Campos and Minister for Infrastructure and Transport
[2012] AATA 244
•30 April 2012
[2012] AATA 244
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2011/4463
Re
William Campos
APPLICANT
And
Minister for Infrastructure and Transport
RESPONDENT
DECISION
Tribunal Senior Member J F Toohey
Date 30 April 2012 Place Sydney The decision under review is affirmed.
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Senior Member J F Toohey
CATCHWORDS
MOTOR VEHICLE STANDARDS – importation of nonstandard vehicle – mobility scooter –whether discretion to approve importation should be exercised in the applicant’s favour – whether exercise of the discretion would undermine the objectives of the Act – public safety considerations – decision under review affirmed
LEGISLATION
Motor Vehicle Standards Act 1989 ss 3, 5, 7, 10A, 18, 19, 20 and 21
Motor Vehicle Standards Regulations 1989 regs 7, 11, 13, 18 and 24
CASES
Haughey and Minister for Infrastructure, Transport, Regional Development and Local Government [2008] AATA 540
Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24
Selway v Minister for Infrastructure, Transport, Regional Development and Local Government [2011] FCA 43Zillin and Minister for Infrastructure, Transport, Regional Development and Local Government [2011] AATA 135
SECONDARY MATERIALS
Commonwealth, Parliamentary Debates, House of Representatives, 23 May 1989, 2687, (Robert Brown) (Second reading speech).
Department of Infrastructure and Transport, Importing Vehicles to Australia, July 2010.
Department of Infrastructure and Transport, Specialist and Enthusiast Vehicle Scheme (SEVS) (2011) viewed 27 April 2012.
REASONS FOR DECISION
Senior Member J F Toohey
BACKGROUND
Mr William Campos has a disability which will make it increasingly difficult in coming years for him to drive a standard motor vehicle or two-wheeled scooter. He lives in a hilly part of Sydney where there are no footpaths. His research into the mobility scooters available in Australia has led him to conclude that none is suitable for his use because they lack the necessary stability and braking power.
In March 2011, Mr Campos entered into a contract with a company in Canada for the purchase of a Zhejian Wanjin Pailson Motor Tricycle, to be manufactured in Canada. The vehicle has yet to be manufactured because Mr Campos believes its brakes may require modification to meet Australian standards, and that other modifications, such as to the size of the lights, may also be needed. He has no argument with the application of the standards or with modifying the vehicle as necessary in order to meet them.
In June 2011, Mr Campos sent an email to the Department of Infrastructure and Transport (the Department) asking whether he needed approval to import the vehicle. On being advised that approval would be required, he made his application.
On 25 August 2011, a delegate of the Minister for Infrastructure and Transport (the Minister) refused Mr Campos’ application on the ground that the vehicle failed to comply with the relevant Australian Design Rules (ADRs) and would need to do so in full before approval to import could be granted. The delegate further decided that the discretion by which approval might be granted should not be exercised in his case. Mr Campos seeks review of that decision.
THE MOTOR VEHICLE STANDARDS ACT 1989
The importation of vehicles into Australia is governed by the Motor Vehicle Standards Act1989 (the Act) and Motor Vehicle Standards Regulations1989 (the Regulations). Section 3 of the Act provides that its main objects 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.
When the then Minister for Land Transport and Shipping Support introduced the Act into Parliament in May 1989, he described the policy objective underpinning the legislation as follows:
A vital component of the Federal Government’s road safety strategy is to make the motor vehicle as safe as possible. Our aim is to prevent the crash in the first place and, in the event that a crash occurs, to protect the occupants
...
The principal objective of this Bill, then, is to enable the Federal Government to establish and apply nationally uniform standards for motor vehicle safety and environmental quality expected by the community.
The Act provides for uniform national motor vehicle standards for new vehicles when they begin to be used in transport in Australia and regulates the first supply to the market of used imported vehicles. Broadly speaking, the system is one of “type approval” by which a vehicle of a particular make and model is tested for compliance with the ADRs; if it complies, all others of the same “type” are accepted as complying.
The Minister may, by legislative instrument, determine national standards for road vehicles or vehicle components: s 7. Section 5 provides that the standards, known as the ADRs, are 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.
A person must not import a road vehicle that is nonstandard or does not have an identification plate: s 18(1). A nonstandard vehicle is one which does not comply with the ADRs or is not taken to comply under s 10A(2): s 5. An identification plate is a plate declaring the status of a road vehicle in relation to the ADRs: s 5vehicles.
It is common ground that the Zhejian Wanjin Pailson Motor Tricycle is a road vehicle for the purposes of the Act (see: s 5). Mr Campos does not contest that it is a non-standard road vehicle without an identification plate.
The prohibition in s 18 is modified by ss 19 and 20 by which a person may import a nonstandard vehicle that does not have an identification plate with the approval of the Minister or in circumstances prescribed in the Regulations.
The Regulations prescribe various circumstances in which the Minister may – and in the case of a vehicle manufactured before 1989, must – approve an application to import. An example is where a migrant or an Australian citizen returning permanently from a long period overseas wishes to import a vehicle acquired overseas for their personal use: reg 13.
Besides the prescribed circumstances, the Minister has a general discretion to approve, with or without conditions, the importation of a nonstandard road vehicle or a road vehicle that does not have an identification plate: reg 11.
The exercise of the discretion in reg 11 is the only basis upon which Mr Campos could import the vehicle in question.
Regulation 18
In effect, Mr Campos seeks to test his vehicle for compliance with the ADRs. However, the terms of reg 18, which provides for testing of a road vehicle for import purposes, shows that it is directed to “market evaluation and research” or to “type approvals”. Reg 18 relevantly provides:
(1) Without limiting the generality of subregulation 11(1), the Minister may approve an application to import a nonstandard road vehicle or a road vehicle that does not have an identification plate if he is satisfied that the vehicle:
(a) is a new vehicle to be used:
(i) for market evaluation and research; or
(ii) for tests to establish whether vehicles of a particular type comply with national standards for the purpose of an approval under section 10A of the Act for an identification plate to be placed on a vehicle or vehicles of that type;
Section 10A concerns approval for the placement of identification plates on “new vehicles of a particular type”.
Approval under reg 18(1)(a)(i) is not directed to testing a single vehicle for compliance with the ADRs as Mr Campos seeks to do.
The Register of Specialist and Enthusiast Vehicles
The Act and Regulations provide, in effect, for approval for “full volume” and low volume vehicles. “Full volume” refers to the supply of a type of vehicle which has been given identification plates in accordance with an approval under section 10A in unlimited numbers: reg 3. The Low Volume Scheme for new vehicles allows for supply to the market of up to 25 or 100 vehicles per year, depending on the vehicle category: Importing Vehicles to Australia: Department of Infrastructure, Transport, Regional Development and Local Government, July 2010.
By s 21 of the Act, regulations may provide for the Minister to keep a Register of Specialist and Enthusiast Vehicles (the SEVS Register). The intent of the Register is to make motor vehicles available in Australia which cater for specialist and enthusiast interests: see the Department’s website at roads/motor/sevs/index.aspx.
Subject to reg 7, a road vehicle is eligible for entry on the Register if it is a make of vehicle in a vehicle category in respect of which vehicles are not supplied to the market in full volume in Australia: reg 24(2).
Mr Campos has registered the Zhejian Wanjin Pailson Motor Tricycle on the SEVS Register. He submits that acceptance of his vehicle on the Register should weigh in his favour. However, registration does not, of itself, confer approval to import. Nor does it give rise to any discretion to approve the importation of the registered vehicle.
HOW IS THE DISCRETION TO BE EXERCISED?
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) 162 CLR 24, per Mason J at 39-40.
Regarding the discretion in reg 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 in so far as it as it is affected by limitation to be derived from the context in 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 and 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 11would 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 reg 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, DP 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 reg 13, 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.
CONSIDERATION
Mr Campos frankly acknowledges that his purpose in seeking approval to import the vehicle is to identify what, if any, modification it requires in order to meet Australian standards. He has no argument with the standards; if modifications are necessary, he will have them incorporated into the specifications for the vehicle’s manufacture. He accepts the possibility that, even with modifications, the vehicle might not meet the standards, in which case he proposes to give it to a charity overseas which he supports.
Assuming, with modification, the vehicle would meet Australian design requirements, there is no suggestion that Mr Campos’ safety, or the safety of anyone else, might be adversely affected if approval is granted. He is willing to destroy it or donate it if it fails. However, I am not persuaded that is sufficient to exercise the discretion.
The legislation imposes a prohibition against the importation of vehicles that is broad in its scope and purpose, underpinned by the compelling policy of maintaining the safety of the public on the roads. Consistent with its policy and objectives, it is, in effect, a blanket prohibition against personal importation of nonstandard vehicles except in very limited circumstances. Against that background, there needs to be good reason for the discretion in reg 11 to be exercised.
That is not to say that an applicant must demonstrate something exceptional about his or her case. Nothing in the language of reg 11 fetters the discretion. It is not necessary to find “some exceptional or special or rare circumstances” for the discretion to be exercised: Selway (above) at [39]. It is relevant in this regard that the legislation recognises that the imposition of a condition, or conditions, may be appropriate, and sufficient to meet the policy objectives of the legislation.
That said, Tribunal decisions have generally required “some element of unfairness or injustice to the applicant if approval were not granted”: Haughey and Minister for Infrastructure, Transport, Regional Development and Local Government [2008] AATA 540 at [19].
Mr Campos says innovation is needed in the area of transport for people with disabilities and, with an ageing population, there is some force to that argument. However, it is difficult to see how the safety of the public more broadly would be advanced by approving the importation of a single vehicle for his personal use.
The respondent contends there are three wheeled vehicles and mobility scooters readily available in Australia that would suit Mr Campos’ needs. The respondent has not provided any evidence of such vehicles. Equally, however, Mr Campos has not demonstrated why those models currently available are not suitable for his use. It is relevant that he does not claim any pressing current need for the vehicle.
I agree with the respondent that approving Mr Campos’ application would undermine the policy and objectives of the Act. The compelling public safety and environment considerations which underpin it rely to a large extent on broad-based compliance with very limited exceptions.
I have considered whether Mr Campos’ application might be approved subject to conditions. Reg 11 clearly contemplates that possibility. However, conditions would seem to be appropriate where there is good reason for granting the application and any frustration of the policy and objectives that it presents can be reduced or eliminated by means of conditions. I am not persuaded this is such a case.
I have considerable sympathy for Mr Campos’ position. What he seeks to do is simple enough. However, in all the circumstances, I am not satisfied this is a case in which the discretion in reg 11 should be exercised.
I affirm the decision under review.
I certify that the preceding 37 (thirty seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member J F Toohey.
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Associate
Dated: 30 April 2012
Date(s) of hearing 13 April 2012 Applicant In person Solicitors for the Respondent Mr T Eteuati, Clayton Utz
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