Scherl and Department of Transport and Regional Services
[2007] AATA 1760
•13 September 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1760
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S 200700038
GENERAL ADMINISTRATIVE DIVISION ) Re FRANK EMILIO SCHERL Applicant
And
DEPARTMENT OF TRANSPORT AND REGIONAL SERVICES
Respondent
DECISION
Tribunal Senior Member R W Dunne Date13 September 2007
PlaceAdelaide
Decision The Tribunal affirms the decision under review.
.............................................
R W DUNNE
(Senior Member)
CATCHWORDS
TRANSPORT – importation of vehicle (motorcycle) – non-standard road vehicle – no identification plate – vehicle not owned and used for a continuous period of at least 12 months – vehicle did not comply with national standards – vehicle purchased with the intention of using it as a source of spare parts – discretion – no grounds for exercise of discretion – decision affirmed
Motor Vehicle Standards Act 1989 (Cth) ss 3, 5, 18, 19, 20
Motor Vehicle Standards Regulations 1989 (Cth) Regs 9, 9H, 11, 13
Re Brassington and Minister for Transport and Regional Services [2006] AATA 724
Re Da Silva and Department of Transport and Regional Services [2004] AATA 1355
REASONS FOR DECISION
13 September 2007 Senior Member R W Dunne 1. Mr Frank Scherl, who is the applicant in this case, sought to import a 1991 Suzuki VX800 motorcycle (“Motorcycle”) into Australia. On 16 January 2007 he applied for approval to the Administrator of Vehicle Standards (“Administrator”) to import the Motorcycle and the Administrator, as delegate of the Minister for Transport and Regional Services (“Minister”) refused the application. The application was refused on the ground that, as a “road vehicle”, the Motorcycle was a “non-standard” road vehicle and was not fitted with an identification plate. As such, it could not be imported into Australia unless it was approved for importation pursuant to the Motor Vehicle Standards Act 1989 (“MVS Act”) and the Motor Vehicle Standards Regulations 1989 (“MVS Regulations”).
2. On 20 February 2007 Mr Scherl applied to this Tribunal for review of the Administrator’s decision. At the hearing, he represented himself and gave oral evidence. Ms Linacre represented the respondent Minister. The documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (“T documents”) were admitted in evidence (Exhibit R1). In addition, the Tribunal admitted the following documents in evidence:
·applicant’s outline of argument (Exhibit A1);
·applicant’s response to the respondent’s statement of facts and contentions (Exhibit A2); and
·respondent’s statement of facts and contentions (Exhibit R2).
issues for the tribunal
3. Under the relevant provisions of the MVS Act, a person must not import a “road vehicle” that is non-standard or does not have an identification plate. However, the MVS Act goes on to provide that a person may import a non-standard road vehicle that does not have an identification plate with the written approval of the Minister or in “prescribed circumstances”.
4. The issues for the Tribunal are:
(a)whether the MVS Act or the MVS Regulations preclude the importation into Australia of a “road vehicle” that is “non-standard” and does not have an “identification plate” where the road vehicle is imported specifically for dismantling purposes; and
(b)whether the Minister’s discretion in the MVS Regulations should be exercised to allow the importation of the Motorcycle.
5. At the hearing, there was no dispute that the Motorcycle:
(a)was a “road vehicle”;
(b)was “non-standard”;
(c)did not have an “identification plate”;
(d)at the time it was imported into Australia, had not been owned and used by the applicant for a continuous period of at least 12 months.
legislation
6. The MVS Act and the MVS Regulations relevantly provide as follows:
MVS Act
Defined terms from s 5 of the MVS Act:
“motor vehicle means a vehicle that uses, or is designed to use, volatile spirit, gas, oil, electricity or any other power (not being human or animal power) as the principal means of propulsion, but does not include a vehicle used on a railway or tramway.
...
nonstandard, in relation to a road vehicle or a vehicle component, means not complying with the national standards and not taken to comply with the national standards by virtue of an approval given under subsection 10A(2).
…
road motor vehicle means:
(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.
…
road vehicle means:
(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.”
Sections 18, 19 and 20 of the MVS Act:
“18 Prohibition of importation of nonstandard vehicles etc.
(1) Subject to sections 19 and 20, a person must not import a road vehicle that:
(a) is nonstandard; or
(b) does not have an identification plate.
Penalty: 120 penalty units.
…
19 Importation of vehicles requiring modification
(1)A person may import a nonstandard road vehicle, a road vehicle that does not have an identification plate or a nonstandard prescribed vehicle component with the written approval of the Minister, which may be approval subject to written conditions determined by the Minister.
…
20 Approval to import certain nonstandard vehicles
(1)A person may import a nonstandard road vehicle or a road vehicle that does not have an identification plate:
(a)where the vehicle is to be exported from Australia (with or without further work being done on it) without having been used in transport in Australia; or
(b) in prescribed circumstances.
…
(3)Regulations for the purposes of paragraph (1)(b) or (2)(b) may provide for the importation, whether generally or in specified circumstances, of a road vehicle, or a vehicle component, as the case may be:
(a) with the written approval of the Minister; or
(b)with such approval subject to written conditions determined by the Minister.”
MVS Regulations
Regulation 9 of the MVS Regulations:
“9 Approval to import vehicles without identification plates
For the purposes of section 20(1)(b) of the Act, a person may import a nonstandard road vehicle or a road vehicle that does not have an identification plate if the Minister has approved an application by the person to import the vehicle.”
Regulation 11 of the MVS Regulations:
“11 Minister’s approval to import vehicles without identification plates
(1)The Minister may approve an application to import a nonstandard road vehicle or a road vehicle that does not have an identification plate.
(2)An approval may be given subject to conditions specified in the instrument of approval.”
Regulation 13 of the MVS Regulations:
“13 Approval to import vehicle without an identification plate if owned and used by applicant overseas
The Minister must approve an application to import a nonstandard road vehicle or a road vehicle that does not have an identification plate if:
(a)the vehicle has been owned and used by the applicant for a continuous period of at least:
(i)for a vehicle owned by the applicant before 9 May 2000 — 3 months; or
(ii) in any other case — 12 months.”
background and evidence
7. In September 2006, Mr Scherl purchased the Motorcycle on eBay, located in the United States of America. He said he owned a motorcycle of the same make and model as the Motorcycle and had done so for a number of years. His present motorcycle had travelled approximately 120,000 kilometres and, as it was “getting on in years” he started exploring the options of how he might refurbish the motorcycle, rather than sell it. He had explored refurbishment options in Australia, but the age or cost of other similar motorcycles provided him with no viable alternative. By comparison, the Motorcycle was advertised on eBay as having travelled less than 5,000 miles and was going for what he thought was a ridiculously cheap price. The Motorcycle would provide him with all the parts he needed, allow him to keep the modifications he had made to his present motorcycle to improve it and to restore it to what was virtually an “as new” condition. He said that he had previously imported spare parts from the United States for his motorcycles and he did not realise that the importation of the Motorcycle would be treated any differently. He didn’t consider it to be a motorcycle as such, but as a collection of parts.
8. Mr Scherl described himself as a collector when it came to motorcycles and an enthusiast as far as the Motorcycle was concerned. He said he currently owned 10 motorcycles and, in the case of the Motorcycle, had no intention of registering it but would simply use it as a donor vehicle for his other motorcycle(s). He successfully bid for the Motorcycle and arranged for its shipment to Australia. He was advised by the Australian Customs Service to contact a customs broker, as there was a considerable amount of paperwork to be done to get the Motorcycle into Australia. When he spoke to the broker and outlined the situation, Mr Scherl was advised that he would need a DOTARS approval to import the Motorcycle. He contacted DOTARS, obtained an application form and quickly realised that the Motorcycle did not meet the criteria for importation. His application was refused, the Motorcycle arrived and was in storage in Port Adelaide. When questioned about the importation of spare parts on previous occasions, Mr Scherl said that he had been able to do so without having to apply for importation approval. He had not made enquiries earlier with anyone about importing the Motorcycle because it was never his intention to try to register it in Australia. If that had been his intention, he would have made different inquiries before he sought to import it.
9. Mr Scherl referred to the “Vehicle Standards Bulletin 10” which he said appeared on the DOTARS website. He said that the Bulletin included the statement:
“The importation of complete vehicles for dismantling purposes is not permitted.”
He referred to Reg 9H of the Regulations which he said had specifically provided for the importation of vehicles for dismantling and which had been removed from the Regulations in 2000. He also referred to the Task Force Report which had recommended the removal of Reg 9H at that time.
10. In cross-examination by Ms Linacre, the applicant admitted that he had not initially investigated the sort of import licence that was required to bring the Motorcycle into Australia. He had made some inquires with freight companies about the cost of shipping from the United States, but that was the extent of his research. He had received nothing from the freight company he had used to alert him to the possible importation issues that could apply with the Motorcycle. He said he was aware that there would be port fees and customs fees associated with the importation, but was not aware that there would be any importation conditions to be satisfied. He also said he had not received any incorrect advice which had resulted in him bringing the Motorcycle to Australia. He acknowledged that, apart from the lack of registration and the “illegality” associated with it, there was nothing preventing the Motorcycle from being used on Australian roads. He said he could have resold the motorcycle in Australia, but that that had never been his intention. If he had again chosen to import only spare parts, instead of the complete Motorcycle, the cost would have been greater. With the Motorcycle, he had bought it cheaply and had been able to ship it at a relatively low cost. He said that provision for enthusiasts had been made by DOTARS in the form of the “Specialist Enthusiasts Vehicles Register”, which dealt with the importation of certain motor vehicles and motorcycles. However, the Motorcycle had never found its way onto that Register.
consideration
11. The Tribunal notes that the main objects of the MVS Act as set out in s 3, are:
(a)to achieve uniform vehicle standards to apply to new vehicles when they begin to be used in transport in Australia; and
(b)to regulate the first supply to the market of used imported vehicles.
12. The relevant facts of this case are not in dispute. Mr Scherl purchased a Motorcycle on eBay in the United States on or around 25 September 2006. He arranged for the Motorcycle to be shipped from the United States on 13 December 2006. The Motorcycle subsequently arrived in Australia and Mr Scherl applied for approval to import it into the country. As there is no dispute that the Motorcycle was a non-standard road vehicle that did not have an identification plate, the Tribunal is of the view that the only Regulation capable of applying in the present case to Ministerial approval for importation of a road vehicle under s 20(1) of the MVS Act is Reg 11 of the MVS Regulations. Regulations 12 and 13 have no application.
13. Mr Scherl argued that the discretion in Reg 11 should be exercised in his case. As the Tribunal understands it, his argument has two interrelated bases, namely:
(a)that the previous Reg 9H, which was repealed in 2000, would have been relevant and applicable in his case; and
(b)that, given the provisions of Reg 9H and all his relevant circumstances, the discretion in Reg 11 should be exercised in Mr Scherl’s favour and his application to import the Motorcycle should be approved.
14. The Tribunal notes that Reg 9H was amongst a number of previous Regulations in Division 4.1 dealing with the importation of vehicles into Australia. Most of those previous Regulations have been renumbered, but Reg 9H was repealed by Statutory Rules 2000 No 194. Reg 9H read as follows:
“Without limiting the generality of subregulation 9B(1), the Minister may approve an application to import a non-standard road vehicle if the applicant undertakes that the vehicle, when it is imported:
(a) will be dismantled and sold as vehicle components; and
(b) will not be used in transport in Australia.”
Mr Scherl submitted that Reg 9H, in its reference to the dismantling and sale as vehicle components, was clearly directed at the motor vehicle industry. It was never intended to apply to individual collectors and enthusiasts. However, Reg 11 is included to deal with cases, like motorcycle enthusiasts and collectors, who wished to import vehicles into Australia for dismantling for use as spare parts with other vehicles in their possession. He argued that Reg 11 was included in the Regulations to allow flexibility to deal with situations that were not otherwise catered for. Regulation 9H did not apply to his situation but, in its place, Reg 11 allowed the flexibility for a case such as his to be dealt with. Reg 11 was present to allow for these “exceptional” situations. Mr Scherl referred the Tribunal to Re Brassington and Minister for Transport and Regional Services [2006] AATA 724 where, at paragraph 27, Member E Fice said:
“27. In my opinion, Member Allan was not suggesting that circumstances in which it was appropriate to exercise the discretion need not necessarily be exceptional. Rather, he was minded to look at the policy and objectives of the Act, the Regulations and to all the relevant circumstances of an applicant in order to determine whether that discretion ought to be exercised. The fact that the object of the Act in relation to used vehicles is to regulate the first supply to the market, and the exercise of discretion will only be resorted to where an Applicant is unable to rely on any of the exceptions set out in regs 11 – 18, would, of necessity, result in the circumstances being exceptional. In any event, I am satisfied that I should approach the exercise of discretion in this case on the same basis as Member Allan did in Da Silva; where he said at paragraph 59:
‘In my opinion, the exercise of the discretion in r 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...’
This statement, in effect, follows what was said by Deputy President Hotop in Marra.”
15. Mr Scherl put to the Tribunal that the totality of his relevant circumstances had to be considered and, by referring to his outline of argument (Exhibit A1), they were:
(a)his application related to a single motorcycle, not a large number of vehicles;
(b)he did not seek to profit from the importation of the Motorcycle and, given the costs incurred to date, it was already rapidly approaching the point where it was no longer a cost-effective exercise;
(c)there was no intention to register the Motorcycle for use on Australian roads. Its importation was solely to provide a source of near new parts to recondition a motorcycle of the same make and model already in his possession; and
(d)if importation approval was not granted, the cost of shipping the Motorcycle back to the United States and either re-selling it or disassembling it to be re-imported as “used motorcycle parts” would be prohibitive.
16. Mr Scherl submitted that, in the absence of provisions in the MVS Act and the MVS Regulations which specifically precluded the importation of vehicles for dismantling purposes, Reg 11(2) provided for an approval subject to conditions, whilst s 20(4) of the MVS Act provided for penalties if those conditions were breached. He submitted that an approval to import the Motorcycle as a single vehicle, with stringent conditions attached, was possible and would not undermine or frustrate the policy objectives of the legislative scheme. Further, he submitted that Reg 11 had been used in the past to grant approvals for certain types of vehicles and circumstances that were not specifically foreseen by those responsible for drafting the legislation, rather than limiting its application to “very exceptional, extraordinary or special circumstances”.
17. Previous decisions of this Tribunal have explained that Reg 11 is a general discretion available to the Minister. Member M J Allen considered the exercise of the discretion in Re Da Silva and Department of Transport and Regional Services [2004] AATA 1355 where, in paragraphs 53-55, he said:
“53. I must then turn to consider whether the general discretion available to the Minister under r 11 should be exercised in the applicant’s favour. Although that regulation confers a broad discretion to approve an application and neither the Act nor the regulations set out specific factors that are to be considered relevant to the exercise of the discretion, it is not an unfettered discretionary power. The discretion must be exercised in accordance with the policy and objectives of the Act and regulations, having regard to all relevant considerations and disregarding any irrelevant considerations, as determined from a consideration of the subject matter, scope and purpose of the legislation: see R v Australian Broadcasting Tribunal; ex parte 2HD Pty Ltd (1979) 144 CLR 45 at 49, Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24 at 39-40, Re Marra and Minister for Transport and Regional Services [2003] AATA 323 at [20].
54. I have referred to the objectives of the Act and the regime for approval of imports of used vehicles in certain circumstances above. This Tribunal has described the circumstances in which it may be appropriate to exercise the general discretionary power in r 11 in favour of an applicant (in circumstances where none of the other specific approval powers were satisfied) as being ‘exceptional’ (see Re Trajkovski and Department of Transport and Regional Services [2000] AATA 1073 at [32]) and ‘very exceptional, extraordinary or special circumstances peculiar to an applicant’ (Re Anthony and Department of Transport and Regional Services [2001] AATA 543 at [19]).
55. For my own part, I do not believe that it is particularly helpful to resort to adjectives of the kind referred to in the previous paragraph. Rather, I believe that it is sufficient to pose the question in terms of 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.”
Member Allen then considered a number of factors that the applicant had contended should result in the exercise of the discretion in his favour. In particular, Mr Da Silva relied on third parties for advice regarding his entitlement to import vehicles into Australia and for the making of the necessary applications. He was given incorrect advice and the necessary applications were not made by his agent at a sufficiently early stage for him to be aware of any problems. Mr Da Silva’s case was not one where he simply took his chances in a problematic situation. In the end result, Member Allen considered that there would be an element of unfairness or injustice to the applicant if the discretion was not exercised in his favour.
18. As was mentioned in paragraph 14 of these reasons, Mr Scherl referred the Tribunal to the decision of Member E Fice in Re Brassington (supra) and to what Member Allen had said in Re Da Silva (supra) regarding the need to consider all the relevant circumstances of the applicant. However, Member Fice ultimately found that the refusal to grant importation approval to Mr Brassington was correct. In so doing, he said (at paragraphs 29 and 30):
“29. However, I am not able to find that there would be some element of unfairness or injustice to Mr Brassington if approval were not granted. Mr Brassington’s evidence was that he made no enquiries about the importation of the vehicle prior to leaving the United Kingdom. Nor did he make any enquiries prior to entering into an agreement with King & Wilson to transport the vehicle to Australia along with his other possessions. Had he made any enquiries at all between the time of purchase of vehicle and the time of his application for approval to import the vehicle, Mr Brassington would have immediately realised that he would be confronted with the difficulties which he now faces. Therefore, it is my view that he has not suffered from unfairness or injustice in the same way that Mr Marra had. Mr Marra made enquiries of the Department but was given incorrect information. Relying on that information, he proceeded to import his motorcycle. Through no fault of his own, he was left in a situation where he would suffer considerable hardship having shipped the motorcycle to Australia where he was incurring storage costs.
30. I am also of the view that a grant of approval in these circumstances would undermine or frustrate the policy and objects of the legislative scheme. In effect, if the discretion were exercised in Mr Brassington’s favour, the Tribunal would convey the message that where an applicant is unable to satisfy the exceptions set out in the Regulations for the import of a used vehicle, and despite the fact that the applicant made no enquiries whatsoever as to the statutory requirements regarding the import of motor vehicles to Australia, compliance with the statute could nevertheless be avoided by the exercise of the discretion under reg 11.”
19. Both Mr Scherl and Ms Linacre referred the Tribunal, at various times, to the provisions of repealed Reg 9H and to the comments made by the Task Force of inter-governmental officials that reviewed the operation of the Regulation in August 1999. The Tribunal has considered the submissions put forward by both the applicant and on behalf of the respondent. On balance, the Tribunal prefers to consider the issue of the exercise of the discretion in Reg 11 without reaching any concluded view on the consequences arising from the repeal of Reg 9H.
20. Like Member Fice in Re Brassington, the Tribunal is of the view that a grant of approval in favour of Mr Scherl, even with stringent conditions, would undermine or frustrate the policy and objects of the legislative scheme. His case falls outside the exception in the Regulations and, based on his previous experience with the importation of spare parts, he made no inquiries about the legislative requirements regarding the importation of a complete used vehicle capable of being driven immediately on Australian roads.
21. The Tribunal sympathises with the applicant but, given the circumstances, it finds that there are no grounds to warrant exercising the discretion favourably under Reg 11. The Tribunal appreciates that the applicant may incur expenses and possible loss in either shipping the Motorcycle back to the United States or either re-selling it or arranging for its dismantling prior to re-importation. The Tribunal does not accept that this would constitute significant hardship for Mr Scherl.
conclusion
22. The Motorcycle is subject to the MVS Act and may only be imported under its terms or the terms of the MVS Regulations. The Motorcycle is a non-standard road vehicle that must not be imported without the approval of the Minister or in prescribed circumstances. There are no grounds to support exercise of the Minister’s discretion under the MVS Regulations.
decision
23. The decision under review is affirmed.
I certify that the 23 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member R W DUNNE
Signed: ...........J Coulthard...........................................
AssociateDate of Hearing 13 June 2007
Date of Decision 13 September 2007
Advocate for the Applicant In person
Counsel for the Respondent Ms A LinacreSolicitor for the Respondent Clayton Utz
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