The inability to repair our modern tech gadgets has not gone unnoticed. Consumers are frustrated at their inability to repair their goods as well as the high cost of repair, if it is available. Many repairers have also highlighted that they are often unable to repair these tech products as they cannot access the relevant technological information. There is an increasing push from consumers that they should not be forced to upgrade to the newest model every time a part of their product or device breaks.
The issue of access to repairs was highlighted in an action before the Australian Federal Court in 2018, when the ACCC brought an action against Apple for telling consumers that their warranty would not be honoured if they took their iPhone to a third-party repairer. This was found to be a breach of the Australian Consumer Guarantees in the Australian Consumer Law. Apple Inc was fined $9m for this breach. This case sent a strong message to the community that manufacturers should not be controlling the aftermarket to the exclusions of others.
The car repair industry is one industry where the issue of the inaccessibility and high costs of access repair software has drawn the attention of the regulators. Rod Sims, the chairman of the Australian Competition and Consumer Commission (ACCC) has observed, that ‘today’s new cars contain in excess of 10 million lines of computer code, more code than is used to operate the avionics and on-board support systems of modern airliners….[making them] effectively “computers on wheels’. But this comes at a high price for those who repair the vehicles. As one car repairer observed, ‘we could spend up to $300 a month on data just to be able to fix a certain model of car. It’s not cheap and there’s a lot you still can’t get from the dealers’. Some repairers have complained that they were working 12-hour days mostly researching how to fix technical equipment in cars, noting ‘twenty years ago, I could probably charge out four or five hours a day… with another mechanic working with me. Today, I’m lucky to charge out two because I’m forever either quoting or trying to get information.’
In 2018, the ACCC recommended that there be a Mandatory scheme for the Sharing of car repair and service information. Our analysis of this scheme suggests that this could potentially be used as a basis for a broader discussion about how Australia should respond to the International Right to Repair movement.
The International Right to Repair movement
It has been suggested by leading US Professor Aaron Perzanowski, that by denying consumers the ability to repair their goods, manufacturers of ‘smart’ goods are challenging, and even undermining, the very notion of physical ownership. Globally, there has been a groundswell of support from many different groups of consumers: motorists, farmers, consumers and environmentalists for a Right to Repair. What this really means is that the owners of good should be able to open their goods, repair those good or access repair services or repair information for themselves, or through a third party of their choosing.
The initial Right to Repair legislation passed in Massachusetts in 2012, that gave motorists access to car spare parts and repair services from parties other than the original equipment manufacturer has spurred on a broader Right to Repair movement in the US. In 2019, there are now 20 US States with proposed Right to Repair legislation: some focussing on broad consumable, others on farm equipment and cars etc. Interestingly, in the EU, the Right to Repair regime is being implemented through an environmental push for longevity and repairability of consumables through the EU EcoDesign Directive coming into force in 2021 where manufactures will be required to provide spare part for the goods for up to 10 years.
In Australia, we are yet to consider the role that a Right to Repair could play in the Australian economy and in its environmental future. However, the Australian Government is aware and concerned about Australian consumers’ inability to have faulty smart or digital goods and cars repaired at a competitive price by a manufacturer, a third party or in some instances, self-repair. A recent meeting of Australian Ministers for Consumer Affairs and their New Zealand counterparts in August 2019 reached the conclusion that laws should be considered to boost people’s ability to repair their phones and other electronic goods. Following this lead, in late August 2019, the Federal Minister and Assistant Treasurer, Michael Sukkar requested the Australian Treasurer add the ‘Right to Repair’ to the Productivity Commission’s future agenda.
The Bower Reuse and Repair Centre in Sydney have been a long-time supporter of a Right to Repair. In October 2019, they began an online petition for a Right to Repair for Australia, which has been given support by both sides of politics: by the Federal Labor Member for Parramatta, Julie Owens: ‘We have all found times when we have thrown something out because it was too costly to repair it or could not get it repaired and it has gone into landfill when it probably had years of life yet. The right-to-repair campaign asks that manufacturers produce goods that are fixable, ensuring manuals and spare parts are easily available and allowing everyday Australians to make reasonable attempts to repair items without risk of voiding the warranty.’ She concluded by stating: ‘this is a debate we have to have’ (Owens, 2019). The Minister for the Environment, Sussan Ley, has also confirmed the Australian Government’s interest in the Right to Repair when she also commended The Bower’s campaign, noting the environmental benefits of a Right to Repair.
We need to learn from the different approaches being taking internationally to the Right to Repair, with a view to developing a policy and regulatory response in Australia. This is a focus of our ongoing research on the legal and regulatory responses to the Right to Repair movement. The concern is that Australian consumers may be disadvantaged if our regulators do not start to consider ways to regulate to facilitate reuse and repair. The bigger problem may well be that Australia will lag behind the rest of the world in ensuring the environmental longevity of some goods.
Professor Leanne Wiseman
Dr Kanchana Kariyawasam