CARL BRANSTER and MINISTER FOR INFRASTRUCTURE, TRANSPORT, REGIONAL DEVELOPMENT AND LOCAL GOVERNMENT

[2010] AATA 571

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 571

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2010/0377

GENERAL ADMINISTRATIVE DIVISION		)
Re		CARL BRANSTER

Applicant

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

Respondent

DECISION

Tribunal Mr R G Kenny, Senior Member

Date3 August 2010

PlaceBrisbane

Decision The Tribunal affirms the decision under review.

..............[Sgd]................................

Senior Member

CATCHWORDS

TRANSPORT – Motor vehicle importation – Nonstandard vehicle – Vehicle owned but not used for a continuous period of 12 months – General discretion to approve importation not exercised – Consideration of relevant factors for exercise of that discretion – Decision under review affirmed.

Motor Vehicle Standards Act 1989 (Cth), ss 5, 7, 18, 20
Motor Vehicle Standards Regulations 1989 (Cth), regs 3, 11, 13

Re Bowering and Minister for Infrastructure, Transport, Regional Development and Local Government [2007] AATA 2079
Re Bradshaw and Minister for Infrastructure, Transport, Regional Development and Local Government (2008) 106 ALD 630
Re Da Silva and Department of Transport and Regional Services (2004) 85 ALD 756

Re Fraser and Department of Transport and Regional Services (2003) 73 ALD 94; [2003] AATA 44

Re Marra and Minister for Transport and Regional Services (2003) 73 ALD 704
Re Trajkovski and Department of Transport and Regional Services (2000) 32 AAR 457

Re Williamson and Minister for Infrastructure, Transport, Regional Development and Local Government [2009] AATA 48

Re Markovich and Minister for Infrastructure, Transport, Regional Development and Local Government [2009] AATA 358

REASONS FOR DECISION

3 August 2010 Mr R G Kenny, Senior Member    

BACKGROUND

1.      On 14 October 2009, Carl Branster completed an application form for approval to import a 1994 Southwind Motorhome (“the vehicle”) into Australia from the United States of America (USA).  On 23 November 2009, an Administrator of Vehicle Standards acting in accordance with the terms of the Motor Vehicle Standards Act 1989 (Cth) (the Act) refused the application. That decision was affirmed on 24 December 2009.

CONTENTIONS

2.      For the respondent, Mr Palfrey submitted that the vehicle did not comply with Australian standards and, as such, was a “nonstandard” vehicle as defined in s 5(1) of the Act which was not permitted, under s 18 of the Act, to be imported into Australia unless Mr Branster’s circumstances were encompassed by a relevant exception in s 20 of the Act.  He submitted that these exceptions were set out in regs 11 and 13 of the Motor Vehicle Standards Regulations 1989 (“the Regulations”) and that Mr Branster’s situation did not satisfy either of those provisions. Mr Branster conceded that he did not satisfy the requirements of reg 13 but contended that the discretion in reg 11 of the Regulations should be exercised in his favour to enable the vehicle to be imported. He contended that he had relied, in good faith, on advice provided to him about importation; that he did not intend to sell the vehicle in Australia; that, if he was to sell the vehicle in the USA, he would do so at a loss; that he returned to Australia for a period because of the illness of his wife; and that he and his wife, after 60 years of marriage, wished to realise the dream of driving around Australia in the vehicle.

ISSUES AND LEGISLATION

3.      It is not disputed that the vehicle does not comply with Australian Design Rules and, accordingly, is nonstandard[1]. Its importation is prohibited under s 18 of the Act. That provision is to be read subject to the application of s 20 of the Act which provides for importation in circumstances prescribed under the Regulations. Of potential relevance are regs 11 and 13 of the Regulations. Regulation 13 includes the requirement that Mr Branster must have owned and used the vehicle for a continuous period of 12 months. Mr Branster conceded that this requirement has not been met. Regulation 11 reads:

[1] In so far as relevant, the term nonstandard means not complying with the national standards. These are set out in the Australian Design Rules (ADRs): see ss 5 and 7 of the Act and reg 3 of the Regulations.

11       Minister's approval to import vehicles without identification plates

(1)The Minister may approve an application to import a nonstandard road vehicle or a road 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.

4.      The issue for determination is whether the discretion in that provision should be exercised in Mr Branster’s case.

EVIDENCE

5.      Mr Branster is an Australian citizen and normally resides in Queensland with his wife.  They wished to purchase a motorhome to enable them to spend time travelling in Australia.  Periodically, Mr Branster worked in the USA and was aware that a used motorhome was substantially less expensive there than in Australia.  Before leaving Australia for the USA in September 2009, he spoke with a person employed by Queensland Transport at the Gold Coast about the specifications that the vehicle would need to meet for road use in Australia.  He described him as the “chief registration inspector” (the inspector).  The inspector provided Mr Branster with documents in which the specifications were listed.  He then told him that the vehicle would need to be more than 15 years old and have been owned and used by Mr Branster in the USA for a period of three months.  The advice Mr Branster received was consistent with that which had enabled him to import a similar vehicle some 20 years earlier.  Mr Branster described the inspector as a part-time employee of Queensland Transport who also carried out modifications to imported vehicles so as to bring them into compliance with specifications for road use in Australia.

6.      Mr Branster relied on the advice he was given by the inspector.  In the USA, he inspected many motorhomes, most of which did not meet the required specifications.  This was mainly because the width of a typical motorhome in the USA exceeded that which was permissible in Australia.  Eventually, he located the vehicle, which was more than 15 years old, and purchased it for $33,000.00 in Texas on 8 October 2009.  He then telephoned the inspector and advised him of the purchase.  The inspector advised him to send the vehicle to Australia where various modifications would be completed to meet the specifications for use in Australia.  This included converting the vehicle to right hand drive.  Mr Branster drove the vehicle to California and made arrangements for it to be shipped to Australia some three months ahead in order to comply with the three month ownership and use requirement about which he had been advised.  As noted above, he applied, on 14 October 2009, for approval to import the vehicle into Australia. 

7.      Mr Branster returned to Australia in 2010 because of his wife’s health problems.  She suffered from shingles and underwent surgery for gall bladder problems.  Mr Branster remained in Australia for approximately three months and then returned to the USA for work purposes.  Mr Branster was in the USA at the time of the Tribunal hearing.  He still owns and uses the vehicle and believes that, if forced to sell it in the USA, he would only receive approximately one-half of his outlay.  He has no intention of selling the vehicle for profit in Australia.

CONSIDERATION

8.      Regulation 13 includes the requirement that Mr Branster must have owned and used the vehicle for a continuous period of 12 months.  Mr Branster did not meet that requirement when he applied to have the vehicle imported and, indeed, has not owned it for 12 months at the time of the hearing.  I am satisfied that reg 13 is not of assistance to him.

9. Regulation 11 gives rise to a discretion to allow the importation of a nonstandard vehicle. The legislative scheme under the Act and Regulations operates to ensure that vehicles imported into Australia meet uniform safety and environmental standards and the application of reg 11 must be consistent with that purpose[2]. In some cases, the Tribunal has required exceptional circumstances to be demonstrated for reg 11 to apply[3].  In more recent cases, the exercise of the discretion was 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[4].

[2] See Re Bradshaw and Minister for Infrastructure, Transport, Regional Development and Local Government (2008) 106 ALD 630.

[3] See Re Trajkovski and Department of Transport and Regional Services (2000) 32 AAR 457 and Re Marra and Minister for Transport and Regional Services (2003) 73 ALD 704.

[4] Re Da Silva and Department of Transport and Regional Services (2004) 85 ALD 756 at 767. See also Re Bradshaw and Minister for Infrastructure, Transport, Regional Development and Local Government (2008) 106 ALD 630; Re Bowering and Minister for Infrastructure, Transport, Regional Development and Local Government [2007] AATA 2079; and Re Markovich and Minister for Infrastructure, Transport, Regional Development and Local Government [2009] AATA 358.

10.     I agree with the latter approach.  I also consider that the following observation by the Tribunal is relevant:

By 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. But the discretion can be exercised if there is a good reason to do so and the objectives of the legislative scheme are not compromised. The Act does not attempt to define what facts or circumstances might justify the exercise of the discretion. I must instead consider each application on its merits, while keeping a careful eye on the objects of the Act[5].

[5] Re Williamson and Minister for Infrastructure, Transport, Regional Development and Local Government [2009] AATA 48 at [11].

11.     I accept that Mr Branster’s motivation for purchasing the vehicle was to enable himself and his wife to travel in Australia and that his motivation for purchasing it in the USA was financial in that such a vehicle was substantially less expensive there than in Australia.  He contended that he had relied in good faith on advice provided to him about importation.  The information that Mr Branster was given about the period of three months during which he needed to own and use the vehicle in the USA was incorrect.  It reflected the regulation before it was amended in 2005[6]. Reliance on incorrect information provided by the respondent has provided a basis for the application of reg 11 of the Regulations[7].  However, the advice Mr Branster received was not from the respondent.  On Mr Branster’s evidence, it came from an employee of a Queensland government department which has no role to play in relation to importation of vehicles.  It would seem that the document setting out information about vehicle specifications that Mr Branster was given was in relation to the requirements for a vehicle to be registered for road use in Queensland.  Those are matters that would need to be satisfied if the vehicle had been imported.

[6] See Motor Vehicle Standards Amendment Regulations 2005 (No 1).

[7] See Re Marra and Minister for Transport and Regional Services (2003) 73 ALD 704

12. The Tribunal has considered the discretion under reg 11 in circumstances where reliance was placed on Commonwealth documentation about importation requirements which were provided by a State government department[8].  There, the documents were out-of-date by a period of a few months.  Here, there is no evidence that Mr Branster was provided with Commonwealth documentation and, in any event, the advice of the inspector about the qualifying ownership/use period was four years out-of-date.  Mr Branster made no attempt to obtain the correct information from the respondent.  Instead, he received oral advice from the inspector and relied upon this because it was consistent with the requirements as they existed 20 years ago when Mr Branster was able to import a similar vehicle. 

[8] See Re Fraser and Department of Transport and Regional Services (2003) 73 ALD 94; [2003] AATA 44.

13. I have noted Mr Branster’s assurance that he does not intend to sell the vehicle for profit in Australia, that he may not realise the full outlay on the vehicle if he sells it in the USA, the state of his wife’s health and his desire to travel around Australia. However, in the context of the purpose of the legislative scheme under the Act and Regulations, rejection of Mr Branster’s application does not reflect unfairness or injustice to him and I am satisfied that the discretion in reg 11 of the Regulations should not be exercised.

DECISION

14.The Tribunal affirms the decision under review.

I certify that the 14 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Senior Member.

Signed: ........................[Sgd].....................................................
  Kate Slack, Research Associate

Date of Hearing  15 July 2010
Date of Decision  3 August 2010
The Applicant was self-represented
Solicitor for the Respondent:     Clayton Utz Lawyers