DARRYL McPARTLAND and and KATHLEEN McPARTLAND Joined Party
[2009] AATA 205
•26 March 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 205
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/4486
GENERAL ADMINISTRATIVE DIVISION ) Re DARRYL McPARTLAND Applicant
And
MINISTER FOR INFRASTRUCTURE, TRANSPORT, REGIONAL DEVELOPMENT AND LOCAL GOVERNMENT
Respondent
And
KATHLEEN McPARTLAND
Joined Party
DECISION
Tribunal Deputy President D G Jarvis Date26 March 2009
PlaceAdelaide
Decision
The tribunal decides that it has jurisdiction to determine the within proceedings.
D G Jarvis
(Signed)
Deputy President
CATCHWORDS
PRACTICE AND PROCEDURE – JURISDICTION – application to import Harley Davidson motorcycles – application referring to unspecified vehicles of a generic model, without stating unique identifier – requirements for valid application – application to import vehicles held not to be defective – meaning of “unless otherwise specified”
STATUTES – INTERPRETATION – relevance of purpose of legislation to consideration of express exceptions – different expressions qualifying statutory definitions in same Act – meaning of “unless otherwise specified” compared with “unless a contrary intention appears”
Acts Interpretation Act 1901 (Cth), ss 15AA and 15AB
Motor Vehicle Standards Act 1989 (Cth), ss 5, 5A and 20
Motor Vehicle Standards Regulations 1989, regs 10, 11 and 18(1e)
NAAO v Secretary, Department of Immigration and Multicultural Affairs (2002) 117 FCR 401
CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384
Jolly v Yorketown District Council (1968) 119 CLR 347
Nystrom v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 143 FCR 420
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
Rieson v SST Consulting Services Pty Ltd (2005) 142 FCR 482
D.C. Pearce and R.S. Geddes, Statutory Interpretation in Australia, (6th Edition, 2006)
REASONS FOR DECISION
26 March 2009 Deputy President D G Jarvis 1. The applicant, Darryl McPartland, made an application for approval to import eight Harley Davidson motorcycles from the United States of America. He did so in his capacity as the trustee of a superannuation fund. The joined party, Kathleen McPartland, is his co-trustee.
2. No information as to the type or model of the motorcycles was included on the application form, but a covering letter addressed to an officer of the Department of Infrastructure described the application as an application for “permission to import the 8 x 105 Anniversary Harley Davidson’s” (sic) (T5, page 21). The letter continued:
“Some of these Motorbikes will be new and some will be second-hand, depending on what we find when we get over there, these will go with our collection of the other 8 x 105 Anniversary Harley Davidson motorbikes that we already purchased in Australia. These models are not available in Australia, but we would like to import them from the USA. These will be used for our collection and for show purposes only, under the category of Collectable and Show Pieces.”
3. There were subsequent email communications between Mr McPartland, a departmental officer and a third party involved in the importation of Harley Davidson motorcycles, and as a result, six motor cycles of the 105th anniversary range were identified by generic model variance. It was accepted that this further information could supplement the application, and the parties treated the application as related to those model variants.
4. A delegate of the respondent subsequently rejected the application on the grounds that Harley Davidson Australia had advised that the motorcycles which Mr McPartland was seeking to import into Australia were similar to motorcycles supplied to the Australian market, and so were not eligible to be imported under regulation 18(1)(e) of the Motor Vehicle Standards Regulations 1989 (the Regulations), or any other provision of those Regulations.
5. Subsequently, the respondent contended that he (and equally, this tribunal on review) had no power to approve or reject the application, because it did not specify the vehicles concerned by way of identification numbers, chassis numbers or any other form of unique identification. It is appropriate to determine this contention as a preliminary point, as it goes to the tribunal’s jurisdiction to determine the application made by Mr McPartland to review the decision referred to in paragraph 4 above.
Issue for Determination
6. The issue for determination therefore is whether or not the respondent, or this tribunal on review, is empowered to grant an application to import vehicles that were not identified by reference to any unique identification, but were merely described as a type or category of vehicles. It was not disputed that Mr McPartland was entitled to include more than one vehicle in his application.
Legislative Provisions
7. The Regulations were made under the Motor Vehicle Standards Act 1989 (Cth) (the Act). Under s 3 of the Act, its main objects 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.”
8. Section 18 of the Act provides that a person must not import a road vehicle that is nonstandard, or does not have an identification plate. The respondent asserts in his submissions on the above preliminary point that it is not in contention that the motorcycles which Mr McPartland applied to import are both nonstandard and do not have identification plates. Mr McPartland did not contradict this assertion (although it appears to follow from his lawyer’s written submissions, to which I will refer below, that the particular vehicles which he proposes to purchase in due course in the United States will have identification plates on them).
9. The prohibition in s 18 is subject to s 19, under which the Minister may approve importation subject to conditions to be determined, and s 20. Under s 20(1)(b), a person may import a nonstandard road vehicle or a road vehicle that does not have an identification plate in prescribed circumstances. The relevant circumstances are provided for in the Regulations.
10. Under s 5 of the Act, the word “nonstandard” is defined as follows, unless the contrary intention appears:
“nonstandard, in relation to a road vehicle or a vehicle component, means not complying with the national standards and not taken to comply with the national standards by virtue of an approval given under subsection 10A(2).”
11. Regulation 10 of the Regulations provides that a person may apply to the Minister for approval to import a nonstandard road vehicle or a road vehicle that does not have an identification plate. Regulation 11 provides relevantly:
“(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.
…”
12. In support of his contention that there is no power to grant the application to import, the respondent relied in particular on regulation 18(1)(e). This provides as follows:
“Without limiting the generality of sub-regulation 11(1), the Minister may approve an application to import a nonstandard road vehicle or a road vehicle that does not have an identification plate if he is satisfied that the vehicle …
(e)is of a type not generally available in Australia and is to be imported primarily for exhibition.”
13. Section 5A of the Act provides:
“A reference in this Act to a vehicle is to be taken as including a type or class of vehicles, unless otherwise specified.”
14. The meaning given by s 5A of the Act to the word “vehicle” applies also to the Regulations, by virtue of s 13(1)(b) of the Legislative Instruments Act 2003, which provides in effect that unless the contrary intention appears, expressions used in Regulations have the same meaning as in the enabling legislation.
Basis of Respondent’s Contention
15. Counsel for the respondent, Mr Dillon, provided a helpful overview of the Act and its history, and referred in particular to the purpose of the Act and the policy behind it. He drew my attention to the Second Reading Speech at the time of the introduction of the Motor Vehicles Standards Bill 1989 (Cth), when the then Minister stated that “a vital component of the Federal Government’s road safety strategy is to make the motor vehicle as safe as possible. Our aim is to prevent the crash in the first place, and in the event that a crash occurs, to protect the occupants”. The Minister went on to refer to the relevance of the Australian design rule system, and the objective of enabling the Federal Government “to establish and apply nationally uniform standards for motor vehicle safety and environmental quality expected by the community”, and to underpin national uniformity of standards. The speech further stated that the amendments would represent a major improvement over the then current situation, particularly concerning second-hand imported vehicles.
16. Mr Dillon also referred to the explanatory memorandum in respect of the Motor Vehicle Standards Amendment Bill 2001 (Cth), and in particular to the paragraph headed “Type Approval vs Vehicle by Vehicle Approval.” This referred to the then current system whereby the market could be supplied with used vehicles of a particular type. However, the statement went on to say that a review taskforce had found that “type” approval was not appropriate for used vehicles and should be replaced by vehicle-by-vehicle approval implemented through a system of registered workshops. This was because a single used vehicle that might have been tested and evaluated might not be representative of all vehicles of that model, due to the unknown history of the individual vehicle, and because vehicle specifications might have varied over the life of a particular model. Mr Dillon also referred to the explanatory statement in respect of the 2001 amendments to the regulations made under the Act. This statement also referred to the new system to operate in relation to used vehicles.
17. Counsel contended that it would be contrary to the purposes of the legislative scheme to construe regulation 18(1)(e) to allow applications that identified the subject vehicles merely by reference to a generic model description, and that regulation 18(1)(e) should not be interpreted so as in effect to allow the Minister to “pre-approve” the import of types of vehicles, even before an applicant was able to identify them beyond a generic model reference, so that at some unidentified time in the future, the applicant could obtain particular vehicles to import into Australia.
18. Mr Dillon contended that the legislative scheme required applicants to apply to import particular, uniquely-identified vehicles, and that this would ensure that vehicles imported, as exceptions to the general prohibition on the importation of non-standard vehicles, or vehicles without identification plates, were able to be assessed against the requirements of the Regulations.
19. He further submitted that the wording of regulation 18(1)(e) itself supports the respondent’s contention. The first aspect he relied on was the use of the definite article “the” in the introductory paragraph of regulation 18(1)(e). He submitted that this demonstrates that a particular, uniquely-identified vehicle must be the subject of the application, and that that identified vehicle would be imported were approval to be granted; and accordingly, the use of the definite article specifies that for the purposes of regulation 18, the extended meaning of a vehicle in s 5A of the Act does not apply.
20. The second aspect of the wording of regulation 18(1)(e) on which he relied was the proposition that the Minister may not approve the importation of the vehicle unless the vehicle is “of a type” not generally available in Australia. He submitted that if the words “the vehicle” were intended to be read as “the type of vehicle”, then the requirement in paragraph (e) that the vehicle be “of a type” would be redundant; the requirement would be merely that the vehicle would not be generally available in Australia. He accordingly submitted that the requirement that “the vehicle … is of a type” can be sensibly read only to mean that a particular vehicle, the subject of the application, is one example of a type of vehicle that is not generally available in Australia.
Consideration
21. Neither the Act nor the regulations provide for the form of application, or for what information must be included in an application. I agree with counsel that if the application in this matter was defective in that it sought an approval which the Minister had no power to give, then this tribunal also, standing as it does in the shoes of the decision-maker, would have no power to approve the application.
22. The respondent’s argument appears, on the face of it, to be inconsistent with the extended meaning of “vehicle” in s 5A of the Act, whereby that word is to be taken as including a type or class of vehicles, unless otherwise specified.
23. Under s 15AA of the Acts Interpretation Act 1901 (Cth) (Interpretation Act), in the interpretation of a provision of an Act, a construction that would promote the purpose or object of the underlying Act is to be preferred to a construction that would not promote that purpose or object. Further, the use of extrinsic material such as a second reading speech may be referred to in the circumstances referred to in s 15AB of the Interpretation Act.
24. Nevertheless, as was pointed out by Moore and Gyles JJ in Nystrom v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 143 FCR 420 at [11], where the ordinary meaning of a provision is clear, and it is not ambiguous or obscure and does not lead to a result that is manifestly absurd or unreasonable, s 15AB of the Interpretation Act does not permit the use of extrinsic material to arrive at a construction that is inconsistent with that ordinary meaning. I refer also in this regard to Rieson v SST Consulting Services Pty Ltd (2005) 142 FCR 482 at [20], and the review of the authorities in D.C. Pearce and R.S. Geddes, Statutory Interpretation in Australia, (6th Edition, 2006) at [3.7] and [3.8].
25. I also bear in mind the approach to statutory interpretation referred to in CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408, where Brennan CJ, Dawson, Toohey and Gummow JJ said (omitting citations):
“… the modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses “context” in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means such as those just mentioned, one may discern the statute was intended to remedy … .”
26. In Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 McHugh, Gummow, Kirby and Hayne JJ referred to the need in some circumstances to depart from the literal or grammatical meaning of statutory provisions, when they said at 384 (omitting citations):
“However, the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the cannons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning.”
27. In accordance with the above authorities, I take into account the objects of the Act and Regulations, and in particular, the purposes sought to be achieved by the amendments to the Act made in 2001. Nevertheless, the Act and the Regulations expressly contemplate that the Minister may approve an application to import a road vehicle that is nonstandard or does not have an identification plate (s 21(1) of the Act).
28. This exceptional position only applies in the particular circumstances referred to in ss 19(1) and 20(1) of the Act. The Minister is given a general discretion to approve importation under regulation 11(1), and a discretion to approve in certain specific circumstances referred to in regulation 18. This discretion can, and should, be exercised taking into account the objectives and policy of the legislation, including the matters referred to when the 2001 amendments were introduced. But because applications can be made for permission to import in exceptional circumstances, as contemplated by the above provisions, generic applications for approval to import would not necessarily be contrary to the context or purpose of the legislative provisions. It can be seen from the conditions precedent to the power of approval provided for in paragraphs (a) to (e) of regulation 18(1) that the importation of vehicles can only be approved where they are not, or not primarily, to be used, by the public for transport on public roads in Australia.
29. I think that my above conclusion is reinforced by the provision that the Minister’s approval may be given subject to conditions (regulation 11 (2)). It would be possible for the Minister to craft appropriate conditions so as to ensure that the purposes of the Act are achieved.
30. In written submissions prepared by an unnamed lawyer on his behalf, Mr McPartland suggested that conditions could be imposed in the present matter to the effect that once he has identified specific motorcycles, he could be required, prior to the vehicles being exported from the United States, to advise the Minister of the vehicle identification numbers on identification plates attached to the vehicles. (Of course, if all the vehicles to be imported will have unique identification plates, then the only approval that Mr McPartland will require will be to import nonstandard vehicles). In addition to the condition suggested by Mr McPartland’s lawyer, there could be conditions that the vehicles must not be sold, or used on any public road or public place in Australia. Conditions of this sort would facilitate the policing of any approval that might be issued, and the purpose of the Act of ensuring public safety.
31. Furthermore, provided the generic description of the vehicles is adequately disclosed by the application, the fact that an applicant for importation does not specify particular identified vehicles would not prevent the respondent or his delegates from investigating whether the condition precedent in regulation 18(1)(e) has been met, that is whether the vehicles proposed to be imported are of a type not generally available in Australia. It would presumably be possible for those responsible for considering the application to determine whether that condition has been met by making appropriate inquiries of the manufacturer. That is what occurred in this case.
32. I do not accept the argument based on the use of the definite article “the” in the opening paragraph of regulation 18. In my opinion, the definite article merely refers back to the “vehicle” that is the subject of the application. It does not indicate that a vehicle that is the subject of an application cannot be described generically.
33. I also do not accept counsel’s second argument based on the wording of regulation 18(1)(e). By virtue of s 5A of the Act, the reference in regulation 18(1)(e) to “vehicle” is to be taken as including a type or class of vehicles “unless otherwise specified”. It is correct, as counsel submitted, that if the subject of the application was an unidentified vehicle of a particular type, the wording of regulation 18(1)(e) would be awkward, because if (as counsel submitted) the extended meaning of “vehicle” were to be interpolated into regulation 18(1)(e), the ability of the Minister to approve the application would only arise if the Minister were “… satisfied that ‘a vehicle of a particular type or class’ … (e) is of a type not generally available in Australia …”, so that the words “of a type” in paragraph (e) would be redundant.
34. However, regulation 18(1)(e) clearly applies to applications to import an identified nonstandard vehicle, and the words “of a type” are appropriate to that situation. Where expressions used in legislation are given an extended meaning by an interpretation provision, it would frequently distort the drafting of an operative provision if the wording of the definition were to be notionally interpolated into an operative provision. Any such drafting distortion should not of itself lead to a conclusion that the extended meaning should not apply.
35. Counsel’s argument is based on an implication arising from words that would admittedly be redundant if the extended meaning of vehicle applies. But that meaning does apply, by virtue of s 5A, unless “otherwise specified”. The provisions in the Act relating to interpretation use two different expressions to indicate when the defined meanings will not apply. In s 5(1), various words are defined “unless the contrary intention appears”. In s 5A, an extended meaning applies “unless otherwise specified”. One would expect that the contrast between these two qualifying expressions in the same Act would indicate that whilst an interpretation that is based on an implication might be sufficient to indicate an intention by the legislature of a contrary intention, it would not amount to the legislature having “otherwise specified”, an expression which would ordinarily connote some express or clearly identified reference.
36. The meaning of “specify” as used in legislation has been judicially considered in a number of cases. In Jolly v Yorketown District Council (1968) 119 CLR 347, the High Court of Australia considered the meaning of the word “specify” in local government legislation relating to the power of a local authority to recover the cost of constructing streets from adjoining owners. Barwick CJ and Owen J said at 351 that the relevant notice to adjoining owners must “‘specify’, that is to say must state in explicit terms, the various matters which the subsection requires to be stated”. Similarly, Kitto J said succinctly at 352, that “the notice is to specify – to give not by inference but by direct statement – the (relevant) information …”.
37. In NAAO v Secretary, Department of Immigration and Multicultural Affairs (2002) 117 FCR 401 Spender, Gyles and Conti JJ said at [32], omitting citations:
“the word ‘specified’ is normally used in the sense of stating in detail or with specificity or to state in specific terms so that there is clarity and precision…”
Other authorities to a similar effect are referred to in Pearce and Geddes (supra) at [12.23].
38. In the present matter, I think that the change in the qualifying expressions is not conclusive, because I cannot find any provision of the Act or regulations that expressly says, or indicates with specificity, that for the purpose of that provision, the word “vehicle” does not include a type or class of vehicles; indeed, some sections refer expressly to “vehicles of a particular type” or “vehicles of a specified class”, notwithstanding the definition in s 5A - see ss 10A, 13E and 20(3A) and see also s 23(a). Nevertheless, the interpretation dictated by s 5A is contrary to counsel’s argument, taking into account also that regulation 18(1)(e) is not dealing with the importation of used vehicles for general use by the public, but with a specific exceptional situation where the Minister is empowered to approve the importation of used vehicles.
39. In summary, neither the Act nor the Regulations require the application to specify an identified vehicle. I do not think that this restriction should be implied into the regulation 18(1)(e). To do so would be contrary to s 5A of the Act, whereby a reference to a vehicle is taken to be a reference to a type or class of vehicle, unless otherwise specified. There is no such specification.
Decision
40. The tribunal decides that it has jurisdiction to determine the within proceedings.
I certify that the 40 preceding paragraphs are a
true copy of the reasons for the decision herein
of Deputy President D G JarvisSigned: .....................................................................................
Ms L Staker AssociateDate/s of Hearing 5 March 2009
Date of Decision 26 March 2009
Applicant In person
Counsel for the Respondent Mr A Dillon
Solicitor for the Respondent Australian Government Solicitor
0
9
0