Bradshaw and Minister for Infrastructure, Transport, Regional Development and Local Government

[2008] AATA 926

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 926

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/1553

GENERAL ADMINISTRATIVE DIVISION		)
Re		CHRISTOPHER BRADSHAW

Applicant

And MINISTER FOR INFRASTRUCTURE, TRANSPORT, REGIONAL DEVELOPMENT and LOCAL GOVERNMENT  

Respondent

DECISION

Tribunal Deputy President P E Hack SC

Date17 October 2008  

PlaceBrisbane

Decision The Tribunal affirms the decision under review.  

.............Signed...................

Deputy President

CATCHWORDS

TRANSPORT – motor vehicle standards – importation of a “nonstandard” vehicle – discretion to approve the import of a nonstandard vehicle in exceptional circumstances – circumstances do not warrant that discretion being exercised – decision under review affirmed

Motor Vehicle Standards Act 1989 (Cth) – ss 19, 20

Motor Vehicle Standards Regulations 1989 – regs 11, 18(1)(c)

Re Bowering and Minister for Infrastructure, Transport, Regional Development and Local Government [2007] AATA 2079

Re Da Silva and Minister for Transport and Regional Services (2004) 85 ALD 756

REASONS FOR DECISION

17 October 2008   Deputy President P E Hack SC    

Introduction

1.The applicant, Dr Christopher Bradshaw, acquired a 1990 Porsche 964 in December 2007 whilst on a trip to Hong Kong. In January 2008 (and after he had consigned the vehicle to Australia) he sought the approval of the respondent, the Minister for Infrastructure, Transport, Regional Development and Local Government, to import the vehicle into Australia. The Administrator of Vehicle Standards, the officer to whom the Minister’s powers of approval have been delegated, refused the application on 30 January 2008.

2.Subsequently Dr Bradshaw sought approval to import the vehicle for use in road vehicle racing. The Administrator gave approval of the importation for that purpose on 27 March 2008. In June 2008[1] further approval was given for the vehicle to be used in rally competition.

[1]        Curiously, the precise date of the approval was not able to be provided by the respondent.

3.Dr Bradshaw seeks a review of the 30 January 2008 decision.

The statutory scheme

4.The Motor Vehicle Standards Act 1989 (Cth) (the Act) and the Motor Vehicle Standards Regulations 1989 (the Regulations) govern the importation of motor vehicles into Australia. The main objects of the Act are expressed to be:

“(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.”

5.The Act seeks to achieve the latter object, at least in part, by the prohibition in s 18 of the Act on the importation of road vehicles that are “nonstandard”, (vehicles that do not comply with, or are not taken to comply with, approved national vehicle standards, or do not have a vehicle identification plate), except in the limited circumstances set out in ss 19 and 20 of the Act. One of the exceptions relates to “prescribed circumstances”, that is, circumstances prescribed by the Regulations.

6.The Regulations give to the Minister power to approve the importation of a nonstandard vehicle or one that does not have an identification plate in a variety of circumstances. The first circumstance that need be noticed is that in reg 18(1)(c), which permits approval to be given for the importation of a vehicle where the Minister is satisfied that the vehicle “is to be used in road vehicle racing or rally competition”. It is that power that has been engaged to grant the approvals of 27 March 2008 (road vehicle racing) and June 2008 (rally competition).

7.While Dr Bradshaw’s argument relied only on the power in reg 11 it is as well to note certain other provisions for the purpose of excluding their operation and noticing the statutory context in which the discretion relied upon by Dr Bradshaw is required to be exercised.

8.Regulation 12 requires the Minister to approve an application to import a vehicle that complies with the national standards but does not have an identification plate where, relevantly, it complied with national standards when it was first manufactured and delivered for use in transport. Regulation 13 requires that approval be given if the vehicle has been owned and used by the importer for a continuous period of at least 12 months. Similarly, approval must be given for the importation of a vehicle manufactured prior to 1 January 1989. Dr Bradshaw does not suggest that any of these exceptions apply to his vehicle. He abandoned his earlier reliance upon a claim that the vehicle satisfied the requirements of reg 12. There are other, more confined, circumstances where approval may be given, however none have present relevance.

9.The discretion in reg 11(1) is conferred in unconfined terms:

“The Minister may approve an application to import a nonstandard road vehicle or a road vehicle that does not have an identification plate.”

By virtue of reg 11(2) that approval may be given subject to conditions.

10.Mr Palfrey, the solicitor for the Minister, referred me to a line of cases where members of this Tribunal have suggested that the discretion in reg 11(1) should only be exercised in “exceptional circumstances”. Like Senior Member McCabe, whose decision in Re Bowering and Minister for Infrastructure, Transport, Regional Development and Local Government[2] contains a helpful discussion of the cases, I find that expression unhelpful and I prefer to adopt the approach of Senior Member Allen in Da Silva and Minister for Transport and Regional Services[3]. In that case the learned Senior Member suggested that the real question was:

[2] [2007] AATA 2079.

[3] (2004) 85 ALD 756.

“whether, having regard to the policy and objectives of the Act and the regulations, and to all the relevant circumstances of the applicant, it is appropriate to exercise the discretionary power in favour of the applicant.”[4]

[4] (2004) 85 ALD 756 at 766, [55].

Senior Member Allen went on to say:

“…the exercise of the discretion in reg 11 should be approached on the basis that if there would be some element of unfairness or injustice to the applicant if approval were not granted, and the grant of approval would not undermine or frustrate the policy and objects of the legislative scheme, then the discretion should be exercised in the applicant’s favour. The totality of the relevant circumstances must be considered…”[5] 

[5](2004) 85 ALD 756 at 767, [59].

The exercise of the discretion

11.Dr Bradshaw relies upon a number of matters that he says warrant the exercise of the discretion favourably to him. It is convenient to consider his arguments within three groups. The first group of matters deals with the state of his knowledge of the requirements for approval at the time of acquisition of the vehicle. The second group concerns the features, particularly the safety features, of the vehicle. Finally Dr Bradshaw relies upon the cost to him if unrestricted importation is not permitted.

12.The starting point of the discussion about the first group is the fact that reg 17 used to require that approval be given to the importation of any vehicle that was 15 or more years old. Regulation 17 was altered in May 2005 to remove that rolling age requirement and replace it with the present form that requires that approval be given to the importation of any vehicle manufactured and used prior to 1 January 1989.

13.On a number of occasions prior to the change Dr Bradshaw made enquiries of, and obtained advice in writing from, the agencies charged with the administration of the scheme that plainly stated that he would be permitted to import a vehicle 15 or more years old. His first enquiry was made during the 1990’s and the last was, he thought, towards the middle of 2005. Given the change in reg 17 occurred in May 2005 I infer that his last enquiry pre-dated that change. For all of the period from the first enquiry up until his application was refused in late January 2008 Dr Bradshaw believed that he would be permitted to import a vehicle that was 15 or more years old.

14.Dr Bradshaw says that he had no reason to anticipate the change made in 2005 given that he had been consistently informed over the years that a vehicle age of 15 or more years was one of the criteria. Moreover, he says, it was unreasonable of the Minister not to keep a record of the names and addresses of those persons who, like him, had made enquiries about the statutory criteria so that, where there was a change in the statutory criteria, the earlier enquirers could be informed of the changes.

15.It was reasonable for him, says Dr Bradshaw, to continue to rely upon the basis of what was, in fact, wrong information when he had not been informed of any change and he had no reason to suspect the change.

16.Next, Dr Bradshaw relies upon the characteristics of the particular vehicle. It is, he says, an exceptionally well-engineered vehicle with safety and performance features well in excess of most cars of its era. This particular 1990 Porsche is a very rare example of its type and is of great interest to collectors. Dr Bradshaw was at pains to establish that the vehicle was a very safe vehicle.

17.Finally, Dr Bradshaw relied upon the financial hardship that would be caused to him were he unable to import the vehicle on an unrestricted basis. He estimated that he had spent in the order of $50,000 in storage charges and the like up until March 2008 when the vehicle was approved for road racing.

18.I am not persuaded that this case is one where the discretion ought be exercised favourably to Dr Bradshaw.

19.I do not regard Dr Bradshaw’s reliance upon outdated information as being reasonable. The entitlement to import vehicles 15 or more years old had been abolished more that two and a half years prior to the purchase in December 2007. Dr Bradshaw, at best for him, had not made any enquiries in that period of two and a half years. In particular, he had not made any enquiries at the time that he was contemplating the purchase. Government agencies notoriously publish information of the nature in issue here on websites. The affidavit of Mr Stephen Spencer, the Section Head of the Policy, Legislation and Imports team of the Vehicle Safety Branch of the Department of Infrastructure, Transport, Regional Services and Local Government, establishes that that is, and has been, the case with the “Guide to Importing Vehicles to Australia”. An internet enquiry or a telephone call immediately prior to purchase would have armed Dr Bradshaw with information current at the time of his enquiry.

20.I regard it as entirely unrealistic to suggest that any Government agency ought be required to keep a record of all those who make enquiries about current legislation or policy so that the agency can inform those enquirers of any change in legislation or policy. That conclusion is fortified by the evidence of Mr Spencer that his section handles between 50,000 and 80,000 telephone enquiries annually.  

21.It was not reasonable, indeed it was in my view entirely unreasonable, for Dr Bradshaw not to make an enquiry immediately prior to his purchase and to rely upon information which was, at best for him, two and a half years old. There is no unfairness or injustice to Dr Bradshaw in these circumstances.

22.I accept that the vehicle in question here is as Dr Bradshaw describes it – a well engineered car built by a respected vehicle builder with high safety standards. But I do not regard the vehicle’s safety as a circumstance having any particular relevance in itself. Those features provide a baseline, that is, there would generally be no question of permitting the importation of a vehicle that was not safe and apparently well-constructed, for to do so would frustrate the objects of the Act. The approvals that have been granted will allow Dr Bradshaw, and other admirers of vehicles of this type, to admire ether vehicle, and its features, without undermining the policy of the statutory scheme. I do not regard the attributes of this vehicle as warranting the exercise of the discretion favourably to Dr Bradshaw.

23.Finally, I am unable to regard the fact of expenditure on storage as having weight in the consideration of the exercise of the discretion. Storage costs are the natural consequence of acquiring, and shipping, the vehicle prior to obtaining approval. It is notable that the form of application completed by Dr Bradshaw contains a prominent recommendation on its first page that the vehicle not be shipped until after receipt of approval. Dr Bradshaw is indeed fortunate that he was able to bring the storage charges to an end when importation for racing was approved. Many in a similar situation are left with no alternative but to return the vehicle to the country from which it came.

24.In that latter regard it is, I think, relevant that Dr Bradshaw has the use of his vehicle for racing and rallying purposes. He is thus able to make use of the vehicle, albeit that he is restricted in that use.

25.In the result I am unable to conclude that Dr Bradshaw’s circumstances are such that would warrant the granting of approval for unrestricted importation of his vehicle. I would affirm the decision under review.

I certify that the 25 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC

Signed:         .....................Signed...............................................
  Jacqueline Woods, Associate

Date of Hearing  22 September 2008
Date of Decision  17 October 2008
The Applicant appeared in person  
Solicitors for the Respondent    Clayton Utz