Vehicle Standard (Australian Design Rule 03/04-Seats and Seat Anchorages) 2017 [F2017L01344]-Response required [2017] AUSStaCSDLM 426 (29 November 2017)

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Instrument	Vehicle Standard (Australian Design Rule 3/04 – Seats and Seat Anchorages) 2017 [F2017L01344]
Purpose	Specifies requirements for seats, their attachment assemblies, installation and any head restraint fitted, to minimise the possibility of occupant injury as a result of vehicle impact
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[1]
Scrutiny principle	Standing Order 23(3)(a)

Manner of incorporation of documents

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.

In relation to this instrument, the committee notes that section 7A of the Motor Vehicle Standards Act 1989 permits vehicle standards made under the Act to incorporate standards produced by the Economic Commission for Europe, the International Electrotechnical Commission, the International Organization for Standardization or Standards Australia, or by any other organisation determined by the minister by legislative instrument, as in force from time to time.

Where documents are incorporated, the committee expects instruments, and ideally their accompanying explanatory statements (ES), to clearly state the manner in which they are incorporated (that is, either as in force from time to time, as in force at the commencement of the legislative instrument or as in force or existing at an earlier date). 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 which are not disallowable legislative instruments:

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

• Regulation No.21 "Uniform Provisions concerning the Approval of Vehicles with regard to their Interior Fittings" (E-ECE/324-E/ECE/TRANS/505/Rev.1/Add.20/Rev.2, as last amended) [Appendix A, paragraphs 5.2.3.2 and 5.2.4.1.2];

• 'Regulation No. 80' [Appendix A, paragraph 5.3];

• 'Regulation No. 25, as amended by 04 series of amendments' [Appendix A, paragraph 5.4.2];

• the Agreement, Appendix 2 (E/ECE/324-E/ECE/TRANS/505/Rev.2) [Appendix A, paragraph 7];

• ISO Standard 6487 (1980) [Appendix A, Annex 6, paragraph 1.3.1]; and

• International Standard ISO 6487 (2002) [Appendix A, Annex 7, paragraph 1.5].

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.^[2]

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 explanatory statement be updated to include information regarding the manner of incorporation.

ccess to incorporated documents

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

With reference to the above, the committee notes that the instrument incorporates several documents. However, neither the instrument nor the ES provides a description of the following documents, nor an indication as to where they can be freely accessed:

• Regulation No.21 "Uniform Provisions concerning the Approval of Vehicles with regard to their Interior Fittings" (E-ECE/324-E/ECE/TRANS/505/Rev.1/Add.20/Rev.2, as last amended) [Appendix A, paragraphs 5.2.3.2 and 5.2.4.1.2];

• 'Regulation No. 80' [Appendix A, paragraph 5.3];

• 'Regulation No. 25, as amended by 04 series of amendments' [Appendix A, paragraph 5.4.2];

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

[Appendix A, paragraph 7];

• ISO Standard 6487 (1980) [Appendix A, Annex 6, paragraph 1.3.1]; and

• International Standard ISO 6487 (2002) [Appendix A, Annex 7,

paragraph 1.5].

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 documents incorporated by a legislative instrument 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.

The committee's expectations in this regard are set out in the guideline on incorporation of documents published on the committee's website.^[3]

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 explanatory statement be updated to include this information.

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[1] In the event of any change to the Senate's sitting days, the last day for the notice would change accordingly.

[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.

[3] 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.