AUSTRALIA’S mandatory automotive Right to Repair laws are facing their first Federal Court test, with the competition regulator alleging Subaru Australia failed to give independent workshops the same practical access to diagnostic software and repair information enjoyed by its franchised dealers.

The Australian Competition and Consumer Commission (ACCC) has commenced proceedings against Subaru (Aust) Pty Ltd alleging breaches of the Motor Vehicle Service and Repair Information Sharing Scheme (MVIS) between July 1, 2022 and August 31, 2024.

It is the first court action brought by the regulator under the scheme since MVIS became mandatory four years ago, potentially making the case an important precedent for manufacturers, dealers, and thousands of independent repair businesses.

The ACCC alleges Subaru failed to offer independent repairers the same repair software and technical information it supplied to affiliated dealers, in some instances providing only a remote-assistance alternative that required additional hardware.

It further alleges Subaru offered certain information only through annual subscriptions rather than also making daily, monthly, or repairer-nominated periods available, and failed to supply requested information to two independent repair businesses within the required timeframe – or at all.

Subaru Australia told GoAutoNews Premium that

we are aware of the ACCC’s announcement. We have fully co-operated with the ACCC with relation to this matter. As this is ongoing, Subaru Australia is unable to provide any further comment at this stage.” 

The claims have not been tested by the Federal Court and no finding has been made against Subaru Australia.

“We allege Subaru Australia failed to comply with the Motor Vehicle Service and Repair Information Sharing Scheme, which is designed to promote competition between Australian car repairers,” said ACCC commissioner Luke Woodward. 

“As a result, consumers may have been unable to use an independent, local, or family-run repairer rather than using Subaru’s dealerships.

“This is the first court proceeding the ACCC has taken for alleged breaches of the service and repair information sharing scheme.”

The ACCC is seeking declarations, pecuniary penalties, costs and other orders.

The case reaches well beyond Subaru because it is likely to examine what constitutes genuine and equivalent access to vehicle software under legislation designed expressly to prevent independent workshops being disadvantaged as cars become increasingly software dependent. 

Under MVIS, a manufacturer or other data provider that supplies service and repair information to one Australian repairer must generally offer the same scheme information to all Australian repairers on fair and reasonable commercial terms. 

The legislation covers information required to diagnose, service and repair vehicles, including software updates and computerised vehicle systems. Certain core breaches of those information-sharing requirements can attract penalties of up to $10 million per contravention for a corporation. Dealers versus independents

The ACCC’s Concise Statement provides considerably more detail on how it alleges Subaru’s system operated. 

According to the regulator, Subaru dealerships were supplied with diagnostic and programming software including SSM3, SSM4, SSM5R, FlashWrite, and GTS+, generally through laptops pre-loaded with the software and accompanied by a vehicle communication interface allowing connection with Subaru vehicles.

Dealers therefore had continuing access to the software for diagnosis, repair, and vehicle programming.

The regulator alleges independent workshops did not receive equivalent access.

During part of the period under investigation, Subaru instead offered a remote-assistance service through which a Subaru technician could remotely update software in a customer vehicle. 

The ACCC argues that such an arrangement did not amount to supplying the underlying software to the independent repairer in the same way it was supplied to dealers.

More significantly, the regulator alleges the restrictions were such that no independent repairer ultimately obtained the relevant software from Subaru Australia during the period examined.

The court material also provides specific examples of workshops attempting to obtain access.

Independent repairer Smart AVR required Subaru’s SSM4 software to diagnose vehicles and repair or recalibrate components. 

According to the ACCC, Smart AVR employee Garth Cross requested SSM4 on June 19, 2024 and paid $2607 through the Right to Repair portal.

The regulator alleges that eight days later a Subaru employee advised that the diagnostic tool being sought was unavailable and that the software Subaru could provide would not offer the diagnostic and calibration capability Smart AVR required.

Subaru subsequently refunded the $2607 without supplying SSM4, according to the ACCC.

The second repairer identified in material surrounding the proceedings is automotive-glass specialist O’Brien, making the issue particularly relevant to the increasingly important field of advanced driver assistance system (ADAS) calibration.

Modern windscreens can incorporate forward-facing cameras and other sensors forming part of autonomous emergency braking, lane support, and related safety systems, meaning windscreen replacement may now require manufacturer-specific diagnostic and calibration procedures.

O’Brien itself warned the federal government in July that restrictions around manufacturer data could inhibit the aftermarket’s ability to complete such repairs as vehicle technologies become more sophisticated.

That example highlights one of the key issues the Subaru case may ultimately help clarify – whether providing a workaround or remote service satisfies Right to Repair requirements when a franchised workshop has direct access to the relevant software.

‘A right on paper is not enough’ 

The Australian Automotive Aftermarket Association (AAAA), which campaigned for mandatory Right to Repair legislation for more than a decade, has described the Subaru proceedings as a landmark moment.

AAAA chief executive officer Stuart Charity said practical access – rather than simply nominal availability – was fundamental to the legislation.

“The whole purpose of this law is simple: if a dealer can access the information required to service and repair a vehicle, an independent repairer must also be able to access it, on fair and reasonable commercial terms,” he said.

“Having a right to information on paper is not enough. The information has to be available in a form, at a price and within a timeframe that allows an independent workshop to use it. 

“Independent repairers cannot compete fairly if access involves unnecessary hardware, restrictive subscription arrangements, delays, or workarounds that are not imposed on the dealer network.”

Mr Charity said enforcement was central to maintaining confidence in MVIS, particularly given the investment independent workshops have made in equipment, diagnostic hardware, software, and technical training.

AAAA CEO Stuart Charity

“Australia was one of the first countries to introduce a comprehensive mandatory Right to Repair law for the automotive industry,” he said.

“That was a major achievement, but any law is only as effective as its enforcement.” 

The Motor Trades Association of Australia has likewise welcomed the ACCC action, saying meaningful compliance and accountability were necessary if the framework was to preserve competition and consumer choice.

A decade-long argument

The origins of the present proceedings stretch back well before MVIS commenced.

The ACCC’s 2017 New Car Retailing Industry Market Study found continuing problems with the breadth, depth and timeliness of technical information supplied to independent repairers under what was then a voluntary system. 

The regulator concluded that many manufacturers did not provide independents with the same level of technical information as their franchised or preferred repair networks and recommended regulatory intervention requiring information to be shared on commercially fair and reasonable terms. 

Subaru itself participated in that inquiry.

In a November 2016 submission to the ACCC, Subaru Australia said it made repair and service information available to both authorised dealers and independent repairers under the industry’s voluntary information-sharing arrangements.

It stated that independents would be granted access to Subaru repair and service information at a “reasonable price” and said it was developing a project to make Subaru information more broadly accessible.

At the time, Subaru said repair and service information and body-repair methods were “readily available” to independent businesses, although much of the repair information was accessed through the authorised dealer network.

That historical position does not establish whether Subaru subsequently complied with the mandatory scheme introduced in 2022, but it underlines just how long access to manufacturer technical information has been contested.

The shortcomings identified by the ACCC in 2017 ultimately led to legislation establishing MVIS, which commenced on July 1, 2022 as Australia’s first formal Right to Repair law.

It applies to passenger and light-commercial vehicles and requires manufacturer information necessary for diagnosis, servicing and repair to be made available to eligible Australian repairers and registered training organisations.Honda was the warning 

Subaru is not the first manufacturer to face ACCC enforcement under the scheme, but it is the first taken to court.

As previously reported by GoAuto Premium, Honda Australia paid an $18,780 infringement notice in September 2024 after the ACCC alleged it offered its i-HDS diagnostic software to independent repairers only through annual subscriptions.

The regulator alleged Honda should also have offered daily and monthly access, allowing workshops to purchase the software for periods matching their actual commercial requirements.

Honda subsequently introduced shorter subscription periods and said the earlier limitation had primarily resulted from technological constraints.

Payment of an infringement notice did not constitute an admission of wrongdoing.

At the time, the ACCC warned that it was conducting broader compliance checks and that serious non-compliance could result in Federal Court action. 

The Subaru proceeding demonstrates that warning has now been acted upon.

Reform already under way

Its timing is particularly significant because the federal government is simultaneously considering changes to MVIS.

Treasury’s statutory review, released in February, concluded the scheme was broadly achieving its objectives by improving repairer access, consumer choice and competition.

The government said the scheme had been associated with an estimated $2.4 billion annual increase in automotive repair-sector turnover, while independent workshops reported improved capability, productivity and profitability. 

However, the review also identified practical shortcomings around hardware, pricing, information supply, increasingly complex vehicle technology, and other areas requiring improvement.

As reported by GoAutoNews Premium, the government subsequently opened consultation on targeted reforms intended to make OEM information cheaper and easier for independents to obtain while ensuring the legislation keeps pace with technological change.

The consultation, which closed in July, specifically considered supply timeframes, pricing and fair-market-value rules, electronic logbooks, safety and security information, intermediaries, governance and enforcement. 

The AAAA argues that the Subaru proceedings demonstrate why those reforms must retain a practical test of accessibility.

“The test must always be the same – Can an independent repairer genuinely obtain and use the information required to fix the customer’s car?” said Mr Charity.

“Australian motorists deserve the freedom to choose who services and repairs their vehicle, and that choice only exists when independent repairers have fair and equal access to the information they need. 

The Federal Court will ultimately determine whether Subaru’s arrangements breached those requirements.

But irrespective of the eventual result, the proceeding represents the first time Australia’s four-year-old Right to Repair regime will be subjected to detailed judicial scrutiny.

For every manufacturer, dealer and independent workshop operating in an increasingly software-driven vehicle market, the interpretation that emerges could prove considerably more important than the Subaru case alone.