by BigDon » Tue Aug 19, 2008 8:01 pm
Below is a draft of the submission I have prepared. To be clear i fully support the 95dba limit. I am just totally against how they are going about achieving it. I am also against having to pay to get a cert for something that is not safety issue.
Appreciate constructive comments.
My comments are in relation to the amendment as a whole and in particular to sections 2.7(5), (6), (7), 2.2 and 4.1 Schedule 3. I note that I am in favour of a 95dba stationary upper noise limit for all vehicles. However, I am stoically against the draconian methods proposed in the amendment to achieve this.
Vehicle owners have fitted modified exhausts and blow off valves to their vehicles within the confines of the laws (in the majority of cases) applicable at the time. This attempt to change the law (retrospectively) and impose fines and other costs (to retrofit or modify the vehicle) on vehicle owners who would otherwise have complied with existing legislation is clearly an affront to the legislative system in New Zealand.
The rule changes appear to be a knee jerk reaction towards a small minority of vehicles that may currently exceed 95dba. Those vehicle owners are unlikely to heed these new rules or simply find ways to frustrate them. This knee jerk reaction will be costly to a much wider proportion of the vehicle population than one would expect as the majority of second hand vehicles on New Zealand roads will have had their exhausts replaced with items that produce more than the factory exhaust noise.
Furthermore, as well as being contrary to the rule of law due to their retrospective nature, these proposed amendments also breach various aspects of the New Zealand Bill of Rights, including:
• Freedom of expression; and
• Presumption of innocence.
As well as commenting on the amendment as proposed and addressing the issues raised above, I suggest an alternative approach at the end of this submission.
The retrospective nature of these rules
The retrospective nature of these rules is clearly contrary to the Rule of Law:
Legislation Advisory Committee's Guidelines on Process
& Content of Legislation. See Chapter Three, Part 3 (extract):
"The general principle is that statutes and regulations operate prospectively, that is, they do not affect existing situations. ...
However, while the general principle is that legislation is prospective, not all examples of legislation which impacts on existing situations will be unfair (see Burrows, Statute Law in New Zealand, 1999, page 358). Examples of retrospective provisions which are seen as having only a benign effect include those which validate appointments, or provide for
backdated salary and benefit payments and new superannuation arrangements. The impact of the legislation on those affected can be assessed by considering a range of factors including the purpose of the legislation and the hardship of the result on those affected. For example, individuals may have a reasonable expectation based on entering into legal obligations, such as contracts, on the basis that the law will have a certain impact."
Freedom of Expression
Freedom of expression has a special status as a human right because we need it to promote and protect all human rights. It embraces free speech, the sanctity of an individual’s opinion, a free press, the transmission and receipt of ideas and information, the freedom of expression in art and other forms, the ability to receive ideas from elsewhere, and even the right to silence. We value freedom of expression because of what it means for us and what it helps us to attain.
Freedom of expression is one of a number of mutually supporting rights (including freedom of thought, of association and of assembly, and the right to vote) and is integral to other civil and political rights, such as the right to justice, and the right to take part in public affairs. Equally, the right to freedom of expression impacts on social and cultural rights such as the right to education.
Debate about freedom of expression is both wide reaching and constantly evolving in response to the development of the human mind, technological innovation and a globalised media, community practices and standards, and political and judicial responses. What is more constant is the fundamental idea that freedom of expression is designed to protect and enhance democratic ideals.
Freedom of expression has always been subject to limitations. Each of the arguments for freedom of expression accommodates some restrictions. For example, while the search for truth has permitted tolerance for offensive and unsettling ideas, perjury and false advertising are penalised. There may, too, be restrictions on the ‘time, manner and place’ of expression; for example, the time of screening of adult-only movies on public television.
This proposed amendment, however, attempts to curb a persons freedom of expression by imposing a financial cost on it. While the 95dba limit may be seen as a restriction this can be reconciled as a limitation for the benefit of others. The compliance costs involved in this cannot.
Presumption of innocence
Every person is entitled to be presumed innocent until proven guilty (if in fact ever proven guilty). The amendment does not uphold this principal. It assumes that a person is guilty (if they are ordered off the road due to a subjective text by a police officer) until they prove themselves innocent. While I agree that a police officer should be able to order a vehicle off the road.
Other discrimination
These rules will discriminate against lower socio economic groups on a number of levels.
This is because lower socio economic groups may purchase less expensive second hand vehicles that are more likely to have had exhausts replaced due to there age. Furthermore, these people are unlikely to be able to afford the costs of either having the exhausts tested, returning them to a standard noise level or in the worst case where the vehicle has been ordered off the road or failed the 95dba test, to the level of 90dba or less.
Section 2.7(5)(a)
The requirement for a subjective test is inappropriate. WOF Inspectors should have dba measuring equipment to test to the set limit and perform the objective test. This removes inconsistency that would otherwise exist across WOF Inspectors. Inconsistency which would stem both from the inspectors hearing ability, personal perception and knowledge of what a standard exhaust should sound like.
Furthermore, the subjective test of “less than or similar to the noise output from the vehicle’s original exhaust system at the time of the vehicle’s manufacture” is far too strict. If a subjective test is to be adopted it should be a not noticeably and significantly louder than the noise output from the vehicle’s original exhaust system at the time of the vehicle’s manufacture.
This also creates an anomaly where vehicles are fitted with louder exhausts by factory tuning houses before they are sold. This would mean that two equivalent model of cars could have different exhausts noise levels from manufacture. It also discriminates against persons who cannot afford a new vehicle with a modified exhaust and fit the same exhaust “aftermarket”.
Section 2.7(6)
Vehicles that fail a subjective test should be allowed to be (WOF Inspector) retested once the exhaust has been repaired. It is unreasonable not to allow a vehicle owner to repair the item to meet WOF standards before forcing them to under go Low Volume Vehicle Code (“LVVC”) objective testing. In fact, it would be contrary to the aim of this legislation as the objective noise test is 95dba (stationary) and allowing the vehicle owner to repair to a standard that is similar standard is likely to be well below this 95dba limit.
Schedule 3 (ref 2.7(4)(c)
It is also unreasonable that a vehicle, with a modified exhaust system, (that has either exceeded 95dBA when tested in accordance with subclause 3.1(3), or been prohibited from driving in accordance with a direction under section 115 of the Act regarding compliance with subclause 2.7(5)) should be subject to a lower 90dba limit.
This draconian rule encourages people to not have their exhausts tested pursuant to the LVVC because if they fail they will have to meet the lower standard. The rules should be encouraging testing (and I submit the testing should be occurring at the WOF inspection) so that all exhausts can be brought within the 95dba limit.
In respect of the situation where a vehicle has been ordered off the road pursuant to section 115, this creates two issues. Firstly the Police have performed a subjective test which as discussed above has a number of inconsistencies and may likely be incorrect, being that they are not trained mechanics. Secondly, there is a presumption of guilt. This is contrary to section 25 (c) of The Bill of Rights Act 1990.
Section 2.2
There has never been a prohibition against external venting blow off valves. To create a new rule that makes these illegal if fitted aftermarket is contrary to the rule of law on the basis that the amendment is retrospective rather than prospective. It also creates inconsistencies because factory blow of valves may vent externally and not be effectively silenced while after market ones may not.
Furthermore, it impinges on a persons freedom of expression and is inequitable because it discriminates between new vehicle owners and owners of modified vehicles.
Some blow of valves, however, may be modified to be excessively loud. Accordingly, irrespective of whether the blow off valve is fitted from factory or aftermarket it should be subject to the same 95dba noise limit as exhausts.
Alternate approach
A blanket 95dba standard could be imposed with a objective test carried out at WOF testing facilities.
This 95dba standard could be tested using simpler, readily available and less expensive equipment (with prescribed models) but with set test parameters e.g. operating vehicle rpms at 1 metre from exhaust pipe.
It is unlikely that significant variances would arise from this approach. Furthermore, it would make the rules simpler and less costly for vehicle owners, WOF inspectors and the LTA while ensuring noisy vehicles were removed from the road until they were repaired.
This 95dba limit could also be imposed on blow off valves.
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