Karamanolis and Minister for Transport and Regional Services

[2005] AATA 1197

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 1197

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No S2005/129

GENERAL ADMINISTRATIVE DIVISION		)
Re		DESPINA KARAMANOLIS

Applicant

And MINISTER FOR TRANSPORT AND REGIONAL SERVICES

Respondent

DECISION

Tribunal Senior Member R W Dunne

Date31 October 2005

PlaceAdelaide

Decision The Tribunal affirms the decision under review.

..............................................

R W DUNNE
  (Senior Member)

CATCHWORDS

TRANSPORT – importation of vehicle – non-standard vehicle without identification plate – “road vehicle” – meaning of “motor vehicle designed solely or principally for the transport on public roads of people, animals or goods” – importation prohibited without approval – discretion – no grounds for exercise of discretion – decision affirmed.

Motor Vehicle Standards Act 1989 (Cth) ss 3, 5, 5B, 7, 18 and 20
Motor Vehicle Standards Regulations 1989 (Cth) Regulations 9, 11 and 13
ReCates and Minister for Transport and Regional Services [2004] AATA 1005
Re Marra and Minister for Transport and Regional Services (2003) 73 ALD 704

REASONS FOR DECISION

31 October 2005   Senior Member R W Dunne   

1.      In this case, the applicant (Ms Despina Karamanolis) sought to import a gas scooter (or G-scooter) (“Scooter”) into Australia.  Ms Karamanolis applied for approval to the Administrator of Vehicle Services (“Administrator”) to import the Scooter and the Administrator, as delegate of the Minister for Transport and Regional Services (“Minister”), refused the application.  The application was refused on the ground that, as a “road vehicle”, the Scooter was a “nonstandard” road vehicle and was not fitted with any identification plate.  As such, it could not be imported into Australia unless it was approved for importation pursuant to the Motor Vehicle Standards Act 1989 (“MVS Act”) and the Motor Vehicle Standards Regulations 1989 (“MVS Regulations”).

2.      On 5 May 2005, the applicant applied to this Tribunal for review of the delegate’s decision.  At the hearing, the applicant represented herself and gave oral evidence.  Mr Tredrea represented the respondent Minister.  The T documents (exhibit R1) were tendered, along with a witness statement of Mr Alan Gascoyne (exhibit R2), who is employed by the Department of Transport and Regional Services in the Vehicle Safety Standards Branch as Director, Certification.

issues for the tribunal

3. Under the relevant provisions of the MVS Act, a person must not import a “road vehicle” that is nonstandard or does not have an identification plate. However, the MVS Act goes on to provide that a person may import a nonstandard road vehicle or a road vehicle that does not have an identification plate in “prescribed circumstances”.

4.      The issues before the Tribunal are:

(a)whether the Scooter is a “road vehicle” for the purposes of the MVS Act and, as such, is prohibited from being imported into Australia without the approval of the Minister; and

(b)whether the Minister’s discretion in the MVS Regulations should be exercised to allow the importation of the Scooter.

5.      It was clear from the conduct of the hearing that there was no dispute that the Scooter is “nonstandard” and not within the Australian Design Rules determined by the Minister under s 7 of the MVS Act.

background evidence

6.      By way of introduction, Mr Tredrea referred the Tribunal to exhibit R1, pages 13-28, which was the applicant’s application for approval to import a vehicle.  The application included a copy of a booklet entitled “Gas Scooter – Instruction for gasoline scooters”.  Mr Tredrea pointed to exhibit R1, page 13 of the application and the fact that no purchase document had been provided by the applicant for the Scooter.  He also referred to Part 8 of the application (exhibit R1, page 14) and the fact that the applicant had not provided any evidence of not less than 12 continuous months overseas ownership and use of the Scooter.  Mr Tredrea then referred the Tribunal to exhibit R1, pages 17-28, and the instruction booklet relating to the Scooter.  He submitted that the booklet was a generic publication used for different makes and models of scooter.

7.      Ms Karamanolis was then sworn.  Her evidence was that she was unaware that she could not import the Scooter into Australia and that any approval was needed.  She said the Scooter had been purchased in approximately September 2003, while she and her husband were living in Greece.  It had then remained in their cellar and had not been used.  She decided to ship the Scooter back to Australia when she returned in January 2005.  It was her intention to allow her children (then aged 9 years and 6½ years), when they were older, to ride the Scooter around the backyard of their home.  She said no-one in Greece had said anything about importation approval being required in Australia when the Scooter was packed in Greece.  She had paid to bring the Scooter to Australia and would have left it in Greece had she known approval was required.

8.      Mr Gascoyne was sworn and Mr Tredrea referred him to his witness statement (exhibit R2).  His evidence was that one of his duties as Director, Certification was to supervise other qualified technical staff in the conduct of assessments of applications for approval to import road vehicles that were nonstandard or did not have an identification plate and to make recommendations to the Administrator on the approval or refusal of such applications.  He said he had not seen the Scooter but, in his view and based upon the material available to him, the Scooter was a “motor vehicle” within the meaning of the MVS Act. The particular technical characteristics of the Scooter were consistent with a vehicle that was designed to be used by an adult to travel at a consistent speed over a considerable distance only on relatively smooth, flat surfaces and not off-road. Mr Gascoyne’s concluded opinion was that the Scooter was designed principally or solely for the transport of people on public roads and was, therefore, a “road motor vehicle” and a “road vehicle” within the meaning of the MVS Act. The Tribunal also notes from Mr Gascoyne’s witness statement (exhibit R2, page 8) that no determination had been made by the Minister that the Scooter was not a “road vehicle” for the purposes of the MVS Act.

legislation

9. The MVS Act and the MVS Regulations relevantly provide as follows:

MVS Act

Defined terms from s 5 of the MVS Act:

“motor vehicle means a vehicle that uses, or is designed to use, volatile spirit, gas, oil, electricity or any other power (not being human or animal power) as the principal means of propulsion, but does not include a vehicle used on a railway or tramway.

…

nonstandard, in relation to a road vehicle or a vehicle component, means not complying with the national standards and not taken to comply with the national standards by virtue of an approval given under subsection 10A(2).

…

road motor vehicle means:

(a)a motor vehicle designed solely or principally for the transport on public roads of people, animals or goods; or

(b)       a motor vehicle that is permitted to be used on public roads.

…

road vehicle means:

(a)       a road motor vehicle; or

(b)       a road trailer; or

(c)       a partly completed road motor vehicle;

but does not include vehicles which the Minister has determined, under section 5B, are not road vehicles.”

Sections 18 and 20 of the MVS Act:

“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.

…

20(1) A person may import a nonstandard road vehicle or a road vehicle that does not have an identification plate:

…

(b)       in prescribed circumstances.

(2)…

(3) Regulations for the purposes of paragraph (1)(b) or (2)(b) may provide for the importation, whether generally or in specified circumstances, of a road vehicle, or a vehicle component, as the case may be:

(a)       with the written approval of the Minister; or

(b) with such approval subject to written conditions determined by the Minister.

…”

MVS Regulations

Regulation 9 of the MVS Regulations:

"For the purposes of section 20(1)(b) of the Act, a person may import a nonstandard road vehicle or a road vehicle that does not have an identification plate if the Minister has approved an application by the person to import the vehicle.”

…

Regulation 11 of the MVS Regulations:

“(1)The Minister may approve an application to import a nonstandard road vehicle or a road vehicle that does not have an identification plate.

…”

Regulation 13 of the MVS Regulations:

“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 9 May 2000 — 3 months; or

(ii)in any other case — 12 months; and

…”

consideration

10. The Tribunal notes that the main objects of the MVS Act, as set out in s 3, are:

(a)to achieve uniform vehicle standards to apply to new vehicles when they begin to be used in transport in Australia; and

(b)      to regulate the first supply to the market of used imported vehicles.

11. The Tribunal has carefully considered all of the evidence, the legislation and Regulations and the relevant case law. In doing so, I am of the view that the only Regulations capable of applying in the present case to Ministerial approval for importation of a road vehicle under s 18(1) are Regulations 11 and 13 of the MVS Regulations. The Tribunal has taken particular note of the evidence contained in the witness statement of Mr Gascoyne and his opinion that the Scooter is a “road motor vehicle” under the MVS Act. The Tribunal finds that the Scooter is a “motor vehicle”, in that it is “a vehicle that uses, or is designed to use, volatile spirit, gas, oil, electricity or any other power … as the principal means of propulsion …”.  As the Scooter is “a motor vehicle designed solely or principally for the transport on public roads of people …”, the Scooter is a “road motor vehicle”.  As the Minister has not determined that the Scooter is not a “road vehicle”, pursuant to s 5B, the Scooter is a “road vehicle” within the meaning of the MVS Act. The Tribunal also finds, on the evidence, that the Scooter has not been owned and used by the applicant overseas for a continuous period of at least 12 months. In these circumstances, Regulation 13 of the MVS Regulations does not apply, so that s 20(1)(b) of the MVS Act is incapable of applying by reference to that Regulation. Although it is unnecessary to do so, the Tribunal also finds that the Scooter is “nonstandard” and “does not have identification plate” for the purposes of s 18 of the MVS Act.

12.     The Tribunal notes and, insofar as it is relevant, respectfully applies the decision of Mr S Webb (Member) in Re Cates and Minister for Transport and Regional Services [2004] AATA 1005.

13. As to the application of the discretion in Regulation 11 of the MVS Regulations, the Tribunal notes that the discretion should be exercised only in exceptional circumstances and not in such a way as would undermine or frustrate the objects of the MVS Act and the MVS Regulations (see Re Marra and Minister for Transport and Regional Services (2003) 73 ALD 704 per Deputy President S D Hotop at [26] in considering Regulation 9B (now Regulation 11) of the MVS Regulations). The Tribunal finds that there are no grounds to warrant exercising the discretion under Regulation 11 of the MVS Regulations in the circumstances of this case.

conclusion

14. The Scooter is subject to the MVS Act and may only be imported under its terms or the terms of the MVS Regulations. The Scooter is a nonstandard road vehicle that must not be imported without the approval of the Minister. There are no grounds to support exercise of the Minister’s discretion under the Regulations.

decision

15.     The decision under review should be affirmed.

I certify that the 15 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member R W Dunne

Signed:         ............J Coulthard .........................................
  Associate

Date of Hearing  31 October 2005
Date of Decision  31 October 2005
Counsel for the Applicant         In person
Solicitor for the Applicant          -
Counsel for the Respondent     Mr K Tredrea
Solicitor for the Respondent     AGS