Commonwealth of Australia Explanatory Memoranda Commonwealth of Australia Explanatory Memoranda[Index] [Search] [Download] [Bill] [Help]
2016-2017-2018
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
ROAD VEHICLE STANDARDS BILL 2018
ADDENDUM TO THE
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Urban Infrastructure and Cities
the Hon Paul Fletcher MP)
Road Vehicle Standards Bill 2018
This addendum responds to concerns raised by the Senate Standing Committee for the
Scrutiny of Bills in the Scrutiny Digest No.2 of 2018, dated 14 February 2018.
Clause 6 - Meaning of Road Vehicle
After paragraph 24, insert:
24a. A core issue that arises when regulating road vehicles is the variety and
complexity of vehicles that people may seek to use on roads. The Bill provides a
definition of road vehicles that makes it clear whether the vast majority of
vehicles provided in Australia are, or are not, road vehicles. However, given the
breadth of devices that can be used for the purposes of transportation, the
intention of these provisions is to allow the assessment of vehicles that fall into
the 'grey area' - where a vehicle may have some road going features and some
features which are not. This will be required especially in the rapidly changing
context of the vehicle industry that sees, for example, personal transportation
devices such as self-balancing scooters entering the market.
24b. This provision provides for an objective assessment that will apply broadly,
rather than requiring individual suppliers or importers to apply under the Bill to
obtain a case-by-case assessment. They add on-going clarity to the legislation
for potential current and future vehicle import applicants.
24c. Decisions around vehicles falling into this 'grey area' must be made relatively
quickly and by a person with relevant technical expertise, to ensure vehicles
entering Australia and being used on public roads fall within the scope of the
Bill, and therefore are required to meet safety, security, and environmental
standards.
24d. Detailed technical matters are more appropriately contained in legislative
instruments. The expertise to develop technical instruments rests with the
Secretary who, through the Department, has the appropriate technical
knowledge to develop, and be responsible for, these instruments.
24e. For example, a power-assisted bicycle might be introduced to the Australian
market without being regulated by the Bill. However, the bicycle may have road
going features, such as power, speed, indicators etc., that indicate that the
vehicle is designed for use on public roads and should therefore be regulated by
the Bill.
24f. The Secretary, using the expertise of engineers employed by the Department
and in consultation with stakeholders, will be able to make a legislative
instrument determining that these bicycles are road vehicles, and therefore must
meet minimum safety, environmental and anti-theft standards. This provides the
Government with the ability to swiftly address issues that will emerge in
relation to road vehicles, ensuring the objectives of the Bill can be achieved on
an ongoing basis within a rapidly changing industry.
1
24g. It is also so that the Secretary is able to make decisions about vehicles that
should not be characterised as road vehicles. This is particularly the case where
the breadth of the definition of a road vehicle unintentionally captures vehicles
and it would be inappropriate for them to be regulated by the Bill. An example
is motorised personal mobility devices such as electric wheelchairs.
Improvements in these devices such as increased motor power, mean that such
devices could unintentionally fall within the definition of road vehicles. In such
a case, the Minister can determine that these 'vehicles' are not road vehicles,
ensuring people with disability are able to access personal mobility devices
without requiring them to meet unnecessary national road vehicle standards.
24h. It should also be noted that the determinations will be legislative instruments
and therefore subject to scrutiny from the Senate Standing Committee on
Regulations and Ordinances, and also subject to disallowance by Parliament.
It is not expected that these instruments will be made often. When they are
made, however, they will likely be in direct response to an immediate problem
faced in the regulation of road vehicles and will be based on a set of principles
that must be considered.
24i. Legislative instruments made by the Secretary strike an appropriate balance
between the core considerations that must go into these decisions: the
requirement for quick decisions; the detailed technical knowledge required; and
the need for parliamentary scrutiny of these decisions.
After paragraph 25, insert:
25a. Individual vehicles can easily be modified in a way that changes the nature of
the vehicle and therefore how it should be regulated. It is these modified
vehicles that are most likely to require determinations on an individual basis.
25b. For example, someone may modify an individual non-road vehicle in such a
way that it is unclear whether it becomes a road vehicle; perhaps it could be
modified through the addition of features such as higher engine capacity,
indicators, or road tyres, to an off-road motorcycle. The physical features of the
individual vehicle may indicate that it should be regulated as a road vehicle, and
thus a level of compliance with the national road vehicle standards will be
required.
25c. In this circumstance, a tool enabling the Secretary to determine that the vehicle
is a road vehicle ensures that the community is provided protection by capturing
the vehicle under the Bill, meaning the national vehicle standards apply to that
vehicle.
25d. In addition, the inability to declare an individual vehicle or components as 'not a
road vehicle' could impose significant burden on the community. For example
someone may have modified a road vehicle in such a way that it is clearly no
longer for public road use - therefore the community does not require that
vehicle to be subject to the requirements imposed by the Bill. For example, an
individual may have installed tracks on a road vehicle, instead of wheels and
tyres because they want the vehicle to be used in off-road in snow tourism.
Providing the Secretary with the power to notify that a specific vehicle is not a
road vehicle facilitates the supply of individual specialist vehicles into Australia
2
by ensuring that these types of special purpose non-road vehicles are not unduly
hindered in their provision to the Australian market.
25e. The Government will likely make thousands of decisions per year on the
importation of individual vehicles. While many of these require decisions as to
whether the vehicle is or is not a road vehicle, it is not envisaged that each of
these will result in a notifiable instrument. Instead, it is envisaged that the
determination-making power for individual vehicles will be used in complex
cases where definitive advice is considered by the Secretary to be in the
interests of meeting the objectives of the Bill. The objects of the Bill provide the
high level principles that the Secretary needs to consider when making
notifiable instruments.
25f. The determination is by made by notifiable instrument. This ensures that, where
a determination is made, it is published and publicly accessible (as required by
the Legislation Act 2003). This provides greater public scrutiny of decisions,
helps consumers understand the practical application of the legislation, and
improves public transparency of complex decisions.
Clause 7 - Meaning of road vehicle component
After paragraph 33, insert:
33a. Broad delegation of legislative and discretionary power are necessary for road
vehicle components for similar reasons as road vehicles, see reasoning at
paragraphs 25-27.
Clause 12 - Minister may determine national road vehicle standards
After paragraph 48, insert:
48a. The Government has a long-standing policy of harmonising Australia's vehicle
standards with international best practice vehicle standards. The National Road
Vehicle Standards adopt or point to a variety of material, the overwhelming
majority of which is publically available United Nations Regulations and other
internationally agreed standards. Within the UN Regulations there are a number
of minor technical standards referenced in turn. Many of these are also free to
access.
After paragraph 51, insert:
51a. In addition to incorporating material into the National Road Vehicle Standards,
technical standards are likely to be incorporated into other determinations made
through the Rules (subclause 82(6)), consistent with the policy to harmonise
with international standards.
51b. Entities regulated by the Bill are likely to have their own access to standards or
documents that are incorporated as part of their professional library, given the
global use of such documents. Where the general public has an interest in the
law the National Library of Australia has a collection of International, British,
Canadian, German, Japanese New Zealand and United States Standards
3
available for viewing. While not a complete collection, this provides significant
access to these areas of the law.
51c. The benefit of incorporating international standards is clear - regulation that is
based on internationally agreed standards provides consumers with access to the
safest vehicles in the global market at the lowest possible cost. It reduces the
burden on manufacturers and provides an economic benefit to consumers.
Imposing a different standard, on the basis it is freely and readily available to
the public at large, may require departure from the internationally accepted best-
practice encompassed within standard published by the United Nations.
51d. The benefit gained from ensuring best-practice standards are adopted outweighs
the minimal detriment caused by the standard potentially not being freely and
readily available to persons who are interested, but not directly affected by, the
law.
Clause 16 - Entry of non-compliant vehicles on RAV
After paragraph 64, insert:
64a. Paragraphs 16(3)(a), (b), (c) and (d) provide a defence if the only reason that the
vehicle did not comply with the entry pathway was due to the use of a non-
compliant component represented by its supplier to be covered by a component
type approval.
64b. The precise details of the design and manufacture of the vehicle, and the
procurement and use of components, is peculiarly within the knowledge of the
type approval holder. It is a core requirement of type approvals that the type
approval holders retain this information in 'supporting documentation', rather
than provide this information to the Commonwealth to gain an approval. While
the Commonwealth can access this information by requesting it, this is a costly
and resource intensive exercise, requiring the Department to request a full
outline of the design and manufacturing process and to develop a detailed
understanding of one type approval holder's production process.
64c. The type approval holders, to whom this offence relates, should already have
both the documentation, and a detailed understanding of their own processes.
This means that in addition to the type approval holder being the specific holder
of this knowledge, it is significantly more difficult and costly for the
prosecution to disprove, rather than for the defendant to establish the matters in
paragraphs (a), (c), and (d).
Clause 24 - Providing road vehicle for the first time in Australia - vehicle not on RAV
After paragraph 108, insert:
108a. Paragraph 24(3)(f) provides that subclause 24(1) does not apply 'in a
circumstance set out in the Rules'. It is expected that one of the circumstances
will be where:
4
A road vehicle is a vehicle to which an intergovernmental agreement
applies; and
The vehicle is provided in circumstances allowed by the
intergovernmental agreement.
108b. Vehicles that are imported under intergovernmental agreements include
speciality vehicles used in defence operations. It is peculiarly within the
knowledge of the defendant that the vehicle is subject to an intergovernmental
agreement. At times, the Australian Government does not provide these
approvals and therefore does not have these records.
108c. Subclause 24(4)(a) provides a defence if the person providing the vehicle holds
a non-RAV entry import approval for vehicle. While the Commonwealth has
access to records of non-RAV entry import approval holders, whether a specific
vehicle relates to the non-RAV entry import approval is knowledge peculiarly
within the knowledge of the defendant, as determining this requires access to
the vehicle. The defendant has access to the vehicle, its sale and importation
documents and would therefore be able to link the vehicle and non-RAV entry
import approval. This makes it significantly more difficult and costly for the
prosecution to disprove than for the defendant to establish the matter.
Clause 32 - False or misleading information
After paragraph 151:
151a. Subclause 32(2) places an evidential burden on the defendant in relation to
proving that the information or documents were not false or misleading in a
material particular (that is, they must point to evidence that the false or
misleading information is inconsequential or not relevant to the matter at issue;
if they do so, the prosecution must disprove this beyond reasonable doubt).
151b. Given the objectives of the Bill to provide safe and secure vehicles, the
provision of false or misleading information can have serious ramifications for
achieving the legitimate outcomes of the Bill. For example, an applicant may
mislead the Department about their engineering qualifications, saying that they
are more qualified than they actually are. This false statement could have a
material impact on vehicle safety and the Government may seek to prosecute.
The applicant's real qualification, however, may actually meet the minimum
expected threshold. The defendant could offer this as evidence that the
misleading information provided was inconsequential to the outcome. In
situations such as this, the evidence of whether the matter is misleading in a
material particular is peculiarly within the knowledge of the defendant and it is
therefore appropriate for the defendant to bear the evidential burden.
151c. The reversal of evidential burden in this offence is consistent with the Criminal
Code Act 1995 and other Commonwealth legislation that operates in a similar
regulatory environment, such as the Biosecurity Act 2015.
5
Clause 38 - Compliance with recall notices
After paragraph 173, insert:
173a. Failing to comply with a recall notice is a significant contravention that goes to
the core objectives of the Bill - to ensure that vehicles in Australia are safe,
secure, and meet relevant environmental standards.
173b. The use of strict liability for this offence is consistent with the principles
relating to strict liability at 2.2.6 of the 'Guide to Framing Commonwealth
Offences, Infringement Notices and Enforcement Powers', insofar as strict
liability is required to ensure the integrity of a regulatory regime. The penalty
unit amount, while far exceeding the maximum recommended penalty units, is
also vital for ensuring the integrity of the regulatory regime.
173c. Rectifying vehicles that are subject to a recall notice is an expensive exercise for
regulated entities, but vital for ensuring community health and safety. The
amount of a penalty, regardless of whether the supplier is an individual or
corporation, must be set high enough that the supplier does not consider non-
compliance with the recall notice to be a less expensive or more attractive
option. Generally, high initial outlays by automotive industry suppliers will be
required to comply with recall notices. In these circumstances, the upper limit of
60 penalty units for strict liability offences is inadequate as a meaningful
deterrent. Given the high value of road vehicles, the proposed 1,050 penalty
units for individuals is necessary to ensure integrity of the regulatory regime.
173d. Vehicle suppliers most likely to be subject to recall notices are type approval
holders. To obtain a type approval, an individual or body corporate must
demonstrate control over the entire design and manufacturing process of a
vehicle. An individual is unlikely to meet these requirements. In the event that
an individual has the means and sophistication of design and manufacture to
hold a type approval, then they have opted into regulation by the Bill and must
be aware of their obligations under the legislation.
173e. In addition, this strict liability offence, and the amount of the penalty units, is
already applicable to individuals who are supplying consumer goods, such as
road vehicles, under the existing Australian Consumer Law. This Bill is
deliberately consistent with this requirement to ensure that there can be no way
for suppliers to pressure the Government to issue recall notices under legislation
with lower penalties.
Clause 42 - Self-Incrimination
After paragraph 191, insert:
191a. Clause 42(2) provides a use immunity, however clause 42 does not include a
derivative use immunity. Including a derivative use immunity for this offence is
not appropriate in the broader context of ensuring that the Bill is able to meet its
objectives.
6
191b. First, the Bill, including clause 42, has been drafted to be consistent with the
existing requirements of the Australian Consumer Law. This is designed to
prevent suppliers of road vehicles 'legislation shopping' by pressuring
regulators to use legislation with more lenient compliance tools.
191c. Secondly, a disclosure notice is a tool to be used in situations where information
about unsafe or non-compliant vehicles is not forthcoming from vehicle
suppliers. These are situations that present an immediate risk of harm to the
community. Any incentive to delay providing information is inconsistent with
community safety. A derivative use immunity may provide an incentive to non-
compliant suppliers to withhold information, then use the subsequent disclosure
notice to 'confess' to other serious non-compliance. This is not appropriate in
the context of the serious community harm that can be caused by any delay.
191d. Thirdly, derivative use immunity may prevent the Department from sharing
information with other departments or state and federal Police. This is because
the other agency will also be bound by any derivative use immunity. In the
event that the other agency wished to commence criminal or civil penalty
proceedings against that person, it would not be able to make use of any
evidence derived as a result of the originally received information. It would also
face the additional evidentiary hurdle of establishing that no use was made of
the shared information in obtaining the evidence to be relied upon in the
prosecution. This is particularly concerning as the Department will need to work
in conjunction with the Australian Competition and Consumer Commission
where information raises consumer protection issues.
191e. Fourth, the circumstances where an individual will be required to provide
evidence are very limited. The suppliers most likely to be subject to disclosure
notices are type approval holders. To obtain a type approval, an individual or
body corporate must demonstrate control over the entire design and
manufacturing process of a vehicle. It is very unlikely that an individual will be
able to meet these requirements and therefore unlikely for an individual to be
impacted by this clause.
191f. Given costs imposed on the community by potential 'legislation shopping'; any
incentives to delay providing information about unsafe vehicles; additional
burdens imposed on the prosecution of non-compliant entities; and the limited
likelihood of individuals having to disclose information, the public benefit in the
removal of the derivative use immunity outweighs the limited loss of personal
liberty in this case.
Clause 50 - Monitoring under Part 2 of the Regulatory Power Act
After paragraph 218, insert:
218a. People who may assist an inspector in monitoring include people within the
Department, but also externally. Advances in technology with road vehicles
mean that the Department must be able to use a wide range of people to assist in
the monitoring of regulated entities. In monitoring complex matters, the
Department may have to procure the services of persons that are experts in
7
specific fields. For example, the monitoring of emissions testing might involve
the Department procuring an expert in the emission field to assist. In examining
an autonomous vehicle system, software engineers may be required. In addition
to technical skillsets, the Department may also require, for example, translation
and interpretation services.
218b. To be prescriptive in the Bill as to who may assist an authorised officer,
including being prescriptive of their specific skills, training and experience,
would limit the ability of authorised persons to obtain the assistance of
appropriately qualified persons and may jeopardise the monitoring outcomes
intended under the Bill.
Clause 52 - Investigation Part 3 of the Regulatory Powers Act
After paragraph 226, insert:
226a. People who may assist an inspector in investigating include people within the
Department, but also externally. Advances in technology with road vehicles
mean that the Department must be able to use a wide range of people to assist in
the investigating of regulated entities. In complex investigations, the
Department may have to procure the services of persons that are experts in
specific fields. For example, investigation of emissions testing might involve the
Department procuring an expert in the emission field to accompany an inspector
in an investigation. In investigating an autonomous vehicle system, software
engineers may be required. In addition to technical skillsets, the Department
may also require, for example, translation and interpretation services.
226b. To be prescriptive in the Bill as to who may assist an authorised officer,
including being prescriptive of their specific skills, training and experience,
would limit the ability of authorised persons to obtain the assistance of
appropriately qualified persons and may jeopardise the investigation outcomes
intended under the Bill.
Clause 63 - Minister may substitute more favorable decision for certain computer-
based programs
After paragraph 265, insert:
265a. Subclause 63(1) of the Bill allows the Minister to substitute a decision where
the initial decision was made by the operation of a computer program. The
Minister may exercise this power if the computer program was not functioning
correctly at a specific time or in relation to a specific outcome.
265b. A discretionary power, rather than a duty to consider requirement, is appropriate
for this clause. A duty to consider clause could place an undue burden on the
Minister if they were required to consider exercising the power in subclause
63(1) in respect of every decision made by the operation of a computer program
under an arrangement made under clause 62(1), particularly where applicants
may seek to abuse this provision with frivolous claims. It is anticipated that
8
there will be minimal cases that will be referred to the Minister to consider
exercising this power, and that the Minister would consider whether to exercise
the power, where reasonably asked to do so.
Clause 73 - Delegation by the Minister
After paragraph 294, insert:
294a. The draft Road Vehicle Standards Rules require the Minister to consider most
applications from industry within 30 to 60 days. Applications that will be
received include applications for type approvals, testing facilities, entry onto the
specialist and enthusiast register, authorised vehicle verifiers, model reports and
individual concessional imports. This is expected to be in the order of 200,000
decisions per year. The applications vary greatly in complexity and there is
significant administrative efficiency to be gained by allowing less complex or
sensitive applications to be dealt with by a broader range of appropriately
trained staff. As part of the extensive consultation process, industry has
provided feedback that more timely processing of regulatory applications would
bring greater operational flexibility and efficiency.
294b. Allowing the rules to provide for the delegation of the Minister's powers to APS
employees will not automatically grant lower level employees the authority to
make decisions and nor would the rules actually permit such delegations. As in
other Commonwealth agencies, the delegation of powers is managed through a
Delegation Instrument. The Minister would determine on a risk management
basis the classes of persons who are to be delegated these powers. Accordingly,
significant, complex or sensitive regulatory decisions - such as decisions to
vary, suspend or terminate approvals - will remain with Senior Executive
Service and Executive Level staff. Less complex regulatory decisions, for
example to approve a concessional import approval, may be delegated to a small
number of appropriately trained, APS level employees within the Department.
294c. Administrative processes are also in place to ensure staff exercise delegations
appropriately. The regulatory management system used by staff within the
Department has existing controls in place to ensure that only duly authorised
persons can exercise a function or power. Delegates who exercise powers and
functions under this Bill will receive appropriate training and support to make
effective and lawful decisions, including internal training courses specifically
covering the exercise of delegations.
294d. The measures currently in place appropriately manage the proper exercise of
power under a delegation.
Clause 74 - Delegation by the Secretary
After paragraph 299, insert:
299a. The draft Road Vehicle Standards Rules require the Secretary to consider most
applications from industry within 30 to 60 days. Applications that will be
9
received include application for type approvals, testing facilities, entry onto the
specialist and enthusiast register, authorised vehicle verifiers, model reports and
individual concessional imports. This is expected to be in the order of 200,000
decisions per year. The applications vary greatly in complexity and there is
significant administrative efficiency to be gained by allowing less complex or
sensitive applications to be dealt with by a broader range of appropriately
trained staff. As part of the extensive consultation process, industry has
provided feedback that more timely processing of regulatory applications would
bring greater operational flexibility and efficiency.
299b. Allowing the rules to provide for the delegation of the Secretary's powers to
APS employees will not automatically grant lower level employees the authority
to make decisions and nor would the rules actually permit such delegations. As
in other Commonwealth agencies, the delegation of powers is managed through
a Delegation Instrument. The Secretary would determine on a risk management
basis the classes of persons who are to be delegated these powers. Accordingly,
significant, complex or sensitive regulatory decisions - such as decisions to
vary, suspend or terminate approvals - will remain with Senior Executive
Service and Executive Level staff. Less complex regulatory decisions, for
example to approve a concessional import approval, may be delegated to a small
number of appropriately trained, APS level employees within the Department.
299c. Administrative processes are also in place to ensure staff exercise delegations
appropriately. The regulatory management system used by staff within the
Department has existing controls in place to ensure that only duly authorised
persons can exercise a function or power. Delegates who exercise powers and
functions under this Bill will receive appropriate training and support to make
effective and lawful decisions, including internal training courses specifically
covering the exercise of delegations.
299d. The measures currently in place appropriately manage the proper exercise of
power under a delegation.
Clause 81 - Immunity from suit
After paragraph 311, insert:
311a. Clause 81 of the Bill is a continuation of the policy that no action or other
proceeding could lie against the Commonwealth in respect of any loss incurred
or any damage suffered due to reliance on the following factors:
an identification plate or used import plate; or
any test carried out under this Act or the regulations or a determination
under this Act; or
any express statement, or any statement or action implying, that a road
vehicle or a vehicle component complied with a national standard.
311b. Subclause 81(1) models the exemptions set out section 37 of the Motor Vehicle
Standards Act, but updates these to provide for the modernised regulatory
regime that the Bill introduces. For example, instead of a vehicle's key
compliance information being placed on an identification plate or used import
10
plate, it will be now entered onto the Registered of Approved Vehicles - a
publically accessible online database. Under clause 16 of the Bill, it is a
contravention to enter a non-compliant road vehicle onto the Register of
Approved Vehicles.
311c. The Department is unable to inspect each of the 1.2 million new vehicles and
30,000 used vehicles that enter the Australian market each year. The
Department relies on approval holders, in particular type approval holders, to
provide evidence that each road vehicle has conformity of production and is
compliant with the national vehicle standards.
311d. The Department has appropriately trained staff that consider and review the
evidence provided, and who are required at all times to act in accordance with
the Australian Public Service Code of Conduct. Nonetheless, it is possible that
losses may be incurred because of reliance on, for example, approvals granted
under the Act. This may occur because of fraud on the part of an approval
holder. To make the Minister, the Secretary and Departmental employees
criminally responsible or civilly liable for such loss, where persons involved in
decisions have acted in good faith, would be detrimental and unfair. From an
administrative perspective, this additional legal burden placed on the
Department would significantly increase decision times and could result in the
Department being more cautious and restrictive in relation to the approval of
applications. This would be detrimental to not only consumers and the general
public but to the greater automotive industry within Australia.
311e. Clause 81 of the Bill does not prevent proceedings being brought against the
listed persons if the listed persons did not act in good faith. The question of
whether a person did or did not act in good faith is subject to judicial
determination - likely to be decided in a preliminary stage of any proceeding.
Clause 81 in the Bill prevents frivolous claims being brought against the
Minister, Secretary and Departmental employees.
Clause 82 - Rules
After paragraph 315, insert:
315a. The Bill does not set out which decisions will be subject to merits review before
the Administrative Appeal Tribunal (AAT). The decision points in the
legislation will be contained in the Rules, therefore it is practical that the Rules
also set out which decisions will be subject to merits review.
315b. The Bill allows the Rules to set out which decisions can be subject to merit
review, but does not require that decisions must be subject to merit review. This
drafting ensures that when the Rules are made there are no foregone conclusions
about the suitability of a decision for merits review. Instead, the drafting
provides the Minister with the scope to consider the suitability of each decision
point for merits review, taking into account the unique circumstances and
requirements of the matter. This allows for a more nuanced and considered
approach to merits review.
11
Index]
[Search]
[Download]
[Bill]
[Help]