Comments on the Motor Vehicle Standards Act 1989
The Objects of the Act
Have the Act and its Regulations effectively reduced this [regulatory] burden?
From the point of view of the state and territory road authorities (STRAs) there has been a considerable reduction since the introduction of the MVSA. The management of certain categories (e.g. individually constructed vehicles (ICVs)) has remained with the State and Territory Road Authorities (STRAs) and, while changed arrangements might further reduce the burden, it is considered that:
(a) Overall, the balance is reasonable; and
(b) The STRAs are better placed to handle the day to day management of these categories.
Theoretically, the regulatory burden on the STRAs has been reduced to the necessary minimum or nearly so. However, as will be discussed below, failures in the current systems result in STRAs devoting resources in attempting to rectify various shortcomings, so that vehicles actually comply with the requirements and may be legally registered. In particular, imported used vehicles continue to occupy a disproportionate amount of STRA resources (see the discussion of RAWS below).
Considering the range of concessions to the ADRs available through the low volume scheme and other discretionary arrangements for new vehicles (e.g. over length vehicles, special purpose vehicles), is this object still appropriate?
The object has largely been met. However, there remains scope for possible further reductions in the burden on STRAs by tightening the control exercised by VSS.
The arrangements for gaining STRA acceptance for imported non-standard vehicles may benefit from streamlining. Currently requests are received for acceptance of vehicles, such as street sweepers, that are automatically accepted. Often such vehicles are the subject of a blanket approval by either Gazette Notice or regulation.
Has the Act achieved the desired balance and are appropriate categories of used imported vehicles covered?
It is considered that both the absolute numbers and the types of used imported vehicles could be better managed. The increase in the number of non-standard vehicle imported under the various concessional arrangements is of concern to STRAs, due to the erosion of safety provisions. Many of the non-standard vehicles imported are of no particular intrinsic interest but are simply cheaper than similar vehicles already available here, eroding the safety levels of the vehicle fleet and undercutting the regular dealers and importers.
Given the global environment for the automotive industry, should there be no or fewer restrictions on the importation of used vehicles?
The automotive industry has made enormous progress toward global standards since the introduction of the MVSA. However, considerable progress remains to be achieved. It is important to consider not only to what extent a particular country’s automotive industry has taken up international standards, but the reliability and veracity of the certification process, most notably in the emerging markets. Issues of durability and compliance with non-automotive requirements (e.g. the use of asbestos) also need to be considered.
Additionally, as an island nation Australia can shield itself from an influx of left hand drive vehicles. In spite of the views held in some quarters that having the controls on the wrong side does not constitute a risk, a conservative outlook would suggest otherwise, even without taking into account the Swedish experience. It is notable that a number of the more sophisticated international jurisdictions (e.g. the USA) are unwilling to accept wrong side controls. This Department does not support any reduction in the restrictions on the import of left hand drive vehicles. Proposals to further restrict left hand drive imports would be considered favourably.
The public policy objectives
Do the objects of the legislation still positively contribute to the identified broad policy objectives?
The legislation continues to make a positive contribution to the policy objectives.
Should the objects of the Act be amended to increase the legislation’s contribution to the broad policy objectives or should the objects be amended to focus on fewer policy objectives?
It is considered that there is no need to change the broad policy objectives.
Are there non-regulatory ways of achieving the same policy objectives of road safety, environment, security and consumer choice?
Without regulatory force, such measures will be ineffective. It is difficult enough as it is to achieve compliance in some sectors of the market. More, rather than less, regulatory force is required.
What key principles should underpin any changes to the Act?
The difficulties that arise in relation to the Act do not relate to the broad principles but to the details of the specific provisions, such as the narrow focus of the enforcement powers, and to the administrative procedures that arise from the regulations. Consequently, the need is to broaden the enforcement powers available to Vehicle Safety Standards (VSS) and to frame the regulations in such as way as to give more support to the administrative procedures designed to ensure compliance.
National Standards, Certification and Approval of Road Vehicles (Parts 2 and 3 of the Act)
In the context of a growing supply market, is the Act sufficiently rigorous to ensure the integrity of the ADRs and compliance of vehicles with the ADRs, including through testing?
In light of the remarks immediately above, it must be said that the Act is not sufficiently rigorous. Certain low volume importers and, it appears, new high volume manufacturers, have already shown that the Act and attendant regulations do not have sufficient power to adequately control their activities if they are unwilling or unable to comply with the Act. The Act is well framed to deal with the large, established vehicle manufacturers; it is the smaller ones (including importers) that are of most concern.
What are the arguments for retaining separate ADRs over simply adopting UNECE international standards?
Certain unique ADRs must be retained to allow for peculiarities in the Australian market and legal system, particularly to give the STRAs a legal basis for insisting on certain minimum requirements when dealing with ICVs and modified vehicles. For example, the attempt to withdraw the requirements for windscreen wipers from the ADRs would have been a minor disaster, as there is an obsession among certain modifiers for smooth lines, which are disrupted by inconvenient objects like exterior door handles and windscreen wipers.
Beyond that, the UNECE Regulations are written in such a way that it is often very difficult to discover what the actual requirements are. Further, the replacement of ADRs with UNECE Regulations frequently seems to be accompanied by a relaxation of requirements which, since these are not communicated to the STRAs, often leave them trying to enforce requirements which are no longer applicable, or which do not apply because an obscure clause in a previous version allows an exemption.
It is not sufficiently appreciated that the STRAs must continue to enforce the ADRs for the life of the vehicle. Vehicles are most usually modified by second, and subsequent owners and continue to be candidates for modification until their resale value begins to appreciate, often sometime in their third decade. The STRAs must therefore be able to access, and understand, the ADRs that applied to that vehicle when it was first built.
It would be fair to say that the STRAs appreciate the desire to adopt, rather than harmonise with, the UNECE Regulations but this comes at a cost to the STRAs that has not been appreciated.
While the Act facilitates the first supply to the Australian market of road vehicles and automotive parts complying with ADRs, are there any gaps in the legislation with regard to testing and evidence requirements?
The Act certainly facilitates the supply of automotive parts as it appears that there are no controls over either original equipment or aftermarket parts. This may be a failure of knowledge on behalf of the commentator but, if so, it is one shared by many. By extension, therefore, there would appear to be no testing or evidence requirements for automotive parts, at least in the light vehicle arena.
Does the Act create any barriers to the export of vehicles and automotive parts?
No comment.
Administration, Court Proceedings and Miscellaneous (Parts 5, 6 and 7 of Act)
For these Parts of the Act, is there sufficient transparency and clarity so that the reasons for decisions are understandable? What improvements could be made, if any?
No comment.
Do these Parts of the Act effectively support the primary objective of road safety through the compliance and audit process, legislated powers and penalties or could they be enhanced?
The shortcomings discussed throughout this document appear to be largely the result of weaknesses in the compliance and audit process, and in the legislated powers, particularly in regards to the smaller players. It is recognised that VSS suffers from a lack of resources, but it is also apparent that there are systemic weaknesses.
Should legislative powers for the recall of vehicles be vested in the Act or remain with Australian Consumer Law?
Vesting the recall powers in the Act would place them in the hands of a body better equipped to understand the issues and has the potential to result in a more streamlined and responsive process. However, for this to occur, the VSS must be appropriately resourced.
Are the links with other legislation clear and effective? Are there any jurisdictional gaps that need to be addressed in the Act?
No comment.
Any other comments on the effectiveness of the administrative provisions of the Act in supporting the road safety policy objective of the Act?
No comment.
Object – regulate first supply to market of used imported vehicles
Is there a case for extension of the coverage of the Act to include safety of non-road vehicles or those that cross over between on-road and off road?
The remit of the Act, and the model Australian Vehicle Standards Rules by which the STRAs apply vehicle standards, only includes road vehicles. To broaden the scope of the Act to cover non-road vehicles would require an extensive restructuring of the model law and the regulatory and administrative arrangements of the STRAs. Apart from any other considerations, it is likely that neither VSS nor the STRAs have the resources.
Additionally, bringing such vehicles (most particularly quads) within the ambit of the Act would increase the pressure to allow them to be registered, something that the STRAs have resisted strenuously in the past.
Further, there is an extensive range of vehicles used in non-road recreational or competitive activities, many of which are not registrable, from karts to dragsters. Extending the Act and the model law to cover one class of non-road vehicle would set an undesirable precedent.
Any other comments on the effectiveness of the administrative provisions of the Act in supporting the two objects of the Act?
No comment.
Registered Automotive Workshops (Part 4 of the Act)
Do the RAWS provisions undermine, support or enhance the main policy objective of road safety and in what way?
The RAWS provisions undermine the road safety objective in several ways:
· They provide a route into Australia for vehicles which, by definition, do not fully meet Australian standards and, in some cases, cannot.
· Many RAWS vehicles show poor compliance with those standards that are actually required of them.
· They divert STRA resources to deal with the non-compliances that are discovered after certification and registration.
On this last point, although state and territory regulations do have sufficient power to require continued ADR compliance, the practical enforcement of these rules, particularly if the vehicle has already been registered and used in transport, can be very difficult to achieve. It is therefore highly desirable that the Act gives VSS better control over these vehicles or that the numbers are significantly reduced.
Has the RAWS effectively contributed to the appropriate balance between segments of the automotive industry, that is, brought the low volume focus back onto specialist and enthusiast vehicles and if not, why?
Too many of the vehicles on the register are neither specialist nor, except in the most generous interpretation of the term, enthusiast’s vehicles.
Just because a particular make and model of a widely produced mass market vehicle, such as the Dodge Ram, is not available here, and is seen as desirable by a small minority, does not make it an enthusiast’s vehicle. There should be some further criteria, encompassing, for instance, rarity, advanced features or high performance. Otherwise every Tata and Great Wall model will qualify.
Allowing the import of ordinary vans and people movers as specialist vehicles (in the guise of campervans) has caused the STRAs a great deal of grief, as has been alluded to above. It has been increasingly apparent that the only reason low volume importers are interested in these vehicles is the fact that vehicles such as the El Grand offer more features for the cost than Australian delivered vehicles. Consequently, there has never been any intention to convert Japanese people movers into campervans. To put it bluntly, Vehicle Safety Standards has been taken for a ride.
There are plenty of vans available for conversion in this country and it is apparent that the vehicle of choice for genuine campervan conversions is not a people mover but a commercial van, which has less seats and extra features to strip out before the conversion begins. It is considered that the STRAs would not object to actual campervans being imported through the RAWS process, but accepting that people movers are specialist or enthusiast’s vehicles seems to be contradictory.
There are 2 points arising:
1. Since Australia has a thriving conversion industry, based on locally available and complying vehicles, with all that implies by way of customer support, can the import of actual campervans through the RAWS arrangements be justified? Certainly, a campervan can be regarded as a specialist vehicle but surely the import of a non-standard vehicle as a specialist vehicle should only be justified if such vehicles are in limited supply in this country.
2. Since there are a wide variety of vehicles suitable for conversion available in Australia, the import of vehicles which are not already converted is not justifiable.
Is the RAWS appropriately designed for the current context of specialist and enthusiast vehicles and if not, what elements need improving to better deliver the second object of the Act (to regulate the first supply of used imported vehicles)?