Source: Allens Insights (legal sector)
Regulation and scrutiny set to intensify 11 min read
Whether it be consumer guarantees or vehicle emissions, the automotive sector continues to be highly regulated, and the target of scrutiny from regulators and private litigants alike. In this Insight, we reflect on some of the key issues facing the sector.
Class action risk regaining momentum
In recent years, the automotive sector has been a prominent target of class actions, with multiple claims filed each year. However, the rate of new claims noticeably stalled in mid-to-late 2023. Although there were eight claims in 2023, seven of these were filed by May.
In our 2024 Class Action Risk Report, we suggested that class action promoters may have been adopting a ‘wait and see’ approach, pending the High Court’s guidance in the Toyota and Ford proceedings on the availability of ‘reduction in value damages’ for breaches of the acceptable quality guarantee under section 272(1)(a) of the Australian Consumer Law (the ACL). This form of damages has been a mainstay in previous automotive class actions and a substantial driver of significant damages awards.
The High Court provided that guidance late last year. As reported previously, it held that reduction in value (RIV) damages are a ‘performance based remedy’, reflecting the monetary difference between the value of what the consumer bargained for and what they ultimately received. The majority found that RIV damages are to be calculated as the amount by which the value of the goods was reduced by the failure to comply with the guarantee at the time of supply, with regard to ‘all that is known at the time of trial about the “state and condition of the goods”‘. Accordingly, the assessment includes consideration of both the nature of the defect, and the likely availability, timing, effectiveness, cost and inconvenience of any repairs.
Automakers can find welcome relief in this decision because the High Court’s approach gives recognition to ‘field actions’ carried out by manufacturers in reducing their liability. However, depending on the seriousness of the defect and/or how long it takes to repair, manufacturers’ potential exposure to damages may still be considerable.
It remains early days in assessing how class action promoters may respond to the High Court’s decision. Even so, there are initial signs that automotive class action filings may be regaining momentum, with two new claims filed in the past few months.
Changes to dealership operating models
Recent years have seen a number of Australian automakers consider, and implement, changes to their distribution models—away from a traditional dealer structure and towards an agency arrangement. Under this change, instead of dealers purchasing cars from automakers and onselling them to customers at a mark-up, they act as agents and sell cars on the automaker’s behalf (generally at an agreed price and in exchange for commission).
While an agency approach gives automakers far more control over pricing and margins, the transition has been opposed by many franchisees, who fear a loss of profitability and goodwill in their business. Following Mercedes-Benz’s implementation of an agency model between 2016 to 2020, 38 of its 49 dealers commenced a class action alleging the loss of A$650 million in expropriated goodwill.
We have now seen two distribution model changes litigated through the Australian courts—Mercedes-Benz (referred to above) and Honda Australia, which restructured its dealership network in 2020. While Mercedes-Benz emerged (relatively) unscathed, Honda had mixed success before different courts, and the two cases provide a helpful illustration of the current state of the law. Importantly, the decisions confirm that:
- automakers are generally entitled to change their business models in the interest of improving profitability (even where it causes financial loss to their dealers); and
- there is no current right under Australian franchising laws for a franchisee to be compensated for any loss of goodwill upon the non-renewal of a franchise agreement.
With that said, in implementing any changes to distribution models, automakers should be very careful to honour existing contractual relationships and avoid misrepresentations or inaccurate statements. Compensation may be available where automakers eg :
- terminate dealership agreements early, and without a contractual right to do so;
- inform dealers they will be no worse off under a new model without a proper basis; or
- represent to customers that former authorised dealers can no longer service their vehicles, when this is inaccurate.
The Mercedes-Benz and Honda cases concerned restructures that occurred before 2021, when the Franchising Code was amended to codify a compensation mechanism in circumstances where a motor vehicle franchisor terminates dealership agreements early. This regime will continue to apply under the new Franchising Code (see below). It will be interesting to see—in light of these decisions and the reforms to the Code—whether other automakers decide to follow in Mercedes-Benz and Honda’s footsteps.
New Franchising Code on the way
The Federal Government has now legislated a new Franchising Code of Conduct, which will take effect on 1 April 2025 and replace the current version of the Code, which is due to ‘sunset’.
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For motor vehicle franchisors, the changes in the Code will start applying on the following dates:
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Automakers will need to make some changes to the standard form of their dealership agreements, and a new form of disclosure document is required to be created.
The new Code contains very few surprises for industry players who have been following its progress, as it largely aligns with the recommendations of the Independent Review released in February 2024 and the Exposure Draft released in October 2024.
For automakers, it is important to note that the new Code has retained, without substantive changes, the provisions relating to compensation where a franchisor terminates dealership agreements early (with the changes proposed in the earlier Exposure Draft not implemented). The new Code also retains the obligation on motor vehicle franchisors to ensure that dealership agreements give franchisees a reasonable opportunity to make a return on their investment.
The following reforms in the new Code are relevant to automakers who distribute through dealership or agency networks in Australia:
- Inclusion of service and parts agreements: The new Code includes a revised definition of ‘motor vehicle dealership’, which expressly captures ‘any servicing or repairing of motor vehicles’ conducted by dealers, or associated with a dealership agreement, where the dealer buys, sells, exchanges or leases motor vehicles.
This change aligns the statutory definition with judicial interpretation of the Code in the AHG v Mercedes-Benz case.1 It is broadly designed to prevent franchisors from structuring contracts with dealers so as to exclude service and repair work from the Code’s application, while ensuring that pure service and repair franchise businesses are not subject to obligations specific to ‘motor vehicle dealerships’.
- Simplification of termination rights for franchisors: In relation to a limited set of serious termination events—eg the franchisee ceasing to hold a licence it needs to carry on the business, being deregistered as a company, or being convicted of a serious offence—the franchisor will be entitled to include in its franchise agreements a right to terminate on seven days’ notice, and the franchisee will not be permitted to raise a dispute under the alternative dispute resolution mechanism for such termination.
- Disclosure obligations: The new Code no longer requires franchisors to provide a key facts sheet to franchisees, separate from the disclosure document. Existing franchisees will be entitled to opt out of receiving disclosure documents, and also the 14-day cooling-off period, at the time of renewal or extension of the franchise agreement.
- Civil penalties apply to all substantive obligations: Whereas in the existing Code, only a limited number of substantive obligations will attract a civil penalty if breached, under the new Code, all substantive obligations will attract civil penalties if breached.
Outside of the new Code, the Government has legislated to empower the ACCC to issue infringement notices with penalties at the upper end of what is currently available under the ACL (ie $19,800 for a body corporate).
The New Vehicle Efficiency Standard begins to bite
With the New Vehicle Efficiency Standard Act 2024 (Cth) (the NVES Act) taking effect at the start of this year, and the accumulation of the associated units and penalties commencing on 1 July 2025, the new standard is now kicking into gear.
The NVES Act forms a central part of the Government’s National Electric Vehicle Strategy, which aims to promote Australia’s transition to a decarbonised transport system by providing a national framework to enhance the supply of, and access to, electric vehicles. Under the NVES Act, suppliers are incentivised to uptake more fuel-efficient, low or zero emission vehicles (including electric vehicles) through the following mechanisms:
- Suppliers of new light vehicles into the Australian market are required to keep CO2 emissions below annual emissions targets calculated based on the emissions and weight of vehicles sold. Stricter emissions targets are imposed for ‘Type 1’ vehicles (eg sedans and hatchbacks) than ‘Type 2’ vehicles (eg vans and utilities, and larger SUVs). The emissions targets of both vehicle types are expected to become more stringent over time.
- Central to the statutory regime is the concept of ‘Interim Emission Value’ (IEV), which measures the emissions performance of each supplier’s covered vehicles for a given year against the annual emissions targets set for the relevant vehicle type.
- Suppliers whose average fleetwide emissions fall below legislative targets (and therefore generate a negative IEV) will accrue tradeable ‘units’ or credits that can be sold to or purchased by other suppliers, and will be valid for up to three years.
- By contrast, suppliers that exceed their emissions targets (and therefore generate a positive IEV) may be liable for civil penalties, although liability will not crystallise immediately. Suppliers will have two years to bring their IEV down to zero, and can do so either by generating sufficient units themselves to meet any shortfall (ie by importing more fuel-efficient vehicles) and/or by purchasing units from other suppliers.
If the supplier’s IEV has not been fully offset at the end of this period, the supplier will be liable for a civil penalty calculated at the scale of $100 for every gram of CO2 per kilometre of the supplier’s IEV that has not been offset. As the penalty regime applies to each covered vehicle, there is potential for significant fleetwide penalties, presenting a substantial new regulatory risk for automakers importing new vehicles into Australia.
NGOs play a growing part in the enforcement of greenwashing claims
We continue to see non-government organisations (NGOs) playing an increasingly prominent role in highlighting alleged instances of greenwashing by automakers, often with the dual aims of raising public awareness and agitating for regulatory enforcement action.
Recent examples of this phenomenon are widespread. In 2023, the Environmental Defenders Office (EDO), an Australian environmental legal centre, published a report assessing climate-related claims made by the largest automotive companies in Australia. Most significantly, the report alleged that almost all automakers had made exaggerated climate-related claims, particularly by misleadingly comparing hybrid vehicles to ‘lower emitting electric vehicles’.
To similar effect, United States-based advocacy group Ekō published a report in 2024 reviewing one automaker’s online marketing of its electrified vehicle line. The report surveyed 23 jurisdictions, including Australia, and alleged (among other things) that the automaker had misled consumers by using words such as ‘electrification’ on its website to describe hybrid, plug-in hybrid and hydrogen fuel cell vehicles. The automaker was said to have capitalised on growing electric vehicle demand to sell more of its hybrid (and allegedly polluting) vehicles.
Ekō urged regulators worldwide, including the ACCC, to investigate its findings and those contained in EDO’s 2023 report, highlighting the growing relationship between NGOs and regulators in the enforcement of greenwashing claims.
Data, privacy and cyber risk
In May 2024, it was reported the Office of the Australian Information Commissioner had commenced an inquiry aimed at ensuring that connected vehicles purchased in Australia protected sensitive personal data.
While details of the inquiry have not been released, the Privacy Commissioner, Carly Kind, has stated that ‘cars are now [a] kind of computers on wheels’ that collect a lot of personal information and there is ‘not a lot of transparency or understanding about how that data is being used’.
Whether this inquiry becomes public remains to be seen, but it contributes to growing public and media attention on the auto industry regarding privacy and data security issues, following several recent high-profile data breach incidents—as well as various studies released over the past several years that have been highly critical of the privacy compliance of connected vehicles. Privacy advocates have also raised concerns around intrusive surveillance made possible through connected services.
These trends in the auto sector reflect the broader scrutiny being placed on privacy and large-scale data use, in the context of a number of pieces of law reform in late 2024, such as:
- material changes to the Privacy Act 1988 (Cth), including expanding enforcement options— further tranches of reform to the Privacy Act are expected this year; and
- whole-of-economy changes to cyber security laws, with the passage of the Cyber Security Act 2024 (Cth). While vehicles have been largely excluded from the new cyber standards for connected products under this Act, it will have broader ramifications, and cyber standards for manufacturers remain a key area of risk.
We anticipate that car manufacturers and auto financiers will come under increasing privacy and cyber scrutiny, given the volume and potential sensitivity of data collected at scale through connected vehicles. We will be providing an in-depth look into these issues in a future Insight.
Consumer law reforms
There is momentum building for consumer law reforms that, if introduced, could significantly affect the automotive sector. Among other things, the Government signalled its commitment late last year to a suite of reforms including to the consumer guarantees in the ACL, and the introduction of a prohibition on unfair trading practices.
The proposals to strengthen the consumer guarantees were set out in a Consultation Paper released in October 2024 for feedback. The paper cited evidence that for high-value goods, and vehicles in particular, consumers find it difficult to obtain a remedy for breaches of the consumer guarantees. The proposed reforms include:
- clarifications to the meaning of a ‘major failure’ under the ACL;
- introduction of a new prohibition on suppliers refusing to provide remedies to consumers for a major failure;
- introduction of a prohibition on manufacturers failing to indemnify suppliers; and
- civil penalties for contraventions of the above.
Treasury is expected to publish a Decision Regulation Impact Statement that will set out the Government’s preferred options in relation to these proposals.
Separately, the Government has outlined proposals for a new prohibition on unfair trading practices. This prohibition would target conduct that might not meet the ACL thresholds for misleading or unconscionable conduct, but nonetheless causes consumer detriment through the distortion or manipulation of consumer choices (eg online pressure tactics). A Consultation Paper from November 2024 set out proposed general and specific prohibitions in this regard, and a Decision Regulation Impact Statement is now also anticipated, furthering these proposals.
