LEVENTE’S DRAFT PAPER ON EXHAUST LAWS

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LEVENTE’S DRAFT PAPER ON EXHAUST LAWS

LEVENTE’S  DRAFT PAPER ON EXHAUST LAWS 

Introduction

 

1. On the whole, the sportbike community is a law-abiding one. According to Kevin Cameron’s oft-quoted definition, “A sportbike is a motorcycle whose enjoyment consists mainly from its ability to perform on all types of paved highway – its cornering ability, its handling, its thrilling acceleration and braking power, even (dare I say it?) its speed.”1 Each of those attributes may be enjoyed without breaking the law and the road rules are usually clear enough.

2. Great effort, expense and pride can go into modifying and personalising a motorbike, whether to increase its dynamic performance, or to enhance its safety, or to add to its visual appeal. Most often, modifying and personalising a motorbike involves a combination of all three of those things.

3. In a majority of cases, the first modification that a rider makes to his or her motorbike is to install an aftermarket exhaust, whether a whole system or some components of it. There are probably two reasons for that: first, an aftermarket exhaust satisfies each of the three aforesaid outcomes of modification and personalisation; and secondly, it is a relatively simple and inexpensive modification.

4. In this paper, a reference to an “aftermarket exhaust” is a reference a motorbike’s exhaust system, or any components of it – header (manifold), mid-pipe and muffler – that is intended to replace the stock or factory fitted exhaust system. It may be accepted that in a majority of cases – but not in all cases – the aftermarket exhaust is louder than the stock or factory fitted exhaust.

1 Cameron, Kevin (1988), Sportbike Performance Handbook, Saint Paul, Minnesota; Motobooks Workshops at page 5.

5. For the past few years, Queensland Police and officers from the Queensland Department of Transport and Main Roads have been issuing “defect notices” to riders in respect of aftermarket exhausts being fitted to their motorbikes. In some cases, defect notices were issued as a result of sound level testing. In other cases, simply having an aftermarket exhaust fitted resulted in a defect notice being issued, or attracted a police caution.

6. The consequences of a motorbike being found to be defective due to a louder aftermarket exhaust ranges from serious (substantial fines and demerit points) to draconian (under the so-called “anti-hoon laws” pursuant to the provisions of the Police Powers and Responsibilities Act 2000 (Qld), the motorbike can be impounded or even forfeited to the State).

7. It is, therefore, imperative that riders (on the one hand) and police and other relevant officers (on the other hand), clearly know what the regulatory provisions concerning aftermarket exhausts and motorcycle noise emissions are so that the former can comply with them and the latter can effectively enforce them.

8. One would imagine that as much ought to go without saying. Sadly, however, that seems not to be the case. There appears to be confusion on both sides as to what the relevant provisions allow and prohibit, and precisely where that line is.

9. For the avoidance of any doubt, this paper is not intended, nor should it be relied upon, as legal advice. Rather, in the time available to me, it is a convenient way to:

(a) draw together in one document the relevant provisions of numerous interrelated regulatory and other instruments relevant to aftermarket exhausts and motorcycle noise emissions (which for the lay person can be hard to find);

(b) set out the relevant provisions of those instruments; and

(c) respectfully offer solutions to the some of the difficulties of construction and drafting that those instruments are vexed with.

10. That said, the views and conclusions expressed in this paper on issues of law are my sincerely held views as a barrister and I would have no hesitation in making submissions to a Court consistent with such views.

11. Without naming them, I thank those that have assisted me in preparing this paper. Of course, any errors remain my own.

 

Part B — The Regulations

 

12. The primary regulation is the Transport Operations (Road Use Management— Vehicle Standards and Safety) Regulation 2010 (Qld) (herein called “the Regulations”), which is available at the following URL: https://www.legislation.qld.gov.au/LEGISLTN/CURRENT/T/TrantOpRUVSSR10.pdf

13. The Regulations are regulations made under the Transport Operations (Road Use Management) Act 1995 (Qld) (herein called “the Act”), which is available at the following URL: https://www.legislation.qld.gov.au/LEGISLTN/CURRENT/T/TrantOpRUA95.pdf

14. Part 2 of the Regulations is headed “Vehicle standards”.

15. Relevantly, sections 4 and 5 of the Regulations appear within Part 2.

16. Section 4 of the Regulations provides as follows:

Vehicle standards

(1) The vehicle standards are based on the Australian Vehicle Standards Rules 1999 contained in the National Transport Commission (Road Transport Legislation—Vehicle Standards) Regulations 2006 (Cwlth), schedule 2 to the extent the rules apply to light vehicles.

(2) The vehicle standards are set out in schedule 1.

17. “Light vehicle” is broadly defined in Schedule 4 to the Regulations as: a vehicle (including a combination) that is not a heavy vehicle.

18. “Light motor vehicle” is defined in Schedule 4 to the Regulations as: a motor vehicle that is a light vehicle.

19. A “light vehicle” and “light motor vehicle”, therefore, include motorbikes.

20. For completeness, “motorbike” is relevantly defined in Schedule 4 to the Regulations as: a light motor vehicle with 2 wheels, and includes a 2-wheeled light motor vehicle with a sidecar attached to it that is supported by a third wheel.

21. Section 5 of the Regulations provides as follows:

Compliance with vehicle standards

(1) A person must not drive or park, or permit someone else to drive or park, a light vehicle on a road—

(a) unless—

(i) the vehicle is fitted with the equipment (the equipment) mentioned in, or required by, the vehicle standards, other than optional equipment, that is appropriate to the vehicle; and

(ii) if the vehicle is fitted with the equipment—the equipment complies with the requirements specified in the vehicle standards; and

(iii) the vehicle is otherwise constructed and loaded to comply with the vehicle standards; and

(iv) the vehicle, its parts and equipment are in safe condition; and

(v) optional equipment fitted to the vehicle complies with the requirements in the vehicle standards for the optional equipment; and

(vi) the stationary noise level of the vehicle complies with the vehicle standards; or

(b) if the vehicle is not unsafe, but it is otherwise defective.

Maximum penalty—20 penalty units.

22. Section 5 of the Regulations draws a distinction between “the equipment” and “the optional equipment”. The same dichotomy appears in section 7 of the Regulations that deals with defective light vehicles.

23. It is clear enough that “the equipment” is equipment that is fitted to the vehicle mentioned in or required by the vehicle standards. In other words, it is the standard equipment, presumably including original equipment manufacturer (OEM) parts, that a new motorbike is delivered with from the showroom floor.

24. However, what is meant by “optional equipment”? Unhelpfully, neither the term “optional equipment” nor the word “optional” is defined in any of:

(a) the Regulations;

(b) the Act;

(c) Australian Vehicle Standards Rules 1999 contained in the National

Transport Commission (Road Transport Legislation—Vehicle Standards)

Regulations 2006 (Cth), which is available at the following URL: https://www.comlaw.gov.au/Details/F2007C00149; or

(d) Motor Vehicle Standards Act 1989 (Cth), which is available at the following URL: https://www.comlaw.gov.au/Details/C2015C00150.

25. In the absence of a specific statutory definition, what is meant by “optional equipment” is left to be determined by its ordinary English meaning.

26. The adjective “optional” is defined by the Macquarie dictionary as:

• left to one’s choice;

• leaving something to choice.

27. The Oxford dictionary defines the word in the same terms and adds: a matter of choice; depending on choice or preference; not obligatory.

28. Accordingly, “optional equipment” is equipment that is left to one’s personal, free choice or preference. It is not obligatory, or prescribed, or compulsory. Of course, in the circumstances, the one exercising the choice or preference must be the owner of the motorbike.

29. In my view, “optional equipment” includes aftermarket exhausts. It is equipment that the owner has chosen to fit to his or her motorbike.

30. Accordingly, read alone, sub-sections 5(1)(a)(v) and 5(1)(a)(vi) of the Regulations would permit an aftermarket exhaust to be fitted to a motorbike, and for a motorbike fitted with an aftermarket exhaust to be driven (ridden) on a road, if the aftermarket exhaust complies with the vehicle standards, including the applicable stationary noise level.

31. That, then, requires consideration of what are the vehicle standards applicable to aftermarket exhausts and the stationary noise levels applicable to motorbikes.

 

Part C — The Vehicle Standards

 

32. Schedule 1 to the Regulations is headed “Vehicle standards” (herein called “the Vehicle Standards”). It set standards that vehicles must comply with to be driven or ridden on roads. In most cases, if a vehicle complies with the vehicle standards, it is suitable to be used on a road.

33. Part 2 of the Vehicle Standards is headed “Australian Design Rules”. It contains provisions concerning the applicability of, and compliance with, the Australian Design Rules (herein called “ADR”).

34. For the purposes of this paper, it is presumed that all motorbikes comply with the applicable ADR. It is beyond the scope of this paper to consider pre-ADR, ADR exempt or custom built and certified motorbikes.

35. Part 9 of the Vehicle Standards is headed “Control of emissions”.

36. Division 2 of Part 9 is headed “Exhaust systems” and contains section 130.

37. Section 130 of the Vehicle Standards provides as follows:

Exhaust systems

(1) The outlet of the exhaust system fitted to a motor vehicle, other than a

bus, must extend—

(a) behind the back seat; and

(b) at least 40mm beyond the outermost joint of the floorpan that is not continuously welded or permanently sealed; and

(c) to the edge of the vehicle, if—

(i) the body of the vehicle is permanently enclosed; and

(ii) the vehicle is not fitted with a vertical exhaust system; and

(d) no further than the edge of the vehicle at its widest point.

(2) The outlet must discharge the main exhaust flow to the air—

(a) if the vehicle is fitted, or required to be fitted, with an exhaust system with a vertical outlet pipe—

(i) at an angle above the horizontal; and

(ii) at least 150mm above the cab of the vehicle; and

(iii) towards the rear, or to the right, of the vehicle; and

(b) in any other case—

(i) horizontally or at an angle of not over 45° downwards; and

(ii) under 750mm above ground level; and

(iii) towards the rear, or to the right, of the vehicle.

(3) Subsections (1) and (2)(b) do not apply to a light vehicle—

(a) primarily designed for the carriage of goods; and

(b) with either—

(i) 3 wheels and a GVM of more than 1t but not more than 12t; or

(ii) more than 3 wheels and a GVM of not more than 12t.

38. Section 130 of the Vehicle Standards is the only section in the Vehicle Standards that deals with exhaust systems. However, it is not immediately apparent to me how section 130 of the Vehicle Standards could apply to motorbikes, despite it stating that it applies to all motor vehicles other than buses.

39. For example, subsection 130(2)(b)(i) requires that “the outlet must discharge the main exhaust flow to the air… horizontally or at an angel of not over over 45° downwards”. To my knowledge, the exhaust system on most, if not all, sportbikes discharge the exhaust flow horizontally or at an angel upwards. It also seems awkward to speak of a motorbike having a “back seat” or a “floorpan”.

40. In any event, it is beyond the scope of this paper to consider physical size or placement of aftermarket exhausts, etc. The scope of this paper is limited to noise emissions from aftermarket exhausts.

41. Division 3 of Part 9 is headed “Noise emissions”.

42. Subdivision 1 of Part 9, Division 3, is headed “General” and contains sections 131 to 133.

43. Section 131(1) of the Vehicle Standards provides as follows:

Measurement of stationary noise levels

For this regulation, the stationary noise level of a motor vehicle must be measured in accordance with the procedure set out for the kind of vehicle in the document entitled ‘National Stationary Exhaust Noise Test Procedures for In-Service Motor Vehicles – September 2006’ published by the commission.

44. The “National Stationary Exhaust Noise Test Procedures for In-Service Motor Vehicles” published in September 2006 by the National Transport Commission and referred to in section 131(1) of the Vehicle Standards is available at the following URL: http://www.pexcom.com.au/images/NatStatExhaustNoiseTestSept2006-2.pdf

45. Section 132 of the Vehicle Standards provides as follows:

Meaning of certified to ADR 83/00

For this regulation, a vehicle is certified to ADR 83/00 if approval has been given, under the Motor Vehicle Standards Act 1989 (Cwlth), section 10A, to place identification plates showing compliance with ADR 83/00 on vehicles of that type.

46. The reference to “ADR 83/00” is a reference to the Vehicle Standard (Australian Design Rule 83/00 — External Noise) 2005, which is available at the following URL: https://www.comlaw.gov.au/Series/F2005L03523

47. Section 133(1) of the Vehicle Standards provides as follows:

Silencing device for exhaust systems

A motor vehicle propelled by an internal combustion engine must be fitted with a silencing device.

48. Section 133(2) of the Vehicle Standards provides a definition of the term “silencing device” limited to “this section” as follows:

a device—

(a) through which all the exhaust from the engine passes; and

(b) if the device is designed to be manipulated by a person—capable of being tested while the device is fully open.

49. Although that definition is expressly limited to only section 133 of the Vehicle Standards, as the Regulations contain no other definition of “silencing device”, I shall proceed on the basis that it is intended to apply to the whole of the Regulations and the Vehicle Standards, not just section 133 of the Vehicle Standards.

50. Subdivision 2 of Part 9, Division 3, is headed “Noise levels applying to vehicles not certified to ADR 83/00” and contains sections 134 to 137.

51. Section 134 of the Vehicle Standards provides that Subdivision 2 “applies to a motor vehicle other than a vehicle certified to ADR 83/00”.

52. Section 135 of the Vehicle Standards – which applies to non-ADR 83/00 certified vehicles – relevantly provides as follows:

Stationary noise levels—cars, car derivatives, motorbikes and motortrikes

The stationary noise level of a car, car derivative, motorbike or motortrike must

not be more than—

(a) …

(b) …

(c) for a motorbike or motortrike built after February 1985—94dB(A); or

(d) for another motorbike or motortrike—100dB(A).

53. Subdivision 3 of Part 9, Division 3, is headed “Noise levels applying to vehicles certified to ADR 83/00” and contains section only section 138.

54. Section 138 of the Vehicle Standards provides as follows:

Stationary noise levels

The stationary noise level of a motor vehicle that is certified to ADR 83/00 must not exceed, by more than 5dB(A), the noise level that is established for the motor vehicle when it is certified.

55. It will be noted that way in which noise level limits are calculated for non-ADR 83/00 certified vehicles and ADR 83/00 certified vehicles is different. A maximum noise level is prescribed for the former; while the latter is calculated by the noise level limit that was established for each vehicle when it was certified plus no more than 5dB(A).

56. Accordingly, the maximum stationary noise levels for motorbikes are as follows:

(a) for a motorbike certified to ADR 83/00 – the noise level that is established for it when it was certified plus no more than 5dB(A);

(b) for a motorbike not certified to ADR 83/00 and built after February 1984 – 94dB(A); and

(c) for a motorbike not certified to ADR 83/00 and built in or before February 1984 – 100dB(A).

57. Were the Regulations to end there, the position would be perfectly simple: a motorbike, whether fitted with a stock or factory fitted exhaust or an aftermarket exhaust would comply with the Vehicle Standards and the Regulations – and hence be suitable to be lawfully used on a road – if the maximum stationary noise level referred to in the immediately preceding paragraph hereof applying to the particular motorbike was complied with. Exceeding those levels constitutes an

offence pursuant to section 5 of the Regulations.

58. For example, the 2015 Aprilia Tuono 1100 is certified to ADR 83/00 at a noise level of 107db(A) at 5,500 rpm. The maximum stationary noise level for that motorbike would, therefore, be 112db(A) at 5,500 rpm, being 107db(A) plus 5dB(A).

 

Part D — The Prohibition on Modifications

 

59. Unfortunately, things are not that simple in respect of ADR 83/00 certified vehicles. That is because sub-sections 10(1)(d) and section 11 the Regulations (which also appear within Part 2) contain a partial prohibition on performing a modification to a silencing device and driving a vehicle on a road containing a modified silencing device. That prohibition creates confusion with the otherwise clear provisions of the Vehicle Standards.

60. Sub-section 10(1)(d) of the Regulations provides as follows:

Modifying light vehicle

(1) A person must not—

(a) …

(b) …

(c) …

(d) modify a light motor vehicle’s silencing device if the modification reduces, or is likely to reduce, the effectiveness of the device.

Maximum penalty—20 penalty units.

61. Section 11 of the Regulations provides as follows:

Modified silencing device

A person must not drive a light motor vehicle on a road if the vehicle’s silencing device has been modified to reduce, or to be likely to reduce, the effectiveness of the device.

Maximum penalty—20 penalty units.

62. In my view, fitting an aftermarket exhaust to a motorbike constitutes modifying its silencing device.

63. The prohibition contained in those sections is partial because modifying a vehicle’s silencing device, or driving a vehicle on a road with a modified silencing device, is prohibited only if the modification results in the effectiveness of the device being reduced, or likely to be so. It is not an outright prohibition or blanket-ban on any kind of modification to a vehicle’s silencing device.

64. In other words, pursuant to sub-section 10(1)(d) and section 11 of the Regulations, modifying a vehicle’s silencing device, or driving a vehicle on a road with a modified silencing device, is permitted if the modification did not reduce the effectiveness of the device.

65. That is important because other modifications are prohibited outright. For example, sub-section 10(1)(a) of the Regulations prohibits, absolutely, a person from modifying the chassis of a light vehicle.

66. Accordingly, simply having an aftermarket exhaust fitted to a motorcycle cannot result in a defect notice being issued, nor should it attract a police caution.

67. The confusion referred to above arises because there is a tension between:

(a) on the one hand:

(i) section 138 of the Vehicle Standards allowing an ADR 83/00 certified vehicle to have a maximum stationary noise level that is no more than 5dB(A) higher than the certified noise level established for that vehicle – that is, 5dB(A) louder than the certified noise level; and

(ii) sub-sections 5(1)(a)(v) and 5(1)(a)(vi) of the Regulations allowing optional equipment – which, for the reasons stated above, includes an aftermarket exhaust – to be fitted to a vehicle if it complies with the Vehicle Standards, including the applicable stationary noise level; and

(b) on the other hand, sub-section 10(1)(d) and section 11 of the Regulations prohibiting modifying a vehicle’s silencing device, or driving a vehicle on a road with a modified silencing device, if the modification results in the effectiveness of the device being reduced – that is, if the vehicle’s exhaust becomes louder.

68. Where statutory provisions are seemingly at odds, as they are here, the tension is to be resolved, if possible, by construing them – that is, interpreting or reading them – in a manner that gives each provision meaningful operation and effect.

69. Therefore, in relation to ADR 83/00 certified vehicles, the proper construction and effect of those provisions is to read the prohibition on modifications provided for in sub-section 10(1)(d) and section 11 of the Regulations as applying after allowance is made for the 5dB(A) increase in the maximum stationary noise level provided for in section 138 of the Vehicle Standards, in my view.

70. Accordingly, in relation to ADR 83/00 certified vehicles, sub-section 10(1)(d) of the Regulations ought to be construed and understood as providing:

Modifying light vehicle

(1) A person must not…

(d) modify a light motor vehicle’s silencing device if the modification reduces, or is likely to reduce, the effectiveness of the device by more than 5dB(A).

Maximum penalty—20 penalty units.

71. Similarly, in relation to ADR 83/00 certified vehicles, section 11 of the Regulations ought to be construed and understood as providing:

Modified silencing device

A person must not drive a light motor vehicle on a road if the vehicle’s silencing device has been modified to reduce, or to be likely to reduce, the effectiveness of the device by more than 5dB(A).

Maximum penalty—20 penalty units.

72. Read in that way, fitting an aftermarket exhaust to a 2015 Aprilia Tuono 1100 that results in a stationary noise level increase of no more than 5dB(A) will not contravene the Regulations or the Vehicle Standards.

 

Part E — Removing a Catalytic Converter

 

73. The Regulations are silent as to the issue concerning removing a catalytic converter from an exhaust system of a motorbike, or replacing the system with an aftermarket exhaust that does not contain a catalytic converter. Similarly, the Vehicle Standards do not contain any requirement for a motorbike to contain a catalytic converter.

74. Accordingly, it would appear that a motorbike will not be defective only because its exhaust system does not contain a catalytic converter.

75. Of course, if removing a catalytic converter from an exhaust system of a motorbike, or replacing the system with an aftermarket exhaust that does not contain a catalytic converter, causes the motorbike to exceed the maximum stationary noise levels prescribed in sections 135 and 138 of the Vehicle Standards, then the motorbike will be defective on that basis.

 

Part F — Conclusions

 

76. Simply having an aftermarket exhaust fitted to a motorcycle does not contravene any provision of the Regulations or the Vehicle Standards. It cannot result in a defect notice being issued, nor should it attract a police caution.

77. To be issued with a defect notice for contravention of sections 5, 10 or 11 of the Regulations on the grounds of excessive noise level emissions, the noise level must exceed the maximum stationary noise levels prescribed in sections 135 and 138 of the Vehicle Standards.

78. In relation to ADR 83/00 certified vehicles, the prohibition on modifications provided for in sub-section 10(1)(d) and section 11 of the Regulations should be read as applying after allowance is made for the 5dB(A) increase in the maximum stationary noise level provided for in section 138 of the Vehicle Standards.

79. In my view, it will not be accepted by a Court that any police officer, by virtue of his or her occupation, has sufficient expertise in the fields of acoustical or sound engineering such that he or she can determine the noise level of a particular exhaust (which may be contrasted with it being accepted by some that a police officer is able to judge a motor vehicle’s speed).

80. In the absence of the noise level of the allegedly offending motorbike being tested in accordance with National Stationary Exhaust Noise Test Procedures for In-Service Motor Vehicles – September 2006 pursuant to section 131(1) of the Vehicle Standards, a defect notice issued on the basis of a police officer’s subjective judgment will not sustain a conviction, in my view.

81. Finally, a motorbike will not be defective only because its exhaust system does not contain a catalytic converter.

 

Levente Jurth says he was fined by Queensland Police for having a non-standard aftermarket exhaust fitted to his 2015 Aprilia Tuono 1100.

 

He has since researched the issue and produced a lengthy 81-point draft paper based on Queensland’s laws which is printed in good faith at the end of this article for the benefit of readers. Story first seen here http://motorbikewriter.com/aftermarket-exhausts-not-illegal-barrister/