The squeaky wheel gets the oil – ACCC to introduce a new Code requiring car manufacturers to share vehicle service and repair information

A new public consultation has opened up regarding the Government’s proposal to establish a mandatory code of conduct (Code) regarding minimum standards for information sharing and access to vehicle service and repair information.

The proposed Code is in response to the report published by the ACCC in December 2017 (New Car Retailing Industry Market Study). That study recommended a mandatory scheme be introduced for car manufacturers to share the technical information (that they would normally share with their own authorised dealers and preferred repairer networks) with independent repairers on commercially fair and reasonable terms. The purpose of the Code is to increase competition within the sector and allow consumers to have their vehicle repaired by a repairer of their choice.

Requirements under the proposed Code

The key aspects of the proposed Code are summarised below:

• the Code would apply to new passenger and light goods vehicles. The Government is still deciding whether the code would apply only to new vehicles sold after the Code has come into effect, or would extend to those vehicles sold prior to the date that the Code came into effect. Initially the Code would not apply to 2 or 3 wheel vehicles, but it could be extended to apply to them in future.

• the Code would require manufacturers to make diagnostic, repair and servicing information and tools available for purchase to suitable people (e.g. vehicle owners and repairers). The information to be shared includes that which is necessary or useful to facilitate the service and repair of vehicles but not information that is a trade secret, IP, commercially sensitive or prohibited from being shared by privacy laws. Examples of information that would need to be shared include:

  • manuals and procedures (e.g. for repair)
  • on-board information and telemetry and codes for computerised systems.
  • access to electronic log books / data for a particular vehicle where this information is needed to repair or update the vehicle.
  • diagnostic, service and repair tools made available to dealerships.

• the Code would allow for information to be withheld where unrestricted access would have negative impacts on safety, security or environmental performance of a vehicle disproportionate to the usefulness of the information in the safe and responsible service or repair of the vehicle. However, the Code would require manufacturers to allow those who meet the following criteria to access this information:

  • a person, licensed workshop or business with a vocational tertiary or professional qualification; or
  • having demonstrable knowledge, experience and/or skills.

• manufacturers would be responsible for setting up systems to allow access to information covered by the Code.

• each of the parties would be required to act in good faith, in a way that is similar to the good faith obligation under the Franchising Code of Conduct.

• the Code would contain dispute resolution mechanisms.

• the Code would be enforceable by the ACCC by private action, with remedies including an injunction, damages, community service orders and compensatory orders. Initially, penalties will not be imposed to give industry participants an opportunity to understand the requirements under the Code.

Consultation

The Treasury has opened a public consultation so that it can obtain industry stakeholders’ views about the proposed Code. The consultation paper can be accessed by clicking this link. The specific matters regarding which the Treasury is seeking comment are outlined at section 5 of the attached paper.

The consultation is open until 11 March 2019. The Government has indicated that the proposed Code will be introduced in 2019 after further consultation.

This is a good opportunity to provide any feedback on the proposed scheme.

If you would like any assistance with putting together a response to the consultation, please contact us and we would be more than happy to assist.

Authors: Greg Blewitt, Oliver Shtein, Priti Joshi