Re Bowering and Minister for Infrastructure, Transport, Regional Development and Local Government

[2007] AATA 2079

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 2079

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No   2007/1811

GENERAL ADMINISTRATIVE   DIVISION		)
Re		Carl Bowering

Applicant

And Minister for Infrastructure, Transport, Regional Development and Local Government

Respondent

DECISION

Tribunal Senior Member B J McCabe

Date20 December 2007

PlaceBrisbane (Heard in Mackay)

Decision The Tribunal affirms the decision under review.   

...................[Sgd].......................

SENIOR MEMBER  

CATCHWORDS

TRANSPORT – Motor Vehicle Standards – import without identification plate – residual discretion – no serious hardship – decision affirmed

Motor Vehicles Standards Act 1989

Re Trajovski and Department of Transport and Services (2000) 32 AAR 457

Re Marra and Minister for Transport and Regional Services (2003) 73 ALD 704

Da Silva and Minister for Transport and Regional Services (2004) 85 ALD 756

REASONS FOR DECISION

20 December 2007             Senior Member B J McCabe

Introduction

1.      Mr Carl Bowering is a motorcycle enthusiast. He migrated to Australia from the United Kingdom in October 2006. He wants to bring his Honda motorcycle to this country. He acquired it in the United Kingdom in November 2005. It is now sitting in storage. There is a problem: the Minister’s delegate says the bike cannot be imported into Australia because it does not have an identification plate and there is no evidence it complies with the relevant Australian standards referred to in the Motor Vehicles Standards Act 1989 (the Act) and the regulations made under the Act.

2.      The Act and the regulations create a system imposing uniform national standards that govern the importation of vehicles into Australia: s 3. The standards relate in particular to safety and environmental issues. The Second Reading speech accompanying the Act explained the legislation was introduced to prevent the import of sub-standard motor vehicles (especially second-hand motor vehicles) and to ensure that the states and territories took a similar approach to registration.

3.      Section 18 of the Act says a person must not import a non-standard vehicle (ie, a vehicle that does not comply with the national standards) or a vehicle that does not have an identification plate. It is common ground that Mr Bowering’s bike does not have an identification plate and there is no certificate from the manufacturer confirming the bike complies with the standards. It follows that Mr Bowering falls foul of the general rule.

4.      There are exceptions to the general rule, however: s 20. The Minister may (and in some cases, must) approve an import in circumstances set out in regulations 12-18.   There is also a residual discretion to approve an import in a particular case: regulation 11. The regulations do not specify the circumstances in which that residual discretion should be exercised.

5.      Mr Bowering says the discretion in regulation 11 should be exercised in his favour. The Minister says it is inappropriate to do so in this case. Who is right?

The nature of the discretion in regulation 11

6.      The Tribunal has considered the scope of the residual discretion in a number of cases. Mr Dillon, for the respondent, referred me in particular to Re Trajovski and Department of Transport and Services (2000) 32 AAR 457. Deputy President Purvis considered the purpose of the legislation and confirmed the residual discretion must be exercised having regard to the intent of the parliament. The learned deputy president said it was only likely to be exercised in exceptional cases. Deputy President Hotop agreed in Re Marra and Minister for Transport and Regional Services (2003) 73 ALD 704 that the power would only be exercised in exceptional cases but added (at 715) that it should only be exercised “in such a way as would not serve to undermine or frustrate the policy and objects of the Act and the regulations”.

7.      To say that the power will only be exercised in exceptional circumstances merely suggests that, as a practical matter, there will be few cases where it is thought appropriate to exercise the discretion. The expression “exceptional circumstances” is not used in the Act or the regulations and does not of itself provide any guidance as to when it will be appropriate to give approval. That point was made by Senior Member Allen in Da Silva and Minister for Transport and Regional Services (2004) 85 ALD 756 when he said that resort to expressions like “exceptional” was unlikely to be helpful. He suggested (at 766) the real question was:

“whether, having regard to the policy and objectives of the Act and the regulations, and to all the relevant circumstances of the applicant, it is appropriate to exercise the discretionary power in favour of the applicant.”

Senior Member Allen went on (at 767) to say:

“…the exercise of the discretion in reg 11 should be approached on the basis that if there would be some element of unfairness or injustice to the applicant if approval were not granted, and the grant of approval would not undermine or frustrate the policy and objects of the legislative scheme, then the discretion should be exercised in the applicant’s favour. The totality of the relevant circumstances must be considered…” 

8.      I agree with that approach. It is certainly preferable to the alternative approach, which is to begin by asking whether the applicant’s circumstances are exceptional: that inquiry begs the question of the basis on which an exception should be made.

(i) Mr Bowering’s personal circumstances 

9.      Mr Bowering gave evidence about his personal circumstances. It is clear he will suffer a financial cost if he is not able to import his bike. He will have to arrange to retrieve the bike from storage and sell it. He said he would have to fly back to the United Kingdom to attend to that process himself. The costs of keeping the bike in the storage will be sunk. He said he would have to buy a bike in Australia where equivalent second-hand bikes are more expensive than they are in Europe.  He agreed he would not face major hardship – but the cost and the inconvenience would certainly be an issue if he were prevented from importing the bike.

10.     The applicant agreed he had not been misled by poor advice about the prospects of successfully importing his bike. There is also no suggestion of the applicant being treated unfairly in the sense that he is being treated less favourably than anyone else.

(ii) The policy and objectives of the Act

11.     What of the policy and objectives of the legislative scheme? I have already noted the objectives of the statute are set out in s 3 of the Act, and I have referred to the Second Reading speech of the Minister. They talk about a uniform approach to dealing with imported vehicles. The Second Reading speech in particular refers to environmental and safety issues, and there is a reference to abuses in the market for imported second-hand vehicles.

12.     There is no question of Mr Bowering seeking to engage in any kind of improper behaviour. He is not trafficking in second hand vehicles, for example. I accept he is an amateur bike enthusiast who wants to travel around Australia with his partner on his own bike.

Should the discretion be exercised in favour of the applicant?

13.     The approval regime established under the Act and regulations are designed to achieve a uniform approach to registration in relation imported vehicles. The goal of uniformity would be undermined if exemptions were allowed without good reason.  If application of the rules were to result in serious hardship, unfairness or injustice, I would exercise the discretion in Mr Bowering’s favour.  But that is not the case.  He will suffer some cost and inconvenience if I do not set aside the decision, but he has not been dealt with unfairly, and he will not experience serious hardship. I do not think I can justify exercising the discretion in his favour.

Conclusion

14.     The decision under review is affirmed.

I certify that the 14 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe.

Signed:         .....................................................................................
  Stephen A O’Grady, Associate

Date of Hearing  15 October 2007
Date of Decision  20 December 2007
For the applicant  Self-represented
For the respondent                   Mr Dillon, solicitor