Vehicle Standard (Australian Design Rule 88/00-Electric Stability Control (ESC) Systems) 2017 [F2017L01229]-Concluded matters [2017] AUSStaCSDLM 454 (12 June 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 must be given by 7 December 2017[1]
Scrutiny principle	Standing Order 23(3)(a)
Previously reported in	Delegated legislation monitor 14 of 2017

Manner of incorporation of documents

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.

The committee expects instruments, and ideally their accompanying explanatory statements (ES), 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.^[2]

The committee requested the minister's advice 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:

Clause 7 of the Determination incorporates references to the United Nations (UN) Regulation No. 140 (R 140) and the UN Global Technical Regulation No. 8 (GTR 8). These are international standards, which specify equivalent requirements and test methods to Appendix A of the Determination.
Appendix A of the Determination incorporates references to the Consolidated Resolution on the Construction of Vehicles (R.E.3), a number of other UN Regulations, ISO 15037 Part 1: 2005, ISO 15037 Part 2: 2002, ASTM E1136 and ASTM E1337-90.
As these 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 (22 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 these standards are incorporated as in force at the commencement of the Determination.
Appendix A, Section 11 of the Determination also incorporates the Agreement, Appendix 2 (E/ECE/324-E/ECE/TRANS/505/Rev.2). However,
in accordance with clause 6 (Exemptions and Alternative Procedures) of the Determination, compliance with Appendix A Section 11 is not required.

Committee's response

The committee thanks the minister for his response, and notes the minister's advice that the relevant documents are incorporated as in force at the commencement of the instrument.

The committee notes that the replacement ES it has received contains a description of the manner in which the documents are incorporated, and notes the minister's undertaking to register the replacement ES on the Federal Register of Legislation.

The committee has concluded its examination of this matter.

The committee previously commented as follows:

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.

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.

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 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 instrument, and requested that the instrument and/or 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 Consolidated Resolution on the Construction of Vehicles (R.E.3.),
the UN Regulations and the UN Global Technical Regulations are freely available online through the UN World Forum for the Harmonization of Vehicle Regulations (WP.29). The WP.29 website is:
www.unece.org/trans/main/welcwp29.html.
ISO 15037 Part 1 and Part 2 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.
ASTM E1136 and ASTM E1337-90 are freely available online through
the ASTM International Reading Room. This requires registration using
an email and password. The ASTM International Reading Room website is:
www.astm.org/readinglibrary/.
In line with best-practice and consistent with section 15J 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 WP.29 website, the NLA and the ASTM International Reading Room.
A marked up copy of the revised ES, as amended by the Department,
to address the issues raised by [the committee] is provided for your information at Attachment A. I understand the replacement ES will shortly be registered on the Federal Register of Legislation.

Committee's response

The committee thanks the minister for his response. The committee notes the minister's undertaking to register the replacement ES received by the committee, which specifies where the relevant documents are available free of charge, on the Federal Register of Legislation.

The committee has concluded its examination of the instrument.

Senator John Williams (Chair)

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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.