Alcoa of Australia Ltd v Senator the Honourable John Button

Re: ALCOA OF AUSTRALIA LIMITED
And: SENATOR THE HONOURABLE JOHN BUTTON
VG No. 307 of 1983
(1984) ADMN para 96 - 025 / 55 ALR 101 / 2 FCR 13
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
Woodward J.(1)

CATCHWORDS

Administrative Law - judicial review - decision of Minister to declare fuel oil not to be entitled to drawback provisions of customs and excise legislation - whether fuel oil used in alumina production entitled to drawback in any event - meaning of expressions "used in manufacture" and "lost or wasted in manufacture" - whether Minister failed to take relevant matters into account - whether power used for legislative rather than administrative purpose.

Administrative Decisions (Judicial Review) Act 1977 s.5

Customs Act 1901 s.168

Excise Act 1901 s.79

Customs Regulations 129, 131

Excise Regulation 77

Administrative Law - Judicial review - Decision of Minister that fuel oil not entitled to drawback provisions of Customs and Exercise legislation - Whether fuel oil "used in manufacture" or "lost or wasted in manufacture" - Customs Regulation 131.

HEADNOTE

Held, that fuel oil is not "used in the manufacture of or lost or wasted in the manufacture of" alumina, for the purposes of the drawback provisions of Customs Regulation 131, which requires the restrictive interpretation that only goods incorporated in the manufactured product qualify.

HEARING

Melbourne, 1984, May 28, 29; July 19. #DATE 19:7:1984

APPLICATION.

Application for orders of review pursuant to the Administrative Decisions (Judicial Review) Act 1977 (Cth), s. 5.

A. C. Archibald Q.C. and J. G. Santamaria, for the applicant.

C. N. Jessup, for the respondent.

Cur. adv. vult.

Solicitors for the applicant: Hedderwicks Fookes & Alston.

Solicitor for the respondent: Australian Government Solicitor.

G.F.V.

ORDER

The application be dismissed with costs.

Application dismissed with costs.

JUDGE1

This application under the Administrative Decisions (Judicial Review) Act 1977 ('the ADJR Act') seeks to review decisions of the Minister for Industry and Commerce contained in two notices published in the Government Gazette on 7 October 1983. Those notices purported to declare, in effect, that a certain class of goods was not to be entitled to the benefit of drawback provisions under the Customs Act 1901 and the Excise Act 1901 which might otherwise have enabled duties previously charged on such goods to be refunded.

The class of goods in question included fuel oil and a number of related products, but the application is concerned only with fuel oil.
The notices under Customs Regulation 131 and Excise Regulation 77 were, apart from necessary changes, in identical terms and raise the same questions of law and fact. I shall confine my attention to the Customs Act 1901 and the regulations made under it. That Act provides, in s.168, that the regulations "may make provision for and in relation to allowing drawbacks of duty paid on goods imported into Australia". There is no comprehensive definition of a drawback in the Act; the Shorter Oxford Dictionary speaks of "an amount paid back from a charge previously made; especially a certain amount of excise or import duty remitted when the commodities on which it has been paid are exported".
The word has been used in this sense at least since the end of the 17th Century, and it will be necessary later to consider the development of the concept over the years.
Customs Regulation 129, so far relevant, is in the following terms:

"129.(1) This regulation applies to any imported goods on which import duty has been paid except -

(a) motor vehicles;

(b) imported goods that have been used in the manufacture of goods, or have been subjected to a process or to treatment, in the Commonwealth; or

(c) secondhand goods.

(2) Subject to these Regulations, drawback of import duty may be paid on the exportation of imported goods to which this regulation applies."

The exceptions referred to in sub-paragraphs (a) and (b) are then dealt with expressly in other regulations. It is Customs Regulation 131 which is relevant for present purposes. Its relevant sub-sections read as follows:

"131.(1) In this regulation -

"specified goods" means -

(a) manufactured goods in the manufacture of which imported goods have been used; or

(b) imported goods that have been subjected to a process or to treatment in Australia;

"imported goods", in relation to specified goods, means imported goods -

(a) on which import duty has been paid; and

(b) that have not been used in the Commonwealth otherwise than -

(i) in the manufacture of the specified goods or in being subjected to a process or to treatment for the purpose of producing the specified goods, as the case may be; or

(ii) for the purpose of being inspected or exhibited,

other than imported goods included in a class of goods declared by the Minister, by notice published in the Gazette, to be a class of goods to which this regulation does not apply.

(2) On the exportation of specified goods, drawback of import duty may, subject to these Regulations, be paid in respect of -

(a) the imported goods used in the manufacture of the specified goods; or

(b) the imported goods that were subjected to a process or to treatment for the purpose of producing the specified goods,

as the case may be, and also in respect of any imported goods lost or wasted in the manufacture of the specified goods."

The two central issues to be determined in this case are:

(1) whether fuel oil consumed at various stages of

the production of alumina is "used in the manufacture" or "lost and wasted in the manufacture" of that alumina within the meaning of the regulation, and

(2) whether, in all the circumstances of this case,

the Minister validly declared fuel oil to be part of a class of goods to which the regulation does not apply.

In order to succeed, the applicant must secure the answer "Yes" to the first question and "No" to the second.
The applicant is concerned, in Western Australia, with the production of alumina. In doing so it uses fuel oil at three different production sites. The fuel oil is used for a number of different, but related, purposes. All but one of them involves, as an intermediate step, the generation of steam, which is in turn used in the production process. The steam is not only used to drive a turbine, which produces electricity for the plant, but also reticulated for more direct use at several points in the manufacturing process.
Thus indirectly, through conversion to electrical energy, the fuel oil is used to provide, among other things, power for electrical motors used in production and for lighting. The electricity is no doubt also used for purposes more remote from the production line than these.
At the most relevant end of the range of uses to which the fuel oil is put, are two which require, for their understanding, a more detailed description of the alumina production process. What follows is a brief summary of the complex Bayer process used by the applicant, which relies upon the different solubilities of the component minerals in bauxite, the raw material from which alumina is produced. Alumina is present in bauxite as alumina trihydrate or gibbsite. The aim of the refining process is to extract the alumina and purify it.
The first step in the process is the milling of the bauxite to product very fine granules. The second step is digestion, which involves the mixing of the ground bauxite with a caustic soda liquor to produce a slurry. This slurry is then heated, under pressure, to a steady temperature of 143oC, which provides the conditions in which a further application of thermal energy causes chemical reactions, of an endothermic nature, to occur. The most important chemical reaction is that gibbsite reacts with caustic soda to yield sodium aluminate and water. An endothermic reaction is one in which thermal energy is absorbed in the reactive process and converted to chemical energy.
The heat required for this digestion process could be supplied by fuel oil, natural gas or coal. Of the applicant's three refineries, two use fuel oil with some addition of natural gas and the third at present uses only fuel oil. The thermal energy produced by combustion of these fuel sources is conveyed from a boiler house to the digesters by means of pipes carrying steam. in this sense the fuel oil is used indirectly in the digestion process, but it is possible to trace a flow of thermal energy from the fuel oil, through the steam, which is then converted into chemical energy in the material in the digesters.
The third step in alumina production is clarification, or residue separation and washing. In a series of three operations solid impurities are removed by settlement and filtration. As much caustic soda as possible is also recovered for future use.
The fourth step is precipitation, in which the remaining liquor is cooled so as to release the alumina trihydrate from the sodium aluminate (which until now has remained in solution) in solid crystal form. This reaction is exothermic, because chemical energy is converted to thermal energy, which is used to reheat the liquor flowing back to the digesters to be used again.
The last step is calcination. This involves an endothermic chemical reaction in which the water of hydration is released, leaving the required anhydrous alumina. In this case thermal energy is applied directly, by the combustion of fuel contiguously with the alumina trihydrate, to achieve temperatures as high as 1100oC. At present one of the applicant's refineries uses only natural gas for this process, one uses only fuel oil and the third uses 75% oil and 25% gas.
This is a sufficient statement of the facts to enable the first main issue of the case, numbered (1) above, to be decided. It is appropriate that that issue should be segregated and dealt with first, because the respondent has lodged a notice of objection to the competency of the Court to deal with this application. The notice alleges that the applicant is not "a person aggrieved" by the Minister's decisions, and it has been explained in argument that the basis for this assertion is that the applicant would not have been entitled to drawback for fuel oil under the regulations even if the Minister had not made his decisions. Therefore the decisions had not affected the applicant and it could not be aggrieved. In my view this analysis is logically unanswerable if the position is established that the applicant's fuel oil was neither "used" nor "lost or wasted" in the manufacture of alumina, within the meaning of the regulation.
I was referred by counsel to several authorities on the meaning of the words "use" and "manufacture", but I have not found it helpful to consider their use in quite different contexts. As Windeyer J. said in one of the cases cited to me, MP Metals Pty. Ltd. v Federal Commr of Taxn (1967) 117 CLR 631 at 639, I am convinced of the "futility of trying to decide the present case by observations made about other facts and other Acts". Counsel also pointed out that the word "in" was more limited in its meaning than the phrases "in connexion with" or "in relation to", which might have been used in its place. Although this last point is valid, it still leaves open the possibility, in any particular context, that "in" may have an extended meaning - such as "in connexion with".
I believe that the true meaning of the quite simple phrase "used in the manufacture of" is only to be found by a study of the general policy and the history of the relevant drawback provisions.
For this purpose it is not necessary to go back beyond the earliest legislation of the Commonwealth of Australia. In the Customs Act 1901, as first enacted, the following sections appeared under the heading "Part IX - Drawbacks"

"168. Drawbacks of import duty may be allowed on exportation in respect of such goods (other than spirits wine beer tobacco cigars cigarettes and opium) to such amount and in such manner as may be prescribed.

........ ....

171. All goods in respect of which any claim for drawback shall be made shall before exportation be produced for examination by the Customs and shall be examined accordingly."

It seems that the first comprehensive regulations under s.168 were contained in the Customs Regulations No. 37 of 1904.
They provided, under the headings "DRAWBACKS REGULATIONS - Goods on which Drawback Allowed", as follows:

"130. Drawback of the full amount of duty paid shall be allowed on all goods other than spirits, wine, beer, tobacco, cigars, cigarettes and opium on the due exportation thereof, either in the original packages or in packages packed in the presence of an officer provided that goods shipped for drawback in other than original packages, are exported within three years from date of importation.

131. As to manufactured articles, a drawback may be allowed on the actual quantity of imported material used in such manufacture to the extent of the duty paid on original importation. Drawback under this Regulation shall only be allowed in respect of such material as the Minister may specify by order in the Gazette, and under such conditions and restrictions as the Minister prescribes in each case."

In my view, the reference to "material" in reg. 131 is clearly meant to be restricted to ingredients or component parts of the goods manufactured in Australia.
The regulations then went on to make specific provision for drawback in the cases of imported sugar used in jams, confectionary, canned fruits and so on, and of imported oils, which could be repacked or blended.
By 1927 the two regulations quoted had been amended in ways not relevant for present purposes, and renumbered 129 and 130.
In 1952, s.168 of the Customs Act 1901 was amended so that it read as follows:

"168.(1) Drawbacks of import duty may be allowed, subject to such conditions and restrictions as are prescribed, on the exportation of such goods (not being spirits, wine, beer, tobacco, cigars, cigarettes or opium) as are specified in the regulations.

(2) Where imported goods specified by the Minister by notice in the Gazette are used in the manufacture of goods, or are subjected to a process of treatment, in the Commonwealth, drawbacks of import duty may, subject to such conditions and restrictions as are prescribed for the purposes of the last preceding sub-section and to such other conditions and restrictions (if any) as are specified in the notice, be allowed in respect of the imported goods on the exportation of the manufactured or treated goods."

It is to be noted that the provision now speaks, for the first time, of imported "goods" being used in the manufacture, rather than imported "material".
The Customs Regulations which came into force in 1955 recast reg. 129 (formerly 130), but its effect was still confined to goods exported in their original packages or packed in the presence of an officer. The previous reg. 130 (formerly 131) was not reproduced, no doubt because it was now sufficiently covered in the Act itself.
The relevant Customs Regulations were further recast in 1960, but not in a way relevant for present purposes.
Yet another re-arrangement of legislation and subordinate legislation occurred in 1968, when s.168 of the Customs Act 1901 was amended to its present short form set out early in this judgment. This made it necessary to put the detailed reference to manufactured goods back into the Customs Regulations. This was done and regulations 129 and 131, quoted early in this judgment, were the result.
In my opinion, a fair reading of the present legislation in its historical context leads to the conclusion that the expression "imported goods used in the manufacture" of goods later exported, should be given a restricted meaning. I think that the reference is to goods which are, in the manufacturing process, incorporated in the goods to be exported. As a matter of fairness and common sense, this provision is then extended to those parts of the imported goods which are not incorporated, but are instead lost or wasted in the manufacturing process. All this is but a short and natural extension of the categories of goods which are re-exported in their original packages, repacked before export or subjected to some treatment or process before being re-exported.
To go beyond this, and extend the drawback principle to all imported goods which are used, in the sense of employed, in the manufacturing process - such as items of plant, handtools, cleaning agents, polishes or fuels - would involve a substantial change in meaning. I do not believe any such change, in the meaning of the words 'used in', was intended when the legislation changed from the word 'material' to 'goods'.
I therefore believe that I should approach the present case on the basis that 'used in the manufacture' means 'to some extent incorporated in the manufacture'.
Before leaving this central issue, it is interesting to note that, in the United Kingdom, the allowance of drawback of import duties has developed along lines similar to those applying in Australia. There a distinction is drawn between drawback allowed "on the exportation of the imported articles or of goods incorporating them" (known as "same state" drawback), and drawback allowed "on the exportation of goods produced or manufactured from the imported articles" (known as "materials" drawback). See Halsbury's Laws of England 4th Ed. Vol. 12 paras 556-8. However the reference to "goods produced or manufactured" may be treated by the responsible authority as including goods in the manufacture or production of which previously imported articles are "used as an agent to carry out or facilitate any process ..." (Halsbury para 568 note 1).
I turn now to consider whether the fuel oil in the present case was used in the manufacture of alumina in the sense which I have described.
I note in passing that, in the material before me, the Attorney-General's Department (but not counsel for the Minister in argument) was prepared to concede that a catalyst would be 'used in the manufacture' in the relevant sense. It will be apparent from what I have said that I do not agree. I can see no useful distinction between a catalyst, the container in which it performs its function, and a heating agent which may produce a similar chemical reaction.
On the other hand I accept, as did both the Attorney-General's Department and counsel for the Minister, that the caustic soda used to react with bauxite to produce alumina is properly the subject of drawback because it is in part incorporated in the product of the chemical reaction and in part lost or wasted. The further part re-used will eventually be incorporated or lost.

It is true that, in the case of the fuel oil, its combustion releases thermal energy which is indirectly or, in the calcination process, directly transmitted into chemical energy, which remains in the alumina.
This is the strongest argument the applicant can point to in attempting to establish its case. I can only say that, in my view, it narrowly fails to take fuel oil across the dividing line in the meaning of the word "use" which has to be drawn somewhere in the manufacturing process, and which I have drawn between goods merely employed in that process and goods to some extent incorporated in the final product.
The other argument advanced by the applicant to bring its fuel oil within the drawback provisions was that the oil is "lost or wasted in the manufacture of" alumina.
It is true that the fuel oil is all finally consumed, either directly in the manufacturing process or indirectly in producing the electricity which plays its part in that process and in related functions.
However it is to be noted that reg. 131(2) is set out in such a way that the reference to lost or wasted goods is clearly related, and subordinate, to the earlier reference to goods 'used in the manufacture' of goods to be exported. I do not believe that it can have any wider meaning than I have attributed to the earlier expression. The intention is to cover both those parts of goods used in the manufacture and other parts of those same goods which are lost or wasted in the manufacturing process, such as timber offcuts, garment remnants or, in the present case, lost or wasted caustic soda.
For the reasons which I have given, I believe that the applicant was not entitled to drawback under the Customs Act 1901 and the Customs Regulations. If I am right in that, the Minister's decision which was challenged had no effect on the applicant's use of fuel oil in its refineries and it therefore cannot be a person aggrieved under the ADJR Act. The respondent's objection to competency should therefore be upheld. However the applicant's argument that it is a person aggrieved because it has at least an arguable case for drawback entitlements is sufficiently cogent to make it desirable that this challenge under the ADJR Act to the Minister's decision should be considered on its merits, and this I now proceed to do.
It was said that the Minister had misunderstood the use to which the fuel oil was put in the refinery process and had therefore failed to take into account a relevant consideration in exercising his power.
This argument is based upon a letter from the Department of Industry and Commerce to the Attorney-General's Department, dated 30 August 1983, which, in the course of seeking legal advice, stated

"Following imposition in the 1983 Budget of customs and excise duty on fuel oil used for heating purposes claims have been received for drawback of duty on such oil that is used in heating mixtures of caustic soda and bauxite for the purpose of producing alumina for export.

It is the view of this Department that the legislation was not intended to permit drawback to be paid on imported goods that are used in an incidental way, such as this, in the manufacture of goods for export."

The reference in this extract to fuel oil "used in heating mixtures of caustic soda and bauxite for the purpose of producing alumina for export" was repeated in the resulting advice from the Attorney-General's Department. This advice was before the Minister when he made his decision.
From the description of the production process given earlier in these reasons it will be seen that this description does not advert to the chemical reaction which occurs in the digestion stage or to the use of fuel oil in the calcination stage. It does however describe accurately, in a few words, the process which uses up the greater part of the fuel oil consumed in the refinery.
When it is remembered that the Minister's exercise of power related not only to fuel oil, but also to other related products, and not only to the applicant, but to all other users of those products, it is clear that he must have had wider considerations in mind than the precise nature of the alumina production process. That assumption is confirmed by the contents of the memorandum put to him which he endorsed with the words "I totally agree with option A ....". Since it was conceded by counsel for the Respondents, referring to this document, that "the Minister's purposes are reflected in the advice which he received and which he accepted", the document is important and I set it out in full. The deletions indicated were by consent of the parties to preserve the confidentiality of persons not involved in the litigation.

"REQUEST FOR DRAWBACK OF EXCISE DUTY ON FUEL OIL USED BY THE ALUMINA INDUSTRY

Recommendation

. You agree to appropriate amendments to Customs Regulations and Excise Regulations to provide that a rebate (drawback) of excise or customs duty is not payable on the fuel oil used in the manufacture of goods for export.

. You sign the attached Gazette Notices notifying this decision. This will give effect to the decision on publication of the Gazette.

. You advise the Prime Minister and Treasurer of this action - letters are attached for your signature.

Background

. The Government in the 1983 Budget announced an excise on fuel oil at a duty rate of $0.09027 per litre.

. Following strong industry representations the rate was subsequently reduced to $0.01872 per litre.

. Alcoa (deletion) are seeking to avoid this duty liability in relation to fuel oil used in the production of alumina for export

- Alcoa advises that its fuel cost will increase by $10m under the revised rate

- It has been estimated that the alumina industry uses approximately 1,300 megalitres of fuel oil per year.

. The question of drawback on fuel oil has been previously brought to your attention (deletion)

. (deletion)

Comment

. Traditionally the Department has held the view that a rebate was only payable where the excise or customs duty has been paid on goods which were actually present in the exported goods

- in 1966 a Crown Law opinion advised that such a view was not "free from doubt" but went on to say "it is doubtful whether fuel, plant or equipment used in the manufacturing process would come within the scope of the refund provisions".

- as a result of the current position up-to-date advice was sought from the Attorney-General's Department. In summary they again advise that "drawback is probably not payable" but the current legislation could be argued to have a wider meaning. A copy of Attorney-General's Department's advice is attached - Attachment B.

. At present Excise regulations preclude payment of a rebate of excise paid on coal and certain other petroleum products.

. Requests for consideration of the payment of rebates on capital equipment (e.g. railway stock and equipment) have previously been made but refused. No legal challenge has been mounted against these refusals.

. In the last 12 months the alumina industry has applied for and been paid rebates on the customs duty levied on imports of caustic soda used in the production of exported alumina

- some caustic is present in the exported alumina but most is used or lost to waste in the production process

- caustic soda is an essential ingredient in the production of alumina.

. Should you be sympathetic to relieving the alumina industry and other industries from the obligation to pay the 1.872c per litre excise on fuel oil our strongest advice is that this should be done by modifying the original decision to provide that certain industries are exempt and not by the backdoor method of conceding "drawback".

Present Position

. (deletion) Alcoa (deletion) have advised that they will lodge claims for the payment of refunds of the excise now levied on fuel oil used in the production of exported alumina

- the alumina industry argues that fuel oil has the same basis as caustic soda for the payment of a rebate

- although fuel oil is used in the manufacturing process it is not in itself a material like caustic soda or bauxite which is subject to actual processing for the recovery of alumina. As such the Department believes that this argument does not have any validity.

. If the Department refuses to pay any rebate claims, it is reasonable to expect that there will be an appeal to either the AAT or Federal Court.

. If rebate claims are paid it could be expected that other industries would seek payment of rebates of excise or customs duty paid on fuel oil used in similar circumstances

- if this occurs and rebates are paid the estimated revenue under the revised rate would be significantly overstated.

Options Available

(a) By Gazette Notice determine that fuel oil and like excisable and customable products on which duty was either introduced or increased in the 1983 Budget are not eligible for a drawback of excise or customs duty

- subsequent amendment to the Customs and Excise Regulations would be desirable.

(b) Maintain present position of refusing to pay a rebate of excise or customs duty levied on goods which are not directly involved in the manufacturing process or contained in the exported goods.

(c) Concede the issue and pay rebates of excise or customs duty levied on fuel oil used to produce export alumina.

Comment On Options

. Option (a) is the preferred option and ensures that the revenue anticipated from the imposition of the excise is collected.

. As indicated in the Attorney-General's Department's advice option (b) may not be defensible and could result in an adverse decision if challenged in the Courts.

. Option (c) would be the preferred option for local industry and would have the effect of reducing their production costs, at least insofar as exported alumina is concerned but would result in further rebate applications from other similarly placed manufacturers and significantly reduce revenue expectations."

I am satisfied that in this case the Minister's chief reason for making the decision he did was to protect the revenue which the revised budget had anticipated from customs and excise duties on fuel oil.
Another important purpose was to put beyond doubt the issue which has been debated in this case - whether the use of fuel oil in the production of alumina could be brought within the drawback provisions of the relevant legislation. The advice to the Minister was that, in all probability, it could not; but the possibility remained.
In my view that was sound advice for the Minister to act upon. But even if the Attorney-General's Department had played the role of devil's advocate more effectively, and put to the Minister in detail all the arguments which have now been adduced in Court, thus perhaps raising the level of doubt in the Minister's mind, there is no reason to suppose that it would have caused him to alter his decision. The two major considerations of protecting the revenue and the need for certainty would still have operated - the second even more so.
It is hardly likely, for example, that the Minister would have been attracted to some formula which would have sought to identify the proportion of fuel oil used by alumina producers which actually goes to produce an increase in chemical energy in the end product - and differentiate between that and all other fuel oil uses. Yet that is the most logical change that could conceivably have resulted from a more detailed consideration by the Minister of the alumina production process. That possibility also illustrates the difficulty which a court must feel in interfering with a general decision of an administative character at the request of one party concerned to challenge only some aspects of one part of that generally applicable decision.
This seems to me to be a clear case for the application of the often-cited principle enunciated by Deane J. in Sean Investments v McKellar 38 ALR 363 at 375:

"In a case such as the present, where relevant considerations are not specified, it is largely for the decision-maker, in the light of matters placed before him by the parties, to determine which matters he regards as relevant and the comparative importance to be accorded to matters which he so regards. The ground of failure to take into account a relevant consideration will only be made good if it is shown that the decision-maker has failed to take into account a consideration which he was, in the circumstances, bound to take into account for there to be a valid exercise of the power to decide."

Accordingly I reject the argument that the Minister's decision as to fuel oil should be set aside because of any alleged failure to take relevant considerations into account.
The other challenge to the Minister's decision was on the basis that he had used his power for a purpose other than that for which he had been given it (ADJR Act s.5(1)(e) and (2)(c)). It was argued that the Minister was using the power for a legislative purpose, to change the effect of the regulations.
Counsel first argued that the wrongful purpose was to make "a public declaration as to what the position in fact was, namely that fuel oil did not attract drawback entitlement" - in other words, the Minister was said to be declaring what he believed the law to be, without consideration as to whether or not fuel oil should be so dealt with. But when it was pointed out that the Minister had clearly been told there was a doubt, which should be put at rest, counsel concentrated on the alternative argument that this amounted to legislating.
The facts of the present case, in my view, leave no room for such a challenge. The Minister was clearly entitled to remove specified classes of goods from the benefit of drawback provisions. The fact that he might have done so in a particular case by causing regulations to be proclaimed cannot, of itself, cast doubt on his decision to do so by administrative action. Where the protection of the revenue in current circumstances was a major factor in the Minister's decision, it was an entirely appropriate way of proceeding. The Minister could clearly have taken that action if he had thought the case for drawback entitlement was otherwise clear. His right to do so cannot be reduced by the fact that he believed there was probably no entitlement.
I am satisfied that both challenges under the ADJR Act must fail, and for these reasons, in addition to the earlier finding that the applicant is not a person aggrieved within the meaning of the Act, the application will be dismissed with costs.

[1984] FCA 205

19 JULY 1984