By Alex Sims

Legislative changes must be made quickly to avoid New Zealand becoming a dumping ground for products unable to be sold overseas.

In 2017 each person in New Zealand generated around 20.1 kg per year of e-waste, most of which was not recycled. As e-waste only means products with a plug or a battery, the number of products going to landfill each year is extremely high.

Repairing products rather than rubbishing them does more than simply minimising landfill waste. It also reduces the extraction of the earth’s precious resources, the health costs of heavy metals and other compounds in toxic rubbish, and the CO2 emissions in the recycling of unwanted or broken products and the production and distribution of new ones. Just extending the life of all washing machines, notebooks, vacuum cleaners and smartphones in the EU by one year is the equivalent of removing two million cars from the roads. The right to repair is therefore a climate issue.

The right to repair has been debated internationally for many years, including the US, where 25 states are considering enacting right to repair laws. The Australian Productivity Commission has just concluded its inquiry into the right to repair and the UK’s right to repair law is already in operation.

A right to repair would include the following:

  • Products can be repaired and modified using common tools
  • Parts are available at reasonable prices
  • Ability to choose repairers and repair cafes are supported
  • Free and accessible information to repair products including manuals, schematics and other guides and easy availability of diagnostic tools.

A number of laws require amendment and new rights created. The first is the Consumer Guarantees Act (CGA). The CGA allows businesses to evade the requirement of ensuring the availability of spare parts if they inform the consumer at the point of sale. This loophole must be removed. Also, the Commerce Commission must be able to take action against businesses who fail to ensure a supply of reasonably priced spare parts. The Commerce Commission should also have the power to intervene if parts are prohibitively expensive, including allowing others to manufacture those parts.

Next, allow customers to choose repairers so they are not forced to use expensive authorised repairers. Repairs, however, may still be expensive. Austria has implemented a system where the government pays for part of the cost of repair. The New Zealand government and councils should encourage and provide funding for repair cafes, where people can take their products to get fixed by local experts and learn skills along the way.

The cost of authorised repairers and expensive parts is exemplified in Australia where car dealers make over 85 percent of their profits by repairing, servicing cars and selling spare parts, compared with seven percent for selling new cars.

Some businesses require the payment of a refundable fee when assessing whether the repairs fall under the CGA. The charging of such fees must be banned as they discourage many from attempting to exercise their rights under the CGA.

Currently under the CGA if a product has a minor defect the supplier can choose whether to repair, replace or refund the purchase price. Consumers should have the right to insist that products are repaired, rather than replaced or the purchase price refunded.

Amending the CGA will not be enough; however, other changes are also required. For example, manufacturers must be required to make available detailed, manuals, plans and schematics. Also, it should be a requirement that repairs can be done using common tools as is the case in the UK.

More pernicious and wasteful are products designed and manufactured so they cannot be repaired. For example, products where components are glued together. In France such products will be banned and New Zealand should follow this example. Products can be redesigned to be repaired.

Access to diagnostic tools is also required, otherwise sometimes simple faults cannot be repaired unless the product is sent back to the manufacturer or expensive authorised dealers with exclusive access to those tools.

It is often difficult to tell prior to purchase whether a product can be repaired. France now requires manufacturers to use a rating system, similar to energy ratings systems used for some appliances. The rating system is calculated using the ease of repairability and availability of repair documentation, the price and availability of spare parts and other measures that will depend on the product type. Also, a durability index for the product’s reliability and robustness. Consumer NZ has recognised the importance of product reliability and has added durability to its testing criteria.

Copyright law too requires change. New Zealand may soon extend its term of copyright protection due to the UK free trade deal, if it does alter the duration of copyright the changes below can be done at the same time.

The first change would be to allow people to post online and print service manuals and other information that would aid repairs if the manufacturer had failed to do so without infringing copyright. Second, the removal of some of the protections surrounding technology protection measures (TPMs) is needed. TPMs serve as digital locks and can be used to prevent the repair of products if they contain computer code. The impact of TPMs on the ability to repair has been recognised in the US, with an exemption being granted that enables the repair of smartphones, tractors, cars, smart home appliances, and some other devices. New Zealand must go further and allow the repair of any product without infringing copyright law.

In addition, people should be able to unlock, adapt and modify their products. Particularly when the manufacturer stops supporting the product. Also take a smart fridge programmed to automatically order goods from a certain supermarket chain. The fridge’s owner should be entitled to reprogramme it to change the supermarket to which the order is sent.

While the proposed changes will help combat climate change and preserve resources, they may increase the prices of some products, especially if products that are unable to be repaired cannot be sold. However, as the products that are sold can be repaired, there would be more affordable products second-hand available for those who need them.

Legislative changes must be made quickly to avoid New Zealand becoming a dumping ground for products unable to be sold overseas. Fortunately New Zealand has considerable overseas experience to draw upon and can therefore be a fast follower. Also, politicians and others must be mindful of powerful actors lobbying to prevent law changes, as they have done in other jurisdictions. In addition, winning the right to repair will not by itself led to more products being repaired: a cultural shift to fixing instead of buying is required. For example, if a faulty product is covered by the CGA many consumers prefer to have it replaced rather than repaired.

What can you do? A good first step is to sign the Repair Café Aotearoa New Zealand’s petition, which calls on the Minister for the Environment, Hon David Parker, to bring in ‘right to repair’ measures. Next, consider repairing rather than buying new, and if it is something with a plug or a battery and cannot be repaired, take it to an e-waste recycler.

Alex Sims is an Associate Professor in Commercial Law at the University of Auckland. She is an expert in consumer law.

Disclaimer: The ideas expressed in this article reflect the author’s views and not necessarily the views of The Big Q. 

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