Lennox and Minister for Infrastructure, Transport, Regional Development and Local Government
[2023] AATA 12
•11 January 2023
Lennox and Minister for Infrastructure, Transport, Regional Development and Local Government [2023] AATA 12 (11 January 2023)
Division:GENERAL DIVISION
File Number: 2021/0842
Re:Duncan Lennox
APPLICANT
AndMinister for Infrastructure, Transport, Regional Development and Local Government
RESPONDENT
Decision
Tribunal:Member D Mitchell
Date:11 January 2023
Place:Brisbane
The decision under review is affirmed.
..............................[SGD]..................................
Member D Mitchell
Catchwords
MOTOR VEHICLE STANDARDS – importation of nonstandard vehicle – electric bicycles – whether road vehicles – whether a class of vehicles that are not road vehicles for the purpose of the Act – whether discretion should be exercised to allow vehicles to be imported – decision under review affirmed
Legislation
Acts Interpretation Act 1901 (Cth)
Administrative Appeals Tribunal Act 1975 (Cth)
Motor Vehicle Standards Act 1989 (Cth)
Motor Vehicle Standards Regulations 1989 (Cth)
Motor Vehicle Standards (Road Vehicles) Amendment Determination (No. 1) 2021 (Cth)
Motor Vehicle Standards (Road Vehicles) Determination 2017 (Cth)
Road Vehicle Standards Act 2018 (Cth)Road Vehicle Standards (Consequential and Transitional Provisions) Act 2018 (Cth)
Cases
Esber v Commonwealth (1992) 174 CLR 430
Grapsas v Minister for Infrastructure and Regional Development [2020] FCA 525
Kaur v Minister for Immigration and Border Protection [2015] FCA 168
Minister for Aboriginal Affairs v Peko Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24
Selway v Minister for Infrastructure, Transport, Regional Development and Local Government [2010] AATA 595
Selway v Minister for Infrastructure, Transport, Regional Development and Local Government [2011] FCA 43; (2011) 120 ALD 40
Victorian Legal Aid v Kuek [2010] VSCA 29; (2010) 26 VR 700
Williamson and Minister for Infrastructure, Transport, Regional Development and Local Government [2009] AATA 48
Secondary Materials
Explanatory Statement – Motor Vehicle Standards (Road Vehicles) Amendment Determination (No. 1) 2021 (Cth)
EN 15194:2009
EN 15194:2009+A1:2011 Cycles – Electrically power assisted cycles – EPAC BicyclesEN 15194:2017 – Electrically power assisted cycles
REASONS FOR DECISION
Member D Mitchell
11 January 2023
Introduction
On 8 August 2019, Mr Duncan Lennox (the Applicant) made an application to the Respondent in relation to the importation of two 2019 Delfast Prime motorised bicycles (the Vehicles).[1]
[1] Exhibit 1, T Documents, T6, pages 21-122, Application for approval to import the Vehicles.
On 18 October 2019, the Respondent refused the Applicant’s application to import the Vehicles.[2]
[2] Exhibit 1, T Documents, T7, pages 123-124, Import application decision letter.
On 8 February 2021, the Applicant applied for review of that decision by the Tribunal.[3]
[3] Exhibit 7, Application for Review of Decision, pages 1-6, noting that an extension of time to make the application was granted by the Tribunal on 1 April 2021.
BACKGROUND
The Applicant asserts that he sought to import the Vehicles into Australia without seeking approval to do so from the Respondent as he contends that the requirements of the Motor Vehicle Standards Act 1989 (Cth) (MVS Act) do not apply to the Vehicles. The Applicant’s basis for such a contention is that he submitted that the Vehicles met the European Committee for Standardization EN 15194:2009 or EN 15194:2009+A1:2011 Cycles – Electrically power assisted cycles – EPAC Bicycles (the Standard) or the updated 2017 EN Standard and therefore, fall outside the scope of the MVS Act.[4]
[4]It is unclear where the Vehicles were at the time of the Hearing. After the Hearing, the Applicant provided an email from TNT dated 17 September 2019 that requested that he either provide a non-roads import certificate, confirm the goods were to be returned to origin or confirm the goods were to be destroyed. The Applicant was unable to tell the Tribunal what resulted from that email and at various times wavered between suggesting that the Vehicles had not made it into Australia or had been seized, destroyed or taken.
The Applicant’s case is based on his view that the MVS Act does not apply to the Vehicles and any decision made that they do will have bigger implications on the electric bicycle market in Australia. The Applicant made assertions and provided details in support or those assertions in regard to what he opined companies presently importing and/or retailing electric bicycles in Australia are doing and the general adherence to the Standard.
As a result, at the outset of the Hearing, the Tribunal asked the Applicant what outcome or result he was hoping to get from the Tribunal proceedings. The Applicant told the Tribunal that it was a business opportunity for him and he wanted to be compensated for what he would have earned had he have been able to import the Vehicles. He told the Tribunal that he does not know where the Vehicles are and the company from whom he imported them do not make them anymore. He said he could get new ones made exactly the same. The Applicant was not clear in indicating whether he still sought to import the Vehicles in question.
Having advised the Applicant that the Tribunal’s jurisdiction is limited to reviewing the decision made by the Respondent not to allow him to import the Vehicles and did not extend to the awarding of compensation or an examination of the conduct of other importers/retailers of electric bicycles in Australia, the Applicant told the Tribunal that his point was that the Respondent made a critical mistake in which they stopped him from earning his living and have changed the rules and affected the whole Standard. He said that if he gets a determination from the Tribunal in his favour then when he goes to court, he will have evidence to prove that the Respondent got it wrong.[5]
[5] Transcript, pages 12-15.
ISSUES
The issues for the Tribunal to determine are firstly, whether or not the MVS Act applies to the Vehicles. If the MVS Act applies, it is not disputed that the Vehicles did not have identification plates and would be considered to be non-standard for the purposes of the MVS Act. As such, the remaining issues for the Tribunal to determine is whether or not the discretions provided by regulations 11 or 18 of the Motor Vehicle Standards Regulations 1989 (Cth) (MVS Regulations) should be exercised to approve the Applicant’s application to import the Vehicles.
the law
The Tribunal notes that the MVS Act has been repealed and updated between the time that the Applicant sought to import the Vehicles and the date of the Hearing.[6]
[6] The MVS Act was repealed by the Road Vehicle Standards (Consequential and Transitional Provisions) Act 2018 (Cth) and replaced by the Road Vehicle Standards Act 2018 (Cth).
The change to the legislation, however, does not detract or need to muddy the task that is before the Tribunal. Relevantly, the Tribunal notes that due to the operation of Road Vehicle Standards (Consequential and Transitional Provisions) Act 2018 (Cth) (RVS C&T Act), the MVS Act continues to apply to the Applicant with regards to the application he made on
8 August 2019 seeking approval to import the Vehicles. The Applicant’s right to have his application determined by the Tribunal is preserved[7] and should the Tribunal make a decision in his favour pursuant to regulation 11 or regulation 18 of the MVS Regulations, such a decision will have effect during the transition period[8] which ends on 30 June 2023.[9]
[7] Section 7(2)(c) of the Acts Interpretation Act 1901 (Cth) and Esber v Commonwealth (1992) 174 CLR 430.
[8] Section 43(6) of the Administrative Appeals Tribunal Act 1975 (Cth); Item 13(1) of Schedule 3 to the RVS C&T Act.
[9]Relevantly, the objects of the MVS Act are to achieve uniform vehicle standards to apply to new vehicles when they begin to be used in transport in Australia.[10]
[10] Section 3(a) of the MVS Act.
Section 18 of the MVS Act prohibits, subject to sections 19 and 20, the importation of a road vehicle that is nonstandard or does not have an identification plate. Nonstandard relevantly means that the vehicle does not comply with the national standards.[11]
[11] Section 5(1) of the MVS Act.
A national standard is a vehicle standard determined under section 7 of the MVS Act. Further, a vehicle standard is relevantly defined to be a standard for road vehicles that is designed to:[12]
(a) make road vehicles safe to use; or
(b) control the emission of gas, particles or noise from road vehicles; or
(c) secure road vehicles against theft; or
(d) promote the saving of energy.
[12] Section 5(1) of the MVS Act.
An identification plate is a plate declaring the status of a road vehicle in relation to the national standards and approved to be placed on vehicles of that type or description.[13]
[13] Section 5(1) of the MVS Act.
A road vehicle is defined in section 5(1) of the MVS Act to relevantly mean a road motor vehicle that does not include vehicles which the Respondent has determined under section 5B of the MVS Act are not road vehicles. A road motor vehicle is defined to mean:
(a) a motor vehicle designed solely or principally for the transport on public roads of people, animals or goods; or
(b) a motor vehicle that is permitted to be used on public roads.
The Motor Vehicle Standards (Road Vehicles) Determination 2017 (Cth) (the Determination), as enacted at the time of the reviewable decision, was amended with effect from 22 January 2021.[14] The Determination sets out, for the purposes of section 5B of the MVS Act, the class of vehicles that are not road vehicles for the purposes of the MVS Act.
[14] The Determination was amended by the Motor Vehicle Standards (Road Vehicles) Amendment Determination (No. 1) 2021 (Cth).
The Tribunal sought written submissions after the Hearing from the parties in relation to which of the Determinations should be applied. The Respondent provided submissions on 17 June 2022, which provided a helpful summary of the present position, with which the Tribunal agrees.
The Tribunal considers that regardless of whether the Determination as in place at the time of the Applicant’s application for approval to import the Vehicles or at the time of the Hearing is applied, the same conclusion would be reached. The Respondent relevantly provided:[15]
[15] Respondent’s supplementary submissions, pages 1-2, paragraphs 2-6.
2. The Determination was made on 7 September 2017 under s 5B of the Motor Vehicle Standards Act 1989 and came into force on 14 September 2017, the day after it was registered: s 2 of the Determination as made. Section 5B of the Motor Vehicle Standards Act 1989 (the MVS Act) relevantly provides that the Minister can determine that a vehicle of a particular class or description is not a road vehicle for the purposes of the Act. Section 6 of the as made Determination prescribed classes of vehicles that 'are not road vehicles for the purposes of the Motor Vehicles Act 1989'. One class was 'power-assisted pedal cycles'(s 6(1)(h)), defined in s 5 in the following terms:
power-assisted pedal cycle means either:
(a) a two-wheeled or three-wheeled pedal cycle to which is attached one or more auxiliary propulsion electric motors having a combined maximum power output not exceeding 200 watts; or
(b) a vehicle meeting European Committee for Standardization EN 15194:2009 or EN 15194:2009+A1:2011 Cycles - Electrically power assisted cycles - EPAC Bicycles;
but does not include any vehicle that has an internal combustion engine.
3. It is sufficient for present purposes to refer to EN 15194:2009+A1:2011 Cycles – Electrically power assisted cycles, which superseded EN 15194:2009 (see p 4). The amendments made by EN 15194:2009+A1:2011 to EN 15194:2009 are identified at p 2. They are presently immaterial. Those amendments did not alter the scope of the standard. That scope is set out at p 6 cl 1 ('Scope'):
This European Standard is intended to cover electrically power assisted cycles of a type which have a maximum continuous rated power of 0,25 kW, of which the output is progressively reduced and finally cut off as the vehicle reaches a speed of 25 km/h, or sooner, if the cyclist stops pedalling.
(See also the definition of continuous rated power at p 9 cl 3.22.)
4. The as made Determination was amended with effect from 22 January 2021 by the Motor Vehicle Standards (Road Vehicles) Amendment Determination (No. 1) 2021 (s 2 of the amendment Determination). The as amended Determination likewise prescribed 'power-assisted pedal cycles' as a class of vehicle that is not a road vehicle for the purposes of the MVS Act (s 6(1)(h)). The definition, however, of power-assisted pedal cycles changed. That definition follows, together with the definition of electrically power-assisted cycle with which the definition of power-assisted pedal cycle needs to be read:
power-assisted pedal cycle means a vehicle, designed to be propelled through a mechanism primarily using human power, that
(a) meets the following criteria:
(i) is equipped with one or more auxiliary propulsion electric motors;
(ii) cannot be propelled exclusively by the motor or motors;
(iii) has a combined maximum power output not exceeding 200 watts;
(iv) has a tare mass (including batteries) of less than 35 kg;
(v) has a height-adjustable seat; or
(b) is an electrically power-assisted cycle
electrically power-assisted cycle means an electrically-powered pedal cycle with a maximum continued rated power of 250 watts of which the output is:
(a) progressively reduced as the cycle’s speed increases; and
(b) cut off, where:
(i) the cycle reaches a speed of 25 km/h; or
(ii) the cyclist stops pedalling.
(See s 5(1) of the as amended Determination.)
5. It is apt at this point to observe that the as amended Determination is not, in substance, different to the as made Determination in any material way relevant to [the Applicant’s] application to the Tribunal. The appears from the underlined text in [2]-[4] above.
6. It was, in fact, the express 'policy intention that vehicles that have been demonstrated to meet European Committee for Standardization EN15194:2009 or EN15194:2009+A1:2011 or EN15194:2017 should be considered not to be road motor vehicles for the purpose of the Act': see the Explanatory Statement to the amendment Determination. That policy intention is given effect by, as appears above, incorporating the content of the relevant standard (which was previously referenced in paragraph (b) of the definition power-assisted pedal cycle: see [2] above) into the definition of electrically power-assisted cycle. The incorporation of that content directly in the Determination obviated the need to read the Determination with the standard. As the Explanatory Statement explained: it removed 'reliance on incorporating documents in the Determination that are not freely accessible or subject to copyright'.
Further, the Tribunal accepts the Respondent’s submission[16] that the Determination as amended applies in the present circumstance.[17] The Tribunal notes that the Applicant provided submissions in reply dated 25 July 2022, stating that he agreed that the amended Determination should be applied as he considered that it leads to a situation that means the Vehicles are compliant with the definition in the amended Determination.
[16] Respondent’s supplementary submissions, page 3, paragraphs 7-9.
[17] See Kaur v Minister for Immigration and Border Protection [2015] FCA 168 and Victorian Legal Aid v Kuek [2010] VSCA 29; (2010) 26 VR 700.
Relevantly to the Applicant’s matter, section 20 of the MVS Act[18] provides that the importation of a road vehicle which is nonstandard or does not have an identification plate may be approved in circumstances where the vehicle is to be exported from Australia without having been used in transport in Australia or in prescribed circumstances.
[18] The Tribunal notes that section 19 of the MVS Act relates to importation of vehicles requiring modification of which is not relevant to the Applicant’s application.
For the purposes of section 20 of the MVS Act, regulation 9 of the MVS Regulations provides that a person may import a nonstandard road vehicle or a road vehicle that does not have an identification plate if the Respondent has approved an application by the person to import the vehicle.
Regulation 11 of the MVS Regulations provides that:
(1) The Minister may approve an application to import a nonstandard road vehicle or a road vehicle that does not have an identification plate.
(2) An approval may be given subject to conditions specified in the instrument of approval.
(3) Without limiting the generality of subregulation (2), the Minister may require that a plate in such form and containing such information as the Minister determines be placed on the vehicle.
(4) An approval must be given by signed instrument.
The discretion that lies in regulation 11 of the MVS Regulations is unfettered. As such, the factors to be considered when deciding whether to exercise the discretion must be determined by the subject matter, scope and purpose of the Act.[19]
[19] Minister for Aboriginal Affairs v Peko Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24, 39-40.
As stated by Senior Member McCabe (as he then was) in Williamson and Minister for Infrastructure, Transport, Regional Development and Local Government [2009] AATA 48 at [11]:
…. By its nature, the discretion 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. But the discretion can be exercised if there is a good reason to do so and the objectives of the legislative scheme are not compromised.
In Selway v Minister for Infrastructure, Transport, Regional Development and Local Government [2011] FCA 43, with regards to the discretion in regulation 11 of the MVS Regulations, Mansfield J said at [36-37]:
36. The general rule is that the discretion expressed any without qualification is unconfined except insofar as it is affected by limitations to be derived from the context and scope and purpose of the legislative scheme
…..
37. It may well be that it will not be a common circumstance that a person seeking to import a standard vehicle will have the discretion available under Reg 11 exercise in that person’s favour. In some circumstances, such importation might undermine or frustrate the policy and objectives of the act. Clearly, in such a circumstance, the favourable exercise of the discretion under Reg 11 would require there to be weighty countervailing factors. The fulfilment of that policy or those objectives is clearly relevant to the exercise of the discretion under Reg 11.
It has been accepted by the Tribunal and not displaced by the Federal Court that the factors that may be relevant to consider in determining whether to exercise the discretion in regulation 11 of the MVS Regulations in an applicant’s favour include:[20]
(a)the policy objectives of the MVS Act;
(b)any unfairness or injustice to the applicant;
(c)financial hardship that would be occasioned by not being approved to import the vehicle;
(d)whether the vehicle is unique;
(e)whether there were any unpredictable or unexpected events, beyond the applicant’s control, that intervened to thwart their plans to comply with the Act; and
(f)any other matter relevantly arising on the facts of the case at hand.
[20] Selway v Minister for Infrastructure, Transport, Regional Development and Local Government [2010] AATA 595; Selway v Minister for Infrastructure, Transport, Regional Development and Local Government [2011] FCA 43; (2011) 120 ALD 40; Grapsas v Minister for Infrastructure and Regional Development [2020] FCA 525.
Regulation 18 of the MVS Regulations provides a discretion to approve an application to import a nonstandard road vehicle or a road vehicle that does not have an identification plate if the Minister is satisfied that the vehicle:[21]
[21] MVS Regulations, regulation 18.
a) is a new vehicle to be used:
(i) for market evaluation and research; or
(ii) for tests to establish whether vehicles of a particular type comply with national standards for the purpose of an approval under section 10A of the Act for an identification plate to be placed on a vehicle or vehicles of that type; or
(b) is a vehicle (other than a new vehicle):
(i) to be used for market evaluation and research, and the applicant has an approval under section 10A of the Act to place identification plates; or
(ii) to be used for tests to establish whether a vehicle of that make and model can be made to comply with the requirements for approval, under section 13D of the Act, for the placement of a used import plate, and in respect of which the requirements of subregulation (2) are complied with; or
(c) is to be used in road vehicle racing or rally competition; or
(d) is to be used in providing support to a road vehicle in road vehicle racing or rally competition and has been built, modified or adapted for that purpose; or
(e) is of a type not generally available in Australia and is to be imported primarily for exhibition.
EVIDENCE AND CONTENTIONS
In his application to import a non-road vehicle, the Applicant provided that he wanted to import two motorised bicycles (Power assisted Pedal Cycle) with a maximum power output of 200 watts measured at the driven wheels and provided the manufacturers maximum power output brochure and associated purchase documentation. The Applicant said that he wanted to import a non-road vehicle and a test and/or evaluation vehicle.[22]
[22] Exhibit 1, T Documents, T6, pages 21-122, Application for approval to import the Vehicles.
The technical specifications for the Vehicles provided by the Applicant specified that they had a 1500W motor and speed of 25km/32km/45km per hour.[23] The Applicant stated that the Vehicles have the PAS 25 km per hour specification as sold in Europe.[24]
[23] Exhibit 1, T Documents, T6, pages 46 and 49, Application for approval to import the Vehicles.
[24] Exhibit 1, T Documents, T6, page 46, Application for approval to import the Vehicles.
The Applicant provided a certificate of compliance with EN15194:2009, however acknowledged that he was unable to supply certificates for the exact Vehicles as they were imported without batteries and for the supplier to comply with legislation at home and in Australia, they could not, in good conscience, supply the certificate without having full oversight of the end product. The Applicant stated that the Vehicles were going to be used for demonstration and spare parts when required and he expected there to be very little left of them and that there would be future importation of critical spares as required.[25]
[25] Exhibit 1, T Documents, T6, pages 75-76, Application for approval to import the Vehicles.
Notes of the Respondent’s decision maker outline that:[26]
KV spoke to the applicant, unable to leave the EN15194 issue. Applicant acknowledged that this device doesn't have a certificate of conformity, but he has provided similar. KV undertook to have tech asses review the certificate and see if it relates. Applicant also acknowledged that it doesn't meet the other requirements of the power assisted pedal cycles, KV refered to the website again at
and specifically notes wheel size, and road going features mean that this device is assessed as a road vehicle despite the EN15194. . Applicants sought a seat at the table to discuss introduction of these devices to Aust…
[26] Exhibit 1, T Documents, T6, page 32, Application for approval to import the Vehicles.
The note reflects that the information provided by the Applicant was taken into consideration by the Respondent as part of a technical assessment which found that the Vehicles did not meet the requirements of the motorised bicycle non-road import category as it was fitted with road going features (headlights, rear lights, direction indicators, speed display panel and 19 inch wheels), have a motor power over the allowed 250 watts and no statement of conformity had been provided.[27]
[27] Exhibit 1, T Documents, T6, page 32, Application for approval to import the Vehicles.
Following consideration of the information before it, the Respondent found that the Vehicles were nonstandard road motor vehicles with no identification plates and were as such, prohibited from importation under section 18 of the MVS Act. The Respondent determined that there were insufficient grounds to warrant the exercise of the discretion under regulation 11 of the MVS Regulations. Consequently, on 18 October 2019, the Respondent refused the Applicant’s application to import the Vehicles.[28] In response, the Applicant provided further information in support of why he considers the decision was wrong and should be reconsidered. The Applicant disagreed with the approval process and requirements. He provided information in relation to other electronic bicycles currently in use in Australia and their specifications.[29]
[28] Exhibit 1, T Documents, T7, pages 123-124, Import application decision letter.
[29] Exhibit 1, T Documents, T8, pages 125-132, Letter from the Applicant to the Department re decision.
The Respondent, on a number of occasions, raised with the Applicant alternative options that he may seek to explore to import the Vehicles. However, his responses did not allow any such assessment to be made.[30]
[30]The Respondent contended that the Vehicles did not fall within the Determination and could be considered to be road vehicles for the purposes of the MVS Act, relying on the discussion outlined in its Statement of Facts, Issues and Contentions.[31] Relevantly, the Respondent’s Statement of Facts, Issues and Contentions provided:[32]
[31] Exhibit 2, Respondent’s Statement of Facts, Issues and Contentions, pages 1-2, paragraph 6.
[32] Exhibit 1, T Documents, T2, pages 7-10, paragraphs 20-33, Section 37 Statement of Reasons.
20. For the reasons set out below, the Decision-maker was not satisfied that the Vehicles fell within the scope of s 6 of the Determination (T6(E) and T7).
21. Relevantly, s 6(1)(h) of the Determination (as it stood at the time) provided that ‘power-assisted pedal cycles’ are not road vehicles for the purposes of the Act.
22. The Determination defined a power-assisted pedal cycle to mean either:
(a) a two-wheeled or three-wheeled pedal cycle to which is attached one or more auxiliary propulsion electric motors having a combined maximum power output not exceeding 200 watts; or
(b) a vehicle meeting European Committee for Standardization EN 15194:2009 or EN 15194:2009+A1:2011 Cycles – Electrically power assisted cycles – EPAC Bicycles (the EN Standards);
but does not include any vehicle that has an internal combustion engine.
23. The Decision-maker was not satisfied that the Vehicles were pedal cycles to which were attached motors with a combined maximum power output not exceeding 200 watts as the technical specifications provided by the Applicant indicated that the Vehicle’s motor has 1500 watts of power output (T6(L)).
24. The Decision-maker was also not satisfied that the Vehicles met the EN Standards as the Applicant was unable to provide a certificate of conformity with the EN Standards. Despite this, the Decision-maker considered whether the Vehicles met the requirements in the EN Standards for an e-bike, that is the Vehicles had a maximum power output of 250 watts and a maximum speed of 25 km/h. The Decision-maker considered that the Vehicles did not meet these requirements as the Vehicles have a maximum power output of 1,500 watts and a maximum speed of 45 km/h (T6(L) and T6(Q)).
25. The Decision-maker also considered whether the UDEM compliance certificate (T6(S)), the SGS Verification of Compliance certificate (T6(V)) or the ADP Engineering Labels (T6(W)) were sufficient evidence for the Vehicles complying with the EN Standards. He found that the none of these certificates matched the technical specifications provided in the application for the specific make and model of the Vehicles. Accordingly, the Decision maker considered that these certificates did not apply to the Vehicles (T9).
26. Therefore, the Decision-maker found that the Vehicles were not ‘power-assisted pedal cycles’ for the purposes of the Determination.
27. Following the application refusal decision, the Decision-maker considered the Applicant’s contention that the refusal was due to the Department’s misinterpretation of the EN standard relating to the e-bike battery power requirements (T8). Specifically, that the EN standard allows for a continuous maximum power output of 250 watts but the Department’s website referred to a total maximum output of 250 watts. The Department acknowledged this discrepancy and updated its guidance accordingly. Despite this, the Decision-maker remained of the view that the Vehicles did not meet the requirements under s 6(1)(h) of the Determination as the Vehicles had a maximum power output exceeding 200 watts, had a maximum speed of 45kmh and the applicant was unable to provide a certificate of conformity with the EN Standards (T15).
Are the Vehicles ‘road vehicles’ because they are ‘road motor vehicles’ as defined in the Act?
28. The Decision-maker considered whether the Vehicles were road motor vehicles because they are designed solely or principally for the transport on public roads of people, animals or goods.
29. The Decision-maker was satisfied that the Vehicles are designed principally for the transport of people as the Vehicles consisted of two wheels held in a frame one behind the other, propelled by pedals and an electric motor and steered by handlebars attached to the front wheel, and are thus only suited for the transport of people (as opposed to other things likegoods or animals) (T6(H) and T6(L)).
30. The Decision-maker then considered whether the Vehicles are designed solely or principally to transport people on public roads. Certain types of pedal cycle are clearly not designed principally for use on public roads, like off-road bikes. A pedal cycle designed for off-road or non-road use will typically include design features such as the following:
(a) the vehicle’s auxiliary motor(s) are capable of producing a combined maximum power output exceeding 250 watts;
(b) tyres with tread blocks rather than grooves;
(c) front or full suspension or fat tyre section width greater than 2.6 inches;
(d) wheel sizes a minimum of 26 inches; and
(e) manufacturer’s specifications that outline the vehicle is made strictly for off-road use.
31. Given the technical nature of this question, the Decision-maker sought a technical assessment of the Vehicles by engineers employed by the Department. The technical assessment considered whether the Vehicles have the above design features, and also considered whether the Vehicles have road-going features (ie features commonly seen on vehicles designed solely or primarily for transport on public roads) (T6(AA)). Based on the technical assessment, the Decision-maker was satisfied that:
(a) the Vehicles have suspension suitable for off-road use. However, the Decisionmaker was not satisfied that the wheel size was a minimum of 26 inches, the tyres had tread blocks or that the manufacturer’s specifications limited the Vehicle’s use to off-road; and
(b) the Vehicles are equipped with many road-going features such as direction indicators, headlights, brake lights, rear vision mirrors an instrument display panel. These are features usually associated with road vehicles and that allow the vehicle to interact with other traffic.
32. In addition to the technical assessment, the Decision-maker considered that the Vehicles’ maximum power output of 1500 watt and a maximum speed of up to 45km/h were well above that accepted for use on cycle-ways, footpaths and other shared pathways on which the public has a right of way in all jurisdictions in Australia. Vehicles such as this are more likely to meet the criteria of an LA Category moped. Vehicles with such higher speed and power capabilities are more likely to be used on public roads and are not permitted to be used on other public areas (e.g. cycle-ways and footpaths). These are significant indicia that such vehicles are designed to be used on public roads rather than other public areas.
33. Having regard to factors set out in paragraphs [27] – [30], the Decision-maker found that while the Vehicles had some off-road features, they were designed principally to transport people on public roads. For that reason, the Decision-maker found that they were ‘road motor vehicles’ and therefore ‘road vehicles’ for the purposes of the Act.
[Footnotes omitted]
In considering the relevant factors that may be taken into consideration when deciding whether to exercise regulation 11 of the MVS Regulations, the Respondent contended that:[33]
[33] Exhibit 2, Respondent’s Statement of Facts, Issues and Contentions, pages 5-6, paragraphs 26-31.
Policy objectives of the Act
……
26. Section 18 operates subject to ss 19 and 20, which contemplate circumstances in which the prohibition may be relaxed. But the consideration that the MVS Act admits an exception (or exceptions) reinforces the general rule — that road vehicles which do not comply with the national standards or do not have an identification plate ought not to be imported.
27. It would self-evidently frustrate the main object of the MVS Act if the discretion to permit a nonstandard road vehicle or one without an identification plate to be imported without good reason. That is the gist of the reasoning in previous decisions of this Tribunal, and so much was acknowledged, as noted above, by the Federal Court in Selway (a decision noted more recently in Grapsas v Minister for Infrastructure and Regional Development [2020] FCA 525).
Other relevant considerations?
28. The difficulty [the Applicant] confronts, at the threshold, is that he has not sought seriously to advance any good reason for the exercise of the reg 11 discretion in his favour.
29. Nevertheless, it is possible to discern objectively at least one factor that could militate in his favour. That is the investment of time, and money, in his endeavour to import the Vehicles. However, as the delegate observed in their statement of reasons, there 'was sufficient information publically available that the Applicant should have taken into account before purchasing the Vehicles to import into Australia' (T2, [38] at T-Docs 11).
30. The delegate took into account [the Applicant’s] contention that the Bosch Performance Line model CX is imported into Australia '[w]ithout any requirement of a certificate of import … from the department'. This is despite the fact, [the Applicant] contended, that this model has a 350 watt motor (T8, at T-Docs 126). Presumably the reference to a 'certificate of import' is to be read as an approval. [The Applicant’s] contention — as regards the Bosch Performance Line model CX — is, with respect, misdirected. Accepting at face value the contention that no approval is required, that consideration does not tell one way or another as to whether the Vehicles [the Applicant] seeks to import, which do require approval, ought to be approved for importation.
31. None of the other factors previously taken into account by the Tribunal — nor any other factors — appear relevant.
The Applicant’s written submissions were consistent with the evidence he provided at the Hearing under oath. In written submissions provided on 4 October 2021[34] and on
4 May 2022,[35] the Applicant outlined why he wanted to import the Vehicles.
[34] Exhibit 3, Applicant’s email dated 4 October 2021 with attachments.
[35] Exhibit 6, Applicant’s additional statement of submission dated 4 May 2022.
The essence of the Applicant’s contentions is that he believed the Respondent applied the incorrect Standard, incorrectly interpreted the Standard and inappropriately assessed his application. The Applicant wavered between comparing the Vehicles to those already in use in Australia and using those vehicles as justification as to why the Vehicles meet the requirements of the Determination to be considered as vehicles that fall within the definition of power-assisted pedal cycle by means of being an electrically power-assisted cycle and as such, do not fall within the prohibition of section 18 of the MVS Act. The Applicant further contended that the strict application of rated power of 250 watts has the unintended consequence of making all e-Bikes in Australia illegal.
The Applicant summarised his contentions as follows:[36]
[36] Exhibit 3, Applicant’s email dated 4 October 2021 with attachments.
1) Test and appraisal was never an option.
2) Not accepting my certification is way beyond any authority or legislative power of the department. Stopping me from earning an income is excessive.
3) A minister and department forcing me to satisfy a rule contrary to the nation’s laws is unconscionable. An Australian minister “disappearing” someone from the workforce with a “stroke of a pen” would have been implausible before now.
4) They are forcing me to import e-Bikes through the Motor Vehicles Act no matter what bike is an overreach of authority, misuse of power and corruption of systems.
5) Every e-Bike imported into the country for the last decade would fail the maximum 250-watts rule. The department is fully aware of this. They should be gearing up to defend that, rather than smashing a mister nobody like me.
6) The ACCC and Safety Australia have the opposite stance to the department. How can anyone do anything or correct it when the same public service contradicts itself and can’t get something simple like a standard?
7) In 2012 the Australian federal parliament changed legislation to bring in this ISO standard as part of the international standards rationalisation. All the state and local governments believe we adhere to the European Standard, and private industry works to meet it nationwide. Currently, Australia is a global laughing stock. Continuing much longer, we risk being seen as a sovereign risk.
8) Every e-Bike imported into Australia from Europe since 2017 will have met the new standard. The department doesn't recognise EN15194:2017, meaning these bikes are also illegal. We are now a dumping ground for the oversupply of old lower or no standard e-Bikes from the rest of the world.
9) Every importer most likely has had to lie at a minimum by exclusion, an exciting battle for you to come, I guess. Motorists hate bikes of any kind, and purest cyclists hate e-Bikes. The pent-up animosity does not promise clear skies for the department and minister.
10) Over the last four years of this epic journey, I have been abused, threatened, bullied and punished in some of the cruellest ways by minister’s, the government and the department. It is taking an enormous toll on me physically, emotionally and financially. It is time to stop and own up to the deficiencies. We can work together to fix them. For the entire time, I have been willing to come together and work on a win-win solution.
11) The new standard EN15194:2017 is far superior to the previous one. The new standard is stand alone. The previous one allowed people to buy the cheapest possible bikes, even second-hand and put a motor on them. Interestingly 250-watts is only mentioned once or twice, as that is not the most critical part of the standard.
12) No matter how it’s cut, every e-Bike imported for the last decade is illegal. Measured either by maximum power or excluding factory rated power on documentation. I’m no expert like you in this area, but it sounds like a field day for insurance company lawyers, media, activist bike and motoring organisations.
13) The department has ignored the non-tampering aspect of the EN15194:2009 for a decade. Bikes enter the country loosely meet the standard on PAS-1 only. With the press of a button, the e-Bike becomes unrestricted and can use all the power and speed available. There are numerous other parts of the standard that the department has also ignored. The fleet is a danger to riders, pedestrians, and everyone else using public property, and some are a fire hazard.
14) I have a neat and delicate cleanup solution for the dangerous unregulated fleet. There will be no need to disrupt hundreds of thousands of consumers, the staff in the department or penalise small and large multinational companies. The cost is low to nothing depending on desired outcomes. I reiterate I am ready and willing to work with you to end this Greek tragedy and move on to the more significant issues.
Further, at the Hearing, the Applicant told the Tribunal:[37]
Okay, let me just explain the reason I’m here is because I’m the only one to import a bike and tell the truth. Because I can tell you that maximum power doesn’t exist. To give you an example, if you ever pushed anything heavy, you’ll know that you’ll need a lot of energy to get it moving and once it’s moving it takes a lot less energy. That is simply because gravity is only attractive and that’s how the universe works. If you say it’s a maximum of 250 watts, that motor will just sit there, hum and burn out. It has to be able to use a lot of energy to start and come back and that’s why every electrical motor standard anywhere in the world says nominal rated power, not the factory rated power.
And this is the problem we have. I actually was honest with them instead of going, “Yes, yes, that’s right,” I was honest and said, “Look, you can’t run at a maximum rated power. You have to have a nominal rated power, (a), to meet Australian electrical standards, to meet the world’s electrical standards, and to actually have the bike work. This is the problem. I am probably the first person in a decade to tell the truth to the Department and I’m here.
[37] Transcript, page 26.
The Applicant agreed at the Hearing that the Vehicles were designed principally for transport of people on public roads, making reference to their previous use in Ukraine and his dealings with different military organisations.[38] It was clear from the Applicant’s evidence that the Vehicles had a capacity to greatly exceed the 25-kilometre speed limit required by the Standard and Determination. The Applicant, however, contended that the function may be locked down.
[38] Transcript, pages 56-57.
CONSIDERATION
It is clear to the Tribunal that the Applicant has a significant personal investment in electric bicycles.
However, having reviewed all of the material before it and hearing the Applicant’s contentions, the tribunal considers that the Applicant is misguided in his view that the MVS Act does not apply to the Vehicles.
The Applicant’s focus on what he says is going on in the electric bicycle market in Australia, how he says such vehicles should be classified and dealt with and his wavering acknowledgment that the Vehicles in question do not meet the specification requirements to be exempted from the operation of the MVS Act, is unhelpful to his plight.
It is the Tribunal’s task to apply the law to the facts of each case. It is not for the Tribunal to comment on what is happening elsewhere in an industry or on the robustness of the laws in question or their enforcement.
The starting point in this matter is whether or not the MVS Act applies to the Vehicles. As outlined above, the Tribunal agrees with the Respondent’s submissions that whether the Determination as in place at the time of the Applicant’s application to import the Vehicles or as amended is applied, the same outcome is reached. It is clear that the Standard as amended intended to preserve the status quo with regards to power-assisted pedal cycle vehicles.
This is evidenced in the relevant explanatory statement as follows:[39]
The amended Determination also updates the ‘Power-Assisted Pedal Cycle’ definition. This change broadens the focus from relying solely on the power output rating to include certain design features. The reason for this update is to clarify that the policy intent of the definition relates to bicycles of a traditional build, albeit assisted by electric motor power, but not to take in other types of two wheeled vehicles designed with pedals that may assist propulsion, such as certain types of mopeds, more appropriately deemed as LA category vehicles according to the Definitions and Vehicle Categories ADR.
The amended Determination also replaces reference to ‘pedelec’ with a definition of an ‘Electrically power-assisted cycle’ or ‘EPAC’. This is because the term ‘Electrically power-assisted cycle’ links it directly with the European Committee for Standardization EN15194:2009 or EN15194:2009+A1: 2011 or EN15194:2017 which was the international standard referenced in the previous Determination. It is still the policy intention that vehicles that have been demonstrated to meet European Committee for Standardization EN15194:2009 or EN15194:2009+A1: 2011 or EN15194:2017 should be considered not to be road motor vehicles for the purposes of the Act. The reasons to replace the term ‘pedelec’ with a definition of ‘Electrically power-assisted cycle’ is that since the definition of ‘pedelec’ was first included in the Determination the term EPAC is settled as the official term for the class of vehicle intended to be covered. Whereas the term ‘pedelec’ is used for a variety of classes of vehicles, including some that are pedal assisted power cycles, as opposed to power assisted pedal cycles.
Accordingly, the change in terms should remove the possibility of ambiguity in the application of the Determination. This change also shifts key features not explicitly set out in the definition from documents incorporated by reference and accordingly removes reliance on incorporating documents into the Determination that are not freely accessible or subject to copyright.
[39] Explanatory Statement – Motor Vehicle Standards (Road Vehicles) Amendment Determination (No. 1) 2021 (Cth), pages 14-16.
Consequently, in order for the Vehicles to be exempted from being classified as a road vehicle for the purposes of the MVS Act, they would need to meet the definition of power-assisted pedal cycle or electrically power-assisted cycle in section 5 of the Determination.
The evidence before the Tribunal shows that the Vehicles had a combined maximum power output exceeding 200 watts. As such, the Tribunal finds that the Vehicles do not meet the first part of the definition of power-assisted pedal cycle and therefore, it must consider whether they meet the definition of electrically power-assisted cycle vehicles.
The evidence before the Tribunal, in particular that given directly by the Applicant, indicated that the maximum speed of the Vehicles extended beyond the cut off limit of 25 kilometres per hour as required by the definition of electrically power-assisted cycle in the Determination (or for that matter under the Standards) and that they had a maximum continued rated power exceeding 250 watts. While the Applicant made contentions about software being able to restrict the Vehicles to the lower speed limit, it was not clear to the Tribunal that had occurred on the Vehicles or would be something that then stayed in place as a standard for the Vehicles. The Applicant’s evidence in this regard was contradictory and unhelpful.
The Applicant’s contentions with regard to the application of the requirements of the Standard (which were subsequently brought directly into the Determination as amended) and the inappropriateness for the manufacturers of the Vehicles to provide a certificate of conformity, together with his explanation as to the purpose of his intended business venture, made it clear in the Tribunal’s view that the Vehicles were not capable of meeting the requirements to be exempted from the operations of the MVS Act.
Consequently, the Tribunal must then consider whether or not the Vehicles met the definition of road motor vehicles. Based on the Applicant’s evidence at the Hearing and in the absence of any evidence to the contrary, the Vehicles were designed solely or principally for the transport on public roads of people, animals or goods and to be used on public roads. As such, the Tribunal finds that the Vehicles met the definition of a road vehicle and in the absence of an exemption under the Determination applying to them, they are subject to the requirements of the MVS Act.
As such, section 18 of the MVS Act applies to the Vehicles as they are nonstandard road vehicles and do not have identification plates. There is no evidence before the Tribunal to suggest that it was intended that the Vehicles required modification for the purposes of section 19 of the MVS Act or that they were to be exported from Australia without having been used in transport in Australia for the purposes of section 20 of the MVS Act.
Consequently, the avenue opened to the Applicant to import the Vehicles into Australia is to seek approval from the Respondent in relation to the circumstances prescribed by the MVS Regulations for the purposes of section 20 of the MVS Act.
As outlined above, regulation 11 of the MVS Regulations provides a broad discretion for the Respondent (and subsequently the Tribunal standing in the shoes thereof) to approve an application to import a nonstandard road vehicle or a road vehicle that does not have an identification plate.
The Tribunal concurs with the precedents referenced above that the discretion must be exercised only where there is good reason to do so and the motor vehicle standard legislative scheme is not compromised.
In considering the factors that are generally taken into consideration when considering whether to exercise the regulation 11 discretion, the Tribunal is mindful that the Applicant has not specifically addressed the considerations. The Tribunal was not persuaded by the Applicant that allowing him to import the Vehicles would not be contrary to the policy objectives of the MVS Act. The Applicant’s contentions in relation to the application of the legislative scheme and electric bicycle market do not, in the Tribunal’s view, displace the law as clearly expressed.
The Tribunal accepts that the Applicant considers that he has encountered unfairness and injustice with regards to his application to import the Vehicles from the viewpoint of his self-comparisons with others in the marketplace. The Tribunal is satisfied that the Respondent considered those considerations and agrees with its conclusion that those references made by the Applicant do not assist one way or the other.
The Tribunal accepts that the Applicant has invested both time and financial considerations in relation to his application to import the Vehicles. Further, given the passion displayed by the Applicant with regards to the Vehicles and the electric bicycle industry, if his evidence with regards to his proposed business activities in relation to the Vehicles is accepted, he may have encountered financial hardship as a result of the Vehicles not having been provided to him. The Applicant, however, did not provide any corroborating evidence in regard to the arrangements or potential financial investment impacts that resulted from him not being able to import the Vehicles. It also remains unclear where the Vehicles ended up or if they would be available for release to the Applicant should importation be allowed. The Tribunal considers, based on the time that has passed since the initial date of intended import and the Applicant’s evidence at the Hearing, it is unlikely that he would seek to have the same Vehicles reconstructed for importation.
There is no evidence before the tribunal that the Vehicles were unique.
While the Tribunal acknowledges there were issues with some of the information on the Respondent’s website at the time of the Applicant’s proposed importation of the Vehicles, it does not consider that it could be seen as an unpredictable or unexpected event or circumstance beyond the Applicant’s control that intervened to thwart his plans to comply with the MVS Act. The Applicant’s contentions all centre around the fact that he did not intend to comply with the MVS Act as in his view, it did not apply to his circumstances. Further, the Applicant clearly told the Tribunal that he found himself in his present situation because he was honest about the Vehicles when he says others have not been. That is an admirable position and goes to the Applicant’s consistent agitation seeking to be part of the ongoing development of the electric bicycle industry in Australia. It does not, however, change the fact that the MVS Act applies to the Vehicles. The Tribunal cannot make a decision based on what the Applicant says has occurred for others in the industry, especially without any direct or corroborating evidence, the Tribunal must apply the law.
Having considered all of the evidence before it in conjunction with the MVS legislative scheme, the Tribunal does not consider there are any other relevant facts in relation to the Applicant’s application to import the Vehicles that would weigh in favour of the regulation 11 discretion.
Consequently, for those reasons, the Tribunal does not consider there to be a good reason to engage the discretion in regulation 11 of the MVS Regulations with regards to the Applicant’s application to import the Vehicles.
The Tribunal, at this junction, acknowledges that the Applicant made many different assertions about the Vehicles, their use, whether that be on road, for testing, for development in a villadom or for parts which may go towards consideration of approval to import the Vehicles pursuant to regulation 18 of the MVS Regulations. The issue, however, for the Tribunal is that the Applicant’s sole argument revolves around his view that the MVS Act did not apply and as such, in the Tribunal’s view, the evidence provided by the Applicant was unclear, did not address the legislative requirements and was in no way of assistance.
Based on the evidence before it, the Tribunal is not satisfied that there are appropriate grounds for it to grant the Applicant’s application to import the Vehicles pursuant to regulations 11 or 18 of the MVS Act.
DECISION
For the reasons set out above, the Tribunal decision under review is affirmed.
I certify that the preceding 67 (sixty-seven) paragraphs are a true copy of the reasons for the decision herein of Member D Mitchell
.......................[SGD]..........................
Associate
Dated: 11 January 2023
Date of hearing:
Date of last submission:
3 June 2022
25 July 2022
Applicant: In person
Representative for the Respondent: Mr Asaf Fisher
HWL Ebsworth Lawyers
Exhibit 10, EN 15194:2009+A1:2011 Cycles – Electrically power assisted cycles – EPAC Bicycles, pages
1-39.
Item 1 of Schedule 3 to the RVS C&T Act (Definition of “transitional period”), being 24 months from
1 July 2021.
Exhibit 1, T Documents, T12, pages 138-139, Internal email – file note of call termination and T13, page 140, Email from the department to the Applicant re Commonwealth Compensatory Schemes; Exhibit 2, Respondent’s Statement of Facts, Issues and Contentions, pages 2-3; Exhibit 3, Applicant’s email dated
4 October 2021 with attachments; Exhibit 4, Applicant’s email dated 12 July 2021; Exhibit 6, Applicant’s additional statement of submission dated 4 May 2022.
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