Howard and Minister for Infrastructure, Transport and Regional Development
[2020] AATA 1262
•12 May 2020
Howard and Minister for Infrastructure, Transport and Regional Development [2020] AATA 1262 (12 May 2020)
Division:GENERAL DIVISION
File Number:2019/4742
Re:Gilbert Howard
APPLICANT
Minister for Infrastructure, Transport and Regional DevelopmentAnd
RESPONDENT
DECISION
Tribunal:L M Gallagher, Member
Date:12 May 2020
Place:Perth
The decision under review is affirmed.
..............[Sgd]..........................................................
L M Gallagher, Member
CATCHWORDS
TRANSPORT – motor vehicles – importation of nonstandard motor vehicle – whether vehicle manufactured ‘before 1 January 1989’ – meaning of ‘manufactured’ – consideration of relevant factors for the exercise of the general discretion to approve the import – no grounds for exercise of discretion – decision to refuse application to import motor vehicle affirmed
LEGISLATION
Motor Vehicle Standards Act 1989 (Cth) – ss 3(b), 5, 5(1), 7, 18, 19(1), 20, 20(1)(b), 20(3), 39(1)(f)
Motor Vehicle Standards Regulations 1989 (Cth) – regs 7A, 11, 17
CASES
Re Bartle and Minister for Infrastructure and Transport (2011) 122 ALD 362
Re Bastian and Minister for Transport and Regional Services (2007) 98 ALD 485
Campos and Minister for Infrastructure and Transport [2012] AATA 244
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Grapsas v Minister for Infrastructure and Regional Development [2020] FCA 525
Selway and Minister for Infrastructure, Transport, Regional Development and Local Government [2010] AATA 595
Selway v Minister for Infrastructure, Transport, Regional Development and Local Government (2011) 120 ALD 40
Skoljarev v Australian Fisheries Management Authority (1995) 22 AAR 331
Trajkovski and Department of Transport and Regional Services [2000] AATA 1073
Williamson and Minister for Infrastructure, Transport, Regional Development and Local Government [2009] AATA 48
SECONDARY MATERIALS
‘Vehicles Manufactured Before 1989 Option’, Department of Infrastructure, Transport, Regional Development and Communications (Web Page, 10 December 2019) < FOR DECISION
L M Gallagher, Member
12 May 2020
INTRODUCTION
Mr Howard is a Ford Mustang enthusiast. In January 2016, Mr Howard entered into a contract to purchase a 1968 Ford Mustang chassis from which a replica 1968 Ford Mustang Fastback ‘Eleanor’ vehicle (Vehicle) was built (R1, T8 page 48). The Vehicle was built by Classic Speed Inc (Classic Speed), a (then) Australian owned company located in the Philippines. The Vehicle was completed in 2019 and is presently in the Philippines.
The Vehicle is a nonstandard road vehicle and does not have an identification plate within the meaning of those terms as prescribed by the Motor Vehicle Standards Act1989 (Cth) (Act) and as applied in the Motor Vehicle Standards Regulations1989 (Cth)
(the Regulations).
Prior to the hearing, Mr Howard contended that, notwithstanding the Vehicle being nonstandard and without an identification plate, he is entitled to have his application to import the Vehicle approved by reason of it being ‘manufactured before 1 January 1989’.
At the hearing, however, Mr Howard contended that while he accepted that the Vehicle was ‘a new car’ (transcript page 73 [35]), he is entitled to have his application to import the Vehicle approved by reason of it being ‘beautifully made’ to a ‘high specification’ (transcript page 72 [20]), because of his sentimental attachment to it and because other similar cars have been imported into Australia.
BACKGROUND AND CLAIM HISTORY
On 29 January 2016, Mr Howard entered into a sales agreement with Classic Speed for the Vehicle (Sales Agreement) (R1, T8 pages 48–51), with the purchase price of US$120,000.00. The Sales Agreement indicates that Mr Howard would take possession of the Vehicle in the Philippines on or before the scheduled completion date of December 2016 (R1, T8 pages 48 and 51). The Sales Agreement also states that Mr Howard was to assume full ownership and responsibility for the Vehicle at final inspection (R1, T8 page 48) and would be responsible for all associated on road costs in Australia, including ‘shipping costs’ (R1, T8 page 49). The Sales Agreement stipulated a payment schedule whereby Mr Howard would pay an initial deposit of approximately US$36,000.00 in order to commence the build, followed by 11 monthly payments of between US$4,000.00 and US$10,000.00
(R1, T8 page 51).
Mr Howard claims that he visited Classic Speed in the Philippines in May 2019 to view the completed vehicle.
On 30 May 2019, Mr Howard completed an application to import the Vehicle under reg 17 of the Regulations on the basis that the Vehicle was manufactured before 1 January 1989 (R1, T7 pages 38–44). In his application, Mr Howard indicated that the Vehicle was manufactured in 1968 and that it was in original condition (R1, T7A page 38).
On 4 June 2019, Mr Howard wrote to the Department of Infrastructure, Transport, Regional Development and Communications, formerly the Department of Infrastructure, Transport, Cities and Regional Development (the Department), seeking further guidance in relation to his application (R1, T8 pages 45–46). In his letter, Mr Howard gave the additional information regarding the Vehicle, including (R1, T8 page 46):
Items that were included in the vehicle build.
The build order was to restore the car to original condition.
Brakes have been upgraded and the interior is new.
The engine is a 428 V8 which was available in 1968 in this vehicle.
Basically, it looks like a new car.
Enthusiasts in your office will recognize that this the [sic] vehicle is a replica of the Eleanor movie car from Gone in 60 seconds. This is one of the worlds [sic] most copied cars from the 1967-8 model.
(Emphasis added.)
On 27 June 2019, the Department sent an email to Mr Howard informing him that
(R1, T9 page 77):
The Technical Engineers have assessed the application to import this Ford Mustang under the Vehicle built before 1989 import option and your application is unable to meet this option by:
This replica vehicle has been significantly modified after 1989 with modifications to the engine, transmission and suspension. This is considered a remanufactured vehicle and does not meet the requirements for the pre-1989 import option.
(Original emphasis.)
In its letter dated 27 June 2019, the Department provided to Mr Howard the opportunity to supply further supporting information or to provide supporting information to have his application considered under the discretion (R1, T9 page 77).
On 8 July 2019, Mr Howard requested that discretion be applied to his application for the following reasons:
My request for your discretion.
In good faith, I have invested over $120000 into the vehicle with Classic Speed, and it is converted to right hand drive to suit Australia.
It appears ridiculous to me that Australian rules treat the RHS conversion as a problem
Basically, I ask for your discretion in this application or I will have a magnificent vehicle located at the Philippines, designed for Australia in Right hand side that is not saleable in many other countries.
I am not a car dealer and plan to use the vehicle for personal use.
I will be extremely disadvantaged if the vehicle is not allowed to enter Australia
(R1, T10 page 81)
(Original emphasis.)
On 17 July 2019, Mr Howard sent an email to Classic Speed asking whether Classic Speed had any contacts ‘that may buy a RHD Eleanor?? UK or Japan perhaps.’
(R1, T15 page 94).
Classic Speed advised Mr Howard by email dated 24 July 2019 that it would ‘contact interested buyers’ (R1, T15 page 93) and by email dated 31 July 2019 that it would do its best ‘to arrange a buyer for your car’ (R1, T15 pages 92–93).
On 30 July 2019, an Associate Administrator of Vehicle Standards from the Department refused Mr Howard’s application to import the Vehicle because, in its view
(R1, T11 page 82):
(a)the Vehicle was not manufactured prior to 1 January 1989 and therefore fell outside the ambit of reg 17 of the Regulations; and
(b)Mr Howard’s circumstances did not warrant the exercise of the general discretionary power conferred by s 19 of the Act and reg 11 of the Regulations to grant approval.
The Associate Administrator’s statement of reasons followed on 3 September 2019
(R1, T2) and included, relevantly:
9.The question is whether the changes to and reassembly of parts of the Vehicle in this case are so significant as to amount to a ‘manufacture’ of a different automotive product than the original factory-built 1968 Ford Mustang. In my opinion, they are. I make that finding based on the following factors in relation to the Vehicle, which are also set out on the Department’s website:
9.1The Vehicle has been converted from left to right hand drive.
9.2The body of the Vehicle has been significantly modified, in that the front and rear body panels, front valance, bumper, lights and bonnet of the Vehicle have been replaced.
9.3The chassis of the Vehicle has been significantly modified in that there has been modification to the front sub frame.
9.4The Vehicle’s engine, which was originally 289 cubic inch, is now 428 cubic inch.
9.5The Vehicle’s transmission has been changed and upgraded.
9.6New suspension components have been fabricated for the Vehicle’s front suspension.
9.7The vehicle [sic] has had new rack and pinion steering fitted.
9.8New suspension components have been fabricated for the Vehicle’s rear suspension, including that the leaf spring has been replaced with heavy duty shock absorbers.
9.9The Vehicle’s original rear axle has had a modified differential centre fitted.
9.10The Vehicle’s brake callipers, disks and braking system has been modified.
10.I find that these differences are not merely ‘modifications’ of the original 1968 Ford Mustang but amounted to the manufacture of a different vehicle using a combination of new parts and parts of the 1968 Ford Mustang.
11.The assembly of these parts occurred between 2016 and 2019. On this basis, I find that the Vehicle was manufactured in 2019, and therefore not manufactured prior to 1 January 1989.
…
20.On the basis of the Applicant’s contract with Classic Speed Inc, I find that he was fully aware, and accepted, that the Vehicle would be altered and assembled with new components into a vehicle substantially different from the factory vehicle released by the manufacturer in 1968…
…
23.On balance, having regard to the combined circumstances of this case, I decided that the factors raised by the Applicant in support of discretion[1] did not outweigh the factor that approving the importation would undermine and frustrate the policy of the Act.
[1] The factors raised by Mr Howard in support of discretion are referred to in paragraph [18] of the Associate Administrator’s statement of reasons dated 3 September 2019 (T2) and repeat the matters set out at paragraph [14] of this decision.
On 7 August 2019, Mr Howard applied to the Administrative Appeals Tribunal
(the Tribunal) seeking review of the Associate Administrator’s decision dated 30 July 2019 (T1). In his application, Mr Howard claimed the decision was wrong because:
There is ample evidence supplied by the vehicle building company of similar cars being imported into Australia.
I am hoping to use this precedent to overturn the import refusal.
(T1 page 6.)
JURISDICTION
Section 20(1)(b) of the Act provides ‘that a person may import a nonstandard road vehicle or a road vehicle that does not have an identification plate … in prescribed circumstances.’ The Regulations provide for this purpose and written approval (which may be subject to written conditions) of the Minister is required (s 20(3) of the Act).
Section 39(1)(f) of the Act provides that, subject to the Administrative Appeals Act 1975 (Cth), an application may be made to the Tribunal for review of a decision of the Minister under the Regulations for the purposes of s 20 of the Act.
As such, the Tribunal is satisfied it has jurisdiction in the present matter.
RELEVANT LEGISLATION
One of the main objects of the Act is ‘to regulate the first supply to the market of used imported vehicles’ (s 3(b) of the Act).
The Minister may determine vehicle standards for road vehicles or vehicle components
(s 7 of the Act).
By s 5(1) of the Act:
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.
(Original emphasis.)
The Act defines nonstandard, in relation to a road vehicle or a vehicle component, to mean ‘not complying with the national standards’ (s 5(1) of the Act).
Vehicle component means ‘a component to be used in the manufacture of a road vehicle, and includes a component of such a component’ (s 5(1) of the Act).
National standard means ‘a vehicle standard determined under s 7 of the Act’ (s 5(1) of the Act).
The importation of a non-standard road vehicle or a vehicle that does not have an identification plate is prohibited under s 18 of the Act, which relevantly provides:
(1)Subject to sections 19 and 20, a person must not import a road vehicle that:
(a)is nonstandard; or
(b)does not have an identification plate.
Penalty: 120 penalty units
The prohibition in s 18 of the Act is subject to, relevantly, s 20(1)(b) of the Act, which permits a person to import a nonstandard road vehicle or a road vehicle that does not have an identification plate in prescribed circumstances.
By s 19(1) of the Act, a ‘person may import a nonstandard road vehicle, a road vehicle that does not have an identification plate or a nonstandard prescribed vehicle component with the written approval of the Minister, which may be approval subject to written conditions determined by the Minister’.
The prescribed circumstances referred to in s 20(1)(b) of the Act are set out in regs 9 to 21A of the Regulations. In this context, regs 7A, 11 and 17 are relevant to the present application.
Manufacture is defined in s 5(1) of the Act as:
in relation to a road vehicle, includes modify the vehicle and assemble the vehicle.
(Emphasis added.)
However, reg 7A of the Regulations provides that in div 4.1 of the Regulations, in which
reg 17 appears, the term ‘manufacture does not include modify’ (emphasis added).
Regulation 11 of the Regulations provides that:
(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 a signed instrument.
…
By reg 17 of the Regulations the ‘Minister must approve an application to import a nonstandard road vehicle, or a vehicle that does not have an identification plate, if the vehicle was manufactured before 1 January 1989’ (emphasis added).
Policy regarding date of manufacture
The Department has published a policy on its website regarding ‘Vehicles Manufactured Before 1989’.[2] In this policy, consideration is given to the date of manufacture of a vehicle in the context of importing a vehicle into Australia. The policy provides, among other things:
[2] ‘Vehicles Manufactured Before 1989 Option’, Department of Infrastructure, Transport, Regional Development and Communications (Web Page, 10 December 2019) < parts of a vehicle with a date of manufacture before 1 January 1989 have been assembled into another vehicle, the date of manufacture is taken to be the date on which this new vehicle was first driven. If this conversion (into a different automotive product, such as a replica car, a drag racing car or a hot rod) happened after 1 January 1989, the vehicle does not qualify under this option.
In making the assessment, the Department recognises that older enthusiast vehicles may have had improvements and/or restorations made throughout the life of the vehicle and therefore may not be in original specification. If the restorations/modifications are within the original specification of the make and model the vehicle will usually be considered to remain an older vehicle. The use of newly manufactured components generally will not alter this assessment.
However, vehicles that have had extensive modifications performed after
1 January 1989 that significantly change the original specification and/or performance of the vehicle will not be able to be imported under the pre-1989 import option. These vehicles are considered remanufactured vehicles.
The considerations listed below are evaluated when a vehicle is assessed for eligibility as a pre-89 vehicle. The assessment is based on a combination of both the extent and the effect those modifications have on the performance and design of the vehicle…
(Emphasis added.)
Although policy is not binding it will ordinarily be followed unless there is a cogent reason not to do so (refer to Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634).
ISSUES FOR DETERMINATION
The issue for review is whether the Associate Administrator’s decision dated 30 July 2019 to refuse Mr Howard’s application to import the Vehicle is the correct or preferable decision, which in turn requires consideration of:
(a)on what date the Vehicle was manufactured; and
(b)if the Vehicle was manufactured after 1 January 1989, whether the Tribunal should exercise its discretion under reg 11 of the Regulations to approve the application to import the Vehicle.
EVIDENCE AND PARTIES’ CONTENTIONS
The matter was heard in Perth on 26 February 2020. Mr Howard was self-represented and appeared with the support of his wife, Mrs Howard. The Respondent was represented by Mr Burgess from Sparke Helmore Lawyers. All parties appeared in person.
The documents admitted into evidence at the time of the hearing consisted of:
(a)submission from Mr Howard with DVD dated 8 August 2019 (A1);
(b)submission from Mr Howard dated 6 October 2019 with photos (A2);
(c)two (2) coloured photographs of restored chassis produced by Mr Howard at hearing (A3);
(d)the T-documents (T1 to T16) (95 pages) (R1);
(e)the Supplementary T-documents (ST1 to ST19)[3] (43 pages) (R2); and
(f)
the Respondent’s Statement of Facts, Issues and Contentions (SFICs) dated
29 November 2019 (R3).
[3] Prior to the hearing and at the Tribunal’s request, the Respondent provided to Mr Howard and to the Tribunal coloured copies of the photographs that appear at R2, ST18, pp 38 and 39. These photographs were provided for clarity and were not exhibited separately by the Tribunal. Refer to transcript page 5 [25]– [30]).
Following the hearing, the parties provided the following additional evidence:
(a)further submission from Mr Howard dated 28 February 2020, with three (3) photographs;
(b)email from the Respondent dated 17 March 2020 responding to Mr Howard’s further submission dated 28 February 2020;
(c)further submission from Mr Howard dated 17 March 2020 responding to email from the Respondent dated 17 March 2020; and
(d)further submission from Mr Howard dated 10 April 2020 with numerous photographs.
The Tribunal notes that the appropriate forum for any evidence to be relied upon, or submissions to be made regarding the evidence, was at the hearing. As such, the Tribunal has considered the evidence and related submissions raised by the materials referred to in paragraph [39] of this decision only to the extent that they duplicate evidence and submissions already raised at the hearing.
The Tribunal is satisfied that all the relevant evidence was before the Tribunal and that both parties were provided an opportunity to address it, either orally or in writing.
Mr Howard’s evidence
At hearing, Mr Howard said that the Vehicle is a 50th wedding anniversary present he was planning (having met his wife in 1968) and it means a lot to him (transcript page 12 [45]).
Mr Howard said that in April 2013, he paid Classic Speed a $10,000.00 deposit, following which:
…They [Classic Speed] searched America to find a vehicle. It took them almost a couple of years and they came back and said they’ve got one. What you actually buy from them after they’ve sent it to the Philippines is you buy the chassis and then they build you a new car. So in this case we’re saying that we ordered what we call a GT 500 which was an exact copy of a Ford standard product that was available in 1968.
All of the components in this vehicle that have been made for me are new. It is not a restoration of some other vehicle. It’s actually a new vehicle. In that case we gave them a work order in January to do it in 2016 and it’s taken a couple of years for them to build it…
…the car was finished in May 2019. Part of the contract was for me to accept the vehicle at the factory. So I gave myself a bit of a holiday, I went to the Philippines, inspected the factory and signed off the vehicle.
Then I came back to Australia and paid my $50 to the Department of Infrastructure to import the vehicle and that was the first time I actually found that there was something not acceptable by the government…
…I felt that when the…Department were assessing things, they were assuming that I was restoring the old shell which was absolutely never the case. The order has always been to build a new car and the only reason we bought the old car – the shell – was that you needed something like that to start with. So the big debate about when it was built and how it was built, I accept the fact it’s new. It was built from 2016 until now and I don’t debate that…
…So basically what they do is the car is stripped right out to nothing which is what I bought and then they restore the chassis by making it safe if it had to be and then they buy the panels and the doors…they’re all new bits. Everything is new. So what I actually purchase [sic] didn’t even have any wheels or gearbox or diff or anything, it’s just a frame. That’s how they do it…
…I know it [the Vehicle] doesn’t fit into their [manufactured pre 1 January 1989] category…
(Transcript page 13 [15]– [45], page 14 [20], page 16 [30] and page 19 [10].)
(Emphasis added.)
Mr Howard said that his work order for the Vehicle was placed ‘before the introduction of their pre-1989 laws anyway and I also noticed that December last year they changed the law again because it wasn’t working’ (transcript page 19 [15]).
During cross examination by Mr Burgess, Mr Howard stated that the only original part of the Vehicle is the chassis, the panels are all new and nothing other than the chassis was kept from the donor car (transcript page 21 [5]–[10]).
Mr Burgess then asked Mr Howard a lengthy series of questions regarding whether various components that were fitted to the Vehicle (such as the gearbox/transmission, conversion from left hand drive to right hand drive, engine, body modifications, front and rear suspension) were components of the same or similar specification of those components that would have been available on a 1968 Ford Mustang. The components identified by
Mr Burgess were derived from those listed for consideration in the Department’s policy
(R1, T6 pages 31-37) referred to in paragraph [34] of this decision.[4]
[4] Refer also to paragraphs [31] and [32] of the Respondent’s Statement of Facts, Issues and Contentions (SFICs) (R3).
These questions were put to Mr Howard given his contention that the Vehicle had been fully restored to its original specification (refer to R1, T9 page 23, transcript pages 21, 22 [40]–[45] and 23 [25]). In each instance, Mr Burgess took Mr Howard to the specific documentary reference to the particular vehicle component specification:
(a)available on a standard Ford Mustang in 1968 (set out at R2, ST16);
(b)available to Mr Howard at the time his Vehicle was being built (listed R2, ST5); and
(c)that was actually used on the Vehicle (marked with an ‘x’ at R2, ST5).
In relation to each of the instances and specifications brought to Mr Howard’s attention during cross-examination in paragraphs [45] and [46] of this decision, Mr Howard conceded (albeit with some reluctance) that each component was new, was not available to be fitted on a Ford Mustang in 1968 and had been the subject of an upgrade in the sense that it significantly changed the original specification and/or the performance of the enthusiast vehicle (transcript pages 20-27).
When asked by Mr Burgess, Mr Howard said that the Vehicle had cost him US$120,000.00, exclusive of GST on the luxury car tax, plus a US$10,000.00 search fee. Mr Howard also suggested he was meeting storage fees while his application to import the Vehicle was pending, although the specific cost of this was not detailed (transcript page 46 [15]-[40]).
Mr Burgess then put it to Mr Howard that he investigated selling the Vehicle when his application was initially refused (refer to paragraphs [12]-[13] of this decision and transcript page 47 [15]). Mr Howard said that he did not recall, and that Mr Burgess was making it sound like he had ‘done a big research’ into selling it, and he had not (transcript page 47 [15]). Mr Howard said that ‘obviously you’ve got to think about what might happen [if your import application is refused]’ (transcript page 47 [15]). When asked by Mr Burgess,
Mr Howard agreed that if he were to now sell the Vehicle for what he paid (US$120,000.00), he would receive substantially more in Australian dollars than what he paid, but he was not selling the Vehicle, ‘so what’s the point’ (transcript page 47 [5]).
Mr Howard said that when he started his search for a vehicle in 2013, he did not consult the Department’s website about whether he would be allowed to import that vehicle because he had been dealing with the Australian company and thought importation was guaranteed (transcript page 48 [15]). Mr Howard said that Classic Speed had represented to him that it would assist with importing, shipping and registering the Vehicle. Classic Speed had given him ‘the name of the people to do that with’ (transcript page 49 [10]-[15]) whom Mr Howard has spoken to many times (transcript page 50 [10]) and:
…So, would you accept that the reason for the failure is really your ignorance of the law. You didn’t know the law, in relation to – that’s your circumstances that you say should allow you to import the vehicle?-Yes, that is correct, without running myself too much in the mud…
(Transcript page 49 [35].)
To close his evidence, Mr Howard said:
…The big surprise for me has been how the Department of Infrastructure has gone through the vehicle from top to bottom, assuming I was restoring [an old shell of a vehicle], I think, which was never the case…
…So basically what I’ve got is a new car on a 1968 chassis that has been made very, very safe…
(Transcript page 53 [45] and page 54 [5].)
Respondent’s contentions
Mr Burgess went on to make the following contentions for the Respondent in support of its position that the Vehicle was manufactured before 1 January 1989 (and that the discretion in reg 11 ought not to be applied):[5]
[5] Contentions were made orally, at the hearing, unless otherwise specified. The Tribunal has referred to (and subsequently considered) the Respondent’s contentions to the extent that they relate to Mr Howard’s evidence at hearing that he purchased a chassis from a 1968 Ford Mustang and Mr Howard’s position at hearing that he accepts his car is a newly manufactured vehicle (refer to paragraphs [43], [45], [48] and [52] of this decision).
(a)It is important to remember that the starting point in the legislation is that a vehicle manufactured post-1989 cannot be brought into Australia.
(b)The discretion in reg 11, which is guided by policy, is an exception in certain circumstances and, by its nature, must be exercised sparingly.[6]
[6] Referring to then Senior Member McCabe in Williamson and Minister for Infrastructure, Transport, Regional Development and Local Government [2009] AATA 48 at [11]. Refer also to paragraph [64] of this decision.
(c)So, if a vehicle is manufactured post-1989, it can only be brought in if it complies with the policy and there is a discretion granted to do so.
(d)As to the date of manufacture, the proper construction of the word ‘manufacture’ in reg 17 was addressed in the decision of Re Bartle and Minister for Infrastructure and Transport (2011) 122 ALD 362 (Re Bartle decision).[7]
[7] at 364–366. Refer further to paragraphs [30]-[33] of this decision.
(e)The Re Bartle decision talks about the initial vehicle being not just a part, but a complete road vehicle, so the present matter can be clearly distinguished from the Re Bartle decision based on the fact that Mr Howard only bought the chassis and everything else is new (transcript page 35 [10]).
(f)This is a case where a single donor part was provided from a 1968 Mustang, where Mr Howard only bought the chassis. Classic Speed built all of the body parts and Mr Howard accepts that the Vehicle is a newly manufactured car. If the Tribunal makes the same finding, then what remains for consideration is whether the Tribunal should exercise the discretion to allow it to be imported regardless.
(g)The Vehicle clearly falls into the category of the policy that says:
…If parts of a vehicle with a date of manufacture before 1 January 1989 have been assembled into another vehicle, the date of manufacture is taken to be the date on which this new vehicle was first driven. If this conversion (into a different automotive product, such as a replica car, a drag racing car or a hot rod) happened after 1 January 1989, the vehicle does not qualify under this option.[8]
[8] Refer also to paragraph [34] of this decision.
(h)What has been created is a replica car. It is the case (and Mr Howard accepts) that the chassis was purchased and everything else in that car is a brand-new part that was assembled and first driven in 2018 or 2019. There is certainly no question that that occurred before 1989.
(i)The policy looks at whether or not a restoration/modification that was made was in its original specification of the make and model of the vehicle. Here, the majority of the important parts of the Vehicle were not available for the original 1968 Ford Mustang GT500, or for a lesser model.
(j)This leaves the question of whether there are cogent reasons to depart from the policy such that the discretion ought to apply.
(k)Referring to the matters identified by Senior Member Dunne in the Selway[9] decision as being potentially relevant to the exercise of the discretion in reg 11 of the Regulations, which ought to be exercised only in exceptional circumstances:[10]
(i)Policy objectives of the Act – Looking at the policy objectives set out in ss 3 and 5(1) of the Act,[11] controlling the emission of gas, particles or noise from road vehicles and promoting the saving of energy is not achieved by importing a car with a seven litre V8 engine into Australia. Further, to exercise the discretion in Mr Howard’s favour would allow the Vehicle, which does not have an identification plate, to be imported without good reason. This would undermine and frustrate the policy and objectives of the Act.
(ii)Any unfairness or injustice to the Applicant – Mr Howard contended that ‘it would be unfair not to allow him to import the Vehicle because he has spent a substantial amount of money on the Vehicle and because he is aware of other similar vehicles being imported into Australia’.[12] There is no unfairness or injustice to Mr Howard where the Department is following a policy published on its website. The Respondent acknowledges that the Department’s website in January 2016 provided less detail than it currently does in relation to the effect of specific modifications to an assessment of the manufacture date of the Vehicle.[13] If Mr Howard had considered the published available information at the time, the issues he would face in importing a vehicle manufactured in 2016 to 2018 would have been very clear. ‘The Vehicle underwent substantial modifications that were not in line with the original factory specification and were not available at the original date of manufacture’.[14]
(iii)Financial hardship that would be occasioned by not being approved to import the vehicle – Mr Howard has provided no evidence of financial hardship, having had the funds available to purchase the car at the time and proposing to fund the cost of transporting the vehicle to Australia. Mr Howard also sought for Classic Speed to investigate whether any customers in Japan or the UK would be interested in purchasing the Vehicle. There is no evidence that if Mr Howard were to sell the car, he would be unable to recoup the costs.
(iv)Whether the vehicle is unique – There is no evidence about the uniqueness of the Vehicle. It is not the case that the Vehicle is an original 1968 Ford Mustang; it is a new car utilising the chassis from a Mustang.
(v)Whether there were unpredictable or unexpected events, beyond the Applicant’s control, that intervened to thwart their plans to comply with the Act – There was nothing to this effect. Any claims by Mr Howard that the law changed between the time he first sought to acquire a chassis for the Vehicle to when the Vehicle was complete are unfounded as the relevant laws have been in place since 2005.[15]
(vi)Other potentially relevant matters – there are no other potentially relevant matters apparent on the facts of this matter.[16]
(l)Each of the considerations in paragraph [53](k) of this decision weigh against allowing the Vehicle to be imported. Mr Howard ‘has not identified any matter relevant to the Tribunal’s consideration that would warrant the discretion being exercised in his favour’.[17]
[9] Adopting the approach taken in Selway and Minister for Infrastructure, Transport and Regional Development and Local Government [2010] AATA 595 (Selway [2010]) at [35]. The Tribunal addresses this interpretation of the approach to the exercise of the discretion in reg 11 of the Regulations in its consideration below.
[10] Selway [2010] at [35].
[11] Refer to the definition of vehicle standard in s 5(1) of the Act, extracted at paragraph [22] of this decision.
[12] Respondent’s SFICs (R3), paragraph [46].
[13] Respondent’s SFICs (R3), paragraph [48].
[14] Respondent’s SFICs (R3), paragraph [49].
[15] See, for example, paragraph [44] of this decision.
[16] Respondent’s SFICs (R3), paragraph [56].
[17] Respondent’s SFICs (R3), paragraph [57].
In relation to Mr Howard’s sentimental attachment to the Vehicle (refer to paragraph [42] of this decision), Mr Burgess submitted that sentimental attachment to a vehicle and feelings of disappointment following his initial application having been refused are insufficient to bring about the exercise of the discretion under reg 11 of the Regulations (transcript page 75 [45]). Mr Burgess relied upon a number of decisions in support of his submission.[18]
[18] Transcript pages 75 [30]– [45] and 76 [5]– [20]; Re Kowald and Minister for Infrastructure, Transport, Regional Development and Local Government [2010] AATA 1018 [23]; Senior Member Handley in Re Bastian and Minister for Transport and Regional Services (2007) 98 ALD 485 [30].
Mr Howard’s contentions
Mr Howard made the following contentions in support of his position that his application to import the Vehicle ought to be approved:[19]
[19] Orally, at the hearing, unless otherwise specified. The Tribunal has referred to (and subsequently considered) Mr Howard’s contentions to the extent that they relate to his evidence at hearing that he purchased a chassis from a 1968 Ford Mustang and Mr Howard’s position at hearing that he accepts his car is a newly manufactured vehicle (refer to paragraphs [43], [45], [48] and [52] of this decision).
…I think in our - in our case we basically think as honest people that we followed the rules that were available - presented to us. I accept the fact that this car falls outside of this pre-1989 thing, which I’ve never heard of until I put my 50 bucks in to get my car imported. I’m still a bit bewildered by how this particular vehicle has been selected and rejected, and my only argument really is the sort of precedent sent from all the other cars which have come through that are similar since 2016 and I’ve got the letters from the manufacturers. I just find that bewildering….
(Emphasis added.)
(Transcript page 66 [45].)
…And I can’t overcome a couple of things. The definition of built date and all that, I can’t overcome that except to say that it has been built since 2016 in this case…
(Emphasis added.)
(Transcript page 68 [15].)
…I think just going back, when I first got the rejection obviously I rang the people in Canberra and had a chat with them, tried to find out what was going on, and the reason that I ended up going - and it was at their request actually - to apply for discretion was because we decided in those chit chats that there were some components that might not fit within the pre-89 and the only way that we could properly get the vehicle in was for the Department to have another look at it and apply some discretionary thinking…
(Emphasis added.)
(Transcript page 69 [25]–[30].)
I can’t see any reason that Australia should not let this car come in because no one is disadvantaged by it. The vehicle is beautiful. We get what we’ve paid for. The fact that there’s some rules which show the engine is different or the brakes are different is irrelevant to me because everybody changes that stuff in cars so being a mechanic type person, I find that a bit crazy.
I really think that the discretion that’s required is to say that car is well built, it’s safe, it meets all the requirements [in the sense that] … I appeal for some discretion because I think there’s nothing wrong with the car that could make it unsafe to bring to Australia…
(Emphasis added.)
(Transcript page 70 [20]–[45].)
I think I’ve got to say that it is a new car with the classic suspension - classic chassis which I had to buy to enable it to be built.
(Emphasis added.)
(Transcript page 71 [10].)
CONSIDERATION
This review concerns the decision of a delegate of the Respondent dated 30 July 2019 to refuse Mr Howard’s application to import the Vehicle on the basis that:
(a)the Vehicle was not manufactured prior to 1 January 1989 and therefore fell outside the ambit of reg 17 of the Regulations; and
(b)Mr Howard’s circumstances did not warrant the exercise of the general discretionary power conferred by s 19 of the Act and reg 11 of the Regulations to grant approval.
Date of manufacture of the Vehicle
The parties accept and the Tribunal is satisfied on the evidence before it that:
(a)the only component of the Vehicle that was manufactured prior to 1 January 1989 was the chassis;
(a)vehicle assembly commenced in 2016, with all vehicle parts, other than the chassis, being assembled for the first time; and
(b)the Vehicle was completed in May 2019 (R1, T10, page 80).
The word ‘manufacture’ for the purpose of reg 17 of the Regulations was discussed by the Tribunal in the Re Bartle decision. In the Re Bartle decision, and unlike the present matter, the applicant purchased a vehicle (a 1959 Chevrolet Corvette) that was the same vehicle as previously existed with substantial restoration and modifications. With regard to the date of manufacture of the vehicle, the Tribunal was of the view that:
[20]… as the regulations expressly excludes “modify” from the definition of the word “manufacture” where it appears in reg 17, the modification of a “road vehicle” cannot affect the date of its manufacture unless the modification has resulted in an end product which cannot fairly be described as being the “road vehicle” that previously existed (that is such that the product of the modifications is, in reality, a different “road vehicle”. In all cases, this will be a question of degree.
[21]We are of the view… that if something is assembled using disparate parts [notwithstanding the date of manufacture of each part], what is occurring is the assembling together of those parts for the first time to create a vehicle that did not previously exist. In that event, the date of manufacture will usually be the date of the assembly.
[22]It therefore follows that, to succeed, the applicant needs to satisfy the tribunal that the work carried out to the vehicle was not the creation of a road vehicle from disparate parts, but rather was work performed upon a pre-existing road vehicle and where the end product of the work was not such so as to, in reality, result in the creation (manufacture) of a different road vehicle.
The present matter is a case of starting with a set of parts, none of which could be described together as constituting a vehicle, and manufacturing the Vehicle, a replica vehicle, from those parts. The work performed by Classic Speed between 2016 and 2019 resulted in the manufacture of the Vehicle, which cannot be fairly described as being the same Ford Mustang that previously existed.
Applying these facts to the proper construction of the word ‘manufacture’ in reg 17 of the Regulations to the Department’s policy set out at paragraph [34] of this decision and to the discussion in the decision of Re Bartle at paragraph [58] of this decision, the Tribunal is of the view that the Vehicle is a new, replica vehicle that was manufactured after
1 January 1989 and therefore cannot be imported under reg 17 of the Regulations.
Therefore, the remaining question for the Tribunal is whether the discretion in reg 11 of the Regulations should be exercised to allow the import of the Vehicle, notwithstanding it was manufactured after 1989.
Whether discretion should be exercised to approve the application to import the Vehicle
The discretion in reg 11 of the Regulations is in general terms and neither the Act nor the Regulations set out the specific factors to be taken into account in applying it. Therefore, the Tribunal takes guidance from a number of authorities that discuss the way that it should approach the issue of whether or not to exercise the discretion in reg 11 of the Regulations and, in turn, whether to allow importation of a nonstandard road vehicle or a vehicle that does not have an identification plate.
The Tribunal’s approach on the issue of discretion is to be one consistent with the policy sought to be achieved by the Act, taking into account the matters relied upon by Mr Howard and weighing up those matters in the light of the part which the policy plays in the overall context of the decision to be made. In this case the policy sought to be achieved by the Act is a regime having been established for the importation of vehicles and those vehicles not being allowed onto roads in Australia without safety being ensured.[20]
[20] Trajkovski and Department of Transport and Regional Services [2000] AATA 1073 [35], citing Skoljarev v Australian Fisheries Management Authority (1995) 22 AAR 331, 337. Similarly, refer to Mansfield J in Selway v Minister for Infrastructure, Transport, Regional Development and Local Government (2011) 120 ALD 40 [(Selway (2011)] [36] and Senior Member Toohey in Campos and Minister for Infrastructure and Transport [2012] AATA 244 [22].
The Tribunal also takes guidance from Senior Member McCabe in the decision of Williamson and Minister for Infrastructure, Transport, Regional Development and Local Government [2009] AATA 48 regarding the approach for the exercise of the discretion in reg 11 of the Regulations (at [11]):
…[A]ny exercise of the discretion in reg 11 must be consistent with those objectives. By its nature, the discretion must be exercised sparingly: there is no point having a national scheme if the discretion is used to make so many exceptions that the standards become meaningless. But the discretion can be exercised if there is a good reason to do so and the objectives of the legislative scheme are not compromised. The Act does not attempt to define what facts or circumstances might justify the exercise of the discretion. I must instead consider each application on its merits, while keeping a careful eye on the objects of the Act.
The Respondent has identified to the Tribunal a number of factors as being relevant to deciding whether to exercise the discretion in reg 11 of the Regulations in Mr Howard’s favour, which the Respondent submits can be exercised only in exceptional circumstances (see paragraph [53](k) of this decision). These factors are derived from the Selway [2010] decision.[21] They are:
(a)the policy objectives of the Act;
(b)any unfairness or injustice to Mr Howard;
(c)financial hardship that would be occasioned by not being approved to import the Vehicle;
(d)whether the Vehicle is unique;
(e)whether there were any unpredictable or unexpected events, beyond Mr Howard’s control, that intervened to thwart his plans to comply with the Act; and
(f)whether there are any potentially relevant matters arising on the facts at hand to be taken into account.[22]
[21] In turn, the Tribunal in Selway [2010] has essentially adopted these matters from the Tribunal’s decision in Da Silva and Department of Transport and Regional Services [2004] AATA 1355.
[22] SM Dunne in Selway [2010]. The factors set out by the Respondent in that matter at [21] were adopted in the Tribunal’s reasoning that followed, with the factor listed at paragraph [65](f) of this decision being described as ‘exceptional circumstances’.
The Respondent has then, it appears, concluded that as each of the considerations set out in the Selway [2010] decision weigh against allowing the Vehicle to be imported, and as Mr Howard has not identified any other relevant matter, the discretion ought not to be exercised in Mr Howard’s favour.
The Tribunal notes the following authorities in the context of the Respondent’s approach set out in paragraphs [65] and [66] of this decision:
(a)Mansfield J in Selway v Minister for Infrastructure, Transport, Regional Development and Local Government (2011) 120 ALD 40 (Selway (2011)) held that the Tribunal in Selway [2010] erred in confining the unconfined discretion contained in reg 11 of the Regulations to rare or exceptional cases:
[39]In my view, it was an error of law for the tribunal to construe the apparently unlimited discretion in reg 11 so that, even where the policy or objectives of the legislative scheme were not undermined, there had to be some exceptional or special or rare circumstances before the discretion could be exercised in favour of Mr Selway. I do not consider that reg 11, in its context in the legislative scheme, implies that further fetter or gloss upon its operation…
[40]… It would not be accurate to attribute to the tribunal the view that it had virtually no discretion under reg 11. But in my view, it erroneously circumscribed or fettered its discretion by the formulation of the test to be applied before it could be exercised in Mr Selway’s favour. I consider that such fettering is not warranted by the words of reg 11 either taken alone or in their place in the regulations having regard to the legislative scheme. The subject matter of the Act and the Regulations, and the scope and purpose of the legislative scheme, does not support such an implication: Peko-Wallsend at CLR 39–40; ALR 308–9 per Mason CJ. See also O Jones, Bennion on Statutory Interpretation, 5th ed, LexisNexis, 2008, p 90.
(Emphasis added.)
(b)
In considering whether the Tribunal before it had erred in failing to exercise the discretion in reg 11 of the Regulations, the Federal Court in Grapsas v Minister for Infrastructure and Regional Development [2020] FCA 525 (Grapsas) stated at
[73]–[75]:
…I do not consider that the Tribunal erred in having regard to certain factors, which had been developed in earlier decisions of the Tribunal, to inform its consideration of whether or not to exercise the discretion. The Tribunal considered whether or not to exercise the discretion at
[28]–[40] of its reasons. In doing so, the Tribunal did not misunderstand its statutory task or unlawfully fetter the discretion in reg 11. Before considering the facts of the applicant’s application, the Tribunal made general comments about the nature of the discretion —
28. Regulation 11 contains a broad discretion to allow the importation of a nonstandard vehicle or a vehicle without an identification plate. The Act and the Regulations do not set out the specific facts to be taken into account for the exercise of this discretion. Accordingly, they must be determined by the subject matter, scope and purpose of the Act: Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24 at 39–40.
29. In Campos and Minister for Infrastructure and Transport [2012] AATA 227, Toohey SM held at [29]:
[T]here needs to be good reason for the discretion in reg 11 to be exercised.
30. In Selway v Minister for Infrastructure, Transport, Regional Development and Local Government [2011] FCA 43, Mansfield J held at [37]–[38]:
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 a circumstance, the favourable exercise of the discretion under Reg 11 would require there to be weighty countervailing factors. The fulfilment of that policy or those objectives is clearly relevant to the exercise of the discretion under Reg 11…However, beyond that consideration, the discretion under Reg 11 is, in its terms, unfettered…
31. Factors such as the policy objectives of the Act; unfairness or injustice to the Applicant; financial hardship to the Applicant; the unique nature of the vehicle in question; whether there were any unpredictable or unexpected events, are relevant to consider in exercising the discretion.
(Emphases added.)
As emphasised above, the Tribunal accurately summarised the breadth of the discretion, which did not have any expressly prescribed limits, and the limited relevance of having regard to certain factors developed in earlier decisions of the Tribunal. The Tribunal stated that factors “such as” those listed were “relevant to consider”. The Tribunal did not state that the applicant was required to satisfy any of those listed factors, or that they constituted an exhaustive list of the relevant factors that could inform its consideration of whether or not to exercise the discretion. The respondent submitted that the Tribunal treated those factors as a useful checklist that provided a framework to inform its consideration of whether or not to exercise an unconstrained discretion. I accept that characterisation.
The Tribunal went on at [33]–[40] of its reasons, extracted at [18] above, to consider the facts of the applicant’s application and decide not to exercise the discretion in his favour. The Tribunal considered each of the factors that it derived from earlier decisions of the Tribunal. In doing so, I do not consider that the Tribunal impermissibly fettered the discretion or limited itself, or failed to have regard to the particulars of the applicant’s application. As submitted by the respondent, the first two factors considered by the Tribunal — the policy objectives of the Act and unfairness to the applicant — necessarily inform the proper exercise of the statutory discretion. The discretion must be guided by the policy objectives of the Act, and consideration of any unfairness to the applicant requires the Tribunal to consider the particular facts of the applicant’s application and the consequences of the exercise of the discretion. The remaining factors derived from earlier decisions of the Tribunal — financial hardship to the applicant; whether the motor vehicle was unique; and whether there were any unforeseen circumstances — were also relevant to the exercise of the discretion, in light of the purpose of the regulatory scheme and the facts of the applicant’s application. … Finally, it is apparent that the Tribunal did not consider itself limited to the factors that it derived from earlier decisions. At [40] of its reasons, the Tribunal considered an additional factor, that the vehicle was the last vestige of the applicant’s inheritance from his parents, which it did not derive from any earlier decision, but rather that was responsive to the applicant’s submissions and the particular facts of his application.
(Emphasis added.)
On the basis of the authorities at paragraph 67 above when read together, the Tribunal considers the appropriate approach to considering whether the discretion in reg 11 of the Regulations be exercised in favour of Mr Howard to be:
(a)The discretion in reg 11 of the Regulations ought not to be confined to rare or exceptional or special cases.
(b)To formulate a test to be applied before the discretion can be favourably applied is not warranted by the words of reg 11 of the Regulations or by the broader regulatory context in which it appears, including in the Department’s policy (at paragraph [34] above).
(c)To have regard to the factors developed in the above decisions (such as in Selway [2010]), is not erroneous, nor does it unlawfully fetter the discretion. Rather, these factors relevantly inform the Tribunal’s consideration of whether or not to exercise the discretion.
(d)The factors listed at paragraph [65] of this decision do not constitute an exhaustive list, nor is an applicant strictly required to satisfy any of those factors. The Tribunal may also consider additional factors, which respond to an applicant’s particular submissions in his application. It is not necessary that these additional factors are derived from any earlier decisions.
(e)Paragraphs [68](a)–(d) above are consistent with the notion that there needs to be a good reason for the discretion in reg 11 of the Regulations to be exercised.
At this stage of its deliberations, the Tribunal could task itself to individually address each of the matters set out at paragraph [65] in accordance with Mr Howard’s oral and written contentions. However, to do so would only duplicate the Respondent’s efforts at paragraph [53](k) of this decision, as they are in line with the Tribunal’s observations of these factors. Rather, the Tribunal makes the following points:
(a)Factors such as those raised in paragraph [65](b)–(e) of this decision are relevant to consider and to do so does not impermissibly fetter the discretion in reg 11 of the Regulations (applying Grapsas). At the same time, Mr Howard is not required to satisfy any of these factors, nor do these factors constitute an exhaustive list of the relevant factors that inform the Tribunal’s consideration of whether or not to exercise the discretion.
(b)
The Tribunal considers that Mr Howard has provided no evidence that potentially falls for consideration under the factors in paragraph [65](b)–(e) of this decision.
In finding that there is no evidence to establish any of these factors does not, of itself, lead to a conclusion that the discretion cannot be exercised in Mr Howard’s favour. The Tribunal must also consider the policy sought to be achieved by the Act, taking into account the matters relied upon by Mr Howard and weighing up those matters in light of the part which the policy plays in the overall context of the decision to be made.
(c)As to the policy objectives of the Act (referred to in paragraph [65](a) of this decision) and in consideration of the policy objectives set out in ss 3(1) and 5 of the Act, the Tribunal is of the view, on the facts and available evidence in this matter and for reasons akin to those in paragraph [53](k)(i) of this decision, approval would undermine and frustrate the objects of the Act.
(d)The only other potentially relevant matter arising on the facts at hand and the only other matter relied upon is Mr Howard’s request that the Tribunal take into account factors of a personal nature (refer to paragraph [55] of this decision). Having regard to Selway (2011) as adopted in Grapsas, where an importation might undermine or frustrate the policy and objectives of the Act, the favourable exercise of the discretion in reg 11 of the Regulations would require there to be weighty countervailing factors. The Tribunal considers that Mr Howard’s submission that the discretion ought to be exercised in his favour on grounds that his Vehicle has been ‘beautifully made’ to a ‘high specification’, because of his sentimental attachment to it and because other similar cars have been imported to Australia are insufficient in this context and also more generally.
Overall, there is no evidence before the Tribunal that would enable it to reach the conclusion that the discretion in reg 11 of the Regulations should be exercised to approve Mr Howard’s application to import the Vehicle on any interpretation of the authorities in this matter, let alone the more recent interpretation adopted by this Tribunal at paragraph 69 above.
CONCLUSION
Mr Howard concedes that the Vehicle is a new car, manufactured post 1 January 1989 and hence fails to meet the requirements of the pre 1 January 1989 import option set out in the Act.
Mr Howard claims he is entitled to import the Vehicle on discretionary grounds, which ought to be available to him on the basis that his Vehicle has been ‘beautifully made’ to a ‘high specification’, that it is a safe vehicle, because of his sentimental attachment to it and because other similar cars have been imported to Australia.
The Tribunal finds that there is no evidence before it that would avail Mr Howard of the exercise of the discretion in reg 11 of the Regulations in his favour. Therefore, Mr Howard’s present application is unsuccessful.
DECISION
The decision of the Associate Administrator of Vehicle Standards dated 30 July 2019, to refuse Mr Howard’s application to import the Vehicle, is affirmed.
I certify that the preceding 74 (seventy -four) paragraphs are a true copy of the reasons for the decision herein of L M Gallagher, Member
........[Sgd]................................................................
Associate
Dated: 12 May 2020
Date of hearing: 26 February 2020 Applicant: Self-represented Representative for the Respondent: Mr A Burgess Solicitor for the Respondent: Sparke Helmore Lawyers
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