16 October 2023

Consumer Protection's view on odometer tampering

The Motor Trade Association WA and a number of dealers have asked the Commissioner for Consumer Protection for a position statement in relation to the winding back of odometers when they detect a vehicle has been fraudulently tampered with. The purpose of this bulletin is to assist dealers who have acquired vehicles that have had their odometers tampered with. The Commissioner recognises it is currently difficult to accurately validate an odometer reading, but dealers should use every endeavour possible to try to ensure accuracy.

The Commissioner views odometer tampering as an important safety issue. She wants to ensure consumers fully understand the history of the vehicles they purchase. Taking action against those who fraudulently tamper with odometers is an operational priority.

The Commissioner considers odometer tampering cases under s45(1) of the Motor Vehicle Dealers Act 1973 (WA) (MVDA) and s151(1)(a) of the Australian Consumer Law (ACL). Breach of either of these provisions is a criminal offence. Dealers should be aware that while the ACL applies throughout Australia, different state laws will apply outside Western Australia, depending on the connection the vehicle sale has to that state.

Section 45(1) of the MVDA sets out a number of offences, of which the offences at (a) and (aa) are most relevant. These relate to altering an odometer and representing a false odometer reading, respectively. For an offence or breach of the law to be established, the relevant behaviour must be undertaken wilfully and with intent to deceive another person. The Commissioner’s view is the offence will only be committed where the behaviour is both intentional and designed to deceive another. However, the MVDA imposes strict liability on dealers, and so absent proof to the contrary, it will be presumed that when a vehicle is offered for sale with an incorrect odometer by a dealer, the dealer was wilfully involved in the alteration.

Section 151(1)(a) of the ACL makes it an offence for a trader to make a false or misleading representation that goods have a particular history. An odometer reading is a representation about a vehicle’s history. Any representation contrary to fact can be false and the offence can be committed even where a trader acts without an intent to deceive. The Commissioner will only take proceedings where it is in the public interest to do so.

It is likely the trader has acted in compliance with the law if:

• the trader has taken all reasonable steps to ascertain the true odometer reading
• re-sets an odometer forward to the reading that most accurately represents the true position
• has been fully transparent with a purchaser about all actions taken
• obtains the purchaser’s written informed consent to purchase the vehicle with the altered odometer and
• notifies the Commissioner.

Dealers should note that private rights of action are still available to consumers for remedies under the ACL.

Dealers are expected to report cases of odometer tampering and provide relevant evidence to Consumer Protection on 1300 30 40 54 or via email to automotive@demirs.wa.gov.au.