Bills Digest No. 108,
2017–18
PDF version [471KB]
Dr Emily Hanna
Science, Technology, Environment and Resources Section
Dr Jonathon Deans
Economics Section
21
May 2018
Contents
The Bills Digest at a glance
Purpose of the Bills
Structure of the Bills
Commencement
Background
Committee consideration
Policy position of non-government
parties/independents
Position of major interest groups
Financial implications
Statement of Compatibility with Human
Rights
Key issues and provisions
Date introduced: 7
February 2018
House: House of
Representatives
Portfolio: Infrastructure,
Regional Development and Cities
Commencement: The
substantive provisions of the Road Vehicle Standards Bill will commence either
on the day after the Act receives Royal Assent or one year after Royal
Assent (depending on the particular provision). Further detail and the
commencement dates of the other Bills are specified in subclause 2(1) of
each Bill and outlined in this Bills Digest.
Links: The links to the Bills,
their Explanatory Memoranda and second reading speeches can be found on each Bill’s home page, or through the Australian
Parliament website.
When Bills have been passed and have received Royal Assent,
they become Acts, which can be found at the Federal Register of Legislation
website.
All hyperlinks in this Bills Digest are correct as
at May 2018.
The Bills Digest at a glance
Purpose of the Bills
- The
purpose of the Road Vehicle Standards Bill is to establish a new legislative
framework for Regulation of the importation and supply to market of road
vehicles, and provision of some road vehicle components. It will also provide
the power to recall uncompliant road vehicles.
- This
legislation will replace the nearly three decades old Motor Vehicle
Standards Act 1989.
Structure of the Bills
- This
is a package of five associated Bills.
Background
- Several
reviews of the Motor Vehicles Standards Act and its associated Regulations
were undertaken to determine whether they were still working efficiently and
effectively given the rise in number of vehicles, changes in technology, and
the changes in the national and international vehicle markets since
implementation. The resultant Bills aim to give consumers more choice and
reduce the regulatory burden on industry whilst upholding safety and
environmental standards.
Key elements
- The
new framework enables national road vehicle standards to be set for both road
vehicles and their components, including environmental, safety and anti-theft
standards. It will allow only vehicles that meet these standards to be imported
into Australia (except for some limited exceptions).
- There
will be a new register, called the Register of Approved Vehicles (RAV), onto
which, generally, road vehicles must be entered before they enter the
Australian market. It will be the main entry pathway for vehicles.
- The
Road Vehicle Standards Bill also establishes a framework for recalling unsafe
and/or uncompliant road vehicles or components.
Stakeholder concerns
- While
the modernisation of the legislation was often welcomed, not all bodies
believed that the regulatory compliance burden would always be reduced by the new
scheme. Multiple groups approved of including a power to recall vehicles when
necessary.
- Stakeholders
representing heavy vehicles believe that the legislation is too focused on
light vehicles (such as cars).
- Numerous
bodies believe that there is a lack of clarity and that some provisions in the
new legislation are confusing.
Key issues
- One
major issue that applies to the whole Road Vehicle Standards Bill is that
little detail of the scheme is included in the Bill itself. Instead, the Bill
provides an overarching framework and the detail of how the scheme will operate
is left to delegated legislation. This greatly reduces the level of
parliamentary scrutiny that can apply to the scope and actual operation of the
scheme.
- It
is a concern that the right to review of decisions is not included in the
primary legislation.
Purpose of the
Bills
This Bills Digest is for a package of five Bills:
The purpose of the Road Vehicle Standards Bill is to
establish a new legislative framework for Regulation of the importation and
supply to market of road vehicles, and provision of some road vehicle
components. This legislation will replace the Motor Vehicle
Standards Act. The purpose of the new framework is to:
- enable
national road vehicle standards to be set for both road vehicles and their
components, including environmental, safety and anti-theft standards
- allow
only vehicles that meet these standards to be imported into Australia (with
some limited exceptions)
- establish
a Register of Approved Vehicles (RAV) onto which, generally, road vehicles must
be entered before they enter the Australian market and
- establish
the framework for recalling uncompliant road vehicles or components.[1]
The purpose of the Consequential Provisions Bill is to:
- repeal
the Motor Vehicle Standards Act and
- provide
transitional arrangements and consequential amendments as the framework under
the Road Vehicle Standards Bill 2018 replaces that under the Motor Vehicle
Standards Act.
The purposes of the Charges (General) Bill, Charges
(Customs) Bill and Charges (Excise) Bill are to allow the Government to impose
charges (as taxes) related to the administration of the Road Vehicle Standards
Bill and the Consequential Provisions Bill. These three Charges Bills allow,
respectively, charges that are not an excise or customs duty, excise charges,
and customs charges. The three Charges Bills are separate due to the constitutional
requirement for taxation, duties of excise and duties of customs to be dealt
with in Bills that only include that particular individual type of charge.[2]
Structure
of the Bills
The Road Vehicle Standards Bill is divided into a number
of parts:
- Part
1 contains preliminary provisions, including definitions
- Part
2 provides for the Regulation of road vehicles and associated components,
including setting standards and establishing the Register of Approved Vehicles
and Specialist and Enthusiast Vehicles Register
- Part
3 establishes the framework for road vehicle or component recalls
- Part
4 provides for compliance with, and enforcement of, the Road Vehicle
Standards Bill
- Part
5 outlines administrative matters, including the use of computerised
decision-making, delegation of power and cost-recovery charges and
- Part
6 contains miscellaneous provisions, including the general rule making
power.[3]
The Consequential Provisions Bill is divided into four
schedules. Schedule 1 provides for transitional national road vehicle
standards to be applied for one year after the Road Vehicle Standards Bill
receives Royal Assent, while Schedule 2 repeals the Motor Vehicle
Standards Act. Schedule 3 contains transitional provisions and Schedule
4 contains consequential legislative amendments.
Commencement
The clauses of the Road Vehicle Standards Bill commence on
two dates, the day after the Road Vehicle Standards Bill receives Royal Assent
and one year after Royal Assent. The Bill will therefore be completely operational
one year after commencement so as to allow for a transition period to the new
scheme. Clauses 15–18, 22, 24, 26, 29, 38–47 and 75–78 commence one
year after the date of Royal Assent while all other clauses commence the day
after Royal Assent.
The Consequential Provisions Bill also has multiple
commencement dates:
- Schedule
1 commences immediately after clause 12 of the Road Vehicle
Standards Bill commences (the day after Royal Assent of the Road Vehicle
Standards Bill)
- Schedules
2 and 3 as well as Part 2 of Schedule 4 commence at
the same time as clause 15 of the Road Vehicle Standards Bill (one year
after the date of Royal Assent of the Road Vehicle Standards Bill)
- Part
1 of Schedule 4 commences at the same time as clause 3 of the
Road Vehicle Standards Bill (the day after the Road Vehicle Standards Bill
receives Royal Assent)
- Part
3 of Schedule 4 commences the day after one year from clause 15
of the Road Vehicle Standards Bill commencing (two years from the day the Road
Vehicle Standards Bill receives Royal Assent) and
- the
remaining provisions of the Consequential Provisions Bill commence the day
after the Consequential Provisions Bill receives Royal Assent.
The provisions in the three Charges Bills share the same
commencement dates (if they receive Royal Assent on the same day). Clauses 3–8
of all three Bills commence on the later of the beginning of the day after the particular
Charges Bill receives Royal Assent or immediately after the commencement of clause
3 of the Road Vehicle Standards Bill (the day after the Road Vehicle
Standards Bill receives Royal Assent). However, if clause 3 of the Road
Vehicle Standards Bill does not commence, then clauses 3–8 of the
Charges Bills do not commence. The remaining provisions in the Charges Bills
commence the day after the particular Bill they are in receives Royal Assent.
Background
The Road Vehicle Standards package of Bills has been
introduced as a replacement for the Motor Vehicle Standards Act, which
has now been in force for nearly three decades. The Motor Vehicle Standards
Act was introduced ‘to give effect to the Australian Government’s
commitment to road safety and environmental quality on a nationally consistent
basis’.[4]
This simplified requirements for industry by making nationally consistent standards
and ensured that members of the public were protected through enforcement of these
national standards. This is especially important in relation to items that are
unable to be seen during purchase, such as the crashworthiness of a vehicle.
The Motor Vehicle Standards Act ‘controls the
safety, environmental and anti-theft performance of all vehicles entering the
Australian market for the first time’, whether new or used.[5]
The number of vehicles entering the Australian market each year, and therefore
under control of this legislation, is substantial. For example, ‘[i]n 2017, over
1.2 million vehicles entered the Australian market for the first time—including
passenger vehicles; heavy, medium and light commercial vehicles; motorcycles;
and trailers’.[6] Over
98% of these vehicles were new. It is predicted that there will be nearly 19
million vehicles registered in Australia for road use by the end of 2018
(approximately double the 9.4 million registered vehicles when the Motor
Vehicle Standards Act was introduced). With the rise in number of vehicles,
changes in technology, and the changes in the national and international
vehicle markets, the Government considers it important that the legislation can
meet these different needs.[7]
Consultation
on reform
Since 2013, the Commonwealth Government has conducted consultation
sessions on and reviews of the Act and associated Regulations to determine
whether or not they were still working efficiently and effectively.[8]
The then-Department of Infrastructure and Transport held a public consultation
on the Motor Vehicles Standards Act 1989 and its Regulations in 2013 to determine
whether the legislation was still fit for purpose, given the change in
‘society’s expectations, technology and the global automotive industry’.[9]
A review was then announced in 2014, looking to reduce
business costs through reducing regulatory burden and also to improve safety.[10]
As well as public consultation sessions and a submission process, the review
included the release of an Options
Discussion paper (which invited responses from the public).[11]
The options considered to increase the efficiency and effectiveness of the Act
included:
- ‘Do
nothing or repeal the Act’—the consultation held in 2013 actually ‘supported in
part’ continuing with the Motor Vehicles Standards Act 1989.[12]
However, the Options Discussion paper suggested that this could possibly result
in outcomes such as the regulatory burden continuing to rise. Repealing the Act
and not replacing it with another national scheme could result in different
standards being applied in different states and territories, potentially
reducing safety, environmental and consumer protection standards, as well as
increasing the regulatory burden.
- ‘Modernise
and strengthen the legislation’—improvements such as simplifying administrative
requirements and clarifying definitions could possibly reduce the burden of
regulatory compliance and implement risk-focused compliance and enforcement.[13]
- ‘Harmonise
with international standards and streamline certification’—both industry and
the Productivity Commission basically supported Australian vehicle standards
aligning with UN standards.[14]
- ‘Reduce
the barriers to the importation of second-hand quality vehicles and personally
imported new vehicles’—the Productivity Commission recommended easing the
importation requirements for second-hand vehicles.[15]
However, reducing the barriers for importation could raise risks to the
community in relation to, for example, safety and consumer protection.[16]
- ‘Consolidate
concession scheme arrangements’—reducing the number of ways that second‑hand
vehicles can be imported could reduce application costs and regulator
interaction.[17]
Three reports were also commissioned by the Government as
part of the 2014 review. Two reports looked at the economic benefits of
reducing restrictions on importing used vehicles, with the second report
concentrating on personal imports from Japan and the UK (both of which have
similar vehicle standards to Australia). The third report examined the crash
risk of vehicles imported through the concession schemes (such as personal
imports or low volume imports) with other vehicles of a similar age.[18]
The Government announced reforms to the Motor Vehicles Standards
Act 1989 in February 2016, designed to give consumers more choice and
reduce the regulatory burden on industry. The proposed changes included
allowing personal import of new vehicles with a consumer ‘able to personally
import a new car or motor cycle from another country with comparable standards
to Australia’s, up to once every two years, if specified conditions are met’
and improving arrangements for import of ‘exotic, rare, classic, collectible
and special purpose vehicles’.[19]
Countries with comparable standards were to be specified by the Government,
consisting at that time of Japan and the UK. Lower industry regulatory costs
were forecast as a consequence of making Australia’s rules more similar to
international standards.[20]
Numerous consultations on the proposed changes were held for industry and
community members in 2016 and 2017.[21]
The Government released exposure drafts of the Road
Vehicle Standards Bill package along with the draft associated Rules on 13
December 2017 for stakeholder consultation.[22]
The Department of Infrastructure, Regional Development and Cities (the
Department) suggests that the new legislation will:
... reduce regulatory compliance costs to business by around
$68 million a year and provide the Australian public with greater choice and
confidence in the vehicle market. The reforms will improve access to specialist
and enthusiast vehicles and ensure that Australia's vehicle fleet continues to
offer world-leading standards in community and environmental safety.[23]
Not all the changes announced in the 2016 reforms
announcement are included in the legislative package. For example, the ability
for consumers to personally import new vehicles from Japan and the United
Kingdom has not been included.
Committee
consideration
Senate
Standing Committee for Selection of Bills
The package of Road Vehicle Standards Bills was referred
to the Senate Rural and Regional Affairs and Transport Legislation Committee
for inquiry and report.[24]
Details of the inquiry are at the inquiry
homepage.[25]
The Committee reported on 7 May 2018, recommending that the
Bill be passed.[26]
Senate
Standing Committee for the Scrutiny of Bills
The Senate Standing Committee for the Scrutiny of Bills
has examined the five Road Vehicle Standards Bills. The Committee had no
comment on the Consequential Provisions Bill,[27]
but had concerns with several aspects of the other Bills.
The Road
Vehicle Standards Bill
Broad
delegation of powers
The Scrutiny of Bills Committee was concerned about
multiple instances of legislative and administrative powers being broadly
delegated. The first instance is in relation to the determination of what constitutes
and what are not road vehicles and road vehicle components for the purposes of
the Bill. Under subclause 6(5) and subclause 7(3), the Secretary of
the Department can determine, by legislative instrument, the classes of
vehicles and components that are road vehicles and road vehicle components,
respectively, for the purposes of the regime. The Committee believes that
significant matters, such as this (as it defines what is controlled by the new
legislation) should be part of the primary legislation, unless there is ‘sound
justification’ for making it part of delegated legislation.[28]
The Bill itself does not contain any limits on this power nor matters that must
be taken into account when the secretary is using this power. As such, the
Committee drew its concerns to the attention of senators and left to the Senate
as a whole the appropriateness of granting the Secretary this broad power.[29]
The Minister subsequently provided additional information,
explaining that sometimes a decision on whether or not a vehicle is a road
vehicle under the legislation is needed quickly, and that it could be a safety
issue if there were delays as a result of the need to amend legislation. The
Minister communicated that this approach was the same as that in the current
legislation and that making these decisions requires very technical information
that is not suitable for primary legislation. These determinations had only
been made twice since the Motor Vehicles Standards Act had come into
effect, with one being a determination that electric wheelchairs and other
personal mobility devices with motors were not road vehicles (as increases in
power in these devices meant they had inadvertently met the definition of a
road vehicle). The Committee noted this extra information, requesting that the
key information provided be included in the explanatory memorandum since it
aids understanding of the law and can be used if required to assist with interpretation
as extrinsic material.[30]
The Committee also raised the issue of broad delegation of
administrative powers in relation to clauses 50 and 52. These
clauses ‘seek to trigger the monitoring and investigation powers under the Regulatory Powers
(Standard Provisions) Act 2014’ for offences related to the Motor
Vehicle Standards Bill.[31]
Subclauses 50(5) and 52(4) seek to allow ‘other people’ to assist
the authorised people carrying out the functions or duties related to the
monitoring and investigation powers. Neither the Bill nor the Explanatory
Memorandum contain any guidance on the ‘other persons’ or any required skills.
This is in contrast to requirements being provided for the inspectors. The
Committee therefore asked the Minister ‘whether it would be appropriate to
amend the [B]ill to require that any person assisting an authorised officer
have specified skills, training or experience’.[32]
The Minister replied that people with a wide range of
skills, including experts in specific fields, may be required for assistance
given technological advances in road vehicles. As well as this, people with
skills such as translation may be required in an investigation. As such,
specifying required skills for these ‘other persons’ in the legislation could ‘limit
the ability of authorised persons to obtain the assistance of appropriately
qualified persons and may jeopardise the monitoring and investigation outcomes
intended under the Bill’.[33]
However, while understanding the need for flexibility, the Committee remained concerned
about people assisting ‘authorised officers in exercising potentially coercive
or investigatory powers’ without a requirement for training in the relevant
powers.[34]
The final issue raised by the Committee in relation to
broad delegation of administrative powers related to delegation of the
Minister’s and Secretary’s functions and powers. Under subclause 73(5),
any of the Minister’s powers and functions existing under the Rules (discussed
under Key Issues and Provisions, below) can be delegated to the
Secretary or any Australian Public Service (APS) employee, with the exceptions of
issuing a recall notice or determining ‘specified matters by legislative
instrument’. Likewise, subclause 74(5) allows all the Secretary’s powers
and functions under the Rules to be delegated to any APS employee. The
Explanatory Memorandum does not explain why these powers of delegation are so
broad, which the Committee considers necessary when the delegation of
administrative powers in legislation goes to ‘a relatively large class of
persons, with little or no specificity as to their qualifications or attributes’.[35]
Although the Explanatory Memorandum does provide principles on the employee
level that should be required for particular types of decisions, none of this is
in the Bill itself, meaning there is no legislative requirement to follow these
principles. The Committee therefore asked the Minister why the Minister’s and
Secretary’s functions and powers under the Rules can be delegated to any APS
employees (with a few restrictions) and whether the Bill can include
legislative guidance on the scope of powers able to be delegated or to which
categories of people these powers can be delegated.[36]
The Minister responded that, under the draft Road Vehicle
Standards Rules, most industry applications will need to be considered by the
Minister or Secretary within 30 to 60 days. There are expected to be
approximately 200,000 decisions required per year on a range of applications,
including type approvals and model reports, and it is more efficient to allow
less complicated or sensitive applications to be dealt with by more staff. The
Minister also explained that a Delegation Instrument is in place in the
Department to manage delegation of powers (with delegation of powers determined
by the Secretary or Minister using a risk management basis) as well as
administrative processes to ensure appropriate use of the delegated powers by
staff.[37]
While the Committee welcomed the information on how the
powers are intended to be delegated, it remained concerned that there is ‘no
legislative guidance as to the scope of powers that might be delegated (with
limited exceptions), or the categories of people to whom those powers might be
delegated’ in the Bill itself.[38]
The Committee therefore requested that the Explanatory Memorandum contain the
key information from the Minister’s response, and drew its concerns to the
notice of the Senators.[39]
Broad
discretionary powers
The Scrutiny of Bills Committee was concerned about the broad
discretionary powers given to the Secretary to determine, by notifiable
instrument, whether a specified vehicle is or is not a road vehicle under subclause
6(6), and whether a specified component is or is not a road vehicle
component under subclause 7(4) of the Bill. Although the Explanatory Memorandum
explains this will allow flexible responses and that the power should be used
in a manner consistent with the Bill’s objects, the Committee noted that ‘these
provisions seek to grant a very broad power to the secretary with no
legislative criteria as to the matters that the secretary must take into
account when making such determinations’.[40]
The Committee went on to say:
The [B]ill also does not set out any right to challenge or
seek review of these determinations. Further, no justification is provided for
including a power to include or exclude specific vehicles and components
in addition to the power to make determinations, by legislative instrument,
with respect to classes of vehicles under subclauses 6(5) and 7(3). The
committee also notes that notifiable instruments are not subject to the
tabling, disallowance and sunsetting requirements imposed on legislative
instruments. Parliamentary scrutiny of determinations made by the secretary
under subclauses 6(6) and 7(4) is therefore likely to be limited.[41]
The Committee asked the Minister why this power was
needed, given the power in subclauses 6(5) and 7(3) (discussed
above); why the Bill cannot include rules or guidance on use of this power; and
whether any form of review will apply to these determinations.[42]
The Minister replied that these powers were needed for individual vehicles as
modifications can easily change their nature and the powers would ensure the
community is protected (from potentially unsafe modifications). Being made by
notifiable instrument meant that the determination would be published and
publically accessible. Approximately 17,000 applications a year are made for individual
vehicle importation and the power is envisaged to be used only in ‘complex
cases where definitive advice is considered by the Secretary to be in the
interests of meeting the objectives of the Bill’.[43]
The Minister said that the Bill’s objects provide ‘the high level principles
that the Secretary needs to consider when making notifiable instruments’.[44]
The Minister did not provide any reasons for review not being available for
determinations made under subclauses 6(6) and 7(4).[45]
Despite the Minister’s information, the Committee remained
concerned about the lack of legislative guidance for use of these powers. The
Committee was also still concerned that the objects of the Bill referred to by
the Minister set out the objects for the whole Bill and that ‘it is not clear
that it would provide any specific guidance in relation to the making of these
specific determinations’.[46]
The lack of merits review of the determinations compounded the Committee’s
concerns over the broad powers granted, with the Committee noting there was no
justification for the lack of review in the Minister’s response. The Committee
drew its concerns to the notice of the Senators and requested that important
information from the Minister be included in the explanatory memorandum.[47]
External
material
Instruments made under the Motor Vehicle Standards Bill are
able to ‘make provision for a matter by applying, adopting or incorporating any
matter contained in any other instrument or writing as in force or existing
from time to time’ in the following situations:
- the
determination of what is or is not a ‘road vehicle’ (subclause 6(8))
- the
determination of what is or is not a ‘road vehicle component’ (subclause
7(6))
- the
determination of national road vehicle standards (subclause 12(2)) and
- in
the Rules or instruments made under the Rules (subclause 82(6)).[48]
Incorporating external documents into law raises a number
of issues, as it ‘can create uncertainty in the law’, means that it is possible
the law can change without parliamentary scrutiny and can make it difficult for
people to access the provisions of the law they are meant to be following.[49]
The Explanatory Memorandum explains that incorporating the
external material is required in relation to subclauses 6(8) and 7(6)
to allow flexibility and currency and is required in relation to subclause
12(2) for ‘flexibility and adaptability’ in response to changes in
technology. [50] In addition,
the documents incorporated under subclause 12(2) are intended to
generally be technical standards from the United Nations (UN) or vehicle
standards from other countries. These tend to be publically available except
when the UN incorporates International Standards Organisation (ISO) standards
or similar with the standards requiring payment for access. The Explanatory
Memorandum explains that the provision is required for subclause 82(6)
so that technical instruments in or made under the Rules can reference
documents to which the National Road Vehicles Standards refer.[51]
Given the explanations in the Explanatory Memorandum, the Committee drew its
concerns about the incorporation of external material to the attention of the
Senate.[52]
The Minister subsequently explained that the ability to
incorporate external material was required to continue harmonising Australia’s
road vehicle standards with international standards. This continues the policy
under section 7A of the Motor Vehicle Standards Act. The Minister also
said that the National Library of Australia has some (although not all)
international standards available for public access. Overall, the Government
believed that the benefits of incorporating international standards (including
the safest vehicles available globally being available in Australia) ‘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’.[53]
In response, the Committee reiterated that it is a ‘fundamental
principle of the rule of law that every person subject to the law should be
able to freely and readily access its terms’.[54]
The Committee further requested that the key provided information be included
in the Explanatory Memorandum, and drew the attention of the Senate to its continuing
concerns.[55]
Evidential
burden of proof
The evidential burden of proof is reversed multiple times in
the Road Vehicle Standards Bill due to offences that contain offence-specific
defences:
- subclauses
16(1) and 16(2) create the offence of entering or authorising ‘another
person to enter, a vehicle on the Register of Approved Vehicles (RAV) if the
vehicle does not satisfy the requirements of an “entry pathway”’.[56]
Subclause 16(3) provides an exception to this offence if a component,
which a supplier said was an approved type (but did not meet the standards),
was used in accordance with the road vehicle standards during vehicle
manufacture and that otherwise the entry pathway requirements would have been
met
- subclause
24(1) creates the offence of providing a road vehicle for the first time
that is not on the RAV. Subclauses 24(3) and 24(4) provide
exceptions to this in particular circumstances, including in circumstances specified
in the Rules, and
- subclause
32(1) creates the offence of giving false or misleading information with subclause
32(2) providing an exception if the information is ‘not false or misleading
in a material particular’.[57]
The Committee stated:
Subsection 13.3(3) of the Criminal Code Act 1995
provides that a defendant who wishes to rely on any exception, exemption,
excuse, qualification or justification bears an evidential burden in relation
to that matter.
At common law, it is ordinarily the duty of the prosecution
to prove all elements of an offence. This is an important aspect of the right
to be presumed innocent until proven guilty. Provisions that reverse the burden
of proof and require a defendant to disprove, or raise evidence to disprove,
one or more elements of an offence, interferes with this common law right.
While in these instances the defendant bears an evidential
burden (requiring the defendant to raise evidence about the matter), rather
than a legal burden (requiring the defendant to positively prove the matter),
the committee expects any such reversal of the evidential burden of proof to be
justified.[58]
The Committee further noted that according to the Guide
to Framing Commonwealth Offences, only matters that are ‘peculiarly
within the knowledge of the defendant’ and ‘significantly more difficult
and costly for the prosecution to disprove than for the defendant to establish
the matter’ should be in an offence-specific defence.[59]
This is in contrast with the general explanation in the Explanatory Memorandum
that the matters need to meet one of these criteria. While the Explanatory
Memorandum did contain further explanation for some of the offence-specific
defences, the Committee did not consider it justified their use and so asked
the Minister for justification.[60]
The Minister subsequently explained that, in relation to subclause
16(3), the type-approval holder holds the relevant documentation (as they
are required to keep it as supporting documentation as part of their
application) and that it would be significantly more difficult and costly for
the Department to access, due in part to the resource intensity of
understanding the production process. In relation to clause 24, it was
also explained that the Department would not have the documentation in the
specific situation of vehicles imported under intergovernmental agreements currently
included in the draft Rules (paragraph 24(3)(f)) and that in relation to
non-RAV entry import (paragraph 24(4)(a)), the importer has the required
vehicle and documentation, making it much harder for the Department to prove.
The Minister also provided an example for subclause 32(1) where the
information would be peculiarly within the knowledge of the defendant, and
stated that ‘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’.[61]
Given the Minister’s responses, the Committee had no
further comment on the reversal of the evidential burden of guilt in paragraphs
16(3)(a), (c), and (d) and 24(4)(a). However, in
relation to paragraph 24(3)(f), the Committee did not think the matter
was definitely peculiarly within the defendant’s knowledge. Also, given that
the exception is reliant on the delegated legislation, rather than the primary
legislation, the situation could change and other circumstances could ‘be
prescribed that are clearly not peculiarly within the knowledge of the
defendant or significantly more difficult and costly for the prosecution to
disprove’.[62]
In relation to subclause 32(2), the Committee, despite acknowledging
that in the example provided by the Minister the information was peculiarly
within the knowledge of the defendant, was not convinced that this would always
be the case in other situations that could fall under this subclause. As such,
it was not clear to the Committee that it was ‘appropriate to reverse the
evidential burden of proof in relation whether a document or information is not
false or misleading in a material particular’.[63]
The Committee requested that important information from the Minister be
included in the Explanatory Memorandum, and drew its concern about paragraph
24(3)(f) and subclause 32(2) to the attention of senators.[64]
Strict
liability offence
Clause 38 creates a strict liability offence for
refusal or failure to obey a recall notice or for supplying a road vehicle or component
that is the subject of a recall notice. General principles of criminal law
require a person to be proved at fault before they are found guilty, ensuring
that people are not liable if they are not sufficiently aware of their action
and its potential consequences. However, in the case of strict liability
offences, the prosecution does not need to prove that the defendant intended to
engage in a particular action, or was negligent or reckless. As the imposition
of strict liability undermines general criminal law principles, the Scrutiny of
Bills Committee expects clear justification for strict liability offences to be
included in the Explanatory Memorandum, including whether it is consistent with
the Guide to Framing Commonwealth Offences.
Clause 38 imposes a maximum penalty of 1,050
penalty units for an individual and 5,250 penalty units for a body corporate
(currently equivalent to $220,500 and $1,102,500, respectively).[65]
The Guide to Framing Commonwealth Offences, however, says that ‘strict
liability is only considered appropriate where the offence is not punishable by
imprisonment and only punishable by a fine of up to 60 penalty units for an
individual’.[66]
The Explanatory Memorandum considers strict liability is required in this
situation ‘to “ensure the integrity of the regulatory regime, particularly when
failure to comply with the recall notice could cause significant health or
environmental risks to the Australian public”’ and that persons in the industry
are already aware of strict liability offences in this regard.[67]
However, the Explanatory Memorandum contains no ‘direct justification for the
very significant penalties proposed, particularly with respect to individuals,
in a context where there is no requirement to prove fault’.[68]
Given this, the Committee drew its concerns to the Senate’s notice.
The Minister subsequently explained that both strict
liability and the penalty amount were required for the ‘integrity of the
regulatory regime’, thus making the use of strict liability compatible with the
Guide to Framing Commonwealth Offences.[69]
The Minister explained the penalty amount needed to be high enough so that
non-compliance with a recall was not more attractive than undertaking a (likely
to be expensive) recall. The Minister also explained that it was unlikely that
an individual would commit this offence. The provisions were also consistent
with the provisions under the Australian Consumer Law that apply to those
supplying consumer goods, including road vehicles.[70]
The Committee welcomed the Minister’s explanation, requesting that the
important information be contained in the Explanatory Memorandum and otherwise
had no further comment on this issue.[71]
Self-incrimination
The Scrutiny of Bills Committee was concerned that aspects
of the Bill may override the common law principle of a person being excused
from giving evidence that will incriminate him or herself in particular
circumstances. Clause 41 allows for disclosure notices requiring
information to be provided in particular circumstances. Subclause 42(1)
then provides that the information requested in the disclosure notice must be
given even if it tends to incriminate the person or expose them to a penalty.
However, subclause 42(2) provides use immunity for the individual, by
providing:
... the information, evidence or documents provided in response
to a disclosure notice are not admissible in evidence against the individual in
civil or criminal proceedings, with the exception of proceedings relating to a
refusal or failure to comply with a disclosure notice, knowingly providing
false or misleading information in response to a disclosure notice, or
knowingly giving false or misleading information to a Commonwealth entity.[72]
However, the Bill does not prevent indirectly obtained information
being used in criminal proceedings against the person. The Committee understood
that there are appropriate circumstances where the privilege against
self-incrimination is overridden. However, it also believes that it is ‘more
likely to be considered appropriate if accompanied by a use and derivative use
immunity’.[73]
The Explanatory Memorandum explained that abrogating the privilege against
self-incrimination was required as information may need to be gathered quickly
where road vehicles or components are believed to be a risk. However, no
explanation was given for why use immunity was given but not derivative use
immunity. Given this, the Committee requested the Minister to explain why there
was no derivative use immunity provided in this situation.[74]
The Minister explained that it was not appropriate to have
derivative use immunity in this situation for a number of reasons, including:
- it
ensures consistency with the Australian Consumer Law, so as to ‘prevent
suppliers of road vehicles “legislation shopping” by pressuring regulators to
use legislation with more lenient compliance tools’
- it
may delay the release of information from non-compliant suppliers required to
protect the community from harm, as the derivative use immunity could provide
an incentive to withhold information and ‘then use the subsequent disclosure
notice to “confess” to other serious non-compliance’ and
- there
are very limited circumstances where evidence will be required from an
individual, as it is most likely type approval holders that would receive a
disclosure notice.[75]
Given this information, the Committee requested that the
important information from the Minister be included in the Explanatory
Memorandum and otherwise had no further comment.[76]
Judicial
review limits
Under subclause 62(1), computer programs can be
used by the Minister ‘for any purposes for which the Minister may, or must,
under the Bill make a decision, exercise any power or comply with any
obligation, or do anything else related’ to this.[77]
Under subclause 62(2), anything done by the computer program in the
above circumstances is taken to have been done by the Minister. Subclause
63(1) then allows the Minister to substitute a decision for one made by the
program if:
- the
program was not working correctly when the decision was made (paragraph
63(1)(a))
- the
substituted decision could have been made under the same provision as the
initial decision (paragraph 63(1)(b)) and
- the
substituted decision is more favourable to the applicant (paragraph 63(1)(c)).
However, subclause 63(2) states that the Minister,
even if requested, does not have to consider whether to use this power in
respect of any decision. The Explanatory Memorandum does not explain why this
‘no-duty-to-consider’ clause is included, despite saying that ‘subclause
63(1) would allow the minister to “correct adverse decisions without the
need for applicants to seek external review when it is the computer program
itself that has made an error”’ and ‘that nothing in this subclause is intended
to affect any merits review entitlements that an applicant may have’.[78]
The Committee noted that it is hard to determine whether
the remaining merit review entitlements are sufficient as the Motor Vehicle
Standards Bill allows the rules to specify review entitlements for administrative
decisions. It also noted that although the High and Federal Courts can still
undertake judicial review of no-duty-to-consider clauses, the judicial review
is less effective ‘where no decision to consider the exercise of a power has
been made’ and that ‘[e]ven where a decision has been made to consider the
exercise of the power, some judicial review remedies will not be available’.[79]
As such:
The committee considers it may be appropriate to amend the
no-duty-to consider clause to ensure it does not apply where the minister is
made aware of facts that indicate that an adverse decision has been made as a
result of a computer program not functioning correctly. The committee requests
the minister's response on this matter and an explanation as to why proposed
subclause 63(2) is otherwise considered necessary and appropriate.[80]
In response, the Minister stated that a discretionary
power was considered apt by the Government, explaining that making it a duty to
consider exercising the power in subclause 63(1) could ‘place an undue
burden on the Minister’.[81]
The Minister anticipated that minimal cases would be referred for
reconsideration and ‘that the Minister would consider whether to exercise the
power, where reasonably asked to do so’.[82]
The Scrutiny of Bills Committee noted the explanation from
the Minister of a possible ‘undue burden’:
However, the committee does not consider that amending the
no-duty-to-consider clause to ensure that it does not apply where the minister
is made aware of facts that indicate that an adverse decision has been made as
a result of a computer program not functioning correctly would amount to there
being a positive duty to consider whether to exercise the power in relation to
every computer-based decision. The committee's suggestion would merely make it
clear that the no-duty-to-consider clause would not apply in the limited
circumstance where the minister is made aware of facts that indicate that an
adverse decision has been made as a result of a computer program not
functioning correctly. In this way, the practical concerns raised by the
minister may be balanced against the committee's concern about the breadth of
this power and the limited facility for review of its exercise.[83]
The Committee requested that the important information
from the Minister be included in the Explanatory Memorandum, and drew its
concern about this matter to the attention of senators.[84]
Liability
immunity
The Scrutiny of Bills Committee was also concerned about clause
81 in the Road Vehicle Standards Bill, which attempts to severely limit the
common law right to bring an action to enforce legal rights. Subclause 81(1)
seeks to prevent legal proceedings being brought against the Commonwealth,
including for loss or damage, because of a reliance on certain matters done
under the Act. In addition, subclause 81(2) prevents proceedings
(whether criminal or civil) against the Minister; the Secretary; an inspector;
or a Department APS employee; for anything done or not done in good faith under
the Bill. The Committee noted that ‘bad faith can only be shown in very limited
circumstances’ as it ‘is said to imply a lack of an honest or genuine attempt
to undertake the task and that it will involve a personal attack on the honesty
of the decision-maker’.[85]
The Explanatory Memorandum provides no explanation for this. Given that, the
Committee requested the Minister to explain why it is appropriate to limit
legal proceedings, ‘such that affected persons would have their right to bring
an action to enforce their legal rights removed or limited to situations where
a lack of good faith is shown’.[86]
The Minister explained that ‘[c]lause 81 of the Bill is a
policy continuation of section 37 of the Motor Vehicle Standards Act.’[87]
He went on to explain that the Department is not able to inspect each of the
over 1.2 million vehicles that enter the Australian market annually, relying on
approval holders to provide evidence that each vehicle meets requirements.
Despite aptly trained staff, it is still possible that losses could occur due
to reliance on decisions made under the Bill, such as approvals granted due to,
for example, fraud by the approval holder. It would therefore be unfair to make
the Minister, Secretary or staff responsible legally for such loss if they have
acted in good faith. In addition, the extra ‘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’
which would be detrimental to consumers, the public and the Australian
automotive industry.[88]
The Minister concluded by saying that clause 81 does not prevent claims
against persons who did not act in good faith and that it prevented ‘frivolous
claims’.[89]
The Scrutiny of Bills Committee noted the Minister’s
advice but restated its concerns ‘that clause 81 appears to remove any
common law right to bring an action to enforce legal rights, except where a
lack of good faith can be demonstrated’.[90]
The Committee also noted the Minister did not explain why actions could not be
brought against the Commonwealth. The Committee requested that important
information provided by the Minister be included in the Explanatory Memorandum
and made no further comment.[91]
Reviews of
decisions
The Scrutiny of Bills Committee also raised concerns about
the availability of review of decisions made under the Road Vehicle Standards
Bill. Subclause 82(1) grants the Minister the power to make rules by
legislative instrument. Without limiting subclause 82(1), subclause 82(2)
contains a list of matters that may be prescribed by the rules, including ‘provide
for and in relation to the review of a decision made under this Act, the rules
or any instrument made under the rules’ (paragraph 82(2)(c)).The
Committee noted that subclause 82(2) only says that rules may be
made in relation to these matters; they do not have to be made. There is no
other provision in the Bill for persons to seek review (either internal and
external) and the Bill does not list any decisions as being reviewable under
the Administrative
Appeals Tribunal Act 1975, meaning reviews cannot be carried out by the
Administrative Appeals Tribunal (AAT). In contrast, the Motor Vehicle
Standards Act has a number of ministerial decisions subject to AAT review
(see section 39).
The Explanatory Memorandum does not explain why rules were
allowed to specify the review rights of administrative decisions nor ‘why it is
appropriate not to require that the rules make provision for review
rights’.[92]
If important matters such as merits review are not included in the primary
legislation, as the Committee believes they should be, the Committee considers
that it should be a minimum requirement that the ‘delegated legislation set out
what decisions will be subject to review rights’.[93]
The Committee therefore requested the Minister to explain:
... why the bill does not set out which decisions will be
subject to merits review before the Administrative Appeals Tribunal, and why,
at a minimum, the bill does not require the rules to provide for and in
relation to the review of decisions made under the bill.[94]
The Minister explained that allowing the Rules to specify
which decisions are subject to merit review ‘allows for a more nuanced and
considered approach to merits review’ as it allows the Minister to consider
whether each individual decision point is suitable for merits review.[95]
The Minister also noted that ‘the draft Rules provide extensive rights to merit
review by the AAT’.[96]
The Committee noted the Minister’s response, and reiterated ‘its preference
that, as it is a significant matter, the availability of merits review should,
wherever possible, be set out in primary legislation’.[97]
The Committee requested that important information provided by the Minister be
included in the Explanatory Memorandum and made no further comment.[98]
The Charges
(General), Charges (Customs) and Charges (Excise) Bills
The Scrutiny of Bills Committee had the same concern for
all three of the Bills related to charges—the Charges (General) Bill, the
Charges (Customs) Bill and Charges (Excise) Bill. Clause 6 of the
Charges (General) and Charges (Customs) Bills and clause 5 of the
Charges (Excise) Bill allow for the imposition of charges, imposed as a tax, in
relation to prescribed matters related to the administration of the Road
Vehicle Standards Bill or the Consequential Provisions Bill. Clause 7 of
the Charges (General) and Charges (Customs) Bills and clause 6 of the
Charges (Excise) Bill state that a Regulation may prescribe these charges
through the specification of an amount or a method to calculate the amount.
However, there is no further guidance or limitation in the Bills on the amounts
of the charges.
The Committee stated that ‘[o]ne of the most fundamental
functions of the Parliament is to impose taxation (including duties of customs
and excise)’ and ‘that it is for the Parliament, rather than makers of
delegated legislation, to set a rate of tax’.[99]
The Committee expressed concern that the Bills do not set a limit on the charge.
The Bills also do not contain guidance restricting the charges to reflect the
Explanatory Memorandum’s statement that the charges are for cost recovery and
should not raise money beyond costs of administering the Road Vehicle Standards
Bill and the Consequential Provisions Bill, including services to regulated
bodies. The Committee requested the Minister’s advice as to why the Bills do not
specify a maximum charge and also ‘whether guidance in relation to the method
of calculation of these charges and/or a maximum charge’ can be included in
each Bill.[100]
The Minister responded that having the charge amount
and/or calculation method in the Regulations, rather than the legislation,
gives the required flexibility to change the amount quickly when required to
avoid over or under charging without having to amend legislation. A Draft
Cost Recovery Implementation Statement has already been released for consultation,
and the Department has committed to review charges made in the future. The
Minister also noted that Regulations are subject to parliamentary scrutiny from
the Senate Standing Committee on Regulations and Ordinances and disallowance. Based
on all these factors, ‘the Government does not believe a method of calculation
to these charges and/or a maximum charge can be specifically included in each
Bill’.[101]
The Scrutiny of Bills Committee, while acknowledging the
Minister’s reply, reiterated its previous objections, and added that it did not
think amendments to legislation would be regularly required if a maximum charge
was included in the Bill. If that was not suitable, then ‘guidance as to the
method of calculation of the charge...could still be provided on the face of the
primary legislation’.[102]
The Committee requested that ‘the key information provided by the minister be
included in the explanatory memorandum’ as well as drawing its concerns to the
attention of senators and the Senate Standing Committee on Regulations and
Ordinances.[103]
Policy position
of non-government parties/independents
The only aspect of the Road Vehicle Standards Bill and
associated Bills that Labor appears to have commented on is an exclusion from,
rather than an inclusion in, the Bills. Labor supported the decision of the Turnbull
Government to not allow personal importation of new vehicles from Japan and the
United Kingdom (see Background for information on this possible
importation). Senator Kim Carr, Shadow Minister for Innovation, Industry,
Science and Research said ‘the Government had done the right thing in heeding
warnings from the automotive industry that safety and service standards could
not be guaranteed in direct personal imports of cars’.[104]
At the time of writing, there do not appear to have been
any other comments from non‑government parties or independents on the
Road Vehicle Standards Bill and its associated Bills.
Position of
major interest groups
Opinions on the new road vehicles scheme have been mixed. While
the modernisation of the legislation was often welcomed (for example, by the Caravan
Industry Association of Australia, VicRoads and the Australian Historic
Motoring Federation and Council of Heritage Motoring Clubs NSW), not all bodies
believed that the regulatory compliance burden is necessarily reduced by the
new scheme.[105]
Multiple groups, including the Australian Automotive Dealer Association (AADA) and
the National Road Transport Association (NatRoad), also approve including a
power to recall vehicles when necessary.[106]
However, the difficulty in enforcing an Australian recall (as well as enforcing
other parts of the scheme) on an overseas company (due to extraterritorial
application of the Road Vehicle Standards Bill) was raised by bodies such as
the Truck Industry Council.[107]
The RAWS Association (which represents small businesses that import used
vehicles not sold in Australia by major brands) fears that its industry could
be wiped out by the new road vehicles scheme.[108]
Numerous groups representing heavy vehicles believe that
the legislation is too focused on light vehicles (such as cars). For example, NatRoad
stated that ‘[t]here appears to be a very firm focus on the regulatory regime
being designed for light vehicles, especially cars’, despite truck
manufacturing still occurring in Australia and heavy vehicles being ‘a very
important component of Australia’s economy’.[109]
There were also concerns about how the new legislation would fit with existing
legislation. In its submission to the Department of Infrastructure, Regional
Development and Cities, 2018 Public Consultation on the new Road Vehicle
Standards legislation, the Heavy Vehicle Industry Australia (HVIA) was
concerned that ‘the current draft legislation and rules may result in
confusion/ difficulties in the interaction between the Road Vehicle Standards
Act and the Heavy Vehicle National Law’.[110]
Numerous bodies have contended that clarity is lacking and
some provisions in the new legislation are confusing. For example, the extent
to which components are regulated under the new legislation was regarded as
unclear by NatRoad:
... section 7 deals with the regulation of some road vehicle
components. The extent of regulation is confusing. The provision is very
complex. The EM, for example, says in a somewhat circular manner: This Bill
regulates approved road vehicle components that have a road vehicle component
type approval...
The Bill should...be clearer and should better indicate the
intention expressed in the EM [Explanatory Memorandum] that the regulation of
components is on an opt-in basis and that it is not intended that a component
would be approved if it is for general sale directly to consumers.[111]
The provisions in the Road Vehicle Standards Bill related
to modification of vehicles have also raised concern. As well as a perceived
lack of clarity in the legislation, bodies such as HVIA are concerned that
application of these provisions could result in safety problems and industry
disruption in relation to heavy vehicles, although this could potentially be
addressed in the Rules.[112]
Financial
implications
The Explanatory Memoranda for the Road Vehicle Standards
Bill and Consequential Provisions Bill state that the Bills will not have a
significant financial impact on the Commonwealth.[113]
The three Charges Bills (Charges (General) Bill, Charges (Customs) Bill and the
Charges (Excise) Bill) ‘provide a framework for recovery [of] costs associated
with the administration of the Road Vehicle Standards Bill’.[114]
This will offset the costs imposed on the Commonwealth from regulating road
vehicle importation and supply.[115]
Statement of Compatibility with Human Rights
As required under Part 3 of the Human Rights
(Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the
Bills’ compatibility with the human rights and freedoms recognised or declared
in the international instruments listed in section 3 of that Act. The
Government considers that the Road Vehicle Standards Bill, Consequential
Provisions Bill, Charges (General) Bill, Charges (Customs) Bill and the Charges
(Excise) Bill are compatible.[116]
Parliamentary
Joint Committee on Human Rights
The Parliamentary Joint Committee on Human Rights was
concerned that the Road Vehicle Standards Bills potentially limited three human
rights. The Committee was concerned that the inclusion of a use immunity but
not derivative use immunity in clause 42 could infringe on the human
right to not incriminate oneself and that subclauses 16(3), 24(3)–(4),
32(2) and 43(2) reverse the burden of proof, affecting the right
to presumption of innocence (both discussed above in Senate Standing
Committee for the Scrutiny of Bills). The Committee was also concerned that
the ‘coercive evidence gathering powers’ in clause 41 (where disclosure notices
can require information; discussed in Senate Standing Committee for the
Scrutiny of Bills and Key Issues and Provisions) could limit the
right to privacy.[117]
The Committee sought further information from the Minister on the compatibility
of these matters with the raised human rights, including whether the
limitations to the rights are ‘reasonable and proportionate measure[s] to
achieve the stated objective[s]’.[118]
The Parliamentary Joint Committee on Human Rights did not
raise any human rights concerns for the Consequential Provisions Bill, Charges
(General) Bill, Charges (Customs) Bill) or the Charges (Excise) Bill.[119]
Key issues
and provisions
The Road
Vehicle Standards Bill
The Road Vehicle Standards Bill is the main Bill in the
package of Bills introducing the new road vehicles scheme.[120]
One major issue that applies to the whole Bill is that little detail is
included in the primary legislation. Instead, the Bill provides an overarching
framework and the detail of how the scheme will operate is left to ‘rules’ made
by the Minister under clause 82 of the Bill. Major parts of the Bill,
including, for example, requirements for meeting the entry pathway to be
entered on the Register of Approved Vehicles (RAV) or Specialist and Enthusiast
Vehicles Register (SEVs Register) are left to the rules. Although the rules
will be a legislative instrument, disallowable by either House of Parliament,
this greatly reduces the level of parliamentary scrutiny that can apply to the
scope and actual operation of the scheme and limits present clarity of the
scheme.[121]
Despite the public consultation that has been carried out on the new
legislative package, including the draft rules, interest groups such as the Motor
Trades Association of Australia Limited (MTAA) are concerned at the lack of
clarity for many parts of the Bill.[122]
Preliminary Provisions
Part 1 of the Road Vehicle Standards Bill contains
the preliminary provisions for the new legislative framework for Regulation of
the importation and supply to market of road vehicles, and provision of some
road vehicle components. The preliminary provisions include the objects of the
regime in clause 3 and relevant definitions in clause 5. This
includes a definition of ‘motor vehicle’ as a vehicle that either uses or is
designed to use as the main means of propulsion ‘volatile spirit, gas, oil,
electricity or any other power (other than human or animal power)’ or more than
one of these powers. The definition excludes vehicles used exclusively on a
railway or tramway.
Clauses 6 and 7 define what is regulated
under the Bill: clause 6 contains the meaning of road vehicle, while clause
7 contains the meaning of road vehicle component.
Definition
of road vehicle
The meaning of road vehicle is broad, encompassing under subclause
6(1) any of the following:
(a) a motor vehicle
designed at least mainly for transport on public roads
(b) a trailer or vehicle
(including wheeled equipment) designed to be towed by a motor vehicle on public
roads
(c) a vehicle within
a class of vehicles determined to be road vehicles by the Secretary under subclause
6(5) and not determined by the Secretary to not be a road vehicle under paragraph
6(6)(b)
(d) a vehicle determined
to be a road vehicle by the Secretary under paragraph 6(6)(a)
(e) any partially completed
or unassembled vehicle that would otherwise fall into any of the previous
categories.
This ensures that not just motorbikes, cars and heavy
vehicles but also items like caravans are regulated through this Bill.
Subclause 6(3) states that when determining if a vehicle
(or a towed vehicle or trailer) is designed at least mainly for transport on
public roads under paragraphs 6(1)(a) and 6(1)(b), ‘regard is to
be had only to the physical and operational features’. The Explanatory
Memorandum explains that this an objective test, and that the subjective intent
of the designer is not relevant.[123]
Subclause 6(2) provides that a vehicle becomes a road vehicle at
the time it is entered on the RAV if:
- the
person holds type approval for a vehicle of that type
- that
type is not a road vehicle under subclause 6(1) and
- the
person enters or authorises entry of a vehicle of that type on the RAV as
permitted under the Road Vehicle Standards Bill.
Subclause 6(5) allows the Secretary to determine
classes of vehicles that are or are not road vehicles. Under subclause 6(6),
the Secretary may also determine that a specified vehicle is or is not a road
vehicle. Subclause 6(8) further permits an instrument under subclauses
6(5) and 6(6) to make provision in relation to a matter through the
incorporation of external instruments or documents to allow determinations to
adopt industry standards.[124]
Definition
of road vehicle component
Subclause 7(1) provides that a road vehicle
component is any of:
- ‘a
component to be used in the manufacture of a road vehicle, including an
assembly’ (paragraph 7(1)(a))
- a
component that is within a class determined to be road vehicle components by
the Secretary under subclause 7(3) and not determined to not be a road
vehicle component by the Secretary under paragraph 7(4)(b) or
- a
component determined to be a road vehicle component by the Secretary under paragraph 7(4)(a).
The Explanatory Memorandum explains that Regulation of
components is intended to occur on an opt-in basis and that ‘it is not intended
that all components...will be regulated by this Bill’.[125]
The Regulation of components will also only apply to those used in the original
manufacturing process and not aftermarket spare parts. Interest groups, such as
NatRoad, have mentioned that the legislation does not specify which components
will need to be regulated, and that the explanation in the Explanatory
Memorandum that the ‘Bill regulates approved road vehicle components that have
a road component type approval’ does not add clarity.[126]
Subclauses 7(3), 7(4), 7(6) and 7(7)
provide the same powers to the Secretary respectively as in subclauses 6(5),
6(6), 6(8) and 6(9) (described above) except in relation
to road vehicle components instead of road vehicles. As discussed earlier in
this Digest, the Senate Scrutiny of Bills Committee raised a number of concerns
with these provisions, including the broad discretion provided to the Secretary
to determine what is regulated by the Bill and the incorporation of external
documents. Some stakeholders such as NatRoad were also concerned by the
accessibility of external documents incorporated into law:
There should be a duty on the Minister or the Secretary to
have all documents so incorporated readily accessible to the public on a
publicly available register displayed, say, on the Departmental web site or
linked electronically within the instrument created.
The industry is already burdened with the requirement from
time to time to access expensive Australian Standards and ISO documents. The
cost of accessing other documents should not become a regulatory burden and
hence NatRoad’s contention about accessibility. The preferred position is for
instruments to be self-contained to the extent possible, accessible and in
plain language.[127]
Clause 10 states that the Bill has extraterritorial
application, applying outside of Australia. The Explanatory Memorandum explains
that this is required for the Bill to operate effectively, as the majority of road
vehicle manufacturing occurs overseas and the Bill allows approval holders to
be outside Australia.[128]
Regulation
of road vehicles and road vehicle components
Part 2 of the Road Vehicle Standards Bill provides
the Regulation of road vehicles and components through:
- permitting
the Minister to make national road vehicle standards
- creating
the Registers of Approved Vehicles and Specialist and Enthusiast Vehicles
- creating
offences and civil penalty provisions to enforce that only permitted vehicles
are imported or provided to consumers
- permitting
rules to be made to support the legislative framework and
- other
related matters.
National Road
Vehicle Standards
Subclause 12(1) provides that the Minister may
determine national road vehicle standards for vehicles or components that: make
use of the road vehicle safe; limit gas, particles or noise emissions; protect
vehicles from theft; provide security markings and/or promote energy savings. This
will allow the Government to implement its intention of ‘applying appropriate
safety, environmental performance and security standards to vehicles entering
the Australian market for the first time’ and should allow the implementation
of fuel efficiency standards for new cars if desired.[129]
This is similar to the current scheme in that the Minister also makes standards
under the current regime (the Australian Design Rules), which will initially
carry over into the new regime (as per the Consequential Amendments Bill). The
standards determined under subclause 12(1) will be a disallowable
legislative instrument.
Subclause 12(2) allows for the incorporation of
external materials into the road vehicle standards, which the Explanatory
Memorandum explains are generally international agreements. This aids
harmonisation with international standards in an efficient manner.[130]
Incorporating the external materials into the standards raises the same issues
of the law changing without notice when the external documents change, access
difficulties and expense, and lack of parliamentary scrutiny as discussed
above. This was raised by the Senate Standing Committee for Scrutiny of Bills
and is discussed further under Committee Consideration: Senate Standing
Committee for the Scrutiny of Bills.
Register of
Approved Vehicles
The Register of Approved Vehicles (RAV) is established
under Division 3 of Part 2 of the Road Vehicle Standards Bill. The
RAV is intended to be main entry pathway for road vehicles into Australia. Clause
14 provides that the Secretary must ensure that the RAV is kept, and must
be maintained electronically. Clause 15 states that a vehicle can be
entered on the RAV if it meets the requirements of an entry pathway. Three
entry pathways are specified in subclause 15(2):
- the
type approval pathway
- the
concessional RAV entry pathway or
- a
pathway set out in the rules.
The Bill contains no further detail on what is involved in
meeting the requirements of these pathways, despite the Bill prohibiting ‘the
provision of a road vehicle in Australia unless that vehicle is on the register
or a relevant exception applies’ and numerous offences in the Bill related to
the RAV.[131]
However, clause 19 states that the rules must provide for the keeping of
the RAV (including content and who may enter information) and the requirements
of an entry pathway. These are the only items for which rules must be
made in relation to the RAV.
Under clause 16, it is an offence to enter a
non-compliant vehicle on the RAV. An exception is created by subclause 16(3)
for situations when a vehicle would otherwise meet entry requirements, except
for the use of a non-compliant component that the supplier said was approved.
However, the evidential burden in relation to this exception is on the defendant,
reversing the normal common law principle that the prosecution needs to prove
the offence. The Senate Standing Committee for Scrutiny of Bills raised this
issue; it is discussed further under Committee Consideration: Senate
Standing Committee for the Scrutiny of Bills.
Subclause 16(4) provides that a person commits an
offence if they contravene subclauses 16(1) or 16(2). Under subclause
16(5) the offence applies even if the contravention occurs overseas. The
maximum penalty for the offence in clause 16 is 120 penalty units for an
individual (currently equivalent to $25,200) and $126,000 for a body corporate.[132] A civil
penalty with the same maximum penalty is also created for a breach of subclauses
16(1) or (2).[133]
If a contravention of subclauses 16(1) or (2) is prosecuted as an offence, the prosecution
will need to meet the criminal standard of proof, which is ‘beyond reasonable
doubt’. If the contravention is to be addressed by seeking a civil penalty order,
the civil standard of proof will apply, where the contravention must be
established on the balance of probabilities. Although the maximum penalty is
the same for both the offence and the civil penalty, additional non-monetary
consequences, such as a criminal record, may flow from conviction for a
criminal offence.
Section 88 of the Regulatory Powers (Standard
Provisions) Act provides that a civil penalty order cannot be made against
a person for contravention of a civil penalty provisions if the person has been
convicted of an offence constituted by the same, or substantially the same,
conduct. However, criminal proceedings may be commenced against a person for
conduct that is the same, or substantially the same, as conduct that would
constitute a contravention of a civil penalty provision, regardless of whether
a civil penalty order has been made against the person in relation to the
contravention.[134]
Clause 17 creates an offence for dishonestly or
improperly entering information on the RAV, with a maximum penalty of 120
penalty units or $25,200 for an individual and $126,000 for a body corporate. Clause
18 creates an offence for incorrectly entered material on the RAV, with a
maximum penalty of 60 penalty units or $12,600 for an individual and $126,000
for a body corporate. Both these offences also apply to people outside of
Australia.[135]
The Explanatory Memorandum explains that for clauses 17 and 18, a
separate penalty applies each time a vehicle is entered incorrectly.[136]
Concern has been raised by stakeholders in relation to the possible compounding
of penalties for the same error repeated multiple times:
... the fact that there might be one mistake in respect of 50
vehicles that are replicated on the register resulting in 50 contraventions per
clause 18 seems too harsh. With the current value of a penalty unit at $210.00
(from 1 July 2017) and the maximum fine of 60 penalty units the incorrect
information being inadvertently recorded has a potential fine in those
circumstances of $630,000...[137]
A person contravenes subclause 24(1) if they
provide a vehicle to another person for the first time in Australia and it is
not on the RAV. This conduct may constitute an offence (subclause 24(5))
or a breach of a civil penalty provision (subclause 24(6)). The maximum
penalty for both is 120 penalty units ($25,200) for an individual or $126,000
for a body corporate.[138]
Exceptions are listed in subclauses 24(3) and 24(4) and include,
for example, if the road vehicle is provided to another person to store it or
if the person holds a relevant non-RAV entry import approval.[139]
However, these exceptions again reverse the evidentiary burden of proof. The
Senate Standing Committee for Scrutiny of Bills raised this issue; it is
discussed further under Committee Consideration: Senate Standing Committee
for the Scrutiny of Bills.
Specialist
and Enthusiast Vehicles (SEVs) Register
Clause 20 provides that the Secretary must keep a
register known as the Register of Specialist and Enthusiast Vehicles (SEVs
Register) in electronic form, which is available on the Department’s website. The
note under subclause 20(1) states that the ‘SEVs Register relates to one
of the eligibility criteria of the concessional RAV entry approval pathway’. Clause
21 provides that rules must be made for the keeping of the register and may
be made in relation to SEVs Register application. No further information on the
criteria is included in the legislation, with the Explanatory Memorandum
explaining that eligibility criteria will be in the Rules.[140]
Importation
of Road Vehicles
Clause 22 deals with importation of vehicles into
Australia, which given the lack of car manufacturing into Australia, will apply
to the majority of Australian road vehicles. Subclause 22(2) provides a
person is allowed to import a road vehicle if:
- the
person is the holder of an in force road vehicle type approval and the road
vehicle is the type covered in the type approval
- the
person is authorised in writing by the holder of the in force road vehicle type
approval and the road vehicle is the type covered by the type approval
- the
person is the holder of an in force import approval and the vehicle is specified
in the approval or
- a
situation in the rules applies at the time of importation.
It is an offence to import a road vehicle without relevant
approval. The maximum penalty for an individual is 120 penalty units ($25,200)
or $126,000 for a body corporate.[141]
A civil penalty with the same maximum penalty is also created for a breach of subclauses
22(1).[142]
Clause 23 allows that rules may be made in relation
to granting approvals for importing road vehicles, conditions and changes of
approvals or obligations of former holders of approvals.
Modifying
road vehicles
Division 7 of Part 2 applies to modifications
of road vehicles. Clause 25 allows the rules to provide the
circumstances under which a vehicle on the RAV may be modified. There are no
circumstances provided in the Bill in which a vehicle on the RAV has permission
to be modified (although the Explanatory Memorandum provides limited examples).[143]
Clause 26 provides that a person commits an offence or is liable to a
civil penalty if:
- he
or she modifies or gives a vehicle to another person who modifies it
- the
vehicle is on the RAV
- it
is modified before being provided to a customer in Australia for the first time
- the
modification causes the vehicle to not meet the entry pathway requirements for
RAV that applied when the vehicle was entered on RAV and
- the
modification is not otherwise allowed by the rules.
Both the offence and civil penalty provision have a
maximum penalty of 120 penalty units ($25,200) for an individual and $126,000
for a body corporate.[144]
This appears to ban any premarket modifications to road vehicles unless they
are specified in the rules, which has worried numerous interest groups. For
example, HVIA is concerned that ‘Division 7 of the Bill may not be sufficiently
flexible to deal with normal practices in the Heavy Vehicle industry’.[145]
Stakeholders have also raised concerns that the market for modifying normal
cars into campervans before selling them will be lost as it will no longer be
legal, and that modifications done to help disabled people drive will no longer
be allowed pre-market.[146]
The ‘[r]isk to Australian jobs due to falling demand for expensive conversions
of campers from regular vehicles’ was one of the reasons that the Road Vehicle
Standards Bill and associated Bills was referred to inquiry by the Selection of
Bills Committee.[147]
The Government has responded to this concern, announcing that it will now allow
importation of ‘base vehicles’ to be converted to campervans.[148]
There are a number of other offence and civil penalty provisions
in the Bill related to Regulation of road vehicles and components in divisions
8 and 9 of Part 2. These include:
- the
misrepresentation of a road vehicle component as being approved
- breach
of an approval condition
- breach
of record-keeping obligations and
- false
or misleading declarations or information.[149]
Clause 35, which is in Division 9 of Part 2 of the Road
Vehicle Standards Bill, makes provision in relation to the pecuniary penalty
that may be imposed for an offence in Part 2. Subsection 4B(3) of the Crimes Act 1914
provides that the maximum penalty that may be imposed on a corporation is five
times the maximum penalty that could be imposed on an individual for the same
offence, unless the legislation in which the offence appears indicates a contrary
intention. However, the corporate multiplier does not, under subsection 4B(3),
apply where, as a matter of law, only a corporation can commit an offence.[150]
Clause 35 provides that, despite subsection 4B(3) of the Crimes Act,
a penalty of five times the amount specified for the offence may be imposed for
an offence in circumstances where the offence can only be committed by a body
corporate.
Recalls
Part 3 provides the power for recalls to be made of
road vehicles or approved road vehicle components if required for safety
reasons or if they do not comply with the national road vehicle standards. Clause
37 provides that rules must be made for this purpose. The rules may also provide
for issuing recall notices, compulsory or voluntary recalls or notification requirements
of recalls.
Division 3 of Part 3 contains offences and
civil penalty provisions related to recalls, with penalties applying for
non-compliance. Clause 38 applies to compliance with recall notices. A
person commits an offence or is liable to a civil penalty under subclause
38(1) if he or she refuses or fails to do something required by an in force
recall notice for road vehicles or approved components. Under subclause
38(2), a person commits an offence or is liable to a civil penalty if, in
trade or commerce, they supply vehicles or components of the kind to which an
in force recall notice applies. The offences under these provisions are subject
to strict liability under subclause 38(3), with a maximum penalty of
5,250 penalty units for a body corporate or 1,050 for a non-body corporate
(equivalent to $1,102,500 and $220,500, respectively).[151]
The prosecution is not required to prove fault for any of the physical elements
of a strict liability offence, but the defence of mistake of fact is available.[152]
As raised by the Scrutiny of Bills Committee (and
discussed earlier), these are substantial penalties for a strict liability
offence, where the person does not have to intend to have engaged in the
particular conduct. However, the Minister explained that severe penalties were
required given that failure to comply with the notice is a public risk, and
that the penalty needs to ensure that it is not more attractive for someone to not
comply with a probably expensive recall notice.[153]
Under clauses 39 and 40, refusal or failure to give the Minister
a copy of the compulsory recall notice or voluntary recall notice,
respectively, if required to under the rules constitutes an offence and a civil
penalty provision. Both the offence and the civil penalty have maximum
penalties of 16 penalty units for an individual and 80 penalty units for a
corporation ($3,360 and $16,800 respectively).
Division 4 of Part 3 relates to the issue of
disclosure notices requiring information when safety concerns or concern about non-compliance
with national road standards exists. Penalties apply for non-disclosure or providing
false or misleading information. Subclause 41(1) provides that the
Minister or certain other people may give a disclosure notice to a supplier of
road vehicles or approved components if the notice-giver reasonably believes:
- relevant
vehicles or components may cause injury
- a
reasonably foreseeable use of the vehicle or component, even if not being used
in the intended manner, may harm someone or
- vehicles
or components of that kind do not comply with the national road vehicle
standards and
- the
supplier is capable of giving relevant information or evidence.
Subclause 42(1) then provides that the information
requested in the disclosure notice must be given even if it incriminates the
person or exposes them to a penalty. However, subclause 42(2) provides
use immunity (but not derivative use immunity) for the individual from the
self-incriminating information. The issue of self-incrimination was raised by
the Senate Standing Committee for Scrutiny of Bills; see Committee
Consideration: Senate Standing Committee for the Scrutiny of Bills for
further information.
Compliance
and enforcement
Part 4 provides for enforcement of the new regime
through application of relevant provisions of the Regulatory Powers
(Standard Provisions) Act 2014 (the Regulatory Powers Act).
Inspectors are granted monitoring, investigation and enforcement powers so as
to be able to enforce the obligations created under the Road Vehicle Standards
Bill. Monitoring powers are provided under Part 2 of the Regulatory
Powers Act while investigation powers are provided under Part 3 of
the Regulatory Powers Act. Enforcement, including civil penalties,
infringement notices and injunctions, are provided under Parts 4 to 7
of the Regulatory Powers Act.[154]
The Bill does provide for some modifications of the application of the Regulatory
Powers Act, including additional powers to test samples on premises entered
under Parts 2 and 3 of the Regulatory Powers Act (clauses 51 and 53)
and changes to penalties applying under infringement notices (clause 56).
Clauses 50 and 52 raise the issue of broad
delegation of administrative powers. These clauses ‘seek to trigger the
monitoring and investigation powers under the Regulatory Powers (Standard
Provisions) Act 2014’ for offences related to the Motor Vehicle Standards
Bill.[155]
Subclauses 50(5) and 52(4) seek to allow ‘other people’ to assist
the authorised people carrying out the functions or duties related to the
monitoring and investigation powers, and there is no guidance included on
required skills for these assistants, meaning that technically anyone could be
an assistant.[156]
The Senate Standing Committee for Scrutiny of Bills raised this issue; it is
discussed further under Committee Consideration: Senate Standing Committee
for the Scrutiny of Bills, above.
Administration
and miscellaneous
Part 5 provides for the administration of the new
framework. Included in this is clause 62, which allows the Minister to
arrange for computer programs to be used to make decisions. Subclause 62(1)
provides that computer programs can be used by the Minister for any purposes
for which the minister may, or must, under the [Bill] make a decision, exercise
any power or comply with any obligation, or do anything else related to this.
Under subclause 62(2), anything done by the computer program in the
above circumstances is taken to have been done by the Minister. Subclause
63(1) then allows the Minister to substitute a decision for one made by the
program if:
- the program was not working correctly when the decision was made
(paragraph 63(1)(a))
- the substituted decision could have been made under the same
provision of the Bill (paragraph 63(1)(b)) and
- the substituted decision is more favourable to the applicant (paragraph
63(1)(c)).
However, subclause 63(2) states that the Minister,
even if requested, does not have to consider whether to use this power in
respect of any decision. There is no explanation in the Explanatory Memorandum for
this ‘no-duty-to-consider’ clause.[157]
Essentially, this means that there is no unequivocal review right included in
the legislation for computer errors and, depending on the Rules in force at the
time, could result in applicants needing to undergo the expense and stress of going
to court due to a computer error, which seems inappropriate. This was raised by
the Scrutiny of Bills Committee and is further discussed in that section.
Division 5 of Part 5 allows for delegation
of power by the Minister and Secretary. The Bill allows for this delegation of
administrative powers to be very broad. Subclause 73(5) permits any of
the Minister’s powers and functions under the Rules to be delegated to the
Secretary or any Australian Public Service (APS) employee, with the exceptions
of issuing a recall or determining ‘specified matters by legislative
instrument’.[158]
Likewise, subclause 74(5) allows all the Secretary’s powers and
functions under the Rules to be delegated to any APS employee. The Explanatory
Memorandum does not explain why these powers of delegation are so broad,
allowing most of the Minister’s and Secretary’s granted powers and functions to
be delegated to the most junior public servant in the public service. This
matter was raised by the Scrutiny of Bills Committee, as discussed earlier in
this Digest.
Part 6 deals with miscellaneous matters, including
interactions with other laws. This includes under clause 77 that a
national road vehicle standard is taken as a safety standard under the
Australian Consumer Law. Clause 81 provides for immunity from
legal actions. Subclause 81(1) prevents legal actions against the
Commonwealth due to any loss or damage resulting from reliance on the entry of
a vehicle on RAV or SEVs Register, any test done under the Bill, any statement
or action which could be understood to say that a road vehicle or component
complied with the Bill or any approval under the Bill. In addition, subclause
81(2) prevents proceedings (whether criminal or civil) against the Minister,
the Secretary, an inspector or a Departmental APS employee for anything done or
not done in good faith under the Bill. The Explanatory Memorandum provides no
explanation for this. The Scrutiny of Bills Committee raised this issue; see Committee
Consideration: Senate Standing Committee for the Scrutiny of Bills for more
detail.
The Consequential
Provisions Bill
The Consequential Provisions Bill provides the
transitional law required to give industry time to change from the old
regulatory regime to the new one under the Road Vehicle Standards Bill. It also
repeals the Motor Vehicle Standards Act and contains consequential
amendments to replace Commonwealth legislative references to the old law with references
to the new scheme. The transitional period has two stages of 12 months. Schedule
1 applies for the first 12 months while Schedules 2 and 3 begin
12 months later.
Schedule 2 repeals the whole of the Motor
Vehicle Standards Act. Schedule 1 provides that the road vehicle
standards in force under the Motor Vehicle Standards Act are taken to be
in force under clause 12 of the Road Vehicle Standards Bill for 12
months after Royal Assent of the Road Vehicle Standards Bill.
Schedule 3 contains the transitional provisions
that begin on repeal of the Motor Vehicle Standards Act. Item 2 provides
that the vehicle standards in force under section 7 of the Motor Vehicle
Standards Act (known as the Australian Design Rules) immediately before
commencement will be taken to have been made under section 12 of the
Road Vehicle Standards Act. Numerous provisions apply to ensure:
- approvals
granted under the old law will continue in force during the transitional period
(of 12 months, commencing 12 months after Royal Assent) subject to the
provisions of the old law[159]
- that
applications made before commencement of the new law, and not yet decided, will
be decided based on the old law[160]
and
- the
new law does not apply to actions taken under these approvals during the
transitional period.[161]
For example, subitem 11(1) provides that approvals
to supply nonstandard vehicles that were in force immediately before
commencement of the new regime will be taken to be in force during the
transitional period. Likewise, under subitem 11(2), if an application to
supply nonstandard vehicles was made but not yet decided by the Minister at the
time of commencement, then the Minister must decide the application under the
old law. Similar provisions apply to registered automotive workshops under item
19.
Item 29 provides that the Minister may make transitional
rules if needed, subject to certain restrictions. For example, the transitional
rules cannot impose a tax.[162]
Schedule 4 contains consequential amendments to
other Commonwealth legislation to replace references relevant to the Motor
Vehicle Standards Act with those applicable to the new Road Vehicle
Standards Act.[163]
The Charges
(General), Charges (Customs) and Charges (Excise) Bills
The three charges Bills are:
- Road
Vehicle Standards Charges (Imposition–General) Bill
- Road
Vehicle Standards Charges (Imposition–Customs) Bill and
- Road
Vehicle Standards Charges (Imposition–Excise) Bill.
Clause 6 of the Charges (General) and Charges
(Customs) Bills and clause 5 of the Charges (Excise) Bill provide
authority for the Commonwealth to impose charges connected with the
administration of the Road Vehicle Standards Act. The Bills do not
specify the amount of the charges or the activities for which they can be
charged. Instead, clause 7 of the Charges (General) and Charges
(Customs) Bills and clause 6 of the Charges (Excise) Bill specify that
the charges may be prescribed by Regulation (as either a specific amount or a
method to calculate the amount). Clause 8 of the Charges (General) and
Charges (Customs) Bills and clause 7 of the Charges (Excise) Bill provide
for exemptions from these charges to be made in the Regulations.
The Explanatory Memorandum accompanying the Bills confirms
that the Regulations imposing the charges will be disallowable by the
Parliament.[164]
It also explains that using Regulations to determine the charges is justified
as it will allow ‘the relevant Minister to consult with stakeholders on the
amounts’ and ‘make appropriate and timely adjustments to the charges’ while
providing ‘a level of parliamentary scrutiny for the charges’.[165]
As discussed in further detail earlier in this Digest, the Senate Standing
Committee for the Scrutiny of Bills is concerned that the Charges Bills do not
specify a maximum charge or provide guidance for the calculation of the
charges.[166]
[1]. Road
Vehicle Standards Bill 2018, clause 3.
[2]. Australian
Constitution, section 55.
[3]. A
more detailed explanation of the operation of each part is outlined on pages
9–12 of the Explanatory
Memorandum to the Bill.
[4]. Department
of Infrastructure and Transport, Consultation
Paper on the Motor Vehicle Standards Act 1989, Department of Infrastructure and Transport,
[Canberra], May 2013, p. 2.
[5]. Department
of Infrastructure, Regional Development and Cities (DIRDC), ‘Reform
of the Motor Vehicle Standards Act 1989’, DIRDC website, last updated 16
March 2018.
[6]. P
Fletcher, ‘Second
Reading Speech: Road Vehicle Standards Bill 2018’, House of
Representatives, Debates, 7 February 2018, p. 493.
[7]. Ibid.,
pp. 493–7.
[8]. DIRDC,
‘2013
Public Consultation on the Motor Vehicle Standards Act 1989 and Regulations’,
DIRDC website, last updated 10 February 2016.
[9]. Ibid.;
Department of Infrastructure and Transport, Consultation
Paper on the Motor Vehicle Standards Act 1989, op. cit., p. 2.
[10]. J
Briggs (Former Assistant Minister for Infrastructure and Regional Development),
Reducing
motor vehicle red tape, media release, 16 January 2014.
[11]. Department
of Infrastructure and Regional Development (DIRD), Options
discussion paper: 2014 review of the Motor Vehicle Standards Act 1989,
DIRD, Canberra, September 2014.
[12]. Ibid.,
p. 4.
[13]. Ibid.
[14]. Ibid.
[15]. Ibid.,
p. 5.
[16]. Ibid.,
pp. 5, 43–6.
[17]. Ibid.,
p. 5.
[18]. DIRDC,
‘2016
to 2017 reform process prior to exposure draft of Bills’, DIRDC website,
last updated 22 December 2017.
[19]. P
Fletcher (Minister for Major Projects, Territories and Local Government), More
choice for car buyers and less red tape for the car industry under planned
Government reforms to motor vehicle laws, media release, 10 February
2016, p. 1.
[20]. Ibid.
[21]. DIRDC,
‘2016
to 2017 reform process prior to exposure draft of Bills’, op. cit.
[22]. P
Fletcher (Minister for Urban Infrastructure), Government
to consult stakeholders on exposure draft of Road Vehicle Standards Bills,
media release, 13 December 2017.
[23]. DIRDC,
‘Reform
of the Motor Vehicle Standards Act 1989’, op. cit.
[24]. Senate
Standing Committee for Selection of Bills, Report,
4, 2018, The Senate, Canberra, 28 March 2018.
[25]. Parliament
of Australia, ‘Senate
Rural and Regional Affairs and Transport Legislation Committee: Road Vehicle
Standards Bill 2018 [Provisions] and related bills’, Inquiry homepage,
Parliament of Australia website.
[26]. Senate
Rural and Regional Affairs and Transport Legislation Committee, Road
Vehicle Standards Bill 2018 and related bills [Provisions], The Senate,
Canberra, 7 May 2018, p. 34.
[27]. Senate
Standing Committee for the Scrutiny of Bills, Scrutiny
digest, 2, 2018, The Senate, 14 February 2018, p. 44.
[28]. Ibid.,
p. 29.
[29]. Ibid.,
p. 30.
[30]. Senate
Standing Committee for the Scrutiny of Bills, Scrutiny
digest, 3, 2018, The Senate, 21 March 2018, pp. 240–3.
[31]. Senate
Standing Committee for the Scrutiny of Bills, Scrutiny
digest, 2, op. cit., p. 38.
[32]. Ibid.
[33]. Senate
Standing Committee for the Scrutiny of Bills, Scrutiny
digest, 3, op. cit., p. 265.
[34]. Ibid.
[35]. Senate
Standing Committee for the Scrutiny of Bills, Scrutiny
digest, 2, op. cit., p. 40.
[36]. Ibid.,
p. 41.
[37]. Senate
Standing Committee for the Scrutiny of Bills, Scrutiny
digest, 3, Ministerial response, op. cit., p. 269–70.
[38]. Senate
Standing Committee for the Scrutiny of Bills, Scrutiny
digest, 3, op. cit., p. 271.
[39]. Ibid.
[40]. Explanatory
Memorandum, Road Vehicle Standards Bill, p. 23; Senate Standing Committee
for the Scrutiny of Bills, Scrutiny
digest, 2, op. cit., p. 30.
[41]. Senate
Standing Committee for the Scrutiny of Bills, Scrutiny
digest, 2, op. cit., p. 30.
[42]. Ibid.,
p. 31.
[43]. Senate
Standing Committee for the Scrutiny of Bills, Scrutiny
digest, 3, op. cit., pp. 244–5.
[44]. Ibid.,
p. 245.
[45]. Ibid.
[46]. Ibid.,
p. 246.
[47]. Ibid.
[48]. Senate
Standing Committee for the Scrutiny of Bills, Scrutiny
digest, 2, op. cit., p. 31.
[49]. Ibid.,
pp. 31–2.
[50]. Ibid;
Explanatory
Memorandum, Road Vehicle Standards Bill, pp. 25–6.
[51]. Explanatory
Memorandum, Road Vehicle Standards Bill, p. 60.
[52]. Senate
Standing Committee for the Scrutiny of Bills, Scrutiny
digest, 2, op. cit., p. 33.
[53]. Senate
Standing Committee for the Scrutiny of Bills, Scrutiny
digest, 3, op. cit., p. 249.
[54]. Senate
Standing Committee for the Scrutiny of Bills, Scrutiny
digest, 3, op. cit., p. 250.
[55]. Ibid.,
pp. 250–1.
[56]. Senate
Standing Committee for the Scrutiny of Bills, Scrutiny
digest, 2, op. cit., p. 33.
[57]. Ibid.,
pp. 33–4.
[58]. Ibid.,
p. 34.
[59]. Ibid.;
Attorney-General’s Department, A
guide to framing Commonwealth offences, infringement notices and enforcement
powers, [Attorney-General’s Department], [Canberra], 2011, p. 50.
[60]. Senate
Standing Committee for the Scrutiny of Bills, Scrutiny
digest, 2, op. cit., pp. 35–6.
[61]. Senate
Standing Committee for the Scrutiny of Bills, Scrutiny
digest, 3, op. cit., pp. 254–5.
[62]. Ibid.,
p. 257.
[63]. Ibid.
[64]. Ibid.
[65]. As
of May 2018, one penalty unit is equal to $210: Crimes Act 1914,
section 4AA.
[66]. Senate
Standing Committee for the Scrutiny of Bills, Scrutiny
digest, 2, op. cit., p. 36; Attorney-General’s
Department, A
guide to framing Commonwealth offences, infringement notices and enforcement
powers, op. cit., p. 23.
[67]. Senate
Standing Committee for the Scrutiny of Bills, Scrutiny
digest, 2, op. cit., p. 36; Explanatory
Memorandum, , Road Vehicle Standards Bill, p. 41.
[68]. Senate
Standing Committee for the Scrutiny of Bills, Scrutiny
digest, 2, op. cit., p. 37.
[69]. Senate
Standing Committee for the Scrutiny of Bills, Scrutiny
digest, 3, op. cit., p. 259.
[70]. Ibid.
[71]. Ibid.,
pp. 260–1.
[72]. Senate
Standing Committee for the Scrutiny of Bills, Scrutiny
digest, 2, op. cit., p. 37; Use immunity means that the
information or evidential material given, and the fact that the person has
given the information or evidence, is not admissible evidence in criminal
proceedings against that person . Derivative use immunity means
that any information, document or thing obtained as a direct or indirect
consequence of the person having given information or evidence is not
admissible in criminal proceedings against that person. See C Raymond, Regulatory
Powers (Standardisation Reform) Bill 2016, 42, 2016–17, Parliamentary
Library, Canberra, 22 November 2016, p. 54.
[73]. Senate
Standing Committee for the Scrutiny of Bills, Scrutiny
digest, 2, op. cit., p. 37.
[74]. Ibid.,
p. 38.
[75]. Senate
Standing Committee for the Scrutiny of Bills, Scrutiny
digest, 3, op. cit., pp. 262–3.
[76]. Ibid.,
p. 263.
[77]. Senate
Standing Committee for the Scrutiny of Bills, Scrutiny
digest, 2, op. cit., p. 39.
[78]. Ibid.;
Explanatory
Memorandum, Road Vehicle Standards Bill, p. 53.
[79]. Senate
Standing Committee for the Scrutiny of Bills, Scrutiny
digest, 2, op. cit., pp. 39–40.
[80]. Ibid.,
p. 40.
[81]. Senate
Standing Committee for the Scrutiny of Bills, Scrutiny
digest, 3, op. cit., p. 267.
[82]. Ibid.
[83]. Ibid.,
pp. 267–8.
[84]. Ibid,
p. 268.
[85]. Senate
Standing Committee for the Scrutiny of Bills, Scrutiny
digest, 2, op. cit., pp. 41–2.
[86]. Ibid.,
p. 42.
[87]. Senate
Standing Committee for the Scrutiny of Bills, Scrutiny
digest, 3, op. cit., p. 272.
[88]. Ibid.,
p. 273
[89]. Ibid.
[90]. Ibid.,
p. 274.
[91]. Ibid.
[92]. Senate
Standing Committee for the Scrutiny of Bills, Scrutiny
digest, 2, op. cit., p. 43.
[93]. Ibid.
[94]. Ibid.
[95]. Senate
Standing Committee for the Scrutiny of Bills, Scrutiny
digest, 3, op. cit., pp. 275–6.
[96]. Ibid.
[97]. Ibid.,
p. 276.
[98]. Ibid.
[99]. Senate
Standing Committee for the Scrutiny of Bills, Scrutiny
digest, 2, op. cit., p. 46.
[100]. Ibid.
[101]. Senate
Standing Committee for the Scrutiny of Bills, Scrutiny
digest, 3op. cit., p. 279.
[102]. Ibid.,
p. 281.
[103]. Ibid.
[104]. K
Carr (Shadow Minister for Innovation, Industry, Science and Research), Upholding
the auto import ban is a win for consumers and the automotive industry,
media release, 17 August 2017.
[105]. Caravan
Industry Association of Australia (CIAA), Submission
to Senate Rural and Regional Affairs and Transport Legislation Committee, Inquiry
into the Road Vehicle Standards Bill 2018 and related bills [provisions],
17 April 2018, p. 2; Australian Historic Motoring Federation, Submission
to Department of Infrastructure, Regional Development and Cities, 2018
Public Consultation on the new Road Vehicle Standards legislation, 16
February 2018, p. 3.; VicRoads, Submission
to Department of Infrastructure, Regional Development and Cities, 2018
Public Consultation on the new Road Vehicle Standards legislation, February
2018, p. 1.; National Road Transport Association (NatRoad), Submission
to Senate Rural and Regional Affairs and Transport Legislation Committee, Inquiry
into the Road Vehicle Standards Bill 2018 and related bills [provisions],
17 April 2018, p. 3; Heavy Vehicle Industry Australia (HVIA), Submission
to Senate Rural and Regional Affairs and Transport Legislation Committee, Inquiry
into the Road Vehicle Standards Bill 2018 and related bills [provisions],
17 April 2018, p. 2.
[106]. Australian
Automotive Dealer Association (AADA), Submission
to Department of Infrastructure, Regional Development and Cities, 2018
Public Consultation on the new Road Vehicle Standards legislation, 23
February 2018, p. 8; NatRoad, Submission,
op. cit., p. 7.
[107]. Truck
Industry Council (TIC), Submission
to Senate Rural and Regional Affairs and Transport Legislation Committee, Inquiry
into the Road Vehicle Standards Bill 2018 and related bills [provisions],
17 April 2018, p. 8.
[108]. The
RAWS Association, Submission
to Senate Rural and Regional Affairs and Transport Legislation Committee, Inquiry
into the Road Vehicle Standards Bill 2018 and related bills [provisions],
17 April 2018, p. 2.
[109]. NatRoad,
Submission,
op. cit., pp. 5–6.
[110]. HVIA,
Submission
to Department of Infrastructure, Regional Development and Cities, 2018
Public Consultation on the new Road Vehicle Standards legislation, 16
February 2018, p. 2.
[111]. NatRoad,
Submission,
op. cit., p. 8.
[112]. HVIA,
Submission
to Senate Rural and Regional Affairs and Transport Legislation Committee, op.
cit., pp. 2–4.
[113]. Explanatory
Memorandum, Road Vehicle Standards Bill, p. 15; Explanatory
Memorandum, Consequential Provisions Bill, p. 7.
[114]. Explanatory
Memorandum, Charges (General) Bill, Charges (Customs) Bill) and the Charges
(Excise) Bill, p. 3.
[115]. Ibid.
[116]. The
Statement of Compatibility with Human Rights can be found at pages 16–20 of the
Explanatory
Memorandum to the Road Vehicle Standards Bill, pages 8–9 of the Explanatory
Memorandum to the Consequential Provisions Bill and pages 4–5 of the Explanatory
Memorandum to the Charges (General) Bill, Charges (Customs) Bill) and the
Charges (Excise) Bill.
[117]. Parliamentary
Joint Committee on Human Rights, Human
rights scrutiny report, 4, 8 May 2018, p. 25.
[118]. Ibid.,
pp. 22, 24–5.
[119]. Parliamentary
Joint Committee on Human Rights, Human
rights scrutiny report, 2, 13 February 2018, p. 42.
[120]. Unless
otherwise identified, references to clauses in this part of the Digest are to
clauses of the Road Vehicles Standards Bill.
[121]. Legislation Act
2003, section 42.
[122]. Motor
Trades Association of Australia Limited (MTAA), Submission
to Department of Infrastructure, Regional Development and Cities, 2018
Public Consultation on the new Road Vehicle Standards legislation, 13
February 2018.
[123]. Explanatory
Memorandum, Road Vehicle Standards Bill, p. 23.
[124]. Subclause
6(9) states that subclause 6(8) has effect despite subsection 14(2)
of the Legislation
Act 2003. Subsection 14(2) of the Legislation Act
2003 states that ‘Unless the contrary intention appears, the
legislative instrument or notifiable instrument may not make provision in
relation to a matter by applying, adopting or incorporating any matter
contained in an instrument or other writing as in force or existing from time
to time’.
[125]. Explanatory
Memorandum, Road Vehicle Standards Bill, p. 24.
[126]. Ibid;
NatRoad, Submission,
op. cit., p. 8.
[127]. NatRoad,
Submission,
op. cit., p. 8.
[128]. Explanatory
Memorandum, Road Vehicle Standards Bill, p. 25.
[129]. P
Fletcher, ‘Second
Reading Speech: Road Vehicle Standards Bill 2018’, op. cit., p. 494.
[130]. Explanatory
Memorandum, Road Vehicle Standards Bill, pp. 25–6.
[131]. P
Fletcher, ‘Second
Reading Speech: Road Vehicle Standards Bill 2018’, op. cit., p. 495.
[132]. Subclause
16(4); As of May 2018, one penalty unit is equal to $210: Crimes Act 1914,
section 4AA. Subsection 4B(3) of the Crimes Act 1914 provides that the
maximum penalty that may be imposed on a corporation is five times the maximum
penalty that could be imposed on an individual for the same offence, unless the
legislation in which the offence appears indicates a contrary intention. See also
clause 35 of the Road Standards Bill, discussed below.
[133]. Subclause
16(6). Subsection 82(5) of the Regulatory Powers
(Standard Provisions) Act 2014 provides that a body corporate is liable
to a maximum penalty that is five times the penalty specified for a civil
penalty provision. Subclause 54(1) of the Road Standards Bill provides
that the civil penalty provisions in the Bill are enforceable under Part 4 of the
Regulatory Powers Act.
[134]. Section
90 of the Regulatory
Powers (Standard Provisions) Act 2014.
[135]. Subclauses
17(3) and 18(4) apply extended geographical jurisdiction category D to
these offences. This means that the offence applies whether or not the conduct
constituting the alleged offence, or a result of such conduct, occurs in
Australia. See section 15.4 of the Criminal Code Act
1995.
[136]. Explanatory
Memorandum, Road Vehicle Standards Bill, pp. 29–30.
[137]. NatRoad,
Submission,
op. cit., p. 6.
[138]. Subclause
24(6).
[139]. Paragraph
24(3)(c) and 24(4)(a).
[140]. Explanatory
Memorandum, Road Vehicle Standards Bill, p. 31.
[141]. Subclause
22(3).
[142]. Subclause
22(4).
[143]. Explanatory
Memorandum, Road Vehicle Standards Bill, pp. 33–4.
[144]. Subclauses
24(4) and (5).
[145]. HVIA,
Submission
to Department of Infrastructure, Regional Development and Cities, op. cit.,
p. 4.
[146]. The
RAWS Association, Submission,
op. cit., p. 7.
[147]. Senate
Standing Committee for Selection of Bills, Report,
4, 2018, op. cit., Appendix 4.
[148]. DIRDC,
‘Government
response to Issues raised during 2018 consultation on Road Vehicle Standards
Legislation’, DIRDC website, last updated 18 May 2018.
[149]. Clauses
27–32.
[150]. Attorney-General’s
Department, A
guide to framing Commonwealth offences, infringement notices and enforcement
powers, op. cit., p. 40. This is because in such a circumstance there
would not be a penalty that could be imposed on an individual, as required
under the terms of subsection 4B(3) as the starting point for the calculation
of the body corporate penalty.
[151]. The
same maximum penalties apply to the civil penalty provision in subclause 38(4).
[152]. Section
6.1 of the Criminal
Code Act 1995. See also section 9.2.
[153]. Senate
Standing Committee for the Scrutiny of Bills, Scrutiny
digest, 3, op. cit., p. 259.
[154]. For
further information on the Regulatory Powers Act, see Raymond, Regulatory
Powers (Standardisation Reform) Bill 2016, op. cit.
[155]. Senate
Standing Committee for the Scrutiny of Bills, Scrutiny
digest, 2, op. cit., p. 38.
[156]. Senate
Standing Committee for the Scrutiny of Bills, Scrutiny
digest, 3, p. 264.
[157]. Senate
Standing Committee for the Scrutiny of Bills, Scrutiny
digest, 2, op. cit., p. 39.
[158]. Subclause
73(6).
[159]. See,
for example, subitems 4(1), 6(1) and 9(1) of Schedule 3 to
the Consequential Provisions Bill.
[160]. See,
for example, subitems 4(2), 6(2) and 9(2) of Schedule 3
to the Consequential Provisions Bill.
[161]. See,
for example, subitems 4(3), 6(3) and 9(3) of Schedule 3
to the Consequential Provisions Bill.
[162]. Paragraph
29(2)(c).
[163]. These
changes will apply to the Age Discrimination
Act 2004, A New Tax System
(Luxury Car Tax) Act 1999, Customs Act 1901, Fuel Tax Act 2006, Interstate Road
Transport Act 1985, Interstate Road
Transport Charge Act 1985, National
Environment Protection Council Act 1994 and Trans-Tasman Mutual
Recognition Act 1997.
[164]. Explanatory
Memorandum, Road Vehicle Standards Charges (Imposition–General) Bill 2018,
p. 2.
[165]. Ibid.
[166]. Senate
Standing Committee for the Scrutiny of Bills, Scrutiny
digest, 2, op. cit., p. 46; Senate Standing Committee for the Scrutiny
of Bills, Scrutiny
digest, 3, op. cit., p. 281.
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