Isacson and Department of Transport and Regional Services

[2007] AATA 1135

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1135

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          N2006/1575

GENERAL ADMINISTRATIVE DIVISION		)
Re		STEFAN ISACSON

Applicant

And DEPARTMENT OF TRANSPORT & REGIONAL SERVICES

Respondent

DECISION

Tribunal Ms G Ettinger, Senior Member

Date16 March 2007

PlaceSydney

Decision

The Tribunal sets aside the decision of the Department of Transport and Regional Services, and in substitution grants the approval for the import of the bikes as proposed by Mr Isacson, subject to the points (i) to (iv) as stated in paragraph 29 of these Reasons for Decision.

  ................[sgd]………….            

  Ms G Ettinger
  Senior Member

CATCH WORDS   

TRANSPORT - chopper importation – exemptions –non-standard road vehicle having some features of an off-road and some features of an on-road bike – no identification plate – decision under review set aside with conditions.

Motor Vehicle Standards Act 1989 ss 3, 5, 18(1), 19 , 20

Motor Vehicle Standards Regulations 1989 Regulations 11 - 18

Australian Vehicle Standards Rules 1999  ss 8, 9 , 10

Cates and Minister for Transport and Regional Services (2004) 83 ALD 777

Brassington and Minister for Transport and Regional Services (2006) 91 ALD 766

Re Trajkovski and Department of Transport and Regional Services [2000] AATA 1073

Re Drake and Minister for Immigration and Ethnic Affairs (No.2) (1979) 2 ALD 634

Re Marra and Minister for Transport and Regional Services (2003) 73 ALD 704

Re Da Silva and Department of Transport and Regional Services (2004) 85 ALD 756

REASONS FOR DECISION

16 March 2007Ms G Ettinger, Senior Member

1.      Mr Stefan Isacson imports and trades in motor vehicles. On this occasion he was seeking to import 30 bikes which he termed off-road bikes, being mini-choppers or pocket choppers. On 7 September 2006, the Respondent, Department of Transport & Regional Services refused the import of “15, 2006 AMP GS216B and 15, GS219B Chopper Mini bikes” on the basis that the vehicles have a power output greater than 200 watts, and accordingly fall into the Moped category – 2 wheeler LA.  The Respondent held that vehicles in category LA are required to meet the applicable Australian Design Rules, and have to have an identification place fitted prior to supply in the Australian market.  The Respondent held that the vehicles were non-standard, not fitted with an identification plate, and would not be suitable for off-road use as claimed by Mr Isacson.

2.      Mr Isacson claims that the vehicles are off – road bikes, and are marked thus both on the boxes in which they are shipped, and on the bikes themselves. He has appealed the decision to this Tribunal.

3.      After considering the evidence, legislation, and case law, I set aside the decision of the Respondent and in substitution grant the approval for the import of the bikes as proposed by Mr Isacson, subject to conditions. My reasons follow.

THE ISSUE TO BE DECIDED

4.      The issue to be decided is whether the vehicles Mr Isacson seeks to import should be classified as on-road vehicles or off-road vehicles.

THE LEGISLATIVE CONTEXT

5.      The main object of the Motor Vehicles Standards Act 1989 (“the Act”), for new vehicles, is to achieve uniform vehicle standards which apply to road vehicles when they begin to be used in transport in Australia, and for used vehicles, to regulate the first supply to the market (section 3 of the Act). Non-standard vehicles are vehicles which do not comply with the National Standards or the Australian Design Rules.  An identification plate affixed to a motor vehicle establishes that the vehicle complies with the National Standards.

6.      A road motor vehicle is defined in section 5 of the Act as 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.

7.      The importation of non-standard motor vehicles is prohibited under section 18 of the Act, which provides:

18. (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. 

(2) Subject to sections 19 and 20, a person must not import a nonstandard prescribed vehicle component. 

Penalty: 60 penalty units.

8.      Section 19 of the Act provides that with the written approval of the Minister, a person may import a non-standard road vehicle or a road vehicle that does not have an identification plate. Section 20 of the Act permits a person to import a non‑standard road vehicle or a road vehicle that does not have an identification plate in prescribed circumstances.  The exceptions, or prescribed circumstances, are set out in the Motor Vehicle Standards Regulations 1989 (“the Regulations”).

9.      There are exceptions pursuant to Regulations 11- 18, but for purposes of this application, it is Regulation 11 which is relevant, and follows here:

“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.”

10.     Section 19 of the Act together with Regulation 11, provide a general discretion that with the written approval of the Minister, a person may import a non-standard road vehicle or a road vehicle that does not have an identification plate. That approval may be given subject to conditions specified in the Instrument of Approval.  The wording of Regulation 11 is general, and the factors to be considered are not specified, however the case law assists. I have discussed it in the paragraphs below.

THE APPLICANT

11.     Mr Isacson argued vigorously that the bikes he proposed to import were off-road bikes, and that there were similar and more powerful bikes selling on the market, so that he could not understand why he had not been permitted to import the ones he proposed which are subject of this application. He said that his were smaller, and had less components than some of the others which had been held to be off-road bikes. In support of his case he tendered Exhibit A1, colour photographs of ATVs, dirt bikes and pocket/rocket bikes, some of the latter with smooth non-knobbly tyres. Exhibit A4 was a colour page of newspaper advertising (dated 25 November 2006), depicting various bikes, including what was termed a 200 cc mini chopper whose speed can reach 140 kms per hour. Exhibit A2 comprised colour photographs with specifications for the bikes he sought to import.

12.     Mr Isacson emphasised that his bikes had either a 50 cc or 110 cc engine, could only reach a maximum speed of 45 kms per hour, and were badged for off-road use only by their manufacturers in China (Exhibit A3).  He said that they were for use on tracks (such as Butterfly Farm or Eastern Creek), or in enclosed spaces such as properties in the country. He said that before the import, he had telephoned Customs to inquire about the bikes, and been informed that if the shipment was off-road bikes, that was fine.

13.     Mr Isacson told me that the terms mini-chopper and pocket chopper (as contrasted to ATVs) were used interchangeably, whilst Mr Palfrey disagreed. Mr Isacson submitted that his bikes were of the same design as, and had the same suspension as ATVs.

14.     Mr Palfrey submitted that the bikes proposed for import did not have knobbly tyres as required for off-road use, whilst Mr Isacson indicated that at page two of Exhibit A1, certain pocket rockets which had smooth tyres were depicted. Mr Isacson submitted that some off-road bikes had knobbly tyres, but not all, and that some pocket bikes which did not have knobbly tyres had been approved.

THE RESPONDENT

15. Mr Palfrey submitted that pursuant to section 18 of the Act, there was a general prohibition to import non-standard motor vehicles, referring also to the exemptions available pursuant to the Regulations. He referred also to the definition of motor vehicle pursuant to section 5 of the Act.

16.     Mr Palfrey submitted that the bikes Mr Isacson proposed for import were motorised scooters in the LA (Moped) category as depicted and described in Exhibit R2/17, that is two wheeler, not exceeding 50 ml capacity, and not capable of exceeding 50 kms per hour with a power output exceeding 200 watts.  He submitted they could even be classified in the LC (Motorcycle) category, and had therefore to conform to the Australian Design Rules. They were accordingly not off-road bikes he submitted, and came under the general prohibition to import unless sections 19 or 20 applied. He submitted that section 20 and Regulation 13 were not applicable in this situation, and indicated the application of section 19 of the Act with Regulation 11 could be considered. He referred me to paragraphs 23- 30 of Cates and Minister for Transport and Regional Services (2004) 83 ALD 777 regarding the interpretation of “road”, and submitted that pursuant to the case law, importation would only be permitted in exceptional circumstances (Brassington and Minister for Transport and Regional Services (2006) 91 ALD 766). He submitted that had not been made out in this case.

17.     Mr Palfrey also referred me to Exhibit R3, a letter of 20 September 2006 from the Department of Transport and Regional Services written for the attention of potential and past importers of mini choppers. The letter warned importers that it appeared some of the applications for import, notwithstanding made in support of mini choppers, found they were being classified as LA (Moped) and LC (Motorcycle).  He submitted that Mr Isacson’s bikes not be imported because they were road bikes and did not conform with the Australian Design Rules.

THE TRIBUNAL

18.     In deciding whether the bikes which Mr Isacson proposed to import are on or off-road bikes, I have had regard to the specifications provided in Exhibit A2 for the GS219B and the GS216B bikes, all the evidence, and the legislation and case law. 

19. In coming to a decision I am mindful that I have a discretion pursuant to section 18 of the Act and Regulation 11 which must however be exercised having in mind the policy and objects of the Act and the Regulations, having regard to all relevant considerations, and disregarding any irrelevant considerations. Accordingly in doing so, I have first carefully considered the decided cases.

20.     I noted that Deputy President Purvis said in Re Trajkovski and Department of Transport and Regional Services [2000] AATA 1073, at paragraph 35:

“There is no question that the decision to be made now by the Tribunal is not to be arbitrary but is to be one consistent with the policy sought to be achieved by the legislation, taking into consideration the matters relied upon by the Applicant. Thus the matter is to be judged by weighing up the particular circumstances of the case in the light of the part which the policy plays in the overall context of the decision to be made. (Skoljarev v Australian Fisheries Management Authority (1995) 22 AAR 331 at 337).”

21.     DP Purvis also cited Re Drake and Minister for Immigration and Ethnic Affairs (No.2) (1979) 2 ALD 634 at 639 as follows:

“Inconsistency is not merely inelegant; it brings the process of deciding into disrepute suggesting an arbitrariness which is incompatible with commonly accepted notions of justice.”

22.     I noted that Deputy President Hotop in Re Marra and Minister for Transport and Regional Services (2003) 73 ALD 704 held similarly at paragraph 20:

“That discretionary power is, however, not at large - it must be exercised in accordance with the policy and objects of the Act and the Regulations, having regard to all relevant considerations, and disregarding any irrelevant considerations, as determined from a consideration of the subject matter, scope and purpose of that legislation: R v Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd (1979) 144 CLR 45 at 49; Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-40.”

23.     Senior Member Allen concurred in Re Da Silva and Department of Transport and Regional Services (2004) 85 ALD 756, and commented on the use of the adjective exceptional, said at paragraph 55:

“I have referred to the objectives of the Act and the regime for approval of imports of used vehicles in certain circumstances above.  This Tribunal has described the circumstances in which it may be appropriate to exercise the general discretionary power in r 11 in favour of an applicant (in circumstances where none of the other specific approval powers were satisfied) as being “exceptional” (see Re Trajkovski and Department of Transport and Regional Services [2000] AATA 1073 at [32]) and “very exceptional, extraordinary or special circumstances peculiar to an applicant” (Re Anthony and Department of Transport and Regional Services [2001] AATA 543 at [19]).

For my own part, I do not believe that it is particularly helpful to resort to adjectives of the kind referred to in the previous paragraph.  Rather, I believe that it is sufficient to pose the question in terms of whether, having regard to the policy and objectives of the Act and the regulations, and to all the relevant circumstances of the applicant, it is appropriate to exercise the discretionary power in favour of the applicant.” 

24.     Member Fice stated in Brassington (supra) at 27:

“In my opinion, Member Allan was not suggesting that circumstances in which it was appropriate to exercise the discretion need not necessarily be exceptional. Rather, he was minded to look at the policy and objectives of the Act, the Regulations and to all the relevant circumstances of an applicant in order to determine whether that discretion ought to be exercised. The fact that the object of the Act in relation to used vehicles is to regulate the first supply to the market, and the exercise of discretion will only be resorted to where an Applicant is unable to rely on any of the exceptions set out in regs 11 – 18, would, of necessity, result in the circumstances being exceptional. In any event, I am satisfied that I should approach the exercise of discretion in this case on the same basis as Member Allan did in Da Silva; where he said at paragraph 59:

‘In my opinion, the exercise of the discretion in r 11 should be approached on the basis that if there would be some element of unfairness or injustice to the applicant if approval were not granted, and the grant of approval would not undermine or frustrate the policy and objects of the legislative scheme, then the discretion should be exercised in the applicant’s favour.  The totality of the relevant circumstances must be considered…’”

25.     In coming to a decision, I have referred to Exhibit R2/15 where the Respondent has indicated that to gain approval for the import of pocket bikes, their seat height must not be more than 600 mm from the ground to the saddle. The specifications for Mr Isacson’s bikes indicate that for the GS219B, the seat height is 480 mm and for the GS216B, the seat height is 440 mm, that is both are less than 600 mm. The photographs accompanying the description on page 15 of Exhibit R2, appear similar to those of Mr Isacson’s bikes. So, according to those criteria, they are pocket bikes. However that may not be entirely conclusive.

26.     Accordingly, I turned then to pages 16 and 17 of Exhibit R2 where motor scooters, pedal cycles and motor bikes are described and depicted. I was mindful of the Respondent’s categorisation of Mr Isacson’s bikes into the LA (Moped) or LC (Motorcycle).

27.     I am satisfied that because Mr Isacson’s GS219B is available as a 50 cc or a 110 cc bike, its maximum speed does not exceed 48 kms per hour, and it has power output exceeding 200 watts (i.e. 2.6 kw), the 50 cc bike may fall into the LA (Moped) category and the 110 cc bike into the LC (Motorcycle) category.

28.     I am satisfied that because Mr Isacson’s GS216B is available as a 50 cc or a 110 cc bike, its maximum speed does not exceed 45 kms per hour, and the power output exceeds 200 watts, the 50 cc bike may fall into the LA (Moped) category, and the 110 cc bike into the LC (Motorcycle) category.

29.     I turned then to consider the examples on page 17 of Exhibit R2, and am satisfied that Mr Isacson’s bikes fall into the categories which have some on-road and some off-road features.  Page 17 states:

“If your bike falls into the category where it has some on road features but is predominately (sic) an off-road bike, the Administrator may grant import approval if you agree to the following:

(i) Direction indicators lamps are not fitted at time of importation nor at any time later;

(ii) Registration plate holder is not fitted at time of importation nor at any time later;

(iii) Tyres suitable for off-road use only are fitted at time import and at all times later; and

(iv) A durable self adhesive label is affixed in a conspicuous position immediately after taking delivery of the vehicle in Australia. The label must include the words “this motorcycle is not certified to comply with the Australian Design Rules and may not be registered for normal on road use.”

30.     I find then that the bikes Mr Isacson seeks to import have some off-road and some on-road characteristics, but I find that they have predominantly off-road features. Considering the totality of the relevant circumstances, I am satisfied that there would be unfairness or injustice to the Applicant if approval for import were not granted. I accept Mr Isacson’s evidence that he made inquiries of the relevant authorities before he sought to import the bikes. I am also satisfied that to exercise the discretion to grant the approval for the import of those bikes subject to the points (i) to (iv) as stated in the paragraph above being imposed, would not undermine or frustrate the policy and objects of the legislative scheme. Of course it may cost money for Mr Isacson to seek to conform with the conditions I have imposed, and he may choose not to proceed.

DECISION

31.     I set aside the decision of the Respondent Department of Transport and Regional Services, and in substitution grant the approval for the import of the bikes as proposed by Mr Isacson, subject to the points (i) to (iv) as stated above in paragraph 29.

I certify that the preceding 31 paragraphs are a true copy of the reasons for the decision herein of Ms G Ettinger, Senior Member

Signed:         .............[sgd]........................
  Associate

Date of Hearing  19 February 2007
Date of Decision  16 March 2007
The Applicant  Self Represented
Solicitor for the Respondent     Mr M Palfrey, Clayton Utz Lawyers