Stephan Donald Bullock v Minister for Transport and Regional Services
[2007] AATA 12
•10 January 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 12
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S2006/118
GENERAL ADMINISTRATIVE DIVISION ) Re STEPHAN DONALD BULLOCK Applicant
And
MINISTER FOR TRANSPORT AND REGIONAL SERVICES
Respondent
DECISION
Tribunal Senior Member R W Dunne Date10 January 2007
PlaceAdelaide
Decision The Tribunal affirms the decision under review.
..............................................
R W DUNNE
(Senior Member)
CATCHWORDS
TRANSPORT – importation of vehicle – nonstandard 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 – 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) Regulations 9, 11, 12, 13
Re Trajkovski and Department of Transport and Regional Services [2000] AATA 1073
Re Marra and Minister for Transport and Regional Services [2003] AATA 323REASONS FOR DECISION
10 January 2007 Senior Member R W Dunne 1. The applicant in this case (Mr Stephan Bullock) sought to import a 1999 Moto Guzzi Nevada motorcycle (“Motorcycle”) into Australia. 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 “nonstandard” 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 12 May 2006 Mr Bullock applied to this Tribunal for review of the delegate’s decision. At the hearing, he represented himself and gave oral evidence. Mr Fintan 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:
·statutory declaration of the applicant dated 25 September 2006 (Exhibit A1);
·extract from Australian Customs Service website entitled “Importing a motor vehicle” (Exhibit R2); and
·Australian Customs Service brochure entitled “Guide to the importation of privately owned motor vehicles or motorcycles” (Exhibit R3).
issues for the tribunal
3. Under the relevant provisions of the MVS Act, a person must not import a “road vehicle” that is nonstandard or does not have an identification plate. However, the MVS Act goes on to provide that a person may import a nonstandard road vehicle or a road vehicle that does not have an identification plate in “prescribed circumstances”.
4. The issues for the Tribunal are:
(a) whether the Motorcycle was a “road vehicle” for the purposes of the MVS Act and, as such, was prohibited from being imported into Australia without the approval of the Minister;
(b) whether, at the time the Motorcycle was imported into Australia, it had been owned and used by the applicant for a continuous period of at least 12 months;
(c) whether, at the time the Motorcycle was imported into Australia, it complied with the national standards and whether, when it was first manufactured and delivered for use in transport, the Motorcycle complied with the national standards; and
(d) 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 was “nonstandard” and did not have an “identification plate”.
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.
Penalty: 60 penalty units.
…”
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 12 of the MVS Regulations:
“12 Approval to import complying vehicle without an identification plate
The Minister must approve an application to import a road vehicle that complies with the national standards but does not have an identification plate if:
(a)the vehicle complied with the national standards when it was first manufactured and delivered for use in transport; and
…”
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; and
…”
background and evidence
7. In early 2005, the applicant travelled overseas for 12 months with his family. Whilst in Guernsey, he noticed the Motorcycle and he thought that he would buy it and bring it back to Australia. He contacted his son in Australia and asked him to speak to Customs. The applicant was not happy with the information he obtained from his son and he contacted Customs himself. He said he was told by the Customs officer that, if he had not owned and used the Motorcycle for 12 months, he would incur duties and taxes upon importation. However, the Customs officer made no mention of the vehicle import approval for the Motorcycle that was required by the respondent. Unfortunately, the applicant did not take the name of the Customs officer involved. The applicant purchased the Motorcycle and it was registered in his name on 10 May 2005 (Exhibit R1 at page 29).
8. On or about 30 November 2005, the applicant shipped the Motorcycle to Australia, along with a number of personal effects. The Motorcycle arrived in Australia on or about 11 January 2006. Upon his return to Australia, the applicant approached Customs and was advised that he needed to have a Department of Transport and Regional Services (“DOTARS”) approval letter in order to import the Motorcycle into the country. He engaged a Customs broker and an application was made to the respondent for approval to import the Motorcycle. On 13 February 2006, the respondent advised the applicant that approval had been refused (Exhibit R1 at pages 22-23).
9. In his statutory declaration (Exhibit A1), the applicant has set out the advice he said he received from Customs about importing the Motorcycle into Australia. The statutory declaration relevantly reads:
“… I contacted Customs in Adelaide and was told that if the vehicle was owned for less than 12 months it would incur import duties and applicable GST on the purchase price. I was also informed that the vehicle would have to be approved by the Vehicle Registration Office, Regency Park Adelaide. At no time was I instructed that I would require an import licence from the Department of Transport and Regional Services. It was not until I arrived at the freight depot in Australia to collect the bike that I was informed that an import licence and a bike identification plate was required in addition to the Custom requirements.
When I asked why this information was not made clear to me at the time of my initial enquiry I was told that ‘It is not the duty of the Customs department to inform the public of other government departments’ requirements and besides, Customs do not talk to DOTARS and DOTARS would not like Customs to interfere’. I found this to be rather disturbing and not in the best interests of the importing public.
…”
10. In his evidence, the applicant said that it was obvious that DOTARS did not communicate with Customs in relation to the importation of vehicles into Australia. Had the Departments communicated, the applicant would not have the problem he was experiencing in getting the Motorcycle into Australia. He said there were no reliable internal sources for obtaining information about the importation of motor vehicles. The assumption was that the public had access to sources, but that only telephone access was realistically available. The first point of contact was Customs and then contact could be made with other Departments, where necessary. The applicant said that he was made aware of the Customs website and the information available from that source. However, he said he believed the public should be able to make direct contact with Customs and obtain all relevant information that was needed about the importation of vehicles into Australia.
11. The applicant’s further evidence was that he had been required to pay the customs broker for his services and the costs incurred to transport the Motorcycle to Australia, the customs duty and GST and other charges upon entry into Australia and for storage costs. In following up a letter he had received from the respondent dated 15 August 2006, the applicant said he contacted the nominated representative for Moto Guzzi motorcycles in Australia, Mr Mark Pollock. Mr Pollock advised him that, to his knowledge, the Motorcycle did not satisfy the Australian Design Rules or that, when it was originally built, it did not satisfy those Rules. The applicant said that he was happy to have the Motorcycle tested. However, he had been told that, even if it was modified, it would not comply with the Australian Design Rules.
consideration
12. 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.
13. The relevant facts of this case are not in dispute. The applicant purchased the Motorcycle and he first registered it in his name in Guernsey on 10 May 2005. The applicant used the Motorcycle until some time prior to 20 November 2005, when it was shipped back to Australia. The Motorcycle arrived in Australia on or about 11 January 2006 and on 16 January 2006 the applicant applied for approval to import it into the country.
14. The Tribunal is of the view that the only Regulations capable of applying in the present case to Ministerial approval for importation of a road vehicle under s 20(1) of the MVS Act are Regulations 11, 12 and 13 of the MVS Regulations. The Tribunal finds that the Motorcycle is a “motor vehicle”, in that it is “a vehicle that uses, or is designed to use, volatile spirit, gas, oil, electricity or any other power … as the principal means of propulsion …”. As the Motorcycle is “a motor vehicle designed solely or principally for the transport on public roads of people …” the Motorcycle is a “road motor vehicle”. As the Minister has not determined that the Motorcycle is not a “road vehicle”, pursuant to s 5B, the Motorcycle is a “road vehicle” within the meaning of the MVS Act. The Tribunal also finds, on the evidence, that the Motorcycle had not been owned and used by the applicant overseas for a continuous period of at least 12 months. In these circumstances, Regulation 13 of the MVS Regulations does not apply, so that s 20(1)(b) of the MVS Act is incapable of applying by reference to that Regulation. Although it is unnecessary to do so, the Tribunal also finds that the Motorcycle is “nonstandard” and “does not have an identification plate” for the purpose of s 18(1).
15. As to Regulation 12, s 5 of the MVS Act defines “national standard” to mean a vehicle standard determined under s 7. Section 7(1) provides that the Minister may determine, in writing, vehicle standards for road vehicles or vehicle components. The Minister has determined standards, known as the Australian Design Rules. Thus, to comply with Regulation 12(a), the Motorcycle must have complied with the Australian Design Rules that were in force at the date the Motorcycle was first manufactured and delivered for use in transport. The Tribunal finds, on the evidence, that the Motorcycle did not comply with the Australian Design Rules when it was first manufactured and delivered for use in transport.
16. Regulation 11 is a general discretion that may be exercised to permit the importation of a vehicle that does not have an identification plate. However, the Tribunal notes that the discretion should be exercised only in exceptional circumstances. As Deputy President RNJ Purvis said in Re Trajkovski and Department of Transport and Regional Services [2000] AATA 1073 at paragraph 35:
“… 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). …”
In Re Marra and Minister for Transport and Regional Services [2003] AATA 323, Deputy President SD Hotop reiterated what was said by Deputy President Purvis, when he said (at paragraph 20):
“…That discretionary power is, however, not at large - it must be exercised in accordance with the policy and objects of the Act and the 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 that legislation: 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.”
17. The applicant asserted that, had he been informed correctly by Customs in the first instance, he would not have imported the Motorcycle and would not have had to bear the various taxes, costs and expenses to which he was ultimately exposed. He considered it unfair that he was misinformed by Customs on a matter relating to an importation requirement imposed by DOTARS. However, as was submitted by Mr Fintan, there is a difference between being misinformed and being uninformed on a particular matter. Information and guidance relating to the importation of motor vehicles was available on the Australian Customs Service website at the time which made it clear that a “Vehicle Import Approval” would be required from DOTARS to gain clearance of privately owned motor vehicles and motorcycles into Australia. Although this information was available, the applicant was obviously of the view that there should be greater co-operation between Customs and DOTARS “in the best interests of the importing public”.
18. The Tribunal sympathises with the applicant but, given the circumstances, it finds that there are no grounds to warrant exercising the discretion under Regulation 11. The Tribunal does not find that financial hardship has been demonstrated, although it accepts that considerable cost and expense has been incurred and that, unless other arrangements have been made, the Motorcycle has been in storage for some time.
conclusion
19. 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 nonstandard road vehicle that must not be imported without the approval of the Minister. There are no grounds to support exercise of the Minister’s discretion under the MVS Regulations.
decision
20. The decision under review is affirmed.
I certify that the 20 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 27 September 2006
Date of Decision 10 January 2007
Advocate for the Applicant In person
Counsel for the Respondent Mr D Fintan
Solicitor for the Respondent Phillips Fox
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