Motor Vehicle Standards (Road Vehicles) Determination 2017 [F2017L01175]-Concluded matters [2017] AUSStaCSDLM 416 (15 November 2017)

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Instrument	Motor Vehicle Standards (Road Vehicles) Determination 2017 [F2017L01175]
Purpose	Repeals and replaces the previous determination, adding determinations in relation to new vehicle classes such as power-assisted pedal cycles and quad bikes
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)
Previously reported in	Delegated legislation monitor 13 of 2017

Manner of incorporation

The committee previously commented as follows:

Section 14 of the Legislation Act 2003 (Legislation Act) 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.

With reference to the above, the committee noted that the definition of power-assisted pedal cycle in subsection 5(1) of the determination incorporates two European standards: 'European Committee for Standardization EN 15194:2009 or EN 15194:2009+A1:2011 Cycles - Electrically power assisted cycles - EPAC Bicycles'. However, neither the instrument nor the ES states the manner in which these documents are incorporated.

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.

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 requested the advice of the minister in relation to the manner of incorporation of the above documents; and requested that the instrument and/or ES be updated to include information regarding the manner of incorporation.

Minister's response

The Minister for Urban Infrastructure advised:

European Standards EN 15194:2009 and EN 15194:2009+A1:2011, Cycles -Electrically power assisted cycles - EPAC Bicycles, specify safety requirements and test methods for the design and assembly of electrically power assisted bicycles. As the standards are not legislative instruments, subsections 14(1)(b) and 14(2) of the Legislation Act 2003 (the Legislation Act) have the effect that the Determination can only incorporate
the standards as in force at the time the Determination commenced
(14 September 2017), and not 'as in force or existing from time to time'.
I note the Committee's comments on facilitating the public's ability to understand the operation of the Determination. For this reason, I instructed the Department of Infrastructure and Regional Development to amend the Explanatory Statement (ES) to explicitly state that the Determination incorporates the European standards as in force at its date of commencement.
Relevant excerpt from the ES:
The Determination incorporates references to European Standards EN 15194:2009 and EN l 5 l 94:2009+A 1:2011, Cycles - Electrically power assisted cycles - EP AC Bicycles...
In accordance with subsections 14(1)(b) and 14(2) of the Legislation Act 2003 these standards are incorporated as in force at the commencement of the Determination.

Committee's response

The committee thanks the minister for her response and notes the minister's undertaking to register a replacement ES which states that the European standards are incorporated as in force at the date of commencement of the instrument.

The committee has concluded its examination of this matter.

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.

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.

The committee's expectations regarding access to an incorporated 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 noted that subsection 5(1) of the determination incorporates two European standards. However, the ES does not contain a description of these documents, or indicate how they may be obtained.

The committee’s research indicated that the relevant documents may only be able to be obtained from SAI Global, on payment of a fee.

The issue of access to material incorporated into the law by reference to external documents, such as Australian and international standards, has been an issue of ongoing concern to Australian parliamentary scrutiny committees. The committee's expectation, at a minimum, is that consideration be given by the department to any means by which the document is or may be made available to interested or affected persons. This may be, for example, by noting availability through specific public libraries, or by making the document available for viewing on request to the department. Consideration of this principle and details of any means of access identified or established should be reflected in the ES to the instrument.

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 requested 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 determination; and requested that the ES be updated to include this information.

Minister's response

The Minister for Urban Infrastructure advised:

I understand the importance of ensuring persons interested in or affected by an instrument have adequate access to its terms, including any incorporated documents. The European standards incorporated in the Determination are freely available through the National Library of Australia (NLA) eResources system, which provides access to the British Standards Online database. As a licensed resource, a library card is required to access the database and anyone with an Australian residential address is eligible to request one.
In line with best-practice and consistent with section 151 of the Legislation Act, I instructed the Department to amend the ES to include a description of these standards as well as details of how to access them through
the NLA.
Relevant excerpt from the ES:
The Determination incorporates references to European Standards EN 15194:2009 and EN l 5 l 94:2009+A 1:2011, Cycles - Electrically power assisted cycles - EP AC Bicycles. These standards specify safety requirements and test methods for the design and assembly of electrically power assisted bicycles. They are intended to cover electrically power assisted cycles of a type which have a maximum continuous rated power of 250 Watts, of which the output is progressively reduced and finally cut off as the bicycle reaches a speed of 25 km/h; or sooner, if the cyclist stops pedalling.
...
The standards may be freely accessed online through the National Library of Australia (NLA) eResources system, which provides access to the British Standards Online database. A library card is required and can be obtained by anyone with an Australian residential address.
The NLA website is https://www.nla.gov.au/.

Committee's response

The committee thanks the minister for her response and notes the minister's undertaking to register a replacement ES which includes a description of the incorporated standards and details about how to access them through the National Library of Australia.

The committee has concluded its examination of the instrument.

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[1] See 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] See 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.