Mr Geoffrey Jays and Minister for Infrastructure and Regional Development
[2015] AATA 101
•25 February 2015
[2015] AATA 101
Division GENERAL ADMINISTRATIVE DIVISION File Number
2014/3785;
2014/3786; and
2014/3787
Re
Mr Geoffrey Jays
APPLICANT
And
Minister for Infrastructure and Regional Development
RESPONDENT
DECISION
Tribunal Deputy President P E Hack SC
Date 25 February 2015 Place Brisbane The parties are to lodge and serve submissions directed to the form of a decision giving effect to these reasons within 14 days of today.
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Deputy President P E Hack SC
CATCHWORDS
TRANSPORT — motor vehicle importation — nonstandard vehicle without identification plate — road vehicle — meaning of “motor vehicle” “road motor vehicle” “designed” “solely or principally” for the transport on “public roads” of people, animals or goods — principles of statutory construction — decision set aside and remitted
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) s 43(1)
Motor Vehicle Standards Act 1989 (Cth) ss 3, 5, 5B, 18
CASES
Certain Lloyd’s Underwriters v Cross (2012) 248 CLR 378; [2012] HCA 56
City of Keilor v O’Donohue (1971) 126 CLR 353
Permanent Trustee Co of New South Wales v Campbelltown Corporation (1960) 105 CLR 401Re Cates & Minister for Transport and Regional Services [2004] AATA 1005; (2004) 83 ALD 777
REASONS FOR DECISION
Deputy President P E Hack SC
25 February 2015
Introduction
The Motor Vehicle Standards Act 1989 (Cth) (the Act) has, as one of its objects[1], that of achieving uniform vehicle standards applicable to vehicles when first used in Australia. To that end the Act prohibits the import into Australia of vehicles that are “non-standard” or do not have an identification plate.
[1]The other object deals with used imported vehicles.
The applicant, Mr Geoffrey Jays, deals in recreational vehicles. He wishes to import into Australia four devices (to use a neutral term). There is no doubt that each device is non-standard and that none has an identification plate. A delegate of the respondent, the Minister for Infrastructure and Regional Development, determined that the devices satisfied the description of “road motor vehicle” in the Act with the consequence that none of them could be lawfully imported into Australia. That official also determined that it was not appropriate to exercise in Mr Jays’ favour a discretion to allow the importation notwithstanding non-compliance with the Act.
Mr Jays seeks a review by the Tribunal of the decision. For the reasons that follow I have concluded that the devices were not road motor vehicles.
Background
There are four devices in issue, a Freego ES350C, a Merlot ML-401, Merlot ML-110 and a Merlot ML-112. The Freego ES350C device is described as an electric scooter with four wheels, two leading wheels and two, much smaller, trailing wheels that I infer give the device stability. The wheels are connected by two axels on which is found a base plate for the rider to stand on, controlling the device by means of waist-high handlebars attached to a rigid post rising from the base plate. The device is driven by a 500w electric motor powered by a 36v battery. The device has a top speed of 20 kph, a range of 26 kilometres and a weight of 80 kilograms.
The Merlot ML-401 device is very similar in both overall design and specifications. It too is driven by a 500w electric motor powered by a 48v battery. It is said to have a range of 40 kilometres.
The Merlot ML-110 and Merlot-112 are similar single wheel devices with a foot plate mounted on either side of a single axel and a housing containing a battery and a 600w (ML-112) or 500w (ML-110) motor above the axel. The rider, in effect, straddles the single wheel, leaning to steer and using a foot control to accelerate. The devices brake automatically when the accelerator is not pressed.
The Legislation
The relevant object of the Act, to achieve uniform vehicle standards applying to new vehicles, has already been noted. By virtue of s 18 of the Act, but subject to two irrelevant exceptions:
… a person must not import a road vehicle that:
(a)is nonstandard; or
(b)does not have an identification plate.
It is unnecessary to dwell on the definition of non-standard; none of these devices comply with national standards. Moreover, none of them has an identification plate. The issue is whether they answer the description of “road vehicle”.
That term is defined by s 5 of the Act to mean:
(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.
In turn, “road motor vehicle” is defined to mean:
(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.
Each of the devices is undoubtedly a “motor vehicle”, a term defined to mean, relevantly, a vehicle that uses, or is designed to use, amongst other things, electricity as the principle means of propulsion.
The question in this case is whether the devices were designed solely or principally for the transport of people on public roads or are permitted to be used on public roads.
Consideration
Ultimately, the question turns on what is encompassed by the expression “public roads”. There is no doubt that the devices are not designed, either solely or principally, for the transport of persons on carriageways where, ordinarily, motor vehicles – cars, trucks, motorbikes and suchlike – travel. Equally, they are not permitted to be used on such carriageways. They are designed, I would have thought, to be used solely or principally on footpaths, bicycle tracks and other paved, or at least smooth, surfaces used by the public, away from the cars, trucks and motorbikes, using the ordinary carriageway.
The Minister contends that the expression “public roads”, which is not defined in the Act, should be construed broadly so as to encompass footpaths, bicycle tracks and other public spaces. He submits, by reference to cases that have considered the meaning of the term in this and other statutory contexts, that “public roads” should be given a broad interpretation and not be restricted to an area used solely for motor-propelled vehicular traffic. That interpretation is supported, it is said, by the approach taken by the Tribunal in two earlier cases involving this statute – Re Cates & Minister for Transport and Regional Services[2] and Re Karamanolis & Minister for Transport and Regional Services.[3]
[2] [2004] AATA 1005; (2004) 83 ALD 777.
[3] [2005] AATA 1197.
I do not find the cases referred by the Minister to be of any great assistance. Permanent Trustee Co of New South Wales v Campbelltown Corporation[4] concerned the meaning of the terms “road”, “road left in subdivision of private land” and “public road” in the Local Government Act 1919 (NSW). That Act empowered the respondent Council to serve a notice of intention to take where “any road has been left in subdivision of private lands … and there exists any doubt as to whether or not it is a public road …” Justice Windeyer, in a passage relied on by the Minister, held that the definition of “public road” in that Act as a “road which the public are entitled to use” meant:
Land over which a public right of way exists – that is to say, a highway in the common law sense.[5]
His Honour’s discussion thereafter about the nature of a highway at common law demonstrates why the particular passage relied on by the Minister is of no assistance in the present context.
[4] (1960) 105 CLR 401.
[5] 105 CLR at 420.
The same is true of the other High Court authority relied on by the Minister, City of Keilor v O’Donohue,[6] a case concerned with the Local Government Act 1958 (Vic) and the power of the appellant Council to recover from land owners the costs of “making public ways”. Justice Windeyer, with whom Owen J agreed, said:[7]
… the characteristic for law of a highway is simply that it is a way over which all members of the public are entitled to pass and repass on their lawful occasions.
[6] (1971) 126 CLR 353.
[7] 126 CLR at 363.
Re Cates and Minister for Transport and Regional Services[8] concerned the application of the present legislation to a motorised scooter with a 27cc motor with a power output of 1,400w, a range in excess of 40 kilometres, able to achieve a maximum speed of 35kph, with front and rear lights, disc brakes and rear vision mirrors. That scooter was plainly designed for use on roads (using the term in its popular sense) with other road vehicles. So much is evident from this extract of the manufacturer’s brochure extracted by Member Webb in his reasons for decision:[9]
“He could ride to work on it… Together with [the Scooter] we will be the victors in any traffic jam. And if I can’t find a place to park then I can take [the Scooter] with me to a meeting… [the Scooters] will certainly come in handy when…we want to get to the beach”… Why don’t you take your… Scooter with you when you go shopping? ... You can get everywhere with [the Scooter], and quickly. Now traffic jams, queues and waiting will be things of the past … Go from door to door. Precisely. From home to work for example. And Parking? You will always find a bit of room under the coat hanger.”
Member Webb was satisfied that the scooter in issue in that case was designed principally for the transport of people on roads as that term was used in the Road Transport Reform (Vehicles and Traffic) Act 1993 (Cth) (now repealed) and road-related areas, a term used in most State and Territory enactments as encompassing meridian strips, footpaths, bicycle tracks and similar.
[8] [2004] AATA 1005, (2004) 83 ALD 777.
[9] [2004] AATA 1005 at [30].
Member Webb’s conclusion, at [28], that the term “public roads” had a broad meaning was informed by an examination of the national road transport legislation, a legislative scheme now seemingly altered. Moreover, and with respect to Member Webb, it is not apparent to me why, where State and Territory enactments generally distinguish between roads – areas open to or used by the public and, having as its main use, the driving or riding of motor vehicles – and road-related areas – footpaths, meridian strips, bicycle tracks and similar – the expression public roads should be interpreted other than in accordance with the ordinary principles of statutory construction.
The decision in Re Karamanolis & Minister for Transport and Regional Services seems, with respect, to add nothing to the present debate.
Ultimately, as it seems to me, the question is to be decided by reference to the settled principles of statutory construction. Those principles were explained by French CJ and Hayne, J in Certain Lloyd’s Underwriters v Cross[10] in this way:
It is as well to begin consideration of this issue by re-stating some basic principles. It is convenient to do that by reference to the reasons of the plurality in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue:
“This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.”
The context and purpose of a provision are important to its proper construction because, as the plurality said in Project Blue Sky Inc. v Australian Broadcasting Authority, “(t)he primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute” (emphasis added). That is, statutory construction requires deciding what is the legal meaning of the relevant provision “by reference to the language of the instrument viewed as a whole”, and “the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed”.[11]
[10](2012) 248 CLR 378; [2012] HCA 56.
[11] [2012] HCA 56 at [23] – [24]. See also Crennan and Bell JJ at [68] – [70] and Kiefel J at [88] – [90] (footnotes omitted).
This statute has the stated object, so far as new vehicles are concerned, of achieving uniform vehicle standards when those vehicles begin to be used in transport in Australia. The notion of transport is expanded in the definition of “road motor vehicle” and the reference therein to “transport on public roads of people, animals or goods”. The evident purpose of the definition of “road motor vehicle” is to confine the operation of the Act to two categories of motor vehicle – those designed solely or principally for the transport on public roads of people animals or goods or those designed for other purposes but permitted to be used on public roads. A mobile crane is an example of the latter category.
In the context of the definition, and in the wider context of the Act, I consider that the term “public roads” ought be confined to areas that, on common understanding, would be regarded as roads and not extended to areas like footpaths and bicycle tracks. That the expression is to be read that way draws support from the totality of the words “transport on public roads of people, animals or goods”. It seems unlikely that the parliament would contemplate people, animals and goods being transported on the footpaths and bicycle tracks of the country. There is nothing in the words or otherwise in the context of the Act that would suggest, as the Minister submitted, that “road” was any area able to be used by the public. That task is performed by the adjective “public” which qualifies the type of road in issue.
These devices are designed for use on public spaces but not on roads (as that term is popularly understood). They are unquestionably designed for use on footpaths and other areas away from the general body of motor vehicle traffic. They are not designed for the transport of people. They are designed for recreation, not transport, despite being capable of transporting a person. They are, in that sense, akin to a jet ski.
The Minister’s submission hinted at a concern for the manner in which the devices might be used and issues of safety. Such matters, I would have thought, are the concern of the States and Territories. They do not assist in the question of construction of this legislation.
The question ultimately is whether these devices are solely or principally designed for the transport on public roads of people. In my view they plainly are not. It follows that none of the devices satisfies the definition of road vehicle. The consequence of that conclusion was not the subject of discussion at the hearing. The Minister has power, under s 5B (2) of the Act, to declare, in writing, that a vehicle is not a road vehicle for the purposes of the Act or of a specified provision of the Act. My present inclination, unassisted by any submissions of the parties, is that it would be appropriate, having regard to s 43(1) of the Administrative Appeals Tribunal Act 1975 (Cth), to set aside the decisions under review and remit the matter to the Minister for reconsideration with directions that none of the devices are road vehicles. It will be for the Minister to determine whether a declaration ought be made under s 5B (2) of the Act and to determine the terms of that declaration.
I intend to publish those reasons and invite further submissions from the parties within 14 days on the appropriate form of decision having regard to my conclusions.
I certify that the preceding 23 (twenty-three) paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC ...........................[Sgd]...............................
Dated 25 February 2015
Date(s) of hearing 12 February 2015 Applicant In person Advocate for the Respondent Mr C Hawke Solicitors for the Respondent Legal Services, Department of Infrastructure and Regional Development
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