Cates and Minister for Transport and Regional Services
[2004] AATA 1005
•24 September 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 1005
ADMINISTRATIVE APPEALS TRIBUNAL )
) No A2004/160
GENERAL ADMINISTRATIVE DIVISION ) Re MARK CATES Applicant
And
MINISTER FOR TRANSPORT AND REGIONAL SERVICES
Respondent
DECISION
Tribunal Mr S. Webb, Member Date24 September 2004
PlaceCanberra
Decision The decision under review is affirmed. ..............................................
Mr S. Webb, Member
CATCHWORDS
TRANSPORT - motor vehicle importation – nonstandard vehicle without compliance plate – road vehicle – meaning of “motor vehicle” “designed” “solely or principally” for the transport on “public roads” of people, animals or goods – national legislative scheme for road transport – importation prohibited without approval – discretion – no grounds for exercise of discretion – decision affirmed
Motor Vehicle Standards Act 1989 (Cth) sections 3, 5, 5B, 7, 10A, 14, 18, 19, 20
Motor Vehicle Standards Regulations (Cth) 1989 regulations 3, 9, 11
Road Transport Reform (Vehicles and Traffic) Act 1993 (Cth) sections 2, 4, 6
National Transport Commission Act (Cth) 2003 section 3
National Road Transport Commission Act 1991 (Cth)(repealed)
Road Transport (Vehicle Registration) Act 1997 (NSW)
Road Transport (Vehicle Registration) Act 1999 (ACT)
Road Safety Act 1986 (VIC)
Road Traffic Act 1961 (SA)
Transport Operations (Road Use Management) Act 1995 (QLD);
Road Traffic Act 1974 (WA)
Traffic (Road Rules) Regulations 1999 (TAS)
Motor Vehicles (Standards) Regulations (NT)
Motor Vehicle Standards (Road Vehicles) Determination 2003
Australian Design Rules
Australian Road Rules
Re Marra and Minister for Transport and Regional Services (2003) 73 ALD 704
AATA
Permanent Trustee Co of New South Wales Ltd v Council of the Municipality of Campbelltown and Others (1960) 105 CLR 401
Re Warumungu Land Claim; Ex parte A-G (NT) (1987) 77 ALR 27
Re Trajkovski and Department of Transport and Regional Services (2001) AATA 1073
Re Albanus and Department of Transport and Regional Services [2001] AATA 12
Re Anthony and Department of Transport and Regional Services [2001] AATA 543
Re Patel and Department of Transport and Regional Services (2001) 67 ALD 236
REASONS FOR DECISION
September 2004 Mr S. Webb, Member 1. By this application Mr Mark Cates is seeking review of the decision made by a delegate of the Respondent Minister (“the Minister”) on 13 April 2004 to refuse approval to import two Blata Blatino Scooters (chassis numbers 21685 and 21638) (“the Scooters”).
2. The matter came on for hearing before me in Canberra on 15 September 2004. Mr Cates represented himself and gave oral evidence. Mr G. McCarthy, counsel, represented the Minister. Materials were tendered and labelled as exhibits at the hearing.
factual context
3. The following facts are not in dispute.
4. Mr Cates operates a business, Pocket Bikes Australia, that imports miniature motorbikes for supply to the market.
5. By an application dated 8 March 2004 (T8) Mr Cates sought approval to import 34 vehicles, including the Scooters in question. The remaining 32 vehicles were miniature motorcycles designed for use on closed tracks. The application was accompanied by an invoice dated 17 February 2004 (T5), a Bill of Delivery dated 4 March 2004 (T6) and information concerning the Scooters (T7).
6. On 13 April 2004 Mr Cates’ application was refused in relation to the two Scooters, but was otherwise approved (T9, T10 and T15).
7. On 19 April 2004 the Minister’s delegate stated that the application concerning the two Scooters was refused because the Scooters were considered to be “road vehicles” (T13).
8. On 3 May 2004 Mr Cates applied to the Administrative Appeals Tribunal (the Tribunal) for review of the decision (T1).
9. On 22 June 2004 the Minister’s delegate gave a statement of reasons for the decision (T2).
issues
10. The issues that are before the Tribunal for determination are whether the Scooters are road vehicles to which the Motor Vehicle Standards Act 1989 (“the MVS Act”) applies, whereby they are prohibited from importation without approval, and, if so, whether Mr Cates should be given approval to import them.
11. It is not in dispute that the Scooters are “nonstandard” and are not within the Australian Design Rules pursuant to s.7 of the MVS Act.
legal principles
12. Mr Cates’ application arises under the MVS Act and the Motor Vehicle Standards Regulations 1989 (“the Regulations”). Under the MVS Act a person must not import a “road vehicle” that is “nonstandard” or that does not have an identification plate (s.18) other than, inter alia, in prescribed circumstances (s.20).
13. “Road vehicle” is defined to mean, relevantly, “road motor vehicle” (s.5). The definition excludes vehicles that are not road vehicles by determination of the Minister (s.5B). “Road motor vehicle” is defined to mean:
“(a) a motor vehicle designed solely or principally for the transport on public roads of people, animals or goods; or
(b) a motor vehicle that is permitted to be used on public roads.”
“Motor vehicle” is defined to mean, relevantly, “a vehicle that uses…volatile spirit…or any other power (not being human or animal power) as the principal means of propulsion” (s.5).
14. “Nonstandard” is defined to mean, relevantly, “not complying with the national standards” (s.5), being the vehicle standards set out in the Australian Design Rules determined by the Minister (s.7).
15. For the purpose of s.20, Regulation 9 of the Regulations provides that a person may import a nonstandard vehicle with the approval of the Minister. Regulation 11 confers a general discretion on the Minister whereby the Minister may approve, subject to conditions, by signed instrument the importation of a nonstandard vehicle. With regard to the exercise of the general discretion a differently constituted Tribunal said in Re Marra and Minister for Transport and Regional Services (2003) 73 ALD 704 at 715:
“The tribunal accepts that the discretionary power conferred by reg 9B(1) [now regulation 11] of the regulations, although broad and unstructured in its terms, should in practice be exercised only in exceptional circumstances and then only in such a way as would not serve to undermine or frustrate the policy and objects of the Act and the regulations…”
summary findings
16. The Scooters are not covered by a determination pursuant to s.5B of the MVS Act and are not subject of any approvals under that Act.
17. The Scooters are nonstandard road vehicles under the MVS Act.
18. There are no grounds to warrant exercise of the discretion to approve importation of the Scooters.
decision
19. The decision under review is affirmed.
reasons for the decision
20. Making this decision I have carefully considered all of the evidence, the submissions of the parties, the relevant caselaw and legislation.
road motor vehicle
21. I am satisfied that the Scooters are “road motor vehicle[s]” within the meaning of that term under the MVS Act. By definition a “road motor vehicle” is a “motor vehicle” that is “designed” “solely or principally” for the transport on “public roads” of people (inter alia).
22. Plainly, these Scooters are “motor vehicle[s]” as defined. They are powered by petrol motors with an output of 1,400 watts and are for the transport of people. The question is whether they were “designed” “solely or principally” for transport on “public roads”. It is necessary to consider the meaning of those terms within the Act.
23. There is nothing in the MVS Act to indicate that the word “designed” should be accorded a meaning other than its meaning in ordinary usage. The word is defined to mean “a. Marked out, appointed, designate. b. Planned, purposed, intended. c. Drawn, outlined; formed, fashioned, or framed according to design.” (Oxford English Dictionary, 2nd edition 1989). The Term “solely or principally” is exclusive and purposive, referring to that which is only or chiefly concerned with its subject.
24. The term “public roads” is not defined or given special meaning under the Act. In its ordinary sense “public road” means simply a road that is open to the public, that is to which the public has a right of way. In the Minister’s submission, at the common law a road may become public by manifest intention of a landowner to dedicate land as a public road and public acceptance of that dedication (see Permanent Trustee Co of New South Wales Ltd v Council of the Municipality of Campbelltown and Others (1960) 105 CLR 401 at 420), and “road” has no settled legal meaning (see Re Warumungu Land Claim; Ex parte A-G (NT) 77 ALR 27 at 35).
25. In consideration of those submissions it is necessary to consider the cooperative legislative Commonwealth, State and Territory framework concerning road transport to which the Commissioner has drawn attention. The national legislative road transport framework has at its heart the Road Transport Reform (Vehicles and Traffic) Act 1993 (Cth) (“the RTRVT Act”) and the National Transport Commission Act 2003 (Cth) (“the NTC Act”).
26. The RTRVT Act has as its purpose (s.2):
“(1) This Act forms part of a scheme to create uniform or consistent national road transport legislation, as envisaged by the agreements scheduled to the National Road Transport Commission Act 1991.
(2) The scheme is designed to:
(a) improve the safety and efficiency of transport on roads and on other areas that are open to or used by the public; and
(b) reduce the costs of the administration of that transport.
(3) The purpose of this Act is to empower the making of laws for the Australian Capital Territory and the Jervis Bay Territory that are intended to be adopted, along with Division 2 of Part 3 of this Act, by the States and the Northern Territory in accordance with the agreements scheduled to the National Road Transport Commission Act 1991 [repealed].”
I note in passing that the purpose of the NTC Act (s.3) is to:
“(a) establish a National Transport Commission with an ongoing responsibility to develop, monitor and maintain uniform or nationally consistent regulatory and operational reforms relating to road transport, …; and
(b) provide a mechanism for the making of regulations, in accordance with the Agreement [entered into by the Commonwealth and the States and territories under this Act], that set out:
(i) model legislation developed by the National Transport Commission and agreed by the Australian Transport Council relating to road transport…; and
(ii) road transport legislation, regulations and other legislative instruments (whether enacted or in model form) that were developed by its predecessor, the National Road Transport Commission, and agreed by the Australian Transport Council.”
27. The relationship between the RTRVT Act and the MVS Act is set out at s.6 of the RTRVT Act. The RTRVT Act defines “road” to mean “an area that is open to or used by the public and is developed for, or has as one of its main uses, the driving or riding of motor vehicles” (s.4). That definition, or definitions in similar terms, appears in the following State and Territory enactments: Road Transport (Vehicle Registration) Act 1999 (ACT), Road Transport (Vehicle Registration) Act 1997 (NSW), Road Safety Act 1986 (VIC), Road Traffic Act 1961 (SA), Transport Operations (Road Use Management) Act 1995 (QLD), Road Traffic Act 1974 (WA), Traffic (Road Rules) Regulations 1999 (TAS) and Motor Vehicles (Standards) Regulations (NT). I note that those enactments, with the exception of the Transport Operations (Road Use Management) Act 1995 (QLD) and the Road Traffic Act 1974 (WA), contain the following definition for the term “road-related area”:
“(a) an area that divides a road, or
(b) a footpath or nature strip adjacent to a road, or
(c) an area that is open to the public and is designated for use by cyclists or animals, or
(d) an area that is not a road and that is open to or used by the public for driving, riding or parking vehicles, or
(e) a shoulder of a road, or
(f) any other area that is open to or used by the public and that has been declared under section 9 of the Road Transport (General) Act 1999 to be an area to which specified provisions of this Act or the regulations apply.”.
28. The objects of the MVS Act are (inter alia) “to achieve uniform vehicle standards to apply to new vehicles when they begin to be used in transport in Australia”. (s.3) Consistent with the national legislative road transport framework, to which I have referred, I am satisfied that the term “public roads” has a broad meaning that includes the definition of “road” under the RTRVT Act and the definition of “road-related area” under the national legislative transport framework. Those definitions are appropriately applied for the purpose of elucidating the meaning of “road motor vehicle” under the MVS Act.
29. In Mr Cates’ submission the Scooters were not designed for use on public roads and pointed to the manufacturer’s statement to that effect (Exhibit A1 p20). He contended that the Scooters were designed for private recreational use on smooth surfaces or “as a means to an end” in relation to work or shopping related transport on private or road-related areas such as car parks and footpaths. That may be true, but it does not mean that the Scooters are not “road motor vehicles” for present purposes.
30. The technical specifications for the Scooters (Exhibit A1, p6), especially the absence of fitted suspension, indicate that they are designed principally for transport on smooth surfaces as Mr Cates contends. However, the manufacturer’s claims in relation to the Scooter’s indicate the purposes for which they were designed, despite the manufacturer’s “safety information” disclaimer at page 20 of the promotional brochure in Exhibit A1. I note the promotional brochures include photographs of the Scooter being ridden in or adjacent to traffic and the claims set out therein suggest purposes to which the Scooters may be put, including (Exhibit A1:
“He could ride to work on it… Together with [the Scooter] we will be the victors in any traffic jam. And if I can’t find a place to park then I can take [the Scooter] with me to a meeting… [the Scooters] will certainly come in handy when…we want to get to the beach”… Why don’t you take your…Scooter with you when you go shopping?... You can get everywhere with [the Scooter], and quickly. Now traffic jams, queues and waiting will be things of the past…Go from door to door. Precisely. From home to work for example. And Parking? You will always find a bit of room under the coat hanger.”
31. The technical specifications (Exhibit A1, p6) indicate that the Scooters have a 27cc motor with a power output of 1,400 watts, a range of in excess of 40 kilometres and are able to achieve a maximum speed of 35 kilometres per hour. The Scooters are fitted with front and rear lights and disc brakes, rear vision mirrors and are rated to carry a load of up to 90 kilograms.
32. I am satisfied that the Scooters were designed for purposes consistent with the manufacturer’s claims. Those claims persuade me to conclude that the Scooters were designed principally for the transport of people on roads (as defined in the RTRVT Act) and on road-related areas pursuant to the definitions of that term under State and Territory enactments pursuant to the national legislative road transport framework. On that basis I am satisfied that the Scooters are “road motor vehicles”, and “road vehicles” therefore, within the scope of the MVS Act and their importation must be consistent with its terms. I note that motor scooters with a power output exceeding 200 watts are regarded by all legislatures as road vehicles that are prohibited under the Australian Road Rules approved by the Australian Transport Council under the National Road Transport Commission Act 1991 (Cth) (repealed) from road-related areas as defined under the State and Territory enactments to which I have already referred.
33. I note the written evidence of Mr Stephen Hoy, Senior Engineer Department of Transport and Regional Services, concerning the elimination methodology that is adopted by that Department when determining whether a nonstandard vehicle is a “road motor vehicle” for the purposes of the MVS Act and the Regulations (Exhibit R1). I accept Mr Hoy’s opinion that the Scooters are road motor vehicles under the MVS Act.
34. I also note the comments of Superintendent Peter Keogh, Traffic Support Division Victoria Police, concerning the use of motorised scooters in Victoria (Exhibit R2). However, the fact that a scooter may be put to an illegal use does not mean that it was designed purposively for that use.
35. Considering the Australian Design Rules “Vehicle Categories” determined pursuant to s.7 of the MVS Act, I am satisfied that the Scooters are within the “LA” category to which various Rules apply (Exhibit R1, Annexure 2):
“MOPED – 2 wheels (LA)
A two-wheeled motor vehicle, not being a power assisted pedal cycle, with an engine cylinder capacity not exceeding 50ml and a ‘Maximum Motor Cycle Speed’ not exceeding 50km/h…”
Mr Cates agreed that the Scooters do not comply with those Rules. I so find.
36. That being the case, the Scooters are nonstandard road vehicles that may not be imported without the approval of the Minister. It is necessary, therefore, to consider whether the circumstances warrant exercise of the discretion conferred by Regulation 11 of the Regulations.
37. The exercise of the general discretion is not to be exercised other than in exceptional circumstances and in such a way as not to undermine or frustrate the objects of the MVS Act and the Regulations (see Re Marra and Minister for Transport and Regional Services (2003) 73 ALD 704 at 715). The Minister pointed to recent Tribunal cases: Re Trajkovski and Department of Transport and Regional Services (2001) AATA 1073; Re Albanus and Department of Transport and Regional Services [2001] AATA 12; Re Anthony and Department of Transport and Regional Services [2001] AATA 543; Re Patel and Department of Transport and Regional Services (2001) 67 ALD 236.
38. I am satisfied that there are no grounds to warrant exercising the general discretion under Regulation 11 of the Regulations in the circumstances of this case and so find.
conclusion
39. The Scooters are subject to the MVS Act and may only be imported in its terms or the terms of the Regulations. The Scooters are nonstandard road vehicles that must not be imported without the approval of the Minister. There are no grounds to support exercise of the Minister’s discretion under the Regulations.
40. The decision under review is affirmed.
I certify that the 40 preceding paragraphs are a true copy of the reasons for the decision herein of Mr Simon Webb, Member.
Signed: Z. Khan
AssociateDate/s of Hearing 15 September 2004
Date of Decision 24 September 2004
Counsel for the Respondent Mr G. McCarthy
Solicitor for the Respondent Mr D. Fintan
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