Minister for Industry and Commerce v Tooheys Ltd

[1982] FCA 135

Re: THE RIGHT HONOURABLE SIR PHILLIP REGINALD LYNCH; THE MINISTER FOR INDUSTRY
AND COMMERCE
And: TOOHEYS LIMITED (1982) 60 FLR 325
NSW No. G122 of 1981
Administrative Law - Customs - Statutes

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Bowen C.J.(1), Northrop(1) and Lockhart(1) JJ.

CATCHWORDS

Administrative Law - Customs Act 1901 - delegate of Minister for Business and Consumer Affairs refuses to make a determination under s. 273 of Customs Act - whether such refusal a "decision of an administrative character" - distinction between legislative and administrative acts - whether decision part of the process of making or leading up to the making of a calculation of duty under the Customs Act - whether decision excluded from review under Administrative Decisions (Judicial Review) Act 1977.

Customs Act 1901 (Cth.) ss. 271-273

Customs Tariff

Customs Regulations

Administrative Decisions (Judicial Review) Act 1977 (Cth.) s.3

Income Tax Assessment Act 1936 (Cth.) ss. 99, 99A

Administrative Law - Minister's refusal to make determination or by-law - Application for order of review - Whether Minister's refusal "decision of an administrative character".

Customs - Whether by-laws essentially legislative in character - Distinction between legislative and administrative act - Whether decision excluded from review - Whether decision "forming part of the process of making . . . calculations of duty" - Examination of scheme of Customs Act and Tariff as to customs duty - Whether decision to make by-law or determination dealing with calculation of liability - Whether decision otherwise reviewable - Administrative Decisions (Judicial Review) Act 1977 (Cth), s. 3(1), Sched. 1 par. (e) - Customs Act 1901 (Cth), ss. 15, 16, 17, 17A, 33A, 36, 37, 38, 153, 163, 165, 167, 267, 271, 272, 273, 273GA - Customs Tariff, Second Schedule Pt I item 19 - Customs Regulations, reg. 126(f).

Statutes - Interpretation - Administrative law - "Decision of an administrative character" - Decision "forming part of the process of making . . . of . . . calculations of . . . duty" - Whether by-laws are essentially legislative in character - Administrative Decisions (Judicial Review) Act 1977 (Cth), s. 3(1), Sched. 1 par. (e) - Customs Act 1901 (Cth), s. 273.

HEADNOTE

The respondent lodged with the delegate of the appellant a "by-law application" seeking by-law admission of certain goods pursuant to ss. 271 to 273 of the Customs Act 1901 (the Act). The delegate of the appellant having refused to make a determination the respondent sought an order of review of that "decision" under the Administrative Decisions (Judicial Review) Act 1977 (Cth) in the Federal Court of Australia. The appellant objected to the competency of the court and, upon the objection having been dismissed, he appealed to the Full Court on the grounds, inter alia, that the decision was not a "decision of an administrative character" within the meaning of that Act and that it was not a decision to which the Administrative Decisions (Judicial Review) Act 1977 applied.

Held: Per curiam dismissing the appeal - (1) The Minister's refusal to make a determination under s. 273 of the Customs Act 1901 was "a decision of an administrative character" within the meaning of that expression in s. 3(1) of the Administrative Decisions (Judicial Review) Act 1977. The proposition that by-laws are essentially legislative in character is unsound.

Commonwealth v. Grunseit (1943), 67 CLR 58; Radio Corporation Pty. Ltd. v. Commonwealth (1938), 59 CLR 170, followed.

Giris Pty. Ltd. v. Federal Commissioner of Taxation (1969), 119 CLR 365, distinguished.

Hamblin v. Duffy (1981), 50 FLR 308, referred to.

(2) The decision of the Minister not to make a determination under s. 273 of the Customs Act 1901 does not fall within par. (e) of Sched. 1 of the Administrative Decisions (Judicial Review) Act 1977 because: (a) Paragraph (e) is directed to the process whereby the liability to duty is calculated in a particular case. A decision to make a by-law or determination is a decision which affects liability. It is not a desicion dealing with the calculation of liability. (b) It is an evident purpose of par. (e) to exclude from the classes of decision susceptible of review under the Administrative Decisions (Judicial Review) Act 1977 decisions which adversely affect the citizen and which are reviewable on appeal generally to Boards of Review or the courts or both.

HEARING

Sydney, 1982, June 17-18; July 15. #DATE 15:7:1982

APPEAL.

Appeal to the Full Court of the Federal Court of Australia from a judgment of a single judge of that court.

J. R. T. Wood Q.C. and J. J. Steele, for the appellant.

P. R. Graham, for the respondent.

Cur. adv. vult.

Solicitor for the appellant: B. J. O'Donovan, Commonwealth Crown Solicitor.

Solicitors for the respondent: Parish Patience.

E. F. FROHLICH

ORDER

1. The appeal be dismissed.

2. The appellant pay to Tooheys Limited its costs of the appeal.

3. The further hearing of the matter, including the question of costs of the hearing of the objection to competency, be referred to the Judge who heard the argument on that question or other Judge of this Court.

JUDGE1

This appeal from a single Judge of this Court involves two questions. The first is whether a refusal of the Minister administering the Customs Act 1901 ("the Customs Act") to make a determination under s. 273 of that Act is "a decision of an administrative character" within the meaning of that expression in s. 3 (1) of the Administrative Decisions (Judicial Review) Act 1977 ("the Judicial Review Act"). The second question, which assumes an affirmative answer to the first, is whether the Minister's decision answers the description of a decision "making, or forming part of the process of making, or leading up to the making of, . . . calculations of . . . duty" under the Customs Act within the meaning of paragraph (e) of Schedule 1 to the Judicial Review Act and is therefore not a decision to which that Act applies.

The facts are not in dispute. On 26 September 1978 Tooheys Limited, the respondent in this appeal, lodged a document described as a "By-law Application" seeking by-law admission of goods described in the application as:-

"1 only Alvey Series 310 automatic palletizer with a palletizing capacity in excess of 70 cases and up to 300 cases per minute."

The application stated that the order for the goods had been placed overseas in August 1978 and that they had not, at the date of the application, been entered for home consumption. The expected date for importation was stated as "October 1978".

After Tooheys' "By-law Application" was lodged, it was asked to supply additional information, including evidence to support the claim that suitable equivalent goods were not reasonably available from Australian manufacturers. On 9 October 1978 it lodged material for the purpose of satisfying the request.

After a long delay a determination was made by a delegate of the Minister for Business and Consumer Affairs on 10 January 1980 that item 19 of the Customs Tariff ("the Tariff") should apply to the goods specified in the application and entered for home consumption on or after 1 August 1978 and on or before 31 December 1978.

This determination would have operated to exempt the specific goods from duty were it not for the fact that the application misstated the relevant facts as to importation and entry for home consumption. Although the application stated that the goods had not been entered for home consumption, in fact they were entered for home consumption on 4 July 1978. The application stated that the expected date of importation was October 1978; but in fact they were imported on 26 June 1978. As the determination only applied item 19 to the goods if they were entered for home consumption on or after 1 August 1978 but on or before 31 December 1978 it had no effect in relation to the actual importation. It was therefore of no value to Tooheys.

It was necessary for a fresh determination to be obtained if item 19 was to be applied to the goods. Tooheys' customs agent wrote to the Department of Business and Consumer Affairs on 22 February 1980 asking it to amend or, if this was not possible, to re-issue a ministerial determination for the relevant goods.

There was further correspondence between the Department of Business and Consumer Affairs and Tooheys' customs agent which related in part to explanations as to why a mistake had been made as well as to the production of evidence necessary to establish that the goods, during 1977, fell within the terms of item 19. It is not necessary for present purposes to set out the detail of that correspondence except a letter of 18 March 1981 signed by Mr. Luckman, the Assistant Secretary, By-law Branch, of the Department of Business and Consumer Affairs, and sent to Tooheys' custom agent in the following terms:-

"I refer to your application of 26 September, 1978 and numerous correspondence since, requesting, on behalf of Tooheys Ltd., the by-law admission of an Alvey Automatic Palletizer imported in June, 1978.
Your submission of the 28th November, 1980 has been given careful consideration and in response I would offer the following comments:
As item 19 forms an integral part of the structure of the Tariff its administration must be compatible with the Government's general philosophy of industry assistance. It would be inappropriate for me to permit by-law admission under item 19 which had the effect of removing the tariff assistance accorded by Parliament to a particular industry or manufacturer. It is only in situations where it is quite clear that there is no local production competing with the imported goods that by-law admission can be granted.
In this case, at the time when your client decided to purchase the imported machine, neither APM or Allen Ygnis was given the opportunity to quote for the requirement. I accept that such a quotation would have involved development and/or modification but I do not feel that the situation is sufficiently clear for me to decide that By-law entry was appropriate in 1977/78.
Finally, your response to my letter of 20 March, 1980 is not entirely satisfactory. I would expect any future applications from you to pay particular attention to essential facts such as date of order and the sequence of events that preceded and surrounded the decision to order overseas."

It is common ground that Mr. Luckman was a person who held an appropriate delegation from the then Minister for Business and Consumer Affairs for the purpose of making By-laws and determinations under ss. 271-273 of the Customs Act (s. 9).

On 14 April 1981 Tooheys instituted proceedings against the Minister for Business and Consumer Affairs under the Judicial Review Act seeking an order of review in respect of the "decision" made by the Assistant Secretary, the subject of the letter of 18 March 1981. After the proceedings were instituted the Minister for Business and Consumer Affairs filed a notice of objection to competency objecting to the jurisdiction of this Court to hear the application under the Judicial Review Act on various grounds namely, that the decision was not a "decision" at all, that it was not "a decision of an administrative character" within the meaning of that Act, that it was not a decision to which that Act applies and that the respondent is not "a person aggrieved" by a decision to which that Act applies. The learned primary Judge decided against the Minister for Business and Consumer Affairs on each of these grounds. It is from that judgment that this appeal is brought.

The former Department of Business and Consumer Affairs was abolished in May 1982 and replaced by the Department of Industry and Commerce. The Minister for Industry and Commerce was entrusted with the management and administration of the Customs Act and the Tariff. At the commencement of the hearing of this appeal, on the application of counsel for the appellant, and without opposition from counsel for Tooheys, we added the Right Honourable Sir Phillip Reginald Lynch, the Minister for Industry and Commerce, as an appellant and deleted the Honourable John Colinton Moore, the Minister for Business and Consumer Affairs, as an appellant.

The primary Judge held that the letter of 18 March 1981 was evidence that a decision had been made on behalf of the then Minister for Business and Consumer Affairs refusing to make a determination under s. 273 of the Customs Act. His Honour also held that the respondent was "a person aggrieved" within the meaning of that expression in s. 5 (1) of the Judicial Review Act. Although the Minister appealed against both of these findings, neither ground of appeal was pressed before us.

In relation to the other findings appealed against it is necessary to examine the relevant provisions of the Customs Act and the Tariff. They are complex and labyrinthine.

Customs duties are imposed by ss. 15 and 16 of the Tariff. Section 16 imposes the general rates of duty in respect of goods, ascertained by reference to the rate of duty set out in column 3 in the tariff classification in the First Schedule to the Tariff. Other sections of the Tariff impose other rates of duty; for example preferential rates (s. 17), special preferential rates (s. 17A) and surcharge rates (s. 20). Provision is made for primage duty in Part III and support duties in Part IV. Part IV A provides special rates of duty. Section 33A (1) which is included in Part IV is an intricate provision; but it says, in effect, that where an item in Part I of the Second Schedule to the Tariff applies to goods, the duty payable in respect of them is the amount of duty applicable to the goods under that item and not any larger amount that otherwise would have been payable under Parts II, III and IV.

Item 19 of Part I of the Second Schedule describes the following goods:-

"19. Goods, as prescribed by by-law, being goods a suitable equivalent of which that is the produce or manufacture of Australia is not reasonably available."

If goods are covered by a by-law made for the purposes of item 19, the amount of duty payable in respect of them is the amount applicable under item 19 if it is a lesser amount than otherwise would be payable.

It is agreed between the parties that, in the absence of such a by-law, the rate of duty payable in respect of goods involved in the present case would be 30%; and that, if a by-law was made for the purposes of item 19, no duty would be payable.

The power of the Minister to make by-laws is conferred by s. 271 of the Customs Act:-

"271. Where -
(a) an item of a Customs Tariff, or a proposed item of a Customs Tariff, is expressed to apply to goods, or to a class or kind of goods, as prescribed by by-law; or
(b) under an item of a Customs Tariff, or a proposed item of a Customs Tariff, any matter or thing is expressed to be, or is to be determined, as prescribed or defined by by-law,
the Minister may, subject to the succeeding sections of this Part, make by-laws for the purposes of that item or proposed item."

Section 272 is in these terms:-

"272. The Minister may specify in a by-law made for the purposes of an item, or a proposed item, of a Customs Tariff that is expressed to apply to goods, or to a class or kind of goods, as prescribed by by-law-
(a) the goods, or the class or kind of goods, to which that item or proposed item applies;
(b) the conditions, if any, subject to which that item or proposed item applies to those goods or to goods included in that class or kind of goods; and
(c) such other matters as are necessary to determine the goods to which that item or proposed item applies."

The power of the Minister to make determinations is conferred by s. 273 which provides:-

"273. (1) The Minister may determine, by instrument in writing, that, subject to the conditions, if any, specified in the determination, an item, or a proposed item, of a Customs Tariff that is expressed to apply to goods, or to a class or kind of goods, as prescribed by by-law shall apply, or shall be deemed to have applied, to the particular goods specified in the determination. (2) The Minister may make a determination under the last preceding sub-section for the purposes of an item, or a proposed item, of a Customs Tariff whether or not he has made a by-law for the purposes of that item or proposed item.
(3) Where, under this section, the Minister determines that an item, or a proposed item, of a Customs Tariff shall apply, or shall be deemed to have applied, to goods, that item or proposed item shall, subject to this Part and to the conditions, if any, specified in the determination, apply, or be deemed to have applied, to those goods as if those goods were specified in a by-law made for the purposes of that item or proposed item and in force on the day on which those goods are or were entered for home consumption."

In the present case, the Minister's decision not to make a determination under s. 273 of the Customs Act meant that no by-law was made for the purpose of item 19; so that duty was payable on the relevant goods at the rate of 30%.

It is not disputed that, because of the provisions of s. 273 (3), a determination by the Minister that an item shall apply to goods has the same effect as a by-law.

We turn to the first question, whether the primary Judge was correct in holding that the refusal of the Minister to make a determination under s. 273 of the Customs Act was "a decision of an administrative character" within the meaning of that expression in s. 3 (1) of the Judicial Review Act. That expression is not defined by that Act; but its very use is indicative of Parliament's intention to exclude from the operation of the Judicial Review Act decisions of a different character; for example, legislative or judicial decisions.

Counsel for the appellant submitted that the decision involved in the present case was legislative, not administrative in character. He argued that a determination by the Minister under s. 273 is a legislative act which Parliament could itself do, but chose to delegate to the Minister; and that a determination under that section in effect removes the relevant goods from the First Schedule and places them into Part I of the Second Schedule, thus altering their liability to duty and changing the relevant law. He submitted that a refusal to make a determination had the same character as a determination under s. 273. He argued that, although the Minister's power under s. 273 is limited to making a determination with respect to particular goods falling within the general description of goods or a class or kind of goods prescribed by by-law, a determination is, in substance, the same as a by-law, and that by-laws are essentially legislative in character. He relied on s. 273 (3) which has been quoted above.

The distinction between legislative and administrative acts is referred to in many cases. It is unnecessary to discuss them in detail. The distinction is essentially between the creation or formulation of new rules of law having general application and the application of those general rules to particular cases: Commonwealth v. Grunseit (1943) 67 C.L.R. 58; Hamblin v. Duffy (1981) 34 A.L.R. 333 and de Smith's Judicial Review of Administrative Action 4th Ed. p. 71. In Commonwealth v. Grunseit, Latham C.J. expressed the distinction in these terms (at pp. 82-83):-

"The general distinction between legislation and the execution of legislation is that legislation determines the content of a law as a rule of conduct or a declaration as to power, right or duty, whereas executive authority applies the law in particular cases."

The proposition that by-laws are essentially legislative in character is unsound. The appropriate categorization of by-laws is determined by their context and subject matter. They are not clothed with a legislative character merely because they are called "by-laws". We agree with the primary Judge that the making of a by-law can constitute a legislative act, not an administrative act, and vice versa. The capacity of by-laws, like regulations, orders and rules, to assume either a legislative or an administrative character, is well recognised.

We agree with the conclusion of the primary Judge that determinations under s. 273 are administrative in character and generally with his reasons for that conclusion. We agree, in particular, with the following passage from his Honour's judgment:-

"Obviously Parliament decided that it could be desirable, where a suitable equivalent of goods was not reasonably available from goods of Australian production or manufacture, that the goods should be allowed in duty free or at a lower rate of duty than would otherwise be payable. Parliament could not possibly determine in advance the goods to receive this particular benefit. It therefore decided to confer on the Minister a discretion to determine what particular goods should have it. The discretion so conferred was not confined to a decision as to whether particular goods satisfied the description in item 19 of the Tariff but a decision on this matter was made basic to the exercise of the discretion. When, therefore, a decision is made by the Minister to make a determination under s. 273 of the Act in relation to item 19 of the Tariff he is deciding that specific goods fall within the general description contained in that item and should be allowed in at a lower rate of duty or at no duty at all. Item 19 of the Tariff, in effect, lays down a general rule by describing in broad terms the goods which are to have the benefit of exemption or a lower rate of duty and s. 273 read with other provisions of Part XVI enables the Minister in his discretion to apply that general rule to particular cases. In my view this does not amount to changing the law. He is simply applying it in the exercise of his discretion to a particular set of circumstances. This may amount to doing the work which Parliament may have done had it been equipped to specify in advance all the goods it intended to cover but it does not follow from this that the Minister's decision is legislative in character. (cf Q. v. Trade Practices Tribunal Ex parte Tasmanian Breweries Pty. Limited (1970) 123 C.L.R. 361 per Kitto J. at p. 377)."

In our opinion the appellant's argument is not supported by s. 273 (3). A determination by the Minister under s. 273 that an item applies to the particular goods specified in the determination operates to apply that item as if those goods were specified in a by-law. This provision does not alter the true character of a Ministerial determination under s. 273 so as to render it legislative. It merely describes the effect of such a determination i.e. to bring the particular goods within item 19 of the Tariff and leaves unchanged the essential character of the determination as the application of a general rule to a particular case.

We are reinforced in our conclusion by the general approach taken by the High Court to the character of the Minister's powers under the Customs Act in Radio Corporation Pty. Limited v. Commonwealth (1938) 59 C.L.R. 170. Although there was no equivalent power of the Minister to make determinations under s. 273 then in force, the High Court considered the validity of regulations made under the Customs Act which prohibited the importation of specified goods unless the consent of the Minister was first obtained. Latham C.J. said (at pp. 184-185):-

"It is also, in this latter connection, not unimportant again to remember that the Customs Act and the customs tariff contain a large number of provisions authorising the Minister or departmental officers to act according to their discretion, or making it a condition of the importation of goods that they or the Minister shall be satisfied as to the character of the goods or the purpose for which they are imported, or, more generally, that the determination shall be made by what is called a departmental by-law, that is to say, by an administrative decision taken from time to time as circumstances appear to require according to the discretion of the Minister or officer concerned."

His Honour's judgment was agreed in by Rich, Starke, and McTiernan JJ.

Counsel for the appellant relied strongly on certain observations of Barwick C.J. in Giris Pty. Limited v. Commissioner of Taxation (1969) 119 C.L.R. 365 which concerned the validity of ss. 99 and 99A of the Income Tax Assessment Act 1936. Section 99A provided that, unless the Commissioner of Taxation was of the opinion that it would be unreasonable that that section should apply, tax should be payable on certain trust income at the special rate declared by Parliament. If s. 99A did not apply, tax at a different rate was imposed under s. 99. The Chief Justice said that a duty was imposed on the Commissioner to decide in each case and in respect of each year of income whether it is unreasonable to apply s. 99A rather than s. 99. He said (at pp. 372-373):-

"What he is required to decide, in my opinion, is in truth a function of the legislature, rarely delegated to an official. Its repose in the Commissioner means that the citizen cannot know when disposing of his affairs what the impact upon him or them the law regarding the taxation of income will make: and unless the Commissioner is required to disclose the factual basis of his opinion as to unreasonableness, the taxpayer will not know after he is assessed upon what factual basis he was required to pay the tax imposed. But the wisdom of creating this somewhat unusual situation and the dangers inherent therein are of no concern to the Court, though they might well be to the Parliament, if the features to which I have called attention do not lead to invalidity.
However, in my opinion, the Commission is under a duty in each case to form an opinion and the taxpayer is entitled to be informed of it, and upon the taxpayer's request, the Commissioner should inform the taxpayer of the facts he has taken into account in reaching his conclusion."

Counsel for the appellant argued that these observations of the Chief Justice could be applied to s. 273 which invested the Minister with wide powers to make determinations and left it to his discretion whether he made determinations or not and, if he made them, on what conditions. The observations of Barwick C. J. relied on by counsel were obiter dicta and were made with respect to fundamentally different statutory provisions to those presently under consideration by us. The Chief Justice construed s. 99A as empowering the Commissioner in substance to choose whether trust income would be taxed at one rate rather than another or would be assessed under one section rather than another. We see no relevant analogy between the sections under consideration in Giris and s. 273 of the Customs Act.

It is important to bear in mind that the decision, the subject of these proceedings, is not a decision to make a determination under s. 273; rather it is a refusal to make such a determination. It is difficult to conceive of cases where a refusal to make such a determination under s. 273 would not assume the same character as a decision to make such determination; but it does not necessarily follow that there are no such cases. However, in the present case, the refusal of the Minister's delegate, embodied in the letter of 18 March 1981, to make a determination in respect of the particular goods the subject of the respondent's application, was a decision of an administrative character.

It was suggested in argument by counsel for the appellant that s. 271 permits the making of a by-law for particular goods and not only goods answering the general description of "goods" or of "a class or kind of goods." The correctness of this submission turns on the construction of s. 271 and, in particular, the word "goods" where appearing in the expression "goods, or . . . a class or kind of goods". We do not find it necessary to decide this question. Nor is it necessary otherwise to determine the character or ambit of the Minister's power under s. 271 to answer the questions raised in this appeal, including the question whether the power conferred by s.271 is legislative in character.

We pass to the second question whether the decision falls within paragraph (e) of Schedule 1 to the Judicial Review Act and is therefore not a decision to which that Act applies.

Section 3 (1) of the Judicial Review Act provides that:-

". . . decision to which this Act applies' means a decision of an administrative character made, proposed to be made, or required to be made, as the case may be (whether in the exercise of a discretion or not) under an enactment, other than a decision by the Governor-General or a decision included in any of the classes of decisions set out in Schedule 1; . . ."

Schedule 1 contains a number of categories of decisions including those mentioned in paragraph (e) as follows:-

"(e) decisions making, or forming part of the process of making, or leading up to the making of, assessments or calculations of tax or duty, or decisions disallowing objections to assessments or calculations of tax or duty, or decisions amending, or refusing to amend, assessments or calculations of tax or duty, under any of the following Acts:
Australian Capital Territory Taxation (Administration) Act 1969
Coal Excise Act 1949
Customs Act 1901
Customs Tariff Act 1966
Estate Duty Assessment Act 1914
Excise Act 1901
Gift Duty Assessment Act 1941
Income Tax Assessment Act 1936
Pay-roll Tax Assessment Act 1941
Pay-roll Tax (Territories) Assessment Act 1971
Sales Tax Assessment Act (No. 1) 1930
Sales Tax Assessment Act (No. 2) 1930
Sales Tax Assessment Act (No. 3) 1930
Sales Tax Assessment Act (No. 4) 1930
Sales Tax Assessment Act (No. 5) 1930
Sales Tax Assessment Act (No. 6) 1930
Sales Tax Assessment Act (No. 7) 1930
Sales Tax Assessment Act (No. 8) 1930
Sales Tax Assessment Act (No. 9) 1930
Sales Receipts Duties (Administration) Act 1970
Wool Tax (Administration) Act 1964;"

Counsel for the appellant submitted that the refusal in the present case to make a determination answered the description of a decision "forming part of the process of making, or leading up to the making of, . . . calculations of . . . duty . . . under . . ." the Customs Act and the Tariff. He argued that a determination under s. 273 is an integral part of the process of determining liability to customs duty; that once such a determination is made it automatically affects liability to duty; and in essence is part of the process of making or leading up to the making of a calculation of duty.

It is necessary to examine the scheme of the Customs Act and the Tariff as to calculation and payment of customs duty. As mentioned before, customs duties are imposed on goods imported into Australia by ss. 15 and 16 of the Tariff. The duty is ascertained by reference to the rates of duties set out in column 3 in the First Schedule applicable to the goods. This is subject to s. 33A which can result in no duty or a lower duty being payable.

Section 153 of the Customs Act provides:-

"153. All duties shall constitute Crown debts charged upon the goods in respect of which the same are payable and payable by the owner of the goods and recoverable at any time in any court of competent jurisdiction by proceedings in the name of the Collector."

Provision is made by the Customs Act for refunds, rebates and remissions of duty in these terms:-

"163. (1) Refunds, rebates and remissions of duty may be made -
(a) in respect of goods generally or in respect of the goods included in a class of goods; and
(b) in such circumstances, and subject to such conditions and restrictions (if any), as are prescribed, being circumstances, and conditions and restrictions, that relate to goods generally or to the goods included in the class of goods.
(2) In the last preceding sub-section, 'duty' includes an amount paid to a Collector in respect of duty that may become payable."

Regulation 126 (f) of the Customs Regulations provides that the following circumstance is a prescribed circumstance for the purposes of s. 163:-

"(f) After duty has been paid on goods, a by-law or determination is made under Part XVI of the Act, the effect is that duty is not payable on those goods or duty is payable on those goods at a rate which is less than the rate which was applicable when the goods were entered for home consumption."

An application for a refund of duty in a circumstance specified in para. (f) may be made within 12 months after the date on which the by-law or determination was made (regulation 128A(iv)).

Section 167 of the Customs Act provides that if any dispute arises as to the amount or rate of duty payable in respect of any goods or as to the liability of any goods to duty, the owner may pay under protest the amount demanded by the Collector and the sum so paid is, as against the owner, deemed to be the proper duty payable, unless the contrary is determined in an action brought in pursuance of the section.

Section 273 GA. (1) (a) to (k) enables application to be made to the Administrative Appeals Tribunal for review of certain decisions. Section 273 GA (2) enables application to be made to the Administrative Appeals Tribunal for review of a demand made by the Collector for funds paid under protest and where a dispute has arisen under s. 267.

The primary Judge rightly explained the necessity of having in mind the distinction between provisions in a taxing statute which prescribe the circumstances in which liability to tax can arise and those in which the amount of tax is calculated or assessed in a particular case. One example is to be found in the Income Tax Assessment Act, which prescribes the circumstances in which liability to income tax can arise in its various provisions defining assessable income and those specifying allowable deductions for the purpose of arriving at the taxpayer's taxable income. The Income Tax Assessment Act also contains provisions dealing with the calculation or assessment of income tax, being provisions which provide for the lodging of income tax returns, the making of assessments including default assessments, the service of notices of assessment, objections to assessments, the disallowance of objections, and the lodging of appeals.

His Honour said in his judgment:-

"It is also important to have in mind the varying character of the assessment and calculation provisions in the Acts mentioned in para. (e). In some the actual liability to tax depends on the service of a notice of assessment (e.g. income tax) whereas in others the liability is imposed by the statute itself (e.g. gift duty and customs duty). In some, provision is made for a complex system of objections review and appeal either to Boards of Review or the Courts. In others the rights of appeal are much more limited. Paragraph (e) is intended to cover all these cases."

It is important to have in mind that the powers to make by-laws under s. 271 or determinations under 273 is vested in the Minister; but it is the Collector to whom the Customs Act entrusts the power of taking the steps associated with the collection, recovery and refund of customs duty. The Collector is invested with the powers of suing the owners of goods for recovery of all duties imposed by the Customs Act (s. 153). Section 163 provides for refunds, rebates and remissions of duty. Where duty has been short-levied or erroneously refunded, the person who should have paid the amount short-levied or to whom the refund has erroneously been made is required to pay the amount short-levied or to repay the amount erroneously refunded on demand by the Collector (s. 165).

Entries must be made and passed for all goods subject to control under the Customs Act (s. 36). Entries in respect of goods must be made by the delivery to the Collector of an entry specifying the goods (s. 37 (1) ). It is the Collector who is empowered to require any person making any entry of goods to answer questions relating to the goods referred to in the entry (s. 38). Entries shall be passed by the Collector placing on the entry the words "Passed" and adding his signature, and any entry so passed shall be warrant for dealing with the goods in accordance with the entry (s. 39).

The calculation of customs duty may involve various determinations by the Collector: for example, the appropriate classification of goods within Part II of the First Schedule to the Tariff or whether the goods answer the description of goods in Part I of the Second Schedule. Under item 19 in Part I of the Second Schedule the goods must be "goods . . . a suitable equivalent of which that is the produce or manufacture of Australia is not reasonably available". The Collector must determine this before he can assess the applicable rate of duty and the value of the goods. These are all decisions by the Collector which are part of the process of making the calculation of customs duty or which lead up to it.

We agree with the following passage from the judgment of the primary Judge relating to s. 273:-

"It is one of the provisions in the light of which customs duty is to be calculated. The making of it is not part of the process of calculation of duty nor is it in my view a decision which can properly be said to be a decision 'leading up to the making' of the calculation of duty. The words 'leading up to the making' are intended to point to decisions which have to be made or in the circumstances it is appropriate to make before the actual process of assessment or calculation can begin. A determination may be made under s. 273 relating to particular goods but the process of calculating duty does not depend on it any more than it depends on the existence of the general provisions of the Act relating to value or duty.
In other words, what para. (e) is directed to is the process whereby the liability to tax or duty is calculated in a particular case. A decision to make a by-law or determination is a decision which affects liability. It is not a decision dealing with the calculation of liability. It is only in a temporal sense that it could be said to lead to the making of a calculation of duty, but in my view this is not enough."

Our view that the Minister's decision in the present case does not fall within para. (e) is reinforced by the fact that it is an evident purpose of para. (e) to exclude from the classes of decision susceptible of review under the Judicial Review Act, decisions which adversely affect the citizen and which are reviewable on appeal generally to Boards of Review or the Courts or both. Parliament intended the Judicial Review Act to provide a remedy to an aggrieved person to apply to this Court for an "order of review" in respect of a decision of an administrative character made, proposed to be made or required to be made under Commonwealth Statutory law. Generally, it did not intend to confer a second remedy for the same wrong.

If the owner of goods disputes the amount or rate of duty payable in respect of the goods or the liability of the goods to duty under any Tariff, he may sue the Collector under s. 167 of the Customs Act in any Court of competent jurisdiction to recover the sum paid to him. In our view the steps involved in the process of calculating the duty or leading up to that calculation may be exposed to the Court and are susceptible of correction. The decisions to make determinations under s. 273 or not to make such determinations could not be challenged in those proceedings as they do not deal with the calculation of liability to duty; although they affect that liability. Such decisions are, however, liable to review under the Judicial Review Act.

We would dismiss the appeal with costs.