Sanyo Australia Pty Ltd v Comptroller-General of Customs

Re: SANYO AUSTRALIA PTY LTD
And: COMPTROLLER-GENERAL OF CUSTOMS
No G645 of 1991
FED No. 99
Customs and Excise

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Davies J.(1)

CATCHWORDS

Customs and Excise - judicial review proceedings challenging an instrument prepared by Comptroller-General of Customs - instrument to facilitate harmonisation between 1982 and 1987 Custom Tariffs - whether instrument a reviewable decision - whether legislative or administrative character - whether instrument given a legislative effect by the Customs Tariff (Miscellaneous Amendments) Act - whether application brought within a reasonable time.

Customs Tariff (Miscellaneous Amendments) Act 1987 (Cth) - s.8(3)

HEARING

SYDNEY

#DATE 12:3:1992

Counsel for the Applicant: Mr J.T. Svehla

Solicitor for the Applicant: Mr G.J. Cantello

Counsel for the Respondent: Mr S. Gageler

Solicitor for the Respondent: Australian Government Solicitor

ORDER

The motion for dismissal be upheld.

The application seeking orders by way of judicial review be dismissed.

The Applicant pay the Respondent's costs, including the costs of the motion.
NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

This application brought by Sanyo Australia Pty Ltd ("Sanyo") against the Comptroller-General of Customs seeks orders of review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) and s.39B of the Judiciary Act (1903) (Cth) with respect to the following decisions:-

1. The decision of the Respondent pursuant to its obligations under Section 8(5) of the Customs Tariff (Miscellaneous Amendments) Act No. 76 of 1987 (Cth) on or prior to 1 July 1988 to cause to be prepared an instrument as defined in that Section which did not apply Commercial Tariff Concession Order 8732529 (`TC 8372529') to Heading 8528 of Schedule 3 to the Customs Tariff Act 1987 (`the Act') (the `first decision'). (the underlining is mine)

2. The decision of the Respondent by his Delegate, P.J. Maher, Assistant Director, Industry Development, on or about 15 May 1991 to refuse the Application by Fliway Tariff and Trade Services Pty Limited (`Fliway') as agent for the Applicant on or about 13 May 1991 that the Respondent apply TC 8732529 to, inter alia, Heading 8528 of Schedule 3 to the Act (the `second decision').

3. The decision of the Respondent by his delegate Kheng W. Khor, Assistant Director, Legal Advice and Contracts, on or about 12 June 1991 to refuse the Applications by Fliway as agent for the Applicant on or about 13 and 17 May 1991 that the Respondent apply TC 8732529 to, inter alia, Heading 8528 of Schedule 3 to the Act (the `third decision').

4. The decision of the Respondent by his delegate H. Garnier, Director Tariff Concessions, on or about 7 August 1991 to refuse the Application by Fliway as agent for the Applicant on or about 8 July 1991 that the Respondent apply TC 8732529 to, inter alia, Heading 8528 of Schedule 3 to the Act (the `fourth decision').

5. Review the failure of the Respondent to make a decision in relation to the Applications for refund by Fliway as agent for the Applicant pursuant to Section 163 of the Customs Act 1901 (Cth) in the Schedule annexed and marked `A' (the `fifth decision').

The alleged decisions 2 to 5 inclusive are of subsidiary significance in that the challenged actions accorded with the instrument referred to in decision 1. Unless the instrument referred to in decision 1 is set aside or varied in favour of Sanyo, the challenge to the other decisions must fail.

The issue between the parties arose in this way. A tariff concession order, TC 8732529, was made under s.269P of the Customs Act 1901 (Cth) with effect from 18 June 1987 with respect to the following goods in item 85.15 of Schedule 3 of the Customs Tariff Act 1982 (Cth):-

"RECEIVERS, scanning, but NOT including ANY of the following:

(a) scanning receivers when imported with separate aerials or antennae capable of being connected by cable;

(b) scanning receivers capable of operating in a frequency range of NOT less than 1.7 MHz but NOT greater than 30 MHz;

(c) transceivers"

When TC 8732529 was made, item 85.15 read:-

"RADIOTELEGRAPHIC AND RADIOTELEPHONIC TRANSMISSION AND RECEPTION APPARATUS; RADIO-BROADCASTING AND TELEVISION TRANSMISSION AND RECEPTION APPARATUS (INCLUDING RECEIVERS INCORPORATING SOUND RECORDERS OR REPRODUCERS) AND TELEVISION CAMERAS; RADIO NAVIGATIONAL AID APPARATUS, RADAR APPARATUS AND RADIO REMOTE CONTROL APPARATUS"

Subsequently, by the Customs Tariff Act 1987 (Cth), which came into effect on 1 January 1988, the 1982 Tariff was replaced by a renumbered and harmonised Tariff. Schedule 3 of the harmonised Tariff contained two relevant headings, which unlike item 85.15 differentiated between radio receivers and television receivers. The relevant headings read:-

"8527 RECEPTION APPARATUS FOR RADIO-TELEPHONY, RADIO-TELEGRAPHY OR RADIO-BROADCASTING, WHETHER OR NOT COMBINED, IN THE SAME HOUSING, WITH SOUND RECORDING OR REPRODUCING APPARATUS OR A CLOCK:

...

8528 TELEVISION RECEIVERS (INCLUDING VIDEO MONITORS AND VIDEO PROJECTORS), WHETHER OR NOT COMBINED, IN THE SAME HOUSING, WITH RADIO-BROADCAST RECEIVERS OR SOUND OR VIDEO RECORDING OR REPRODUCING APPARATUS:"

As a measure designed to facilitate the introduction of the harmonised Tariff, the Customs Tariff (Miscellaneous Amendments) Act 1987 (Cth), which also came into operation on 1 January 1988, provided inter alia:-

"8(1) In this section:

...

`Customs instrument' includes:

(a) a regulation under an Act relating to Customs;

(b) a by-law, determination and order under such an Act (including a concession order);

(c) a licence and a permit under such an Act; and

(d) an application for an instrument referred to in paragraph (b) or (c);

but does not include an undertaking given otherwise than on behalf of the Commonwealth;

...

(2) A Customs instrument in force immediately before the commencement of this Act made in relation to the 1982 Act shall be taken to have been made in relation to that Act and to the 1987 Act.

(3) A Customs instrument referred to in subsection (2) has effect after the commencement of this Act as if a reference in the Customs instrument to an item in the 1982 Act included a reference to the item or items in the 1987 Act ascertained, in accordance with the instrument under subsection (5), to correspond to it for the purposes of the Customs instrument.

...

(5) The Comptroller shall, as soon as practicable after the commencement of this Act, cause an instrument to be prepared showing, in relation to each item in the 1982 Act referred to in a Customs instrument to which subsection (3) applies, the item or items in the 1987 Act corresponding to the item for the purposes of the Customs instrument.

(6) The Comptroller shall cause a copy of an instrument prepared under subsection (5) to be kept at the principal office of the Australian Customs Service in each State and Territory and a person may inspect such a copy at any reasonable time."

In July 1988, the Comptroller-General published an instrument under s.8(5) of those provisions which specified in relation to the tariff concession orders which were in force at the time of the introduction of the harmonised Tariff what was or were the reference or references in that Tariff corresponding to the reference or references in each tariff concession order. In respect of TC 8732529, the instrument specified two sub-headings in the harmonised Tariff, the first being sub-heading 8527.19 and the other being sub-heading 8527.39. Both sub-headings were limited, of course, to radio equipment and did not include television receivers.
Before 1 January 1988, Sanyo had imported colour television sets but had entered the sets for duty under item 85.15 without claiming that TC 8732529 applied to them. Sanyo continued to import colour television sets after January 1988 and entered the sets for duty under heading 8528. In about February or March 1991, Sanyo raised the contention that a television set was a scanning receiver for the purposes of TC 8732529. Officers of Customs, in the decisions 2 to 5 inclusive, rejected that claim and pointed out inter alia that, since the coming into force of the harmonised Tariff and the issue of the instrument of July 1988, which specified sub-headings 8527.19 and 8527.39 as the relevant classifications for the scanning receivers referred to in TC 8732529, the tariff concession order did not apply to the television sets imported by Sanyo, which had been and were correctly brought to duty under heading 8528.
That is the background. If the matter were to go to trial on all issues, a relevant issue would be whether the Comptroller-General made an error when he limited the goods in TC 8732529 to classifications appearing under heading 8527. I have been informed by counsel that Sanyo would contend that television sets are scanning receivers and that the Comptroller-General ought to have related TC 8732529 to both heading 8527, which deals with radio receivers, and heading 8528, which deals with television receivers. The Comptroller-General would contend that scanning receivers the subject of TC 8732529 were not television receivers and did not encompass ordinary radio and television sets but were radio receivers having a special function. Therefore, it would be contended, the sub-headings chosen were correct.
The present proceedings concern only a notice of objection to competency and a notice of motion seeking dismissal of the principal application. Two grounds were relied on by counsel for the Comptroller-General. In the first instance, it was submitted that the instrument published by the Comptroller-General under s.8(5) of the Customs Tariff (Miscellaneous Amendments) Act was not a reviewable decision in that it was legislative in character or alternatively was given legislative or conclusive effect by the operation of s.8(3). Section 3(1) of the Administrative Decisions (Judicial Review) Act limits the ambit of the Act to "decision of an administrative character". Secondly, it was submitted that there was such delay in the bringing of the proceedings, which were not instituted until 18 October 1991, more than three years after the instrument of July 1988 came into force, that the application was invalid, not having been brought within a reasonable time as required by s.11(4) of the Administrative Decisions (Judicial Review) Act or, alternatively, that the delay being so unreasonably long, that the Court should in the exercise of its discretion dismiss the proceedings whether they be brought under s.39B of the Judiciary Act or under the Administrative Decisions (Judicial Review) Act. Counsel for both parties agreed that, as all relevant material on these matters was before the Court, I should consider the issues as if they had been set aside for separate determination rather than simply looking at the question as to whether there was an arguable case.
I therefore treat the matter as if those two questions are before the Court for separate determination and on the footing that the motion for dismissal will be considered in the light of the answers thereto.
I have been referred to a number of authorities on the distinction between actions of an administrative nature and those having a legislative character. See e.g. Victorian Stevedoring and General Contracting Co Pty Ltd and Meakes v. Dignan (1931) 46 CLR 73; Commonwealth v. Grunseit (1943) 67 CLR 58; Hamblin v. Duffy (1981) 50 FLR 308; Evans v. Friemann (1981) 53 FLR 229; Tooheys Ltd v. Minister for Business and Consumer Affairs (1981) 54 FLR 421; Minister for Industry and Commerce v. Tooheys Ltd (1982) 60 FLR 325; Queensland Medical Laboratory v. Blewett (1988) 84 ALR 615. These cases emphasise the distinction between legislation which in general involves the laying down of general rules which have legal and binding effect and the taking of administrative action which, insofar as it has legal and binding effect, is taken in execution or application of the law and, insofar as it lays down general rules, tends not to have a legally binding effect but to lay down rules in the nature of policy or of guidelines.
Distinctions of this nature are not helpful in the present case. The significance of the instrument of July 1988 lies not so much in the character of what was done but in the effect which s.8(3) of the Customs Tariff (Miscellaneous Amendments) Act gave to it. I take the issuance of a tariff concession order to be an administrative act although it has legal effect and although any importer may take advantage of it. On many occasions, the making or refusal to make a tariff concession order has been reviewed as an administrative decision under the provisions of the Administrative Decisions (Judicial Review) Act. The mere conversion by the Comptroller-General of the extant tariff concession orders to the harmonised Tariff seems not of itself to have any significantly different element which would convert the instrument into a legislative rather than an administrative act. However, s.8(3) gave to the instrument a legislative or conclusive effect.
The sub-section provided that the instrument has "effect after the commencement of this Act". The effect given was that the references in the specific tariff concession orders to an item in the 1982 Tariff were to be read as references in the harmonised Tariff ascertained to correspond. The corresponding references were ascertained "in accordance with the instrument under sub-section (5)". Accordingly, the references in the existing tariff concession orders were altered in accordance with the instrument by and on the issuance of the instrument.
Counsel for Sanyo submitted that the instrument had no binding effect. He preferred to read s.8(3) as if the words "in accordance with the instrument under sub-section (5)" did not appear in it and to read the group of sub-sections from 8(2) to 8(6) as if sub-section (3) did not appear therein. Counsel for Sanyo submitted that the instrument issued under sub-section (5) was advisory or a guide only and could be amended if there were an error.
In my view, s.8(3) is not ambiguous. It provided that the instrument have effect, that is to say effect in law, and that that effect would be to substitute for the tariff items appearing in the specified tariff concession orders the tariff items which were specified in the instrument as corresponding.
That effect having been given to the instrument by s.8(3), it is not for this Court to review judicially whether one of the items of the 1982 Tariff was correctly related by the Comptroller-General to the references appearing in the harmonised Tariff.
For this reason, it seems to me that the application must be dismissed. No challenge can be made to the instrument under the Administrative Decisions (Judicial Review) Act or under s.39B of the Judiciary Act, at least on any ground taken in the present proceedings. No allegation has been put forward that the instrument was not truly an instrument for the purposes of s.8(5). As no challenge can be made to decision (1), the challenges sought to be made to decisions (2) to (5) also fail.
In this light, it is perhaps unnecessary to deal with the time delay. However, I should say that, in my view, time commenced to run in July 1988 when the instrument was issued. Counsel for Sanyo submitted that Sanyo did not know of the existence of the instrument until, in 1991, it raised with officers of Customs the question whether the television sets which it imported should obtain the benefits of TC 8732529. Sanyo may not have been aware of the instrument, but the harmonised Tariff came into effect on 1 January 1988, and Sanyo itself thereafter imported its television sets under the new heading, 8528. Therefore, there can be no suggestion that Sanyo acted on the basis that the old tariff item 85.15 continued to apply. Sanyo, like any other importer who wished to know what was the new tariff reference to which the reference in TC 8732529 corresponded necessarily had to have recourse to the information put out by Customs which showed that the corresponding references were both in heading 8527.
It is not only Sanyo but also other importers and manufacturers in Australian industry who could be affected by whatever occurs with respect to the tariff concession order. It is for that reason that the Customs Act makes such elaborate provision for inquiry and public notification before any tariff concession order is made and why provision is made for the revocation or termination of a tariff concession order which ought not to have been made or which ought not to remain. In an area such as this where the application of TC 8732529 to the harmonised Tariff was in the public domain and a matter on which importers and manufacturers could rely or to which they could object if they wished, it behoved anyone wishing to challenge what occurred in July 1988 to do so promptly, not after the lapse of more than 3 years.
Accordingly, I am of the view that the application was not made within a reasonable time, that the application under the Administrative Decisions (Judicial Review) Act was lodged out of time and that, in any event, the application whether under that Act or under the Judiciary Act should, as a matter of discretion, be dismissed even if validly lodged.
For these reasons, the application for dismissal should be upheld. I would dismiss the principal application with costs including the costs of this motion.

[1992] FCA 99

12 MARCH 1992