Hoopes and Department of Transport and Regional Services
[2006] AATA 11
•10 January 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 11
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2005/184
GENERAL ADMINISTRATIVE DIVISION )
Re JAMES HOOPES Applicant
And
DEPARTMENT OF TRANSPORT
AND REGIONAL SERVICESRespondent
DECISION
Tribunal Mr RG Kenny, Member Date10 January 2006
PlaceBrisbane
Decision The Tribunal affirms the decision under review
.....................[Sgd].........................
RG Kenny
Member
CATCHWORDS
TRANSPORT – motor vehicle importation – non-standard vehicle without identification plate – vehicle owned but not used for a continuous period of 12 months - general discretion to approve importation not exercised in the applicant’s favour – consideration of the relevant factors for the exercise of that discretion – decision under review affirmed.
Motor Vehicle Standards Act 1989 ss 5, 7, 10, 18, 20
Motor Vehicle Standards Regulation 1989 reg 11, 13Re Trajkovski and Department of Transport and Regional Services [2000] AATA 1073
Re Anthony and Department of Transport and Regional Services (2001) 33 AAR 317, [2005] AATA 543
Da Silva and Department of Transport and Regional Services (2005) 85 ALD 756Re Marra and Minister for Transport and Regional Services (2003) 37 AAR 93
REASONS FOR DECISION
10 January 2006 Mr RG Kenny, Member Background
1. James Hoopes lived with his wife and son in Australia from 1989 to 1994. He then travelled to California in the United States of America, where the family had previously lived, in order to settle certain business arrangements. Whilst in California, he purchased various vehicles, including a 2001 Harley Davidson motor-cycle and, on 2 December 2004, he made application to the Department of Transport and Regional Services (the respondent) to import these into Australia. On 13 December 2004, an administrator of vehicle standards acting in accordance with the terms of the Motor Vehicle Standards Act 1989 (the Act) gave import approval for all of Mr Hoopes’ vehicles except for the motor-cycle. Mr Hoopes sought review of that decision by the Administrative Appeals Tribunal (the Tribunal) on 24 March 2005.
Hearing
2. Mr Hoopes attended the hearing but was not represented. The respondent was represented by Mr S McLeod of counsel.
Contentions
3. Mr McLeod submitted that Mr Hoopes’ motor-cycle did not comply with Australian standards and did not have an Australian identification plate as required by the Act. He submitted that, for it to be approved for import into Australia, either regulation 11 or 13 of the Motor Vehicles Standards Regulations 1989 (the Regulations) had to be satisfied and, accordingly, Mr Hoopes must have owned and used the motor-cycle for a continuous period of at least 12 months in California or there must be circumstances which would justify exercising a general discretion to give approval in the absence of such usage. He submitted that neither of these requirements was met.
4. Mr Hoopes contended that he had complied with the terms of the regulations in that he had owned and continuously used the vehicle in California for the required period. He submitted that the nature of the use to which he had put the motor-cycle whilst in California had been appropriate to the nature of such a vehicle and to his own needs. In particular, he submitted that his driving needs were minimal because of his age and his capacity to work from an office in his home.
Mr Hoopes’ Evidence
5. When he went to America in 1994, Mr Hoopes intended to return to Australia as soon as he could and he expected that this would be after a period of months rather than years. He remained in America for 10 years because of difficulties he encountered in resolving various property matters. He was not aware of the requirement of a 12 month continuous usage period for a vehicle before it could be imported in non-standard form to Australia. He had previously brought motor vehicles into Australia without the need to satisfy such a requirement.
6. Mr Hoopes purchased the motor-cycle in October 2003 with the intention of bringing it back to Australia for his wife’s use. He did not register it for road use in California at the time of purchase and kept it in a garage on a rural property where he and his family lived. There were other vehicles on the property for use on public roads and there was no need for the motor-cycle to be used for that purpose. Also, the roads around the farm area where the family lived were congested and dangerous for motor-cycle riding. This was unlike the nature of the roads in and around the area he intended to live in Australia. He described the motor-cycle as being in pristine condition. He wanted to keep it that way and, for that reason, did not use it generally on the property. His custom was to use it, on average about once a week, to ride to and from the mailbox on the boundary of his property. This was a distance of approximately 1 mile. He registered approximately 200 miles between October 2003 and when it was shipped to Australia and the total distance covered by the vehicle was less than 2,000 miles at that time. He agreed that, in part, he rode it on a weekly basis to ensure that the battery remained charged and the bike remained rideable. He likened the degree of use to which the motor-cycle was put as being similar to that of a classic car which was carefully looked after and used in an appropriate manner. He also described his need to use a road vehicle in California as being minimal because of his age, at 68 years, and the nature of his work in writing letters and articles from computer sourced material in his home office.
7. In about September 2004, Mr Hoopes realised that he and his family would be able to return towards the end of that year to Australia. He made enquires about the motor-cycle and learned that, in order for it to be removed from California, it would have to be registered for road use in that jurisdiction to enable it to be insured against theft or damage in transit to Australia. It was registered for road use in California on 18 November 2004. This was done solely for the purpose of enabling it to leave the country. Mr Hoopes agreed that, although he had the vehicle for some weeks after it was registered and able to be ridden on public roads, this had not been done. He said that this was because of the heavy traffic conditions and many days of heavy rain at that time. In December 2004, the motor-cycle was loaded into a container on his property for shipment to Australia.
8. Mr Hoopes conceded that the motor-cycle does not have an Australian identification plate. He also conceded that, in order for it to be registered for road use in Queensland, the speedometer calibration had to be changed from miles to kilometres and certain other changes had to be made to its lighting equipment. In that sense, he conceded that it did not comply with Australian standards.
Consideration
9. Under section 5 of the Act, “road vehicle” means a “road motor vehicle” and this, in turn, means a motor vehicle designed solely or principally for the transport on public roads of people, animals or goods or a motor vehicle that is permitted to be used on public roads. I am satisfied that Mr Hoopes’s motor-cycle meets that description and is a road vehicle for the purposes of the Act and Regulations. Under section 18 of the Act, a person must not import a road vehicle that is non-standard or does not have an identification plate. Under section 5 of the Act, it will be “non-standard” if it does not comply with “the national standards by virtue of an approval given under subsection 10A(2) of the Act”. The term “identification plate” is also defined in section 5 to mean 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)”. I am satisfied that Mr Hoopes’ motor-cycle does not comply with Australian standards and that it does not have an identification plate as provided for in sections 10A and 10, respectively, of the Act.
10. Section 18 of the Act is to be read subject to the application of sections 19 and 20 thereof. The former provision enables a non-standard road vehicle or a road vehicle that does not have an identification plate to be imported with the written approval of the Minister. I am satisfied that this requirement of section 19 is not met. Section 18 also makes provision for such importation in circumstances prescribed under the regulations which, in so far as relevant, read:
Reg 11 Minister's approval to import vehicles without identification plates
(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.
(3) Without 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.
(4) An approval must be given by signed instrument.
Reg 13 Approval to import vehicle without an identification plate if owned and used by applicant overseas
The Minister must approve an application to import a nonstandard road vehicle or a road vehicle that does not have an identification plate if:
(a) the vehicle has been owned and used by the applicant for a continuous period of at least:
(i) for a vehicle owned by the applicant on or before 8 May 2000 — 3 months; or
(ii) for a vehicle to which subparagraph (i) does not apply but for which the application is made on or before 8 November 2000 — 3 months; or
(iii) in any other case — 12 months; and
(b) at the time the vehicle is imported, the applicant is:
(i) an Australian citizen or an Australian permanent resident; or
(ii) a person who has applied to become an Australian citizen or an Australian permanent resident; and
(c) the applicant is of an age that entitles him or her to hold a licence or a permit to drive a road vehicle of that type; and
(d) the applicant undertakes to comply with any requirements as to road safety that are imposed in respect of the vehicle by the Minister; and
(e) the applicant has not imported a road vehicle owned by him within the year ending on the day on which the vehicle in respect of which the application is made is landed in Australia.
Application of Regulation 13
11. For regulation 13 to be satisfied, all of the criteria listed therein must be met. It is common ground and I am satisfied that Mr Hoopes meets the requirements of paragraphs (b) to (e) of that provision. Further, I am also satisfied that Mr Hoopes’ owns the motor-cycle and has done so since October 2003. Accordingly, subparagraph 13(a)(iii) is applicable and approval to import must be given if, when he applied to import it into Australia, Mr Hoopes had used it for a continuous period of 12 months. The term “use” is defined in section 5 of the Act to mean, in relation to a road motor vehicle, “drive”. The term “use” in regulation 13 takes its meaning from section 5 of the Act: see Acts Interpretation Act 1901 s 46(1). Accordingly, approval to import must be given under regulation 13 if Mr Hoopes, while he was in California, drove the motor-cycle for a continuous period of 12 months.
12. Although it refers to use over a continuous period, regulation 13 can not require a person to drive a vehicle unceasingly for that period. Whether or not a person has used a vehicle for a continuous period of 12 months is a matter of fact and degree having regard to the number and duration of interruptions that have occurred in that period of time: see Da Silva and Department of Transport and Regional Services (2005) 85 ALD 756. In Re Anthony and Department of Transport and Regional Services (2001) 33 AAR 317 at 324, the Tribunal considered that the continuous use requirement would be met if the vehicle was available to the applicant “to be driven in the ordinary course of that person’s usage”. It continued:
That presupposes that not only should the vehicle be continuously available to be driven, that is, in this instance, registered and garaged proximate to the applicant’s home, but also, that the driver be in a position where he or she could, if needed, continuously drive the vehicle.
13. I accept Mr Hoopes evidence that he had vehicles other than the motor-cycle to use on public roads and that his travel needs were reduced by the nature of his work from an office at his home. However, for most of the time that he owned it, Mr Hoopes’ motor-cycle was not available to be driven on public roads in California because it was not registered for that purpose. Even after it was registered in November 2004, it was not used in that manner. I have noted Mr Hooper’s contention that the roads were too busy in the area where he lived. There is no material before me in that regard although Mr Hoopes’ evidence was that it was a rural area and this would make it unlikely that there would be a level of traffic congestion such that it would be unsafe to use the motor-cycle. I have also noted Mr Hoopes’ contention that the motor-cycle should be looked at in the same light as some classic car. However, I do not accept that proposition because it was his intention for the vehicle to be used on public roads in Queensland rather than to be continuously quarantined on private property, as it was in California, so that it could be preserved in its pristine condition. Further, I am satisfied that the nature of the use or driving in the 12 month qualifying period should have some equivalence to the intended manner of use or driving in Australia. That is clearly not the case with Mr Hoopes’ motor-cycle. It was intended for road use but utilised for the limited purpose of a weekly 2 mile return trip to the mailbox. While that manifests a regularity of usage, I am satisfied that it does not constitute continuous use for the purposes of regulation 13.
Application of Regulation 11
14. The purpose of the Act and the regulations, in their initial form and through subsequent amendments, has been detailed by the Tribunal on several occasions: see Re Trajkovski and Department of Transport and Regional Services[2000] AATA 1073, Re Anthony and Department of Transport and Regional Services (2001) 33 AAR 317, Da Silva and Department of Transport and Regional Services (2005) 85 ALD 756 and Re Marra and Minister for Transport and Regional Services (2003) 37 AAR 93. The legislative scheme serves to ensure that all vehicles imported into Australia meet uniform safety and environmental standards. The exercise of the discretion in regulation 11 must be consistent with that purpose.
15. In Re Trajkovski and Department of Transport and Regional Services[2000] AATA 1073 at [35], the Tribunal described the circumstances in which it may be appropriate to exercise the general discretionary power in regulation 11 as being "exceptional". It said:
This application is to then be considered having in mind the facts and circumstances before the Tribunal but in the context of a regime having been established for the importation of vehicles and the same not being allowed onto roads in Australia without safety being ensured. The exceptions as provided for in the regulations where variation from the scheme may be enabled apart from the circumstances therein specified must of necessity be exceptional. The Tribunal in making its decision is to give primary weight to the scheme and the intent of Parliament in enacting the legislation.
16. In Re Anthony and Department of Transport and Regional Services[2001] AATA 543 at [19], the Tribunal considered that there needed to be "very exceptional, extraordinary or special circumstances peculiar to an applicant" for regulation 11 to apply.
17. In Re Marra and Minister for Transport and Regional Services (2003) 37 AAR 93, the Tribunal exercised the discretion available under regulation 11 to allow the importation of a Honda motor-cycle. There, the importer incorrectly believed that the required period of continuous use was 3 months as, indeed, it had been prior to the amendment of the regulation to the present 12 months. The Tribunal found that he had continuously used the motor-cycle for some 7 months, that he had been given incorrect information by the Department and that he would suffer hardship in relation to shipping and storage costs and the loss of the use and enjoyment of the vehicle since it arrived in Australia. The Tribunal found that, having regard to all the circumstances, refusal to approve the importation had caused him serious injustice which would have been compounded if the Tribunal were to affirm that decision. There, the Tribunal also found that the vehicle was in excellent condition, that it was a current European model, that it was roadworthy, that it met all Australian safety requirements and that it was a genuine bona fide purchase for personal use.
18. In this matter, the financial considerations noted above are equally applicable. However, these would seem to be applicable in all cases where an importer brings a vehicle into Australia without obtaining prior approval to do so. In any event, Mr Hoopes said in his evidence that financial hardship was not a consideration in his situation. There was no misrepresentation of the requirements by the respondent in Mr Hoopes’ case. Rather, he incorrectly believed that there would be no importation concerns with the motor-cycle. I accept Mr Hoopes as a witness of truth who genuinely wished to bring the vehicle into Australia for the personal use of his wife and without any motive to profit from the arrangement. Nevertheless, his circumstances are not exceptional, extraordinary or special in a manner which would justify the exercise of the general discretion under regulation 11.
Decision
19. The Tribunal affirms the decision under review.
I certify that the 19 preceding paragraphs are a true copy of the reasons for the decision herein of Mr RG Kenny, Member
Signed: Jeff Mills
Legal Research OfficerDate/s of Hearing 26 September and 14 December 2005
Date of Decision 10 January 2006
The applicant was unrepresented
Counsel for the Respondent Mr S McLeod
Solicitor for the Respondent Clayton Utz
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