Competition and Consumer Amendment (Motor Vehicle Service and Repair Information Sharing Scheme) Act 2021 (Cth)

Competition and Consumer Amendment (Motor Vehicle Service and Repair Information Sharing Scheme) Act 2021 No. 54, 2021 An Act to amend the Competition and Consumer Act 2010 in relation to sharing information for motor vehicle service and repair, and for related purposes Contents 1 Short title 2 Commencement 3 Schedules Schedule 1—Motor vehicle service and repair information sharing scheme Part 1—Main amendments Competition and Consumer Act 2010 Part 2—Other amendments Competition and Consumer Act 2010 Copyright Act 1968 Competition and Consumer Amendment (Motor Vehicle Service and Repair Information Sharing Scheme) Act 2021 No. 54, 2021 An Act to amend the Competition and Consumer Act 2010 in relation to sharing information for motor vehicle service and repair, and for related purposes [Assented to 24 June 2021] The Parliament of Australia enacts: 1 Short title This Act is the Competition and Consumer Amendment (Motor Vehicle Service and Repair Information Sharing Scheme) Act 2021. 2 Commencement (1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms. Commencement information Column 1 Column 2 Column 3 Provisions Commencement Date/Details 1. Sections 1 to 3 and anything in this Act not elsewhere covered by this table The day this Act receives the Royal Assent. 24 June 2021 2. Schedule 1 The later of: 1 July 2022 (a) 1 July 2022; and (paragraph (a) applies) (b) the day after this Act receives the Royal Assent. Note: This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act. (2) Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act. 3 Schedules Legislation that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms. Schedule 1—Motor vehicle service and repair information sharing scheme Part 1—Main amendments Competition and Consumer Act 2010 1 After Part IVD Insert: Part IVE—Motor vehicle service and repair information sharing scheme Division 1—Objects of Part and simplified outline 57AA Objects of Part The objects of this Part are to: (a) promote competition between Australian repairers of passenger and light goods motor vehicles and establish a fair playing field by mandating access, on fair and reasonable commercial terms, to information used to diagnose, repair, service, modify or dismantle scheme vehicles; and Note: These vehicles are defined as scheme vehicles (see section 57BA). (b) enable consumers to have scheme vehicles diagnosed, repaired, serviced, modified or dismantled safely and effectively by an Australian repairer of their choice; and (c) encourage the provision of accessible and affordable information about scheme vehicles to Australian repairers, and to registered training organisations (for training purposes); and (d) protect safety and security information about scheme vehicles to ensure the safety and security of consumers, information users and the general public; and (e) provide for the resolution of disputes about the application of this Part. 57AB Simplified outline This Part sets up a scheme to improve access by Australian motor vehicle repairers and registered training organisations (called "scheme RTOs") to information used to diagnose faults with, service, repair, modify or dismantle motor vehicles covered by the scheme. Such information (called "scheme information") is required to be offered for supply to Australian repairers and scheme RTOs at a price that does not exceed fair market value. Those who supply scheme information (called "data providers") to Australian repairers and scheme RTOs are protected from certain civil claims in doing so. To protect the safety and security of vehicle owners, individuals working for an Australian repairer or scheme RTO who access scheme information relating to vehicle safety and security must satisfy certain criteria relating to whether they are fit and proper persons to have access to such information. Sensitive information about such individuals may be obtained by data providers for this purpose. The handling of such information is also restricted under this Part. The information cannot be made available to anyone outside Australia (including to any data provider). Provision is made for resolving disputes about the application of the Part. Provision is made for a scheme adviser. The scheme adviser's functions include facilitating mediation of disputes between data providers and Australian repairers or scheme RTOs, and providing information about the operation of the scheme. Division 2—Key concepts 57BA Meaning of scheme vehicle A scheme vehicle is: (a) a light goods vehicle, within the meaning of a national road vehicle standard made under the Road Vehicle Standards Act 2018 that specifies definitions and vehicle categories for the purposes of that Act, that was manufactured on or after: (i) 1 January 2002; or (ii) a later date prescribed by the scheme rules; or (b) a passenger vehicle (other than an omnibus), within the meaning of a national road vehicle standard made under the Road Vehicle Standards Act 2018 that specifies definitions and vehicle categories for the purposes of that Act, that was manufactured on or after: (i) 1 January 2002; or (ii) a later date prescribed by the scheme rules; or (c) another kind of vehicle prescribed by the scheme rules. 57BB Meaning of Australian repairer A person is an Australian repairer to the extent that the person carries on or actively seeks to carry on, in Australia, a business that involves diagnosing faults with, servicing, repairing, modifying or dismantling scheme vehicles. Note: In some State and Territory jurisdictions, a person may need to hold a licence or particular qualifications to lawfully carry on such a business. 57BC Meaning of scheme RTO and RTO course A scheme RTO is a registered training organisation that provides, or seeks to provide, a course (an RTO course) in Australia providing training in diagnosing faults with, servicing, repairing, modifying or dismantling scheme vehicles. Note: RTO is short for registered training organisation. 57BD Meaning of scheme information Main definition (1) Scheme information is information in relation to scheme vehicles prepared by or for manufacturers of scheme vehicles (or their related bodies corporate) for use in diagnosing faults with, servicing or repairing those vehicles, as supplied to the market. Exceptions (2) However, scheme information does not include any of the following: (a) a trade secret; (b) the intellectual property of a person, other than intellectual property protected under the Copyright Act 1968; (c) a source code version of a program; (d) data automatically generated and transmitted by a scheme vehicle, while it is being driven, regarding driver or vehicle performance; (e) global positioning system data; (f) information supplied, or to be supplied, only to a restricted number of Australian repairers for the purposes of developing solutions to emerging or unexpected faults with a scheme vehicle; (g) information that is commercially sensitive about an agreement between a data provider and another person; (h) information relating to an automated driving system of a scheme vehicle; (i) any other information prescribed by the scheme rules. Note: Scheme information may include safety and security information (see the definition of safety and security information in section 57BF). However, for restrictions on the supply of safety and security information to Australian repairers and scheme RTOs: see section 57DB. (3) An automated driving system is a system which has a SAE level of 3 or greater under the Surface Vehicle Information Report J3016 published by SAE International, as amended from time to time. Note: The Report, as amended to 2021, could in 2021 be viewed on SAE International's website (https://www.sae.org). 57BE Meaning of data provider A data provider is: (a) a corporation carrying on a business that includes supplying, to any extent and whether directly or indirectly, scheme information to one or more Australian repairers or scheme RTOs; or (b) any person who carries on such a business in the course of, or in relation to, trade or commerce. 57BF Meaning of safety and security information (1) Safety and security information, for a scheme vehicle, is either or both of the following: (a) safety information; (b) security information. Note: Restrictions apply in relation to the supply of scheme information that is safety and security information: see section 57DB. (2) Safety information, for a scheme vehicle, is information relating to any of the following systems installed in the vehicle, of a kind prescribed by the scheme rules: (a) the hydrogen system; (b) the high voltage system; (c) the hybrid system; (d) the electric propulsion system; (e) another system prescribed by the scheme rules for the purposes of this paragraph. (3) Security information, for a scheme vehicle, is information relating to any of the following systems installed in the vehicle, of a kind prescribed by the scheme rules: (a) the vehicle's mechanical and electrical security system; (b) another system prescribed by the scheme rules for the purposes of this paragraph. 57BG Supply of scheme information between related bodies corporate To avoid doubt, this Part applies in relation to a supply of scheme information about a scheme vehicle from a data provider to an Australian repairer even if the data provider and the Australian repairer are related bodies corporate. Division 3—Supply of scheme information 57CA Scheme information—offer to supply to Australian repairers and scheme RTOs Scope (1) This section applies if a data provider supplies, or offers to supply, scheme information of one or more kinds in relation to one or more kinds of scheme vehicles to one or more Australian repairers or scheme RTOs. Main obligation (2) The data provider must make an offer (a scheme offer) to supply, on terms and conditions that comply with section 57CC, the same scheme information in relation to that kind, or those kinds, of vehicle to all Australian repairers and scheme RTOs: (a) in the same form in which it is supplied or offered for supply under subsection (1); or (b) if supply in that form is not practicable or accessible—in an electronic form that is reasonably accessible to all Australian repairers and scheme RTOs. Note 1: A pecuniary penalty of up to $10,000,000 may be imposed for a contravention of this subsection: see section 76. Note 2: Restrictions apply in relation to the packaging and supply of scheme information that is safety and security information: see section 57DB. Choice of supply period in scheme offer (3) If the form in which scheme information is supplied allows for variability in the period for which the information is supplied, the data provider must make the scheme offer on terms and conditions that include provision for the supply of the scheme information: (a) for any period nominated by an Australian repairer or scheme RTO; or (b) by day, by month and by year. Civil penalty: (a) for a body corporate—600 penalty units; and (b) for a person other than a body corporate—120 penalty units. Scheme offer not to exceed fair market price (4) The data provider must make a scheme offer for the supply of the scheme information in relation to a particular make, model or year of scheme vehicle at a price (the scheme price) that does not exceed the fair market value of the information, as determined by reference to matters including those covered by subsection (5). Note: A pecuniary penalty of up to $10,000,000 may be imposed for a contravention of this subsection: see section 76. (5) For the purposes of subsection (4), this subsection covers the following matters: (a) the price charged to other Australian repairers and scheme RTOs for supplying scheme information (whether under this Part or otherwise) in relation to a scheme vehicle: (i) of that particular make, model and year; or (ii) if pricing is not available for information in relation to a scheme vehicle of that particular make, model and year—pricing for information in relation to a scheme vehicle of a similar make, model and year; (b) the terms and conditions on which such scheme information is offered for supply to Australian repairers and scheme RTOs (whether under this Part or otherwise), including as to the permitted use of the information, the means of access to the information, the number of permitted users, and the frequency or duration of use of the information; (c) the anticipated demand by Australian repairers and scheme RTOs for supply of the scheme information on the basis of the scheme offer; (d) the reasonable recovery of costs incurred in creating, producing and providing the scheme information for supply on the basis of the scheme offer; (e) the price charged for the supply of information similar to scheme information in overseas markets; (f) the amount (if any) payable by the data provider to any person who has a proprietary interest in the scheme information. Note: A data provider must pay compensation to a person whose copyright is infringed by a supply of scheme information: see subsection 57CD(3). Publication of scheme offer (6) The data provider must publish the scheme offer: (a) in English; and (b) on the internet; and (c) in a form that is accessible free of charge. Civil penalty: (a) for a body corporate—600 penalty units; and (b) for a person other than a body corporate—120 penalty units. (7) The data provider must: (a) as soon as reasonably practicable after it publishes a scheme offer under subsection (6)—provide a copy of the scheme offer, in writing, to the scheme adviser; and (b) notify the scheme adviser, in writing, as soon as reasonably practicable after any change to the scheme offer. Civil penalty: (a) for a body corporate—600 penalty units; and (b) for a person other than a body corporate—120 penalty units. 57CB Scheme information—supply on request by Australian repairers or scheme RTOs Scope (1) This section applies if: (a) a data provider makes, or is required to make, a scheme offer to supply scheme information in relation to a particular make, model and year of scheme vehicle; and (b) either: (i) an Australian repairer has a need to access the scheme information for that particular make, model and year of scheme vehicle in carrying on the Australian repairer's business; or (ii) a scheme RTO has a need to access the scheme information to provide an RTO course; and (c) the Australian repairer or scheme RTO requests, in writing, the data provider to supply the scheme information about that particular make, model and year of scheme vehicle; and (d) the Australian repairer or scheme RTO pays, or offers to pay, the scheme price, or another agreed price, for the scheme information. Note: Restrictions apply in relation to the supply of scheme information that is safety and security information: see section 57DB. Supply of scheme information (2) The data provider must supply the scheme information to the Australian repairer or scheme RTO: (a) in accordance with terms and conditions that comply with section 57CC; and (b) within the period covered by subsection (3). Note: A pecuniary penalty of up to $10,000,000 may be imposed for a contravention of this subsection: see section 76. (3) For the purposes of subsection (2), the period covered by this subsection: (a) starts when (at the payment or offer time) the Australian repairer or scheme RTO pays, or offers to pay, the scheme price, or another agreed price, for the scheme information; and (b) in the circumstances described in column 1 of an item of the following table, ends at the time described in column 2 of that item. Period for supply of scheme information Item Column 1 Column 2 If … the period ends … 1 (a) either: immediately after the payment or offer time. (i) the data provider has previously supplied the scheme information in the form requested to the Australian repairer or scheme RTO, or to any other person; or (ii) the scheme information is readily accessible by the data provider and can be provided in the form requested; and (b) item 2 of this table does not apply 2 paragraph (a) of item 1 of this table applies to the scheme information, but: at the end of 2 business days after the day on which the Australian repairer or scheme RTO provides the required information to the data provider. (a) the scheme information is, or includes, safety and security information; and (b) the data provider has not been given the information required to determine whether or not the scheme information may be supplied under section 57DB; and (c) as a result, the scheme information cannot be provided immediately after the payment or offer time 3 items 1 and 2 of this table do not apply at the later of the following times: (a) at a time agreed by the data provider and the Australian repairer or scheme RTO; (b) at the end of 5 business days after the payment or offer time. Data provider to notify scheme adviser of terms and conditions of supply (4) If the data provider supplies scheme information to an Australian repairer or scheme RTO under this Part, the data provider must, within 2 business days after the supply, notify the scheme adviser, in writing, of the terms and conditions of the supply, including the price for which the information is supplied. Civil penalty: (a) for a body corporate—600 penalty units; and (b) for a person other than a body corporate—120 penalty units. 57CC Scheme information—terms and conditions of supply and use Terms and conditions of supply generally (1) Subject to this section, nothing in this Part prevents a data provider from supplying scheme information under this Part subject to reasonable terms and conditions that do not prevent, restrict or limit the access to, or use of, the information for the purposes of diagnosing faults with, servicing, repairing, modifying or dismantling scheme vehicles. Prohibited terms or conditions (2) However, a data provider must not enter into a contract for the supply of scheme information under this Part that contains any of the following terms or conditions: (a) a term or condition requiring an Australian repairer or scheme RTO to acquire one or more services or products from the data provider or any other person; (b) a term or condition allowing an increase, after the contract is made, in the price for the supply of the scheme information under the contract; (c) a term or condition prohibited by the scheme rules. Civil penalty: (a) for a body corporate—600 penalty units; and (b) for a person other than a body corporate—120 penalty units. (3) A term or condition of a contract for the supply of scheme information under this Part that contravenes subsection (2) is of no effect. 57CD Scheme information—interaction of supply obligations and other rights and obligations Data provider must comply with supply obligations despite existence of other rights and obligations (1) A data provider must comply with an obligation under this Part in relation to scheme information even if such compliance would constitute or result in one or more of the following: (a) an infringement of copyright by the data provider or any other person; (b) a breach of contract in relation to the supply of the scheme information; (c) a breach of an equitable obligation of confidence to which the data provider is subject in relation to the supply of the scheme information. Note 1: Division 4 of Part IVA of the Copyright Act 1968 (which provides that certain uses of material by educational institutions do not infringe copyright) does not apply in relation to scheme information supplied under this Part (see paragraph 113P(1)(b) of that Act). Note 2: A data provider is not criminally responsible for conduct that is justified or excused by or under this Part: see section 10.5 of the Criminal Code (lawful authority). Compensation for third party copyright holders (2) Subsection (3) applies if: (a) a data provider supplies scheme information to an Australian repairer or scheme RTO under this Part; and (b) a person (the third party claimant) holds copyright in relation to some or all of the scheme information that is the subject of the supply; and (c) the supply constitutes or results in an infringement of the copyright of the third party claimant; and (d) apart from this section, the infringement would constitute an acquisition of property otherwise than on just terms (within the meaning of paragraph 51(xxxi) of the Constitution). (3) The data provider must pay to the third party claimant an amount that represents compensation on just terms (within the meaning of paragraph (xxxi) of the Constitution) for the supply of the scheme information to the Australian repairer or scheme RTO. (4) An amount payable by the data provider under subsection (3): (a) is a debt due by the data provider to the third party claimant; and (b) may be recovered by action in a court of competent jurisdiction. (5) In a civil action by a third party claimant against a data provider for infringement of copyright in relation to scheme information supplied, or offered for supply, under this Part, it is a defence if the data provider proves that: (a) the data provider was required to supply the scheme information, or offer to supply the scheme information, under this Part; and (b) the data provider has paid to the third party claimant the compensation required to be paid under subsection (3). Division 4—Information management 57DA Safety and security information—packaging A data provider must, in a scheme offer, separate safety and security information from other scheme information to the extent it is reasonably practicable to do so. Civil penalty: (a) for a body corporate—600 penalty units; and (b) for a person other than a body corporate—120 penalty units. 57DB Safety and security information—supply to Australian repairers and scheme RTOs Supply of safety and security information—restrictions on supply (1) A data provider must not supply scheme information under this Part that is, or includes, safety and security information for a scheme vehicle of a particular make, model and year unless: (a) there are reasonable grounds, based on information provided by the Australian repairer or scheme RTO, to believe that the requirements covered by subsection (2) are satisfied in relation to the scheme information for that vehicle; and (b) the Australian repairer or scheme RTO has provided the required declaration, or declarations, covered by subsection (3) in relation to that vehicle. Civil penalty: (a) for a body corporate—600 penalty units; and (b) for a person other than a body corporate—120 penalty units. (2) The requirements covered by this subsection are that: (a) the safety and security information is solely for use by an individual or individuals: (i) in the case of an Australian repairer—for the purposes of the Australian repairer's business; or (ii) in the case of a scheme RTO—for the purposes of providing an RTO course; and (b) based only on personal information about the individual covered by subsection (6), the individual is a fit and proper person to access and use the safety and security information. (3) The required declarations covered by this subsection are that: (a) if security information is to be supplied—a declaration: (i) confirming that the Australian repairer or scheme RTO is authorised by the owner of the scheme vehicle to access and use the security information for that vehicle; and (ii) specifying the vehicle identification number of the vehicle; and (b) in any case, if the scheme rules prescribe a standard in relation to premises at which work is to be carried out on scheme vehicles of that particular make, model and year—a declaration that the premises used by the Australian repairer or scheme RTO comply with that standard. Fit and proper persons (4) An individual is a fit and proper person to access and use safety and security information if the individual meets the criteria (the prescribed safety and security criteria) prescribed by the scheme rules. (5) For the purposes of subsection (4), different criteria may be prescribed in relation to each of the following: (a) safety information; (b) security information. Personal information (6) For the purposes of paragraph (2)(b), the following personal information about an individual is covered by this subsection: (a) the individual's name and residential address; (b) information about the individual's relationship to the Australian repairer or scheme RTO (as the case may be); (c) the individual's qualifications for using the safety and security information for the applicable purpose mentioned in paragraph (2)(a); (d) a criminal records check about the individual; (e) any other information (except sensitive information) prescribed by the scheme rules relevant to working out whether the individual is a fit and proper person to access and use the safety and security information. Note: This section applies despite section 57CB (which deals with the supply of scheme information on request by an Australian repairer or scheme RTO). (7) The scheme rules may prescribe matters in relation to the circumstances in which personal information covered by subsection (6) may be sought or given. 57DC Safety and security information—use or disclosure of sensitive information Scope (1) This section applies in relation to sensitive information if: (a) the information is about an individual mentioned in paragraph 57DB(2)(a); and (b) the information is obtained by a data provider for the purpose of determining whether the individual is a fit and proper person to access and use safety and security information; and (c) the data provider is a small business operator within the meaning of the Privacy Act 1988; and (d) that Act would not, apart from this section, apply to the data provider in relation to the information about the individual. Note: The Privacy Act 1988 generally does not apply in relation to small business operators, except in relation to certain activities (see sections 6C to 6E of that Act). Application of Privacy Act 1988 (2) Subject to this Division, the Privacy Act 1988 applies in relation to the sensitive information as if the data provider were an organisation within the meaning of that Act. (3) The administration of this section is a privacy function for the purposes of the Australian Information Commissioner Act 2010. Note: See the definition of privacy function in section 9 of the Australian Information Commissioner Act 2010. 57DD Safety and security information—storage of, and access to, sensitive information Scope (1) This section applies in relation to sensitive information if: (a) the information is about an individual mentioned in paragraph 57DB(2)(a); and (b) the information is obtained by a data provider for the purposes of determining whether the individual is a fit and proper person to access and use safety and security information. Sensitive information must be stored in Australia (2) If a data provider holds the sensitive information, the data provider must store the information in Australia or an external Territory. Civil penalty: (a) for a body corporate—1,500 penalty units; and (b) for a person other than a body corporate—300 penalty units. Preventing access to sensitive information outside Australia (3) A person must not do anything that might reasonably enable the sensitive information to be accessed outside Australia by the data provider, or any other person. Civil penalty: (a) for a body corporate—1,500 penalty units; and (b) for a person other than a body corporate—300 penalty units. 57DE Security information—records of access Scope (1) This section applies if a data provider supplies security information about a scheme vehicle to an Australian repairer or a scheme RTO under this Part. Note: For restrictions on the supply of such information, see section 57DB. Record‑keeping requirement (2) The data provider must keep a record of the supply of the security information for a period of 5 years after the day it is supplied, including the following: (a) the time and date of supply; (b) the name and contact details of the Australian repairer or scheme RTO; (c) any personal information used by the data provider to determine whether an individual is a fit and proper person to access and use the security information; (d) the vehicle identification number of each vehicle for which the security information is supplied; (e) details of the security information supplied. Note: For restrictions on the use and disclosure of the information mentioned in paragraph (c), see sections 57DB and 57DC. Civil penalty: (a) for a body corporate—600 penalty units; and (b) for a person other than a body corporate—120 penalty units. Division 5—Dispute resolution 57EA Scope of Division This Division applies to a dispute about the operation of this Part. 57EB Resolving disputes A party to the dispute (the initiating party) may initiate action to resolve the dispute against another party (the responding party) in accordance with the procedure set out in this Division. 57EC Right to bring proceedings unaffected This Division does not affect the right of the initiating party or the responding party to bring legal proceedings, under this Act or otherwise. 57ED Attempt to resolve dispute before mediation (1) If the initiating party wishes to initiate action to resolve the dispute in accordance with this Division, the initiating party must give written notice to the responding party of the following: (a) the nature of the dispute; (b) the matter that is the subject of the dispute; (c) the way in which that matter relates to the application of this Part; (d) what outcome the initiating party wants; (e) what action the initiating party thinks will resolve the dispute. (2) The parties must then try to resolve the dispute.