Chalmers Nurseries Pty Ltd and Department of Transport and Regional Services

[2001] AATA 307

DECISION AND REASONS FOR DECISION [2001] AATA 307

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No A2000/466

GENERAL ADMINISTRATIVE DIVISION          )          
           Re      CHALMERS NURSERIES PTY LTD     
  Applicant
           And    DEPARTMENT OF TRANSPORT AND REGIONAL SERVICES    
  Respondent

DECISION

Tribunal       Senior Member J.A. Kiosoglous MBE    

Date12 April 2001

PlaceCanberra

Decision      The Tribunal dismisses the application for lack of jurisdiction.           
  (Signed)
  J.A. KIOSOGLOUS
  (Senior Member)
CATCHWORDS
PRACTICE AND PROCEDURE – jurisdiction – decision relating to importation of vehicles – vehicles already imported – whether reviewable or not – must be vehicles that are the subject of the decision capable of being imported in order for Tribunal to perform review
Motor Vehicle Standards Act 1989 ss.3, 20, 39
Administrative Appeals Tribunal Act 1975 ss.29, 43
Motor Vehicle Standards Regulations 1989
Re Phillips and Department of Transport and Communications (AAT 11349, 1 November 1996)
Wilson v Chambers & Co Pty Ltd (1926) 38 CLR 131
Comptroller-General of Customs v Akai Pty Limited and Others (1994) 50 FCR 511
Jebb v Repatriation Commission(1988) 80 ALR 329
Freeman v Secretary, Department of Social Security (1988) 15 ALD 671
Re Confidential and Industry, Research and Development Board [2000] AATA 332

REASONS FOR DECISION

12 April 2001    Senior Member J.A. Kiosoglous MBE               

1. This application comes before the Tribunal to determine the preliminary question of whether or not it has jurisdiction to review a decision of a delegate of the respondent dated 29 August 2000 (T10) which approved the applicant's importation of 12 Shandyong Juli vehicles (the Juli vehicles) subject to certain conditions.

2. The Tribunal had before it the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (T1-T15) as well as written submissions provided by both parties. The applicant was represented by Mr I. Gillespie-Jones and the respondent was represented by Mr G. McCarthy, both of counsel.
   history of the application

3. The applicant sought approval to import 12 Juli vehicles (7YP-950) on 23 July 2000 (T4).  On 11 August 2000 the Administrator of Vehicle Standards replied (T8) stating (inter alia):

   "…
   … Importation is only acceptable if they are to be used for Test and Evaluation and have compliance plates fitted before sale.  Please advise if you wish, on this basis, to proceed with the Test and Evaluation importation.  Note: no further vehicles of this sort may be imported pending compliance approval."

4. The applicant responded by undated letter (T9) stating (inter alia):

   "…
   Mr Russell Higgins has advised that we should have applied for permission to Import the Farm Vehicles for Test and Evaluation purposes.
   We now attach the Application together with the Administrators letter of the 4th of August, stating that the vehicles would be accepted for Importation under the Test and Evaluation clause only.
   We undertake to abide by the restraints of this clause.
   …
   Please also be advised that these vehicles will only be tested and evaluated on our own properties."

1. On 29 August 2000 the Administrator of Vehicle Standards provided a "Vehicle Import Approval" (no. 48006/1) to the applicant (T10), which stated (inter alia):

   "…
   I approve the importation of the vehicle(s) described in the Schedule below under Regulation 9G(a) of the Motor Vehicle Standards Regulations and Section 20(1)(b) of the Motor Vehicle Standards Act 1989 (the Act) on the basis that the vehicle(s) are intended for engineering evaluation purposes pending consideration of your application for Compliance Plate Approval. I am the person authorised under Section 23 of the Act to make this decision.
   It is a condition of this approval that on completion of the evaluation the vehicle(s) be made to meet the national standards for vehicle safety and emissions (Australian Design Rules) which applied in Australia when the vehicle(s) was built, …  When that work is complete a Compliance Plate must be fitted to the vehicle(s).
   To sell the vehicle(s) or to use them in transport in Australia before the Compliance Plate is attached could be an offence under the Act that may attract penalty of a fine of $12,000.
   An application may be made to the Administrative Appeals Tribunal for a review of this decision or you may request, under Section 28 of the Administrative Tribunal Act 1975, reasons for my decision.  Any applications or requests should be made within 28 days of receipt of this notice."

1. The schedule of the Vehicle Import Approval (T10) set out the 12 Juli vehicles which form the substance of the decision.  It is interesting to note that the Approval also advised of the right for review of the decision to this Tribunal and that no such application was made at that time, hence clearly emphasising that the applicant obtained approval for that which was sought.

2. The 12 Juli vehicles were subsequently imported to Australia.  The applicant's representative wrote to the respondent on 5 October 2000 (T11) requesting the respondent to consider the issue of whether or not the vehicles should be classed as road vehicles pursuant to the Motor Vehicle Standards Act 1989 (the Act). The respondent confirmed its opinion that the Juli vehicles are road vehicles in a letter dated 23 October 2000 (T13). The applicant's then representative requested reasons for this decision by letter dated 30 October 2000 (T14) stating, (inter alia):

   "…
   It is my understanding that your office granted import approval for off-road use of the same make and model vehicles, previously imported by Pacific Century Productions of Emerald, Queensland (a company with which my client has commercial ties).
   This previous judgement was acted on in good faith by my client, in conjunction with earlier advice from your office, as a factor in the recent decision to import the twelve unit consignment of vehicles for off-road use by Chalmers Nurseries Pty Ltd.
   In light of this, I also seek clarification as to why there is such a discrepancy in the rulings given by your office in regards to the importation of the same vehicle make and model."

3. Following this request for reasons for that decision, the respondent stated (inter alia) in a letter dated 15 November 2000 (T15):

   "…

   2.The evidence provided to me clearly indicates that the Shandyong Juli 7YP-950 3-wheel vehicles are designed solely or principally for the transport on public roads of people, animals or goods.

   …"

applicant's submissions

1. Mr Gillespie-Jones submitted, on behalf of the applicant, that review was being sought of the decision dated 29 August 2000 (T10) pursuant to section 39 of the Act. More particularly, the applicant seeks a variation of the decision by the Tribunal pursuant to sub-paragraph 43(1)(b) of the Administrative Appeals Tribunal Act 1975, in order to remove the conditions imposed upon the importation of the Juli vehicles.

2. Mr Gillespie-Jones submitted that there is merit in the substantive application, in that the respondent should not have imposed the conditions.  He further submitted that whilst the applicant agreed to the restraint of the conditions for the purposes of testing and evaluation, the conditions were not properly imposed for such purposes, but were imposed above and beyond the testing and evaluation restraint agreed to by the applicant.

3. Mr Gillespie-Jones submitted that the decision was clearly reviewable on its face, and goes so far as to set out the right to seek review. He also submitted that the Tribunal need go no further in terms of jurisdiction than to look at the decision on its face, taking into account its powers pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 and section 39 of the Act.
   respondent's submissions

4. Mr McCarthy submitted, on behalf of the respondent, that there is no vehicle to be imported which is the subject of the decision under review.  He further submitted that the applicant was really wanting the Tribunal to address the issue of whether or not the Juli vehicles were road vehicles, which was outside the scope of the decision under review.

5. Mr McCarthy submitted that the Tribunal was required to consider the same question as that before the decision maker.  He submitted that the applicant could have challenged the conditions of approval prior to importing the Juli vehicles, but chose instead to import the vehicles subject to the conditions which had been imposed.  It is not open to the applicant to now seek to challenge the decision having already imported the vehicles.
   discussion and findings

6. It is clear from the provisions of section 39 of the Act that the Tribunal has jurisdiction to review decisions made pursuant to sub-section 20(1) of the Act. In performing such review, the Tribunal is able to consider the nature of the conditions imposed, as to whether or not such conditions are appropriate. In this regard, the Tribunal is mindful of the approach of Senior Member Eyre in Re Phillips and Department of Transport and Communications (AAT 11349, 1 November 1996).

7. The Tribunal notes, from the outset, that the applicant also appears to have a problem to overcome in terms of being out of the time limits in which to seek review, pursuant to section 29 of the Administrative Appeals Tribunal Act 1975. As that matter was not addressed at the hearing of jurisdiction however, the Tribunal does not propose to deal with it herein. If this particular application advances to future proceedings, and an objection is taken by the respondent to the issue of extension of time, then that matter can be dealt with at an appropriate later time.

8. On the face of it, the decision of 29 August 2000 (T10) is a decision that this Tribunal is empowered to review. The difficulty however, is that the vehicles have already been imported, and it is only with the vehicles in Australia that the applicant now seeks review of the conditions attached to that importation. Whether or not the Tribunal is able to review such a decision once importation has occurred depends upon the construction that is given to section 20 of the Act, and particularly, how decisions made pursuant to that section should be characterised.

9. Whilst both parties made specific reference to Regulation 9G of the Motor Vehicle Standards Regulations 1989, the Tribunal considers that it must be borne in mind that the regulations are in force under the Act, such that sub-paragraph 20(1)(b) of the Act is the primary provision to which the Tribunal must look. In that sense, whilst the regulations may govern "prescribed circumstances", pursuant to sub-section 20(3) of the Act, and at a hearing of the substantive matter, the Tribunal would need to be mindful of all such regulations, it is the characterisation of section 20 that is the paramount consideration in relation to jurisdiction.

10. The Tribunal notes from the outset that it is satisfied, and so finds, that the Juli vehicles have been imported for the purposes of the Act.  Whilst no evidence was taken at the hearing on jurisdiction, both parties indicated to the Tribunal that, as noted in the documentary material, the Juli vehicles are now in Australia.  "Import" is defined in the Act by reference to the Customs Act 1901, which in turn does not provide a definition of "import". Such a definition is found in the case law however, and the Tribunal is mindful of Isaacs J in Wilson v Chambers & Co Pty Ltd (1926) 38 CLR 131 at p139, wherein he stated (inter alia):

    "…
    … the expression "imported goods", in sec. 68, means goods which in fact are brought from abroad into Australian territory, and in respect of which the carriage is ended or its continuity [is]  in some way in fact broken. …"

1. Section 3 of the Act sets out its object, namely:

   "… to achieve uniform vehicle standards to apply to road vehicles when they begin to be used in transport in Australia."

1. Section 20 of the Act must be considered therefore, to relate to the objective of ensuring uniform vehicle standards for vehicles considered "road vehicles" in Australia. More particularly, section 20 concerns the circumstances of importation of vehicles in circumstances where the vehicles in question do not meet the uniform standards. The significant aspect of sub-section 20(1), in the Tribunal's opinion, is the manner in which it is phrased, namely, "A person may import a nonstandard road vehicle …" (Tribunal's emphasis).  It is thereby, an enabling section.  It enables a person to do something, that being to import nonstandard vehicles.  A decision made pursuant to sub-paragraph 20(1)(b) of the Act has the effect therefore, of granting to an applicant a positive right to do something, namely, import certain nonstandard vehicles.

2. Those "certain" nonstandard vehicles to which the positive right attaches will be those that are the subject of the decision. In this case, they constitute the 12 Juli vehicles specified in the Schedule attached to the decision. The granting of a positive right in this way is to be distinguished from the grant of an ongoing entitlement. A decision pursuant to sub-section 20(1) does not grant an ongoing right to import vehicles, but grants a specific positive right to import certain vehicles.

3. With this in mind, the Tribunal has considered the nature of its function, namely, to work out "what it considers the decision ought to be" (per Hill J in Comptroller-General of Customs v Akai Pty Limited and Others (1994) 50 FCR 511 at p521. Hill J refers in Akai to a number of decisions of Davies J, notably Jebb v Repatriation Commission (1988) 80 ALR 329 and Freeman v Secretary, Department of Social Security (1988) 15 ALD 671 wherein Davies J referred to the notion of the administrative "continuum", establishing that the Tribunal may, in deciding what it considers the decision ought to have been, look beyond that which was before the primary decision maker.

4. Davies J in Freeman points out that "regard must always be had to the nature of the decision which is under review …" (at p509-10).  In that regard, the decision may be as to an ongoing entitlement, or relate to a finite period of time.  In Freeman, Davies J summarises the position in relation to pension cases as follows (inter alia at p509):

   "…
   The ambit of the jurisdiction of the Administrative Appeals Tribunal in relation to the review of a decision to cancel a pension or benefit is therefore less than would be the jurisdiction of the Tribunal in respect of a refusal to grant a pension or benefit or a decision suspending the payment of a pension or benefit.  In the latter cases, there may well be an ongoing entitlement to a pension or benefit which Tribunal should recognise when formulating its decision. …"

5. The effect of this continuum is, of course, that the Tribunal is able to look at circumstances beyond the time of the primary decision when deciding questions of ongoing entitlements.  As Hill J points out in Akai however, (inter alia at p521):

   "…
   It is true that the review to be conducted by the Tribunal is a review of a specific decision and if that decision has to be made by reference to a particular point of time the Tribunal will be limited to deciding the question by reference to that point of time.  That was the case in Hospital Benefit Fund of Western Australia Inc v Minister for Health, Housing and Community Services (1992) 39 FCR 225, but ordinarily in such a case the Tribunal will not be limited to the evidence before the decision-maker although obliged to address the question the decision-maker addressed.
   …"

1. What is clear, is that the Tribunal is therefore required to consider the effect of the decision under review, as to determining the scope of its review function.  In this case, it is a decision which has granted a condition right to import 12 Juli vehicles.  Deputy President McMahon notes in Re Confidential and Industry, Research and Development Board [2000] AATA 332 at paragraph 8 that it is necessary to determine "whether its [the sub-section's] effect continues after the original decision has been made".

2. In the present matter, a similar question arises for the Tribunal, in that whilst clearly the impact of a decision under sub-section 20(1) will extend beyond the date of the decision, there is a question as to whether or not such a decision has a finite life. In other words, does the fact that the vehicles that were the subject of the decision have been imported mean that the decision itself ceases to be operative?

3. As the Tribunal stated in paragraph 20, a decision made pursuant to sub-section 20(1) of the Act is to be distinguished from those decisions which grant ongoing entitlements. The decision dated 29 August 2000 (T10) granted the applicant the positive right to import the 12 Juli vehicles should he so desire. Those vehicles are now in Australia. They are not currently capable of being imported. Were the Tribunal to review the primary decision and vary it to remove the conditions imposed in the conditional importation, that review would serve no purpose. None of the vehicles listed in the Schedule to which the decision refers are in a position to be imported with or without the imposed conditions. In that regard, application for review of a decision made pursuant to sub-section 20(1) of the Act needs to be made prior to the importation of the vehicles to which the decision relates, as section 20 operates as an enabling provision. What it enables, is importation. Where importation has already occurred, variation of the conditions of the importation will achieve nothing, as that action which the section enables has already been acted upon. Upon the importation being acted upon, there will no longer be a vehicle that is rightly the subject of the original application.

4. In the Tribunal's opinion, the effectiveness of the decision under review only lasts as long as the vehicles specified in the Schedule to which the decision relates are able to fall into the category of vehicles that "a person may import". The existence of vehicles that may be the subject of importation is akin to a condition precedent to the making of a decision pursuant to section 20 of the Act. As the Juli vehicles in the present application do not fall into that category, review of the decision dated 29 August 2000 (T10) by this Tribunal would achieve nothing.

5. Accordingly, the Tribunal is satisfied, and so finds, that whilst it clearly has jurisdiction to review decisions made pursuant to section 20, that jurisdiction is limited to circumstances in which the vehicles which were the subject of the decision are still capable of having the positive act of importation effected upon them. In absence of such, there should be no jurisdiction, as review would not achieve anything.

6. The Tribunal notes that there are other rights of review under the Act, and the applicant is in no way prohibited from applying to the respondent for the various kinds of approval specified in other sections of the Act. Failing such approval, this Tribunal would be in a position to review those decisions. It is simply that a review of the section 20 decision is not appropriate in this case.
   decision

7. For the above reasons, the Tribunal dismisses the application for lack of jurisdiction.

   I certify that the 31 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member J.A. Kiosoglous MBE

   Signed:         .........................(Signed).............................................
     Personal Assistant

   Date/s of Hearing  9 March 2001
   Date of Decision  12 April 2001
   Counsel for the Applicant        Mr I. Gillespie-Jones
   Solicitor for the Applicant         Gillespie-Jones & Co
   Counsel for the Respondent    Mr G. McCarthy
   Solicitor for the Respondent    AGS