Marshall and Minister for Infrastructure and Regional Development

Marshall and Minister for Infrastructure and Regional Development [2017] AATA 788 (26 May 2017)
Division:GENERAL DIVISION
File Number: 2016/6853
Re:Theodore Marshall
APPLICANT

AndMinister for Infrastructure and Regional Development
RESPONDENT

DECISION
Tribunal:Mr W. Evans, Member
Date: 26 May 2017
Place:Perth

The decision under review is affirmed.
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Mr W. Evans, Member
CATCHWORDS
TRANSPORT - importation of nonstandard motor vehicle – vehicle determined to be a road vehicle – no legislation specific to import of electric vehicles - nature and application of discretion to allow importation pursuant to Regulation 11 of the Motor Vehicle Standards Regulations 1989 (CTH) – discretion not exercised.
LEGISLATION
Motor Vehicle Standards Act 1989 – s 3 – s 5(1) – s 5B – s 7 – s 10A(2) – 18(1) – s 19 –
s 20 – s 39
Motor Vehicle Standards Regulations 1989 – reg 10 – reg 11
Vehicle Standard (Australian Design Rule – Definitions and Vehicle Categories) 2005 –
cl 4.2.3
CASES
Selway v Minister for Infrastructure, Transport, Regional Development & Local Government [2011] FCA 43
SECONDARY MATERIALS
Australian Road Rules
Australian Concise Oxford Dictionary
REASONS FOR DECISION
Mr W. Evans, Member
26 May 2017
FACTS

Mr Marshall, the Applicant, applied on 20 September 2016, to the Minister for Infrastructure and Regional Development (the Minister) for approval to import three Stigo electric bikes (Stigobike) from Estonia (T6, p 76-85).For the purposes of this decision, all reference to the vehicle will be singular.
The application and supporting documentation indicate the vehicle is a non-road vehicle (T5, p 69), is rideable by one person only and is powered by a 250 watt battery source (T6, pp 81, 84). It is purely electric-powered. It is not enhanced by pedals and a chain such as on an electric bicycle (pedalec) (T6, p 84). The vehicle is purpose-designed to fold-up such that it can be easily pulled along by a person when in confined space such as a bus, train or heavily-populated pedestrian area. Its portability is similar to that of a large wheeled suitcase and it weighs only 15 kg. It unfolds in seconds to become an electric bike capable of transporting a 100kg person at speeds up to 25kmh with a purported range of 30 km (T9).
The information provided by the Applicant indicated that the vehicle is manufactured in Tallinn, Estonia and is purportedly of high quality design and manufacture (T6, pp 84-85). It was alleged that it would potentially provide great flexibility for persons wishing to have a simple, easy to use device that provides a viable alternative to walking, and particularly to complement other modes of transport such as a car, bus or train, or just as a recreational device.
On 7 December 2016, the delegate for the Minister refused the Applicant’s import application (T17, p 203), citing that the vehicle did not comply with the requirements of the Motor Vehicle Standards Act1989 (the Act) and the Motor Vehicle Standards Regulations 1989 (the Regulations) in that the vehicle failed to meet the criteria for a non-road vehicle and furthermore, based on the information provided, the vehicle would fall within category (LA) of the Motor Vehicle Standards Act 1989 classifications, categorising it as a Moped (T2, p 19).
The vehicle was assessed as being a nonstandard road vehicle having no identification plate fitted and was thus prohibited from importation under section 18 of the Act. The decision-maker also considered that there were insufficient grounds to exercise the discretion permitted under regulation 11 (T2, p14).
On 15 December 2016, the Applicant responded to the refusal to permit the Stigobike’s importation by challenging the classification of it being an LA class scooter. He states that the Stigobike “is specifically designed as a lightweight fold-up electric only bike so it is not designed to have extras such as turn indicators, mudguards, proper headlight etc that ADR’s would require” (T2, p 12-13).
The Applicant “respectfully [requested] Discretionary Approval be given to import Stigobikes into Australia”. He based this request on his interpretation of the term scooter as opposed to bike and the fact that legislation only addresses electric-assisted pedal bicycles whereas the Stigobike is purely electric-powered and needs a classification of its own to cover this and future iterations.
On 21 December 2016, the Applicant made an application to the Administrative Appeals Tribunal (the Tribunal) to review the decision under section 39 of the Act (T1).
ISSUE
The issue before the Tribunal is whether the Stigobike is a road vehicle within the meaning of the Act or whether it is a non-road vehicle.
Should the Stigobike be classed as a road vehicle then it would be subject to the Act, the Regulations and the Australian Design Rules (ADRs) and as it has no identification plate, importation would not be possible.
Should the Stigobike be accepted as a non-road vehicle then the Act, the Regulations and the ADRs do not apply and importation of the Stigobike would be permitted.
LEGISLATION
Section 3 of the Act states:
The main objects of this Act are:
(a)to achieve uniform vehicle standards to apply to new vehicles when they begin to be used in transport in Australia; and
(b) to regulate the first supply to the market of used imported vehicles.
Section 5(1) of the Act states:
vehicle standard means a standard for road vehicles or vehicle components that is designed to:
(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.
Section 7 of the Act states:
The Minister may, by legislative instrument, determine vehicle standards for road vehicles or vehicle components.
A National Standard is one determined by Section 7 and Section 5.
Section 5(1) of the Act sets the following definitions:
identification plate means 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 under procedures and arrangements provided for in subsection 10(1).
…
motor vehicle means a vehicle that uses, or is designed to use, volatile spirit, gas, oil, electricity or any other power (not being human or animal power) as the principal means of propulsion, but does not include a vehicle used on a railway or tramway.
…
nonstandard, in relation to a road vehicle or a vehicle component, means not complying with the national standards and not taken to comply with the national standards by virtue of an approval given under subsection 10A(2).
…
road motor vehicle means:
(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.
…
road vehicle means:
(a)       a road motor vehicle; or
(b)       a road trailer; or
(c)       a partly completed road motor vehicle;
but does not include vehicles which the Minister has determined, under section 5B, are not road vehicles.
Regulation 11 states:
(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 sub-regulation (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.
APPLICANT’S CONTENTIONS
The Applicant opened his evidence by showing a video presentation of the Stigobike in use in Europe. It showed it being used in a shopping centre, at a train station, on a public footpath, in an airport arrivals terminal, on a jetty and as a commuter bike when travelling in a motorhome. Its portability was adequately demonstrated.
The Applicant contended that the Stigobike is unique in that its simple design fills a small but important application – that being communication. In his opinion it is not designed primarily for transport but is used to supplement some other form of transport being used for the longer journey – meaning that it is used for “last-mile transport”.
The Applicant further contended that the vehicle had wide-spread applications, limited only by the mind of the user. It is of simple, compact design with wide mark-proof pneumatic tyres, is speed-limited to 25 km/h and is designed for indoor and outdoor (footpath) use. It has a 250 watt rear-wheel hub motor producing no emissions. It is intimately controllable, with excellent disc brakes. Braking can be assisted by placing the feet on the ground if necessary. The rider sits comfortably on the ergonomically-designed seat and he or she has directional control by way of the handlebars which contain the brake handles and the throttle, similar to any motorbike or moped. The vehicle is fitted with a headlight, brake-light and tail-light, a horn and a rear-view mirror. It also has provision for a licence plate, illuminated by an LED. The fitted digital speedometer provides the rider with an accurate visualisation of what speed they are travelling and how much battery life remains or is being consumed.
The vehicle incorporates several important features:
(a)Safety. The inherent safety features of the quality design, the lighting and braking systems, pneumatic tyres and limited speed make the vehicle very safe. No safety issues were raised by the Respondent throughout this process.
(b)Security. The bike requires the use of an owner-controlled RFID card to start it, thus preventing unauthorised use. Its fold-up design means that it is expected to remain within sight of, or controlled storage by, the owner.
(c)Emission Control. The 250 watt electric motor produces no unwanted emissions.
The Applicant was very passionate in his belief that the Stigobike is not designed as a moped, that its technology represents the future of personal-use transport or communication devices and that it is more a life-style technology.
The Applicant was adamant that he was presenting a non-road vehicle and he did not seek a licence for road-use.
The Applicant stated that there had been no consultation with him by anyone within the Department of Infrastructure and Regional Development (the Department) over how to address the issue of there being no specific regulations or legislation covering electric bikes as distinct from any other form of electric vehicle (car) or pedalec (a bicycle driven by pedals but assisted by an electric motor). He felt that new technology such as the Stigobike is not only already throughout the world but will increase markedly in the future as people seek alternative means of powering vehicles. He opined that electric bikes are here to stay.
The Applicant was also of the opinion that the Act and the Regulations needed urgent revision to accommodate the needs of the electric revolution within the transport industry. He also felt that section 5B of the Act and regulation 11 provides the Minister the means to permit the importation of the Stigobike and like vehicles.
The Applicant introduced a witness well-qualified in the physics of human movement, who stated that the Stigobike is similar to a pedalec, in that both produce on average, a power output of 250 watts. Pedalecs are electrically limited in power output and rarely exceed 25 km/h despite being pedal-assisted. The Stigobike is limited to 25km/h. A standard bicycle, however, can be ridden at speeds far in excess of 25 km/h, with some riders capable of exceeding 400 watts output. The witness was of the view that the Act and the Regulations trailed behind in recognising technical innovation, current and future lifestyle requirements and community expectations.
The Applicant then addressed the fact that in his opinion, Mr Hoy of the Department had erred in his categorisation of the Stigobike as a road vehicle. To be classified as a road vehicle means that it must have been designed principally for road use, which in his opinion it was not. The Applicant opined that the vehicle is not a scooter (moped), with scooters being much more powerful and capable of speeds well in excess of 25 km/h. He stated that the Stigobike is more like a foot scooter of old except that it has a seat and a small electric motor.
The Applicant stated that he recognises the Department must operate within the confines of current legislation but he seeks in this case to have independent assessment of the legislation to accommodate future trends, particularly electric-powered vehicles. The Stigobike has been available in Europe since 2014 and is now well established as a fun vehicle.
RESPONDENT’S CONTENTIONS
The Respondent opened by stating that this is a defined case. Either the Stigobike is a road vehicle subject to legislation or it is a non-road vehicle in which case no permission is required and the legislation is invalid.
Section 5B of the Act gives the power for the Minister to determine if a vehicle is a road vehicle. A specific requirement is that the vehicle be fitted with an authorised identification plate. Importation of the vehicle without that identification plate is prohibited under Section 18(1) of the Act.
Subject to sections 19 and 20, a person must not import a road vehicle that:
(a)is nonstandard; or
(b)does not have an identification plate.
The Stigobike does not have an identification plate within the meaning of the Act.
The principal question before the Tribunal is whether the Stigobike falls within the definition of a ‘road-vehicle’.
Subsection 5(1) of the Act states:
motor vehicle means a vehicle that uses, or is designed to use, volatile spirit, gas, oil, electricity or any other power (not being human or animal power) as the principal means of propulsion, but does not include a vehicle used on a railway or tramway.
national standard means a vehicle standard determined under section 7.
new imported vehicle means an imported vehicle that has not been used in transport outside Australia.
new vehicle means a locally made vehicle, or a new imported vehicle, that has been neither:
(a)supplied to the market; nor
(b)used in transport in Australia by its manufacturer or importer;
and includes a locally made vehicle, or a new imported vehicle, that has been supplied to the market but not yet used in transport in Australia.
nonstandard, in relation to a road vehicle or a vehicle component, means not complying with the national standards and not taken to comply with the national standards by virtue of an approval given under subsection 10A(2).
…
road motor vehicle means:
(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.
…
road vehicle means:
(a)a road motor vehicle; or
(b)a road trailer; or
(c)a partly completed road motor vehicle;
but does not include vehicles which the Minister has determined, under section 5B, are not road vehicles.
standard vehicle means a new vehicle that complies with the national standards, or which is taken to comply with the national standards by virtue of an approval given under subsection 10A(2), but does not include an export vehicle.
The Respondent contends that the Stigobike falls within the definition of:
(a)a new vehicle, in that it is not in use in Australia;
(b)a motor vehicle, in that it is a vehicle with its principal mode of energy being electricity;
(c)a road motor vehicle, in that it has been designed principally for the transport of people on public roads;
(d)a nonstandard road vehicle, in that it does not comply with the national standards under subsection 10A(2) of the Act; and
(e)is a vehicle that fails to meet the national standards under section 7 of the Act.
The Respondent reiterated that the Applicant had himself described the Stigobike as being “designed to transport people”. This was demonstrated in the video evidence of the Applicant. The Tribunal was satisfied that the vehicle is designed to transport people over distances and is not designed solely for recreational or other purposes.
The Respondent contended that the vehicle complies with the definition of a “MOPED – 2 wheels (LA)” (LA category) in clause 4.2.3 of the Vehicle Standard (Australian Design Rule – Definitions and Vehicle Categories) 2005 (Categories ADR). LA category mopeds are defined as follows:
MOPED - 2 Wheels (LA)
A 2-wheeled motor vehicle, not being a power-assisted pedal cycle, with an engine cylinder capacity not exceeding 50 ml and a ‘Maximum Motor Cycle Speed‘ not exceeding 50 km/h; or a 2-wheeled motor vehicle with a power source other than a piston engine and a ‘Maximum Motor Cycle Speed‘ not exceeding 50 km/h.
In Australia, where a motorised scooter exceeds 200 watts in power, the vehicle is classified as a Moped under the national standards. The Stigobike (250 watt) is classified as a Moped (L1e) in Europe and the United Kingdom (T9, p 145). It is approved for on-road use in Europe. The UK requires the vehicle to be DVLA registered, licenced and insured as a road vehicle if it is intended to be used on public roads and riders must wear an approved motorcycle helmet. It is clear from its European marketing and use that it is intended as a personal transport vehicle for use on pedestrian walkways and on the road.
The Stigobike is assessed by the Department as being a nonstandard road vehicle within the meaning of the Act. Being a road vehicle, importation is prohibited under sections 19 and 20.
The Respondent submitted that “there does not appear to be any dispute that the Vehicles are nonstandard (as defined in subsection 5(1) of the Act) or that the Vehicles do not have an identification plate attached to them” (Exhibit R2, para 21). Furthermore, “there does not appear to be any dispute that the Vehicles are designed for the transport of people, or that the vehicles are not permitted to be used on public roads.” (Exhibit R2, para 26).
The Applicant had stated several times that the vehicle is intended for use on footpaths and cycleways, and internally within shopping centres, warehouses and office complexes. The Applicant stated that he does not intend to market it for use on roads.
The Australian Road Rules (ARRs), administered by the National Transport Commission, are the model laws that provide the basis for road rules in each State or Territory. The Respondent contended (Exhibit R2, paras 32, 34):
[The Stigobike at] 250 watts is above the maximum power output that is accepted for use on cycle-ways, footpaths and other shared pathways on which the public has right of way in all jurisdictions in Australia. Rule 288 of the Australian Road Rules (ARRs) states that a driver (except the rider of a bicycle) must not drive on a path except in certain specific circumstances such as when indicated by a traffic control device, when driving a motorised wheelchair or when riding an animal. For the purposes for rule 288, path is defined as "a bicycle path, footpath or shared path" and bicycle is defined in the Dictionary as a "vehicle with 2 or more wheels that is built to be propelled by human power through a belt, chain or gears (whether or not is has an auxiliary motor) and … (b) does not include … any vehicle with an auxiliary motor capable of generating a power output over 200 watts (whether or not the motor is operating)”.
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With a power output of 250 watts, the Vehicles do not meet the ARR definitions of bicycle or of motorised scooter and so would not be permitted to be used on public bicycle paths, footpaths or shared paths. The Respondent contends that this design feature supports the conclusion that the Vehicles are road motor vehicles.

The manufacturer’s technical description clearly indicates (T9, p143-181):
(a)Vehicle category L1e (two wheeled moped);
(b)Vehicle is equipped to be driven in right-hand or left-hand rules of the road;
(c)Maximum hill-starting ability is 8 degrees;
(d)Maximum continuous rated power is 250 watts;
(e)It has a speedometer, with a maximum speed of 25 kmh;
(f)Pneumatic tyres on 9 inch wheels;
(g)A V-brake on the front wheel and a disc brake on the rear wheel;
(h)Lighting comprising a passing (headlight) beam, a rear position lamp, a stop (braking) lamp, a licence plate lamp, a rear reflector and two side reflectors;
(i)A horn; and
(j)A rear-view mirror.
The specifications detailed above support the view that the vehicle has been designed for on-road use, supported by readily-available video evidence of its use in Europe.
Given the above, the Respondent considers that the vehicles do not meet the requirements of a non-road vehicle. Accordingly, the vehicles would not be exempt from the requirements of the Act, having been classed as category (LA) – Moped, and the vehicle would be subject to the Australian Design Rules before an import approval could be granted.
The Respondent concluded his evidence by stating that it is apparent the Stigobike’s main purpose is for the transportation of a person on a footpath, shared path or road. The design of the vehicle is consistent with its intended use on roads and that it is a road vehicle. The available video evidence of its use in Europe supports that view.
The Respondent reiterated that the discretion available to the Tribunal under section 19 of the Act and regulation 11 of the Regulations cannot be warranted in these circumstances.
ANALYSIS
The Applicant presented as a mature, experienced person with a sound appreciation of the Stigobike’s potential as a mode of transport. He had stated in his submission for importation of the vehicle that it was a non-road vehicle intended to supplement other modes of transport such as a car, bus or train and that it was a “last-mile” form of transport. He was also of the opinion that the Stigobike was a “communications” device rather than a transportation device and was a life-style choice.
The Applicant applied for approval to import the Stigobike as ‘non-transport equipment’ under regulation 10 (T6 and T7). According to the Australian Concise Oxford Dictionary, transport means:
“to take or carry (a person, goods, troops, baggage, etc) from one place to another”.
It is therefore unclear as to why the Applicant attempts to import the vehicle as non-transport equipment, given that it is obviously a transportation device. The Applicant also inferred that the Stigobike was a non-road bike and that he wished to import it as such.
The Tribunal, in an effort to obtain a balanced view on the Stigobike’s uses, referred to video of its usages in Europe and the UK. These videos clearly demonstrated that the Stigobike is utilised not only on footpaths and shared pedestrian areas but also as a road vehicle, mixing in with cars, trucks, motorbikes, etc. In his verbal evidence, the Applicant admitted that its use in Australia would be difficult to police and that users were bound to break the law and ride it on roads.
The Tribunal recognised the intent of the vehicle’s designer Mr Matti Õunapuu who stated in an interview with DesignDaily:
What is the most unique feature of the Bike ?
“The Stigo is one of the few portable electric scooters to meet the legislative norms in EU which makes it roadlegal. We are also quite sure that it is the fastest-folding electric scooter in the world. The Stigo folds in just 2 seconds.”
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“What impact & affect will the STIGOBIKE have on the design, automotive industry & the Society as a whole? (sic)
“The Stigo wants to complement other means of transport. I see many use (sic) for the product and our team is not trying to supersede cars or public transport. On the contrary, we can see the Stigo go well (sic) with your personal car, campervan, yacht, public transport etc. It is a door-to-door solution, takes almost no room and it is a part of the everyday transport together with other means of transport.”
The quotes from the designer, in conjunction with the video evidence, and the vehicle’s technical/physical inclusions, indicate that the vehicle was designed with road-use in mind.
The Tribunal is cognisant of the requirements of the Act and the Regulations in respect of importation of new vehicles into Australia. The fact that the Stigobike is classified as a moped is indisputable, given that it is described as such in its formal specifications (T9). It is also “equipped to be driven in right-hand or left-hand traffic rule of the road” (T9, p 146) further indicating that its classification as a road vehicle is justified.
The Tribunal is satisfied that the Stigobike is a nonstandard road vehicle that fails to comply with the Act, the Regulations and the ADRs and as such cannot be imported. Additionally, the vehicle cannot comply with the ARRs as described at paragraph 41 above, thus denying its legal use in Australia, further strengthening the decision to refuse importation.
DISCRETION
Section 19 of the Act and regulation 11 of the Regulations provide discretionary powers whereby the Minister may, by written instrument, approve the importation of a nonstandard vehicle or a vehicle without an identification plate. In this case, it has been determined that the Stigobike is a nonstandard road vehicle and that it does not have an identification plate. Importation of a nonstandard vehicle without an identification plate is not permitted under section 18 of the Act.
The principal objectives of the Act are:
(a)to achieve uniform vehicle standards to apply to new vehicles when they begin to be used in transport in Australia; and
(b)to regulate the first supply to the market of used imported vehicles.
Neither the Act nor the Regulations set out specific factors for consideration when determining the use of discretion. Mansfield J in Selway v Minister for Infrastructure, Regional Development and Local Government [2011] FCA 43 held at [37]:
It may well be that it will not be a common circumstance that a person seeking to import a nonstandard vehicle will have the discretion available under Reg 11 exercised in that person’s favour. In some circumstances, such an 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.
The Applicant has argued that the Stigobike is unique technology that is not designed for use on open roads. That belief is not supported by the evidence from the bike’s use in Europe and the designer’s own remarks. The Applicant contests the classification of Moped (LA), however, the vehicle is classified by the European authorities as an L1e Moped, as clearly indicated on the vehicle manufacturer’s technical specifications (T9).
The Tribunal supports the determination that the vehicle is a Moped under the Australian definition.
Other videos researched by the Tribunal showed the Stigobike being used in public warehouses, office complexes, public areas, and mixing with cars, trucks bicycles and motorbikes on public roads in Europe (Paris) and the United Kingdom. It would be folly to suggest that users of the Stigobike in Australia would not attempt to ride it on cycleways, footpaths, shared paths, pedestrian areas and on roads in contravention to common sense and the ARRs.
The Applicant appreciates that current legislation does not address importation of an electric vehicle such as the Stigobike. The Applicant failed to present any evidence that would outweigh the legislative requirements for the importation of such a vehicle. In saying that, the Tribunal did take cognisance of the safety, emissions and security aspects of the Stigobike. These latter three factors, however, do not present a sufficiently strong argument for the vehicle to be assessed as anything other than a road vehicle.
The Tribunal was not convinced that there are sufficiently weighted factors or circumstances that would warrant the exercise of discretion in this case.
RECOMMENDATION
It was evident throughout the proceedings that the Applicant’s case centred on the perceived limitations of current legislation. There is world-wide acceptance of advancing technology in the transportation arena, including electric cars, cars capable of driving unassisted by a person, electric bikes, electric motorbikes and remote-controlled vehicles. Australia must embrace the future now. The development of legislation that encompasses this trend towards electric vehicles is considered to be paramount if Australia is to be measured as a progressive country.
It is highly recommended that the Department enter into dialogue with the Applicant with the view of working together to arrive at a viable strategy for the drafting of legislation targeted at electric vehicles of all natures. There is no doubt that there are many electric vehicles similar to the Stigobike, in the world market. Many of those vehicles would provide safe, efficient and economic advantages to the Australian community. Early legislative commitment is needed as a matter of priority.
DECISION
The decision to refuse the importation application is affirmed.

I certify that the preceding sixty five (65) paragraphs are a true copy of the reasons for the decision herein of Mr W. Evans, Member

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Administrative Assistant
Dated: 26 May 2017

Date of hearing: 3 May 2017

Applicant: In person

Representative for the
Respondent: Mr M Palfrey

Solicitors for the Respondent:

HWL Ebsworth Lawyers

[2017] AATA 788

26 May 2017

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Date of hearing:	3 May 2017
Applicant:	In person
Representative for the Respondent:	Mr M Palfrey
Solicitors for the Respondent:	HWL Ebsworth Lawyers