driven, not universal (e.g. loyalty, rentals) | Focused on expanding Consumer Data Right (CDR) | Supports tailored use of data products in key verticals, especially those outside CDR regime |
| Digital Reporting | Mandatory machine-readable financial data for disclosing entities | Not a current OAIC priority | Impacts marketing/adtech reporting and campaign auditing tools in regtech-like contexts |
| Publisher/IP Use (AI) | Supports TDM for AI training under fair use | Cautious on content use for AI; prioritises consent and licensing | Publishers may face IP risk under PC model; OAIC stance may offer more protection |
💡 3. What Does This Mean for FMA Clients?
For FMA’s clients across advertising, publishing, digital media, and martech, the Productivity Commission’s report offers both opportunity and complexity.
✅ Potential Benefits:
- Reduced friction for campaign analytics, tag-based optimisation, and audience tools
- More room to innovate in AI, personalisation, and marketing automation
- A chance to adopt a risk-calibrated governance model that scales with data maturity
⚠️ Key Considerations:
- Regulatory divergence may create short-term uncertainty and dual-compliance risk
- Consent and transparency are still expected across tracking and profiling practices
- Publishers and IP owners must assess TDM exposure and AI model training risks
🤝 Final Word — Finding Balance in the Age of AI
This isn’t a policy clash — it’s a call to rebalance.
The Productivity Commission wants to modernise regulation to keep pace with global innovation. The OAIC wants to build a rights-based digital environment that earns public trust.
But this is more than a compliance debate. It’s about Australia’s digital identity.
Australia has an opportunity to build an approach to data and AI governance that reflects our laws, values, and society. That’s what AI sovereignty means.
It also means that governance, trust, and ethical leadership must stay at the centre of every transformation strategy — whether it’s in publishing, marketing, customer data, or AI-driven services.
The real challenge isn’t choosing sides. It’s designing a path that:
- ✅ Protects people
- 🚀 Empowers innovation
- 🌍 And positions Australia as both a trusted digital economy and a responsible AI nation
🧭 3 Things to Do Now
- Review your data use and risk classification — identify which activities might qualify as “low-risk” under a dual-track model versus those needing full compliance.
- Get your tracking house in order — conduct a pixel and tag audit, and prepare for OAIC’s continued scrutiny of AdTech and consent design.
- Develop your AI governance foundations — start preparing for transparency, oversight, and fairness even if new laws aren’t finalised.
🔧 How FMA Can Help
At FMA Consulting, we work with marketers, media leaders, and digital teams to:
- Audit and document tracking technologies and vendor use
- Update and align privacy policies with APPs and OAIC guidance
- Implement risk-based privacy frameworks fit for a dual-track or single-track world
- Educate teams on AI governance and upcoming regulatory trends
If you’re navigating compliance while trying to innovate — we can help you strike the right balance. Contact our team today.
What is the Productivity Commission’s ‘dual-track’ privacy compliance model?
The Productivity Commission proposes a dual-track model where low-risk data uses — like analytics or campaign measurement — follow a lighter, outcomes-based approach, while high-risk uses — such as profiling, targeting minors, or biometric data — face stricter controls.
How does the Productivity Commission’s approach differ from the OAIC’s reforms?
The Productivity Commission favours a flexible, risk-based system prioritising innovation, while the OAIC’s reforms focus on universal, rights-based protections aligned with global privacy standards.
What would the reforms mean for marketers and AdTech providers?
If the dual-track model is adopted, marketers may face reduced compliance overhead for low-risk activities like tag-based optimisation, but will still need robust consent and governance for high-risk tracking or profiling.
Will the right to erasure be included in Australia’s updated privacy laws?
The Productivity Commission has rejected a universal right to erasure, citing high costs and limited benefit, while the OAIC and Attorney-General’s Department are still considering expanded erasure rights.
How could these reforms impact AI development and governance?
The Productivity Commission recommends delaying mandatory AI guardrails and supporting text and data mining under fair use, while the OAIC pushes for proactive governance and stronger protections for biometric and automated decision-making technologies.
What should brands and publishers do to prepare for possible regulatory divergence?
Businesses should classify data uses by risk level, audit tracking technologies, and begin building AI governance policies that meet both flexible and strict compliance scenarios.
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