EXPLANATORY STATEMENT
Approved by the Hon Barnaby Joyce MP, Deputy Prime Minister and Minister for Infrastructure, Transport and Regional Development
Road Vehicle Standards (Limit of Acceptable Damage or Corrosion) Determination 2021
Summary
The Road Vehicle Standards (Limit of Acceptable Damage or Corrosion) Determination 2021 (the Determination) is made under section 107 of the Road Vehicle Standards Rules 2019 (the Rules). It is relevant to the work of both authorised vehicle verifiers (AVVs) and registered automotive workshops (RAWs) and establishes limits of damage or corrosion, or repair of damage or corrosion, that road vehicles verified by AVVs are permitted to have.
AVVs verify road vehicles manufactured or modified by RAWs in accordance with a Model Report. The Determination sets out the extent or types of damage or corrosion, or repair of damage or corrosion, that will not prevent the holder of an AVV approval from verifying a road vehicle or verifying modifications of a road vehicle.
The holder of a RAW approval must have regard to the damage or corrosion limit when preparing to modify a vehicle in accordance with a Model Report. Under subsection 65(3) of the Rules, the RAW must ensure that a road vehicle is inspected for damage or corrosion, or repair of damage or corrosion, before modifying it. Where a vehicle is found to have a level of damage or corrosion, or repair of damage or corrosion, that exceeds the limit set under section 107 of the Rules, the RAW must notify the Secretary of the Department of Infrastructure, Transport, Regional Development and Communications (the Department) in writing and must not continue to work on the vehicle or declare that the vehicle has been modified in accordance with the Model Report.
Legislative context
The Rules, and determinations made under the Rules, set out matters that support the regulatory framework of the Road Vehicle Standards Act 2018 (the Act). The Act provides a modern framework for the Commonwealth to regulate, among other matters, the importation and the first provision of road vehicles in Australia. It includes measures to manage the risks associated with road vehicles and road vehicle components. Such measures are designed to ensure that road vehicles and approved road vehicle components provided in Australia meet certain safety, anti‑theft and environmental standards. The Act also gives effect to Australia’s obligations regarding the harmonisation of international road vehicle standards.
The Rules set out a series of ‘tools’ (to adopt the name of Part 4 of the Rules)—approvals that enable road vehicles to satisfy the requirements of entry pathways, which, in turn, enable the vehicles to be provided for the first time in Australia. In particular, Division 4 of Part 4 deals with AVV approvals, and regulates the manner in which an AVV may inspect and ‘verify’ road vehicles and modifications of road vehicles under such an approval. The damage or corrosion limit is relevant to the conduct of such inspections and verifications.
Legislative authority
The Determination is made under section 107 of the Rules. Section 107 of the Rules provides that the Minister may, by legislative instrument, determine the extent or types of damage or corrosion, or repair of damage or corrosion, that will not prevent the holder of an AVV approval from verifying a road vehicle, or modifications of a road vehicle, under the approval.
This is referred to as the ‘damage or corrosion limit’ in section 107 of the Rules.
Purpose and operation of the instrument
Overview of the Act and Rules
The Act regulates the importation and first provision of road vehicles in Australia. The Rules set out matters that support the regulatory framework of the Act. The Rules provide for the keeping of a Register of Approved Vehicles (RAV) (Part 2 of the Rules), on which a road vehicle must generally be entered before it may be provided for the first time in Australia (section 24 of the Act). A vehicle may be entered on the RAV if it satisfies the requirements of an entry pathway (subsection 15(1) of the Act).
Subsection 19(2) of the Act states that the Rules may provide for or in relation to the grant of approvals to enable road vehicles to satisfy the requirements of the type approval pathway or other entry pathways.
There are currently two pathways available for vehicles to be entered on the RAV (Part 3 of the Rules):
- the type approval pathway, which applies to all vehicles of a particular type that fully or substantially comply with the applicable national road vehicle standards made under the Act and are approved for volumetrically unrestricted supply to the Australian market (section 15 of the Rules)
- the concessional RAV entry approval pathway, which applies to an individual vehicle if:
- there is a concessional RAV entry approval in force for that vehicle
- certain conditions of the approval have been met, and
- the vehicle is in Australia, unless the approval lifts this requirement (section 31 of the Rules).
The Rules set out eligibility requirements for each pathway. The Rules also set out the tools through which road vehicles may satisfy the requirements of RAV entry pathways, such as approvals relating to RAWs, AVVs, Model Reports and testing facilities.
Where entry on the RAV is sought for a vehicle through the concessional RAV entry pathway following modification or manufacture by a RAW (see section 37 of the Rules), there are various conditions that apply. Section 48 of the Rules provides that it is a condition of the concessional RAV entry approval that (among other things) the road vehicle to which the approval applies must not be entered on the RAV until the holder of an AVV approval has verified the vehicle or modifications of the vehicle in accordance with section 100 of the Rules (which sets out the condition about the conduct verifications). Where there is a damage or corrosion limit determined under section 107 of the Rules, the AVV may only verify the road vehicle or modifications of a road vehicle if the level of damage or corrosion (or repair thereof) on the vehicle does not exceed the limit specified in the Determination (see subparagraph 100(1)(b)(ii) of the Rules).
AVV verification may also be required as a condition of a concessional RAV entry approval, a non-RAV entry import approval or a reimportation import approval in individual cases (see paragraphs 47(2)(d)-(e), 157(2)(d), and 168(2)(c) of the Rules, respectively). The damage or corrosion limit will also generally be relevant in such cases.
Under subsection 65(3) of the Rules (read with subsection 65(4)), the holder of a RAW approval must notify the Secretary and must not continue to work on a vehicle or declare that it has been modified in accordance with an approved Model Report if the vehicle, upon inspection, is found to have a level of damage or corrosion (or repair thereof), that exceeds the damage or corrosion limit determined under section 107 of the Rules.
A Model Report is a document setting out how a particular make, model, variant(s) or build range of vehicle may be modified or manufactured to meet the standards that apply to it.
Purpose of the Determination
The purpose of the Determination is to set limits to the damage or corrosion, or repair of damage or corrosion, that can be present on vehicles that will be entered on the RAV after being verified by an AVV. RAWs are also required to assess each vehicle they manufacture or modify against the damage or corrosion limit. The intention of the RAW assessment is to leverage the RAW’s ability to inspect the vehicle prior to modification or manufacture, and to reduce the likelihood of vehicles failing verification after being modified or manufactured (potentially resulting in the owner of the vehicle suffering hardship due to the costs incurred in having the vehicle modified or manufactured by the RAW).
The damage or corrosion limit is intended to ensure that only vehicles of good quality are added to the RAV. It is also designed to deal with the possibility that damaged or corroded vehicles, or vehicles that have been repaired, will no longer offer the same levels of safety that they had when new, and may no longer comply with certain standards.
While the limit is primarily concerned with structural integrity (rather than non-structural damage on the vehicle), the Determination assists in maintaining a minimum level of general quality of vehicles being approved for use on public roads in Australia.
A Statement of Compatibility with Human Rights for the Determination is at Attachment A.
A section by section explanation of the Determination is at Attachment B.
Consultation
The Department has consulted with industry associations, in‑service regulators and the public on the development of policy relating to the damage or corrosion limit.
Initially, consultation on the development of the Road Vehicle Standards Bill 2018 was conducted in three distinct phases from 2013 onward. Further information about this consultation process can be found at chapter 6, ‘Consultation’, in the Review of the Motor Vehicle Standards Act 1989 Regulation Impact Statement, 6 March 2018 (https://ris.pmc.gov.au/2018/03/06/review-motor-vehicle-standards-act-1989).
The Department then conducted more targeted consultation with industry associations and in‑service regulators on the development of the Determination, primarily through the Road Vehicle Standards Act Implementation Consultation Framework, which established three consultation groups, addressing type approvals, concessional RAV entry and RVSA tools.
The Department released an exposure draft of the Determination and the Explanatory Statement on 15 December 2020, and received submissions from four stakeholders in February 2021. Subsequent meetings were held with one key stakeholder on the proposed Determination.
Prescribing matters by reference to other instruments or documents
Subparagraph 14(1)(a)(ii) and subsection 14(3) of the Legislation Act 2003 provide that a legislative instrument may incorporate the provisions of a disallowable legislative instrument as in force from time to time unless a contrary intention appears in the enabling legislation. Subsection 82(6) of the Act further permits the Determination to make provision in relation to a matter by applying, adopting or incorporating, with or without modification, any matter contained in an instrument or other writing as in force or existing from time to time.
The Determination incorporates the Road Vehicle Standards (Verification of Road Vehicles) Determination 2021, a legislative instrument made under section 106 of the Rules. This legislative instrument determines matters relating to the verification of a road vehicle by a corporation as an AVV. This instrument is available without cost to the public through the Federal Register of Legislation (www.legislation.gov.au).
Model Reports – not incorporated by reference
For completeness, it is important to note that an approved Model Report is not a legislative instrument and is not incorporated by reference in this Determination. A Model Report is a document protected by copyright and available commercially to industry.
Division 3 of Part 4 of the Rules sets out the process for approving a Model Report. Each Model Report is particular to a specific model or variant of a road vehicle, and is used to ensure that a vehicle modified or manufactured in accordance with it will meet the relevant standards and the requirements for entry on the RAV. The Model Report approval holder owns all associated intellectual property. The Department publishes a list of approved Model Reports and the contact details of the owner on its ROVER web site: https://ROVER.infrastructure.gov.au (unless the owner has requested the details not be published).
The required form and content of a Model Report is set out in the Road Vehicle Standards (Model Reports) Determination 2021 [F2021L00831] made under section 88 of the Rules.
Regulation Impact Statement
A Regulation Impact Statement (RIS) was prepared in relation to policy options regarding the Motor Vehicle Standards Act 1989 and policy options for its repeal and replacement with the Act and the Rules. The RIS is included in the Explanatory Memorandum to the Road Vehicle Standards Bill 2018. The Office of Best Practice Regulation (OBPR) reference number for the RIS is 17240. OBPR has advised that no further RIS is required.
ATTACHMENT A—STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Road Vehicle Standards (Limit of Acceptable Damage or Corrosion) Determination 2021
This disallowable legislative instrument is compatible with the human rights and freedoms recognised or declared in the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview of the Disallowable Legislative Instrument
The Road Vehicle Standards (Limit of Acceptable Damage or Corrosion) Determination 2021 (the Determination) is made under section 107 of the Road Vehicle Standards Rules 2019 (the Rules).
The Road Vehicle Standards Act 2018 (the Act) provides a modern framework for the Australian Government to regulate the importation of road vehicles into Australia, and the first provision of road vehicles in Australia. It includes measures to manage the risks associated with road vehicles and road vehicle components, and to ensure that road vehicles and approved road vehicle components provided in Australia meet certain safety, anti-theft and environmental standards. It achieves this by regulating road vehicle importation into, and the first provision of road vehicles in, Australia. The Act also gives effect to Australia’s obligations regarding the international harmonisation of road vehicle standards.
The Rules set out matters that support the regulatory framework of the Act. The Rules provide for the keeping of a Register of Approved Vehicles (RAV), on which a road vehicle must generally be entered before a person may provide the vehicle for the first time in Australia. A road vehicle may be entered on the RAV if it satisfies the requirements of an entry pathway.
The purpose of the Determination is to set out the extent or types of damage or corrosion, or repair of damage or corrosion, that will not prevent the holder of an authorised vehicle verifier approval (AVV) from verifying a road vehicle, or modifications of a road vehicle, under the approval.
Where a damage or corrosion limit is established under section 107 of the Rules, the AVV must not verify a vehicle unless satisfied that the level of damage or corrosion (or repair thereof) on the vehicle does not exceed that limit (as required by subparagraph 100(1)(b)(ii) of the Rules).
Human rights implications
This disallowable instrument supports the regulatory framework of the Act and the Rules to ensure that vehicles on public roads meet safety and environmental standards to support the human right to life and health. The Determination does not engage any human rights beyond those addressed in the Explanatory Statement for the Rules.
Conclusion
This disallowable instrument is compatible with human rights because it promotes the protection of human rights and, to the extent that it may limit human rights, those limitations are considered to be reasonable, necessary and proportionate.
Deputy Prime Minister and Minister for Infrastructure, Transport and Regional Development, the Hon Barnaby Joyce MP
ATTACHMENT B—OVERVIEW OF PROVISIONS
Section by section explanation of the Road Vehicle Standards (Limit of Acceptable Damage or Corrosion) Determination 2021
Section 1— Name
Section 1 provides that the name of this legislative instrument is the Road Vehicle Standards (Limit of Acceptable Damage or Corrosion) Determination 2021 (the Determination).
Section 2—Commencement
Section 2 provides that the Determination is to commence on the specific date mentioned.
Section 3—Authority
Section 3 provides that the Determination is made under section 107 of the Road Vehicle Standards Rules 2019 (the Rules).
Section 4—Purpose of this instrument
Section 4 provides that the purpose of the instrument is to set out the extent or types of damage or corrosion, or repair of damage or corrosion, that will not prevent the holder of an authorised vehicle verifier approval (AVV) from verifying a road vehicle, or modifications of a road vehicle, under the approval.
Section 5—Definitions
Section 5 sets out new definitions for the Determination. Notes are provided on some key definitions below.
The Determination provides a definition of a ‘body alignment test’, which is used to identify and assess distortion of a structural component of a vehicle, or distortion of the vehicle structure. The test is used to assess the impact of repair of damage or corrosion on the structural integrity of the vehicle.
The Determination provides definitions of ‘dent’ ‘flaking’ and ‘pitting’ resulting from damage or corrosion. These definitions assist the user to assess the significance of damage or corrosion on the vehicle.
In relation to a vehicle, a ‘structural component’ is defined as ‘any component intended to carry a load or force in the operation of the vehicle (including a load or force imposed as a result of a crash), other than components only used to support trim and lamps.’ Examples of structural components are door structures, hinges, latches, anchorages, airbag mounts and suspension mounts. The Determination limits the extent to which damage to, or corrosion of, structural components of a vehicle is acceptable.
In relation to a vehicle, the ‘vehicle structure’ is defined to mean ‘the parts of a vehicle that are integral to the vehicle.’ The Determination limits the extent to which damage to, or corrosion of, the structural components of a vehicle, or the structure of a vehicle, is acceptable. The definition includes a non-exhaustive list of what is included in the vehicle structure (the vehicle chassis, the vehicle frame and various listed parts of the monocoque frame).
Section 6—Limit of acceptable damage or corrosion
Section 6 provides limits of acceptable damage or corrosion, or repair of damage or corrosion, to a vehicle. The key purpose of this section is to ensure that vehicles to be entered on the Register of Approved Vehicles (RAV), through the concessional RAV entry pathway on the basis of the eligibility criteria in section 37 of the Rules, are structurally sound in order to improve road safety outcomes.
Subsection 6(1) provides that, subject to the exceptions set out in subsection 6(2) (and explained further below), the matters listed at paragraphs (a) to (f) of subsection 6(1) do not prevent the holder of an AVV approval from verifying a road vehicle, or modifications of a road vehicle, under the approval.
The limit identified in paragraph 6(1)(a) is ‘one or more dents on the vehicle structure, or a structural component of the vehicle, of 25 millimetres or less in depth’. This would usually be measured with a straight ruler or depth gauge such as a vernier caliper (Part 4 of the Road Vehicle Standards (Verification of Road Vehicles) Determination 2021 - the determination made under section 106 of the Rules - sets out specific requirements as to the technology and equipment that AVVs are to use when conducting inspections). The limit imposed in this paragraph is in recognition that used vehicles can have minor damage that will result in a minor impact to the structural integrity of the vehicle, while excluding those that pose a greater risk. This limit is based on the limit applying under the Motor Vehicle Standards (Procedures for Inspecting and Testing Used Imported Vehicles) Determination 2002.
The limit identified in paragraph 6(1)(b) is ‘distortion of a structural component of the vehicle, or distortion of the vehicle structure, where the difference in the length of corresponding diagonal lines, as ascertained through a body alignment test, is 10 millimetres or less’. The limit imposed in this paragraph is to assist AVVs to assess whether there have been compromises to a vehicle’s structural integrity (for example, following repairs made after a vehicle has been in an accident).
The limit identified in paragraph 6(1)(c) is damage to or corrosion of a structural component of the vehicle, or of the vehicle structure, where the damage or corrosion has been repaired by replacing damaged structural components with new components of the original specification, or the repairs did not involve the cutting or welding of a structural component, or of the vehicle structure. Although corrosion can similarly cause a reduction to the structural integrity of a vehicle, repairs to corroded vehicles may safely be made if corroded components are replaced. The purpose of this section is to provide the method through which damaged or corroded parts may be replaced to ensure preservation of the overall structural integrity of the vehicle.
The limit of identified in paragraph 6(1)(d) is variations of the gaps between panels greater than 5 millimetres, where the variations are not the result of damage to the vehicle structure. In addition:
- if a body alignment test has not been conducted on the vehicle, it must be the case that a body alignment test would not be required under the Road Vehicle Standards (Verification of Road Vehicles) Determination 2021 by reason of the variations, and
- if a body alignment test has been conducted on the vehicle, it must be the case that the difference in length of corresponding diagonal lines, as ascertained through the test, is 5 millimetres or less.
The limit identified in paragraph 6(1)(e) is ‘corrosion that has not resulted in flaking or pitting’. This provision refers to corrosion that has not resulted in flaking or pitting to ensure that vehicles on the RAV do not have levels of corrosion that may compromise the structural integrity of the vehicle. This corrosion limit is based on the limit applying under the Motor Vehicle Standards (Procedures for Inspecting and Testing Used Imported Vehicles) Determination 2002.
The limit identified in subparagraph 6(1)(f)(i) captures alterations that amount to damage to a structural component of a vehicle, provided that the alteration ‘did not involve bending, distorting, heating the metal of, or drilling or cutting holes in, the structural component’. This limit recognises the fact that not all damage to vehicles occurs as a result of crashes – deliberate alterations to a vehicle can also amount to damage. The intention is to prevent a vehicle from being verified if it has been altered in these ways, because such methods are likely to affect the structural integrity of the vehicle.
The limit identified in subparagraph 6(1)(f)(ii) captures alterations that amount to damage to a structural component of a vehicle, provided that the alterations ‘consisted of modifications carried out in accordance with an approved Model Report that applied to the vehicle’. This ensures that modifications carried out in accordance with an approved Model Report are acceptable. In some cases, the work instructions in a Model Report will require the vehicle to be structurally modified, such as by undertaking left to right hand drive conversions, fitting roll cages or making engine modifications.
A Model Report relates to a model of road vehicle, or one or more variants of a model of road vehicle. It contains the necessary designs and steps for modification or manufacture so that a road vehicle manufactured or modified in accordance with the Model Report meets applicable standards. As such, Model Reports play a critical role for RAWs when modifying or manufacturing a road vehicle. Division 3 of Part 4 of the Rules sets out the process for approving a Model Report. The required form and content of a Model Report is set out in the Road Vehicle Standards (Model Reports) Determination 2021 made under section 88 of the Rules.
Subparagraph 6(1)(f)(ii) is followed by an example for paragraph (1)(e) and two examples for paragraph (1)(f), where certain corrosion, or alterations made to a structural component or the vehicle itself, would not prevent the holder of an AVV approval from verifying the vehicle.
Subsection 6(2) provides that subsection 6(1) does not apply where the damage or corrosion (or repair thereof) has resulted in the splitting of a seam or joint between two panels or the failure of a spot weld. This provision has been included because some types of damage or corrosion, or repair of damage or corrosion, will not exceed the limits set out in subsection 6(1) but may nevertheless affect the structural integrity of the vehicle. The objective indicator of this is the increased flexibility of the vehicle, which results in failures of joints between panels, seams and spot welds, which affect the structural integrity of a vehicle. The purpose of this provision is to ensure that such vehicles are not entered on the RAV. This subparagraph is followed by an example, which states that a road vehicle with evidence of dents to a structural component of 25 millimetres or less in depth, but which also resulted in the failure of a spot weld, would prevent the holder of an AVV approval from verifying the vehicle.
Subsection 6(3) provides that the paragraphs of subsection 6(1) do not limit one another. This is explained further in the following note. Even if one paragraph does not apply, the AVV may still be prevented from verifying the vehicle or modifications if another paragraph applies.