Arthur and Minister for Infrastructure and Regional Development
[2016] AATA 1026
•15 December 2016
Arthur and Minister for Infrastructure and Regional Development [2016] AATA 1026 (15 December 2016)
Division
GENERAL DIVISION
File Number
2016/1400
Re
Landon Arthur
APPLICANT
And
Minister for Infrastructure and Regional Development
RESPONDENT
DECISION
Tribunal Senior Member J F Toohey
Date 15 December 2016 Place Sydney The Tribunal affirms the decision under review.
.....................[sgd]...................................................
Senior Member J F Toohey
CATCHWORDS
TRANSPORT – Application to import nonstandard vehicle – whether discretion to allow importation should be exercised in applicant’s favour – factors to be considered in exercising discretion – decision under review affirmed
LEGISLATION
Motor Vehicle Standards Act 1989 ss 3, 5, 18, 19, 20.
Motor Vehicle Standards Regulations 1989 reg. 11, 12, 13.
CASES
Aboriginal Affairs v Peko Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
Selway v Minister for Infrastructure, Transport, Regional Development and Local Government [2011] FCA 43
Williamson and Minister for Infrastructure, Transport, Regional Development and Local Government [2009] AATA 48Zillin and Minister for Infrastructure, Transport, Regional Development and Local Government [2011] AATA 135
SECONDARY MATERIALS
Commonwealth, Hansard, House of Representatives, 23 May 1989, 2687 (Robert Brown- Minister for Land Transport and Shipping Support)
REASONS FOR DECISION
Senior Member J F Toohey
15 December 2016
Background
Mr Arthur Landon seeks review of a decision refusing his application for approval to import a 2005 Subaru Forester STI vehicle manufactured in Japan.
The importation of vehicles into Australia is governed by the Motor Vehicle Standards Act 1989 (the Act) and the Motor Vehicle Standards Regulations 1989 (the Regulations). The main objects of the Act are set out in section 3. They are:
(a) to achieve uniform vehicle standards to apply to new vehicles when they begin to be used in transport in Australia; and
(b) to regulate the first supply to the market of used imported vehicles.
The Minister for Infrastructure and Regional Transport may, by legislative instrument, determine national vehicle standards for road vehicles or vehicle components: s 7. Section 5 provides that “vehicle standard” in this context means one that is designed to:
(a) make road vehicles safe to use; or
(b) control the emission of gas, particles or noise from road vehicles; or
(c) secure road vehicles against theft; or
(d) promote the saving of energy.
Subject to section 19 and 20, a person must not import a road vehicle that is nonstandard or which does not have an identification plate: s 18. “Nonstandard” means a road vehicle or a vehicle component that is non-compliant with the national standards: s 5.
An identification plate is a plate declaring the status of a road vehicle in relation to the national standards and approved to be placed on vehicles of that type or description under procedures and arrangements provided for in the Act: s 5. It is common ground that Mr Arthur’s vehicle in does not have an "identification plate".
Sections 19 and 20 of the Act, and the Regulations, allow for some concessions to the general rule. Section 19(1) provides that a person may import a vehicle that is nonstandard or does not have an identification plate with the written approval of the Minister. The Minister’s approval may be subject to written conditions determined by the Minister.
Section 20 permits a person to import a nonstandard road vehicle or one that does not have an identification plate where it is to be exported from Australia without having been used in transport in Australia, or in prescribed circumstances.
The history of Mr Arthur’s application
It is relevant to set out the history of Mr Arthur’s present application in some detail.
Mr Arthur purchased the vehicle in about June 2012. He was in Australia at the time, and the vehicle was in Japan. On 2 June 2013, he sought permission to import the vehicle under the Personal Imports Scheme. The Scheme provides for approval to be given to import a vehicle without an identification plate if it has been owned and used by the applicant overseas for a continuous period of at least 12 months immediately before arriving in Australia and, during that period, it was available to the applicant for use in transport: reg 13.
On 16 August 2013, the Administrator of Vehicle Standards (the Administrator) refused Mr Arthur’s application. The decision was not surprising because Mr Arthur had not used the vehicle overseas, and he has no argument with it. The Administrator also decided not to exercise the general discretion in regulation 11. The general discretion is considered further below.
On 16 September 2013, Mr Arthur applied for a Vehicles In Transit approval under s 20 of the Act. He indicated in his application that he intended to modify the vehicle for road rally use in Japan and to export the vehicle back to Japan by 21 January 2014. On 22 November 2013, he was granted the approval to import. The letter of approval advised that it would expire on 21 February 2014.
The vehicle arrived in Australia on 8 December 2013. Mr Arthur told the Tribunal that, although it had been his intention to send it back to Japan for road rally use, he realised when he saw it that the modifications he had contemplated were expensive and that it was identical to a vehicle he already owned. He therefore decided to try to prove that it was in fact compliant with the national standards and to obtain permanent import approval so that he could keep it in Australia.
Despite his decision to try to keep the vehicle in Australia, on 14 December 2015, Mr Arthur lodged a further application seeking approval for an extension to 30 April 2016 of the Vehicles In Transit approval. In his application form, he stated that the vehicle would be exported from Australia by 30 April 2016.
At the hearing, Mr Arthur acknowledged that he had already decided, by the time he sought an extension of the Vehicles In Transit approval, to keep the vehicle in Australia and to seek approval for it to remain permanently in Australia, but his application was the only way he could think of to try to obtain approval.
On 5 January 2016, the Administrator granted Mr Arthur a further extension to 30 April 2016.
On 14 February 2016, Mr Arthur wrote to the then Minister asking him to apply the general discretion in regulation 11 which provides:
1)The Minister may approve an application to import a nonstandard road vehicle or a vehicle that does not have an identification plate.
2)An approval may be given subject to conditions specified in the instrument of approval.
3)Without limiting the generality of subregulation (2), the Minister may require that a plate in such form and containing such information as the Minister determines be placed on the vehicle.
4)An approval must be given by signed instrument.
In his letter to the Minister, Mr Arthur said the vehicle had undergone minor modification while in Australia to comply with all Australian Design Rules applicable to the identical vehicle available for purchase in Australia. He attached a letter from a New South Wales Vehicle Safety Compliance Certification Scheme licensed certifier stating that a “complete chassis comparison” had been undertaken by the licensed certifier and it complied with all applicable Australian Design Rules. Mr Arthur stated that his vehicle featured components, which he listed, “actually improve the safety and road handling of the vehicle over that of an Australian delivered Subaru Forester”.
On 14 February 2016, Mr Arthur lodged a second application under the Personal Imports Scheme. He acknowledges that he could not qualify under this scheme for the same reasons that his previous application failed. On 15 February 2016, Mr Arthur lodged a formal application with the Administrator in effect seeking the exercise of the general discretion in regulation 11.
On 3 March 2016, the administrator refused his application. The Administrator decided Mr Arthur did not meet the requirements of regulation 12 (see below), regulation 13 (Vehicles In Transit), and there were insufficient grounds to warrant the exercise of the discretion in regulation 11.
The discretion in regulation 12
Regulation 12(1) provides that the Minister may approve an application to import a road vehicle that complies with the national standards but does not have an identification plate if:
(aa)the vehicle was manufactured by a person (the manufacturer) holding a valid approval under subsection 10A(1) or (2) of the Act at the time the vehicle was manufactured, being an approval covering vehicles of the type specified in the application; and
(a)the application is accompanied by a written statement from the manufacturer, or from the manufacturer's authorised representative in Australia, stating that the vehicle complied with the national standards in force for the vehicle when the vehicle was first manufactured and delivered for use in transport; and
(b)the applicant is of an age that entitles him or her to hold a licence or a permit to drive a road vehicle of that type; and
(c)the applicant has not been granted an approval to import a vehicle under this regulation in the 12 months immediately before the day the application is received by the Minister.
Mr Arthur relies on the letter from the licensed certifier to the effect that his vehicle complies with the relevant national standards. I have no reason to doubt what the licensed certifier has written. However, regulation 12 requires a statement from the manufacturer. A statement from a licensed certifier, no matter how qualified, does not meet this requirement. It follows that the discretion in regulation 12 is not available in this case.
Should the general discretion be exercised in Mr Arthur’s favour?
The Act does not specify matters to be taken into account when exercising the discretion. In such a case, the factors which the decision-maker is bound to consider “must be determined by implication from the subject matter, scope and purpose of the Act”: Minister for Aboriginal Affairs v Peko Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24, per Mason J at 39-40; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355.
The principal objective of the legislation was described by the then Minister when it was introduced into Parliament (see Hansard) in May 1989 as:
… to enable the Federal government to establish and apply nationally uniform standards for motor vehicle safety and environmental quality expected by the community.
It is clear from decisions of the Tribunal and the Federal Court that the discretion in regulation 11 is not to be exercised lightly. In Williamson and Minister for Infrastructure, Transport, Regional Development and Local Government [2009] AATA 48, Senior Member McCabe said at [11]:
[B]y its nature, the discretion must be exercised sparingly: there is no point having a national scheme if the discretion is used to make so many exceptions that the standards become meaningless. … the discretion can be exercised if there is a good reason to do so and the objectives of the legislative scheme are not compromised.
Regarding the discretion in regulation 11, in Selway v Minister for Infrastructure, Transport, Regional Development and Local Government [2011] FCA 43, Mansfield J said at [36-37]:
The general rule is that the discretion expressed without qualification is unconfined except insofar as it as it is affected by limitation to be derived from the context and scope and purpose of the legislative scheme.
...
It may well be that it will not be a common circumstance that a person seeking to import a non-standard vehicle will have the discretion available under Reg 11 exercised in that person's favour. In some circumstances, such importation might undermine or frustrate the policy and objectives of the Act. Clearly, in such a circumstance, the favourable exercise of the discretion under Reg 11 would require there to be weighty countervailing factors. The fulfilment of that policy or those objectives is clearly relevant to the exercise of the discretion under Reg 11.
In Zillin and Minister for Infrastructure, Transport, Regional Development and Local Government [2011] AATA 135, the applicant sought approval to bring his motor vehicle to Australia after a period living overseas. Between the time of his initial inquiry with the Department and his application to import the vehicle, amendments to the Regulations meant he had to provide evidence of his intention to remain permanently in Australia. He did not intend to remain in Australia permanently but, otherwise, satisfied all the requirements of regulation 13.
The Tribunal approved the importation of the applicant’s vehicle subject to conditions. It was satisfied that conditions could be imposed which would mean approval could be given without frustrating the purpose and objectives of the legislation and that the applicant could be placed in a similar position as other expatriates wishing to import their vehicle. Even then, Deputy President Jarvis said, at [38]:
Notwithstanding that an approval under Regulation 11 subject to the two conditions referred to in the preceding paragraph might not be contrary to the policy or objectives of the Act, I do not think such an approval should be issued unless there are circumstances in the particular case that make such an approval appropriate. I think that in the present matter, a number of considerations, in combination, make it appropriate to exercise the discretion
Those considerations included that the applicant would have been entitled to import the vehicle under the previous regulations, that he had suffered “considerable financial hardship” as a result of the refusal, that he otherwise met all the requirement of regulation 13 (except for the amending provision), and that the Department itself appeared to consider that, with conditions, he could be put in a substantially comparable position to other people affected by the amending Regulations.
For the Minister it is submitted that to exercise the discretion in regulation 11 and allow the importation of Mr Arthur’s vehicle would undermine the scheme and policy of the Act. I have to agree. I cannot see that there would be any real unfairness or injustice to Mr Arthur in refusing the application, although he would undoubtedly feel great disappointment. I accept there would be some financial disadvantage to him in that he has already spent the money in purchasing the vehicle. However, he has not suggested he would be caused any real financial hardship. Even if it would cause him financial hardship, the Tribunal has decided on several occasions that financial hardship is not itself sufficient ground to exercise the discretion: Duck and Minister for Infrastructure, Transport, Regional Development and Local Government [2009] AATA 402, at [26]; Markovich and Minister for Infrastructure, Transport, Regional Development and Local Government [2009] AATA 358; Albanus v Department of Transport and Regional Services [2001] AATA 12.
Conclusion
I appreciate that Mr Arthur would dearly like to be able to use his vehicle in Australia. However, to exercise the discretion in his favour would be to allow a person to import a vehicle into Australia under one scheme and for a specified period and, in effect, to obtain retrospective approval for permanent import without the necessary manufacturer’s statement of compliance, based on an opinion of a person who, no matter how qualified, is not contemplated by the legislation. I do not suggest that was Mr Arthur’s intention but that would be the effect. To exercise the discretion would, in my view, open up the scheme in a way that would be contrary to the strict regulation of importation of vehicles in the interests of public safety, and would undermine the objectives of the scheme.
For these reasons I affirm the decision under review.
I certify that the preceding 31 (thirty -one) paragraphs are a true copy of the reasons for the decision herein of Senior Member J F Toohey ........................[sgd]................................................
Associate
Dated 15 December 2016
Date of hearing 2 December 2016 Applicant In person Solicitors for the Respondent Mr M Palfrey - HWL Ebsworth Lawyers
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