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Submission 43: RVS Legislation Consultation

Aide Mémoire No. 145 Australian Technology Pty Ltd A.B.N. 71 008 126 350 Consulting Engineers E-mail: [email protected] 1 Bendall Avenue Telephone: (08) 8271 4573 Wayville South Australia 5034 Overseas code (618) 8271 4573

To: General distribution

From: W. D. R. Potts MAOQ, FRAI, FSAE-A, FIEAust, CPEng, CEng, FIMechE

Response to the Road Vehicle Standards Bill 2017 Date: 16th February 2018

1. Introduction

1.1. In the January 12th 2018 edition of Big Rigs News, Kirsten Payne wrote an article sub-headed “Truck

related fatalities rise 86%”. She quotes the period of September 2016 to 2017 as the “the most

significant increase since 2009”. She takes an enquiring mood asking “What has gone wrong?”

1.2. In seeking answers to that question, an obvious correlate is the 2014 introduction of Heavy Vehicle

National Law in which the entire management of permits, heavy vehicle modification approval and

definition of design limits is controlled by a body corporate The National Regulator in Brisbane.

1.3. Correlation does not necesssarily mean causation but this author has been critical of the transfer of

heavy vehicle decision making from a state based sysem where delegates of state and territory

ministers were able to view vehicles, assess evidence and make discretionary judgments to a national

system of engineering “tick and flick” in which a government regulator thousands of miles from the

vehicles does not even view photographs of them.

1.4. States and territories have been stripped of, or are in the process of being stripped of knowledgeable

people in their transport departments. Those who are capable of understanding vehicle design have

been reassigned to the role of clerks ensuring that all submissions of forms are directed to the generic

email address of the body corporate Regulator and checking that private engineering consultants are

up to date with their professional indemnity insurance. No longer do those who once inspected and

held informed knowledge of what was being put on their local roads do so. Instead, they perform

transitional tasks to ensure that all heavy vehicle matters are recorded as distinct from being assessed.

Those who do assess them are straight jacketed into applying prescriptions badly written, frequently

internally contradictory with no provision for matching circumstance of use to tailored specification.

1.5. This institutional debasing of systems of reponsibility has a long and vexed history that pre-dates the

Commonwealth of Australia Consititution Act 19011 and the concept of federation itself. The North

American war of independence proved once, and one would have expected for all, that successful

1 Commonwealth of Australia Act 1901

Australian Technology Pty Ltd, ABN 71 008 126 350 2 Consulting Engineers 16th February 2018 Report Number: Aide Memoire 145

governance requires those being governed to have ready access to responsible governors so that

sensible, workable agreement can be reached.

1.6. Ms Sharon Nyakuengama is a civil servant of the Executive Government of the Commonwealth. She

is General Manager, Vehicle Safety Standards , Department of Infrastructure, Regional Development

and Cities, Surface Transport Policy, Vehicle Standards. With a team of six others, she is touring

Australia seeking feedback on the Road Vehicle Standards Bill 2017 that claimed was due to be put to

Parliament in the coming months.

1.7. On Tuesday the 30th of January of this instant, she and her team consulted with this author and some

perhaps thirty others at the Adelaide Pavilion in Veale Gardens, Adelaide. In fact the Bill was

presented to Parliament 10 days after the meeting, six days earlier than the closing date given for

submissions such as this one.

1.8. Her tour is necessary to fulfill a requirement of the Legislation Act 2003(Cth)2 Compilation 36 of

September 2017. Under that Act “a comprehensive regime for the management of Acts and

instruments” is specified at Part 3. At 15G(4) explanatory statements must be lodged on the

legislative instrument register. Under 15J(2), explanatory statements must either contain details of

consultation or else explain why consultation was not made. At 17, “Rule makers should consult

before making legislative instruments” and consultation must be “considered by the rule maker to be

appropiate and reasonably practicable to undertake.” Notwithstanding that requirement, S19 declares

“the fact that consultation does not occur does not affect the validity or enforceability of a legislative

instrument.” In other words, the consultation process can with impunity be window dressing and an

exercise in ticking boxes along the path to legislation.

1.9. It is important to note the gerund used in Legislation Act. That act is not for the “administering” of

Acts and instruments, but for the “management” of them. The significance of this is addressed later in

this paper, suffice to say that since the 1990s there has been an orchestrated drift from an

administrative to managerial mode of governance – a radical constitutional shift.

1.10. According to Pearce (2017, p20)3, the Legislation Act 2003 is pre-dated by the Legislative

Instruments Bill 2003 that was given assent by the Governor General with the advice and consent of

Parliament nine years after first being presented as a Bill and eleven years after the 1992

Administrative Review Commission report that prompted it. The Legislation Instruments Act 2003

was renamed the “Legislation Act” in 20164, having “a significant effect on the concept of the

2 Legislature Act 2003 3 Pearce, D.C.& Argument, S.; Delegated Legislation in Australia, 5th Edition, LexisNexis Butterworths Australia, 2017 4 Ibid, p29


definition of ‘legislative instrument’”. A difference between the two is that the first contained clauses

promoting competition in marketplaces, the second withdrew such inference.

1.11. Pearce5 explains the process of “drafting” legislation. It is unfortunate that the original spelling

“draughting” has been superseded. For comfort in personal writing this author will continue to use the

original spelling. The concept of draughting embodies the idea of drawing out issues. The concept of

drafting implies a preliminary version. Within the context of a tour of consultation, the manifest intent

would seem to be more in line with drawing out issues even though the latent intent may be to prepare

the path for the inevitable and ineluctable imposition of the Bill as it is already written. This aide

memoire seeks to hold the Bill as a draught and highly amenable to change.

1.12. Pearce explains that in 2012 the draughting of Commonwealth regulations transferred from the

Office of Legislative Drafting and Publishing to the Office of Parliamentary Counsel on “instructions

of the relevant minister’s department”.

1.13. It is at this junction that the consulation process should be important, not to be taken lightly or

treated as a cynical exercise in window dressing.

1.14. There are serious issues in South Australia with regard to vehicle and vehicle component

production. This author knows of no South Australian company that manufactures coil springs – a

vital requirement of any community if its mechanical infractructure is to be maintained without

dependence on others. Technical and Further Education courses in Mechanical Engineering that once

took 120 enrolments per year are now either non existant or reduced to an ineffective skeleton of what

they were.

1.15. Declining road fatality rate has reached a plateau and recent trends suggest reversal.

1.16. In 2012 Centre for Automotive Safety Research engineer Dr Robert Anderson6 wrote “The

general lack of under-representation of specific safety features in the crashed vehicle sample is

intriguing, as the results do tend to suggest that many vehicle safety systems have not been associated

with wholesale changes to the rate of serious injury crashes (broadly defined).”

1.17. In assessing the Road Vehicle Standards Bill 2017, the author notes that:

1.17.1. it is draughted within the requirements of the Legislation Act 2003,

1.17.2. the Vehicle Safety Standards section of the Department of Infrastructure, Regional

Development and Cities has a responsibility to work towards a workable enactment that is

truthful in the underlying premises upon which it is based,

5 Ibid, p27 6 Anderson, Dr R.W.G.; Safety related attributes of registered vehicles and of vehicles that crash in South Australia, Centre for Automotive Safety Research, South Australia, 2012


1.17.3. the provisons of the Commonwealth of Australia Act 1901 should be respected and maintained.

2. History

2.1. In South Australia in 1969, Tip Top Bakery was still using horse drawn bread delivery vans. Firms

like Percy Priest Plumbing were still using 1929 Chevrolet Buckboards not only in their fleet but as

their fleet. I was still a cadet engineer in 1969, stationed at the Electricity Trust of South Australia’s

Transport Department. It was the year in which the first two Australian Design Rules for Motor

Vehicle Safety were introduced. Interestingly, they were identified as Australian Design Rules 4 and

5A, for seat belts and seat belt anchorages. The ETSA Transport Office was abuzz with the

implications not only of the rules but of how the rules came to be implemented. It was significant, not

least because from within that office a multi axle, multi tyred 200 tonne transformer transporter was

being designed in the office and built locally. It housed a cockpit at the rear to house an operator who

steered the rearmost axle group independently of the towing vehicle.

2.2. Again, interestingly, the first suite of design rules was designated Australian Design Rules of Motor

Vehicle Safety Second Edition, with 1971 being schedule for the commencement of ADRs 2,3,8,10A.

The process of divining rules was obviously tortuous – not that a coherent body of knowledge about

vehicle design was lacking. The British Standards Institute had begun as the Engineering Standards

Committee in 1901. The earliest standard in this author’s library is Society of Automotive Engineers

Standard 16003 on Electric Bulbs for Automobiles, the numbering system dating it at 1916.

2.3. Government involvement in automotive standards grew out of the United States consumer rights

movement of the mid 1960s, spearheaded by lawyer Ralph Nader whose litigation experience drew

his awareness to readily remediable inherent design and manufacturing faults in vehicles at the time.

He popularised the term “second collision”, referring to the impact occupants of a vehicle undergo

following the crash of the vehicle. Nader gained worldwide attention when he sued successfully

General Motors for alleged harassment and attempts to stain his reputation and discredit his book.

2.4. As a side note, Thomas Sorrell7, records that Nader was less than fully accurate about the automotive

industry in North America. National Highway Traffic Administration8 published data show that

between 1925 and 1965, the death rate per 100 million passenger miles fell from 17 to 5.3 (10.6 to 3.3

per 100 million kilometres). This author agrees that Society of Automotive Engineering Standards

were being developed and followed prior to Nader’s publication but not prior to the evidence that he

had gathered, from which same evidence the standards were being developed. (Recent United States

7 Sowell, T.; The Vision of the Anointed, Basic Books, 1995 8 https://crashstats.nhtsa.dot.gov/Api/Public/ViewPublication/812451


deaths per 100 million miles (kilometres) dropped to 1.08 (.68 ) in 2014 but rose in 2015 and again

in 2016 to 1.18 (.74). The equivalent death rate in Australia in 2014 was .46 rising in 2015 to .49

deaths per 100 million kilometres9.) This author reminds the reader of Section 1.15 above and of Dr

Anderson’s comment about safety features.

2.5. The whole history of the Australian automotive industry is framed around government control for

reasons of perceived political economy. Economist David Richardson10 describes how during World

War I importation of car bodies was banned in order to preserve foreign exchange and how that was

extended in the1920s, leading to the establishment of body manufacturers and assemblers of

“completely knocked down” chassis and engine components. In 1948 protection was increased

further when General Motors Holden commenced local manufacture with assembly of vehicles in

Adelaide, Melbourne, Sydney, Perth and Brisbane. Richardson writes “(after World War II) it was

import licensing and not the tariff which protected Australian industry . . . post war import quotas

designed to conserve Australia’s foreign exchange . . . import licensing encouraged local assembly

and some modest manufacturing by low volume companies such as Standard, Rootes, Rover and

Volkswagen.” Richardson’s use of the term “low volume” refers to less than 30 thousand vehicles per

year. This author refers to low volume as annual production less than 100 by statute, less than 25 by

usual market limits. Low volume also includes production of individual vehicles and vehicles built

from kits.

2.6. Richardson records that “import restrictions were lifted in 1960 leading to intense competition form

imported cars and components despite a prevailing tarriff set at 35% . . . the owner of (parts producer)

REPCO, Charles McGrath, proposed local content plans to the government under which an high

volume producer could import components duty free provided 95% of the motor vehicle was sourced

in Australia,”

2.7. This author entered the industry in 1966 as a cadet engineer. As a graduate in 1971, the author was

appointed design engineer, soon to be allocated responsibility for engine electical systems, fuel

systems and emisson controls for Chrysler Australia Ltd during the 95% local content policy.

2.8. Richardson records that under the tariff control policy “competition from the new Japanese producers

from about the mid 1960s with smaller, more economical and better quality cars saw the Australian

share of the market fall from 84% in 1966 to 68% in 1973.”

2.9. Ralph Nader’s “Unsafe at Any Speed” provided governments all around the world with an heuristic

device to control their local industries and automotive markets without the use of tariff protection.

9 Department of Infrastructure, Regional Development and Cities; International Road Safety Comparisons -- Annual 10 Richardson, D.; Protection in the Motor Vehicle Industry, Current Issues Brief 22, 1996-97


Thus sprung up regional barriers to trade, all based on the same body of knowledge but each region

championing standards just slightly elaborated for their regional distinctiveness. For instance the

North American Federal Motor Vehicle Safety Standards specify lamps in which the average

luminous intensity of each horizontal grid line must be between certain limits, while the European

standard requires each individual point on the highly similar grid to be within limits so similar that

only a vastly expensive goniometer maintained and certified annually in each region could identify

difference. Efforts to “harmonise” the two standards have been a work in progress for sixty one years

despite no person on the planet being able to tell the difference between lamps of the two standards.

2.10. The heuristic of safety gave governments the legal and consititutional high ground to set

standards but more importantly via elaborately set conditions, the authority to determine who in the

community or who from which community could contribute as ideal types in the production of goods

and services.

2.11. Until 1969, the design requirements for motor vehicles were contained in the road traffic acts

and pursuant regulations of each state and territory. This reflects the fact that Section 51 of the

Commonwealth of Australia Constitition Act 1901 (Cth) does not afford the Federal Parliament the

power to make laws regarding road transport. Local Acts covered the provision for, fitting of and later

wearing of seat belts – the single most important element of vehicle occupant protection.

2.12. Prior to 1969, State and Territory ministers formed an Australian Transport Advisory Council

and from that council grew the Australian Motor Vehicle Certification Board that since 1969 has

acted as a policy advisory body and has been responsible for the issue of engraved plates that confirm

compliance with relevant Australian Design Rules.

2.13. After 1969, State and Territory Road Traffic Acts in each jurisdication, as a requirement for

vehicle registration, required vehicles to be affixed with compliance plates issued by the Australian

Motor Vehicle Certification Board. Eligibility to affix a compliance plate was determined by the

Board on the basis of presentation of satisfactory evidence of eligibility to apply for approval.

2.14. This should be highlighted. It is not only a matter of demonstrating eligibility of a vehicle for

approval, but showing eligibility to apply for approval. At this juncture, engineering departs from

political economy, engineering being deemed a distant second to market control.

2.15. This is where compliance with applicable Australian Design Rules ceases to be a matter of

engineering veracity but becomes a matter of compliance with an Australian Design Rule process that

in this author’s experience does not only undermine the argument that the Design Rules exist for the

purposes of safety but time after time shows up situations where the process leads to patently unsafe


outcomes. In the wake of criticism, the authors of rules spread the declared purpose from being the

promotion of vehicle safety to the provision of anti-theft and environmental standards.

2.16. An immediate difference between Board administration and local State and Territory

administration is the approach to interpretation. The Board took a view of competitive neutrality in

which what applied to one manufacturer applied to all. When all vehicles were required to meet

Austalian Design Rule 4, “Seat Belts”, the cost of testing seat belts in a simulated crash on a test sled

was several thousand dollars and only the belt manufacturers at that time were able to do it. When this

author’s client sought compliance plate approval for second hand MG B sports cars imported from

North America, it was necessary to fit locally approved seat belts. This was achieved readily and

painlessly. The anchorage location in an MG B is such that stress in belts is unambiguously lower

than the stress in most passenger car seat belts where upper anchorages are fitted high on B pillars and

lower anchorages are on floors beneath seat cushions relatively high above the floor. Engineering

calculations based on immutable principles of force resolution and stress analysis showed that belts

known to comply with requirements for passenger cars have an over-abundance of safety margin in

the MG B application. Nevertheless, the client applying for approval to import less than 25 vehicles

per year had to commission testing that other firms could amortise over 30 thousand vehicles per year.

No level of reason or engineering evidence alternative to the manufacturer’s test was accepable even

though no engineering delegate of the Board doubted or disagreed with the argument. The argument

was valid but the immutability of the mandated process surpassed the immutability of the engineering

argument. It was the cost of that process that broke the viability of the client’s company. To add to the

bitterness, compliance plate approval being an asset, it was not even possible for the client to offset

taxable income with the certification costs. It appeared to initiate a crack that spelled the end of the

client’s marriage. But correlation is not causation and nothing can be done but report on the

correlation. This is one story of others that over and over again taint the use of safety as an heuristic. I

repeat and stress, there was NO USEFUL purpose with regard to road safety by enforcing a re-test of

a seat belt when there was no doubt of its compliance with requirements.

2.17. In 1975, tariffs were increased to 45% rising later to 57.5%. Local content stipulation with its

complex means of accounting was reduced to 85%, not least because so much of the extra 10% 1ocal

content proved problematic to make and develop locally. Many firms with no previous experience in

automotive products had been drawn into the automotive industry. Many of those firms were drawn

into the industry naiive to the demands of the thermal and mechanical dynamics of engine bays and

road wheels. Policy makers time and again showed no insight into the detail of making a product


functional, safe, reliable and enduring, the broad ambition of political economy relegating engineering

advice to an irrelevance.

2.18. In the 1980s this author chaired the South Australian Division of the Society of Automotive

Engineers – Australasia and in 1981 hosted international visitors to South Australia as part of the

Federation Industie des Societes d’Ingenieurs de Techniques de l’Automobile. At the time I noted the

symmetry outlined by Dr Wu from China who represented a factory employing 40 thousand people

to produce 3 thousand trucks per year while Mitsubishi Motors Australia Ltd employed three

thousand people to produce 30 thousand vehicles per year. That would all change within three

decades. (By 2012, with the corporate partnerships of the multinational vehicle producers with

government controlled Chinese industry, annual production in China had risen to 13 million units.)

2.19. By 1984, following the cessation of local manufacture or assembly by Chrysler Australia Ltd,

British Leyland, Renault and Volkswagen and the parlous state of remaining industry, the government

at the time introduced the Motor Industry Development Plan, spoken of then and since as the Button

plan in reflection of its champion Senator John Button whose personal qualities no-one doubted.

2.20. The Motor Industry Development Plan was negotiated, planned and structured within the

milieu of a tripartite relationship between corporations, trade unions and government officials. It was

aimed at increasing local economies of production scale and called for the rationalisation of local

manufacturing to 6 models from three production groups producing two models each -- down from 13

models being produced at the time by General Motors Holden, Ford, Mitsubishi, Toyota and Nissan.

2.21. What followed was a set of corporate deals in which firms made engines and vehicle bodies

and traded with each other to give a marketplace illusion of a broad model range within each brand

while complying with the Button directive. In some cases only the badge was changed. Thus a Ford

Maverick four wheel drive was in fact a re-badged Nissan Patrol. Other identical vehicle

specifications were Nissan Pulsar/Holden Astra, Ford Falcon utility/Nissan utility, Toyota

Camry/Holden Apollo, Holden Commodore/Toyota Lexcen. Buyers were able to maintain brand

loyalty. As it turned out, that loyalty was maintained only until the ruse was discovered.

2.22. The incentive to participate in such a scheme was driven via complex arrangements for tariff

relief, import quotas and an “export facilitation scheme”. When a manufacturer produced more than

30 thousand production units per year, there was to be a 15% reduction in the tariffs applied to its

imported components. Manufacturers could gain importation credits in proportion to the their exports.

2.23. Japan, like Britain, South Africa, India and Australia requires vehicles to be in right hand drive

configuration. Towards the end of the 1980s, Australians travelling to Japan discovered that the same


vehicle models on sale in Australia could be purchased second hand for a price that made importation

viable. At first, a few trickled into Australia. Prior to approval for use on roads, state and territory

registration authorities required evidence that the intent of Australian Design Rules was met. This

engineer and others assessed the vehicles, identified the deviation from local requirements and

supervised the upgrading. For instance, Australia required child restraint anchorages and side door

intrusion protection bars to be fitted. These requirements were identified and the vehicles upgraded.

In South Australia, all the imported vehicles were inspected at government inspection stations prior

to registration and the veracity of the engineering reports was checked and the roadworthiness of the

vehicles checked prior to approval. The intent and purpose of Australian Design Rules was satisfied.

2.24. The two main provisions above – side intrusion protection and the fitting of child restraint

anchorages were controversial. The former because no statistical evidence has ever backed their

overall effectiveness and firms such as Mercedes Benz refused to fit them until mandated to do so.

The fitting of child restraints was viewed by many companies as being best left as an aftermarket

preference and they provided holes for restaint anchorages but not the plates and nuts that form the

actual anchorage. Accordingly, in Western Australia, the administrators of its Road Traffic Act

considered the imported vehicles, their compliance with Japanese Industry Standards in comparison to

local standards and determined to exercise their authority with respect to road transport and registered

the imported vehicles with a notice on the registration papers “Exempt from Australian Design

Rules”.

2.25. In the context of the Button plan and the financial incentive to maintain production at 30

thousand units per model, the substitution of even one new vehicle for an imported second hand

vehicle had greater implications than just market competition. Some of the imported vehicles had

travelled less than 30 thousand kilometres, been kept under cover and were pristine, the low purchase

price reflecting the Japanese government’s registration costs that rose very steeply with the age of

vehicles.

2.26. What followed was a public onslaught of media condemnation and villification from major

vehicle manufacturers. Toyota Motor Corporation Australia Ltd Executive Vice President Sales and

Marketing, John Conomos, spearheaded a media campaign to label the imported vehicles as “grey

imports” and impugn the importers as “making profits that only drug dealers could imagine” and the

vehicles “unsafe at any speed”. He spoke and wrote with the imprimatur of erudite technical

authority and imprinted his version of the fledgling second hand import industry on the hearts and

minds of the media and Members of Parliament. His loyalty to Toyota Motor Corporation Australia


Ltd was admirable and his self deprecation as an “humble truck salesman” reflected his personal

charm but his method was disingenuous. The intensity of his attack on the import industry was

disproportionate to any safety, environmental or security problems it could possibly have created.

Many of the problems quoted were fabrications. One argument was that buyers of second hand

imported vehicles were unable to find spare part and dealer support. It was true to a point that

mainstream industry locked out the service needs of the imported vehicles but that opened up a

fledgling alternative network in each state and territory.

2.27. The Western Australian approach was understandable but wrong. Industry frustration with the

Australian Motor Vehicle Certification Board should not have been construed as disrespect for the

Australian Desgin Rules, regardless of their credibiltiy. It was valid and accurate to approve

registration with an “exemption” from Australian Design Rules but that exemption should have been

contingent on meeting the INTENT of all of the Australian Design Rules. Had the Western Australian

government insisted upon the upgrading of vehicles with approval procedures alternative to those

outlined in the Australian Design Rules, it would have been valid to print on the registration forms

“Exempt from Australian Design Rules. Complies with the intent of Australian Design Rules” rather

than “Exempt from Australian Design Rules”.

2.28. As a result of the failure to mandate the upgrading of vehicles, the Federal Parliament was

given an excuse and a had a trigger to control the importation of the second hand vehicles via the

reliance on its powers to make standards and to control importation. As a result of the tripartite nature

of the motor industry policy, the government harnessed the Conomos attack on the second hand

import industry and with indecent haste, the Federal Parliament compiled the Motor Vehicle

Standards Bill that received the assent of the Governor- General in August 1989. It slammed the door

on second hand vehicle importation and transferred authority for vehicle standards assessment from

the Australian Motor Vehicle Certification Board to the Administrator of Vehicle Standards under

who whose authority the Federal Office of Road Safety was put.

2.29. It was this author’s observation that the Act truly was not for the purpose of road safety. That

aim was achievable readily by alternative arrangements for evidence and justification. In South

Australia it was not possible to claim that Australian Design Rules were not satisfied because

engineers and government inspectors and engineers checked model reports and inspected each vehicle

prior to registration approval. Minor omissions from local requirements were corrected. The Motor

Vehicle Standards Act 1989 was for industry protection, not only for local manfucturing industry but


for major local importers of vehicles whose investment in sales outlets, marketing and advertising was

deemed too fragile to withstand competetion from micro importers.

2.30. In 198911, Australian production of complete cars and station wagons was 303,544 while the

full volume procedure importion rate was 126,262 vehicles. The Australian Design Rules are a set of

standards and cannot take on the all embracing, fit for every occasion imprimatur of legislative

instruments. In the next section the Road Vehicle Standards Bill 2017 will be assessed in detail. Since

11 Quinn, A.; Black and White Data Book on the Australian Motor Industry, Federal Chamber of Automotive Industry, Canberra, 1990 and 1991

2003, the Australian Design Rules have been mandated as legislative instruments under the

Legislation Act.

2.31. By memory, the low volume industry second hand vehicles certified by low volume

concessional procedures had reached less than 10 thousand units by 1989. The tariff rate for passenger

vehicles in 1987 was 57.5% scheduled to drop by 2000 to 15% and 5% by 1996 for light commercial

vehicles and four wheel drive vehicles.

2.32. After 1989, many specialist firms disappeared from the market. However, such is the

enthusiasm for certain makes of motor vehicle that even those in government and policy making most

committed to industry protection still wished to own personally a 1955 Chevrolet, E Type Jaguar or

Ford Mustang and there was some sympathy and understanding. It remained possible to import

vehicles over fifteen years old.

2.33. The low volume vehicle industry is populated by artisans and vehicle enthusiasts whose

approach to the discipline is more akin to that of artists rather than commercial entrepreneurs. As a

result, importers worked within the guidelines of the Motor Vehicle Standards Act 1989 and

harnessed the combinded resources of the low volume industry and in order to continue to trade.

2.34. After a while, the principles of the Button plan were adopted in the micro low volume industry.

Individual firms, often single person firms, grouped with others to commission testing and pro forma

applications for which no alternative procedures were accepted for approval from the Administrator

of the Motor Vehicle Standards Act to affix a compliance plate to a vehicle less than 15 years old that

was eligible for importation. This author prefers the acceptance of alternative procedures. One defect

of treating certification evidence as a tradeable commodity is no knowledge need generate from the

process – a little like being able to purchase evidence of subject accomplishment in order to qualify

for an education certificate. From a vehicle safety and engineering perspective, the value of the


certification process is not the stamp of approval but the knowledge and understanding of the vehicle

with respect to its critical provisions. Towards the end of the 1990s, the importation of new and used

vehicles was rising as it had in the 1980s.

2.35. By 2000, new car sales in the Australian market had risen to almost one million and the micro

industry imports were reaching 16 thousand. Again a wave of protest arose from the Federal Chamber

of Automotive Industry.

2.36. One of this author’s clients imported Ford light trucks from a Ford dealer in Texas which my

client claimed sold more vehicles per year than Ford Australia. Such was the relationship with the

Texas dealer that he was put on their mailing list for product service bulletins and parts and

accessories notices. With approval to import up to 25 vehicles per year, his market was stable and in

balance at about 10 to 12 vehicles per year. Over the 12 years of his operation, he had many repeat

customers. Highly discriminating customers would specify in minute detail the vehicle they sought.

He worked closely with his supplier to meet those details and then converted the vehicle to right hand

drive on its arrival in Australia. He had a natural ability in handcraft and a farmer’s inventiveness in

problem solving. His jigs and fixtures for right hand drive conversion were works of art and his

product was at “world’s best practice”. To his home and small workshop at Port Lincoln, people came

from all over Australia to get the vehicle they wanted. Each year he upgraded his model approval

documentation and was successful in every “single uniform test inspection”.

2.37. During the consultation process for the 2000 revisions to the Motor Vehicle Standards Act, it

happened that another manufacturer was working with Ford Australia to import the same type of

vehicles under full volume certification, thus rendering him ineligible to import under the low volume

scheme. His business was doomed. At his request I took the matter to the late Senator Jeannie Ferris.

“Ah, Doug, this is terrible. Leave it with me.” Two weeks later she telephoned saying, “This is huge,

it is bigger than me. There is nothing I can do.”

2.38. A meeting was arranged in Port Lincoln at which Member of the House of Representatives

Barry Wakelin (now OAM) presided. My client and I were in attendance as was State Member of the

House of Assembly Liz Penfold. Representing the government was Roger Payne, Senior Engineer of

the Federal Office of Road Safety.

2.39. Mr Wakelin asked me to speak first and put my client’s case. I explained that on my witness

the Motor Vehicle Standards Act had nothing to do with road safety but had been introduced as an

industry protection device and a non-tariff barrier to importation. I argued that there should be no

impediment to my client continuing to trade since his mode of converting vehicles was idiosyncratic


and there was sufficient unique attributes in his conversion to warrant his vehicles being treated as

unique models independent of the whatever import arrangements others made.

2.40. I knew Mr Payne and we shared a mutally close and admired friend. Nevertheless, I expected

him to toe the Office line and rebut my argument. I waited for him to say “Doug does not understand

how important safety is to us and how we cannot allow a vehicle under low volume approval when

there is a superior alternative.” I had heard it all before. He didn’t. He said “What Doug says is right.

Nevertheless, we enforce the process rigourously.”

2.41. On the aeroplane back to Adelaide he said “Whatever you do, do not encourage your client to

take legal action. It will have to go to the High Court, take 5 years and half a million dollars. Even if

he wins, we will change the rules.” It was sound advice from an admired friend.

2.42. My client and I followed that meeting with a trip to Canberra to meet and discuss the issue with

Mr Robinson, the then Administrator of the Motor Vehicle Standards Act. He said “You have to

realise, you are dealing with the big end of town here. If we publish a determination that isn’t liked by

the industry, the Minister gets a telephone call within 15 minutes and we get a call to explain straight

after.”

2.43. My client was put out of business and 12 years of infrastructure and market knowledge were

rendered worthless. Worse, his identity, so wrapped up in his good works, so wrapped up in his need

to participate in his industry and market was destroyed. He said:

“If it was just the Aussie dollar devaluing, you could bide your time because you know people will

get used to new price and come back to the market.

“If it was just a competitor coming in, you know that they could never complete with a one man

operation. I can take telephone calls at 10 o’clock at night while I am converting a dash board. They

can’t. But when the Governement stop you there is nothing to be done,

“You try to tell someone, but their eyes glaze over. They can’t believe this is happening in this

country. They can’t believe that a government can just close down a viable business.”

2.44. In that conversation, I was reminded of the quotation at the introduction to Chapter 14 of Paul

Samuelson’s Nobel Prize winning book “Economics”: “Only one fellow in ten thousand understands

the currency question and we meet him every day”.11 The comment was no doubt meant to extol the

virtues of true economists over those who walk the high road of plain experience, but in my

experience it is my client who understands truly the driving force of economic development. I was

11 Hubbard, K.; In Paul Samuelson’s Economics, McGraw Hill, New York, 1964 13 Edmund Burke; ibid


also reminded of the quotation above Samuelson’s Introduction13 : “The age of chivalry is gone – that

of sophisters, economists and calculators has succeeded.” Those policies crystallised as legislative

instruments continue to utterly ruin the economic balance of South Austrlia in partcular and Australia

in general.

2.45. Each one of my erstwhile client’s predictions came true plus an unexpected event. During the

12 years of low volume production, my client never ceased testing and developing and converted

from a proprietary chain drive steering conversion to his own designed and developed bevel gearbox

conversion. This mode of conversion was made after deep consideration based on practical and

scientific engineering. Within three months of his being put out of business, this author received a

telephone call from SA Ambulance Service requesting analysis of the failed steering system of my

client’s competitor’s vehicle. The drag link that connects the steering gearbox to the wheels had failed

in service on account of the inappropriate design of the steering conversion as made by the “the big

end of town” on the vehcle that had been certified under full volume procedures. The Ford sponsored

manufacturer went out of business, just as my client predicted and Ford Australia attempted to market

the vehicles directly but later ceased to do so. However, by then it was too late for my client.

Approvals he had were out of date, the approval process had changed and he was in no position to

reinvest in returning to trade.

2.46. The revisions to the Motor Vehicle Standards Act 1989 were passed in Parliament with Mr

Wakelin absenting himself from the House when the vote was taken.

2.47. With the revisions to the Act, was born the Registered Automotive Workshop Scheme and

detailed government approved lists of vehicle eligible for importation as “special and enthusiast

vehicles”.

2.48. During the consultation with “stakeholders” Mr Alan Gascoyne, from time to time

Administrator of the Motor Vehicles Standards Act was asked “If we were to have a successful

vehicle, could we establish a second Registered Automotive Workshop?” “No, Jo. This scheme is not

something we encourage. It exists because we cannot stop low vehicle imports, we are not here to

encourage it.” The integrity of these people is not in doubt. Their honesty is refreshing and admirable

but policies, schemes, dictation of what counts as evidence and facts could not have led to a worse

outcome on the Australian economy and affection people feel for those who govern them.

2.49. On a Wednesday, I visited my client who owned a Registered Automotive Workshop. I was

there in order to inspect and sign off a vehicle. He was cressfallen. “I have spent 30 thousand dollars


testing Japanese ‘turn with steering lamps’ and they have failed again.” On the Saturday he took his

own life.

2.50. Correlation is not causation and nothing can be done but record the correlation. A few years

later I was attending a Single Uniform Test Inspection when the government inspector and I discussed

the cornering lamp issue. “Yes, we would not necessarily enforce that these days”. I said “Do you

realise what you are saying. That is despotism. You are not saying ‘We would grant an exemption for

that’ or ‘we have repealed that’, you are saying you might enforce it but you might not. That is

despotic.That is the technical definition of despotism.”

2.51. The Registered Automotive Workshop Scheme is predicated on the assumption of a turnover

of 100 vehicles per year. The micro industry of artisans and specialists cannot manage nor want to

manage that level of turnover. Less than 25, usually less than 15 vehicles per year does not require the

management control of the Registered Automotive Workshop.

2.52. Every one of this author’s clients involved in low volume vehicle importation has had thorough

knowledge of every part of their vehicle models. Some had been actively learning about their vehicle

makes since they were three years old. The knowledge base and capability in this industry is vast, but

goes unnoticed as microvolumes limited by quota of 25 or 100 are subsumed in markets where low

volume is measured in thousands. Nevertheless, this author supports the quota system as a reasonable

for market balance.

2.53. And so by 2018, the major vehicle manufacturers of Australia have all ceased local production

and the industry has become an indusrtry of importers except for residual assembly plants of heavy

vehicles, imported as chassis, body and engine packs and built to standard specifications.

2.54. Only microvolume operators are now engaged in original design and manufacture, be they

importers or low volume constructors. Low volume in the current context is less than 100 vehicles per

year by manufacture, modification or importation. This author’s single make specialists have been in

equilibrium in the marketplace at less than 15 vehicles per year. Even a quota of 15 would be

adequate for this author’s clients.

2.55. Previous government schemes, policies, plans and governance have resulted in an outcome that

could not have been worse for the automotive industry in Australia or for the Australian economy and

production capability. The Productivity Commission Report12 on Australia’s Automotive

Manufacturing Industry concluded “The Australian automotive manufacturing industry is one of the

most heavily assisted industries in the country. The Commission estimates that net combined

12 Productivity Commission; Australia’s Automotive Manufacturing Industry, Inquiry No 70, 31st March 2104


assistance of about $30 billion (2011-12 dollars) was provided to the industry between 1997 and 2012

in the form of tariffs and various subsidies.”

2.56. At least one reason for the disastrous outcomes of automotive industry guidance is because

there is a gap between law as the Governor-General enacts with the advice and consent of Parliament

and the policies made into law by legislative instruments made under the delegation of authority to

Ministers and those in their departments. If members of Parliament understood truly the social drama

that has unfolded around these enactments, the intellectual dishonesty and the factual falsity, they

would send Bills such as the Road Vehicle Standards Bill 2017 back to those draughting it and seek a

Bill written in accordance with law and constitutional intent not political intent.

2.57. Where more flexibility is needed for safe outcomes, every government scheme, policy, plan

and rule has dictated more intense centralisation of authority and power and imposition of tighter

limits and more restricted conditions of entry to the market. Each control mechanism has failed

economically and socially. Why would the Road Vehicle Standards Bill 2017, modelled on previous

schemes be any different?

2.58. It is no surprise that delegated legislation planned to ensue from the Road Vehicle Standards

Bill 2017, prohibits the importation of heavy vehicles in low volume. True to history, the

government will continue to the last to stamp out every vestige of self starting enterprise using safety

as the misapplied heuristic.

2.59. The Australian Design Rules are a set of standards, ultimately no better than guidelines and

cannot take on the all embracing, fit for every occasion imprimatur of legislative instruments. In the

next section the Road Vehicle Standards Bill 2017 will be assessed in detail.

2.60. In 2011, Mr Selway13 appealed a decision of an Administrative Appeals Tribunal that

supported the prohibition of his importation of an Aston Martin sports car. In the Federal Court of

Australia, Justice Mansfield found in Mr Selway’s favour, the Court ordering that:

(1) The application by way of appeal be allowed.

(2) The decision of the Administrative Appeals Tribunal made on August is set aside and

the matter is remitted to the Administrative Appeals Tribunal for rehearing and

determination according to law.

(3) The respondent pay to the applicant his costs of the application.

2.61. In reaching his decision, His Honour noted that “Its (the Aston Martin’s) approval could not

have undermined the policy or objectives of the legislative scheme. It would not have affected

adversely or permitted the making of exceptions so that the standards proposed by the Act might

13 Selway v Minister for Infrastructure, Transport, Regional Development & Local Government [2011] FCA43


become meaningless. To the contrary, they would be adhered to. The remaining matters which the

Tribunal addressed concerned unfairness or injustice, financial loss, the uniqueness of the vehicle, and

unexpected events. It is necessary to deal only briefly with them.”

2.62. This was a very important judgment because the qualities of safety, enviroment protection and

theft prevention were not deemed to be barriers to entry and His Honour deemed that the declared

intent of the Act was satisfied. His honour rejected the notion that “By its nature, the discretion (the

discretionary powers of Administrators) must be exercised sparingly; there is no point having a

national scheme if the discretion is used to make so many exceptions that the standards become

meaningless.”

2.63. In South Australia, Section 163AA of the Road Traffic Act 1961 affords power of granting

exemption to the Minister via his or her delegates as follows:

(1) The Minister may, by instrument in writing or by notice in the Gazette—

(a) exempt—

(i) any specified vehicle; or

(ii) any vehicles of a specified class; or

(iii) vehicles carrying loads of a specified kind, from specified provisions of this

Part; or (b) vary or revoke an exemption under paragraph (a).

(2) An exemption under subsection (1) is subject to such conditions and limitations (if any) as the

Minister thinks fit and specifies in the instrument or notice of exemption.

2.64. This has worked excellently and vitally to remedy errors in Acts, regulations, rules and

standards and consequences unforseeable at the time of writing should that suite of imperatives be

applied with black letter rigidity. His Honour extended that sentiment to Selway matter.

2.65. In the author’s experience, it is not unthinkable that the Road Vehicle Standards Bill has

been draughted in the Departmental hope that success similar to Mr Selway’s could not be repeated.

3. Legislation since 1989

3.1. At the meeting of the 30th January of this instant, Mrs Nyakuengama explained that all

Commonwealth legislation comes under the Acts Interpretation Act 1901. When attempts were made

in 2000 in South Australia to apply black letter interpretation of regulations and to scale down the

exercise of provisions within Section 163AA, the overwhelming weight of evidence and reason

required the reinstating of the exemption process. As Justice Mansfield adjudicated, law must be


exercised according to intent and yet a succession of the Administrators of the Motor Vehicle

Standards Act has insisted on black letter interpretion and elevated original manufacturers to a status

of technical credibility that runs counter to the first principles of engineering.

3.2. In 2000, the Chief Justice of the High Court, Murray Gleeson14, presented the ABC Boyer Lectures

on the topic “The Rule of Law”. He argued that “the civil law is working at its best when people do

not need to go to court to make claims or enforce rights because legal obligations are known and

accepted.” In the case of motor vehicles, the people in the community know and accept the need to

meet the intent of safety, environmental and security provisions but are incredulous at the

Machievellian barriers to eligibility for consideration of approval for vehicles.The Chief Justice

argued “In our society, threats to the rule of law are not likely to come from large and violent

measures. They are more likely to come from small and sometimes well intentioned enroachments

upon basic principles, sometimes by people who do not understand those principles.”

3.3. The concerns of the erstwhile Chief Justice have been taken up with purpose by Emeritus Professor

Dennis Pearce AO. His latest treatise (2017, p3)15 is “primarily concerned with the parliamentary

review of delegated legislation and the judicial review”.

3.4. Members of Parliament will be asked to advise the Governor General and give their consent to him to

enact the Road Vehicle Stanards Act 2017. In reality, they are being asked to grant unfettered and

unlimited power to a Commonwealth Department with a history misleading parliament and distorting

technical evidence to protect corporations of kindred philosophy and values. In his pre-Brexit book

“Building the New Managerialist State”, Denis Saint-Martin16 views managerialism as a mode of

bureaucratic reform – “an ideology, a philosophy, a culture, a set of techniques and pactices . . . the

pursuit of efficiency and effectiveness and value for money . . . market based administration . . .

entrepreneurial government . . .” The concept of “reform” has masked the manner in which the

managerialist model has subverted a workable system of administration to a style of delegated

legislation that is reaping the worst fears of the greatest legal minds of the this and last century.

3.5. In 1929, English Chief Justice Lord Hewart17 wrote “The New Despotism”. A theme he maintained

was “No one can lawfully be restrained or punished, or condemned in damages, except for a violation

of the law established to the satisfaction of a judge or jury or magistrate in proceedings regularly

instituted in one of the ordinary Courts of Justice”. Almost 90 years later, Acts such as the proposed

in the Road Vehicle Standards Bill 2017 empower petty officials to utterly ruin firms, destroy careers

14 Gleeson, M.; The Rule of Law, ABC Boyer Lecture Series, ABC, Sydney 2000 15 Pearce, D.; Delegated Legislation in Australia, 5th Edition, LexisNexis Butterworths, Australia, 2017 16 Saint-Martin, D.; Building the New Managerialist State, Oxford University Press, Oxford, 2000 17 Lord Hewart of Bury; The New Despotism, Cosmopolitan Book Company, New York, 1929


and denigrate reputations using legislative instruments made by public officials, for public officials

and for the efficiency and effectiveness of their own departments. Under that regimen, the Australian

automotive industry has been reduced to a coterie of artisans whose only regulatory hope is in access

to considerate administrators who can distinguish between black letter law and intent of the law.

3.6. To understand how egregiously unlawful departments can become, this author was in dispute over the

meaning of an instruction to “open the throttle as rapidly as practicable and release it as rapidly as

possible”. When opened as rapidly as possible, fuel in the combusion chamber detonated and caused

engine knock and risk of damage to pistons and valves – a condition drivers are warned to prevent.

The report detailed how the throttle was opened in a manner to reach the cusp of the point of

detonation. The test results were rejected. “We are not wordsmiths. To us ‘as rapidly as practicable’

means the same as ‘as rapidly as possible’. We have had a meeting and decided you are wrong.” So

much for habeas corpus. Members of Parliament can be confident that stories such as this can be told

many times over by every holder of approval to affix compliance plates. Such excess of unfettered

power is not possible with State departments since there is ready access to the responsible minister.

The effect on road safety is to divert attention from what matters to issues of banal triviality exercised

with rigour to cull rather than cultivate an industry. In one matter, auditors asked for the noise test

results. They were presented. They asked to see the sound pressure level meter. A pristine condition

meter and calibrator were presented. They asked to see the calibration report for the metre and

calibrator. A current calibration certificate was presented for each instrument. “That is a spot check

calibration certificate not a report. We want a report.” The test results were rejected. When a report

was produced it confirmed the data on the calibration certificate, the resonse was “The tests will have

to be repeated because only the calibration certificate was held when the first tests were done.”

There was no possiblity of the measurements ever having been erroneous.

3.7. Do Members of Parliament realise how enactments are being managed? Do they realise what powers

they are delegating to departments? The Bill below gives an hint of this.

Review of the Road Vehicle Standards Bill 2017 4.


4.1. The Bill is to provide for the controlling of access to markets of road vehicles and the setting of

national standards. Section 51 of the Commonwealth of Australia Constitution Act does not afford the

Federal Parliament power to make laws with respect to road transport. Whatever the Commonwealth

attempts to do, it can never escape the reality that states and territories are empowered to make laws

with respect to road transport.

4.2. There are constraints and opportunities in each state and territory that prevent overall uniformity from

being efficient and effective. These are never extinguished. Ultimately, there is a “this is how we do it

here” final call. This is often for good reasons of geography, climate, production or culture.

4.3. The “other purposes” should be identified and articulated.

5. The enacting formula

5.1. This enacting formula is a lie. Firstly, there is no such creature as “the Parliament of Australia”. Under

the Commonwealth of Australia Constitution Act 1901, there is a “Federal Parliament”. Secondly and

most importantly, the Parliament does NOT enact. The Governor-General with the advice and consent

of Parliament enacts.

5.2. Those responsible for the change in wording argue it is “an historical fictiont” to say that the

Governor -General enacts. By that fundamental shift in formula, the people of Australia are betrayed.

5.3. All agree that a law is a public asset, made for Australians by those who represent them. When a Bill

transfers from Parliament to the public side of the Crown, every Australian is an owner of that asset.

To make a law workable, every person has a right to contribute to its sensible application and practical

development.

5.4. By Parliament commandeering the enacting formula, Acts have ceased being public assets and have

become instruments of control, but most importantly, instruments in which Parliament without


providing the public with the means to contribute to effective working, delegates the power to make

laws to others in the executive who are hidden from and have no accountability to the public.

5.5. In South Australia a Vehicle Engineering Standards Advisory Group was formed some fifteen years

ago to assist officers of the Vehicle Operations Section of the Department of Transport make

workable interpretations of regulations and standards. That body has not met in two years and for the

two prior to the last meeting the agenda had drifted into a one way directive in which the “advisory

group” was told the latest decisions and directions being taken by federal office of Vehicle Safety

Standards. Meanwhile the rate of deaths on roads has ceased to decline and in recent years has risen.

5.6. The principles of constitutional governance should be restored and the true enacting formula should

be written.

6. Objects of the Act

6.1. Members of Parliament should be wary of what appears to be a benign nature of the objectives.


6.2. “Expectations of the community” become interpreted as conformity with a road vehicle descriptor and

the documentation logged to support that descriptor.

6.3. At the meeting of the 30th of January, discussion centred on the colour of seat upholstery. Documents

supporting a road vehicle descriptor include certification evidence of seat testing. The part number of

the tested seat is recorded. If the colour of the upholstery changes, the seat part number changes.

6.4. It is a simple matter for an auditing engineer to write a marginal note against the reference part

number “same as Part Number xxxx, only blue”. That is not acceptable. The seat would have to be

replaced with one of the tested part number or else re-certified. Why? Because only one approved part

number is expected by the community. No regard need be made to intent, because the object is to

meet expectation and the expectation is for a seat of the original part number to be fitted.

6.5. Harmonisation at 3(1)(c) has been discussed but suffice it to say that this aim since 1958 is still a

work in progress. In Australia, 2.5 metres is defined as not one millimetre over 2500 millimetres and

is the limit of width of heavy vehicles. In North America the limit is 100 inches, 2540 millimetres.

Mirror staunchions on heavy vehicles can protrude 150 millimetres outside the maximum width

allowance, making the 2500 millimetre limit risible.

6.6. In most measuring situations a bi-lateral tolerance is pesumed and measurements are quoted to a

workable number of signifant figures. To two significant figures 2.5 metres implies a workable range

between 2450 to 2550 millimetres. In other words it could be expected that within an ambition of

“harmonisation” 100 inch width could be tolerated without any detriment to road safety. It isn’t.

6.7. A state policy maker said to me “Do not even try to seek approval for 100 inch trailers. We are just

lucky that China adopts the metric system”. He was implying that Chinese trailers are acceptable

whereas American trailers are not. What he did not understand is that many Chinese trailers are copies

of American trailers or else built to American drawings and exceed 2500 millimetres and are rejected

in Australia, sending importation firms into liquidation.

6.8. Effect on road safety? No positive effect on road safety.

6.9. At 3(2), the aims are to delegate to the Minister the unfettered power to determine “national road

vehicle standards”.

6.10. In Section 3, Parliament needs to include a clause to remind the Minister and those who are

affected by the Act that the Minister is empowered only within the scope of the Acts Administration

Act 1901. Unless provisions are made to keep alive the notions of ministry and intent according to

law as distinct from management and contol, Acts can be made workable. Acts become unworkable

when the true intent is undeclared and the declared intent appears to provide windows of opportunity


which in reality are barred or set with traps. Under those circumstances disingenuous interpretations

are entrenched and intellectual dishonesty thrives.

6.11. The objects and aims of this Bill are fertile soil for that intellectual dishonesty.

7. Outline of the Act

7.1. Those who have draughted the Bill and written the Overview18 assume that readers will go into no

more depth of enquiry than the declared aims and rose coloured descriptions of industry

circumstance.The Bill is to reflect “significant changes in global and domestic automobile markets

and improvement in vehicle technologies . . . strengthen and modernise the legislation . . . deliver

world leading standards in community and environmental safety . . . save industry 70 million dollars

per year in lower regulatory costs . . . further harmonise Australian standards with world standards.”

Who could disagree with those aims? A hint of the deception is in the aim to “strengthen and

modernise the legislation”. The underlying issue is the definition of safety and the form of evidence

deemed valid to justify a safe vehicle.

7.2. Other aims listed in the Overview are to “improve access to imported specialist and enthusiast

vehicles . . . simplify the importing process . . . simplify the pathways for importing vehicles granted

concessions against the national vehicle standard . . . streamline the supply of mainstream (full

volume) new vehicles . . . strengthen the compliance and enforcement powers of the Department etc”

7.3. These declarations of the Overview are reflected in the Bill only insofar as they empower the

Department in absolute terms, insulating it further from determinations of Justice Mansfield who

ordered that the Selway determination be reconsidered according to law.

18 Department of Infrastructure and Regional Development; Road Vehicle Standards Bill 2017 Overview, December 2017


7.4. Members of Parliament should hearken to the warnings of Hewart in “The New Despotism”. Under

the great heuristic “safety”, cornering lamps that turned with steered wheels have been removed.

They are not mandatory but a safety benefit. However, meeting North American and Japanese

standards but not European they are deemed “unsafe” in Australia since the grid pattern of luminous

intensity differs minutely in the different standards. Removal of the cornering lamps is a nett safety

downgrade. The list above is a list of contradictions.

7.5. This author has found no evidence in the Bill to suggest that there is a process of resolving these

contradictions, rather there is evidence that the contradictions will be magnified under the “range of

enforcement powers”.


8.1. After sixty years of agreement to adopt “uniform technical prescriptions” it would not be

unreasonable to expect the Australian market of one million vehicles per year out of a global market

of sixty million to accept at least the three major standards as being acceptable – American, European

and Japanese. Not so. With no thought to the collapsing nature of the United Nations Economic

Commission for Europe, the Australian Motor Vehicle Certification Board and the Administrator of the

Motor Vehicles Standards Act advised the Minister to adopt exclusively the European standards. 8.2.

Definitions 8.


Accordingly, since the 1988 release of the Third Edition of the Australian Design Rules for Motor

Vehicles and Trailers19 European standards have progressively superseded the American standards upon

which the Second Editions Australian Design Rules were based. Only one body of knowledge informs

both standards and any differences are elaborations and regional idiosyncrases and inconsequential in all

matters except product differentiation and market access restriction.

8.3. Regional idiosyncrases can be real. When Bob Heath of Rainsford Metal Products subsidiary Safe’N

Sound invented the reverse facing baby capsule in 1983, it required the employment of an upper

tether strap passing over the top rail of the rear seat squab. In Europe, Isofix seats did not require such

an upper tether and child seat restraint anchorages were provided often at the mid height of the squab.

8.4. Australian Design Rule 34 requires a tether strap to pass over the upper rail of a seat squab.

8.5. By oversight or negligence or lack of knowledge of the Rule or lack of understanding of the basic

principles behind the rule, certain European vehicles were certified under full volume procedures as

meeting Austalian Design Rules despite child restraint anchorages with accompanying instructions

that placed the tether staps in an unsafe region. When that was pointed out to those who sit on national

councils, the reply came back “These vehicles have been through the prescribed process, by definition

they are safe to use on public roads.”

8.6. Under concepts such as “chain of responsibility” and an understanding of systems of systems, one

would predict a closed loop of knowledge transfer with feedback and correction after feedback. This

does not occur.There is one way flow of demands and a false confidence in the power being wielded.

8.7. With respect to harmonisation, there is an history of harmonisation being not accepted when it should

be and being followed dogmatically when it should not be. Nothing in this Bill addresses that

impasse. Nothing in this Bill addresses cooperative knowledge sharing and feedback.

9. Manufacture and manufacturer

9.1. The Bill imposes a requirement for all vehicles to be added to a computer based Register of

Approved Vehicles , which register, at 14(3) “may be maintained as part of, or together with, another

register or database relating to road vehicles”. This undoubtedly is a reference to the National

Exchange of Vehicle and Driver Information System. That system masks another level of industry

control. Vehicle wreckers yards groan with over a thousand million dollars worth of vehicles readily

repairable. Under a scheme to define what is repairable and what is not repairable, a written off

19 Australian Motor Vehicle Certification Board; Australian Design Rules for Motor Vehicles and Trailers, Canberra 1988


register of vehicles ensures that once defined as “written off” no level of expertise or evidence in

repair can reverse the categorisation. High volume new vehicle manufacturers were supportive of the

system.

9.2. The concept of manufacturer is not neutral. When low volume importers engage with overseas

partners, it is invariably with dealers representing manufacturers. There are dealers in America with

revenue exceeding that of local erstwhile manufacturers or assemblers. In that relationship the low

volume importer has access to all the knowledge base, service and parts and accessories inventory of

the stable and well established dealer. What is available to the dealer is available to the local

importer.

9.3. Nevertheless, even the largest dealer is not the first manufacurer. Thus when requirements are set

under delegated legislation to verify “manufacturer’s approval” or that a modification has been made


“within the manufacturer’s guidelines” the supportive dealership is of no assistance. Similarly, no

manufacturer can be expected to endorse a modification that has not come via its own design system.

9.4. It has been this author’s experience that first manufacturers being multinational corporations NEVER

divulge original test reports or certification details and so the dealer relationship is unhelpful in

gaining access to original certification data.

9.5. When a client imported new NC category heavy vehicles, the seat belts in all aspects of performance,

location and labelling with European approval marking met the requirements of Australian Design

Rules. The form to complete as evidence of compliance does not require the evidence of labelling but

of first manufacturer’s data from testing. The dealer was not able to supply that evidence since the

manufacturer held fast to it and so it fell on the importer to supply it. Sled tests simulating a crash

were carried out successfully using a 95th percentile anthropomorphic dummy. Meanwhile the

webbing manufacturer was approached to supply evidence and results of the webbing environmental

exposure tests. Eventually, after being promised such evidence the reply was “I am sorry, we are

bound by contractural agreement with our seat belt manufacturing customers to not issue test data for

the webbing.” The seat belt manufacturer made the same claim. Whole seat belt assemblies, in

pristine and proven sound condition had to be replaced on eight vehicles per year (16 seat belt

assemblies per year) with locally manufactured seat belts requiring the minor modifications to be

made to the anchorage region. This is vexatious and wasteful, no useful purpose being served with

regard to vehicle safety. It could even be argued that tampering with a pristine system should be

avoided wherever possible.

9.6. Members of Parliament should be aware that when a requirement is set to confirm compliance with

manufacturer’s requirements or manufacturers’ test data, in almost every case, such evidence is not

likely to be supplied by the manufacturer or suppliers to the first manufacturer.

9.7. An illusion of openness is broken by the reality of commercial oligopolies colluding to feeze out low

volume aspirants.

9.8. Nothing in this Bill appears to change this level of corporate market protection. There is an history

and a pattern of a sibling relationship between what the Administrator of the Motor Vehicle Standards

Act at the time called “the big end of town” and the delegates of the Minister who put disingenous

barriers in place to limit access of low volume producers to markets.

Australian Technology Pty Ltd, ABN 71 008 126 350 29 Consulting Engineers 16th February 2018 Report Number: Aide Memoire 145 10. The “Specialist and Enthusiast Vehicles Register”

10.1. This is curious terminology. Specialists and enthusiasts are people holding certain qualities of

the capability and joy. However, these terms have been applied to motor vehicles and a government

department decides upon the nature of the vehicle over which and in which a person can enthuse and

develop specicialised knowledge. Manufacturers aim their production at market sectors and

economies of scale distill a market balance. Different scales of production are valid for different

market sectors. This author has provided engineering services to companies servicing the six standard

deviations of market penetration – providing products for 99.7% of the population. The author also

supplies engineering services to the residual .3%. In 25 million people that is a market of 75 thousand,

from newly born to centenarians, exceedingly tall to very small, able bodied to grossly disabled,

flamboyant and rich to needy and impoverished. That market is not amenable to satisfaction by

methods of mass production or mass supply to the market. Taste and preference cannot be ordered.

10.2. One client was keen to invest quarter of a million dollars in reproducing a replica 1953 C Type

Jaguar but did not proceed because approval was not going to be granted for its nested near side exit

exhaust pipes. Such was the value he placed on that specific aspect of vehicle design and appearance.

Is Australia a better place for the blocking of that one off project? Probaby not. In a 2006

determination, the European acceptance of near side exit exhaust was adopted, but at the time

prohibition was an immutable maxim.

11. Jurisdictional assessment procedures and low volume production

11.1. When production is under 15 to 25 vehicles per year, it is ineluctable that there be variation

between individual constructions. In high volume production, variation occurs via engineering change

requests and temporary substitution authorisations. In low volume manufacture or modification after

importation, a vehicle imported from early in production may be a million vehicles adrift from the

same model at the end of the year. It is efficient for manufacturers in the low volume industry to have

a close and open relationship with state agencies from which inspectors can view minor, trivial,

inconsequential change such a seat trim colour that neverthelss change the part number from that

quoted on certification documents. At present, such a change must either involve retesting and

recertification or as is more common, removal of the seat and sourcing a new seat of the certified part

number. This is an insult to the intelligence of the manufacturer and the engineering profession. It is

not possible for a state or territory agency to enforce such risible demands but from the distance of

centralised government it is. Using the resources of established state agencies, there are various

options available:


11.1.1. Mutual recognition of other jurisdiction acceptance

11.1.1.1. For usually valid reasons this has proved unworkable and continues to prove

unworkable.

11.1.1.2. States and Territories (Tasmania to Queensland), have truly different constraints due to

climate, geography and infrastructure. What is optimum or tolerable in one region need not

be so in another.

11.1.1.3. Efficiency, when defined as output divided by input, is optimised in a community when

the nett benefits are weighed against the effort to achieve them. But whose efficiency, that

of controllers or that of individual subjects who the controllers are employed to serve?

11.1.2. Jurisdictional assessment of common evidence and setting of conditions for the particular

jurisdiction

11.1.2.1. This is the reality of how individual vehicles are assessed once the specifications detailed

in road vehicle descriptors pursuant to the Motor Vehicle Standards Act have been changed.

11.1.2.2. Under Heavy Vehicle “National” Law, State and Territory requirements in the final

assessment take priority over common prescriptions and proscriptions of standards. The

standards base has been publications of the Australian Motor Vehcle Certification Board

since 1969 and before that, clauses in Road Traffic Acts and Regulations that were virtually

identical in different jurisdictions. What vary between jurisdictions are limits,

interpretations and stresses on modes of demonstation of acceptable evidence of

compliance.

11.1.3. Progression from State to Commonwealth assessment

11.1.3.1. There is a fundamental difference between dealing with State and Federal agencies. It

relates to the concept of responsible governance. In the Westminster system, Ministers are

reponsible for their departmental decisions. However, centalisation and remoteness leads to

decisions less and less amenable to wisdom and reason and fairness. States and territories

have jurisdicational authority for good reason and that reason is ready access of responsible

Ministers to those whose ministry is there responsibility.

11.1.3.2. Ms Nyakuengama at the 30th January meeting stressed that all legislation must be

administered according to the Acts Interpretation Act 190120, Sections 15A and AA below:

20 Acts Interpretation Act 1901 (Cth)


11.1.3.3. The state and territory adminstration offices are the constitutionally valid administrators

of road transport and road traffic acts and are resources of knowledge and infrastructure

capable of vehicle standards assessment. They are well versed in assssment according to

Acts Interpretation Acts in which INTENT is the overarching test of validity.

11.1.3.4. When imported vehicles were allowed into Western Australia in the 1980s, the approval

decision was made on an interpretation of intent of safety requirements that could not

withstand the pursuant attacks, even though on this author’s witness they were disingenuous

attacks and the supporting arguments were smothered.

11.1.3.5. National approval can be a progression from regional approval with the region. The seeds

of that process are outlined in Section 49 of this flawed Bill.

11.1.3.6. The fundamental prerequisites for vehicle safety are an understanding of how the vehicle

works and inspection of it. It seems incredulous that systems of State assessment of vehicles

are being dismantled in favour of centralised computer based systems of this Bill in which

the local Minister has no responsible role to play, the local inspectors becoming agents of

the Commonwealth government.


11.2. This author is an admirer and avid reader of the works of Edwards Deming.21 To Deming is

attributed the “miraculous” recovery of Japanese industry after World War II. Deming’s three

principles for success in any venture are “constancy of purpose, respect for systems and reliance upon

profound knowledge”. On this author’s witness, the collapse of the Australian manufacturing

industry and the currently rising rate of road deaths is due to the lack of respect for systems, most

importantly and fundamentally the Commonwealth of Australia Constitution Act.

11.3. Section 51 of that Act does not afford the Federal Parliament, “for the peace, order and good

government of the Commonwealth” to make laws for road transport. Nevertheless, Section 78 of the

Bill states as follows:

21 Edwards Deming, W.; Out of the Crisis, Cambridge University Press, Cambridge 1982.


11.4. There is a pattern here in a trend towards abolition of state road traffic acts and more

importantly state ministers who are accessible and are responsible for road traffic affairs. Heavy

Vehicle “National” Law24 is not national but within participating jurisdictions it binds the Crown,

Ministers and delegates of Ministers to determinations of a body corporate Regulator in Brisbane.

Those determinations take effect via the Heavy Vehicle National Law Act 2012 (Q)22 and pursuant

Regulations for South Australia, draughted in Queensland, are found in the Heavy Vehicle National

Law (New South Wales) Regulations, 2013.

22 Heavy Vehicle National Law Act 2012 (Q)

e National Law (South Australia) 2103 (SA)Heavy Vehicl 24


11.5. This is the open-ended power against which Hewart warned in 1929.

11.6. Nothing in this Bill protects low volume manufacturers. Vehicles must be entered onto the

Register of Approved Vehicles but the entry pathways for that process are not listed in the Act.

Consequently it is at the whim of those who draught the Regulations and Rules pursuant to the Act

under the powers of the Minister, no Minister yet being supportive of low volume industry, the only

industry left that is based on first principles of production and commerce.


11.7. In an age of acronyms, this author recommends subscribing to DAWA (Do away with

acronyms). “Secretary and SES” are terms appearing nowhere in Chapter II, Executive Government

of the Commonwealth of Australia Constitution Act. Nevertheless, those persons are almost

inevitably going to be delegated all the functions and powers of the Minister if this Bill succeeds.

Presumably, “Secretary” means Parliamentary Secretary, still answerable to Parliament. However,

that person may delegate “any or all” of his or her functions and powers to an SES employee or

acting SES employee.

11.8. It is worth hearking back to Denis Saint-Martin’s promotion of the managerialist state (an ill

considered promotion on this author’s witness).

11.9. An SES employee is a senior executive service employee, not a commissioner, or director or

director-general or an identifiable role, but an amorphous and fluid title as indicated by the roles of


SES Advisers. It is as if real life has become a parody of the parodies of real life in television series

such as “Utopia” and “The Hollowmen”.

11.10. This Bill is fatally flawed. The SES employee to whom this Bill, if enacted, will be delegated,

is to provide “professional/specialist expertise”. However, there is only provision in the Bill for

enforcement of penalties and making of procedural directives that are not defined.

11.11. For Minister, should be substituted SES employee.


11.12. This Bill transforms the last vestige of responsible governance under a Westminster system to

the managerialist state of delegated hands off governance.

11.13. There is no process of appeal or avenue for dispute resolution. Those delegated to do so

become makers of rules that have the force of legislative instruments, conflict being resolved with

statements such “We have had a meeting and decided you are wrong. Practicable and possible mean

the same.” This is Alice in Wonderland legislation.

11.14. It should be rejected in the Lower House and if it passes there, it should be rejected in the

Upper House on the basis of its blatant trampling of State and Territory rights and powers.

12. Understanding the low volume vehicle industry

12.1. The tails of the normal distribution curve are unbounded and by mathematical definition

irrational. The genius of Gauss was his discovery that normal tendency is mathematically predictable.

12.2. As shown below23, the normal distibution representation of wants, needs and capability is

mathematically based on transcendental, irrational numbers.

23 Potts, W.D.R.; System of Systems, Deming and the Ancient of Days; Australian Organisation for Quality, Qualcom Conference, Adelaide 2014


12.3. Working within the tails of community needs, desires and constraints is intrinsically

transcendental and irrational. And yet, that is what Bills such as the Road Vehicle Standards Bill aim

to straight jacket into the boundaries and procedures that have developed for the visible 99.7% of the

community.

12.4. Ironically, it is from the .3% of the community that emerge the Isaac Newtons, George

Stephensons, Bill Gates and all the drivers of history. Locally, a man with a bullock drawn dray

walked from farm to farm digging up wool clip bellies and crutchings – the discarded rubbish of

sheep shearing sheds. One hundred years later his business was still collecting and cleaning that

residual rubbish but turning over 10% of the Australian wool clip and being world a leader in the

process.

12.5. It is that enterprise and ambition that fails to be reflected in the current Bill. Under this Bill, a

government department continues to define markets and eligibitiy to enter into them, using safety as

an heuristic to justify an removal of rights that people otherwise take for granted. Those who have

experienced this understand. Those who haven’t disbelieve it could be so.

Australian Technology Pty Ltd, ABN 71 008 126 350 39 Consulting Engineers 16th February 2018 Report Number: Aide Memoire 145 13. Understanding the managerialist state

13.1. In 1991, following the collapse of the State Bank of South Australia that failed due to a toxic

mix of government directives and managerialist hubris, the following recommendations24 were made:

13.2. These A. D. Little recommendations matched in time and sentiment the work of commentators

such as Saint-Martin described above. The error both these agents of change made and continue to

make is their presumption that the operation of the Executive arm of government in the Westminster

System can lead to better outcomes under a managerial structure. They both misunderstood the

administrative system. The table above inverts the role of public service to the role of public

controller in a managerial process. Probity becomes a disposable commodity, management “sets the

agenda” and “desired” goals are achieved by “across-government or department programs”. How else

is totalitarianism defined? In 2002, University of Adelaide Politics Department researcher Greg

McCarthy25 showed that it was the very managerialism promoted by Little and Saint-Martin that

caused the failure of the bank.

13.3. In rejection of separation of powers and the concept of accountability that underpins that

concept, the managerialist state reads very like a totalitarian system in which an omnipotent

managerial structure imposes, defines and decides upon the elements of control.

24 Ibid; from A. D. Little & Associates Inc, “New Directions for South Australia’s Economy, Adelaide, 1992 25 McCarthy, G.; Things Fall Apart – A history of the State Bank of South Australia, Australian Scholarly Publishing, Melbourne

Australian Technology Pty Ltd, ABN 71 008 126 350 40 Consulting Engineers 16th February 2018 Report Number: Aide Memoire 145 2002

13.4. Complementing that managerialist ambition are various management theories. The Deming

platform, althouth it can never fail and never has, does not suit the hubris and “wow” factor that

grabs headlines and makes aliances between governments and corporations with revenues as large as

those of countries. The dominant current management theory is that of Kotter26 with his eight point

program for change. The methods employed to promote this Bill are tediously predictable in

following the Kotter formula:

13.4.1. Create a sense of urgency For this a variety of heuristics can be chosen: climate change, vehicle safety, environmental degradation, vehicle theft.

13.4.2. Create a guiding coalition Tripartite arrangement between government, unions and corporations was the coalition for the 1980s Button Plan, more recently it is more likely to be illusionary – long lists of bodies “consulted” but no opposing view considered. In 1999, the Federal Office of Road Safety orchestrated a “coalition” of low volume vehicle importers under the title VICAA (Vehicle Importers and Constructors Association of Australia). It proceeded to preface communication with “Having consulted with your representative body . . .” More recently the Australian Imported Motor Vehicle Industry Association (Inc) purports to represent importers. The guiding coalitions concept comes perilously close to soviet politburo politics.

13.4.3. Create a vision for change When living within a discipline and being enmeshed thoroughly in it, it becomes clear that there is no change. Basic principles apply in every circumstance for all time. The change vision is manipulated with words so expertly parodied in television series such as “The Hollowmen” and “Utopia”27. “Creating the future”, “consulting with stakeholders”, “progress the proposal through decision making forums”. Around the world the death rate on roads is rising in response to vehicle control systems that for instance cause vehicles to travel automatically in paths of radius larger than those that a natural driver could have otherwise achieved. That is not in the vision.

13.4.4. Communicate the vision At the 30th January meeting, ostensibly a meeting to consult with the community, attendees were given until the 16th of February to make submissions in response to the “vision” of the Bill communicated.

26 Kotter, J.; Leading Change, Harvard Business Review Press, Massachusetts, 2012 27 ABC; Television Series The Hollowmen, 2008 & Utopia, 2014


The meeting was promoted as an opportunity to consult with the community. The Bill was presented to Parliament on the 7th of February28.

13.4.5. Remove obstacles After World War I, sociologist Max Weber became very influential in the rebuilding and creation of a new German polity. It was formed around his “scientific” notions of bureaucratic selection of ideal types and “rational” processes. It is diametrically opposed to the Westminster System of governance in which a loyal opposition by definition must present counter arguments to proposed legislation and once enacted courts are empowered to assess whether the powers of the enforcers have been exceeded. The adversarial process is a far cry from the managerialist push to “remove obstacles”. That philosophy does not have good history.

13.4.6. Create short-term wins This is further manipulative practice devoid of principle or concern for long term effects. After 30 thousand million dollars of support in fifteen years via grants and nontariff modes of protection, the local vehicle manufacturing industry failed. Along the way were announcements akin to Neville Chamberlain claiming “Peace in our time” in 1938. This Bill slams the door on the low volume industry while proclaiming it as a breakthrough in considerate and beneficent governance.

13.4.7. Consolidate improvements The consolidation under this Bill is confirmed by the disempowering of State and Territory control over vehicle access to their roads. From the stand point of the vehicle owner, constructor, importer, modifier, this Bill sets the ground for centralised control and another dismantling of the federal system of governance. It has become fashionable to distance as irrelevant and cost as no barrier. Having legislative instruments made by Senior Executive Service employees in remote cities is akin to the failed European experiment of central governance from Brussels.

28 Department of Infrastructure, Regional Development and Cities; Reform of the Motor Vehicle Standards Act 1989, 9th Feb 2018


Kotter is sufficiently hubristic to assume changes are “improvements”. Were the Button Plan changes improvements? They were promoted in the same manner and consolidated. Was the Motor Vehicle Standards Act 1989 successful? Not to clients known to this author and the nett result correlates with the utter failure of local manufacturing under full volume procedures.

It is worth remembering that long before Brexit, Vehicle Certification Agency in Britain had to introduce a three stream system of vehicle certification – European Community Whole Vehicle Type Approval, National Small Series Type Approval and Individual Vehicle Approval. This should be a salutary reminder to Members of Parliament that pan regional systems fail. Some would say unless there is rampant corruption and surely that is not desirable.

13.4.8. Indoctrinate everyone into the new culture

When people share a discipline, they share the agony of learning and the deprivation

that goes with the period of learning. The share meanings of words and the iceberg of

concepts of underpinning those words

At the meeting of the 30th January, to the issue of recertification of seats as the result of

colour change, one of the speakers truly and sincerely attempted to put forward the

case for why in the interests of vehicle safety such recertification is necessary.

Such is his indoctrination that he denies the capability of an observant, experienced,

trained, qualified, awarded engineer to compare a seat frame certified with a seat frame

presented and judge whether recertification is necessary.


Indoctrination is a better flaw than intellectual dishonesty, but the two merge and they

merge in this Bill.

14. The tyranny of centralisation and totalitarianism is inside definitions

14.1. From above, the regard must be had only for the features of a vehicle, not the service to which

it is to be put.

14.2. Only if the service is considered can the safety be optimised. Every vehicle travelling between

Darwin and Katherine will strike an animal on the road if the journey is repeated frequently. A tow

truck operator in a dry flat region faces vastly different challenges to an operator in wet mountainous

conditions. A grain truck operator driving on and off paddocks requires tyres with wide tread to

prevent sinking into the ground. The ideal tyre often takes width across the bulging sidewalls to 2535

millimetres – 35 more than permitted, but a safety improvement since there is less damage to the tyre

in the paddock and less debris carried by the tyre onto the road – yet it prohibited – the engineering

solution barred by the urgency of political economy. If 2035 were to allowed, 2540 would be hard to

stop – that would allow North American trailers of 100 inches wide (2540 millimetres).

14.3. The Milgram29 experiments in the 1970s were developed to study how reasonable people

respond in obedience to authority. Every reasonable person, in the interests of vehicle safety, after

considering the forces, geometry and vehicle dynamics would accept that the 2535 width across

bulging tyre sidewalls. Such is the cruel, slavish, obedience to authority of people – you the gentle

reader, I the the cursed witness and all who are in the decision loop – that the owner of the grain truck

must be denied the use of the wide front tyres.

29 Milgram, S.; Obedience to Authority, Harper & Rowe, New York, 1974

Australian Technology Pty Ltd, ABN 71 008 126 350 44 Consulting Engineers 16th February 2018 Report Number: Aide Memoire 145 15. In fact, from time to time, it has been a policy of South Australian police and government inspectors,

under an attitude of “plausible deniability” to avert their gaze and “not necessarily” measure across the

width of tyre side walls. That is not an option open to private engineering consultants who have no

ministerial concession to do so. In fact, to do so would be construed as misconduct from which there

would be no defence. Thus is the injustice of using safety as an heuristic in political economy.”

16. Conclusions

16.1. The consultation process for the Bill has failed. It has been presented to Parliament nine days

before the closing date for submissions, thus denying the public the input promised to them

under the Legislation Act 2003.

16.2. This Bill should be rejected and returned to the Office of Parliamentary Counsel for

redraughting in order to give a useful and constitutional role to States and Territories and the

consideration of public submissions.

16.3. With the collapse of local major automotive manufacturing, it is reasonable to assume that a

multitude of small manufacturers will arise from the ashes of the protectionist past. State and

Territory infrastucture exists to accommodate that and this Bill seeks to abort the emergence of

such State and Territory participation in any embryonic restart of the industry.

16.4. Parliament does not enact a Bill, the Governor-General does. Once on the public side of the

Crown, an Act is a public asset. This Bill as written is not a public asset but a control device

not of a Minister but of Senior Executive Service employees and their delegates.

16.5. Whereas State Acts contain provisions such as the Section 163AA of the Road Traffic Act

1961(SA), no parallel provision is available in the Bill:


The above provisions are used extensively for the outlying circumstances that occur within any

community and make the Act workable. No such provision is made in this Bill. To make this Bill

workabe and equitable, there must be provisions for exemption and those provisions must be

exercised in a useful way in order to accommodate all the population, not just 99.7% of it.

16.6. The Vehicle Safety Section of the Department of Infrastructure has no history operating outside

the black letter of its own understanding of its legislative instruments. While acknowledging

that the Acts Interpretation Act 1901 applies, those within the Department have been coralled

into a system that prevents reasonable interpretation -- an “ours not to reason why” approach.

This stems from the disingenuous use of acts ostensibly for safety while safety is in fact

treated as an heuristic for trade and market control. The Bill must be rewritten to make

reference to the Acts Interpretation Act as a reminder that practices should reflect intent and

the intent as declared in non-legislative instruments is refected and practised within the

legislative instrument.

16.7. If there are sound reasons to protect the infrastructure and landholdings of major importers (and

there might be) then production and importation of vehicles in microvolume should be treated

on a quota basis – say less that 15, 25 and 100 vehicles per year. Transitional arrangements

should be made available and enshrined within the Bill beginning with provisions for state and

territory local assessment and alternative procedures progressing towards full volume

certification proceedures according to scale of production.


16.8. Compliance should be viewed within the Bill as an aspect of producers’ demonstration of

knowledge of their product and control of its quality in design and production, thus aligning

consumer law with true safety legislation.

16.9. The Bill should be re-draughted to make vehicle safety the true focus, not an heuristic for other

purposes.

16.10. If, in the re-draughting, the focus returned to:

restoring ministry instead of authoritarian control, using phrases such as “must be based on”

rather than “must comply with”, an assumption that knowledge exists as a

spectrum rather than settled sets of dicta, adaptability instead of conformity,

inclusion instead of exclusion, first principles of safety instead of inferences to

induced community expectations

then the vast wealth of Austrlian ingenuity in vehicle design, problem solving and tailoring of

specifications to circumstances of use would be able to be harnessed to achieve safety aims and

the first principles of economics would be satisfied.