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

This matter concerned an application by Mr Colley to import a vehicle from New Zealand, which was part of his deceased father's estate. The vehicle lacked an identification plate, and Mr Colley sought to have the decision to refuse his application set aside. The case was heard by Dr Stewart Fenwick, Senior Member, of the Administrative Appeals Tribunal.

The primary legal issue before the Tribunal was whether the discretion under Regulation 11 of the Motor Vehicle Standards Regulations 1989 should be exercised in Mr Colley's favour to permit the importation of the vehicle. This involved considering the policy objectives of the Act, potential unfairness or injustice to the applicant, financial hardship, the uniqueness of the vehicle, and any unpredictable events that may have thwarted compliance with the Act. The Tribunal also had to determine the nature of the discretion under Regulation 11, drawing on principles from prior case law, particularly *Selway v The Minister for Infrastructure, Transport, Regional Development and Local Government*.

The Tribunal reasoned that the discretion under Regulation 11 is unfettered, and its exercise is only limited by the context, scope, and purpose of the legislative scheme. While acknowledging that public safety is a primary purpose of the Act, the Tribunal found that the additional criteria submitted by the respondent were inconsistent with the nature of the Regulation 11 discretion as explained in *Selway*. The Tribunal concluded that the importation of this vehicle would not be inconsistent with the objectives of the Act and that exceptional circumstances were not a prerequisite for exercising the discretion.

Consequently, the Tribunal set aside the original decision and substituted a new decision approving Mr Colley's application to import the vehicle pursuant to Regulation 11 of the Motor Vehicle Standards Regulations 1989.