Prepared by CFA Executive Member Ian Jarratt, of Queensland Consumers Association. He can be reached at ijarratt@australiamail.com.
The final report was handed to the Australian Government on 29 October 2021 and publicly released on 1 December 2021. The Government has not yet announced its response to the report. CFA and several member organisations participated in the consultations.
The report overview and recommendations, the full report, and submissions are available here.
Key Points:
- This report finds that there are significant and unnecessary barriers to repair for some products. It proposes a suite of measures that aim to enhance consumers’ right to repair while providing net benefits to the community.
- A ‘right to repair’ is the ability of consumers to have their products repaired at a competitive price using a repairer of their choice. Realising this aspiration in a practical way involves a range of policies, including consumer and competition law, intellectual property protections, product labelling, and environmental and resource management.
- Consumers already have rights to have their products repaired, replaced or refunded, and to access spare parts and repair facilities, under consumer guarantees in the Australian Consumer Law. These guarantees are reasonably comprehensive and generally work well, but they should be improved by:
- introducing a new guarantee for manufacturers to provide software updates for a reasonable time period after the product has been purchased, to reflect the increasing dependence of consumer products on embedded software
- expanding options for ensuring compliance with, and enforcement of, the guarantees to assist individual consumers to resolve their claims and for the Australian Competition and Consumer Commission to address systemic breaches of consumer guarantees
- requiring manufacturer warranties to include text stating that entitlements to a remedy under the consumer guarantees do not require consumers to have previously used authorised repair services or spare parts, so that consumers are more aware of their rights.
- There are several opportunities to give independent repairers greater access to repair supplies, and increase competition for repair services, without compromising public safety or discouraging innovation. To this end, the Australian Government should:
- require suppliers of agricultural machinery to provide access to certain repair supplies to reduce the harm of the pervasive barriers to accessing these inputs
- undertake more detailed investigations into specific product markets (including mobile phones and tablets, and medical devices) to better understand the extent of harm and examine whether additional regulation would yield net benefits.
- amend copyright laws to facilitate the accessing and sharing of repair information (such repair manuals, and repair data hidden behind digital locks).
- A lack of consumer information about a product’s repairability or durability is likely to make it difficult for some consumers to select more repairable and durable products based on their preferences, while reducing manufacturers’ incentives to develop such products. To address this issue:
- the Australian Government (in consultation with consumer, environmental, and industry groups) should introduce a product labelling scheme that provides repairability and/or durability information for consumers. A pilot scheme should target a limited number of white goods and consumer electronics products.
The report says that the ‘right to repair’ is a multifaceted policy issue and that for governments there is no single policy that enables a right to repair. The Commission examined a broad range of policies, covering consumer and competition law, intellectual property protections, product design and labelling standards, and environmental and resource management.
The Commission’s focus was on whether there are barriers to repair that may require a government policy response, either through existing or new laws.
The report found there are significant and unnecessary barriers to repair for some products and proposes a suite of measures that aim to enhance consumers’ right to repair while providing net benefits to the community.
There is also scope to improve the way products are managed over their life, to reduce e?waste ending up in landfill. In particular, the Government should amend product stewardship schemes to allow for reused e?waste to be counted in scheme targets. Further, the use of electronic trackers within product stewardship schemes should increase, to improve awareness of the end?of?life location of e?waste and ensure it is being sent to environmentally?sound facilities.
The Recommendations are:
REQUIRE SOFTWARE UPDATES FOR A REASONABLE PERIOD
The Australian Government should amend the Australian Consumer Law to include a new consumer guarantee for manufacturers to provide reasonable software updates for a reasonable time period after the product has been purchased, with no option to limit or exclude that guarantee.
ENABLE A SUPER COMPLAINTS PROCESS
The Australian Government should enable designated consumer groups to lodge ‘super complaints’ on systemic issues associated with access to consumer guarantees, with the complaints to be fast tracked and responded to by the Australian Competition and Consumer Commission (ACCC).
The Australian Government should design the super complaints system in consultation with the ACCC, relevant State and Territory regulators, and consumer and industry groups. The system should be underpinned by operational principles — including criteria for the assignment (or removal) of designated consumer bodies, evidentiary requirements to support a complaint, and the process and time period by which the ACCC should respond.
ENHANCE ALTERNATIVE DISPUTE RESOLUTION POWERS
The State and Territory Governments should work together to identify opportunities to enhance alternative dispute resolution options in each jurisdiction to better resolve complaints about the consumer guarantees. In examining such opportunities, governments should consider:
- the extent to which consumers in some jurisdictions face less comprehensive access to alternative dispute resolution and whether this is consistent with a national consumer framework
- funding options to adequately resource enhanced alternative dispute resolutions
- the net benefit of options that enable regulators to make enforceable decisions or facilitate enforceable outcomes
- as an alternative, the net benefit of certain product markets (such as motor vehicles) having an ombudsman to make enforceable decisions or facilitate enforceable outcomes.
The outcomes of this activity should be published.
ENHANCE REGULATOR POWERS TO ENFORCE GUARANTEES
The Australian Government should, in consultation with State and Territory Governments, amend the Australian Consumer Law to make it a contravention for suppliers and manufacturers to fail to provide a remedy to consumers when legally obliged to do so under the consumer guarantees. This would empower the Australian Consumer and Competition Commission to seek pecuniary penalties, in addition to redress for affected consumers.
UNDERTAKE MOBILE PHONE AND TABLET MARKET STUDY
The Australian Competition and Consumer Commission should undertake a market study of the mobile phone and tablet market, to further examine the nature of the market, the magnitude of harm from repair barriers, and the merits of different policy responses (such as a repair supplies obligation on manufacturers).
REVIEW THE MEDICAL DEVICE MARKET AND REGULATIONS
The Australian Government should conduct an independent public review of existing medical device regulations to assess whether they strike a balance between repair access and device safety that maximises community wellbeing. The review should consider whether current regulations create incentives for manufacturers to restrict repair, and examine potential ways to improve repair access for low-risk medical devices or for highly?qualified independent repair technicians.
FURTHER INVESTIGATE CONDUCT IN WATCH REPAIR MARKETS
The Australian Competition and Consumer Commission (ACCC) should investigate whether manufacturer conduct in repair markets is contravening the restrictive trade practices provisions of the Competition and Consumer Act 2010, with a view to commencing proceedings. The ACCC’s investigation should initially focus on whether the alleged conduct of watch manufacturers is breaching the misuse of market power (s. 46) provisions.
ADD NEW MANDATORY WARRANTY TEXT
The Australian Government should amend r. 90 of the Competition and Consumer Regulations 2010, to require manufacturer warranties (‘warranties against defect’) on goods to include text (located in a prominent position in the warranty) stating that entitlements to a remedy under the consumer guarantees do not require consumers to have previously used authorised repair services or spare parts. The final wording of the text should be subject to consultation with industry and consumer groups.
AMEND THE TECHNOLOGICAL PROTECTION MEASURES REGIME
The Australian Government should amend the technological protection measures (TPM) regime in the Copyright Act 1968 and Copyright Regulations 2017 to better facilitate repairers’ access to embedded information protected by TPMs necessary for issue diagnosis and repair. To do this, the Government should:
- amend the existing TPM circumvention exception for repair in regulation 40(2)(d) of the Copyright Regulations 2017, to clarify its scope and application to permit circumvention in order to access information necessary to perform repairs to the product in which the TPM is installed
- amend section 116AO of the Copyright Act 1968, to permit the distribution of TPM circumvention devices for the purpose of facilitating a permitted act of circumvention (such as circumvention for the purpose of repairing a product in regulation 40(2)(d) of the Copyright Regulations 2017).
INTRODUCE A NEW ‘USE’ EXCEPTION IN THE COPYRIGHT ACT
The Australian Government should amend the Copyright Act 1968 to include an exception that allows for the reproduction and sharing of repair information. In the immediate term, this exception should be included through the existing fair dealing framework in the Copyright Act.
In the medium to long term, the Australian Government should pursue a more flexible copyright exception regime, including a principles-based ‘fair use’ exception.
PROHIBIT CONTRACTING OUT OF COPYRIGHT EXCEPTIONS
To give full effect to copyright exceptions, including those relating to repair, the Australian Government should amend the Copyright Act 1968 to make unenforceable any part of an agreement restricting or preventing a use of copyright material permitted by copyright exceptions.
DEVELOP AND INTRODUCE A PRODUCT LABELLING SCHEME
The Australian Government should develop a product labelling scheme that provides consumer information about product repairability and/or durability. It should develop the scheme in three key stages.
- Commit to introducing a product labelling scheme within five years and establish a working group (comprising relevant government agencies) to steer its development in consultation with consumer, industry and environmental groups.
- Design and implement a pilot scheme for products where it is likely to have the most benefits (such as white goods and consumer electronics).
- Review the pilot scheme within two years of commencement to assess its effectiveness and whether it should be modified or expanded to include additional products in the formal scheme.
INCLUDE REUSE WITHIN NTCRS ANNUAL RECYCLING TARGETS
The Australian Government should amend the Recycling and Waste Reduction (Product Stewardship — Televisions and Computers) Rules 2021 to count e?waste products that have been repaired and reused towards the annual targets of the National Television and Computer Recycling Scheme (NTCRS) co?regulatory bodies.
The exact design features that need to be incorporated into the NTCRS to enable reuse options should be determined in consultation with the scheme’s liable parties and co?regulatory bodies. The changes should be designed in a way that minimise any adverse incentives, including risks from:
- manipulating (or ‘gaming’ of) scheme targets, when the same products cycle through the scheme without legitimately being reused
- unlawful exports for reuse that result in more products in the informal recycling sector, generating worse health and environmental outcomes
- consumer concerns about data security for repaired and reused products.
Any future product stewardship schemes should also include repair and reuse as options within their targets, where practical.
USE TRACKING DEVICES TO MONITOR E-WASTE EXPORTS
The Australian Government should make greater use of electronic tracking devices to determine the end-of-life outcomes of Australian e-waste collected for recycling.
- At a minimum, the Government should increase the National Television and Computer Recycling Scheme’s use of tracking devices, to better monitor co?regulatory bodies and their downstream recyclers and logistic providers.
- The Department of Agriculture, Water and the Environment should also examine different ways to use tracking devices in e-waste products outside the scope of product stewardship schemes, taking into account constraints on the use of surveillance devices in some states and territories.
Where possible, tracking should be conducted by independent third?party auditors, using risk?based sampling that focuses on the types of products and supply chains that present the highest risk of unlawful export or disposal of e?waste.
EVALUATE THE MOTOR VEHICLE INFORMATION SHARING SCHEME
The Australian Government should establish an independent evaluation of the Motor Vehicle Service and Repair Information Sharing Scheme, once it has been in operation for three years. The report of the evaluation should be made public.
The evaluation should assess whether the scheme is effectively meeting its objectives to improve competition and choice, whether the benefits outweigh the costs, and whether any changes are required.
INTRODUCE A REPAIR SUPPLIES OBLIGATION ON AGRICULTURAL MACHINERY
The Australian Government should introduce a repair supplies obligation on agricultural machinery that requires manufacturers to provide access to repair information and diagnostic software tools to machinery owners and independent repairers on fair and reasonable commercial terms.
Design of the scheme should commence by the end of 2022. To inform scheme design and implementation, the Australian Government should:
- monitor developments in the Motor Vehicle Service and Repair Information Sharing Scheme, as well as voluntary information sharing within the agricultural machinery industry, to determine the scope of the information to be included
- consider whether this obligation should be implemented through an extension of the Motor Vehicle Scheme or through a separate scheme.
The scheme should be evaluated after it has been in operation for three years, to assess its effectiveness and determine whether any changes are required, including extending the scheme to cover spare parts.
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