Miranda Tyre Services Pty Ltd and Secretary, Department of Climate Change, the Environment, and Water (Practice and procedure)
[2025] ARTA 1003
•10 July 2025
Miranda Tyre Services Pty Ltd and Secretary, Department of Climate Change, the Environment, and Water (Practice and procedure) [2025] ARTA 1003 (10 July 2025)
Applicant/s: Miranda Tyre Services Pty Ltd
Respondent: Secretary, Department of Climate Change, the Environment, and Water
Tribunal Number: 2025/0291
Tribunal:Senior Member P Spender
Place:Canberra
Date:10 July 2025
Decision:The Tribunal dismisses the application.
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Senior Member P. Spender
Catchwords
JURISDICTION – fee imposed for consideration of export licence - disallowance by Senate – whether fee or communication by Department is a reviewable decision – application dismissed pursuant to s 97 of Administrative Review Tribunal Act 2024 for want of jurisdiction
Legislation
Administrative Review Tribunal Act 2024 (Cth)
Recycling and Waste Reduction Act 2020 (Cth)
Legislative Instruments
Recycling and Waste Reduction (Export – Waste Tyres) Rules 2021
Recycling and Waste Reduction (Fees) Rules 2020
Recycling and Waste Reduction (Fees) Amendment (Export of Regulated Waste Material Fees and Other Measures) Rules 2024
Recycling and Waste Reduction (Export—Waste Paper and Cardboard) Rules 2024
Cases
BWGG and Child Support Registrar [2025] ARTA 136
Statement of Reasons
BACKGROUND
The Applicant,[1] Miranda Tyre Services Pty Ltd (MTS), has been exporting tyres for retreading and re-use since 1968. At all material times, MTS was represented by Mr G Docherty and/or Ms L Docherty. A licence was introduced for the export of tyres in December 2021, and MTS held a licence to undertake this activity. On 1 July 2024 a fee was implemented for the consideration of an application to renew an export licence under s 38 of the Recycling and Waste Reduction Act 2020 (Cth) (‘RAWR Act’). The fee was implemented under the Recycling and Waste Reduction (Fees) Rules 2020 (‘Fees Rules’). From 1 July 2024, pursuant to the Recycling and Waste Reduction (Fees) Amendment (Export of Regulated Waste Material Fees and Other Measures) Rules 2024 (the ‘Amendment Rules’ or ‘July Rules’) an application to renew an export licence needed to be accompanied by a fee of $13,450.
[1] This background is based on the information provided by the Applicant in its application to the Tribunal dated 8 January 2025 and by submissions made by the Respondent on 28 May 2025 (Respondent’s Submissions) together with the accompanying tender bundle (Respondent’s Bundle or RB). Representatives of MTS did not object to the material provided by the Respondent in the RB.
On 4 November 2024, MTS applied to renew its export licence under s 38 of the RAWR Act: (the Renewal Application) [2]. The Renewal Application was not accompanied by a fee. On 8 November 2024 an officer within the Department of Climate Change, Energy, the Environment and Water (the Department) sent an email containing an invoice for the fee to MTS. [3] The email stated that MTS had 28 days to pay the application fee, and that assessment of the application would not commence until payment of the invoice had been received in full. The Department’s email also stated that if the application fee was not paid, MTS’s application would be taken to have not been made, which may have enabled the Department to cancel the application in accordance with s 172 of the RAWR Act.[4]
[2] RB 9
[3] RB 10.
[4] RB 10.
On 20 November 2024, the Senate passed a disallowance motion in respect of the Amendment Rules. The disallowance took effect from 17:39 on 20 November 2024. The effect of this disallowance was that the Amendment Rules were only in effect from 1 July 2024 to 19 November 2024. From 20 November 2024, the effect of the disallowance was to remove the fee payable for consideration of renewal applications.
By an email dated 19 December 2024, the Department advised MTS that the fee remained due and payable in respect of its Renewal Application made on 4 November 2024.[5]
[5] RB 11
The Applicant filed an application for review in the Tribunal on 8 January 2025. The date of the decision for review was identified by the Applicant as 19 December 2024.[6] The Respondent submitted that it understood this to refer to the Department’s communication of that date.[7] MTS made a request to the Tribunal for a stay order on 30 January 2025 and on 3 February 2025 requested an extension of time from the Department to pay the Renewal Application fee.[8] On 4 February 2025, the Department wrote to the Tribunal to explain why it did not consider the imposition of the Renewal Application fee to be reviewable by the Tribunal.
[6] RB 1
[7] Respondent's Submissions at [10]
[8] RB 14
On 15 April 2025, MTS contacted the Department to inquire about varying its licence to add new importers. [9] The Department sent a letter to MTS on 1 May 2025, which discussed the outstanding Renewal Application fee, the option to provide a payment undertaking and made a proposal regarding the process for a variation application.[10] On 14 May 2025, MTS applied for a payment undertaking in respect of the Renewal Application fee.[11] On the same day, MTS transferred $1,130 to the Department. [12]
[9] RB 16 and RB 17
[10] RB 18
[11] RB 19
[12] RB 20
A hearing on the question of jurisdiction was held on 29 May 2025. Mr and Ms Docherty represented the Applicant at the hearing, and Ms Ng and Ms Macdonald of the Australian Government Solicitor represented the Respondent.
The Applicant’s Contentions
The Applicant stated in its application to the Tribunal that it had received an email on 16 January 2025 which said it had to pay the fee of $13,540, even though the fee had been scrapped. The application for review continued:
We would appreciate if you can review this. With thanks.[13]
[13] RB 1
In support of the general application for review and the application for a stay, the Applicant provided a letter from Senator Ross Cadell dated 28 January 2025, which stated that the Senator supported the Applicant’s decision to seek a review by the Administrative Review Tribunal. There was also a letter from Jenny Ware MP dated 31 January 2025, which attached a letter from the Minister, which in turn attached a letter from the Department, dated 17 December 2024.
The Respondent’s Contentions
The Department wrote to the Tribunal on 4 February 2025 referring to the application for review of a purported decision to impose an application fee in relation to the Applicant’s application to renew its waste export licence. The Department’s letter stated in part as follows:
The imposition of the fee was not a result of a decision under the RAWR Act
The [Amendment Rules], which commenced on 1 July 2024, amended the Fees Rules. Amongst other things, the Amendment Rules effectively introduced fees for certain waste export licence applications—including the renewal application made by the applicant—made under the RAWR Act.
On 20 November 2024 the Senate disallowed the [Amendment Rules]. Relevant application fees ceased to apply from 20 November 2024. However the department’s view is that fees for applications lodged between 1 July and 20 November 2024 remain payable. The applicant has been notified of this. Importantly the renewal application fee incurred by the applicant was the result of the combined operation of the RAWR Act and the Fees Rules (as in force before the November disallowance); it was not because of the specific decision to impose the fee.
Further the ART will note that section 151 of the RAWR Act sets out the decisions under the RAWR Act that are “reviewable decisions”. Relevantly the incurrence of the fee for the consideration of an export licence renewal application is not a “reviewable decision” pursuant to either the RAWR Act or the Fees Rules. Nor was it a reviewable decision when the [Amendment Rules] were in place. Accordingly the department does not consider the imposition of a fee incurred by the applicant is reviewable by the ART.[14]
[14] RB 6
Respondent’s Submissions dated 28 May 2025 and at the Hearing
In its submissions dated 28 May 2025, the Respondent stated that the Tribunal does not have a general review jurisdiction. Pursuant to s 17 of the Administrative Review Tribunal Act 2024 (Cth) (‘ART Act’) a person whose interests are affected by a reviewable decision may apply to the Tribunal for a review of the decision. Section 12 of the ART Act states that a decision is a reviewable decision if an Act or legislative instrument provides for an application to be made to the Tribunal for review of the decision. A legislative instrument may also provide for an application to be made to the Tribunal for review of a decision made under the instrument (s 13 ART Act).
Section 154(1) of the RAWR Act provides for review of decisions by the Tribunal. These are:
(a) a reviewable decision made by the Minister personally;
(b) an internal review decision made by the Minister under section 153 (4).
The table in s 151 of the RAWR Act sets out what is a reviewable decision. In the present case, none of the ‘reviewable decisions’ listed in the table in s 151 of the RAWR Act have been made in relation to MTS. The Respondent contended that this is a necessary first step for there to be a decision that may be reviewable by the Tribunal under s 154 of the RAWR Act.
As at the date of that hearing, the Respondent noted that no decision had been made in respect of:
(a)the Renewal Application made by MTS on 4 November 2024, therefore there was no decision by the Minister under s 39(1)(b) to refuse to renew the export licence (item 4 of the table in s 151); and
(b)the variation request made by MTS on 14 April 2025, further noting MTS had not made a formal application to vary its licence to add new importers, and therefore there was no decision by the Minister under s 42(3)(b) to refuse to make a variation in relation to the export licence (item 6 of the table in s 151). [15]
[15] Respondent's Submissions at [27]
The Department’s communication of 19 December 2024 was not one of those decisions, nor a 'reviewable decision' as defined in s 151.
The Respondent’s Submissions continued:
Furthermore and having regard to s 154, neither a personal Ministerial decision nor an internal review decision has been made in relation to MTS. No decision falling within s 154 of the RAWR Act has been made in respect of MTS.
That is not to say that a decision may not, in future, be made in relation to MTS, that could lead to a reviewable decision. For example, if MTS’ renewal application were to be refused by a delegate of the Minister under s 39(1)(b), and that decision is affirmed on internal review, the Tribunal could review the internal review decision.
However, as matters presently stand, an application to this Tribunal by MTS is at best premature.[16]
[16] Respondent's Submissions at [29] – [31]
During the hearing, there was further discussion about the operation of Recycling and Waste Reduction (Export – Waste Tyres) Rules 2021 (‘Tyre Rules’) which also applies to MTS’s activities as a tyre exporter. Rule 31 of the Tyre Rules regulates the payment undertaking that was discussed by the parties prior to the hearing, as mentioned above. Ms Ng stated during the hearing that no decision had been made about whether to accept the payment undertaking requested by MTS on 14 May 2025. Ms Ng noted the factors that the Minister has to take into account when deciding whether to accept a payment undertaking, for example: the financial position of the person who gave the undertaking, the nature and likely cost of the export operations and whether the person who gave the undertaking will be able to comply with the undertaking. Mr and Ms Docherty responded that they had provided the necessary information in order for the Minister to consider the relevant circumstances under r 31 of the Tyre Rules. Ms Ng replied that even if MTS had provided some documents to apply for the payment undertaking, at the time of the hearing, it remained an application. Further, the Respondent’s Submissions noted that if the Minister accepts an undertaking pursuant to r 31 of the Tyre Rules, then the fee is taken to have been paid.[17]
[17] Respondent’s Submissions at [18]
Because the Respondent had provided its submissions and tender bundle the day prior to the hearing and the Applicant had not received these documents, the Tribunal made directions at the conclusion of the hearing for the provision of written submissions by the Applicant with a reply by the Respondent, and informed the parties that it would make a decision on the papers.
In response to the timetable for written submissions, the Applicant sent two emails dated 2 June 2025 and 3 June 2025.
In the email dated 2 June 2025 Mr and Ms Docherty said as follows:
As per the hearing meeting on the 29th May 2025, it was clear that our case is not reviewable.
We are not requesting for more time in this matter, we are requesting for the Minister Delegate to make a decision on the payment plan and our Variation to be processed. … [18]
[18] Applicant’s email 2 June 2025 12:40 PM
In the email dated 3 June 2025, Mr and Ms Docherty said as follows:
Good morning, we have nothing to write and submit [other] than request for DCCEEW … to make a decision on the payment plan and our Variation to be processed.[19]
[19] Applicant’s email 3 June 2025, 9:33 AM
In an email to the Tribunal on 4 June 2025, the Respondent indicated that it did not propose to file any further written submissions in reply in accordance with the directions made at the hearing, stating:
The Respondent does not propose to file any further written submissions in reply … . The Respondent relies on the written submissions of 28 May 2025, the supporting bundle of documents and our oral submissions.[20]
[20] Respondent's email dated 3 June 2025
The Relevant Statutory Framework
The relevant statutory framework was comprehensively covered in the Respondent’s Submissions that are set out above. Further, there was a discussion about the Tyre Rules during the hearing, as mentioned above. The Tribunal notes that s 155 of the RAWR Act is also relevant to the present case. That provision states that the rules may make provision in relation to the charging of fees relating to activities carried out by, or on behalf of, the Commonwealth in the performance of functions or the exercise of powers under this Act. The rules may make provision for when a specified waste material export charge is due and payable. A further important provision to mention is s 97 of the ART Act which states:
The Tribunal must dismiss an application if:
(a) the application is made for review of a decision; and
(b) the Tribunal is satisfied that the decision is not reviewable by the Tribunal.
Consideration
In summary, the Tribunal agrees with the Respondent that the incurrence of the fee for the consideration of an export licence renewal application is not a “reviewable decision” pursuant to either the RAWR Act or the Fees Rules. Therefore, the Tribunal lacks jurisdiction in relation to this application and must dismiss the application under s 97 of the ART Act.
As stated above, at the time that MTS made its Renewal Application, certain rules applied to that application; the Amendment Rules dated 1 July 2024. As mentioned above, for further clarity I will refer to these rules as the “July Rules”. Under the July Rules in r 4A (Item 3) a fee of $13,540 was imposed for the consideration of an application made under section 38 of the RAWR Act for renewal of an export licence (other than for an application to which subsection (3) applies). Subsection (3) refers to the Recycling and Waste Reduction (Export—Waste Paper and Cardboard) Rules 2024, so it is not relevant to the present situation.
Subsequently, the Senate disallowed the relevant fees rules which took effect from 17:39 on 20 November 2024. Compilation 02 of the Fees Rules dated 20 November 2024 (‘the November Rules’) takes account of the disallowance of the amendments by the Senate. Notably, there was no comparable provision to item 3 of rule 4A in the November Rules.
The relevant fee in the present case was imposed under the July Rules; not the November Rules. As I stated, the Senate disallowed the July Rules on 20 November 2024, but the July Rules were in operation when MTS made its application to renew its licence on 4 November 2024, which led to the imposition of the fee of $13,540.
As noted by the Respondent, s 154 of the RAWR Act states that applications may be made to the Tribunal for review of a reviewable decision made by the Minister personally or an internal review of a decision made by the Department under s 153 of the RAWR Act.
I have examined s 151 of the RAWR Act, and I find that none of the items listed in s 151 are relevant to the decision that is the subject matter of the present application, i.e. the decision to impose a fee for considering the renewal of an export licence under the July Rules. None of the reviewable decisions contemplate the imposition of such a fee.
The Tribunal agrees with the Respondent’s submissions that at the time of the hearing, no decisions had been made by the Respondent that constitute a reviewable decision under section 154 of the RAWR Act. Whilst it is clear that a reviewable decision may arise in the future, for example, if a decision is made to refuse to renew the export licence under s 39(1)(b) of the RAWR Act (item 4 s 151) or if there is a decision to refuse to make a variation in relation to MTS’s export licence under s 42(3)(b) of the RAWR Act (Item 6 s 151) after MTS has made a valid application for variation, no such decisions had been made by the time of the hearing.
Conversely, the Tyre Rules do not contain any provisions for reviewable decisions, so while the question about the payment undertaking was an important part of the Applicant’s dealings with the Respondent, it does not provide an independent source for the Tribunal’s jurisdiction. Similarly, while the Fees Rules do provide for a reviewable decision, it pertains to remitting and refunding fees for late payment of fees which is not relevant to the present application.[21]
[21] Recycling and Waste Reduction (Fees) Rules 2020, r 9 Items 1 and 2
Section 97 of the ART Act states that the Tribunal must dismiss an application if a decision is not a reviewable decision. I must be satisfied that the decision is not reviewable by the tribunal. I can understand the frustration that Mr and Ms Docherty feel about this situation, but for the foregoing reasons, I am satisfied that the decision is not reviewable by the Tribunal, and therefore I must dismiss the application.
Following the reasoning of Longo SM in BWGG and Child Support Registrar [22] I find that the acts and communications of the Respondent do not constitute a reviewable decision for which the Applicant can apply for review to the Tribunal under the RAWR Act, the Fees Rules or the Tyre Rules.
[22] [2025] ARTA 136 (17 February 2025) at [9]
For the reasons given above, pursuant to section 97 of the Administrative Review Tribunal Act 2024 (Cth), the Tribunal dismisses the application.
Date of hearing: 29 May 2025 Advocates for the Applicant: Mr Docherty and Ms Docherty Solicitors for the Respondent: Ms Ng and Ms McDonald of the Australian Government Solicitor
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