ATV crush rotection can be removed in odd consumer law loophole

Farmers who remove crush protection on all-terrain vehicles after they buy quad bikes are not breaking Australian consumer laws, in a bizarre loophole.

Owners of all-terrain vehicles who remove crush protection after they buy quad bikes are not breaking Australian consumer laws, in a bizarre loophole listed on the national product safety regulator’s website.

The revelation follows the deaths of two people at the weekend in accidents involving ATVs, one in Victoria and one in the Northern Territory.

The Australian Competition and Consumer Commission’s website says “while it does not condone the removal of an Operator Protection Device by a consumer after sale, doing so would not breach the Australian Consumer Law”.

“There may be other considerations that a consumer or workplace such as a farm or tourism provider should consider prior to making this decision such as work health and safety laws and insurance policies,” the website states.

There have been 18 deaths on quad bikes this year.

Safe Work Australia has recorded 18 deaths due to quad bike accidents this year, not including the weekend’s fatalities, compared to 13 deaths last year. There have also been deaths from side-by-side crashes.

The ACCC advice is provided despite its claim as Australia’s “product safety regulator” and that it enforces the Competition and Consumer Act 2010, which includes the Consumer Goods (Quad Bikes) Safety Standard 2019, which made crush protection mandatory.

The wording around OPDs only adds to the confusion around ATV safety according to Federal Chamber of Automotive Industries motorcycle manager Rhys Griffiths, who said the uncertainty around crush protection was a key reason his organisation’s members had stopped selling ATVs.

He said the lack of information about ATV safety extended to vehicles involved in fatalities, with no clear advice whether accidents involved four-wheel motorbikes or side-by-side vehicles.

“I keep my own records on fatalities from ATVs and side-by-sides from media monitoring as a sad part of my job, and from my tally, we are up to 27 deaths this year,” Mr Griffiths said.

A spokesman for the ACCC said the organisation did not recommend removing an OPD, despite its own website’s advice that doing so did not breech consumer law.

“In addition to providing information on the standard, the website was also responsive to stakeholder queries at the time the standard was introduced,” the spokesman said.

“We will review the information and consider updates, where necessary.”

FarmSafe Australia chair Felicity Richards said the words on the ACCC website around taking off OPDs was “not something I would encourage anyone to contemplate”.

She said she was pleased the ACCC had qualified its advice by saying users should look to state workplace laws before doing removing OPDs and was “relieved they left that there”.

“Be it as it may (the ACCC wording), we know these devices intend to take away the consequences of an accident on a quad bike,” Ms Richards said.

“We need a cultural shift on the use of quad bikes and side-by-sides so people make good decisions on their use when no one is watching.”

FarmSafe Australia chair Felicity Richards on her farm near Launceston, Tasmania.

A WorkSafe Victoria spokeswoman said quad bikes were “considerably less stable” than other vehicles and farming workplaces in Victoria had legal obligations to prevent the risk of a rollover, or reduce it as much as possible.

There are fines of up to $356,000 for individuals and $1.78 million for body corporates if Victorian authorities can prove their quad bikes failed occupational health and safety laws.

“The fact is, failing to ensure operator protective devices are properly fitted and well maintained, including by deliberately removing them, greatly increases the chance of serious injury or death if things go wrong,” the spokeswoman said.

In 2023, WorkSafe Victoria inspectors visited more than 1000 agriculture workplaces across Victoria and issued more than 470 improvement notices, some of which involved quad bikes.

In NSW, work health and safety laws require workplaces to manage risks with quad bikes overturning “such as with the installation of operator protective devices on quad bikes” a Safe Work NSW spokesman said.

Earlier this year, Integrated Agricultural Developments Pty Ltd pleaded guilty and was convicted in the NSW District Court after a 42-year-old labour hire farmhand placed at its vineyard suffered fractures to his pelvis and back when the quad bike he was riding rolled during a backburn near Orange in June 2021.

The spokesman said SafeWork NSW inspectors carried out inspections at workplaces, including farms.

But one NSW producer, who did not wish to be named, said he had never heard of inspectors coming to farms in his district, nor had one visited his operation.

The producer, who owns an ATV he bought from a major retailer within the past two years, said his dealer would not fit the crush protection “because it would be admitting liability that they could roll over”.

“I would say that it’s 50:50 over how many ATVs in our district have crush protection and how many don’t,” the producer said.

Meanwhile police will prepare a report for the coroner following an ATV roll over on private property in Ullina.

A WorkSafe Victoria spokesman said the organisation responded after the woman died.

“It is understood the 52-year-old was operating a side-by-side when it appears she has lost control and was ejected from the vehicle just after 7pm,” the spokesman said.

“WorkSafe investigators attended and will determine whether further action is required.”