The right to repair. Ft: Shane Rattenbury MLA

ACT Greens Podcast

I gave a version of this speech to the Inaugural Australian Repair Summit last week and I’d like to share the important issue of the Right To Repair to the online audience now.

This is a really important issue, and one that I’m very passionate about, both as a Minister for Consumer Affairs, but also as a Green and an environmentalist.

The summit had the very specific intent of engaging with Government, policy makers and industry to cover detailed and thorny questions arising from the emergence of the Right to Repair movement in Australia – itself a response to ongoing and large-scale trends.

But I think it’s appropriate to start from a much wider angle in order to better prepare us for zeroing in on the nitty gritty – and perhaps even to suggest a guiding philosophical viewpoint.

I’m actually talking about our essence as human beings.

One of the universal attributes of the human species is our creativity, our inventiveness, our ingenuity. Throughout human history and pre-history, those have been intricate, connected things, both within individuals and across cultures and societies.

You only have to look at ancient crafts like knitting. The earliest surviving pieces of knitting are several socks found in Egypt and dating to between 1000 and 1300 AD.

When I look at these amazing thousand-year-old socks I’m struck not just by how inventive they are in a technical sense…

Like, who first had the idea to use a pair of needles to create these endless interlocking loops? We have no idea. Was it someone just fiddling around with a piece of string and some sticks?

… and not even just by how practical and carefully thought out they are, with proper heel and toe shaping, and tapering calves, and fine cotton yarn.

… I’m struck by how creative and how beautiful they are, in a way that’s entirely superfluous to their practical function. Yet this superfluous beauty is a common factor across a vast proportion of these kinds of artefacts. It suggests not just that knitting these socks was probably important to their creator, but that creativity and what you might call emotional ownership is an integral part of human ingenuity.

We tend to take these kinds of intricate patterns for granted now, assuming a team of sock designers, and complex industrial-scale machinery.

But back then, it would have been an act of personal artistry, combined with the practical inventiveness of knowing how to thread those different coloured strands on the inside of the sock so that they didn’t spoil the pattern.

There’s a whole huge explosion of creativity and invention behind these socks.

Again, we don’t know how long – years or decades or centuries - it took to get from those first awkward loops on two sticks that we can imagine, to flat, clumsy garments, to shaping and patterns like this, but it illustrates another element to the connected nature of human ingenuity – the way ideas spark from one person to the next to the next, like batons passed in a relay, improved upon or reimagined with each pair of hands and eyes, from the first wooden wheels or simple canoes, to an aircraft’s retractable landing gear or a 400-metre-long container ship.

But there’s a paradox at work in our modern civilisation, thanks to thousands of years of this relay of ingenuity.

Most of the stuff all of us use now, we couldn’t make from scratch in a pink fit. In that sense, our own inventiveness as a species has robbed us of ownership of our inventiveness as individuals.

Yet surely such a fundamental human attribute as our creativity and our ingenuity, and our ownership of those things, has to also be considered a fundamental human right – as important for us to access as the right to air and water and shelter and food.

The right to tinker with our stuff, to get it fixed or changed or improved, to manage it how we want, make it last as long as we can.

The right to get it repaired.

Which gets us to the point we’ve arrived at now.

It’s not only the complexity of current technology that robs individuals of the kind of connection to our things and the ownership of ingenuity that I’ve been talking about, it’s corporate behaviour and existing gaps or imbalances in our laws.

I’m sure I don’t need to spend a lot of time detailing what is happening, or why it’s a problem from multiple perspectives – proprietary service manuals that make it impossible for independent repair businesses to do their work, companies that simply don’t make available the replacement parts for their products, warranties that are voided if a consumer or independent repairer so much as unscrews a backplate.

As the ACT’s Minister for Consumer Affairs from November 2012 until late last year, I’ve been working on this issue for a number of years, and as a political party the Greens both federally and in the ACT have been aware of it for some time as well.

Just now, I focused on the fundamental and rather abstract right of human beings to express – and own - their inventiveness, but specific consumer rights around products they’ve purchased are also crucial.

As a matter of principle, consumers should be able to use an independent repairer or access the resources needed to repair a product themselves.

Further - and very much a central concern of environmental and green groups worldwide - with our species now consuming far more of the world’s resources than the planet can handle, preserving resources and reducing waste have become existential needs.

E-waste is the fastest growing waste stream in Australia – growing three times as fast as other municipal waste. The average Australian household generates 73 kilograms of it annually, while globally the total figure is more than 50 million tonnes a year. We’re not disposing of it properly, and we’re squandering resources – lithium, tellurium, copper - that will eventually run out.

The deliberate shortening of a product’s lifespan – planned obsolescence - by refusing to supply component parts or discontinuing software updates needs to be countered. Companies and manufacturers might like it; ordinary people hate it. They want to purchase a washing-machine or a laptop knowing it will last many years and that it can be repaired.

The growth of grassroots efforts such as repair cafes speak to our hunger to move away from the throwaway culture that commercial interests have pushed us towards. The Bower, a registered charity committed to reuse and repair, now has four locations in Sydney and a whole range of activities from donation and collection services to repair cafes to and e-tool library and a Tiny House Building course focused on using recycled and reclaimed materials, extending the lifespan of all sorts of things in inspiring ways.

We’ve seen some egregious conduct at the corporate level. As of February this year, American company John Deere was still failing to honour its agreement to voluntarily make its repair tools, software guides and diagnostic equipment available to ordinary farmers.

The push for the Right to Repair is no longer simply happening at the grassroots level. Government recognition of the problem is building.

Last month the Australian Government Productivity Commission released its draft report assessing the need for Right to Repair laws in Australia, with “a focus on whether consumers face any unnecessary barriers to repair that require a government policy response.”

The short answer, of course, is that most of us here today think they do face those barriers, and a government policy response is required. The perspective of manufacturers does need to be considered, of course, but we also need to be a bit cynical when there’s a push from certain companies to treat this purely as a matter of security and IP protection, when in fact to a large degree their motivation is rent-seeking.

We also have justification for being cynical about corporations that promise to police themselves. I’m not going to name any particular companies, but there have been examples of companies voluntarily undertaking to make software and repair manuals available and then arguing that this undertaking meant that right-to-repair legislation was unnecessary. Years later the problem continues, and we can see that these companies were simply kicking the can down the road.

In the ACT, we’re already well ahead of the Productivity Commission’s report in our own thinking. In fact, I’m quite proud to say that our small jurisdiction is the one that has pushed this issue along, including precipitating the Commission’s report.

On the ACT’s initiative, the Consumer Affairs Forum in 2019 pushed for an examination of potential policy options to address the issue, and a formal referral to the Productivity Commission was the Forum’s recommended outcome.

As noted, this is only a draft report from the Productivity Commission, and I’m sure you’re aware that there is opportunity to make submissions towards the report’s final version. For anyone who doesn’t know, the deadline for this is the 23rd of July – so only two weeks away.

The report rightly notes the complexity of these issues and the need to balance conflicting interests. I do urge any of you, especially those with particular areas of specialisation or unique insights, to make a submission.

Meanwhile, here in the ACT we already have new initiatives ready to launch as a result of the work we’ve done to date. In August, consistent with the Commission’s recommendation, the ACT’s new enforceable conciliation will commence.

On its own, this is already a positive outcome, and if it can be supported by new legislation such as the Productivity Commission’s recommendations for a “super complaint” mechanism, and for the ACCC to develop and publish estimates for how long certain products can reasonably be expected to last – in other words, pushing back on planned obsolescence - it should become a powerful tool for consumers and consumer advocacy groups.

One of the most significant areas that needs the appropriate balance is the current clash between intellectual property rights and the right of consumers and independent repairers to access repair information.

On the one hand, manufacturers consider some of this information to be proprietary in nature, and making it more accessible could impact on the willingness of companies to invest in innovation, particularly in areas such as video and on-line gaming.

In some areas, however, there can also be safety and other concerns resulting from the use of information by unskilled repairers.

On the other hand, there surely needs to be some kind of positive obligation on manufacturers to make repair supplies and information available to third parties. The Commission is specifically calling for input on this concept of “positive obligation”.

There also needs to be an overhaul of the language used in warranty agreements, to prevent a warranty being voided – or in some cases to prevent the consumer from wrongly believing that the warranty will be voided - if they use an alternative repairer.

With regard to e-waste, various Australian governments have addressed concerns through product stewardship schemes such as the National Television and Computer Recycling Scheme – the NTCRS. As the situation stands, however, there is little incentive for these schemes to do anything other than recycle collected e-waste. This is resulting in otherwise functional products being dismantled and destroyed for their component materials, rather than being put to higher value uses through repair and resale.

The Commission is seeking evidence on whether product labelling standards would provide net benefits to the community, and how the government and industry might jointly approach such a scheme.

The Commission has also recommended that the Australian Government should amend the NTCRS to include repair and reuse as an option.

I think the Productivity Commission has done good work and I genuinely thank them for the ongoing effort on this really important and potentially transformative issue.

I will make one additional comment about their draft, and their current recommendations.

That is the fact that their analysis and recommendations seem quite focused on the end product, and potential solutions for consumers at the end of the line. That is, what can a consumer do when they inevitably have a product that lacks the longevity or transparency that they deserve. That’s fine, but how can we change this paradigm of consumers receiving such products in the first place? How can we stop manufacturers making products that leave the onus on the consumers to seek end-of-the-line solutions?

I would like to see more work and more focus on the beginning of the production line, not the end. What obligations should we be placing on the producers of the things we use, to meet certain standards before they can be sold, imported, manufactured in Australia? Standards around transparency and repairability - qualities that should just be a default for consumers? Of course it’s a thorny area in this ‘free market’ world, but I think that manufacturers need further scrutiny, possibly more regulation, even if it is just for certain key products where repairability and transparency standards have truly dropped away. Campaigns around the world have identified some of these – things like farm equipment, smartphones, and major electrical and white goods.

But now I want to circle back briefly to where I started. The socks.

It’s easy in this kind of area to get lost in the niceties of corporate responsibility and consumer legislation. And in fact that’s important. That’s our job.

But as we work on those things today and in the future, let’s try to remember, when we can, this broader idea that human ingenuity is an essential part of our nature…

… and that all human beings have a right to express and use it.

I think it will help us navigate this space more thoughtfully, and come up with solutions that work. I wish you every success at this summit in finding solutions and advancing this important cause.