The Australian Government has published a draft version of the upcoming data sharing law that will require car companies to share service and repair information to independent repairers. It will accept public comment on the legislation until the end of January.
The data sharing law, titled the Competition and Consumer Amendment (Motor Vehicle Service and Repair Information Sharing Scheme) Bill 2020, will amend the existing Competition and Consumer Act 2010 to add rules “in relation to sharing information for motor vehicle service and repair, and for related purposes”.
The government says that in its draft form, the data sharing law will impose obligations on data providers to:
- Publicly offer to supply information used for conducting diagnostic, service or repair activities in relation to certain vehicles to all Australian repairers and registered training organisations (RTOs)
- Charge no more than the fair market value for the information
- Supply scheme information within two business days of the repairer having paid the agreed price
Failure to comply with the above can attract a “maximum pecuniary penalty of $10 million for a body corporate”.
Data providers will also have to:
- Restrict access to safety and security information to those who meet specified access criteria and keep records of access
- Protect sensitive personal information collected under the scheme
- Pay compensation to any third parties that hold copyright in relation to scheme information for the supply of that information
GOVERNMENT AIMING FOR INCREASED REPAIR COMPETITION
In explaining the new rules, the government says it’s aiming to promote competition between Australian repairers of passenger and light goods motor vehicles, along with establishing a fair playing field by mandating access to diagnostic, repair and servicing information on fair and reasonable commercial terms. It also wants to enable consumers to have their vehicles repaired by an Australian repairer of their choice who can provide efficient and safe services. Other aims are:
- 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
- Provide for the resolution of disputes about the terms of supply or proposed supply of diagnostic, repair and servicing information for those vehicles
The government is defining “data provider” as “a corporation that carries on a business that, to any extent and whether directly or indirectly, supplies scheme information to any repairer or RTO in Australia, or a person who carries on such a business in the course of, or in relation to, trade or commerce”. It added that a data provider “may be a vehicle manufacturer, data 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.”
PLENTY OF EXCLUSIONS
The draft legislation also revealed what is not being included in the scheme:
- Trade secrets
- Any intellectual property other than intellectual property protected by the Copyright Act
- Source code versions of software applications
- Vehicle telemetry, which the government clarifies as “an automatic transmission of data from a remote source to a control centre, for example, a vehicle automatically sending engine performance information to the vehicle’s manufacturer”
- Information “only provided to a restricted number of selected repairers for the purposes of developing solutions to emerging or unexpected faults”
- Commercially sensitive information about an agreement between the data provider and another person – the government gives the example of information in an agreement between a manufacturer and dealer about dealership obligations when conducting diagnostic, servicing or repair activities
- Information relating to automated driving systems in an automated vehicle classed as SAE Level 3 or greater under the Surface Vehicle Information Report J3016
AAAA CELEBRATES MILESTONE AFTER DECADE OF CAMPAIGNING
The Australian Automotive Aftermarket Association (AAAA) said that the new data sharing law will make it illegal for car companies to withhold information from qualified independent mechanics, keeping the cost of replacement parts, vehicle maintenance and repair affordable.
The CEO of the AAAA, Stuart Charity, said the law had been a long time coming but will be welcome news for the automotive industry.
“We started campaigning for this law a decade ago and have been through two government inquiries and even through a voluntary agreement in 2014 which was a complete failure,” said Charity.
“Open competition means competitive pricing and the consumer will be the ultimate winner. Today’s decision is testament to the strength and ongoing commitment of our industry to battle for so long to have the law changed. We look forward to analysing the draft law and thank all the AAAA members for their steadfast campaigning to get us to this point.
“We also want to thank [Assistant Treasurer Michael] Sukkar for his work. He has personally steered this through government and we thank him for his leadership.”
Charity said that when the law passes, everyone will win.
“Open competition means affordable car repair and service. The economy improves too as local qualified mechanics invest in new tools and equipment to access diagnostic and repair data.
“The car industry also improves their service levels because they must try harder to win service and repair work and not rely on artificially manipulating and tying up the market.
“This is not about favouring any one sector – the independent repair sector wants more, not less competition. When consumers have full and free choice of repairers, our markets operate efficiently and will reward the best car companies, dealerships, independents, parts suppliers, and service providers.”
Charity said he expected the change to be welcomed by consumer groups, independent repairers and dealers seeking to diversify their servicing options.
“We do expect the car industry will continue to argue that there is no market failure and no need for government intervention. This is in spite of a specific recommendation by the ACCC that the government introduce a mandatory scheme to force car companies to share service and repair data.
“The car companies will argue this is a breach of intellectual property – an argument rejected in the EU, in South Africa and in the US. They will also argue that this is threat to safety and security, which it is not. Both the US and EU data sharing models have proven systems in place to protect the security and integrity of vehicle repair and service information and preparations are well advanced to roll out a tailored version of the US model in Australia.
“As with all right to repair issues, the security and safety argument is simply an excuse used to justify the withholding of information for the lifetime of the car.
MTAA, VACC: RELEASE OF DRAFT LEGISLATION IS UNPRECEDENTED
The release of the draft data sharing law is unprecedented, according to the Victorian Automobile Chamber of Commerce (VACC) and the Motor Trades Association of Australia (MTAA).
The MTAA says it has provided a “pivotal role” in facilitating industry and government consultations on the development of the draft legislation, which incorporates provisions on how the legislation will be implemented. The association adds that it “facilitated and organised major workshops involving peak automotive organisations and provided contacts for government officials with organisations and officials in the United States and Europe, while working with other automotive sector organisations”.
Richard Dudley, CEO of the MTAA, said the release of the draft legislation follows a previous recommendation by the Australian Competition and Consumer Commission (ACCC) for a mandatory scheme for car manufacturers to share technical information with independent repairers.
“The draft legislation would not have been possible without the Morrison government acting on the ACCC’s findings and recommendations, the opposition’s support for action and in particular, the commitment and work of Assistant Treasurer and Housing Minister Michael Sukkar,” said Dudley.
“Industry welcomes the release of the draft legislation – it is a milestone for automotive and a huge step forward for independent Australian businesses as well as being in the best interest of consumers,” said Geoff Gwilym, CEO of the VACC.
The MTAA says it and state-based peak industry bodies will now carefully examine the draft legislation, adding that it looks forward to continuing to work with the government to see it through to implementation.
The draft legislation can be accessed at the related review page at the Treasury’s website. The government is accepting public comment on the legislation until 31 January.