Enkelman and Department of Transport and Regional Services

Case •

[2003] AATA 716

•

30 July 2003



CATCHWORDS – JURISDICTION – Motor Vehicle Standards – Vehicle Inspection Certificates - whether Tribunal has jurisdiction to review a decision of the Administrator to suspend acceptance of Vehicle Inspection certificates endorsed by the Applicant - Tribunal has no jurisdiction.

Motor Vehicle Standards Act 1989 ss. 3, 5, 5A, 5B, 7, 10, 10A, 10B, 11, 13A, 13B, 13C, 13D, 13E, 14, 14A, 15, 16, 16A, 17A, 18, 19, 20, 21, 21B, 21C, 21D, 21E, 23, 39 and 42

Motor Vehicle Standards Amendment Act 2001 ss. 4 and 6
Motor Vehicle Standards Regulations 1989 rr. 3, 6 and 24
Motor Vehicle Standards (Used Imported Vehicle Report) Determination 2002 (2)
Customs Act 1901
Administrative Appeals Tribunal Act 1975 ss. 3 and 25

Collector of Customs (NSW) v Brian Automotive Pty Ltd (1979) 24 ALR 307

DECISION AND REASONS FOR DECISION [2003] AATA 716

ADMINISTRATIVE APPEALS TRIBUNAL     )          
  )          V2003/14
GENERAL ADMINISTRATIVE DIVISION     )          

Re  ANDREW ENKELMAN

Applicant

AndDEPARTMENT OF TRANSPORT & REGIONAL SERVICES

Respondent

DECISION

Tribunal:                   Deputy President S A Forgie
Date:  30 July, 2003
Place:  Melbourne

Decision:The Tribunal decided that as the decision of 23 December, 2002 is not a decision made under any of the provisions specified in s. 39(1) of the Motor Vehicle Standards Act 1989, the Tribunal does not have jurisdiction to review it.

S A FORGIE
  Deputy President

REASONS FOR DECISION

On 8 January, 2003, the applicant, Mr Andrew Enkelman, applied for review of what he described as a:

“A decision made by the Administrators of Vehicle Standards to cancel the ability of the undersigned to endorse vehicle inspection certificates (0-4-5 certificates).  It was accompanied by a threat that State Registering Authorities would also be advised to curtail the undersigned’s vehicle inspection activities, effectively diminishing our Company’s level of activity.”

The Administrator of Vehicle Standards (“the Administrator”) wrote the letter dated 23 December, 2002 to which Mr Enkelman referred.  The Administrator is an officer of the respondent, the Department of Transport and Regional Services (“the Department”) and is the occupant, from time to time, of the position of Branch Head, Vehicle Safety Standards Branch, Transport Regulation Division. 

  1. On behalf of the Department, its solicitor, Ms Nance, submitted that the Tribunal does not have jurisdiction to review this decision.  Mr Enkelman submitted that it does.  Written submissions were made by both Mr Enkelman and Ms Nance.  Various documents were provided on behalf of the Administrator and they are referred to in the course of these reasons.

THE ISSUE

  1. The issue in this case is whether the Tribunal has jurisdiction to review the decision of the Administrator to suspend his acceptance of Mr Enkelman’s inspection certificates and to cancel it if he did not receive from Mr Enkelman statements that he understood the tasks to be performed by an endorsing engineer, that he agreed to perform those tasks when endorsing 0-4-5 certificates and that he should not have signed an inspection certificate in relation to a particular named vehicle.

LEGISLATIVE BACKGROUND

  1. The Motor Vehicle Standards Act 1989 (“the Act”) was amended by the Motor Vehicle Standards Amendment Act 2001 (“Amendment Act”) with effect from 1 April, 2002. Its objects are to achieve uniform vehicle standards to apply to new vehicles when they begin to be used in transport in Australia and to regulate the first supply to the market of used imported vehicles (s. 3).  A “vehicle” is taken to include a “… type or class of vehicles, unless otherwise specified” (s. 5A).  By the expression “supply to the market”, is meant the delivery of a road vehicle to a person for use in transport in Australia (s. 5(1)).

Scheme of the Act as at 1 April, 2002

  1. Part 4 of the Act is concerned with the supply and importation of vehicles. Division 1 regulates the supply of new vehicles and Specialist and Enthusiast Vehicles and Division 2 regulates the supply of used imported vehicles.  Division 3 is concerned with the importation of all such vehicles.  I will deal first with the supply of vehicles before turning to their importation.

Supply of new vehicles

  1. Taking first new vehicles, they are defined to mean locally made vehicles, or new imported vehicles, that have been neither supplied to the market nor used in transport in Australia by their manufacturers or importers (s. 5(1)).  In so far as they are concerned, s. 14 provides that, subject to s. 14A, a person must not supply to the market a new vehicle that is nonstandard or does not have an identification plate.  Unless a person does so in prescribed circumstances or with the Minister’s written approval, a person must not do an act that modifies a standard vehicle so that it becomes nonstandard or handover a standard vehicle for such a purpose (s. 13A).

  1. The word “nonstandard” is defined to mean “… 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)” (s. 5(1)).  A “road vehicle” means a road motor vehicle, a road trailer or a partly completed road motor vehicle but does not include vehicles determined by the Minister under s. 5B not to be road vehicles (s. 5(1)).  The terms “road motor vehicle” and “road trailer” are defined in s. 5(1).  

  1. National standards are the subject of Part 2 of the Act. In general terms, the Minister may determine vehicle standards for road vehicles or for vehicle components (s. 7) provided he or she follows the procedures set out in Part 2.  A “vehicle standard”:

“… means a standard for road vehicles or vehicle components that is designed to:

(a)make road vehicles safe to use; or

(b)control the emission of gas, particles or noise from road vehicles; or

(c)secure road vehicles against theft; or

(d)promote the saving of energy.” (s. 5(1))

It is also known as a “national standard” in the Act (s. 5(1)) and in the Motor Vehicle Standards Regulations 1989 (“Regulations”) as the Australian Design Rules (“ADRs”) (r. 3). 

  1. Part 3 of the Act is concerned with certification and approval and identification plates are its primary tool in the system it establishes. An “identification plate”:

“… means a plate declaring the status of a road vehicle in relation to the national standards and approved to be placed on vehicles of that type or description under procedures and arrangements provided for in subsection 10(1).” (s. 5(1))

The specific procedures are set out in the Regulations (s. 10).  In relation to identification plates, the Minister must give written approval for identification plates to be placed on vehicles or components of a type if they are new vehicles or vehicle components of a particular type and if they comply with the national standards (s. 10A(1)).  Even if the new vehicles or vehicle components do not comply with the national standards, the Minister may give written approval for identification plates to be placed on them if the Minister is satisfied that noncompliance is only in minor and inconsequential respects (s. 10A(2)). 

  1. Section 21 is concerned with specialist and enthusiast vehicles in respect of which regulations may make provision for and in relation to the Minister’s keeping a Register of Specialist and Enthusiast Vehicles (“the Register”).  Regulation 24 of the Regulations sets out the criteria that must be met before a road vehicle is eligible to be entered on the Register. Section 10A(3) is concerned with identification plates to be placed on new vehicles of a particular type covered by an entry in the Register or on vehicles that are prescribed by the regulations for the purposes of s. 10A(3)(a)(ii)..  The Minister may give written approval for identification plates to be placed on these types of vehicles that do not comply with the vehicle standards even if the non-compliance is not in minor and inconsequential respects.  He or she may do so if satisfied that they do comply to an extent that makes them suitable for supply to the market (s. 10A(3)).  That identification plate must specify that it is a nonstandard vehicle and that its use may be subject to conditions (s. 10B(4)).  An approval may be subject to conditions (s. 10A(4)) and, if it is, the Minister must give the person to whom the approval is given a statement of the conditions to be met (ss. 10B(1) and (2)). 

  1. Where a person has been approved to place identification plates on road vehicles of a type specified in the approval, the Minister may, in the circumstances prescribed in s. 11(1), cancel, suspend or vary that person’s approval to place identification plates on road vehicles of that type. 

Supply of used imported vehicles

  1. In so far as used imported vehicles are concerned, a person is guilty of an offence if he or she supplies such a vehicle to the market and it does not have a used import plate, has not previously been supplied to the market, is not made in circumstances prescribed by the Regulations and is not supplied with the approval of the Minister (s. 16(1)).  A “used import plate” in relation to a used imported vehicle means “… a plate approved to be placed on the vehicle by an approval in force under section 13D” (s. 5).  The Minister may grant a person a written approval to supply to the market a used imported vehicle that does not have a used import plate (s. 16(2)). An application may only be made in respect of a single used imported vehicle and must be made in writing and in accordance with the Regulations (s. 16(3)). The Minister’s approval may be subject to conditions specified in that approval (s. 16(6)).

  1. Division 3 of Part 3 of the Act is concerned with used import plates. Pursuant to s. 13B, the Minister may determine procedures and arrangements relating to the placement of used import plates on used imported vehicles. A registered automotive workshop (“RAW”) may apply to the Minister for an approval to place a plate on a used imported vehicle. That application must be made in accordance with the Regulations and can only be made in respect of a single used imported vehicle s. 13C).  The Minister:

“… may, by writing, grant a registered automotive workshop an approval to place a plate on a used imported vehicle if, having regard to a report in relation to the vehicle that is given to the Minister by the workshop, the Minister is satisfied that it is appropriate to grant the approval.” (s. 13D(1))

The Minister must determine guidelines that apply to the making of decisions under s. 13D(1) and must comply with them (s. 13D(2)). 

  1. Section 13E effectively provides that the Regulations may provide the maximum number of used import plates that a RAW may place on used imported vehicles during a specified period. They are provided for in r. 6. An approval is subject to any conditions specified in the approval (s. 13D(5)).  If the Minister refuses to grant an approval, he must give written notice of the refusal to the RAW and must give his reasons (s. 13D(7)).  Various determinations have been made; some with effect from 1 April, 2002 and some from 18 December, 2002.  Among those is Motor Vehicle Standards (Used Imported Vehicle Report) Determination 2002 (2) made on 12 December, 2002 (“Report Determination”).  That provides that, for the purposes of s. 13D(2), a report in relation to a used imported vehicle, known as a “Vehicle Inspection Report”, is to be in the form and contain the information of the document set out in Schedule 1 to that determination.

Import of new and used vehicles

  1. An authority to deal with an imported road vehicle under the Customs Act 1901 is subject to the condition that the Minister, or a properly authorised Departmental officer, has given an approval under s. 17A to take delivery of the vehicle (s. 17A).  That approval must be given if the importer produces details of the vehicle’s identification plate, if it has one, or, if it does not, a copy of the approval under s. 19 or under regulations referred to in s. 20(3) in respect of the vehicle to be imported.  Complementing that provision is s. 18, which provides that, subject to ss. 19 and 20, a person must not import a road vehicle that is nonstandard or does not have an identification plate and must not import a nonstandard prescribed vehicle component.

  1. There are two main ways in which a person may import a nonstandard road vehicle that does not have an identification plate or a nonstandard prescribed vehicle component.  The first way is pursuant to s. 19(1), which provides that a person may do so with the Minister’s written approval.  That approval may be subject to conditions.  The second way is pursuant to s. 20, which provides for the importation of a nonstandard road vehicle or a road vehicle that does not have an identification plate.  It may be imported where it is to be exported from Australia either with or without further work being done on it and without its having been used in transport in Australia (s. 20(1(a)).  It may also be imported in prescribed circumstances (s. 20(1)(b)).  A nonstandard prescribed vehicle component may be imported where it is to be used in the manufacture of an export vehicle i.e. a locally made vehicle that is to be exported from Australia without having first been used in transport (ss. 20(2) and 5). 

Power to make regulations

  1. Section 42 of the Act provides that the Governor-General may make regulations that are not inconsistent with the Act provided they are required or permitted by the Act to be prescribed or necessary or convenient to be prescribed for carrying out or giving effect to the Act or necessary or convenient to be prescribed for carrying out or giving effect to the Act (s. 42(a) and (b)). 

Review principles

  1. Section 39(1) of the Act provides that:

“Subject to the Administrative Appeals Tribunal Act 1975, an application may be made to the Administrative Appeals Tribunal for review of:

(aa)a decision of the Minister under section 10; and

(aaa)a decision of the Minister under section 10A; and

(a)a decision of the Minister under section 11; and

(ab)a decision of the Minister under section 13D to refuse an application for an approval; and

(ac)a decision of the Minister under section 13D to specify a condition in an approval; and

(ad)a decision of the Minister under section 13F to vary, cancel or suspend an approval; and

(b)a decision of the Minister for the purposes of section 14A; and

(c)a decision of the Minister for the purposes of subsection 15(2); and

(d)a decision of the Minister under section 16 to refuse an application for an approval; and

(da)q decision of the Minister under section 16 to specify a condition in an approval; and

(db)a decision of the Minister under section 16A to vary, cancel or suspend an approval; and

(e)a decision of the Minister for the purposes of section 19; and

(f)a decision of the Minister under the regulations for the purposes of section 20; and

(fa)a decision of the Minister under section 21B to refuse an application for an approval; and

(fb)a decision of the Minister under section 21C to refuse to renew an approval; and

(fc)a decision of the Minister under section 21D to specify a condition in an approval; and

(fd)a decision of the Minister under section 21E to vary, cancel or suspend an approval; and

(g)a decision under the regulations or a determination to give or refuse an identification plate or an identification plate authority.”

The word “decision” has the same meaning as in the Administrative Appeals Tribunal Act 1975 (“AAT Act”).

Scheme of the Act before 1 April, 2002

Provisions of the Act

  1. For the purposes of this case, it is relevant to note that the RAW scheme was not in operation until 1 April, 2002 when the Amendment Act commenced and did not become fully operational until 1 May, 2003. Prior to 1 April, 2002, s. 14 provided that, subject to s. 14A, a person must not knowingly or recklessly supply to the market a new vehicle that was nonstandard or did not have an identification plate.  Section 14A provided that a person might supply to the market a vehicle that was non standard or did not have an identification plate in prescribed circumstances or with the Minister’s written approval.  An approval might be subject to written conditions determined by the Minister. 

  1. Section 10A applied to road vehicles and vehicle components of a particular type and was not, as now, limited to new vehicles or vehicle components.  In that form, s. 10A(1) provided that the Minister was required to give written approval for identification plates to be placed on them if they complied with the national standards.  If they did not comply but the Minister was satisfied that such noncompliance was only in minor and inconsequential respects, the Minister might give written approval for identification plates to be placed on them (s. 10A(2)).  The Minister could also give written approval for identification plates to be placed on them if the vehicles did not comply with the national standards, the Minister was satisfied that the non-compliance was not only in minor and inconsequential respects and was satisfied that, despite non-compliance, vehicles or components of that type were safe to use if specified conditions were observed (s. 10A(3)).  Authority for the placement of identification plates might be subject to written conditions determined by the Minister (s. 10A(4)).

Practical operation of the Act

  1. In practical terms, the effect of these provisions in relation to new vehicles was that a vehicle representing the design of the make and model (i.e. the “particular type” referred to in s. 10A(1)) was tested to demonstrate compliance with the national standards.  If the vehicle complied, all others of the same make and model would also comply with the national standards.  It is agreed between the parties that the Vehicle Safety Standards Branch of the Department did not usually test vehicles for compliance.  Instead, the manufacturer tested for compliance. 

  1. In order to demonstrate compliance with all applicable national standards, several test vehicles were usually required for passenger cars and light commercial vehicles.  Where a relatively small numbers of cars were to be imported, the cost of testing, and possibly destroying, a number of cars was prohibitive.  Therefore, manufacturers and importers wanting to supply a limited number of new or used vehicles had, until 7 May, 2003, been able to use the system established under s. 14A.  This system was known as the “Low Volume Scheme” (“LVS”).

  1. Under the LVS, approvals were issued to allow an approval holder to fix identification plates to a specified number of vehicles per year.  Each approval was subject to conditions and a typical approval given under s. 14A before 1 April, 2002 was attached to Ms Nance’s submissions.  Among the conditions was a condition that the licensee was required to obtain all identification plates from the plate contractor approved by the Administrator.  The name and address of the contractor was specified in the document.

  1. Circular 0-4-5, entitled “Certification of Commercially Imported Used Motor Vehicles” and issued in February, 1994 advised importers of the procedures to be followed when seeking certification of used motor vehicles other than personally imported motor vehicles and vehicles imported for engineering or market evaluation.  The circular stated that compliance with the ADRs at the date that the vehicle was built could be demonstrated by one of four methods: a compliance plate (now described as an “inspection plate”) was affixed to each vehicle by the manufacturer in accordance with an approval granted by the Administrator; a written statement by the certifying officer representing that manufacturer that the particular vehicle complied with all ADRs applicable at the time it was built and the manufacturer held an identification plate approval granted to it otherwise than under the LVS; a written statement by the certifying officer representing that manufacturer that a range of vehicles so complied; and submission of evidence to the Administrator demonstrating compliance with applicable ADRs.  In respect of the last method, the evidence had to be accompanied by an application for an identification plate approval and, if accepted, that plate would be issued.  An identification plate would also be issued for each vehicle if the second or third methods were applicable.

  1. Where the last method was followed, the circular set out the evidence that was required and the form in which it was required to be submitted.  That evidence included evidence of the year in which the vehicle was built and the circular set out four ways in which that could be established.  The make and model had to be designated in accordance with Circular 0-3-3 and that application had to be in accordance with Circulars 0-2-1 and 0-4-1.  Evidence of compliance with the ADRs had to be in the form of Summary of Evidence Reports (“SERs”).  Test facilities used for the conduct of tests would be subject to Test Facility Inspections but, where vehicles were subject to LVS, procedures other than these tests were allowed to test compliance with some ADRs.  Where types of vehicles have inspection plate approval, inspections were put in place to inspect manufacturing facilities to maintain standards of vehicles.

  1. The inspection certificate was the subject of the following paragraphs in the Circular:

“21.   A sample inspection certificate is at Attachment 2 which is to be provided to the owner of the vehicle.  Registration authorities may also require a copy of the inspection certificate as evidence of compliance with the ADRs.  A copy of this document shall be retained by the vehicle manufacturer (CPA holder).

22.This certificate is to be signed by the certifying officer for the compliance plate holder and a registered chartered professional engineer; the latter normally being independent of the vehicle manufacturer.  By endorsing the inspection certificate the engineer takes the responsibility of assuring that the vehicle concerned complies with the relevant ADRs.  Action may be taken by the Administrator where professional obligations are not properly exercised.”

There was no question that Mr Enkelman is a registered, chartered professional engineer within the meaning of paragraph 22.

  1. The form of the inspection certificate, set out at Attachment 2 to the Circular, required the person inspecting the vehicle to set out basic information such as details of make and model, engine number, country of manufacture and owner.  It also required him or her to give a brief description of any modification undertaken to ensure compliance with the applicable ADR in accordance with the submission of evidence.  Annexure A to the inspection certificate set out the records that had to be maintained during and following the inspection. 

Transitional provisions

  1. Pursuant to the transitional provisions in the Amendment Act, approvals in force under s. 10A in respect of used imported vehicles of a particular type immediately before 1 April, 2002 ceased to be in force on that day and the Minister was taken to have granted an approval under s. 16(2) of the Act in respect of used imported vehicles of that type (Amendment Act, s. 4(1)).  If an approval was in force under s. 14A in respect of a used imported vehicle before 1 April, 2002 then, immediately after that date, that approval ceases to be in force and the Minister is taken to have granted an approval under s. 16(2) of the Act in respect of that vehicle.

  1. Both deemed approvals are described as “transitional approvals” and are taken to be in force for the period worked out in accordance with the Regulations (Amendment Act, s. 4(4)). That period concluded on 17 May, 2003. As s. 6 of the Amendment Act provided that s. 16 of the Act applied to used imported vehicles supplied to the market after 1 April, 2002, the effect was that the schemes of approval under ss. 10A and 14A were phased out by 17 May, 2003.

BACKGROUND

  1. There was some disagreement between the parties as to the events leading to Mr Enkelman’s application.  In his letter dated 19 March, 2003, Mr Enkelman said that he signed a 0-4-5 certificate that referred to a particular vehicle manufactured in 1998.  He said that he had:

“…checked the website of DOTARS [the Department] and found that this vehicle fell into the approval category as far as date of manufacture was concerned, accepted DOTARS approval to import the vehicle which was based on correct vehicle configuration, GVM as detailed in the Vehicle Identification Number to which only DOTARS have access and fulfilled my responsibility by checking the vehicle for compliance with the relevant ADR’s.” (paragraph 5)

Mr Enkelman said that an officer of the Department had stated that Mr Enkelman and his company had committed a fraudulent act in signing the certificate.

  1. Mr Enkelman said that the engineering compliance community had continual problems with the Department and, in particular, with the Administrator.  It was decided in November 2001 to hold a meeting in Canberra in order to discuss those problems and to resolve them.  A further meeting was held on 18 February, 2002.  Mr Enkelman said that his certificate was raised at that meeting with the Administrator.  He continued that it was particularly:

“… raised that the date of manufacture of this vehicle was consistent with DOTARS website and hence compliance approval for the vehicle existed.  The Administrator agreed that any DOTARS website approval data was equivalent to a written approval and hence the undersigned’s [Mr Enkelman’s] certification of that vehicle was valid.” (paragraph 5)

  1. On 23 December, 2002, the Administrator wrote to Mr Enkelman regarding two matters.  Addressing the first, the Administrator set out what he understood to be Mr Enkelman’s tasks as an endorsing engineer.  He ended his comments by saying:

“In summary, the task is to ensure that:

the vehicle falls within the scope of the approval and conforms to the design in the approval;

the vehicle complies with all applicable ADRs in the manner described in the approval;

the inspection certificate details match exactly those in the approval document and its associated evidence, the import approval and the vehicle itself.” (page 2)

  1. It appears from the text of the Administrator’s letter that he had sent Mr Enkelman a letter to show cause why he, the Administrator, should continue to accept 0-4-5 inspection certificates that he, Mr Enkelman, endorsed.  The Administrator addressed Mr Enkelman’s responses to six items that had been raised in the show cause letter.  He said that he had concluded that:

“I can not continue to accept 0-4-5 inspection certificates that you have endorsed while it is clear that you either do not accept or do not understand the obligations that we have outlined in previous correspondence and again, in more detail, in this letter.

Accordingly, I advise that, effective immediately, I shall not accept 0-4-5 inspection certificates endorsed by you.

However, I shall be pleased to re-instate you as an endorsing engineer once I am satisfied that you understand and accept the obligations of that role.  To that end I require from you a statement that you understand the tasks to be performed by a endorsing engineer as described in the three points in this letter.  I also require a statement that you agree to perform those tasks when endorsing an 0-4-5 inspection certificate.

In demonstrating that you now understand our requirements for the role of endorsing engineer it will be necessary for you to agree that, in the light of the information subsequently communicated to you, the inspection certificate for the NB2 category Chevrolet C-series vehicle with a VIN of 1GCHK33J1WF064900 should not have been signed for all the reasons discussed in this letter.  This will allow us to put the past behind us and move forward from a fresh start.  Such an admission will not be used against you.

If I receive these statements prior to 24 January 2003 I will treat this as a suspension rather than a cancellation, in which case I will not be obliged to advise my State and Territory colleagues.” (pages 5-6)

  1. In his letter of 19 March, 2003, Mr Enkelman said that five of the six items were properly the responsibility of the Department at the time the import approval was granted but had now been “vexatiously allocated” to Mr Enkelman (paragraph 5).  Mr Enkelman denied that the certificate he had endorsed was deficient.  The deficiency, he said, was that of the Department in that it was incompetent in “… recognising and approving the importation of a vehicle which they subsequently considered not to be importable under that approval” (page 3).  He said that a decision had been made to refuse to approve the supply of a particular non standard vehicle to the market based on an 0-4-5 certificate he had signed.  In contrast, the Administrator expressed the view that:

“No decision was made in January or February 2002, nor has any decision been made at any time since then, to refuse to approve the supply of a particular non-standard vehicle to the market pursuant to s. 14A of the Act based on any 0-4-5 Certificate endorsed by Mr Enkelman. As the respondent has already submitted, no reviewable decision under s. 39 of the Act has been made.” (paragraph 14)

  1. Mr Enkelman said that he had complained to the Ombudsman, the Minister and the Shadow Minister about the Department’s actions as he felt that the allegedly deficient 0-4-5 certificate he had signed was not the real cause for suspending his endorsing certificates.  He saw it as a move to limit his business activities.  

  1. In relation to the particular vehicle to which the 0-4-5 certificate signed by Mr Enkelman related, he said that a decision had been made to refuse to approve the supply of a particular vehicle to the market based on the certificate he had signed.  On behalf of the Department, a different view was taken.  Ms Nance said that:

“12. On 13 January 2002, an 0-4-5 Certificate was signed by a compliance plate approval holder and by Mr Enkelman. It was forwarded to the plate contractor on 1 February 2002, and the identification plate was made and despatched by the plate contractor to the compliance plate approval holder on 5 February 2002. The certificate was deficient in a number of areas, including that the vehicle in question was outside the year range of the approval granted to the compliance plate approval holder under s.14A of the Act. The plate was removed from the vehicle, and the vehicle was subsequently plated by a different compliance plate approval holder whose approval covered the year range of the vehicle.

13.No decision was made by the respondent in January or February 2002 to refuse to accept an 0-4-5 certificate from Mr Enkelman.  The certificate was accepted; it was subsequently found to be deficient when the vehicle was presented for registration; and steps were taken to rectify the situation so that the vehicle could be supplied legally to the market.  No action was taken against Mr Enkelman at that time.

14.No decision was made in January or February 2002, nor has any decision been made at any time since then, to refuse to approve the supply of a particular non-standard vehicle to the market pursuant to s. 14A of the Act based on any 0-4-5 Certificate endorsed by Mr Enkelman. As the respondent has already submitted, no reviewable decision under s. 39 of the Act has been made.” (paragraphs 12-14)

CONSIDERATION

  1. The Tribunal’s jurisdiction to review decisions is dependent upon there being an enactment providing that:

“... applications may be made to the Tribunal:

(a)for review of decisions made in exercise of powers conferred by that enactment; or

(b)for the review of decisions made in the exercise of powers conferred, or that may be conferred, by another enactment. (Administrative Appeals Tribunal Act 1975.” (s. 25(1))

Section 25(4) of the AAT Act provides the necessary corollary to s. 25(1) when it provides that the “... Tribunal has power to review any decision in respect of which application is made to it under any enactment”.  An “enactment” includes the Act and Regulations (AAT Act, s. 3(1)). The general powers of the Tribunal are found in other provisions of the AAT Act. The remaining ten sub-sections of s. 25 go on to refine the general proposition made in s. 25(1) and to provide that an enactment may modify the operation of any particular provision of the AAT Act. It is clear from s. 25 generally that Parliament intended that the Tribunal’s power of review be defined and circumscribed by the enactment making provision for that review.

  1. Before leaving the AAT Act, I note that s. 3(3) of the AAT Act provides that the word “decision” includes a reference to:

“(a)   making, suspending, revoking or refusing to make an order or determination;

(b)giving, suspending, revoking or refusing to give a certificate, direction, approval, consent or permission;

(c)issuing, suspending, revoking or refusing to issue a licence, authority or other instrument;

(d)imposing a condition or restriction;

(e)making a declaration, demand or requirement;

(f)retaining, or refusing to deliver up, an article, or

(g)doing or refusing to do any other act or thing.”

  1. There is no question that the Administrator’s letter of 23 December, 2002 contained a decision within the meaning of s. 3(3) of the AAT Act and so within the meaning of s. 39(2) of the Act. That decision had been made by the Administrator and was to the effect that he would not accept inspection certificates endorsed by Mr Enkelman unless Mr Enkelman took certain steps I have already outlined. That decision has been made in the course of the administration of a scheme provided under the Act to regulate the first supply to the market of used imported vehicles. That it has been made in the course of the administration of the scheme does not, however, necessarily mean that it is reviewable by this Tribunal.

  1. Whether or not it is reviewable depends upon whether, in either the Act or the Regulations, there is a provision that provides that an application may be made for review of such a decision. I have set out the eighteen provisions in the Act that provide for such an application. Four of them, ss. 39(1)(fa), (fb), (fc) and (fd), are concerned with decisions relating to RAWs under ss. 21B, 21C, 21D and 21E and are not relevant.  A further three, ss. 39(1)(ab), (ac) and (ad), also relate to approvals given to RAWs and are not relevant.  Two of them refer to decisions made in relation to the importation of vehicles requiring modification (s. 19) or nonstandard vehicles (s. 20) (Act, ss. 39(1)(e) and (f)).  The 0-4-5 certificate signed by Mr Enkelman was necessarily concerned with the importation of a vehicle that met the ADRs and so not with a nonstandard vehicle.  Therefore, the power to make an application under ss. 39(1)(e) and (f) are not relevant. 

  1. Sections 39(1)(d), (da) and (db) refer to decisions made under ss. 16 and 16A, which are concerned with the supply of used imported vehicles but only after 1 April, 2002.  The decision of which Mr Enkelman has sought review is that dated 23 December, 2002 and so after that date.  Sections 16 and 16A provide for applications to be made in relation to “a used imported vehicle” and for approvals to be given on those applications.  Whether Mr Enkelman’s view of the events in relation to the identification plate concerning the vehicle to which Mr Enkelman’s 0‑4‑5 certificate related is correct or whether the Department’s is to be preferred is a question that I do not need to resolve.  Nor do I need to resolve whether the matter of the identification plate in relation to that particular vehicle was resolved before or after 1 April, 2002.  That is so because those issues are not relevant to the resolution of this issue.

  1. The decision that the Administrator had made in relation to the particular vehicle to which Mr Enkelman’s 0-4-5 certificate related had been made in the opening months of 2002. The Administrator’s decision set out in his letter of 23 December, 2002 does not concern a particular vehicle and the 0-4-5 certificate relating to it. Certainly, a particular certificate signed by Mr Enkelman formed part of the background to the Administrator’s decision but it was only background. The letter reveals that Mr Enkelman’s actions in relation to that particular certificate has led the Administrator, whether rightly or wrongly, to form the view that Mr Enkelman did not understand his responsibilities in endorsing 0-4-5 certificates generally. It was in relation to future certificates that the Administrator made his decision and not in relation to a particular application for approval under either ss. 16 or 16A.  Therefore, the power to seek review under ss. 39(1)(d), (da) and (db) does not assist Mr Enkelman to seek review of the decision of 23 December, 2002.

  1. The same reasoning leads to the conclusion that Mr Enkelman is not able to rely on s. 39(1)(g) to seek review of the Administrator’s decision.  The decision of 23 December, 2002 does not represent a decision under the regulations or a determination to give or refuse an identification plate or an identification plate authority.  Whatever happened in the opening months of 2002 in relation to the approval given to the compliance plate approval holder on the basis of the 0‑4‑5 certificate signed by Mr Enkelman, the decision of 23 December, 2002 was concerned with whether or not the Administrator would accept such certificates from Mr Enkelman in the future.  Even if it could be read as limited to the one certificate, the Administrator’s decision of 23 December, 2002 cannot be read as extending to a decision to give or refuse an identification plate or an identification plate approval.

  1. I have also concluded that Mr Enkelman cannot take advantage of s. 39(a) of the Act. It permits an application to be made for review of a decision made under s. 11 and so of a decision in relation to the placement of identification plates on road vehicles of a type specified in the approval.  Not only does the decision not relate to the placement of identification plates, Mr Enkelman was concerned only with a single vehicle and not with vehicles of a type.

  1. Section 39(1)(c) refers to a decision of the Minister for the purposes of s. 15(2) and so to a decision to allow a corporation to use in Australia a vehicle that it has manufactured and that is nonstandard.  Mr Enkelman is not such a corporation and so cannot take advantage of this provision.

  1. Sections 39(1)(b) is concerned with decisions under s. 14A.  As s. 14A is concerned only with vehicles to which s. 14 applies, it is concerned only with new vehicles after 1 April, 2002.  Mr Enkelman’s 0-4-5 certificate was concerned with a used vehicle and so, even if the decision of 23 December, 2002 was concerned with the approval of a particular vehicle (and I do not accept that it was) s. 39(1)(b) does not give him the power to seek review of the decision.  Before 1 April, 2002, s. 14A applied to both new and used vehicles.  It would have supported the approval given to the particular vehicle to which Mr Enkelman’s 0-4-5 certificate related.  For the reasons that I have given in relation to ss. 39(1)(d), (da) and (db) and ss. 16 and 16A of the Act, the decision does not relate to any approval given or not given in relation to a particular vehicle. It relates instead to the way in which the Administrator would regard certificates signed by Mr Enkelman in the future. It follows that the Administrator’s decision is not reviewable under s. 39(1)(b).

  1. Section 10A is the subject of ss. 39(1)(aaa) of the Act. An application may be made for review of a decision made under s. 10A but again I do not consider that Mr Enkelman may take advantage of this provision.  Before 1 April, 2002, s. 10A related to vehicles, whether new or used, of a particular type.  In that form, it did not support any decision in relation to an individual vehicle of the sort to which Mr Enkelman’s 0-4-5 certificate referred.  Therefore, even if the decision of 23 December, 2002 was concerned with the approval of a particular vehicle (and I do not accept that it was) s. 39(1)(aaa) does not give him the power to seek review of the decision.

  1. The final provision is s. 39(1)(aa).  It is concerned with a decision made under s. 10. Like all of the decisions in respect of which s. 39(1) permits an application for review to be made, a decision under s. 10 is made by the Minister.  Unlike all of those decisions except those made under ss. 13D(3) and 21B(2), the Minister may not delegate his power to make a decision under s. 10 to the Administrator or an Associate Administrator. This is the effect of s. 23 of the Act. It follow that, if the decision made by the Administrator on 23 December, 2002 was made under s. 10, it was not properly made as he could not hold delegated authority from the Minister.  Applying the principles in Collector of Customs (NSW) v Brian Automotive Pty Ltd (1979) 24 ALR 307 at 314-316 (per Bowen CJ and Smithers J), the decision’s not being properly made would not be fatal to Mr Enkelman’s seeking its review if the Tribunal has jurisdiction to review it in the first place.

  1. Decisions made under s. 10 are concerned with procedures and arrangements for the placement of plates on vehicles or vehicle if approval has been given under ss. 10A(1), (2) or (3) for the plates to be placed on those vehicles or components.  Decisions under s. 10 may include procedures and arrangements relating to the evidence required to establish the extent of compliance with the national standards (s. 10(2)(c)).  Those decisions must not only relate to those matters but are limited to those matters.  That is to say, decisions under s. 10 are limited to general procedures and arrangements and do not extend to the manner in which the Administrator will assess evidence provided in light of those general procedures and arrangements.  The Administrator’s decision of 23 December, 2002 related to the manner in which he would assess evidence in the future and did not relate to general procedures and arrangements.  Therefore, his decision was not a decision under s. 10 and so is not reviewable under s. 39(1)(aa).

  1. As the decision of 23 December, 2002 is not a decision made under any of the provisions specified in s. 39(1) of the Act, the Tribunal does not have jurisdiction to review it.

I certify that the fifty preceding paragraphs are a true copy of the reasons for the decision herein of
Deputy President S A Forgie

Signed:           ................................................................
  P. Paczkowski  Associate

Date of Telephone Jurisdiction Hearing    14 February, 2003
Date of Decision  30 July, 2003
For the Applicant  self represented

Solicitor for the Respondent  Ms E. Nance,

Australian Government Solicitor

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Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd [1979] FCA 21