Right to Repair
Terms of reference
I, the Hon Josh Frydenberg MP, Treasurer, pursuant to Parts 2 and 3 of the Productivity Commission Act 1998, hereby request that the Productivity Commission undertake an inquiry into the Right to Repair in Australia.
The term right to repair describes a consumer's ability to repair faulty goods, or access repair services, at a competitive price. This can relate to a range of product faults, including those for which the consumer is responsible. It may include a repair by a manufacturer, a third-party, or a self-repair option through available replacement parts and repair information.
The Competition and Consumer Act 2010 (CCA) prohibits anti-competitive behaviour such as exclusive dealing (section 47); however, many right to repair issues are the result of conduct that is not being captured by the prohibition. In many cases, suppliers do not impose any such restrictions on consumers with respect to the repair of products they supply. Instead, consumers or third parties are prevented from being able to repair the products due to a lack of access to necessary tools, parts or diagnostic software.
For these reasons; existing provisions amount to some limited rights or protections in relation to repair facilities in Australia, but do not amount to a full 'right to repair'. As such, premature product obsolescence and a lack of competition in repair markets remain. The expense of repair and product design accelerate the transfer of consumer goods into waste.
Scope of the inquiry
The Productivity Commission should examine the potential benefits and costs associated with 'right to repair' in the Australian context, including current and potential legislative, regulatory and non-regulatory frameworks and their impact on consumers' ability to repair products that develop faults or require maintenance. In examining the Australian context, the Productivity Commission should identify evidence of the impact of relevant international approaches.
In undertaking the inquiry, the Commission should consider:
- The legislative arrangements that govern repairs of goods and services, and whether regulatory barriers exist that prevent consumers from sourcing competitive repairs;
- The barriers and enablers to competition in repair markets, including analysing any manufacturer-imposed barriers, and the costs and benefits associated with broader application of regulated approaches to right of repair and facilitating legal access to embedded software in consumer and other goods;
- The impact of digital rights management on third-party repairers and consumers, and how intellectual property rights or commercially-sensitive knowledge would interact with a right to repair;
- The effectiveness of current arrangements for preventing premature or planned product obsolescence and the proliferation of e‑waste, and further means of reducing e‑waste through improved access to repairs and increased competition in repair markets; and
- The impact on market offerings, should firms have their control over repair removed.
In undertaking this inquiry, the Commission should consult broadly, including with state and territory consumer affairs regulators. The Commission should undertake an appropriate public consultation process including by holding public hearings, inviting public submissions and releasing a draft report to the public.
A final report should be provided to the Government within 12 months of the receipt of these terms of reference.
The Hon Josh Frydenberg MP
[Received 29 October 2020]