Colley and Secretary, Department of Infrastructure, Transport, Cities and Regional Development

[2019] AATA 4204

Colley and Secretary, Department of Infrastructure, Transport, Cities and Regional Development [2019] AATA 4204 (19 September 2019)

Division:GENERAL DIVISION

File Number:           2019/1316

Re:Emerson Colley

APPLICANT

Secretary, Department of Infrastructure, Transport, Cities and Regional DevelopmentAnd  

RESPONDENT

DECISION

Tribunal:Dr Stewart Fenwick, Senior Member

Date:19 September 2019

Date of written reasons:        15 October 2019

Place:Melbourne

The Tribunal sets aside the decision under review and in substitution decides that the applicant's application of 12 December 2018 to import a 2013 Jaguar XK motor vehicle be approved pursuant to Regulation 11 of the Motor Vehicle Standards Regulations 1989.

[sgd]........................................................................

Dr Stewart Fenwick, Senior Member

CATCHWORDS

MOTOR VEHICLE IMPORTATION – vehicle from New Zealand – vehicle without identification plate – vehicle part of inheritance – whether discretion should be exercised – decision set aside

Legislation

Motor Vehicles Standards Act 1989

Motor Vehicle Standards Regulations 1989

Cases

Selway v Minister for Infrastructure, Transport, Regional Development and Local Government [2011] FCA 43

REASONS FOR DECISION

Dr Stewart Fenwick, Senior Member

15 October 2019

BACKGROUND

1. Mr Colley sought approval on 12 December 2018 to import a 2013 Jaguar XK sports car (the vehicle) from New Zealand under Regulation 13 of the Motor Vehicle Standards Regulations 1989 (the Regulations). A decision was made on 9 January 2019 not to approve this importation, and not to exercise discretion under Regulation 11.

2. It was common ground at the hearing that Mr Colley did not meet the criteria required by Regulation 13, which is known as the personal imports option. The focus of the hearing was the discretionary approval option under Regulation 11.

3. Mr Colley appeared at the hearing and was assisted by his shipping agent Mr Hughes and both men gave evidence. The T-documents were admitted.

   LEGISLATION

4. Under s 18 of the Motor Vehicles Standards Act 1989 (the Act) it is prohibited to import into Australia a nonstandard vehicle or a vehicle without an identification plate. Both the terms nonstandard and identification plate are defined in s 5 of the Act in terms of vehicle standards established by the Minister under s 7. Vehicle standard is defined in s 5 as including standards designed to make road vehicles safe for use, among other things. 

5. The objects of the Act are stated in s 3 in this way:

   The main objects of this Act 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.

6. The Minister may approve, in writing under s 19 of the Act, the importation of a nonstandard vehicle or a road vehicle that does not have an identification plate. Regulations made under s 42 of the Act establish a number of types of approval and these include Regulation 11 and Regulation 13 approvals.

7. Regulation 11 reads as follows:

   Minister’s approval to import vehicles without identification plates

   1The Minister may approve an application to import a nonstandard road vehicle or a road vehicle that does not have an identification plate.

   2An approval may be given subject to conditions specified in the instrument of approval.

   3Without 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.

   4An approval must be given by signed instrument.

8. Regulation 13 bears the subheading ‘approval to import vehicle without an identification plate if owned and used by applicant overseas’, and sets out a series of criteria regarding vehicle ownership, use, and residence requirements both overseas and in Australia.

   KEY FACTS AND SUBMISSIONS

9. Mr Colley gave evidence that his father purchased the vehicle second hand in              New Zealand in August 2017. He stated that the vehicle is currently garaged at his stepmother’s house in New Zealand and it had been serviced recently. It is a standard model of its type with no modifications.

10. Mr Colley also gave evidence that he had spent time driving the vehicle with his father to medical appointments for, among other things, chemotherapy, in his father’s final months prior to his death in June 2018. Although only owned for under a year, it had been his father’s ‘dream car’.

11. Mr Colley stated that the vehicle was part of his father’s estate and he intended to purchase his sister’s half share of the vehicle should importation be approved. His objective is to use the car for his own purposes, as an addition to his current family car. Should approval not be granted, Mr Colley’s evidence was that the vehicle would be sold and the proceeds divided as part of the estate.

12. Mr Hughes gave evidence that in the case of approval and importation, the vehicle would proceed through a series of local registration procedures with the assistance of a mechanic. He also gave evidence that New Zealand road safety standards are comparable with those in Australia and, in the case of used cars, could be considered to exceed Australian standards.

13. It was submitted in the Respondent’s Statement of Facts, Issues and Contentions (SFIC) at paragraphs 41-51 that a decision maker may take into account a number of potentially relevant factors in considering the exercise of the Regulation 11 discretion:

    (a)the policy objectives of the Act;

    (b)any unfairness or injustice to the Applicant;

    (c)financial hardship that would be occasioned by not being approved to import the vehicle;

    (d)whether the vehicle is unique; and

    (e)whether there were any unpredictable or unexpected events, beyond the Applicant’s control, that intervened to thwart their plans to comply with the Act.

14. It was, however, conceded by the Respondent’s representative at the hearing that this list was drawn from prior decisions of the Tribunal and did not have any higher authority than this.

15. In relation to the objectives of the vehicle importation scheme overall, it was also submitted that personal importation of vehicles is restricted to specific circumstances.  There must be a ‘good reason’ for exercise of the discretion ‘so that the scheme is not undermined by making redundant the general prohibition on the importation of nonstandard road vehicles’ (SFIC at paragraph 45).

16. I was also referred to prior decisions of the Tribunal in situations broadly consistent with the facts of this matter, being matters in which approval for importation was sought following inheritance of a vehicle.

17. It was submitted at the hearing that sentimental attachment, or the simple fact of an inheritance, was not a sufficient basis on which to exercise the discretion.

    CONSIDERATIONS

18. As noted, the hearing proceeded on the basis that the primary issue was the exercise of the discretion under Regulation 11. Whilst import procedures were not discussed at length at the hearing, it appears that, in practice, prospective importers are advised to select an appropriate import option and, if none suits their particular circumstances, to apply using the personal imports option (found in Regulations 13).[1]

    [1] Information on the Department’s website about discretionary approvals under s 19 of the Act (T3, pp 17-18).

19. The discretionary approval import option was considered in Selway v The Minister for Infrastructure, Transport, Regional Development and Local Government [2011] FCA 43 (Selway). I draw from this decision several principles:

    (a)the discretion in Regulation 11 is ‘unfettered’;[2]

    (b)an instrument must be construed so that it is consistent with the language and purpose of the statute;[3]

    (c)a discretion expressed without any qualification is unconfined except in so far as it is affected by the limitations to be derived from the context, scope and purpose of the legislative scheme;[4]

    (d)Regulation 11 and Regulation 13 are separate approval types and an inability to satisfy criteria under Regulation 13 is not a reason not to exercise the Regulation 11 discretion;[5] and

    (e)exceptional, special or rare circumstances are not criteria required to be satisfied in exercising the Regulation 11 discretion.[6]

    [2] Selway at 34 and 38.

    [3] Selway at 35.

    [4] Selway at 36.

    [5] Selway at 38.

    [6] Selway at 39.

20. The title of the Act, its object, and the definition of vehicle standards set out above demonstrate that public safety must be understood as a, if not the, primary purpose of the Act. The Regulations must therefore be interpreted, and the discretion in question here exercised, accordingly.

21. I understand, based on the basis of the principles drawn from Selway, that my primary concern should be that importation of this vehicle would not be inconsistent with the objectives of the Act.  I also understand that the additional criteria, which it was submitted that I need to consider, are inconsistent with the description of the nature of the Regulation 11 discretion, as explained in Selway.

22. I accept that the purpose of the Act is to establish a regime to ensure vehicle safety and, as part of that, to put in place, through the Regulations, different import approval types. The Act deals with more than simply imported vehicles, and addresses provision of vehicles to the market more broadly.

23. In this wider legislative context, the importation of vehicles by individuals can be seen to be a small part of a larger regulatory framework. I note the observations in Selway (at 37) (emphasis added):

    It may well be that it will not be a common circumstance that a person seeking to import a non-standard vehicle will have the discretion available under Reg 11 exercised in that person’s favour.  In some circumstances, such an importation might undermine or frustrate the policy and objectives of the Act.  Clearly, in such circumstances, the favourable exercise of the discretion under Reg 11 would require there to be weighty countervailing factors.

24. However, I must also consider the clear principles set out in Selway, particularly identifying Regulation 11 as a separate import approval type. This is reinforced by the publicly available material referred to above which addresses discretionary approval directly, albeit advising individuals to first apply using other import approval types.

25. I am satisfied that I am not required to consider whether there is anything exceptional or particular to Mr Colley’s application. Such evidence obtained at the hearing about the history of the vehicle and what may be motivating factors behind Mr Colley’s application therefore serve largely to provide background information, and are not directed to meeting any particular criteria. 

26. Having said that, I do consider at least the following issues to be important with regard to considering whether approval, in this instance, might undermine or frustrate the policy objectives of the Act. These issues are vehicle safety and Mr Colley’s stated intentions.

27. I am satisfied on the basis of the evidence set out above, that the vehicle in question is not likely to pose a risk to public safety. In any event, and consistent with the evidence, I am satisfied that Australian national and state (in this case) laws and regulations with regard to registration and use of vehicles will serve to prevent this particular vehicle being used, should it, for some reason, not be compliant with relevant laws and regulations upon importation.

28. It was certainly not contended on the part of the Respondent that the vehicle might in some way be of a kind that might cause concern for public safety.

29. I also accept the evidence given that this vehicle is intended for personal use. As noted, Mr Colley was obliged to apply initially under Regulation 13 while not meeting its criteria. However, given that the objects of the Act include reference to supply to the market, I consider it relevant that his intention is to maintain the vehicle for private use.

30. Accordingly, I am satisfied that the exercise of the Regulation 11 discretion in this case is appropriate.

    DECISION

31. The Tribunal sets aside the decision under review and in substitution decides that the applicant's application of 12 December 2018 to import a 2013 Jaguar XK motor vehicle be approved pursuant to Regulation 11 of the Motor Vehicle Standards Regulations 1989.

I certify that the preceding 31 (thirty-one) paragraphs are a true copy of the written reasons for the decision herein of Dr Stewart Fenwick, Senior Member

[sgd]........................................................................

Associate

Dated: 15 October 2019

Date of hearing:	19 September 2019
Advocate for the Applicant:	Andrew Hughes
Advocate for the Respondent:	Michael Palfrey
Solicitors for the Respondent:	HWL Ebsworth Lawyers