ACCC Takes Subaru to Court: What is Alleged and Why it Matters

ACCC Takes Subaru to Court: What is Alleged and Why it Matters

The ACCC's decision to commence Federal Court proceedings against Subaru Australia is a major development for Australia's Right to Repair law.

The allegations have not been tested, and it will now be for the Federal Court to determine whether Subaru Australia has breached the Motor Vehicle Service and Repair Information Sharing Scheme - the Scheme most of us know as Right to Repair.
The ACCC alleges that between 1 July 2022 and 31 August 2024, Subaru Australia contravened the Scheme by:

• failing to offer independent repairers the same Scheme Information it gave to Subaru Australia dealerships or only providing access via remote assistance
• requiring independent repairers to also buy certain hardware to connect the software to the vehicle
• offering to supply Scheme Information only on an annual basis, when it was required to offer it on a daily or monthly basis (or alternatively, for any period nominated by an Australian repairer)
• failing to provide Scheme Information to two independent repairers immediately upon request (or at all).

This is the central issue: Right to Repair does not simply require repair information to exist somewhere. The Scheme is built around the idea that Australian repairers should be able to buy the information they need to diagnose, service and repair vehicles on fair and reasonable commercial terms. Service and repair information must be available for purchase at a price not exceeding its fair market value. The ACCC alleges Subaru did not meet that obligation.

According to the ACCC, Subaru allegedly failed to offer independent repairers the same Scheme Information it gave to its dealerships, or only provided access through remote assistance. It also alleges Subaru required independent repairers to buy certain hardware to connect software to the vehicle.

The ACCC further alleges Subaru offered some Scheme Information only on an annual basis, when it was required to offer access on a daily or monthly basis, or for another period nominated by the repairer. It also alleges Subaru failed to provide Scheme Information to two independent repairers immediately upon request, or at all.

It is a practical set of allegations. For a repairer, this is not an abstract compliance debate. It is about whether you can get the information you need, in the form you need it, for the period you need it, at a price and through a process that makes sense for the job in front of you.If the only option is annual access, that creates a cost barrier. If additional hardware is required before the software can be used, that creates another barrier. If the information available to a dealership is not offered to an independent repairer in the same way, that goes to the heart of what the Scheme was designed to address.

This case is also significant because it is the ACCC's first Federal Court proceeding for alleged breaches of the scheme.
Some in the industry have been critical of the Scheme because enforcement has not always been visible. That criticism is understandable. Repairers judge a law by whether it changes what happens on the ground. But Federal Court proceedings are not usually the first step in an enforcement process. They come after information is gathered, issues are assessed and evidence is prepared. The fact this case is now before the Court suggests the ACCC has been doing the work behind the scenes, and that should give the industry some confidence.

The case should also be noted by vehicle manufacturers and other data providers: Right to Repair is not a voluntary code. It is a mandatory Scheme under the Competition and Consumer Act, and the ACCC is responsible for enforcing it. Subaru Australia will have the opportunity to respond to the allegations in Court, and that process should be allowed to run properly. But the existence of this case sends a clear message: obligations under the Scheme are capable of being tested, and they are capable of being tested seriously.

And it shouldn't be assumed that this will be the last enforcement action either. Once a regulator starts taking a close look at how a new Scheme is operating, it rarely looks at only one example. The sensible assumption is that repair information access, pricing, timing, format, and conditions of use are all being watched. That is important for everyone in the aftermarket because we are hearing of new barriers every day.

If you are being locked out of information, do not treat that as normal. Do not assume a brand can simply say no and there is nothing you can do about it. And do not just absorb the problem and move on. Instead, go to the AASRA website and use the Missing Information Report process. That is the pathway designed to capture these issues and allow them to be assessed. You do not need to determine whether the law has been breached. That is not the repairer's job. But the report is important, because details are the difference between a general complaint and useful evidence, and this is how the culture changes.

For a long time, we were told, directly or indirectly, that if a vehicle manufacturer controlled the information, the manufacturer controlled the repair pathway. That was the problem Right to Repair was designed to fix. The law changed that, and while it did not make every access problem disappear overnight, and it was never going to, it did create legal obligations. It created a scheme. It created a pathway for repairers to raise problems.

Now we are seeing the ACCC take alleged breaches to the Federal Court, and that should give some optimism to every workshop that has been told information is unavailable, too difficult, too expensive, or only available on terms that do not make sense for the job.

This case also lands at an important time. Right to Repair is already under review, and the next round of reform discussions is focused on whether the Scheme remains practical, enforceable, and commercially viable as vehicles become more software driven. The Subaru allegations illustrate why that review is necessary. The future of repair access will not be decided by broad statements about information being "available." It will be decided by practical questions: can repairers access the same information as dealers, in a usable way, at a realistic price, and within the timeframe needed to repair the car?

That is the test.
The ACCC's case against Subaru Australia will now take its course through the Federal Court. We should be cautious about the legal process and clear about the allegations. But we should also recognise this as a serious enforcement moment for Right to Repair.

The Scheme was designed to give independent repairers fair access to the information needed to compete. This case will test what that obligation means in practice. And for an industry that fought hard for this law, that's worth paying attention to.
More information on the ACCC action against Subaru Australia can be found at www.accc.gov.au
If you are experiencing missing information/repair barriers, report it through the AASRA Missing Information Report process at www.aasra.com.au

If you would like to discuss an issue with AAAA, please email [email protected]

This article was originally published in the September edition of the Australian Automotive Aftermarket Magazine.