Stemcor Pty Ltd and Chief Executive Officer of Customs and Bluescope Steel Ltd (Party Joined)

[2008] AATA 117

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 117

ADMINISTRATIVE APPEALS TRIBUNAL      )

)   No 2007/0021

GENERAL ADMINISTRATIVE DIVISION		)
Re		STEMCOR PTY LTD

Applicant

And CHIEF EXECUTIVE OFFICER OF CUSTOMS

Respondent

And BLUESCOPE STEEL LTD

Party Joined

DECISION

Tribunal Senior Member M D Allen

Date6 February 2008

PlaceSydney

Decision For the reasons given orally at the conclusion of the hearing in this matter, the Decision under review is AFFIRMED.

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

M D Allen
  Senior Member

CATCHWORDS

TARRIF CONCESSION ORDER – review of decision rejecting application for tariff concession order made by the applicant – tariff concession order meets core criteria if no substitutable goods are being produced in australia in the ordinary course of business at the time application is made – decision under review affirmed

LEGISLATION

Customs Act 1901 sections 269C, 269F, 269FA, 269H(1)(b), 269H(1)(c) and 269H(1)(d)

CASE LAW

Repatriation Commission v Vietnam Veterans Association of Australia (NSW Branch) Inc and Others (2000) 48 NSWLR 548

R v Young (1999) 46 NSWLR 681

Wentworth Securities v Jones (1980) Appeal Cases 74

REASONS FOR DECISION

6 February 2008           Senior Member M D Allen 

1. At the conclusion of the hearing of the above matter the terms of the decision intended to be made and the reasons therefor were stated orally. After service upon the Respondent of a copy of the decision that was in fact made, the Respondent pursuant to Sub‑section 43(2A) of the Administrative Appeals Tribunal Act 1975 requested the Tribunal to furnish to the Respondent statement in writing of the reasons of the Tribunal for its decision.

2.      The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service.  Whereas those oral reasons may reflect the inelegance of an extempore decision, they are in fact the reasons for the said decision.

3.        The said transcript is annexed hereunto and furnished to the Applicant and to the Respondent as it is the reasons for the Tribunal's decision.

I certify that this and the preceding page are a true copy of the decision and reasons for decision herein of:

Senior Member M D Allen

Signed:         [sgd]  Mwela Kapapa     
          ..................................................................................……

Associate

Date of Hearing   6 February 2008

Date of Decision   6 February 2008

Solicitor for the Applicant                DHL Express (Australia) Pty Ltd 

Solicitor for the Respondent           Australian Government Solicitor

Solicitor for the Party Joined          Hunt & Hunt Lawyers

EXTRACT OF TRANSCRIPT OF PROCEEDINGS

MR ALLEN:  Well, in this matter, there is an application to review a decision made by delegate of the Respondent on 8 December 2006, rejecting an application for a tariff concession order by the Applicant.  The matter has a lot of history, and was originally before the Tribunal on 13 November 2006 in Tribunal matter number N2005/0627.  Following that matter, a new application for a tariff concession order was made by the current Applicant, dated 14 November 2006.  In the course of that application, at paragraph 5 of the said application, the Applicant stated:

BlueScope Steel Limited is the sole Australian producer of this product.  Total production is put to subsidiary companies own use to produce brand name Colorbond product that is not available in the normal course of business.  See covering correspondences.

And at paragraph 6, there was a reference to the transcript, the hearing before the Administrative Appeals Tribunal on 13 November 2006. 

The application was rejected on primarily the following grounds.  One:

I am aware of a producer in Australia of substitutable goods; reference section 269H(1)(d) of the Customs Act 1901.

The second ground being:

I am not satisfied that the Applicant has established to the satisfaction of the CEO that there are reasonable grounds for asserting that no substitutable goods are produced in Australia in the ordinary course of business;  sections 269H(1)(c). 

Towards the end of the reasons for decision, there was some reference to section 269FA of the Customs Act 1901.  That section refers to:

…the responsibility for an Applicant for a tariff concession order to established to the satisfaction of the CEO that the application meets the core criteria. 

The term core criteria is set out in section 269C of the CA. In the course of these proceedings, the Respondent submitted that the decision under review could be affirmed on the bases that the Applicant had not complied with section 269F or section 269FA of the CA. Given the peculiar circumstances surrounding this particular application, and the context in which the application was made, I reject any argument relying on sections 269F and 269FA of the CA. Paragraph 269H(1)(c) of the CA reads inter alia that:

The Chief Executive Officer of Customs must, if he or she is satisfied that there is any producer in Australia of substitutable goods, inform the Applicant that the application is rejected.

The decision referred to, paragraph (d), and I would mention for completeness that paragraph 1(b) of section 269H reads that if the CEO must - if he or she is not aware of any producer in Australia of substitutable goods, accept the said application. In both paragraphs, the emphasis on the words used is, as I see it, a producer in Australia of substitutable goods. When one looks at section 269C of the Customs Act, the term “core criteria” is used. It reads:

For the purposes of this part a TCO application is taken to meet the core criteria if, on the day on which the application was lodged, no substitutable goods were produced in Australia in the ordinary course of business. 

It was argued for the Applicant that when one looks at either paragraph 1(b) or 1(d) of subsection 1 of section 269H, there must be written into the words that the producer must be producing the said goods in the ordinary course of business.  To my mind, the words, “a producer in Australia of substitutable goods” simply means that the goods, which are alleged to be substitutable goods, are produced in Australia.  To add the words “in the ordinary course of business” is, to my mind, to write words into the legislation, whether those words are written into the end of the paragraph or by referring to a producer. 

It is one thing to give the legislation a purpositive interpretation, as to which see the various authorities referred to by Spiegelman CJ in Repatriation Commission v Vietnam Veterans Association of Australia NSW Branch Inc and Others (2000) 48 NSWLR 548 at 575-576, commencing at line 107. It is, as I said, another thing entirely to write words into the legislation, and it is this regard I refer to the judgment of Spiegelman CJ in the Crown v Young (1999) 46 NSWLR 681 at 687. After referring to the decision of Lord Diplock in Wentworth Securities v Jones (1980) Appeal Cases 74 at 105-107, his Honour said:

The three conditions set out by Lord Diplock should not be misunderstood.  His Lordship did not say, nor do I take any of their Honours who have adopted the passage to suggest, that whenever the three conditions are satisfied a court is at liberty to supply the omission of the legislature.  Rather, his Lordship was saying that, in the absence of any one of the three conditions, the court cannot construe a statute with the effect that certain words appear in the statute.  As I understand the recent cases, they are not authority for the proposition that a court is entitled, upon satisfaction of the three conditions postulated by Lord Diplock, to perfect the parliamentary intention by inserting words in a statute.

The court may construe words in the statute to apply to a particular situation or to operate in a particular way, even if the words used would not on a literal construction so apply or operate;  however, the words which actually appear in the statute must be reasonably open to such a construction.  Construction must be text based. 

His Honour continued:

The court supplies words omitted by the draftsperson only in the sense that the words so included reflect in express, and, therefore, more readily observable form, the true construction of the words actually used.  In my opinion, the authorities do not warrant the court supplying words omitted by inadvertence per se. 

It seems to me that what I would be asked to do by the Applicant is to insert words into the statute and I reject that approach.  As I understand it, the Applicant concedes that the party joined does produce substitutable goods, albeit with the caveat that it does not agree that they are produced in the ordinary course of business.  That is a point which I do not have to decide, although, it seems to me, that in not having to decide that particular point, a large part of the Customs tariff concession order process has been nullified;  that, however, is a matter for the legislature.  The decision under review is affirmed.

MATTER ADJOURNED at 2.36 pm INDEFINITELY