BJORN LIDEN and MINISTER FOR INFRASTRUCTURE AND TRANSPORT
[2012] AATA 280
•10 May 2012
[2012] AATA 280
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2011/5127
Re
BJORN LIDEN
APPLICANT
And
MINISTER FOR INFRASTRUCTURE AND TRANSPORT
RESPONDENT
DECISION
Tribunal The Hon. Brian Tamberlin QC, Deputy President
Date 10 May 2012 Place Sydney The Tribunal decides that the decision of the Respondent should be set aside and in substitution therefor approval should be given to importation of the subject vehicle.
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The Hon. Brian Tamberlin, QC, Deputy President
Catchwords
TRANSPORT – motor vehicles – application to import non-standard vehicle – applicant sought approval under Regulations 11 and 13 of the Motor Vehicle Standards Regulations 1989 – whether vehicle available for Applicant’s use – whether exercise of discretion would undermine object of the Act – vehicle available for Applicant’s use – decision under review set aside.
Legislation
Motor Vehicle Standards Act 1989
Motor Vehicle Standards Regulation 1989 regs 13(1)(ac), 13(1)(ad), 13(2)(i)Cases
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27
Campos and Minister for Infrastructure and Transport [2012] AATA 244
CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384
Roadshow Films Pty Ltd v iiNet Ltd [2012] HCA 16
Shillingford and Minister for Infrastructure, Transport, Regional Development and Local Government [2010] AATA 195REASONS FOR DECISION
The Hon. Brian Tamberlin QC, Deputy President
10 May 2012
Mr Liden seeks review of a decision by the Respondent dated 28 October 2011 refusing approval to import a 1997 Toyota LandCruiser (the vehicle) into Australia.
The ground for the refusal is that the application did not satisfy the requirements of regs 13(1)(ac) and (ad) of the Motor Vehicle Standards Regulations 1989 (the regulations) pursuant to the Motor Vehicle Standards Act 1989 (the Act). These provisions require that:
(ac)the applicant owned the vehicle while overseas and owned it for a continuous period of at least 12 months immediately before arriving in Australia for the purpose of remaining in Australia indefinitely as mentioned in paragraph (b); and
(ad)during that period of ownership the vehicle was available to the applicant for use in transport…
Regulation 13(b) provides:
(b) at the time the application is received by the Minister, the applicant is:
(i)an Australian citizen or permanent resident and provides evidence that he or she intends to remain in Australia indefinitely…
Furthermore, the Minister did not consider that the general discretion conferred under reg 11 should be applied. That provision provides for a discretionary exemption and invests the Minister with discretion to allow the importation of a non-standard vehicle such as the subject vehicle.
BACKGROUND
The Australian Government maintains a federal system to apply national standards for road vehicles before they can be supplied to the Australian market. The system is outlined in the Act and Regulations. The national standards are known as the Australian Design Rules and deliver levels of vehicle safety, emission control and theft protection generally to meet the needs of the Australian community. These rules are determined by the Minister following a process involving state and territory governments and industry stakeholders.
The rationale of the system is for new vehicles manufactured in Australia, or entering Australia, to be assessed and certified as complying with the rules. Mainstream road vehicles, which are the largest category of vehicles handled under this system, are certified under the Act.
The system provides arrangements for the concessional importation of defined classes of non-standard vehicles. These classes include, for example, personal vehicles owned and used overseas. The level of compliance with the rules applied to each of these classes depends on the anticipated impact that the vehicles will have on the overall fleet, and are said to be based on assumptions that the number of novel vehicles will be relatively small.
CRITERIA SPECIFIED IN REGULATION 13
In the present case, the vehicle comes within the description of a “non-standard” vehicle. The Minister contends, in submissions to this Tribunal, that there must have been 12 months continuous “ownership” and “availability” for use of the vehicle overseas before a vehicle can qualify for concessional importation. This criterion has not been satisfied in the present case according to the Minister. The material facts, which are essentially not in dispute, are as follows.
The Applicant is a Swedish citizen who arrived in Australia on 5 January 2005 and was granted a permanent residence visa on 9 July 2009. He holds a New South Wales driver’s licence. The vehicle is a 1997 Toyota LandCruiser Amazon VX. The Applicant travelled to the United Kingdom on 3 April 2010. The Applicant purchased and registered the vehicle for use, in the United Kingdom, on 23 April 2010. On the same day the Applicant travelled with the vehicle to France and returned to Australia on 3 May 2010. The vehicle has since remained in France.
The Applicant later returned to the United Kingdom and France on 10 December 2010 and returned to Australia on 4 January 2011. During this time he used the vehicle for transport. On 14 June 2011 the Applicant applied to the Minister to import the vehicle. The vehicle remains in France. It is not fitted with an identification plate.
The position therefore is that the Applicant has owned and used the vehicle while overseas during the above two periods. The first period was for 10 days between 23 April 2010 and 2 May 2010. The second period was for 24 days from 11 December 2010 to 3 January 2011.
The Minister considered that the Applicant has not owned the vehicle while overseas and owned it for a continuous period of at least 12 months immediately before arriving in Australia for the purpose of remaining here indefinitely. The Minister contends that to satisfy reg 13 there must have been both 12 months continuous ownership and availability for use of the vehicle overseas. The Minister submits that Mr Liden has owned the car for over 12 months but that it has never been available to him for use for 12 months in any country within the meaning of reg 13. From the time he bought the car, it is said, Mr Liden has lived in Australia while the car is in France. The car has been available for his use sporadically, over several weeks, when he took his holidays in Europe. The Minister’s position is that, despite non-compliance with the regime that Parliament has provided for personal vehicles bought overseas, the Applicant seeks approval to import his car. If importation is permitted of this vehicle in the present case there could be a detriment to the effective operation of the legislative scheme. The Respondent submits that a strict interpretation should therefore be given to the language of the relevant subparagraphs of reg 13.
LEGAL PRINCIPLES
In Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue(Northern Territory) (2009) 239 CLR 27 at 46-47, the majority of the High Court concluded that the task of interpretation should begin with the consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text because the language which has actually been employed in the text of legislation is the surest guide to legislative intention. Under the modern approach to statutory interpretation, as set out in CIC Insurance Ltd v Bankstown Football Club (1997) 187 CLR 384 at 408, the context in which the legislation is framed must “be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise”. The reference to context includes the existing state of the law and the mischief which the provision was intended to remedy. However, the starting point is to have regard to the ordinary and grammatical sense of the statutory words to be interpreted having regard to both the context and the legislative purpose.
In Roadshow Films Pty Ltd v iiNet Ltd [2012] HCA 16 at [119] – [120] Gummow and Hayne JJ were critical of an approach to the interpretation of legislation designed to meet a judicially perceived need to keep the statute law abreast of the times. They also cautioned against what they saw as extreme exercises in statutory interpretation.
REASONING
In this case the Applicant has owned the vehicle overseas for a continuous period of at least 12 months. However, it is contended by the Minister that the vehicle was not available to the Applicant for use in transport during that period of ownership. The determination of the issue therefore turns on the meaning to be given to the word “available” in reg 13(1)(ad).
The evidence is that the vehicle has been used twice over a month period for a substantial amount of time in each instance.
The vehicle has been able to be accessed at any time by the Applicant. The Applicant has access to keys and papers necessary to use the vehicle. The vehicle is kept for his use any time he visits Europe and is able to be used by him without any relevant restriction as to time or other limitations.
In this case the vehicle has been owned by the Applicant for a continuous period of 12 months. The question which arises is whether during that period of ownership, that is to say the 12 month period, the vehicle was available to the Applicant for use in transport.
The word “available” on its ordinary, grammatical meaning and according to its use in ordinary speech denotes the quality of being able to turn to account or being at the disposal of the user.
There is nothing in this case to restrict the vehicle being accessed or used by the Applicant. The regulation does not require that the vehicle must be available on a continuous hourly, daily or monthly basis. It simply requires that during, or over, the period of ownership, namely a 12 month period, the vehicle has been available.
Whenever the Applicant visits Europe the evidence is that he can access the vehicle at any time and there is nothing to prevent this or restrict the area or period or manner of its use. In a practical sense, the vehicle cannot, from an economic point of view, be used on a continuous daily basis or even on a continuous basis without any substantial gap. However, the continuous requirement is directed to ownership for a period of at least 12 months. It is not directed to the availability of the vehicle as a matter of grammar or context.
It is significant to note that as a matter of legislative history that the relevant parts of the provisions were amended in 2009. The previous provision required that the vehicle had been owned and used by the applicant for a continuous period of at least 12 months. On this earlier wording, the use by the applicant must be for a continuous period. On the present wording it is the ownership which must be for a continuous period, but there is no requirement of continuity, as a matter of language, in relation to the availability of the vehicle for transport use.
The interpretation of the provision proposed by the Minister requires that there should be a continuity of availability for transport use. The insertion or implication of such a limitation and modification of the statutory text is not justified, particularly having regard to the express change of language.
Moreover, even on the Minister’s interpretation there is no requirement for daily, weekly or monthly regular use. It cannot be suggested that the fact that the vehicle is not available for use on every day or every week would of itself take the use outside the terms of the correction.
Also, I note that the vehicle has been used on two occasions for a period of weeks in the course of its ownership by the Applicant. I am not persuaded as a matter of fact and degree this is insufficient to prevent the vehicle being available for transport within the meaning of the regulation.
Having reached this conclusion in relation to the interpretation and application of reg 13(1)(ad), it is not necessary to determine whether the requirements of reg 11 have been satisfied. In my view, nothing has been shown on the evidence in relation to the vehicle itself which would warrant exercise of the discretion. The fact that the vehicle was a wedding present is, in my view, not sufficient to provide a basis for exercise of the discretion in favour of the Applicant. I have been referred to a number of decisions in relation to reg 11 supporting the submission by the Minister that there is no proper basis for exercise of the discretion. Funds for the purchase of the vehicle were a wedding gift. This is of itself insufficient.
In Shillingford and Minister for Infrastructure, Transport, Regional Development and Local Government [2010] AATA 195, for example, the Applicant wished to import a motor bike bought with money given by his parents for his eighteenth birthday. The Tribunal observed that the Applicant had relatives overseas who could sell the bike in his absence, allowing him to buy another one in Australia although not necessarily of the same make, model and colour. This meant that the Applicant did not lose the substance of the gift and the Tribunal affirmed the decision not to exercise the discretion to allow importation.
In Campos and Minister for Infrastructure and Transport [2012] AATA 244, the Applicant, who has a disability which makes it difficult for him to use a standard motor vehicle, sought to import a custom made motorised scooter from Canada. The vehicle, it was conceded, did not meet the Australian Design Rules and the Applicant relied on reg 11 before the Tribunal. The Tribunal observed that the Applicant’s objective of importing a single vehicle for his own personal use was not compatible with the legislation’s scope and compelling policy objectives directed at environmental concerns and the safety of the public more broadly. In affirming the decision, the Tribunal also noted neither party addressed the suitability of other similar vehicles available on the Australian market.
There is nothing in this case which persuades the Tribunal to exercise its discretion under reg 11. However, the Applicant has satisfied the Tribunal that approval should be given to the importation of the vehicle since it comes within reg 13.
For the above reasons the Tribunal decides that the decision of the Respondent should be set aside and in substitution therefor approval should be given to importation of the subject vehicle.
I certify that the preceding 30 (thirty) paragraphs are a true copy of the reasons for the decision herein of The Hon. Brian Tamberlin QC, Deputy President.
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Associate
Dated 10 May 2012
Date of hearing 17 April 2012 Applicant In person Solicitors for the Respondent T Giugni, Australian Government Solicitor
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