Cth Bill to Establish Motor Vehicle Service and Repair Information Sharing Scheme
Tuesday 18 May 2021 @ 11.32 a.m. | Legal Research
On 24 March 2021, the Competition and Consumer Amendment (Motor Vehicle Service and Repair Information Sharing Scheme) Bill 2021 (Cth) (‘the Bill’) was introduced into the House of Representatives by Assistant Treasurer Michael Sukkar ('the Assistant Treasurer'). The Bill passed the lower house on 13 May with no amendments. The Bill has yet to be introduced in the Senate.
What are the objects of the Bill?
In his second reading speech, the Assistant Treasurer, stated that:
"This bill establishes a mandatory scheme to promote competition in the Australian automotive sector by requiring all motor vehicle service and repair information be made available for purchase by independent repairers at a fair market price."
The Bill is part of the government's response to a 2017 market study conducted by the Australian Competition and Consumer Commission (‘the ACCC’). The study found that consumers experienced significant delay and financial detriment when seeking motor vehicle repairs. This was due to a lack of access to service and repair information from manufacturers. The study also found that a lack of information sharing prevented independent repairers from completing repairs safely and effectively.
The Bill seeks to establish a mandatory scheme by introducing a new part into the Competition and Consumer Act 2010 (Cth). The objects of the proposed scheme are set out under Division 1 of the proposed Part IVE. The Bill's Explanatory Memorandum summarises:
"The objectives of the scheme are to:
- promote competition between Australian repairers of passenger and light goods motor vehicles and establish a fair playing field by mandating access to diagnostic, repair and servicing information on fair and reasonable commercial terms;
- enable consumers to have those vehicles attended to by an Australian repairer of their choice who can provide efficient and safe services;
- encourage the provision of accessible and affordable diagnostic, repair and servicing information to Australian repairers, and to registered training organisations for training purposes;
- protect safety and security information about those vehicles to ensure the safety and security of consumers, information users and the general public; and
- provide a low-cost alternative dispute resolution mechanism"
Who is considered a ‘data provider’?
According to the Bill's Explanatory Memorandum:
"A data provider may be a vehicle manufacturer, information owner, or licensee. This could include an Australian subsidiary of an overseas vehicle manufacturer, an affiliated car dealership, or a data aggregator who sells service and repair information in its own right."
What are ‘scheme offers’?
Under the proposed scheme, a data provider is required to make a “scheme offer” to supply “scheme information” to Australian motor vehicle repairers and registered training organisations (‘RTOs’). More importantly, the scheme would require that offers do not exceed the fair market value of the information.
The Explanatory Memorandum lists several examples of what may constitute as “scheme information”, including:
- "manuals, technical service bulletins, wiring diagrams, technical specifications for components and lubricants and testing procedures (including in relation to environmental performance)
- information and codes for computerised systems (such as information that may appear on a scheme vehicle’s on-board display after being plugged into a computer system)
- information about a voluntary or mandatory recalled component of a vehicle and information needed to rectify the issue and
- software updates, for example where necessary after replacement parts are installed to ensure the vehicle’s electronic systems recognise and accept the new part."
However, the Bill also exempts certain information from being included in the definition of “scheme information”. This exemption covers information such as:
- trade secrets
- intellectual property protected by the Copyright Act 1968 (Cth)
- source code
- global positioning system data
- information relating to automated driving systems.
What are the requirements for safety and security information?
The Assistant Treasurer noted in his second reading speech that “widespread access to safety and security information would create unacceptable risks to vehicle safety and security”. Safety information refers to information about hydrogen, high voltage, hybrid or electric propulsion systems in a vehicle, whilst security information refers to information about the vehicle’s mechanical or electronic security system.
The Bill seeks to imposes two key requirements that a repairer or RTO must satisfy in order to access such information. Firstly, a data provider may only provide safety or security information where there is “reasonable grounds to believe" that the repairer or RTO has met certain requirements. A data provider must believe that the information is required for a proper purpose and that the individual requesting access is a fit and proper person.
Secondly, the repairer or RTO must provide a declaration to:
- confirm they have authorisation from the vehicle’s owner to use security information,
- specify the vehicle’s identification number, and
- declare that the premises where the repairer or RTO operates complies with standards under the scheme rules.
What are the implications of non-compliance?
The key obligations imposed on data providers are to:
- make a scheme offer,
- charge no more than the fair market value for the information, and
- supply information once the repairer agrees to the price.
According to the Bill's Explanatory Memorandum:
"Failure to comply with these main obligations can attract a maximum pecuniary penalty of $10 million for a body corporate and $500,000 for other persons. The court will determine the appropriate penalty amount (up to the maximum) based on the circumstances of individual contraventions."
The Bill proposes that civil penalties may be imposed for contraventions of other obligations under the scheme and would empower the ACCC to issue infringement notices for alleged contraventions in certain circumstances.
What is the role of the scheme adviser?
The Bill also seeks to create the role of “scheme adviser” as an oversight measure for the implementation of the scheme.
The scheme adviser has a number of functions, including to:
- nominate mediators or technical experts,
- report to the Minister about matters such as scheme prices, the terms and conditions of scheme offers or the availability of scheme information as well as whether certain information should be captured by the scheme,
- report to the ACCC about any systemic regulatory or enforcement issues,
- provide general advice in relation Part IVE,
- publish annual reports containing specified information relevant to the operation of the scheme on their website, and
- provide information online to scheme participants about the availability of scheme information and dispute resolution.
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Competition and Consumer Amendment (Motor Vehicle Service and Repair Information Sharing Scheme) Bill 2021 (Cth) and explanatory materials available on TimeBase's LawOne Service