SIMON HUNTER and MINISTER FOR INFRASTRUCTURE, TRANSPORT, REGIONAL DEVELOPMENT AND LOCAL GOVERNMENT

[2009] AATA 137

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 137

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/3258

GENERAL ADMINISTRATIVE  DIVISION		)
Re		SIMON HUNTER

Applicant

And MINISTER FOR INFRASTRUCTURE, TRANSPORT, REGIONAL DEVELOPMENT AND LOCAL GOVERNMENT

Respondent

DECISION

Tribunal Mr J. W. Constance, Senior Member

Date5 March 2009

PlaceCanberra

Decision

1. The decision made on 3 September 2008 refusing an application by Simon Hunter to import a 1991 MG Montego sedan 2.0i VIN SAXXBYLU7BM591049 is set aside.

2. In substitution it is decided that Simon Hunter is granted approval to import the 1991 MG Montego sedan 2.0i VIN SAXXBYLU7BM591049 (“the vehicle”) into Australia subject to the following conditions:

1) the vehicle is to be used only as a source of parts to be fitted to a vehicle being a circa 1991 MG Montego sedan 2.0i SAXXBYLU7BM537888, and which is the property of Simon Hunter at the time the parts are fitted (“the second vehicle”);

2)    the vehicle is not to be driven on a public road in Australia;

3)    the vehicle is not to be sold after it is imported;

4)    no component of the vehicle is to be sold other than as a component of the second vehicle.

...................[sgd]......................

J.W. Constance, Senior Member

CATCHWORDS

TRANSPORT – motor vehicle importation – non-standard road vehicle with no identification plate – exercise of discretion in applicant’s favour – decision under review set aside – conditions imposed

Motor Vehicle Standards Act 1989 – Section 19

Motor Vehicle Standards Regulations 1989 – Regulations 9H (repealed), 11

Motor Vehicle Standards Amendment Regulations 2000 (No.1) 2000 No. 194

Trajkovski v Department of Transport and Regional Services [2002] AATA 1073

REASONS FOR DECISION

5 March 2009 MR J. W. Constance, Senior Member     

INTRODUCTION

1.      Mr Hunter is an MG enthusiast and the proud owner of not one, but two MG Montego sedans.  One of those vehicles is in Australia, but, unfortunately for him, the other is in storage in England.

2.      Mr Hunter sought the permission of the Minister to import the second vehicle into Australia.  This permission was refused and Mr Hunter has applied to the Tribunal to review this decision.

3.      For the reasons which follow, the decision under review will be set aside and Mr Hunter's application for permission to import the vehicle will be granted, subject to a number of conditions.

FINDINGS OF FACT

4.      Mr Hunter purchased a 1990-91 MG Montego sedan (“the vehicle”) in the United Kingdom for GBP360.05, about $500 at the time.  The vehicle has been garaged in the United Kingdom since it was purchased.

5.      Mr Hunter wishes to import the vehicle for the sole purpose of using it as a source of spare parts for another Montego sedan (“the second vehicle”) owned by him and located in Australia.  Such vehicles are rare in Australia, and Mr Hunter believes that his vehicle may be the only one of its kind in this country.

6.      If Mr Hunter has the vehicle disassembled in the United Kingdom and seeks to import the resulting parts, he would not need the approval of the Minister.  He does not wish to do this for reasons which include the cost of disassembling and the increased risk of damage to the parts during this process and during shipment.  I accept Mr Hunter's evidence that the cost of disassembling the vehicle would probably be in the vicinity of $3000 and that it would increase the risk of damage to the components.   I am satisfied also that the disassembling of the vehicle would extend the time it must be stored in the United Kingdom, which would add further to the cost involved.

THE RELEVANT LEGISLATION

7.      The importation of a vehicle such as that proposed by Mr Hunter is governed by the Motor Vehicle Standards Act 1989 (Cth) and the Motor Vehicle Standards Regulations 1989 made under the Act.   For various reasons, including the fact that it does not have an identification plate, it can only be imported with the approval of the Minister under Regulation 11.

8.      So far as is relevant, s 19 provides:

(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.

9.      So far as is relevant, regulation 11 provides:

(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.

THE MINISTER’S ARGUMENT

10.     It was put on behalf of the Minister that the discretion given by s 19 and regulation 11 should be exercised only if failure to give approval would be unfair or unjust.  Further, it was argued that approval should not be given if it would undermine the scheme governing the importation of vehicles established by the Act.

11.     Counsel argued that a refusal of permission would be neither unfair nor unjust as:

·Mr Hunter wishes to use parts from the vehicle to restore the second vehicle and this could be achieved by dismantling the vehicle overseas and importing the parts;

·the cost of dismantling is not high;

·Mr Hunter had not been given any incorrect advice by the Department;

·Mr Hunter was aware of the restrictions when he purchased the vehicle.

12.       Counsel referred to the repeal of regulation 9H by the Motor Vehicle Standards Amendment Regulations 2000 (No.1) 2000 No. 194.  Regulation 9H provided for the approval of the import of road vehicles for dismantling.  The Explanatory Statement and Regulation Impact Statement which accompanied the repealing regulations is part of exhibit A1.[1]  These Statements indicate that “the objective of the amendment is to prevent the illegal diversion to road use of complete vehicles imported for dismantling and inhibit the potential for adverse safety impacts arising from attempts to circumvent these requirements”.[2]   On this basis, it was put that it was the clear intention of Parliament to prevent the import of complete vehicles, and to allow this, even subject to conditions, would be contrary to the intention of the legislature and would undermine the scheme in place to control the import of vehicles.

[1] At pp. 47 – 56.

REASONING

13.     I do not agree that the repeal of regulation 9H should be taken to indicate an intention that the discretion given by regulation 11 should not be exercised in favour of an applicant to permit the importation of a complete vehicle.  Whilst regulation 9H was repealed, there was no amendment to regulation 11.  Had it been the intention of Parliament to restrict the discretion in the manner for which the Minister argues, it would have been a simple matter to have amended regulation 11 to limit the discretion in circumstances such as those now before me.  This has not been done.  I am satisfied that regulation 11 does provide for the exercise of a discretion to grant Mr Hunter's application, if the grounds to do so exist.

14.     In Trajkovski v Department of Transport and Regional Services[3] the Tribunal considered the manner in which the discretion should be exercised.  Deputy President Purvis said:

There is no question that the decision to be made now by the Tribunal is not to be arbitrary but is to be one consistent with the policy sought to be achieved by the legislation, taking into consideration the matters relied upon by the Applicant. Thus the matter is to be judged by weighing up the particular circumstances of the case in the light of the part which the policy plays in the overall context of the decision to be made. (Skoljarev v Australian Fisheries Management Authority (1995) 22 AAR 331 at 337). This application is to then be considered having in mind the facts and circumstances before the Tribunal but in the context of a regime having been established for the importation of vehicles and the same not being allowed onto roads in Australia without safety being ensured. The exceptions as provided for in the regulations where variation from the scheme may be enabled apart from the circumstances therein specified must of necessity be exceptional. The Tribunal in making its decision is to give primary weight to the scheme and the intent of Parliament in enacting the legislation.

[3] [2002] AATA 1073.

15.     There can be no doubt that the regime which has been established is designed to severely restrict the importation of complete vehicles with a view to prevent their being resold and ultimately ending up on Australian roads without meeting our safety requirements.  However, I have reached the conclusion that in the circumstances of this case it would be unfair to Mr Hunter to refuse permission, which would result in his needing to dismantle the overseas vehicle or abandon the project altogether.

16.     Contrary to the Minister’s submission, I am satisfied that there would be additional cost involved in dismantling the vehicle which may not be great in absolute terms, but is not insignificant and would amount to several times the value of the vehicle itself.  In addition, I have found that there would be greater risk of damage to the parts in shipment.

17.      On the other hand, nothing in the Minister’s submissions persuaded me that there is anything to be gained by requiring Mr Hunter to dismantle the vehicle. If he was minded to attempt to use the vehicle illegally on Australian roads or to resell it (although it is to be clearly understood that I am satisfied that this is not his intention), this could be achieved by rebuilding the vehicle from the imported parts. 

18.     Further, I do not accept the argument that to allow the importation of the vehicle in the circumstances of this case “would undermine or frustrate the policy and objects of the legislative scheme”.[4]   On the contrary, I am of the view that, in the circumstances of this case, to allow the importation of the complete vehicle subject to strict conditions is preferable to encouraging Mr Hunter to dismantle it and import the parts without any control under the scheme whatsoever.  It was put that Mr Hunter may disregard any conditions imposed once the vehicle is in Australia.  This is always possible, but having heard Mr Hunter give evidence I am of the opinion that this is extremely unlikely.  Nothing in the cross-examination of Mr Hunter caused me to reconsider this view.  Further, there are penalties imposed for failure to comply with conditions imposed, which would discourage non-compliance.

[4] Respondent’s Statement of Facts and Contentions, para. 24.

19.     I have taken into account also that there is a very limited, if any, market for the resale of the vehicle as a source of spare parts on the basis of Mr Hunter's evidence that, so far as he is aware, the vehicle at present in Australia is the only such vehicle in this country.

20.     Counsel for the Minister referred me to several Tribunal decisions refusing permission to import a complete vehicle.  Whilst it is clear that consistency in decision-making is a factor to be given considerable weight, the particular circumstances of each case must be taken into account also.  I consider that the combination of the circumstances of Mr Hunter's application warrants the granting of permission whilst still being consistent with earlier decisions.

21.     I propose to impose a number of conditions on the approval to import the vehicle.  My reason for doing this is to ensure as far as possible that the vehicle is not resold, either as a complete vehicle or as a collection of parts capable of being reassembled into a complete vehicle, and thus finding its way onto Australian roads without meeting the necessary safety standards.

A SUGGESTION FOR CHANGE

22.     It would be very helpful to persons reviewing similar decisions of the Minister in future if the Department could obtain a slightly smaller “REFUSAL” stamp.  The stamp could then be affixed to the Department’s copy of the decision in such a way as not to render substantial portions of it illegible.   On requesting an unstamped copy of the decision in this matter, I was told that an unmarked copy had not been retained.

DECISION

23. The decision made on 3 September 2008 refusing an application by Simon Hunter to import a 1991 MG Montego sedan 2.0i VIN SAXXBYLU7BM591049 is set aside.

24. In substitution it is decided that Simon Hunter is granted permission to import the 1991 MG Montego sedan 2.0i VIN SAXXBYLU7BM591049 (“the vehicle”) into Australia subject to the following conditions:

1)the vehicle is to be used only as a source of parts to be fitted to a vehicle being a circa 1991 MG Montego sedan 2.0i SAXXBYLU7BM537888, and which is the property of Simon Hunter at the time the parts are fitted (“the second vehicle”);

2)the vehicle is not to be driven on a public road in Australia;

3)the vehicle is not to be sold after it is imported;

4)no component of the vehicle is to be sold other than as a component of the second vehicle.

I certify that the 24 preceding paragraphs are a true copy of the reasons for the decision herein of MR J. W. Constance, Senior Member.

Signed:         ......................[sgd]..........................................................
  Tal Aviram, Associate

Date of Hearing  19 February 2009
Date of Decision  5 March 2009
Applicant self-represented
Counsel for the Respondent     Ms A. Linacre 
Solicitors for the Respondent    Clayton Utz Lawyers

2 Ex. A1 p. 53.