Vehicle Standard (Australian Design Rule 88/00-Electric Stability Control (ESC) Systems) 2017 [F2017L01229]-Response required [2017] AUSStaCSDLM 398 (15 November 2017)

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Instrument	Vehicle Standard (Australian Design Rule 88/00 – Electric Stability Control (ESC) Systems) 2017 [F2017L01229]
Purpose	Specifies requirements for Electronic Stability Control systems on passenger cars and light commercial vehicles
Authorising legislation	Motor Vehicle Standards Act 1989
Portfolio	Infrastructure and Regional Development
Disallowance	15 sitting days after tabling (tabled Senate 16 October 2017) Notice of motion to disallow currently must be given by 7 December 2017
Scrutiny principle	Standing Order 23(3)(a)

Manner of incorporation of documents

Section 14 of the Legislation Act 2003 allows legislative instruments to make provision in relation to matters by incorporating Acts and disallowable legislative instruments, either as in force at a particular time or as in force from time to time. Other documents may only be incorporated as in force at the commencement of the legislative instrument, unless authorising or other legislation alters the operation of section 14.

The committee expects instruments, and ideally their accompanying ESs, to clearly state the manner in which documents are incorporated (that is, either as in force from time to time or as in force at the commencement of the legislative instrument). This enables persons interested in or affected by the instrument to understand its operation without the need to rely on specialist legal knowledge or advice, or consult extrinsic material.

In this regard, the committee notes that the instrument appears to incorporate

a number of documents. These include:

• Consolidated Resolution on the Construction of Vehicles (R.E.3.), document ECE/TRANS/WP.29/78/Rev.4 [Appendix A, paragraph 1.1 and footnote 1];

• American Society for Testing and Materials (ASTM) E1136 and ASTM Method E1337-90 [Appendix A, paragraph 8.2.2.1];

• 'Appendix 2 to Annex 6 of Regulation No. 13-H' [Appendix A, paragraph 8.2.2.2];

• 'the Agreement, Appendix 2 (E/ECE/324-E/ECE/TRANS/505/Rev.2)' [Appendix A, paragraph 11]; and

• ISO 15037 Part 1:2005: General conditions for passenger cars and Part 2:2002: General conditions for heavy vehicles and buses [Appendix A,

Annex 4, paragraph 2.1].

Neither the instrument nor the ES states the manner in which these documents are incorporated.

The committee's expectations in this regard are set out in the guideline on incorporation of documents published on the committee's website.^[1]

The committee requests the minister's advice in relation to the manner of incorporation of the above documents, and requests that the instrument and/or ES be updated to include information regarding the manner of incorporation.

Paragraph 15J(2)(c) of the Legislation Act 2003 requires the ES for a legislative instrument that incorporates a document to contain a description of that document and indicate how it may be obtained.

The committee's expectations where a legislative instrument incorporates a document generally accord with the approach of the Senate Standing Committee for the Scrutiny of Bills, which has consistently drawn attention to legislation that incorporates documents not readily and freely available (i.e. without cost) to the public. Generally, the committee will be concerned where incorporated documents are not publicly and freely available, because persons interested in or affected by

the law may have inadequate access to its terms.

With reference to the above, the committee notes that the instrument incorporates several documents. However, neither the instrument nor the ES indicates where the following documents can be freely accessed:

• American Society for Testing and Materials (ASTM) E1136 and ASTM Method E1337-90;

• 'Appendix 2 to Annex 6 of Regulation No. 13-H';

• 'the Agreement, Appendix 2 (E/ECE/324-E/ECE/TRANS/505/Rev.2)'; and

• ISO 15037 Part 1:2005: General conditions for passenger cars and Part 2:2002: General conditions for heavy vehicles and buses.

While the committee does not interpret paragraph 15J(2)(c) as requiring a detailed description of an incorporated document and how it may be obtained, it considers that an ES that does not contain any description of an incorporated document may fail to satisfy the requirements of the Legislation Act 2003.

The committee's expectations in this regard are set out in the guideline on incorporation of documents published on the committee's website.^[2]

The committee requests the minister's advice as to how the incorporated documents are or may be made readily and freely available to persons interested in or affected by the instrument, and requests that the instrument and/or ES be updated to include this information.

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^[1] Regulations and Ordinances Committee, Guideline on incorporation of documents, http://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Regulations_and_ Ordinances/Guidelines/Guideline_on_incorporation_of_documents.

^[2] Regulations and Ordinances Committee, Guideline on incorporation of documents, http://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Regulations_and_ Ordinances/Guidelines/Guideline_on_incorporation_of_documents.