You have to be kidding

VSCCS part 3 - transitional arrangements

2011-02-16T22:00:00.037+11:00

As part of the process of implementing VSCCS, the RTA propose that every applicant for a license would have to go though an interview process. To date, the extent of that process relative to the range of vehicle types and areas of vehicle that the applicant proposes to be licensed to certify is completely undefined. Nobody knows whether it would be an hour interview or several weeks of creating a presentation then going through multiple interviews over several days.

Two points that seem to be very controversial in the eyes of many existing signatories are that:

every existing signatory will have to apply from scratch to do what they are already doing, and
the RTA have declared that participants in the scheme, who are arguably the most qualified people to assess the competence of applicants, will be ineligible to sit on the assessment panel because to do so would be a conflict of interest.

Several signatories have stated that they see the first point as insulting and unprofessional, suggesting that the RTA is implicitly assuming that professional engineers with decades of experience may not be competent to do what they are currently doing.

All existing signatories will automatically be granted an interim license. This means that they would have to immediately start issuing certificates using the online system, but would have a period of a few months during which to go through the interview process to obtain a full license. The uncertainty of how involved that process would be is leading some to leave prior to the commencement of the new scheme. Signatories are generally small business operators and many of those who remain are concerned the interview process will be disruptive to some (as yet unknown) degree, and question whether it will be worth being there at all.

This proposal to process applications and interview all existing signatories as well as new applicants also appears to imply a significant amount of work to be carried out by whoever is to carry out those assessments and interviews. Several signatories have expressed concern at the potential cost of this process to the taxpayers as well as to applicants.

The second point led to an interesting discussion between a small number of engineers, in which it was observed that, in every profession, it is a panel of qualified practitioners that make an assessment of whether a person is competent to practice independently. This applies to fields such as medicine, architecture and engineering, and, along with peer review, is considered by some people to be a fundamental foundation of modern civilisation. The RTA decision is therefore looked upon with considerable consternation by some of the existing signatories and many of their clients.

Perhaps the most concerning aspect of the entire VSCCS proposal, which is implicit to the two points above, is that there appears to be an us and them attitude built into the scheme. In spite of being described as a partnership scheme, the design of the scheme comes across as adversarial, and this is reflected in many of the details such as the concentration on penalty clauses.

I believe that a partnership scheme should involve assisting members to identify and correct mistakes and to prevent them recurring. I believe that it should also start with the assumption that existing signatories are fundamentally competent and that they believe that they are acting in the best interests of the wider community. As such, I believe that, as with the 1994 scheme change, existing signatories should not be required to go through an application process. I also believe that the interview panel for new applicants to the scheme should include scheme members.

Hence, here's another question in regards to the proposed VSCCS scheme, which I believe needs to be answered by the NSW Minister for Roads, The Hon. David Borger, MP:

Can the minister advise what if any consideration has been given to the impact of the proposed scheme on the existing small business operators and professional engineers who will, at best, have to go through a disruptive process of as yet undefined scope and impact on their businesses, to demonstrate their competency to continue carrying out work that they have been carrying out for years or decades, or at worst close down their businesses?

VSCCS public consultation

2011-02-05T12:30:00.002+11:00

The RTA have extended the period for comment on the regulatory changes required to implement VSCCS until 28th February.

With the overall design of the scheme having been presented essentially as a fait accompli, it would appear that the only way that anybody can comment on the scheme in general is to do so via this public consultation on the regulatory changes. As such, I would urge anybody who is concerned about the proposed scheme to take some time to read about it at the link below and submit comment to the RTA.

While the RTA suggest that submissions must be made using the template provided, I know that some people have made written submissions without using the template because they felt that the template did not fit the needs of their submission.

http://www.rta.nsw.gov.au/registration/authorisedinspectors/vsccs/index.html

VSCCS part 2 - insurance requirements

2011-02-04T10:00:00.055+11:00

As part of the VSCCS proposal, there is a requirement for mandatory insurance. A certifier (the word engineer is gone because many of the people eligible to join the scheme will not be engineers) will be required to have a minimum of $1M Professional Indemnity (PI) insurance and $10M General Liability insurance, and to maintain run-off cover for those insurances for a minimum of 7 years after leaving the scheme. Those insurances have to be through APRA-approved insurers.

PI insurance is what covers the certifier if someone claims that they certified something that was unsafe, fraudulent, etc.. General Liability insurance is to cover claims such as someone injuring themselves at the certifier's office or because of the presence of a certifier at a site, such as tripping over equipment owned by the certifier. Insurance works on a claims made basis, which, for PI, tends to be after something goes wrong, some time after certification. Hence, there remains a risk of having a claim made against a certifier years after they cease working. The same doesn't really apply for general liability, because the claim will usually arise directly from something that happened while they were still working. Hence, while there is a valid argument in support of having PI run-off cover in case of legal action after retirement, I believe that it is very hard to justify a requirement to have 7 years of run-off cover for general liability.

There is precedent for the RTA specifying this insurance requirement. VicRoads already have a scheme that imposes a similar requirement for insurance. Unfortunately, the VicRoads scheme has already caused problems. I'm advised that one engineer was sued and even though he apparently won the case, his insurer declined to insure him again, which he was required to declare when he applied for insurance elsewhere. That effectively meant that all insurers refused to cover him, leaving him without the mandatory insurance, forcing him off the scheme immediately. While I don't know whether the VicRoads scheme has a run-off requirement like the RTA proposal, the same scenario in NSW would leave the certifier in breach of the run-off cover provision of the regulation, resulting in a fine.

It has been suggested to me that if a certifier fails to maintain run-off insurance, it doesn't necessarily end with just a fine. The RTA could take the certifier to court for not having the insurance, and seek to have the court order that the certifier obtain that required insurance, even if all insurers have refused it. It's quite a circular problem, and the only way to avoid it is not to join the VSCCS in the first place.

The obvious question is why do the RTA want to force certifiers to have insurance? The answer appears to be that the goal is to put the certifier and their insurance between any potential claim and the RTA. Interestingly, I came across a situation some years ago where a company wanted to specify insurance requirements for a sub-contractor, but changed their mind very rapidly when they were advised that the act of prescribing that insurance requirement could potentially make the company jointly liable in the event of any insurance claim against that sub-contractor, whereas if they didn't specify an insurance requirement, they would be very unlikely to have any liablity if a claim was made against the sub-contractor.

I suspect that the RTA could find themselves in a similar situation, particularly since the VSCCS brings certifiers far closer to the RTA than the signatories are in the present ECS. In the present scheme, signatories produce engineering certificates on their own letterhead, in a format prescribed by the RTA. Under VSCCS, the certification would be done on the RTA's web site, then an RTA document generated.

The decision whether or not to have insurance is a commercial decision by a business operator. From discussion with many of the existing engineering signatories, I have learnt that some have PI but many do not. I personally do have PI, having obtained it within the first few months after establishing my business in late 1998 and maintained continuous cover ever since.

While the entire question of prescribing an insurance requirement appears problematic, I've recently become aware of yet another issue that may present an insurmountable obstacle for many of the existing engineering signatories. A signatory who is aged 70 enquired about PI insurance and was advised by at least one insurer that they would not provide PI to a person aged 70. I do not know at this stage whether this is an industry-wide position, and if so, what the actual cut-off age is. If it's 70, then to have 7 years of run-off cover, a certifier would have to have retired by the age of 63. If the cut-off is less than 70, the forced retirement age under the scheme would be correspondingly younger.

This presents two significant problems. The first is that many existing signatories are already aged 63 or over, and this insurance requirement would make it impossible for them to continue to operate their established businesses. The second is that those people who would be in the scheme for only a few years would need to save up enough money to cover that run-off period, when the cessation of their business makes them unable to claim input tax credits or tax deductions on the premiums.

The mandatory insurance requirements, particularly the run-off requirement, will directly act as a restraint of trade, preventing otherwise suitable people from earning an income whilst providing a necessary service.

Hence, here's another question in regards to the proposed VSCCS scheme, which I believe needs to be answered by the NSW Minister for Roads, The Hon. David Borger, MP:

Will the minister please explain why the mandatory insurance requirements have been built into the proposed scheme that has been developed by the RTA under his government?

VSCCS part 1 - establishing need

2011-02-02T21:00:00.015+11:00

EDIT: Please note that this is one in a series of posts. If you've followed a link to just this one post, click here to go to the whole blog.

This is planned to be the first in a series of posts on the NSW Roads and Traffic Authority's (RTA's) proposed Vehicle Safety & Compliance Certification Scheme (VSCCS), which is intended to replace the existing Engineering Certification Scheme (ECS), which has been operating without significant alteration since 1994.

There are 2 separate sets of rules when it comes to modifying vehicles. One is the vehicle construction standards including Australian Design Rules and codes of practice for modifications. The other set of rules are the operating rules for how vehicle certifications are issued. VSCCS and ECS relate to those operating rules, not to the construction standards. The RTA is presently proposing to make changes to the construction standards as well, and if I write about them, I will do so in separate posts to avoid mixing the two.

There are many people within the vehicle industry in NSW who are very concerned about the proposed scheme, and the goal of these blog posts is to summarise some of the concerns that have been raised and explain why it is important that the regulatory changes for the implementation of this scheme not be rushed through and approved by the state government prior to the NSW state election in March.

It is my hope that, by setting out the concerns that I am aware of regarding the scheme, stakeholders, RTA staff, politicians and the general public will be more informed about those issues. I welcome feedback from all sources.

Establishing the need for a new scheme

In any business, whether private or public, there is always a process to be followed in determining whether an existing business practice needs to be fine tuned, substantially altered or completely replaced, and that process must inevitably precede any of those activities.

The RTA has decided that the ECS is to be replaced with the VSCCS.

Clearly, if the existing scheme is working effectively, there is no reason to replace it and hence no reason for any expenditure on developing a new scheme. If the existing scheme has small problems but is generally functioning well as most participants appear to believe, there is clear justification for developing amendments to resolve those problems, at a far smaller cost than developing a new scheme.

To date, no information has been made public as to what the identified deficiencies of the ECS are, or why they cannot be resolved by minor changes to that existing scheme. In the absence of public information, people outside the RTA are asking whether any such process was ever undertaken. The official RTA response to date is that The ECS has been around since the 1970s and it's time to replace it. Taking this statement at face value, it would appear that there is no justification for the by now quite significant expenditure of taxpayers' money on the VSCCS and possible earlier proposed schemes.

While I am not personally familiar with the history of the ECS prior to 1994, I do know that the list of signatories was re-started in 1994, with all existing signatories at that time having to apply to join the new list, but not requiring re-assessment of qualifications and experience. Whether there was a substantive change to the underlying scheme, I do now know. When I applied to join the ECS in August 1998, I was told that the ECS was to be replaced with a new scheme and new people were not going to be accepted into the existing scheme. In December 1998, I was advised that due to delays in the implementation of the new scheme, I was going to be allowed to join the existing scheme at that time.

The current NSW state Labor government took power in 1995, the year after the existing scheme began to operate in its present form, and based on the above information, I believe that work on some form of new scheme proposal has been ongoing since at least 1998, which is almost the entire life of the present government.

Hence, there are a few questions in regards to establishing the need for the proposed VSCCS scheme, which I believe need to be answered by the NSW Minister for Roads, The Hon. David Borger, MP:

Was due process followed in determining that a new scheme needed to be developed to replace the Engineering Certification Scheme rather than making minor changes to that existing scheme, and if so, will the minister release documentary evidence of this?
What major deficiencies were identified in the existing Engineering Certification Scheme to necessitate the development of a new replacement scheme rather than making minor changes to the existing scheme?
Have there been stillborn attempts to develop a new scheme, or is the VSCCS the result of work dating from 1998 or earlier?
What is the total expenditure on the proposed scheme or schemes intended to replace the Engineering Certification Scheme since at least 1998?
Will the minister make a commitment to the hundreds of thousands (or more) affected NSW voters that the enabling regulatory changes for the implementation of the VSCCS will not be approved by the government prior to the state election in March?

The "Car Hoons" news release

2009-07-22T15:43:00.003+10:00

On Thursday, 16th July 2009, NSW Minister for Roads, Michael Daley MP released a News Release titled Tough New Rules for Car Hoons.

The intent of the announcement was ostensibly to crack down on "car hoons" who drive vehicles that the minister thinks are unsafe.

Unfortunately, the content of the news release is factually inaccurate and the minister (or whoever wrote the news release for him) clearly either does not know or understand the content of the NSW RTA Code of Practice for Light Vehicle Modifications, the Australian Design Rules and Schedule 2 of the Road Transport (Vehicle Registration) Regulation 2007, or is misrepresenting that code of practice and those legislative instruments.

The majority of the "car hoons" that the minister seeks to regulate more strictly are driving vehicles that are not legal. That's right, not legal. Some may have documentation that makes them appear legal, but proper inspection would reveal either that the vehicles are not consistent with that documentation or that the documentation has been issued in error. So, if the people that will be affected are not these "car hoons", who are they? The answer is almost everybody else.

Examples of people affected include ordinary motorists who replace sagged, worn out suspension springs in their vehicles; infrastructure corporations such as rail maintenance and electricity companies; farmers and hunters who have their vehicles raised for normal day to day farm operations; grey nomads who have heavy duty springs and tyres fitted to their 4WDs so that they can tow their caravan or camping trailer to visit remote parts of the country; predominantly family oriented 4WD enthusiasts and clubs; charity groups who are helped by 4WD clubs to take terminally ill children to places that they couldn't otherwise access; environmental rehabilitation groups who are assisted in removing rubbish by 4WD clubs; emergency response groups including SES; 4WD tour operators; participants in charity bashes; the residents of remote communities for whom 4WD tourism is the basis of their local economy; hot rod and modified car owners and all of the industries that support these people in their activities.

What is the minister's definition of a "car hoon"? Elsewhere, he refers to "young hoons". Given that some of the people affected are senior citizens, what is the minister's definition of "young"?

The real problem is that the government have starved the RTA and Police Force of the funding required to effectively operate, let alone training Inspectors for Vehicle Regulation (IVRs) and Police Officers, and to assist in ongoing review and training of Engineering Signatories to ensure that the existing system operates as intended. This is not just my personal opinion, but is based upon public and private statements made by IVRs, police officers, RTA staff and other signatory engineers since the current labor government, then led by Bob Carr, came to power in 1995.

For example, a few years ago, a Highway Patrol police officer stated in a usenet news group that they couldn't get funds to purchase paper for their photocopier, but that they could use petrol that cost more than the paper and waste considerable time to drive to another station and back to collect a ream of paper, because the fuel was in a different budget.

As an engineering signatory, I have offered to run a training "question and answer" sessions for local Highway Patrol Police Officers several times over the past decade. The officers and Patrol Commander that I suggested it to were positive about the idea, but it went no further because there is simply no funding available to do it.

So we have unsafe, illegally modified vehicles being driven on the roads, with the Police and RTA not having the resources and training necessary to detect and defect all of those vehicles. The minister's solution is to change the rules, thinking that the vehicles are actually legal because they haven't been defected. The new rules can only be described as draconian, misguided and almost certainly unworkable. The irony is that they won't have the slightest effect on the illegally modified vehicles that were ostensibly the target. Drivers of illegally modified vehicles will continue to operate those vehicles outside the law, regardless of how strict those laws are made.

So lets take a look at a few statements from the news release.

"At the moment, vehicles can be raised or lowered by up to 5 centimetres without approval, and by up to 15 centimetres with authorised engineering approval."

The statement is completely and utterly false. It may have come about from an attempt to simplify the actual rules, but the result is nowhere the truth. Under the existing Code of Practice, vehicles can be raised or lowered by up to 1/3 of the original suspension clearance without requiring certification. This is a direct function of the vehicle design, varying from less than 20mm on some cars to around 70mm on some 4WD vehicles.

The 15cm limit with an engineering certificate does not exist in any way, shape or form. To raise or lower a vehicle by more than the 1/3 of suspension clearance described above, the design of suspension must be changed or an entirely different suspension fitted in place of the original. In these situations, the design of the suspension and the position of that suspension relative to the chassis rails will determine the resulting height of the vehicle. This means that there is no defined 15cm limit. For example, a light commercial vehicle from the 1920s to 1950s that is fitted with more modern suspension components might be lowered by more than 15cm, bringing its front bumper bar to around the same height as a modern vehicle, and hence improving not only its handling and braking but also its compatibility with modern vehicles in a crash.

If the existing 1/3 of suspension clearance rule is replaced with a blanket 50mm limit with certification, as proposed, many cars will now be able to be lowered further than is presently legal, and well beyond the vehicle manufacturer's recommendations. The initial version of Vehicle Standards Information sheet 50, the RTA policy document that attempts to implement this ministerial directive is ambiguous on this point.

"I don't want to see young hoons putting their lives or the lives of others at risk, just because they think their car looks better 15 centimetres closer to the ground."

This statement is remarkable in how it shows how out of touch with reality the minister is. For cars newer than the 1960s, it would be a genuine struggle to physically lower them by 15cm without major modifications. Even ignoring for a moment the legislated requirement for a minimum ground clearance of 10cm (or more depending on wheelbase), the physical modifications required to lower a car 15cm would essentially require the removal of the entire suspension and could certainly never be legal. On a few models of 4WD passenger vehicles, lowering them can be physically possible because they are a raised version of a normal height car, but they cannot be legal at that height because they change ADR category (MC to MA) due to that lowered height, and they cannot be shown to comply with the ADR requirements for that changed category.

Perhaps the minister can name a model of car popular with "young hoons" that has an original ground clearance of at least 25cm, such that it can be lowered 15cm and still comply with the ADRs and maintain the legally required 10cm?

"It can affect handling, braking and safety features such as electronic stability control."

A correct statement, but the assumption that the effect is automatically negative is remarkably naiive, as is the assumption that vehicles where these are negatively affected will be legal.

Many older vehicles that are lowered are done so as part of modernising the suspension and improving the vehicle dynamics including handling and braking. Such vehicles usually have their other safety features improved at the same time, such as by fitting seatbelts, a collapsible steering column, windscreen washers and demister and improved windscreen wipers. Encouraging such vehicles to continue to be driven without these modifications would be to discourage safety improvements.

Modern safety features already limit the extent of modifications that can be carried out on vehicles. For example, because the dynamics of how the front of a vehicle collapses in a crash are critical to the operation of SRS airbags, 4WD vehicles that are equipped with SRS airbags cannot be fitted with a body lift, (spacing the body up on the chassis) unless it is possible to prove that the SRS system will not be adversely affected by the body lift. To date, I have never seen such proof for any vehicle model, and body lifts are not legally fitted to any SRS airbag equipped vehicle that I know of.

For vehicles where ESC is fitted, a similar situation applies, with alterations in suspension height and tyre diameter being restricted. As I understand it, aftermarket companies in the USA now offer "piggyback" computers to re-tune the ESC system to compensate for suspension height and tyre diameter changes. Aftermarket companies in Australia already offer re-tuning kits for ESC on several models of car. This needs to be addressed specifically for ESC equipped vehicles rather than trying to apply a rule relating to ESC to vehicles that are not fitted with it. When there is an Australian Design Rule that mandates the performance of ESC, such recalibration will be mandatory for continued ADR compliance.

"Raising a vehicle's suspension can also reduce the driver's ability to see pedestrians and cyclists, and higher headlights can startle other road users,"

Is the minister allowing Harold Scruby to write his speeches for him?

Raising a vehicle within the limits of safe and predictable handling and within the ADR prescribed limits for light heights, including the ADR prescribed legal maximum height for headlights effectively limits any adverse reduction in vision of pedestrians and cyclists close to the vehicle while improving vision of people and objects further away.

For vehicles 1994 and newer, ADR 8/01 also prescribes a Primary Vision Area, and legal raising of such vehicles is limited by the ability to maintain compliance with that requirement.

An ADR compliant headlight installed at a height within the prescribed limits of the ADRs and adjusted in accordance with those rules is legal in NSW according to the Road Transport (Vehicle Registration) Regulation 2007.

Again, the minister appears to be confusing illegally modified vehicles with legally modified vehicles.

If the minister is genuinely concerned about vehicle lights startling other drivers, it would be far more productive for him to act upon the continued widespread illegal use of front and rear fog lights and the failure of the checking of headlight aim during registration inspections. It is over a decade since an RTA IVR told my then employer to "at least wipe the dust off the top" of his headlight aim testing machine "so that it looks like it has been used". Judging by the number of vehicles driving around with obviously misaimed headlights today, this problem appears to remain widespread.

"Mr Daley said any vehicle being raised or lowered would require certification stating the modifications conform to safety standard requirements."

This proposal means that many vehicles that presently wouldn't require certification will require certification in the future. Leaving aside the issue of how it is determined whether a vehicle was raised before or after the implementation of these new rules, there are the connected issues of the fact that many new vehicles are raised within this range by rural new vehicle dealers before delivery, and the availability and distribution of engineering signatories across the state. Quite simply, the economic implications of requiring certification of these vehicles are staggering and the limited availability of signatory engineers makes it virtually impossible to implement.

"The changes also mean any modifications must meet specific requirements such as the vehicle having at least 10 centimetres ground clearance."

This is a misrepresentation of the current situation. Regardless of whether a vehicle is certified or not, the 10cm minimum ground clearance requirement is already an enforceable requirement within Schedule 2 of the Road Transport (Vehicle Registration) Regulation 2007. It is not a new requirement. I also understand that regulations governing licensed vehicle repairers makes it an offence for them to modify a registrable vehicle such that it does not comply with the ADRs or state regulations. Again, the minister appears unfamiliar with the existing legislation and appears to be confusing illegally modified vehicles with legally modified vehicles.

"Vehicles raised above the 5 centimetre limit will only be granted conditional registration for use under specified conditions like competing in an off road competition."

This assumes that vehicles raised by more than 5cm are not "daily use" vehicles. That is an assumption that many people in rural NSW would dispute. During the debate about banning bullbars in urban areas a few years ago, one farmer who had to travel to Sydney on a regular basis to take his then pregnant wife to see a specialist asked whether this would mean that he would have to unbolt the bullbar from his vehicle and chain it to a post on the side of the Great Western Highway on every trip. Conditional registration that limits the use of raised vehicles in the city, as Mr Daley's policy advisor has apparently stated as being part of the intent, would seem to imply that rural people would have to change their suspension during each trip. An obviously absurd and impossible proposition.

This also assumes that the vehicle owner is rich enough to pay to buy an additional vehicle and pay for registration and insurance on an additional vehicle. So much for the Aussie Battler.

I note that the method of implementation of this announcement is by way of a policy document issued by the RTA, and not by legislation. It is extremely worrying that the rule has not been the subject of parliamentary scrutiny and has not apparently been the subject of any consultation with any affected groups outside the RTA.

I call upon the minister to immediately order that Vehicle Standards Information sheet 50 be rescinded, and given that the minister appears to have displayed gross incompetence and appears to have lost the confidence of a significant portion of the voting population of NSW, I call upon the minister to resign.