Kennard and Minister for Infrastructure and Regional Development
[2016] AATA 212
•6 April 2016
Kennard and Minister for Infrastructure and Regional Development [2016] AATA 212 (6 April 2016)
Division
GENERAL DIVISION
File Number(s)
2015/2445
Re
Anna Kennard
APPLICANT
And
Minister for Infrastructure and Regional Development
RESPONDENT
DECISION
Tribunal Deputy President S E Frost
Date 6 April 2016 Place Sydney Set aside the decision under review; remit the matter to the Minister for reconsideration in accordance with a direction that the Minister, pursuant to regulation 11 of the Motor Vehicle Standards Regulations 1989, approve the applicant’s application to import the 2001 model two-seater Mercedes Benz SLK 320 previously owned by her father, such approval to be on condition that the applicant undertakes to comply with any requirements as to road safety that are imposed in respect of the vehicle by the Minister.
........................[sgd]................................................
Deputy President S E Frost
CATCHWORDS
TRANSPORT - motor vehicle standards - import of nonstandard vehicle - discretion to approve application to import nonstandard vehicle - emotional attachment to car - unique car - decision set aside and remitted
LEGISLATION
Motor Vehicle Standards Act 1989, ss 3, 7 and 18
Motor Vehicle Standards Regulations 1989, regs 13 and 11
CASES
Hunt and Minister for Infrastructure, Transport, Regional Development and Local Government [2008] AATA 417
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Selway v Minister for Infrastructure, Transport, Regional Development and Local Government [2011] FCA 43Williamson and Minister for Infrastructure, Transport, Regional Development and Local Government [2009] AATA 48
REASONS FOR DECISION
Deputy President S E Frost
6 April 2016
INTRODUCTION
Anna Kennard wants to import a car from the United Kingdom.
It is not just any car. It is a car that Mrs Kennard’s father owned for about ten years before he gave it to her as a present. It is a car in which Mrs Kennard and her father went on a number of ‘road trips’ during the period 2002 to 2005, when she was in her early twenties. It is a car that has a personalised interior which provides a constant reminder of her father, who continues to live in the UK, and of very significant events in her life that she shared with him.
She asked the Department of Infrastructure and Regional Development for permission to import the car. The Minister is the formal decision-maker in relation to applications of that nature. A delegate of the Minister refused Mrs Kennard permission to import the car. Mrs Kennard has applied to the Tribunal for review of that decision.
I have decided to set aside the Minister’s decision and substitute a decision that, subject to conditions, Mrs Kennard has permission to import the car into Australia. My reasons follow.
THE LEGISLATION
The relevant pieces of legislation are the Motor Vehicle Standards Act 1989 (the Act) and the Motor Vehicle Standards Regulations 1989 (the Regulations).
The main objects of the 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.
Section 7 of the Act grants to the Minister the power to determine vehicle standards for road vehicles or vehicle components. Any vehicle that does not comply with the standards is called a ‘nonstandard vehicle’. The car that Mrs Kennard wants to import is a nonstandard vehicle.
The importation of a nonstandard vehicle is generally prohibited by s 18 of the Act, but there are some exceptions. This case turns on one of those exceptions. It is contained in regulation 11 of the Regulations, which is in the following terms:
(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.
The question is whether that apparently broad discretion should be exercised in Mrs Kennard’s favour.
THE FACTS
Mrs Kennard provided the factual background in her application to the Department and in oral evidence to the Tribunal. There was no challenge to her account and I find the facts to be as follows.
The car in question is a right-hand-drive, 2001 model two-seater Mercedes Benz SLK 320 which Mrs Kennard’s father, Duncan Christie, bought when he lived in Paris. It has a bespoke interior which includes Mr Christie’s initials. It complies with the EU and UK motor vehicle standards.
When Mr Christie’s posting to Paris ended in 2002 he and Mrs Kennard drove the car from Paris to the family home in Scotland in what Mrs Kennard described as a ‘father-daughter road trip’. At the time she was 21 years old. It was, in her words, a ‘once in a lifetime adventure which I will always treasure and the car holds that memory for me every time I see it’. Subsequently Mrs Kennard and her father also took a number of weekend drives in the area around their home in Scotland.
Mrs Kennard and her husband became engaged when the two of them were staying with her parents in Paris on a later posting there. On their honeymoon they drove the car through Portugal, Spain and the south of France. They now live in Sydney with their three young children. Mrs Kennard moved here from Scotland in about 2005 and has become an Australian citizen. She and her husband would like to bring the car to Australia so they can ‘share the car and these experiences with our children when they get a bit older’.
Mrs Kennard’s father had always intended to give the car to her when she had a family of her own. He eventually gave it to her in 2012 as a birthday present, when she was visiting from Australia. Mrs Kennard has described that event as a ‘surprise’, which seems inconsistent with what she says her father’s intention had always been, but she has explained that it was the timing of the gift, not the fact of it, that surprised her.
The car is in excellent condition and has an ‘impeccable service and maintenance history’.
THE REASONS FOR THE DECISION-MAKER’S REFUSAL TO EXERCISE THE DISCRETION
The decision-maker first considered Mrs Kennard’s application under regulation 13 of the Regulations. That is a provision that allows the importation of a nonstandard vehicle by a person who is permanently relocating to Australia from a foreign country. Subregulation 13(1) has a number of specific criteria that have to be satisfied before approval can be granted. They are that:
(aa)the applicant owns the vehicle at the time the application is made; and
(ab)the applicant acquired ownership of the vehicle overseas; and
(ac)the applicant owned the vehicle while overseas and owned it for a continuous period of at least 12 months immediately before arriving in Australia for the purpose of remaining in Australia indefinitely as mentioned in paragraph (b); and
(ad)during that period of ownership the vehicle was available to the applicant for use in transport; and
(a)the application is made not later than 6 months after the applicant arrived in Australia for the purpose of remaining in Australia indefinitely as mentioned in paragraph (b); and
(b)at the time the application is received by the Minister, the applicant is:
(i)an Australian citizen or permanent resident and provides evidence that he or she intends to remain in Australia indefinitely; or
(ii)a person who has applied to become an Australian citizen or permanent resident and provides evidence that he or she intends to remain in Australia indefinitely if granted Australian citizenship or permanent residency; or
(iii)a person who is entitled to remain in Australia indefinitely and provides evidence that he or she intends to do so; or
(iv)the holder of a visa that entitles him or her to apply to become a permanent resident (whether or not after a specified period or in specified circumstances) and provides evidence that he or she intends to remain in Australia indefinitely; 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 been granted an approval under this regulation within the period of 5 years ending on the day on which the vehicle in respect of which the application is made is landed in Australia.
It is clear that Mrs Kennard’s circumstances do not satisfy paragraphs (ac) and (a).
The decision-maker concluded that paragraphs (ab) and (ad) were also not satisfied. That conclusion, at least in respect of paragraph (ab), is wrong. In relation to the circumstances of the gift of the car from her father, Mrs Kennard said in the material supporting her application to the Tribunal for review of the decision (T1-9):
I was visiting him in the UK when he surprised me with his generous gift …
I find that to be the case. It follows that paragraph (ab) is satisfied.
As far as paragraph (ad) is concerned, Mrs Kennard must fail that criterion once she fails the one in paragraph (ac).
In any event, the decision-maker was correct to conclude that approval could not be granted under regulation 13.
The decision-maker then turned to consider regulation 11, dealing with it somewhat peremptorily as follows:
I have also considered the use of discretion (Regulation 11) in your case, but do not consider this warranted.
The statement of reasons provided to the Tribunal under s 37 of the Administrative Appeals Tribunal Act 1975 includes the following further justification, at T2-21 [40]:
In particular, the Decision-maker was concerned that approving the importation of this Vehicle on the basis that ownership had been transferred from a family member might set a precedent that would seriously undermine the policy underlying the legislative scheme established by the Act, as potentially anyone with close family overseas might receive a present of a vehicle in such circumstances. The Vehicle is a road motor vehicle without an identification plate. The Vehicle has been used in transport, as attested by the registration document. The Act and Regulations do not cover the particular circumstances for the Vehicle or its current owner.
The Decision-maker has on occasion exercised discretion to approve the importation of a nonstandard vehicle without an identification plate in circumstances where the applicant has been gifted the Vehicle. But in these cases the applicant has had a pre-existing relationship with the vehicle in question and/or it has been a bequest (usually with strong sentimental attachment). No evidence was provided by the Applicant to indicate that she had had a long standing association with the Vehicle. The fact that her father had owned the Vehicle for a number of years was not considered sufficiently strong grounds for the exercise of discretion.
In the circumstances outlined above, the Decision-maker considered that approving the importation of the Vehicle under subregulation 11(1) would undermine the policy underlying the legislative scheme established by the Act.
THE EXERCISE OF THE DISCRETION
The discretion under regulation 11 is unfettered. In that respect the regulation may be contrasted with other regulations in Division 4.1 (regulations 12 to 16 and 18), under which the Minister may allow the importation into Australia of certain vehicles or types of vehicles only if specified criteria are met.
Nevertheless, and despite the unfettered nature of the discretion in regulation 11, the discretion should be exercised having regard to the subject matter, scope and purpose of the legislative scheme: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-40 (Mason J).
The subject matter, scope and purpose of the legislative scheme may be discerned by reference to s 3 of the Act, which sets out the main objects of the Act (see [6] of these reasons), and to the vehicle standards which the Minister has determined under s 7. The standards, called the Australian Design Rules, or ADRs, concern themselves principally with[1]:
… vehicle safety, anti-theft and emissions. The ADRs are generally performance based and cover issues such as occupant protection, structures, lighting, noise, engine exhaust emissions, braking and a range of miscellaneous items.
[1] viewed 28 March 2016.
SHOULD THE DISCRETION BE EXERCISED IN MRS KENNARD’S FAVOUR?
Mrs Kennard considers that her circumstances are similar to, and perhaps somewhat stronger than, those in Hunt and Minister for Infrastructure, Transport, Regional Development and Local Government [2008] AATA 417. Mr Hunt had succeeded in his application on account of his ‘strong emotional attachment’ to a vehicle that had been bequeathed to him by his late father. Deputy President Groom summarised the facts in the following way, at [13]:
The applicant's father, the late Mr Ralph Hunt, died in the United Kingdom in December 2006. The applicant, who migrated from England to Australia in 1999 and is now an Australian citizen, became the owner of the vehicle on the distribution of his late father's estate. After being diagnosed with cancer and on a visit to Tasmania Mr Ralph Hunt had expressed a personal wish that after his death the vehicle should be shipped to Australia so that the applicant and his family could enjoy the use of the vehicle. In particular the father wished that it be driven to horse race meetings as Mr Ralph Hunt had done in the United Kingdom. The applicant has a strong personal attachment to the vehicle because of its association with his late father. It is not intended that this importation be for personal gain. The vehicle which was purchased by Mr Ralph Hunt in 2002 is a right-hand drive 1999 Mercedes Benz E300. It is a relatively late model car in good condition. The vehicle has been registered in the United Kingdom and meets the relevant vehicle standards in the United Kingdom and more widely in Europe.
Mrs Kennard emphasises her own personal attachment to her father’s car, which comes not only from the ‘once in a lifetime adventure’ of the road trip with her father from Paris to Scotland, but also from the strong memories she has of the many weekend drives with him in Scotland, and the extensive touring she did with her husband on their honeymoon.
The Minister submits that the ‘sole relevant factor’ in favour of exercising the discretion in Mrs Kennard’s favour is her sentimental attachment to the vehicle. With respect, that is an over-simplification of her case. In fact, the relevant factors are these:
(a)Many, although admittedly not all, of the requirements of regulation 13 are satisfied;
(b)The car had been owned for about 12 years by Mrs Kennard’s father, who had always intended to give it to one of his daughters. He gave it to Mrs Kennard because his other daughter lives in London and, according to Mrs Kennard, ‘it’s probably not something that she would want, to be honest’[2];
(c)Mrs Kennard herself has had a strong pre-existing relationship with the car and she retains a very strong and personal emotional attachment to the car for reasons already mentioned. It provides a constant reminder of her father, of special times shared with him, and of other significant events in her life. Her attachment is not so much to the metal, the plastic and the glass, as to the memories and experiences that the car represents;
(d)The car is unique because of the bespoke interior, including Mrs Kennard’s father’s initials. There is truly only one of its kind in the world;
(e)I accept Mrs Kennard’s evidence that the car has ‘a very good service history’ and is in ‘impeccable’ condition[3];
(f)The car complies with the EU and UK motor vehicle standards;
(g)The car is intended for the personal use of Mrs Kennard and her family. There is no intention, if the importation is permitted, to make a commercial gain;
(h)In those circumstances, the importation of this particular car, as a single unit, will not frustrate the relevant policy considerations upon which the Act and Regulations are based.
[2] Transcript of hearing held 17 November 2015, page 26.
[3] Transcript of hearing held 17 November 2015, page 12.
Although it has been said that the discretion in regulation 11 should be exercised ‘sparingly’ (see, for example, Williamson and Minister for Infrastructure, Transport, Regional Development and Local Government [2009] AATA 48, at [11]), nevertheless the discretion is not to be confined to ‘special’ or ‘exceptional’ or ‘rare’ cases (Selway v Minister for Infrastructure, Transport, Regional Development and Local Government [2011] FCA 43) but is there to be exercised in any worthy case. This is such a case. Refusal to allow the importation of this truly unique vehicle would cause unnecessary distress to Mrs Kennard, whereas permitting the importation, with appropriate conditions, will cause no detriment to the Australian community and no diminution of the Australian road safety or emission standards.
DECISION
I will set aside the decision under review and remit the matter to the Minister for reconsideration in accordance with a direction that the Minister, pursuant to regulation 11 of the Motor Vehicle Standards Regulations 1989, approve Mrs Kennard’s application to import the 2001 model two-seater Mercedes Benz SLK 320 previously owned by her father, such approval to be on the condition that Mrs Kennard undertakes to comply with any requirements as to road safety that are imposed in respect of the vehicle by the Minister.
I certify that the preceding 31 (thirty -one) paragraphs are a true copy of the reasons for the decision herein of Deputy President S E Frost .....................[sgd]...................................................
Associate
Dated 6 April 2016
Date(s) of hearing 17 November 2015 Applicant In person Solicitors for the Respondent Sparke Helmore
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