Target Australia Pty Ltd and Chief Executive Officer of Customs - [2013] AATA 176

ADMINISTRATIVE APPEALS TRIBUNAL )

) 2012/3613
GENERAL ADMINISTRATIVE DIVISION )
Re:TARGET AUSTRALIA PTY LTD
Applicant

And:CHIEF EXECUTIVE OFFICER OF CUSTOMS
Respondent

CORRIGENDUM TO DECISION [2013] AATA 176

The Tribunal amends its decision of 28 March 2013 as follows:

by amending the reference following the certification stamp which reads “Solicitor of the Applicant” to “Representative for the Applicant.”

S A Forgie
Deputy President

CATCHWORDS – CUSTOMS – TARIFF CONCESSION ORDER – goods subject of application described as bags for shopping and carrying personal items – substitutable goods claimed – uses to which goods subject of the application are put or can be put – uses to which goods claimed to be substitutable are put or can be put – goods claimed to be substitutable produced in Australia in ordinary course of business – substitutable goods exist.

CATCHWORDS – CUSTOMS – PRACTICE AND PROCEDURE – whether regard can be had to additional evidence or whether Tribunal confined to information had at time of the decision’s internal review – whether Tribunal confined to reviewing decision on internal review – task to review operable decision – additional material lodged more than 28 days prior to hearing – no denial of procedural fairness in allowing material into evidence.

Chief Executive Officer of Customs v Toyota Material Handling Australia Pty Ltd [2012] FCAFC 78; (2012) 203 FCR 129
Collector of Customs (New South Wales) v Brian Lawlor Automotive Pty Ltd [1979] FCA 21; (1979) 41 FLR 338; 2 ALD 1
Comptroller General of Customs v Members of the Administrative Appeals Tribunal (1994) 123 ALR 140; 32 ALD 463
Dutton v Republic of South Africa [1999] FCA 498; (1999) 162 ALR 625
Hospital Benefits Fund of Western Australia Inc v Minister of Health, Housing and Community Services [1992] FCA 599; (1992) 39 FCR 225; 111 ALR 1; 28 ALD 50; 16 AAR 566
Kioa v West (1985) 59 CLR 550
Minister for Immigration and Ethnic Affairs v Kurtovic [1990] FCA 22; (1990) 21 FCR 193; 92 ALR 93
Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597; 187 ALR 117; 67 ALD 615
Minister for Immigration and Multicultural and Indigenous Affairs v Watson [2005] FCAFC 181; (2005) 145 FCR 542; 88 ALD 115
Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation (1963) 113 CLR 475
Nufarm Australia Ltd v Dow Agrosciences Australia Ltd and Another (No 2) [2011] FCA 757; (2011) 282 ALR 24; 123 ALD 21
Re Brian Lawlor Automobile Pty Ltd and Collector of Customs (New South Wales) (1978) 1 ALD 167
Re Dunn and Department of Defence [2004] AATA 1040; (2004) 39 AAR 322; 84 ALD 419
Re Gee and Director-General of Social Services (1981) 3 ALD 132; 58 FLR 347
Re VBN and Australian Prudential Regulation Authority [2006] AATA 710; (2006) 92 ALD 259
Riverwood Cartons Pty Ltd v Chief Executive of Customs [1997] FCA 817; (1997) 77 FCR 493; 25 AAR 382
Russell v Duke of Norfolk [1949] 1 All ER 109
Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286; 248 ALR 390; 48 AAR 345; 103 ALD 467; 82 ALJR 1147
Yolbir v Administrative Appeals Tribunal and Anor (1994) 48 FCR 246; 33 ALD 8; 19 AAR 15

Acts Interpretation Act 1901, s 33, 48
Acts Interpretation Amendment Act 2011, s 3, Sch 1, items 63, 64, 65 and 67 and s 2, item 2
Administrative Appeals Tribunal Act 1975, ss 25, 29, 30, 33, 35, 37, 39, 43
Customs, Excise and Bounty Legislation Amendment Act 1995, s 6, 18, Sch 4 and item 64, Sch 4 and item 66
Customs Legislation (Tariff Concessions and Anti-Dumping) Amendment Act 1992, ss 10, 19
Customs Tariff Act 1901, ss 78, 132, 132AA, 269B, 269D, 269E, 269F, 269FA, 269H, 269M, 269P, 269Q, 269S, 269SA, 269SB, 269SC, 269SD, 269SF, 269SG, 269SH, 269SHA, 269SJ, 273GA
Customs Tariff Act 1995, ss 16, 17, 18, 19, 20, 22, Schs 3, 5, 6, 7 and Sch 4 and item 50
Legislative Instruments Act 2003, s 13
National Health Act 1953
Social Services Act 1947

Acts Interpretation Amendment Bill 2011
Explanatory Memorandum to the Acts Interpretation Amendment Bill 2011
Replacement Explanatory Memorandum to the Customs, Excise and Bounty Legislation Amendment Bill 1995

Chambers 21^st Century Dictionary, 1999, reprinted 2004, Chambers

DECISION AND REASONS FOR DECISION [2013] AATA 176

ADMINISTRATIVE APPEALS TRIBUNAL     )
  )          2012/3613
GENERAL ADMINISTRATIVE DIVISION     )

ReTARGET AUSTRALIA PTY LTD
Applicant

AndCHIEF EXECUTIVE OFFICER OF CUSTOMS
Respondent

DECISION

Tribunal:                   Deputy President S A Forgie
Date:  28 March 2013
Place:  Melbourne

Decision:The Tribunal decides to affirm the decision of a delegate of the respondent dated 23 July 2012 which itself affirmed the decision of another delegate dated 28 March 2012 not to make a tariff concession order Number 1136823.
(sgd) S A Forgie_
Deputy President

REASONS FOR DECISION

Through its agent, SavingPoint, Target Australia Pty Ltd (Target) applied (TCO application) under the Customs Act 1901 (Customs Act) for a tariff concession order (TCO). It did so on 4 November 2011 in relation to goods described as:

“BAGS, polylactide, 100% biodegradable, having ALL of the following:

(a)        Two handles sewn into side panels;

(d)        height NOT less than 350mm;

(b)        width not less than 190mm;

(e)        rectangular base

(c)        length NOT less than 310mm”[1]

[1] Documents lodged under s 37 of the Administrative Appeals Tribunal Act 1975 (AAT Act) (T documents) at 30

If the TCO is granted in this case, the CEO must make a written order declaring that the goods that are the subject of the TCO application (TCO goods) are goods to which a prescribed item specified in the order applies.[2] A “prescribed item” is a reference to an item in Schedule 4 to the Customs Tariff Act 1995 (CT Act). As the TCO goods are not goods to which items 3817.00.10 or 3819.00.00[3] will be specified, the effect of item 50(1) of Schedule 4 to the CT Act[4] would be to permit the TCO goods to be imported to Australia at the concessional rate of duty of “Free”. A delegate of the Chief Executive Officer of Customs (CEO) decided on 28 March 2012 not to make a TCO being TC 1136823 (shopping bags).[5] Another delegate of the CEO affirmed that decision on 23 July 2012.[6]

[2] Customs Act; s 269P(3)

[3] Subheading 3817.00.10 is “--- Mixed alkylbenzenes” and heading 3819.00.00 is “HYDRAULIC BRAKE FLUIDS AND OTHER PREPARED LIQUIDS FOR HYDRAULIC TRANSMISSION, NOT CONTAINING OR CONTAINING LESS THAN 70% BY WEIGHT OF PETROLEUM OILS OR OILS OBTAINED FROM BITUMINOUS MINERALS”.

[4] “Goods that a Tariff Concession Order declares are goods to which this item applies:

[5] T documents at 128

[6] T documents at 142-157

An Australian manufacturer of bags, Adventure One Pty Ltd (Adventure One) had objected to the grant of the TCO.[7] The CEO has introduced evidence relating to Adventure One but sought to introduce evidence relating to two other Australian manufacturers of bags: Macleay Options Inc (Macleay Options) and Fresh & Green (Aust) Pty Ltd (Fresh & Green). The CEO does so on the basis that the bags produced by all or any of these manufacturers are put, or capable of being put, to a use that corresponds with a use (including a design use) to which the TCO goods can be put. He also takes the view that the goods meet the minimum Australian content requirement under s 269D of the Customs Act and are goods produced in Australia. As he also holds the view that they are goods produced in Australia in the ordinary course of business within the meaning of s 269E, the TCO application cannot meet the core criteria and so the TCO cannot be made.
[7] T documents at 84

On behalf of Target, Mr Slonim submitted that I could not have regard to additional evidence relating to bags produced by Macleay Options and Fresh & Green. He submitted that I was confined to evidence before the CEO’s delegate when, under s 269SH, he reviewed the decision initially made under s 269P. Furthermore, he submitted, I was confined to deciding whether to affirm the initial decision or to substitute another that might have been made but not to review the initial decision. I have decided, in essence, that my task is to review the operable decision. As the decision on review under s 269SH was a decision to affirm the decision made under s 269P, that means that the operable decision is that made under s 269P. There are no limitations in the Customs Act that restrict my exercising the powers to collect relevant information given under the Administrative Appeals Tribunal Act 1975 (AAT Act) and, furthermore, s 269SHA(5) contemplates that further information may be lodged before the hearing of the application in the Tribunal. Regard must always be had to notions of procedural fairness but, in this case, Target had the opportunity to address the issues raised by the additional material.

Target concedes that Adventure One produces goods in Australia (and so have the requisite minimum Australian content) in the ordinary course of business. It does not make that concession in relation to goods produced by Macleay Options or by Fresh & Green. Instead it argues that, on a proper interpretation of the Customs Act, I may not have regard to evidence relating to goods they produce. Unlike Adventure One, they have not objected to the making of the TCO. The CEO should not be permitted to tender evidence about their products. Even if I do, I should not be satisfied that they meet the minimum Australian content requirement. In so far as the use of the goods produced by any of the three manufacturers is concerned, Target contends that none produces goods that are put, or capable of being put, to a use that corresponds with a use (including a design use) to which the TCO goods can be put.

I have decided that I can have regard to evidence relating to goods manufactured by all three Australian manufacturers but that, on that evidence, I am satisfied that only Adventure One’s goods are substitutable goods produced in Australia in the ordinary course of business.

BACKGROUND

TCO goods

On the basis of the written evidence of Ms Jenny Thomas, Target’s Environmental Manager,[8] I find that Target launched a national bag strategy on 1 June 2009. The objectives of that strategy were to:
(1)cease offering plastic shopping bags to customers;
(2)get customers to think about whether they needed a bag;
(3)encourage customers to take their own reusable bags to the store; and
(4) offer customers, who needed a shopping bag, a choice of a bag more environmentally friendly than a plastic bag.
[8] Exhibit B

In launching its strategy, Target started to import a non-woven polypropylene reusable red shopping bag in November 2011. The bags are placed in a prominent position at the front of Target stores in order to attract customers’ attention before they made their purchases. I had the larger version costing $2 in evidence but it had originally been planned to import a smaller version which would be marketed for $1. Printed in white across the middle of the front and back of the bags are sketches of a girl, a butterfly, a smiley face, a beetle and a bicycle. At the bottom of the front and back are sketches of two girls with one marked “me” and the other “sister”. To the left of those sketches are the words:

“The Alannah and Madeline Foundation

Keeping children from violence”

On each of the gussets is a stylised depiction of the Target logo. Written under that are the words:

“Target

100% happy”

Attached to and holding the handles together is a swing tag. On one side, the bag is described as a “Biodegradable Reusable Bag”. The description is followed by the statement that:
“All profits from the sale of this bag would support The Alannah and Madeline Foundation’s Buddy Bags Program.”

On the basis of Ms Thomas’s evidence, I find that the bags are made from polyactide, which is a biodegradable thermoplastic made from cornstarch and tapioca. It is certified under the Australian Standard AS4736/2006 entitled “Biodegradable plastics – Biodegradable plastics suitable for composting and other microbial treatment.” When used and kept in the correct conditions, the bag has a two year usable lifespan but, if placed in compost, will decompose in approximately 45 days.

Returning to the swing tag, details the Alannah and Madeline Foundation’s website and reference to “Keeping children safe from violence” follow the description of the bag. On the basis of Ms Thomas’s evidence, I find that, through the Buddy Bag Program, children in care receive a Buddy Bag containing essential toiletries, pyjamas, singlets, socks, underwear, a pillow slip, photo frame and teddy bear.

On the other side of the swing tag, reference is again made to the bag’s being a biodegradable, reusable shopping bag, Target’s website, the bar code, goods’ description and price, Target’s “100% Happy” slogan and Target’s advice to:
“Help preserve the world we live in by placing this bag in the compost at the end of use”.

Adventure One goods

Four examples of Adventure One goods were introduced in evidence. Three are bags with carry handles and the fourth is more akin to a sack with a drawstring closure.

Beginning with the bag akin to a sack,[9] Mr Millea tendered it in evidence holding a number of empty boxes. In her evidence, Ms Lee Williams, who is Adventure One’s Administration Manager, described it as a “general purpose loose sack”. I accept its description as a “loose sack”. Ms Williams has not described the material from which it is made but it appears to be an open weave synthetic material, which has the appearance of nylon, through which the contents can be seen. The boxes found in the bag are an empty 1kg box of laundry powder, an empty 420g box of Oats, a box for holding 30 metres of aluminium foil, an empty one litre box of UHT milk, a box to hold one litre of milk, a box for holding 290g of frozen food, two empty 330ml soft drink cans, an empty 1kg jar of yoghurt and an empty 350ml bottle of mineral water. The bag has an elliptical base of approximately 460mm in width and 360mm in height. A single width of fabric is sewn onto the base and is joined with a single side seam. The length of that seam is approximately 760mm and the stitching has come apart for a length of approximately 120mm.[10] The top closes with a drawstring running through a pocket formed by folding the fabric over and stitching it. The bag carries the name “One Planet” on the fabric of the bag and on its drawstring.
[9] Exhibit 6
[10] Ms Lee Williams, Adventure One’s Administration Manager, described the dimensions as 600mm (width), 800mm (height) and 800mm (depth): Exhibit 2 at [7]

Exhibit 3 is a large satchel measuring 270mm (width), 350mm (height) and 90mm (depth).[11] Having examined the bag, I am satisfied that, except for the absence of a Plasto cover protecting the coloured print fabric on the front flap, it matches the description given on the first page of Exhibit C:
“Rectangular shaped satchel with front flap Velcro closure, four internal pockets (two with zips), mobile phone pocket, business card holder, key clip, and adjustable long strap. Lightly padded to protect an ipad or laptop. This satchel has a ‘Plasto’ covered print front with black back and lining. Fits A4.”

Exhibit 3 was tendered complete with the following contents, each of which was empty: a 600ml mineral water bottle, a 1.25L soda water bottle, a 200g tomato container, two 175g yoghurt containers and a toiletry box.

[11] Exhibit 2 at [7] and see also Exhibit C at 1

The second page of Exhibit C describes the fabric used on the front flap and its designer. As for the use to which the goods may be put, that page reads:
“The Large Satchel is big enough to take a small/medium laptop, with light padding to protect your precious electronics. The rectangular shape makes it comfortable, practical, and easy to pack and organise. The Velcro closure on the front flap keeps your goodies safe, while four internal pockets (two with zips), a phone pocket, business card holder and key clip keep you organised. The long strap is adjustable for comfort.”

Exhibit 5 is described as an overnight bag. It measures 370mm (width), 400mm (height) and 200mm (depth). It has four pockets inside with a key clip and closes with a lockable zip. Two fabric handles are attached to the top. On the front and back, protected by Plasto covering, is printed fabric. The handles, sides and base, as well as the zip and internal fabric, are black in colour. Padding is placed in the base but not in the sides. The overall shape of the bag can be described, as does Adventure One, as a bowling bag shape. It is described as “perfect for weekends away”.[12]
[12] Exhibit C at 3

Exhibit 4 is a Tow bag measuring 450mm (width), 330mm (height) and 160mm (depth). It is similar in size and style to the large satchel in Exhibit 3 but has buckles rather than Velcro as a front fastener. Rather than having an entire front flap of printed fabric as a stylistic detail, it has a strip of fabric reminiscent of black and white mattress ticking measuring 60mm strip at the bottom edge of the front flap.

Macleay Options

Mr Millea tendered an affidavit sworn by the Chief Executive Officer of Macleay Options, Mr Michael Milicevic, and another by Ms Lynn Veale, the Production Manager of one of its businesses, Threads. Macleay Options is a registered charity, which accepts donations from the public, receives government grants to support its work and engages in several business enterprises. Among its business enterprises is Threads, which makes a range of hessian and calico bags, including shopping bags. Macleay Options employs 20 disabled persons in this business together with another 30 who are either carers or managers.[13]
[13] Exhibit 9 at [5]

Attached to Ms Veale’s affidavit are pictures of various bags made from calico or calico and hessian including school bags, library bags, shoulder bags, singlet bags and promotional bags. The bags come in plain calico colour, with or without logos and with or without coloured calico. They come in a variety of sizes and are capable of carrying 10kg or more. The calico shopping bag is normally made in a size of 450mm (height), 80mm (width) and 400mm (length) although they can be made in any size.[14]
[14] Exhibit 9 at [16]

The bags can be used for any purpose associated with shopping or for purposes such as carrying wine, as restaurant take away bags, grocery bags and fruit and vegetable bags.[15]
[15] Exhibit 9 at [14]

Fresh & Green

Mr Michael Huie is the Managing Director of Fresh & Green. It makes a variety of bags in a variety of sizes and their production is constant. Apart from their sizes and the quantities in which they are sold, I have only the names given to each type of bag. They are: Press Seal (Zip Lock) Bags, Plain Bags, Layflat & Centrefold Sheeting, Degradable Bags, White Boutique Bags, Dispenser Rolls, Low/High Density Garbage Bags, Drum Liners, Pallet Caps, Gussetted Shrink Pallet Bags, Gussetted Shrink Tube and High Density White Garment Bags.[16] Fresh & Green also manufactures Die Cut Shopping Bags and can custom make bags.[17]
[16] Exhibit 7 at “C”
[17] Exhibit 7 at [9]-[10]

THE SUBMISSIONS

On behalf of Target, Mr Slonim developed submissions directed to establishing that I could not have regard to the affidavit evidence of Mr Milicevic, Ms Veale and Mr Huie. Mr Slonim based his first submission on the following propositions, which he developed:
(1)The decision under review is the decision made on internal review under s 269SH of the Customs Act and not the decision made on the TCO application by the CEO’s delegate under s 269P.
(2)The process of internal review is prescribed by s 269SH and ss 269SH(4) and (7) limit the submissions, information, documents and material to which the CEO may have regard.
(3)The Tribunal stands in the shoes of the decision-maker whose decision is under review and cannot exercise power that was not available to that decision-maker. Therefore, the Tribunal is limited to the submission, information, documents and material available on internal review and may not have regard to any other.
(4)The case of Comptroller General of Customs v Members of the Administrative Appeals Tribunal[18] (Sanyo case) cannot be relied on to support the contrary position because:
[18] (1994) 123 ALR 140; 32 ALD 463; Hill J
(a)when it was decided, the Customs Act provided that the Tribunal reviewed the decision made by the delegate and not, as it does now, the decision made on internal review;
(b)the Customs Act then required the application of a market test and the concomitant consideration of economic evidence for the grant of a TCO;
(c)the then Comptroller General did not have a discretionary power to revoke TCOs on his own initiative; and
(d)the Comptroller General did not have wide-ranging powers to make his own enquiries during the processing of a TCO application;
(e)the parties seeking to lead additional evidence in the Sanyo case were parties joined to the proceeding. One was an objector to the original application for a TCO and the other supported the applicant for the TCO. The CEO’s witnesses have not claimed to be parties affected by the decision and have not expressed any interest in the outcome of either the administrative process involved in considering the application for a TCO or in the proceedings in this Tribunal; and
5.If additional material may be submitted, it should not be admitted because:
(a)the CEO did not refer to additional witnesses in his Statement of Facts and Contentions, to the substance of their evidence or to their producing substitutable goods;
(b)the CEO sought leave to lodge a late witness statement of Lee Williams but did not advert to the possibility of his lodging statements from additional witnesses, seek leave to do so or lodge an Amended Statement of Facts and Contentions.

On behalf of the CEO, Mr Millea rejected the notion that evidence could only be given about goods produced by Macleay Options and by Fresh & Green if they had objected to the making of the TCO. He said that the evidence had been tendered to assist the Tribunal to come to its decision. He relied on the judgment of Hill J in Sanyo case which, he submitted, is consistent with the case of Shi v Migration Agents Registration Authority.[19] In the latter case, Mr Millea referred to passages from the judgment of Kirby J in which he noted that, while the terms of a particular enactment may lead to a different conclusion, the general position is:
“ When making a decision, administrative decision-makers are generally obliged to have regard to the best and most current information available. This rule of practice is no more than a feature of good public administration. When, therefore, the Tribunal elects to make ‘a decision in substitution for the decision so set aside’, as the Act permits, it would be surprising in the extreme if the substituted decision did not have to conform to such a standard.”[20]
[19] [2008] HCA 31; (2008) 235 CLR 286; 248 ALR 390; 48 AAR 345; 103 ALD 467; 82 ALJR 1147; Kirby, Hayne, Heydon, Crennan and Kiefel JJ
[20] [2008] HCA 31; (2008) 235 CLR 286; 248 ALR 390; 48 AAR 345; 103 ALD 467; 82 ALJR 1147 at [41]; 299-300; 400; 356; 477; 1156

Mr Slonim also addressed the substantive issue in the case relating to whether or not there are substitutable goods produced in Australia. He did not challenge a conclusion that Adventure One manufactures the bags in Australia in the ordinary course of business within the meaning of s 269E of the Customs Act.[21] Therefore, the bags come within the second limb of the core criteria in s 269C but he contended that they do not come within the first limb of being substitutable goods i.e. that they are put to a use, or are capable of being put to a use that corresponds with the use to which the TCO goods can be put. As they are not substitutable goods, the core criteria are met.
[21] Mr Slonim did not make such a concession in relation to any other bags manufactured in Australia.

In deciding whether the TCO goods are substitutable goods, he submitted, I must first identify the actual uses to which the TCO goods are put and the uses to which they can reasonably be put. He relied on the authority of Chief Executive Officer of Customs v Toyota Material Handling Australia Pty Ltd[22] (Toyota case). Having done that, I must then ask whether the goods produced by Adventure One are, or can reasonably be used, for any of the TCO goods’ actual or potential uses as identified. When I do that, Mr Slonim continued, I will find that the TCO goods are large reusable biodegradable shopping bags. As bags, they can conceivably be used for carrying almost anything, including personal items, but they are eminently unsuitable for that task as their use for that purpose is impractical. Therefore, such a use is unreasonable. The bags produced by Adventure One can also be used to carry a variety of goods, including small purchased items, but it is apparent from their features that they are not intended for, or suitable for, use as shopping bags.
[22] [2012] FCAFC 78; (2012) 203 FCR 129; Finn, Gilmour and Perram JJ

Mr Millea did not disagree with Mr Slonim’s formulation of the test following the Toyota case so much as with its application. He developed the test by reference to authority submitting, in essence, that:
(1)the comparison to be made between the uses to which the TCO goods are and can be put and the uses to which other goods are and can be put is to be made by reference to “reasonable uses”[23] although a “use” is not a reference to sensible commercial uses.[24] An overlap of uses is sufficient to establish a corresponding use.[25] All that is required is that one of the uses, including a design use, to which Australian produced goods are capable of being put corresponds with one of the uses to which the TCO goods can be put.[26]
(2)the comparison is not made by reference to price, the relative qualities and/or operation of the goods, whether they compete in the same market, the fact that the overlap of uses is neither a practical nor commercial use of the goods, they are not made of the same material, that one is biodegradable and one is not or that the TCO goods are specifically designed for a particular use and no Australian manufacturer produces goods specifically designed for that particular use.
[23] Toyota case [2012] FCAFC 78; (2012) 203 FCR 129 at [4]; 130
[24] Toyota case [2012] FCAFC 78; (2012) 203 FCR 129 at [19]; 133
[25] Toyota case [2012] FCAFC 78; (2012) 203 FCR 129 at [10]-[14] and [18]-[19]; 131-132 and 133
[26] Riverwood Cartons Pty Ltd v Chief Executive Officer of Customs [1997] FCA 817; (1997) 77 FCR 493; 25 AAR 382 at 497; 386

Mr Millea submitted that there is evidence to support my finding that the goods produced by Macleay Options and Fresh & Green and manufactured in Australia are goods that are put, or capable of being put, to a use that corresponds with a use to which the TCO goods are put. He also submitted that there is undisputed evidence in the form of the statements by Mr Huie, on behalf of Fresh & Green, and Mr Milicevic and Ms Veale on behalf of Macleay Options that the Australian content of the goods they manufacture is at least 25%.

CONSIDERATION

Amendment of s 273GA(1)(n) to change right of review from original decision under s 269P(1) to review of internal review decision under s 269SH

Mr Slonim submitted that I am limited to the decision that the CEO makes on review under s 269SH(4) so that I am limited to reviewing, in this case, the decision to affirm the original decision made under s 269P and not the decision to refuse to make the TCO. I do not accept his submission for it is consistent neither with the historical development of s 273GA(1)(n), which provides for review of certain decisions made by the CEO under Part XVA, or with authority.

A.Historical development of s 273GA(1)(n)

At Attachment A to these reasons, I have summarised the relevant provisions of Part XVA of the Customs Act. These provisions were largely put in place by the Customs Legislation (Tariff Concessions and Anti-Dumping) Amendment Act 1992 (1992 Amendment Act) which repealed and substituted Part XVA in its entirety.[27] Although each step was subject to various qualifications and specified various criteria, it is enough to note that, in the barest outline, Part XVA provided for an application to be made for a TCO, for a decision to be made under s 269P and for that decision to be internally reviewed under s 269SH. Under s 269SH(1), an affected person who objected to the making of a decision had 28 days after gazettal of a decision on a TCO application within which to apply to the CEO for review of the decision. An “affected person” in relation to a decision on a TCO application included the applicant for a TCO, any person who lodged a submission in response to the invitation issued under s 269K and any person who was not reasonably able to lodge such a submission.[28] At the same time, the Customs Act provided for a second avenue of review that ran side by side with that provided in s 269SH(1). It was set out in s 273GA(1)(n), which provided: “Subject to this section, applications may be made to the Administrative Appeals Tribunal for review of: … (n) a decision of the Comptroller under subsection 269P(1)”.
[27] Act 89 of 1992; 1992 Amendment Act; s 10
[28] Customs Act; s 269SH(13)

Section 273GA(8) provided that the word “decision” had the same meaning as in the AAT Act but that legislation was not otherwise mentioned. In particular, no reference was made to any variation of the time limits within which an application had to be made to the Tribunal. Such a variation was permitted by s 25(6) of the AAT Act but, in its absence, an application for review had to be made within 28 days or within such further period as allowed by the Tribunal under s 29(7).

An affected person could not choose which avenue of review to pursue for s 273GA(6A) provided:
“An application may not be made to the Tribunal in respect of a decision referred to in paragraph (1)(n) … unless:
(a)the decision has already been the subject of an application for reconsideration under section 269SH; and
(b)the person who makes the application to the Tribunal is an affected person within the meaning of that section who is adversely affected by the decision on reconsideration.”[29]
[29] Inserted by 1992 Amendment Act; s 19(1)(b)

This raised a practical problem caused by the fact that the CEO had 90 days from the date of lodgement of the application for reconsideration within which to make a decision. That was a period far greater than the 28 days allowed for an application to be made to the Tribunal under s 29 of the AAT Act. Of course, a person could apply to the Tribunal for an extension of the time within which to make the application but there is a profound difference between lodging an application within a time period and seeking an extension of that time. Clearly, Parliament had intended that an application be made as of right to the Tribunal for review of the CEO’s decision within the time periods. What it had done in practice, though, was to leave the entitlement of a person to seek review to the discretion of the Tribunal under s 29(7). That was a discretion that depended not only on the person’s otherwise being entitled to seek review under s 273GA of the Customs Act but on the Tribunal’s being, under s 29(7) of the AAT Act, “satisfied that it is reasonable in all the circumstances …” to extend the time within which to make an application.

With effect from 1 July 1995, the reference to the Comptroller General became a reference to the CEO. That came about by s 18 of the Customs, Excise and Bounty Legislation Amendment Act 1995 (1995 Amendment Act),[30] which also amended s 273GA(1)(n) to add the words I have highlighted below.[31] That provision now permitted an application to be made to the Tribunal for review of:
“a decision of the CEO under section 269SH on a reconsideration of a decision of the CEO under subsection 269P(1)”.

As the Customs Act no longer permitted an application to be made on the CEO’s initial decision under s 269P(1), the practical problems and their effective diminution of an affected person’s right of review were removed.[32]

[30] Act 85 of 1995

[31] 1995 Amendment Act; s 6, Schedule 4, item 64

[32] This was recognised at [357] of the Replacement Explanatory Memorandum to the Customs, Excise and Bounty Legislation Amendment Bill 1995 (which became the 1995Amendment Act) when referring to the amendment effected by ; s 6, Schedule 4, item 64.

At the same time, the 1995 Amendment Act repealed s 273GA(6A) because there was no longer any need to provide that an application could not be made to the Tribunal unless the decision had been the subject of internal review. The right of review existed only in relation to a decision of that type. In the place of the former s 273GA(6A), Parliament enacted a new provision stating:
“An application may not be made to the Tribunal in respect of a decision under s 269SH on a reconsideration of a decision of the CEO under subsection 269P(1) … unless the person who makes the application to the Tribunal is:
(a)an affected person within the meaning of section 269SH; and
(b)is adversely affected by the decision on the reconsideration.”[33]
[33] Inserted by 1995 Amendment Act; s 6; Schedule 4, item 66

It is clear from the historical development of s 273GA(1)(n) that Parliament did not intend to change the right to review when it amended s 273GA(1)(n) in the 1995 Amendment Act. All that it wanted to do was to ensure that the right it had already attempted to give to have the original decision reviewed could be exercised effectively and without qualification. If the decision of the CEO was to affirm the original decision under s 269P(1), then that was the decision under review. If the CEO decided to substitute another decision as he is permitted to do under s 269SH(4), then the substituted decision takes the place of the original decision and it is the decision under review. That comes about because s 269SH(8) provides that the substituted decision is taken to have been made when the original decision was made. Under s 269SH(9), it comes into force on the day the original decision would have come into force. In all respects, the substituted decision takes the place of the original decision.

B.The Tribunal’s role

Although Parliament may prescribe a different course, it is generally the case that, when the Tribunal is given power to review a decision made on internal review to affirm or vary a decision or to set it aside and substitute another, it is given power not to review that decision but power to review the operative decision. That is to say, it is given power to review the original decision that has been affirmed or, if varied, the original decision as varied. If the original decision has been set aside and another substituted, it is given power to review the substituted decision.

The power given to the Tribunal when ss 25(1) and (4) of the AAT Act and s 273GA(1)(n) of the Customs Act are read together is of that sort. In Yolbir v Administrative Appeals Tribunal and Anor,[34] the Full Court of the Federal Court considered another example of it in the Social Services Act 1947. In doing so, it expressly approved a passage from the Tribunal’s decision in Re Gee and Director-General of Social Services[35] (Re Gee) when it said:
“… It is a necessary inference from the Administrative Appeals Tribunal Act that the function of the Tribunal is to review on the merits decisions which affect a person’s interest. See per Bowen CJ and Deane J in Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 at 68, and Smithers J in Collector of Customs (New South Wales) v Brian Lawlor Automotive Pty Ltd (1979) 2 ALD 1 at 23. It is inconsistent with the tenor of the Act that the Tribunal should concern itself not with an operative decision which affects a person’s rights but merely with a decision which has simply affirmed or varied the operative decision. Moreover,… the Tribunal would not be able effectively to use the power conferred by s 43 of the Act to set aside the decision under review and to remit the matter for reconsideration in accordance with any directions or recommendations of the Tribunal. …”[36]
[34] (1994) 48 FCR 246; 33 ALD 8; 19 AAR 15; Davies, Burchett and O’Connor JJ
[35] (1981) 3 ALD 132; 58 FLR 347; Davies J, President, and Messrs Cusack and Prowse, Members
[36] (1981) 3 ALD 132; 58 FLR 347 at 141; 357 cited with approval in Yolbir v Administrative Appeals Tribunal and Anor (1994) 48 FCR 246; 33 ALD 8; 19 AAR 15 at 248-249; 10; 17-18

Parliament can decide to take an approach different from that described in Re Gee but there is nothing in the Customs Act to suggest that it has done so in this instance. The provisions I have summarised in Attachment A review a process of information gathering and of decision-making that is intended to lead to a decision that reflects the TCO that should, or should not, have been made at the time the application for it was lodged. It is a process that is concerned with the practicalities of the world of import and manufacture rather than with technical legal arguments. Only an interpretation of s 273GA(1)(n) that is concerned with the operative decision is consistent with that world; not one that is limited to the formal decision affirming that operative decision or substituting another operative decision for the first.

May the parties lodge further material in the Tribunal?

Mr Slonim submitted that I should not have regard to the affidavits lodged by those connected with Macleay Options and Fresh & Green on the basis that the Customs Act does not permit the Tribunal to have regard to material that was not before the CEO on internal review. If I do not agree with him on that point, which I do not, his second ground is that I should use my discretionary powers to reject it.

A.The Sanyo case

Mr Slonim submitted that the Sanyo case no longer represents good law since it was decided before the changes to s 273GA(1)(n) made by the 1995 Amendment Act and so when the application was made to the Tribunal in respect of the CEO’s decision under s 269P(1). In that case, Hill J was required to decide whether the Tribunal could have regard to additional material lodged with it by the party it had joined to the proceedings, Akai Pty Ltd (Akai), and by Matsushista Electric Co (Matsushista) whom it had not joined but who supported Sanyo Australia Pty Ltd (Sanyo) in its application for a TCO. After reviewing the structure of Part XVA, Hill J identified the particular decision under review:
“… [T]he structure of the provisions is that in each case, whether involving the original decision, internal review or review by the tribunal, the question at issue is whether the application meets the core criteria. The restrictions in ss 269P(1) and 269SH(4) go not to the statement of the issue but to the material which is to be considered by the comptroller in each of the two decision-making processes which the Act entrusts to him. When a right of review to the tribunal is thereafter invoked the intention of parliament was, in my view, that the tribunal operate in the ordinary way and review the decision of the comptroller that the application did not satisfy the core criterion but without the limitations imposed upon the comptroller under ss 269P(1) and 269SH. These limitations are limitations which, to adopt what was said by the tribunal, must be observed by the comptroller in the making of the original decision and the internal review decision, but they are not themselves part of the definition of the decision itself.”[37]
[37] (1994) 123 ALR 140; 32 ALD 463 at 150; 472

His Honour then went on to review the role of the Tribunal and restrictions that Parliament might impose on it. Restrictions of that sort are found in certain provisions of the National Health Act 1953 considered by the Full Court of the Federal Court in Hospital Benefit Fund of Western Australia Inc v Minister of Health, Housing and Community Services[38] (HBF case). In that case, the Tribunal was required to review a decision at a certain point in time. The decision concerned changes a health insurer had made to its rules to impose a five year waiting period before certain hospital benefits could be obtained. The Tribunal was obliged to consider the same question as that considered by the decision-maker whose decision is under review i.e. whether the change imposed an unreasonable or inequitable condition affecting the rights of any contributors. In that case, the Full Court said:
“ In the present case, the question before the primary decision-maker (the delegate of the minister) was whether, at the time it took effect, the change imposed an unreasonable or inequitable condition, not whether, in light of developments over the ensuing three years until the tribunal hearing, the effect of the rule change was to occasion a state of unreasonableness and inequity to contributors. Of course, in considering the position as at the date of the rule change, the tribunal is not confined to the historical position. It is entitle to receive evidence as to prospective developments in relation to IVF, as they appear at the date of the rule change. The reason is that, in evaluating the effect of the change as at that date, account may be taken of predictable developments. But the evidence must be related back to the date of the change.”[39]
[38] [1992] FCA 599; (1992) 39 FCR 225; 111 ALR 1; 28 ALD 50; 16 AAR 566; Wilcox, Burchett and French JJ
[39] [1992] FCA 599; (1992) 39 FCR 225; 111 ALR 1; 28 ALD 50; 16 AAR 566 at 234; 11; 59; 575

The restrictions on the evidence to which the Tribunal could have regard in the HBF case was determined by the National Health Act 1953 in relation to the particular decision under review. The Full Court in the Sanyo case did not find the Customs Act to impose similar restrictions.

B.Are there any restrictions imposed by the Customs Act on the lodgement of documents, information or material?

In deciding whether Part XVA of the Customs Act imposes any restrictions on the documents, information or material that may be lodged, I do not think it relevant to have regard to the changes made to that Part since the Sanyo case was decided. In particular, I do not think it relevant whether it did, or did not, provide for such matters as a market test, give the CEO a discretionary power to revoke TCOs on his own initiative or provide for review of the original decision rather than for review of the original decision as reviewed by the CEO. What I do think relevant are the terms of the Customs Act as they are presently drafted.

B.1The pattern of information gathering under Part XVA before an application is made to the Tribunal

When I look at those provisions, I do not think that, in reviewing the CEO’s decision, I am limited to the material before the CEO on internal review under s 269SH. The summary I have set out in Attachment A reveals a pattern of information gathering throughout the process from the lodgement of the TCO application to review by the Tribunal. Certainly, the pattern is not without constraints but it is a pattern that allows for an orderly collection of the material, a consideration of the TCO application and review of the decision made on that application. It is not a pattern that requires that documents relate to a person’s own particular circumstances as it were.

That is consistent with the context in which Part XVA must operate. An applicant for a TCO, for example, is not limited to lodging documents that relate to its TCO goods. To impose such a limitation would be contrary to the obligation imposed on it when it lodged its TCO application. That obligation, imposed by s 269FA, is to establish that there are reasonable grounds for asserting that the application met the core criteria. It is not an unfettered obligation as it was obliged to establish that on the basis of all the information it had, or could reasonably be expected to have, and all inquiries that it had made or could reasonably be expected to make. Given that the core criteria cannot be established without a comparison of the goods the TCO applicant wishes to import, or is importing, and goods produced in Australia, it necessarily follows that not all of the documents lodged by a TCO applicant will relate to its particular circumstances.

The source from which the CEO obtains information is not limited either. In screening a TCO application under s 269H, the CEO may rely on information of which he is aware regarding a producer of substitutable goods. The process of gazettal of a TCO application under s 269K invites persons other than the TCO applicant and the CEO to make submissions and provide information to the CEO. Under ss 269M(1)-(3), the CEO may invite submissions from a person whom he considers might wish to oppose the making of the TCO application. Under s 269M(4), he may obtain information, documents or material relevant to the consideration of the TCO application from any person, including the TCO applicant or a person who has lodged a submission. It follows that, in making a decision on the TCO application, the CEO is not limited to relying only on information, documents or material obtained from a person who objects to the TCO application under s 269M by making a submission.

Section 269SA makes it clear that the CEO can have ongoing regard to material received during the course of a consideration of a TCO application regarding the commencement or cessation of the production in Australia of substitutable goods. Information of that sort is relevant in determining the time for which a TCO application remains in force or when it commences.

It may be arguable that, under s 269SH(4), the CEO is limited in the internal review process to information, documents and material he was entitled to take into account in deciding the TCO application together with any additional material produced by the applicant for reconsideration under s 269SH(2) but I do not express any view one way or the other. All that I note is that the internal review process does allow for regard to a limited range of additional documents, information or material to be considered.

B.2The pattern of information gathering permitted after an application is made to the Tribunal for review of a TCO decision

I do not accept Mr Slonim’s contention that the Tribunal is limited to those documents that were before the CEO on internal review. Section 269SHA(5) expressly recognises that a party to the proceedings may wish to rely on further documents and neither it nor Part XVA qualifies the powers given to the Tribunal under provisions such as s 33 of the AAT Act to obtain further material. I will explain my reasons for coming to those conclusions below.

B.2.1Section 269SHA(5) does not restrict source or nature material lodged by a party otherwise than by relevance

Apart from an implicit requirement that it be relevant to the issue, nothing in s 269SHA(5) qualifies the source of the documents which a party to a proceeding might wish to “file” in the Tribunal provided they are filed by a party. It provides:
“Any document on which a party to proceedings for review of a reconsideration decision before the Administrative Appeals Tribunal intends to rely must, subject to the provisions of the Administrative Appeals Tribunal Act 1975:
(a)be filed with the Tribunal; and
(b)be served on the other parties to the proceeding;
not less than 28 days before the date set for hearing, unless the Tribunal makes an order permitting the documents to be filed and served within a lesser period or to be introduced at the hearing without being so filed or served.”

A person who has made a submission under s 269M is an “affected person” entitled to apply for review of the decision made on a TCO application just as the person who applied for it is entitled to apply. If they apply for review or if they are joined as a party to the proceeding,[40] they are parties for the purposes of s 269SHA(5).[41] The documents may relate to their own particular goods or to those produced by another provided they are relevant to whether or not the core criteria have been satisfied. The only restriction that s 269SHA(5) places upon those documents is the time within which they must be “filed” with the Tribunal and served on other parties. Unless the Tribunal orders a shorter period before the hearing, that must be done not fewer than 28 days before the date set for hearing.
[40] AAT Act; s 30(1A)
[41] AAT Act; s 30(1)

The documents referred to in s 269SHA(5) cannot be read as limited to the documents that were already before the CEO in making the decision on internal review under s 269SH for those documents can be expected to have been incorporated in the documents lodged by the CEO under s 37(1)(b) of the AAT Act. Nothing in Part XVA or in the Customs Act generally qualifies the CEO’s obligation to comply with s 37 of the AAT Act or with the powers of the Tribunal under s 33 to make directions to provide further information.

B.2.2Section 269SHA(5) and Part XVA provide only limited qualification to the powers conferred on the Tribunal under the AAT Act

Under the AAT Act, the Tribunal has a range of powers to require or permit parties to lodge further documents or material. It can use its power to give directions under s 33 of the AAT Act to a party. The directions that the Tribunal might give under that provision include those that:
“(a) require any person who is a party to the proceeding to provide further information in relation to the proceeding;…”.[42]

The exercise of that power would have to take into account the time limit within s 269SHA(5) but there would seem to be no other qualification inherent in Part XVA of the Customs Act.

[42] AAT Act; s 33(2A)(a)

There would also seem to be no qualification of any other provisions of the AAT Act. That would leave the Tribunal free to “… inform itself on any matter in such manner as it thinks appropriate”[43] provided always that it gives each party to the proceeding “… a reasonable opportunity to … inspect any documents to which the Tribunal proposes to have regard in reaching a decision in the proceeding and to make submissions in relation to those documents.”[44] It may be unlikely to do this of its own volition in a case such as this but, if asked by a party to the proceeding, it may choose to exercise the power it is given by s 40(1A) of the AAT Act to summon a person to give evidence and/or to produce books, documents or things in that person’s possession, custody or control.
[43] AAT Act; s 33(1)(c)
[44] AAT Act; s 39(1)

The lack of qualification of these provisions of the AAT Act suggests that the Tribunal may have regard to further information lodged by the parties or that has been produced in response to a summons. That suggestion becomes something more than a suggestion when regard is had to s 269SHA(5) of the Customs Act.

C.The affidavits lodged on behalf of the CEO
C.1Background

Mr Slonim referred to the content of the documents lodged on behalf of the CEO. He referred in particular to the Statement of Facts and Contentions of the Respondent lodged on 14 December 2012. As Mr Slonim submits, it refers only to goods produced by Adventure One as substitutable goods and to no others. That was consistent with the approach taken by the primary decision-maker and by the decision-maker on review. It was also consistent with that taken in the Applicant’s Statement of Facts and Contentions, which responded to the issues that Target identified as arising from those decisions. They centred on the goods produced by Adventure One.

At a directions hearing held before a Conference Registrar on 19 December 2012, Mr Millea indicated that the CEO would be calling the owner of Adventure One as a witness and would lodge a witness statement within a fortnight. The Conference Registrar made a written direction reflecting the standard form of directions generally issued in the Tribunal in such circumstances. It directed that:
“1. On or before 18 January 2013, the Respondent give to the Tribunal and the Applicant:
a.a statement of the evidence to be given by each witness intended to be called at the hearing; and
b.all reports, records and any other documents on which the Respondent intends to rely at the hearing.
2.If the Respondent does not intend to rely on any statements, reports, records or documents at the hearing, the Respondent will notify the Tribunal and the Applicant of this in writing on or before 18 January 2013.
3.On or before 9 January 2013, the Applicant and Respondent must give to the Tribunal and the other party a Hearing Certificate outlining availability for Hearing in the months of February, March and April 2013.”

No provision was made in the order for the applicant to lodge evidentiary material on which it wished to rely. It seems to me that this was a reasonable approach to take at the time in light of two matters. The first is that the Conference Registrar had made an earlier direction dated 15 October 2012 directed to the applicant in similar terms and on the same issue.[45] She amended it on 5 November 2012 but that was simply to allow additional time for lodgement. The second matter is that the CEO had indicated that only one witness statement would be lodged. Given that it was a witness statement by Ms Williams who owned Adventure One and that Adventure One’s goods and production were at the heart of the CEO’s reasons for refusing the TCO, it could be expected that Target would not need to respond. It could be expected that Ms Williams would simply be called to give evidence supporting contentions already made.
[45] It had also directed the lodgement of Statements of Facts and Contentions.

When the direction is understood in this light, the order to lodge Hearing Certificates some nine days before the date for lodgement of the evidentiary material also makes sense. There would be nothing coming out of that evidentiary material that was not expected.

On 9 January 2013 on behalf of Target, SavingPoint sent a Hearing Certificate to the Tribunal’s Registry by email and copied it to Mr Millea. It stated that Ms Jenny Thomas of Target would be called to give evidence unless not required for cross-examination and that, subject to counsel’s advice, Ms Lee Williams would be required for cross-examination. Ms Williams was the witness to whom reference had been made at the directions hearing held on 19 December 2012.

Also on 9 January 2013, Mr Millea lodged a Hearing Certificate dated 7 January 2013 by email and copied it to Mr Slonim. At the same time, he lodged a witness statement of Ms Williams. The Hearing Certificate stated that Ms Williams would be called to give evidence and that the CEO did not require Target’s witness for cross examination.

On 18 January 2013, the CEO lodged an amended Hearing Certificate also dated 7 January 2013 and two further affidavits by persons unconnected with Adventure One. This was copied to Target’s representatives including Mr Slonim. That Hearing Certificate now referred to the CEO’s requiring Target’s witness for cross-examination and to his calling four witnesses in all.

The additional affidavits and the CEO’s wishing to call them cast the matter in a new light. It was now implicit from a reading of the affidavits and the Hearing Certificate that the CEO wanted to rely on there being substitutable goods other than those produced by Adventure One. What the CEO did not do was to make his position explicit. He did not seek to lodge an amended Statement of Facts and Contentions and he did not expressly state that this was so in the email correspondence to the Tribunal and copied to Target’s representatives.

At one level it might be thought that nothing had changed. The issue still remained one of determining whether the TCO goods met the core criteria and so whether there were substitutable goods produced in Australia in the ordinary course of business. That is so but that issue has to be considered in relation to goods produced by each manufacturer said to produce goods of that description. That requires evidence directed to the particular goods and to their manufacture. Different issues may arise in relation to each and a TCO applicant might want to challenge different aspects of the evidence given by each. Questions arise as to whether an applicant should be given an opportunity to consider the evidence and to lodge countering evidence if it chose to do so.

On 24 January 2013, the Tribunal was constituted and listed for hearing on 7 March 2013. The Tribunal’s Registry notified each of the parties of that listing by email sent on 29 January 2013.

Saving Point responded by writing to the Tribunal on 1 February 2013 for a directions hearing so that it could raise its objection to the lodgement of the additional witness statements. By this time, the matter had been listed for hearing in March 2013. A directions hearing was held by the member then constituted to hear the matter. He noted that Target no longer objected to the lodgement of the additional witness statements but reserved the right to contest their admissibility.

C.2 Admissibility and procedural fairness

On the basis of my understanding of the way in which the provisions of the AAT Act and those in s 269SHA(5) operate, I think that evidence relating to goods produced by Macleay Options or Fresh & Green is admissible. It was produced within the time limit set out in the Conference Registrar’s directions and within that provided for in s 269SHA(5).

Admissibility is one thing and fairness another. I have referred to my statutory obligation under s 39 of the AAT Act to give each party a reasonable opportunity to present its case and to inspect, and make submissions on, documents to which I propose to have regard in reaching a decision. Giving the parties a “reasonable opportunity” to present a case is one aspect of natural justice, or of procedural fairness.[46] I would add that the decision-maker’s obligation to “… use his or her best endeavours to assist the Tribunal to make its decision in relation to the proceeding”[47] may well be behind the CEO’s wish to rely on additional evidentiary material at a late stage but his obligation cannot modify my obligation to ensure procedural fairness to each of the parties to a proceeding.
[46] Russell v Duke of Norfolk [1949] 1 All ER 109 at 118 cited with approval in Kioa v West (1985) 59 CLR 550 at 613 per Brennan J
[47] AAT Act; s 33(1AA)

What amounts to procedural fairness “… in a given situation depends upon the circumstances. And it is not a one-sided business.”[48] Senior Member Pascoe and I considered some aspects of the practical application of my obligations in what is “not a one-sided business” in Re VBN and Australian Prudential Regulation Authority:[49]
“252. There are at least two sides of the business. The parties and the issues they raise form one side of that business, the issues raised by the relevant legislation are another. If the new issue were an issue required to be decided under the relevant legislation in order to make a decision, it could not be ignored however late in the piece it were raised. If it were raised during the hearing and the other party could not deal with the point at the time, the Tribunal would have little option but to adjourn the proceedings. Its hands would be tied, quite properly, by its obligation to give each party a reasonable opportunity to present its case. There are cost implications in such a course but they could be accorded little, if any, weight as they are essential to the review of the decision.
253. If the new issue were simply a new contention in relation to an issue that must be decided under the legislation but that has already been raised, the situation may be different. Cost considerations to the parties may have greater weight in the consideration of what amounts to a reasonable opportunity for a party to present a case. Considerations such as the time at which the party became aware of the issue and raised it with the other party and/or the Tribunal will be of some relevance. The effect on the orderly disposition of the business of the Tribunal may, on occasion, be relevant. The Tribunal’s role to reach the correct or preferable decision will also be a factor that must be taken into account.”[50]
[48] Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation (1963) 113 CLR 475 at 504 per Kitto J
[49] [2006] AATA 710; (2006) 92 ALD 259
[50] [2006] AATA 710; (2006) 92 ALD 259 at 336-337

I think that Mr Slonim has a legitimate complaint about the stage at which the additional affidavits were lodged and the notice his client was given that the CEO would be relying on there being substitutable goods produced by two other manufacturers. In some circumstances, the order of events might mean that it is appropriate to conduct a directions hearing before the Tribunal lists the matter. As matters have turned out, I do not think that Target has been denied procedural fairness in this case. When Target and Mr Slonim did become aware of the additional material, they asked for a directions hearing and it was held. It appears from the notes made by Senior Member Fice, who conducted the directions hearing, that Mr Slonim told him that Target was no longer objecting to the affidavits but reserved the right to argue admissibility at the hearing. Mr Slonim neither asked for time to address the additional evidence put forward in the affidavits as he could have done nor asked for an adjournment of the hearing date so that he could. It seems to me that his client made a choice at that time and it is too late now to say that it is not a fair thing to admit the evidence in the affidavits. Consequently, I do admit them as evidence. The weight I give to them is another thing and I will come to that.

The core criteria

In this section of my reasons, I will consider the core criteria in relation to the TCO goods when viewed in light of the evidence relating to each of the three manufacturers of goods: Adventure One, Macleay Options and Fresh & Green.

A.Adventure One
A.1Variation of the confidentiality order made under s 35 of the AAT Act

In its submission objecting to the making of a TCO, Adventure One specified the costs it incurred per unit for goods it produced and that it claimed to be substitutable goods. It did so in both monetary and percentage terms. It also provided information relating to its sales, including costs and profit margins, as well as pictures of the goods claimed to be substitutable goods together with information relating to their dimensions, prices and colourways in which they are available.[51]
[51] T documents; T12 at 91 (in part) and 94-115

On 27 September 2012, another member made an order under s 35 of the AAT Act prohibiting access to those pages of the documents lodged under s 37 of that legislation (T documents) to the CEO and his legal representatives and officers and the members and staff of the Tribunal. Although the order is expressed in absolute terms without any reference to its being made until further order or the like, I think that I have the power to vary that order to enable Mr Slonim to read and study the information. He did so after undertaking[52] that he would not disclose the information to his client or any other person and, with the consent of Mr Millea, I varied the order to permit him to do so.
[52] I accepted the undertaking as I have done in the past but note that there is varying authority as to whether or not it is appropriate. Brigadier Ermert and I canvassed some of that authority in Re Dunn and Department of Defence [2004] AATA 1040; (2004) 39 AAR 322; 84 ALD 419 at [91]-[104]; 348-352; 445-449

In varying that order, I relied on s 33(1) rather than on s 33(3) of the Acts Interpretation Act 1901 (AI Act) and the terms in which the power is given by s 35 of the AAT Act. I will briefly set out my reasons for doing so but first set out the relevant provisions of s 35. Sections 35(2) and (3) provide, in part:
“(2) Where the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, the Tribunal may, by order:
(a)-(b) …
(c) give directions prohibiting or restricting the disclosure to some or all of the parties to a proceeding of evidence given before the Tribunal, or of the contents of a document lodged with the Tribunal or received in evidence by the Tribunal, in relation to the proceeding.
(3)In considering:
(a)whether the hearing of a proceeding should be held in private; or
(b)whether publication, or disclosure to some or all of the parties, of evidence given before the Tribunal, or of a matter contained in a document lodged with the Tribunal or received in evidence by the Tribunal, should be prohibited or restricted;
the Tribunal shall take as the basis of its consideration the principle that it is desirable that hearings of proceedings before the Tribunal should be held in public and that evidence given before the Tribunal and the contents of documents lodged with the Tribunal or received in evidence by the Tribunal should be made available to the public and to all the parties, but shall pay due regard to any reasons given to the Tribunal why the hearing should be held in private or why publication or disclosure of the evidence or the matter contained in the document should be prohibited or restricted.”

A.1.1 Section 33(1) of the AI Act

Section 33(1) of the AI Act was amended with effect from 27 December 2011 by the Acts Interpretation Amendment Act 2011 (AIA Act).[53] I have set out the provision as it now reads but shown the words added by the AIA Act in bold and those omitted by ellipses:
“Where an Act confers a power or function or imposes a duty, then, … the power may be exercised and the … function or duty must be performed from time to time as occasion requires.”
[53] AIA Act; s 3, Schedule 1, items 63, 64 and 65 and s 2, item 2

The first ellipsis represents the omission of the words “unless the contrary intention appears”. Their omission is consistent with their omission from other sections in the AI Act for the AIA Act amended s 2 so that it expresses the caveat generally rather than section by section. Of particular relevance is the amendment to s 2(2) of the AI Act which now provides:
“However, the application of this Act or a provision of this Act to an Act or a provision of an Act is subject to a contrary intention.”

On its face, s 33(1) does not provide for amendment or revocation of what was previously effected by the exercise of a power or function or the performance of a duty. That is consistent with the view expressed by Branson J in Dutton v Republic of South Africa[54] (Dutton). At first sight, it would not seem to be consistent with the following passage from the judgment of Gummow J in Minister for Immigration and Ethnic Affairs v Kurtovic[55] (Kurtovic):
“ In the present case, there is nothing in the Migration Act which suggests an intention contrary to the presumption embodied in s 33(1) of the Acts Interpretation Act 1901, to which I have already referred. Accordingly, the power to make a deportation order is exercisable from time to time, so as to revoke or revive a deportation order previously made, whether on the same facts as before or otherwise. Even if the facts upon which the original decision was based remain constant, it may be the policy of the donee of the power which changes and thus requires a reconsideration of decisions previously made: cf Laker Airways Ltd v Department of Trade [1977] QB 643 at 7-7, 708-709, 728. …”[56]
[54] [1999] FCA 498; (1999) 162 ALR 625 at [32]; 636
[55] [1990] FCA 22; (1990) 21 FCR 193; 92 ALR 93; Neaves, Ryan and Gummow JJ
[56] [1990] FCA 22; (1990) 21 FCR 193; 92 ALR 93 at 218; 119

When regard is had to the context in which his Honour wrote this passage, I respectfully suggest that this passage from his judgment in Kurtovic cannot be read as supporting a view that s 33(1) permits revocation or variation by means of a subsequent exercise of a power simply on the basis that the power was used to make an administrative instrument. The context in which Kurtovic was decided was explained by Lander J in Minister for Immigration and Multicultural and Indigenous Affairs v Watson[57] (Watson):
“ In Kurtovic a deportation order was made under s 12 of the Act on 23 July 1984 which was revoked pursuant to s 20 of the Act … on 21 November 1985. A second deportation order was made on 28 January 1988 which was sought to be impugned because there had been no material change in circumstances between the revocation of the first order and the making of the second. The Court held that the power conferred on the Minister by s 12 of the Act is not spent once used, but is exercisable from time to time whether or not there has been a change in relevant facts.
…
It is true that the passage quoted, Gummow J speaks in terms of a power to make a second deportation order ‘so as to revoke or revive’ a deportation order, and refers to a reconsideration of decisions previously made. But these observations were obiter, as in Kurtovic it was not a second exercise of the s 12 power which revoked the first. As a result of the s 20 power to revoke, the s 12 power remained available for re-exercise at a later date.
In my view, s 33(1) (assuming it applies) does not have the effect that once there is a valid exercise of the s 501(2) power to cancel a visa, the visa can be effectively restored to the former holder by a second exercise of that power. Whilst the Minister has a discretion whether or not to exercise the s 501(2) power, the power in question is simply a power to cancel a visa which, if validly exercised, results in the former holder acquiring the status of an unlawful non-citizen with the consequences prescribed by the Act. There is no occasion for the re-exercise of the power once it has been validly exercised.”[58]
[57] [2005] FCAFC 181; (2005) 145 FCR 542; 88 ALD 115; Dowsett, Hely and Lander JJ
[58] [2005] FCAFC 181; (2005) 145 FCR 542; 88 ALD 115 at [21]-[23]; 546-547; 120

It seems to be that Dutton and Watson both support the view that s 33(1) of the AI Act permits multiple exercise of a power but it does not permit the power to be used in a way that revokes, varies or affects the outcome of a previous exercise of the same power. If there is to be a revocation, variation or the like of the outcome, that must be achieved through the exercise of another power if it is to be achieved at all. That is what happened in Kurtovic.

It must also be remembered that that application of s 33(1) of the AI Act is subject to any contrary intention in the legislation being interpreted. This was addressed by Gleeson CJ in Minister for Immigration and Multicultural Affairs v Bhardwaj[59] where he says:
“ The requirements of good administration, and the need for people affected directly or indirectly by decisions to know where they stand, mean that finality is a powerful consideration. And the statutory scheme, including the conferring and limitation of rights of review on appeal, may evince an intention inconsistent with a capacity for self-correction. Even so, as the facts of the present case show, circumstances can arise where a rigid approach to the principle of functus officio is inconsistent with good administration and fairness. The question is whether the statute pursuant to which the decision-maker was acting manifests an intention to permit or prohibit reconsideration in the circumstances that have arisen. That requires the examination of two questions. Has the Tribunal discharged the functions committed to it by statute? What does the statute provide, expressly or by implication, as to whether, and in what circumstances, a failure to discharge its functions means that the tribunal may revisit the exercise of its powers or … reconsider the whole matter afresh?”[60]
[59] [2002] HCA 11; (2002) 209 CLR 597; 187 ALR 117; 67 ALD 615
[60] [2002] HCA 11; (2002) 209 CLR 597; 187 ALR 117; 67 ALD 615 at [8]; 603-604; 119; 617-618

I now turn to s 35 of the AAT Act. It confers a power rather than a function but, in exercising that power, s 35(3) imposes a duty on the Tribunal regarding the matters that it must take into account. It seems to me that there is nothing in the provision that suggests that Parliament intended that s 33(1) of the AI Act should not apply to the interpretation of s 35. Indeed, the contrary seems to me to be the case. Section 35 balances the public interest in the Tribunal’s proceedings being held in public against the public interest in keeping certain matters out of the public eye. It is a balance that can, and does, change as time passes and the context changes. Rather than conferring a power that can be exercised only once, it seems to me that s 35(2), when read with s 35(3), confers a power that is capable of being exercised from time to time to accommodate the changing balance of public interests.

Although each fresh exercise of the power may be expressed in terms of revocation or, as I did at the hearing, in terms of variation, each fresh exercise is not intended to revoke or vary what has happened in the past. Rather, it is intended to leave what was done in place and to say that, from this point in time, publication of this name or that evidence or document and so on will be prohibited or restricted or not as the case may be. Publication of that name, evidence or document might have been restricted under the previous order and not under a subsequent order but the subsequent order does not affect the past; only the future.

A.1.2 Section 33(3) of the AI Act

Section 33(3) was also amended with effect from 27 December 2011.[61] The amendment is shown in bold in so far as it adds words and by an ellipsis in so far as it omits words. The provision now reads:
“Where an Act confers a power to make, grant or issue any instrument of a legislative or administrative character (including rules, regulations or by-laws) the power shall … be construed as including a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend, or vary any such instrument.” (emphasis added)
[61] AIA Act; s 3, Schedule 1, item 67 and s 2, item 2

Prior to its amendment, s 33(3) had caused some consternation regarding its interpretation with some courts interpreting the word “instrument” to refer only to legislative instruments and others adopting a broader interpretation that included any instrument. As now enacted, Parliament has clearly stated that it favours the broader interpretation.[62] That was a broader interpretation adopted by Brennan J when, as President of the Tribunal, he decided Re Brian Lawlor Automobile Pty Ltd and Collector of Customs (New South Wales)[63] (Brian Lawlor).[64]
[62] See also the explanation given in the Explanatory Memorandum to the Acts Interpretation Amendment Bill 2011 leading to the enactment of the AIA Act at [169]-[172].
[63] (1978) 1 ALD 167
[64] Approved on appeal in Collector of Customs (New South Wales) v Brian Lawlor Automotive Pty Ltd [1979] FCA 21; (1979) 41 FLR 338; 2 ALD 1 at 341; 3 per Bowen CJ and with whom Deane J agreed on this point at 379; 31-32 and 353-354; 12-13 per Smithers J

In the context within which s 33(3) sits in the AI Act, the ordinary meaning of an “instrument” as a “formal or official legal document”[65] is the appropriate meaning. That meaning would bring within the scope of s 33(3) delegated legislation in the form of rules or directions made under authority of an enactment as much as a licence or authority issued by an administrative body. The only difference would be that the former would be examples of legal instruments and the latter examples of administrative instruments.
[65] Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers

It is arguable that an order made under s 35 of the AAT Act is an administrative instrument within the meaning of s 33(3) of the AI Act. If it is, it does not follow that I can rely on s 33(3) to revoke or vary the order. It does not follow because s 33(3) only applies “Where an Act confers a power to make, grant or issue any instrument of a legislative or administrative character …”. Section 35(2) of the AAT Act confers a power to make directions by order but it does not confer a power to make, grant or issue an instrument to do that. The Tribunal may choose to make its order giving directions in writing, and so as a written instrument, but it is not required to do so. In that, its obligation is to be contrasted with a decision it makes on an application. It is obliged to make its decision in writing.[66] Section 35(2), therefore, does not confer a power to make, grant or issue an administrative instrument.
[66] AAT Act; s 43(1) The section distinguishes between the decision and the reasons for decision and, subject to an applicant’s requesting that they be in writing, permits the latter to be given either orally or in writing.

A direct analogy can be drawn between s 35(2) of the AAT Act and s 78 of the Customs Act considered by Brennan J in Brian Lawlor. The then Collector of Customs had granted a warehouse licence under s 78 of the Customs Act and then purported to revoke it. His Honour noted that:
“… s 78 does not in terms require that the licensing power be exercised in writing and the practical need can be met either by a written certificate of the exercise of the licensing power, or by the licence itself if the Minister or his delegate should choose to exercise the power in writing.
There are other provisions relating to licences or permits granted under the Customs Act where Parliament has been astute to require writing … Had the power conferred by s 78 been a power which was intended by Parliament to be exercised only in writing, s 78 could have been framed in like manner to those sections, but it was not so framed. Thus, there is no legal necessity for the power to be exercised in writing, and the Minister may without writing lawfully license a warehouse. It is not material to the application of s 33(3) that licence No 3152 is in writing, for the subsection applies to powers of a stated kind, not to the exercise of those powers; and the character of a power is not to be determined by the manner of its exercise chosen by the repository of the power without statutory discretion. It thus appears that the power vested in the Minister by s 78 is not a power ‘to grant or issue an instrument’, and is not a power to which s 33(3) of the Acts Interpretation Act applies.”[67]
[67] (1978) 1 ALD 167 at 172-173

A.2Substitutable goods: are the goods of Australian manufacturers “produced in Australia”?

I have set out the requirement that the TCO goods must meet the core criteria at [107] below. They will meet the core criteria in so far as the Adventure One goods are concerned if the goods produced by Adventure One are neither put, nor capable of being put, to a use that corresponds with a use, including a design use, to which the TCO goods are put or capable of being put. In the first instance, the question must be asked at the date of the TCO application.

A.2.1Goods produced in Australia: Adventure One

After examining those of the T documents subject to the confidentiality order, Mr Slonim indicated that Target was not disputing that the goods produced by Adventure One meet the description of “goods produced in Australia” within the meaning of s 269D(1). On the basis of those documents, I am satisfied that they are goods that meet that description.

A.2.2 Goods produced in Australia: Macleay Options

I have looked at the evidence on this aspect relating to the bags produced by Macleay Options. Ms Veale said in her affidavit that she believes that both the calico and hessian from which Macleay Options’ bags are made are from imported materials. Once the material arrives in its factory, bags are first cut from calico with a rotary cutter, sewn to an appropriate shape, their handles attached if not already part of the bag’s shape, screen printed if required and ironed. Each bag takes three or four people to produce. Ms Veale stated that approximately 75% of the total cost of manufacturing the usual size of calico shopping bag is made up of local labour and factory costs. That sort of bag is currently sold for $1.95 and 2.5 shopping bags can be produced from each metre of calico costing $1.30 per metre.

I have set out the requirements of s 269D(1) of the Customs Act at [109] below. I am satisfied that those of s 269D(1)(a) have been satisfied in that the goods of Macleay Options have been partly manufactured in Australia in the sense that at least one substantial process in their manufacture has been carried out in Australia. That substantial process is the cutting and sewing of the bags and, if required, their printing with a logo or other symbol or message. They have not been wholly manufactured in Australia because the calico and hessian, whose manufacture represents another substantial process, has been made in a country other than Australia.

I am not satisfied that the bags meet the requirements of s 269D(1)(b). That provision requires me to look at the factory or works costs of the goods and decide whether not less than a quarter of those costs is represented by the value of Australian labour, Australian materials and the factory overhead expenses incurred in Australia in respect of those goods. The only financial information that I have is the cost of the calico fabric and the selling price of one type of shopping bag. I do not know the cost of materials such as the sewing thread and, where used, printing ink. I do not know whether those materials are produced in Australia or not. The salaries are paid at award wages, I am told, and I am told of the award but I do not know the cost of the wages actually paid. I know the selling price per shopping bag unit but, as I do not know the profit margin allowed on each, I cannot begin to work out the factory or works costs in producing each. I do not have any indication of the overhead expenses. In a case in which the factory or work costs is contested, it is not enough to rely on a statement by the manufacturer, unsupported by relevant primary evidence, that approximately 75% of the total cost of manufacturing the usual size of calico shopping bags advertised on Macleay Options’ website is made up of local labour and factory overhead costs.[68] That may be the case but it must be established by primary evidence.
[68] Exhibit 9 at [17]

The goods for which the TCO was sought were described in the application made on Target’s behalf. I have set out its description in the opening paragraph of these reasons. Target stated that the goods were classified under tariff classification 4202.99.00 and their use was described as “For shopping and carrying personal items.”[82]
[82] T documents; T3 at 30

In order to meet its obligations under s 269FA, Target provided details of the internet data bases it had searched and the terms it had used to search each. In , it had searched “Biodegradable bags australian manufacturer”, in it had searched “Biodegradable bags, Bio-degradable bags” and in it had used “Biodegradable bags”. On Target’s behalf, letters were sent to each of the persons or businesses the searches returned and advised of its TCO application. The goods were described and the recipient of each letter was told that Target was required to enquire whether there:
“… exists a potential local manufacturer of goods that meet the above description.
To decide whether or not to proceed with the TCO application, we would appreciate your advice as to whether you believe you are a producer of goods which are substitutable goods for the goods described above and makes these goods in Australia in the ordinary course of business. …
A TCO may be granted if, on the day of lodgement of an application, no substitutable goods are produced in Australia in the ordinary course of business. All parties should ensure they are aware of the definitions substitutable goods, produced in Australia, and ordinary course of business, please visit Saving Points website at for useful definitions from the Customs Act 1901.”[83]
[83] T documents; T3 at 53

CEO required to screen application

The CEO must decide whether the application has been validly made within 28 days of its being lodged. That requires the CEO to be satisfied that the applicant for the TCO has satisfied ss 269F and 269FA of the Customs Act.[84] It also requires the CEO to satisfy himself that “… he … is not aware of any producer in Australia of substitutable goods”.[85] If, within the 28 day time period, the CEO neither accepts nor rejects the application, it is taken to have been validly made.[86]
[84] Customs Act; s 269(1)(a)
[85] Customs Act; s 269H(1)(b)
[86] Customs Act’ s 269H(2)

Section 269HA provides a further ground on which the CEO may reject an application and it is a ground that is not limited to the first 28 days after lodgement. The CEO must not make a TCO in respect of goods if he is satisfied under s 269J(1) that the goods the subject of the TCO are:
“…
(aa)described in terms other than generic terms; or
(a)described in terms of their intended use; or
(b)declared by regulations to be goods to which a TCO should not extend.”

There is no suggestion in this case that s 269SJ(1) arises.

Tariff classification

After obtaining further information, including photographs of the bags, from Target, an officer of Customs classified them from tariff classification sub-heading 4202.99.00 to a different sub-heading: 4202.92.90. Both are found in Schedule 3 of the CT Act and, more specifically, in Section VIII entitled “Raw hides and skins, leather, furskins and articles thereof; saddlery and harness; travel goods, handbags and similar containers; articles of animal gut (other than silk-worm gut)”. Chapter 42 of Schedule 3 is headed “Articles of leather; saddlery and harness; travel goods, handbags and similar containers; articles of animal gut (other than silk-worm gut)”. Item 4202 reads in part:
“4202             TRUNKS, SUIT-CASES, VANITY-CASES, EXECUTIVE-CASES, BRIEF-CASES, SCHOOL SATCHELS, SPECTACLE CASES, BINOCULAR CASES, CAMERA CASES, MUSICAL INSTRUMENT CASES, GUN CASES, HOLSTERS AND SIMILAR CONTAINERS; TRAVELLING-BAGS, INSULATED FOOD OR BEVERAGE BAGS, TOILET BAGS, RUSCKSACKS, HANDBAGS, SHOPPING BAGS, WALLETS, ;PURSES, MAPCASES, CIGARETTE-CASES, TOBACCO-POUCHES, TOOL BAGS, SPORTS BAGS, BOTTLE-CASES, JEWELLERY BOXES, POWDER-BOXES, CUTLERY CASES AND SIMILAR CONTAINERS, OF LEATHER OR OF COMPOSITION LEATHER, OF SHEETING OF PLASTICS, OF TEXTILE MATERIALS, OF VULCANISED FIBRE OR OF PAPERBOARD, OR WHOLLY OR MAINLY COVERED WITH SUCH MATERIALS OR WITH PAPER:
……
4202.92With outer surface of plastic sheeting or of textile materials:
4202.92.10--- Goods, as follows:  5%
(a)golf bags;
(b)gun, revolver and pistol cases and covers;
(c)pen and pencil cases
4202.92.90--- Other  5%
DCS: 4%
DCT 5%
4202.99.00-- Other  5%
DCS: 4%
DCT 5%”[87]
[87] CT Act, Schedule 3

Processing a valid application

Under s 269K(1) of the Customs Act, the CEO is required to publish a notice in the Gazette as soon as practicable after receiving a valid application. Among the information he is required to publish, the CEO must describe the goods to which the application relates and include a reference to the customs tariff classification that, in his opinion, applies to the goods. The CEO must also invite persons to lodge a submission within 50 days of the gazettal if they consider there are reasons why the TCO should not be made. The submission must comply with ss 269K(2) and (3) of the Customs Act and be lodged with the CEO. Under s 269K(4), if a person lodges a submission more than 50 days after the gazettal day without being invited to do so by the CEO under s 269M, the CEO must not take the submission into account in determining whether to make a TCO.

CEO may invite submissions or seek other information, documents or material

The CEO may invite third persons to take part in the process in two separate ways. The first is provided for in s 269M(1) when he considers that a person may object to the making of a TCO. It provides:
“If the CEO considers that, in relation to a particular TCO application, a person may have reason to oppose the making of the TCO to which the application relates, he or she may, by notice in writing, invite the person to lodge a written submission with the CEO within a period specified in the notice ending not later than 150 days after the gazettal day.”

The submission must comply with the requirements to s 269M(2) and be lodged in the same manner as is specified in relation to the application for a TCO. Once lodged, it is taken to have been lodged on the same day as that TCO application.[88]

[88] Customs Act; s 269M(3)

The second way the CEO may invite third persons to participate is provided for in s 269M(4):
“If the CEO considers that, in relation to a particular TCO application, any person (including the applicant or a person who has lodged a submission with the CEO) may be able to supply information or produce a document or material relevant to the consideration of the application, the CEO may, by notice in writing, request the supply of the information in writing or the production of the document or material within a period specified in the notice and ending not later than 150 days after the gazettal day.”

If a person receives an invitation or a request to supply information but fails to respond within the time period but does so at a later time, “… the CEO must not take that submission, information, document or material into account in determining whether to make a TCO.”[89]
[89] Customs Act; s 269M(5)

The time within which the invitation or request must be issued and responded to is 150 days from the day on which the CEO published a notice in respect of the application in the Gazette under s 269K(1) of the Customs Act. The CEO has the same period of time to give a copy of all, or part of, the TCO:
“… application to a prescribed organisation with a view to obtaining the advice of the organisation in relation to the question whether there are producers in Australia of substitutable goods.”[90]

The CEO may take that course “… for the purpose of dealing with a TCO application …”.[91]

Making a standard TCO

[90] Customs Act; s 269M(6)

[91] Customs Act; s 269M(6)

A.The steps

Section 269P sets out the steps the CEO must follow once he has accepted the TCO application as a valid application. The CEO has to decide:
“… not later than 150 days after the gazettal day, whether or not he or she is satisfied, having regard to:
(a)the application; and
(b)all submissions lodged with the CEO before the last day for submissions; and
(c)all information supplied and documents and material produced to the CEO in accordance with a notice under subsection 269M(4); and
(d)any inquiries by the CEO;
that the application meets the core criteria.”

B.CEO’s failure to make a decision

If the CEO does not make a decision in respect of a TCO application within 150 days of the gazettal day, the CEO is taken to have decided that he is not satisfied that the application meets the core criteria.[92]
[92] Customs Act; s 269P(2)

C.CEO decides TCO application meets core criteria

If the CEO decides that a TCO application meets the core criteria, he must first make a written order declaring that the goods that are the subject of that application are goods to which an item in Schedule 4 of the CT Act provides.[93] The TCO must include a description of the goods including a reference to the customs tariff as declared by the CEO. In addition, it must include a statement of the day on which it is taken to have come into force or, if s 269SA applies, the date it came into force and then ceased to be in force.[94]
[93] Customs Act; s 269P(3) when read with 269B(1)
[94] Customs Act; s 269P(4). Section 269SA(1) provides that, if the CEO is satisfied that substitutable goods commenced to be produced between the date the application for the TCO was lodged and the date of the decision on that application, and that he would not have been satisfied that the application met the core criteria had production commenced on lodgement day, the TCO continues in force only until substitutable goods commenced production.

Operation of a TCO

In the case of a single application for a TCO and the core criteria having been met throughout the period from the date on which the application was lodged and the date the TCO was made, the TCO comes into force on the day the TCO was lodged.[95] If there is more than one application, the day the TCO comes into operation is the day on which the earliest application was lodged.[96]
[95] Customs Act; s 269S(1)(a)
[96] Customs Act; s 269S(1)(b)

In most cases, a TCO applies to goods that are the subject of a TCO that were or are first entered for home consumption on or after the day on which the TCO is taken to have come into force.[97]
[97] Customs Act; s 269S(2) A qualification is found in s 269SG in relation to the effect of revocation of a TCO on goods in transit and capital equipment on order.

Revocation of a TCO

Revocation of a TCO may come about either through the means of an application by a person claiming to be a producer of substitutable goods in relation to the goods covered by the TCO on a particular day or at the initiative of the CEO. Both begin with a belief that, if the TCO were not in force on that particular day and the application for the TCO had been made on that day, the TCO would not have been made.

The first means is provided for under s 269SB. The application is based on the producer’s having the requisite belief.[98] The producer must provide the information required and follow the procedures set out in s 269SB. Section 269SF provides for the CEO to gather his own information but it must be in writing.[99] The CEO’s authority is found in s 269SF(1):
“If the CEO considers that, in relation to a request for revocation of a TCO, any person (including the person who made the request) may be able to supply information or produce a document or material relevant to the consideration of the request, the CEO may, by notice in writing, request the supply of the information or the production of the document or material within a period specified in the notice and ending not later than 60 days after receiving the request.”

If a person refuses or fails to supply information or produce a document or material as requested but then supplies the information, document or material, the CEO must not take it into account in determining whether to revoke a TCO.[100]

[98] Customs Act; s 269SB(1)

[99] Customs Act; s 269SF(2)

[100] Customs Act; s 269SF(3)

The CEO’s obligation to make a decision on the request for revocation of a TCO is set out in s 269SC(1):
“Not later than 60 days after lodgement of a request for revocation of a TCO, and after having regard to the request and to any other information, document or material given to the CEO under section 269SF, the CEO must decide whether or not he or she is satisfied:
(a)that, on the day of lodgement of the request, the person requesting the revocation of the TCO is a producer in Australia of goods that are substitutable goods the subject of the order; and
(b)that, if the TCO were not in force on that day but that day were the day on which the application for that TCO was lodged, the CEO would not have made the TCO.”

If it is the CEO who has the requisite belief, he may publish a notice in the Gazette declaring his intention, subject to s 269SD(1AB), to revoke the TCO from a particular day and inviting any person who might be affected by the revocation to give him a written submission within 28 days.[101] The CEO has 60 days from the date of the publication of the notice within which to make a decision. He must do so:
“… after consideration of the matters raised in any submissions made in response to the invitation and of any other relevant matters:
(a)decide whether or not he or she is satisfied of the matters referred to in paragraph (1AA)(b); and
(b)if the CEO is so satisfied – make an order revoking the TCO with effect from the intended revocation day.”[102]

The remaining provisions in s 269SD go on to make provision for variations of the decisions the CEO might make.

[101] Customs Act; ss 269SD(1AA)(c) and (d)

[102] Customs Act; s 269SD(1AB)

Internal review

Section 269SH provides for internal review of a decision made by the CEO on a TCO application or on a request for revocation of a TCO. “Any affected person” who meets the definition of that term in s 269SH(13) and who objects to the making of the decision may apply to the CEO for its reconsideration.[103] An “affected person” means:
“(a) in relation to a decision on a TCO application:
(i)the applicant for the TCO; or
(ii)any person who lodged a submission before the last day for submissions in relation to the TCO application; or
(iii)any person who, in the opinion of the CEO, was not reasonably able to lodge a submission in relation to the TCO application within 50 days of the gazettal day; …
(b)…”[104]

[103] Customs Act; s 269SH(1)

[104] Customs Act; s 269SH(13)(a)

The application for reconsideration must follow the criteria set out in ss 269SH(2) and (3). The CEO must publish a notice in the Gazette stating the fact that the request has been lodged, the date on which it was lodged and the full particulars of the TCO to which the request relates. Section 269SH deals separately with an application to review a decision relating to a TCO application and another relating to a request for revocation. I will look only at the former although each is similar.

Section 269SH(4) provides:
“Where an application is made for reconsideration of a decision made on a TCO application, the CEO, having regard to:
(a)the TCO application; and
(b)the submissions, information, documents and materials which the CEO was entitled to take into account in considering the TCO application; and
(c)any new matter produced to the CEO by the applicant for reconsideration which, under subsection (7), the CEO is not prevented from taking into account for that purpose;
must decide, not later than 90 days after the last day for lodgement of the application for reconsideration, whether to affirm the original decision or to substitute any other decision that the CEO might have made.”

Section 269SH(7) provides:
“For the purposes of subsection (4) …, the CEO must not take into account any new material that is not produced to him or her by the applicant for reconsideration of an original decision within the period of 28 days after notification of the original decision in the Gazette.”

If, on internal review, the CEO substitutes another decision, the substituted decision is taken to have been made when the original decision was made.[105] If the substituted decision is to make a TCO, the TCO comes into force on the day it would have come into force if it had been made when the original decision was made.[106]

Review by the Tribunal

[105] Customs Act; s 269SH(8)

[106] Customs Act; s 269SH(9)

A. Making provision for review

Section 25(1) of the AAT Act provides that an enactment may provide that applications may be made to the Tribunal for review of, among others, decisions made in the exercise of powers conferred by that enactment. Section 25(4) is the correlative provision to s 25(1). It confers power on the Tribunal to review any decision in respect of which an application is made under an enactment.

Section 273GA(1)(n) of the Customs Act is a provision of the sort referred to in s 25(1)(a) of the AAT Act. It provides that an application may be made to the Tribunal for review of:
“a decision made of the CEO under s 269SH on a reconsideration of a decision of the CEO under subsection 269P(1)”.

An application may only be made by a person who is:

“(a) an affected person within the meaning of s 269SH; and
(b)is adversely affected by the decision on reconsideration.”[107]

Once an application has been made, the CEO must publish details of it in the Gazette under s 269SHA(2).

B. The framework of review

[107] Customs Act; s 273GA(6A)

B.1. The framework provided by the AAT Act

The AAT Act sets out a framework of provisions within which decisions will be reviewed. That framework provides for matters such as: the way in which relevant information and material will be gathered; those persons who may take part in the process; the public nature of the proceedings and protections available to restrict disclosure where required; avenues for resolving the application whether by formal decision of the Tribunal, alternative dispute resolution or consent of the parties; and the obligations of the Tribunal to ensure procedural fairness to those engaged in the proceedings. Section 25(6) provides for the modification of the provisions of the AAT Act:
“If an enactment provides for applications to the Tribunal:
(a)that enactment may also include provisions adding to, excluding or modifying the operation of any of the provisions of sections 27, 29, 32, 33 and 35 or of subsection 41(1) or 43(1) or (2) in relation to such applications; and
(b)those sections and subsections have effect subject to any provisions so included.”

B.2 The parties to an application for review

The parties to an application made under s 273GA(1)(n) of the Customs Act are the applicant and the CEO.[108] The only other parties are those who are made a party to a proceeding on an application.[109] Section 30(1A) of the AAT Act provides that any person whose interests are affected by a decision, of which review has been sought, may apply to be made a party to the proceeding. The Tribunal may order that the person be a party to the proceeding but whether it does so is a matter for its discretion.
[108] AAT Act, ss 30(1)(a) and (b)
[109] AAT Act, s 30(1)(d)

Section 30 in general or s 30(2) in particular are not provisions specified in s 25(6) as provisions that may be added to, excluded or modified by the enactment providing for applications to the Tribunal. For the purposes of this case, I do not need to explore whether the Customs Act could add to, exclude or modify the operation of s 30. I merely note that ss 269SHA(3) and (4) do seek to modify the operation of s 30. Section 269SHA(3) provides:
“Any person who had not applied under section 273GA for review of a reconsideration decision but whose interests are affected by the decision (whether or not that person is an affected person within the meaning of subsection 269SH(13)) may apply under subsection 30(1A) of the Administrative Appeals Tribunal Act 1975 to be made a party to proceedings within 60 days of the publication under subsection (2) or within such further time as the Tribunal allows.”

The provision incorporates a 60 day time limit but it is a time limit that may be extended but only within the parameters set by s 269SHA(4):
“The Tribunal must not grant a person applying to be joined as a party to the proceedings for review of a reconsideration decision on an extension of the period of 60 days referred to in subsection (3) unless it is satisfied that the person was not reasonably able to apply within the period.”

No person has applied to be joined as a party in this proceeding.

I certify that the one hundred and forty seven preceding paragraphs are a true copy of the reasons for the decision herein of
Deputy President S A Forgie,

Signed: .(sgd)............................................................
Leah Berardi, Associate

Date of Hearing  7 March 2013
Date of Decision  28 March 2013
Counsel for the Applicant             Mr Jonathon Slonim
Solicitor of the Applicant             Mr Boaz Shiponi
Saving Point

Solicitor for the Respondent Mr James Millea
Customs Legal Unit

(1) Goods other than goods classified under subheading 3817.00.10 of Schedule 3 or heading 3819.00.00 of Schedule 3 Free
(1A) …; (2) …”

(a) Two handles sewn into side panels;	(d) height NOT less than 350mm;
(b) width not less than 190mm;	(e) rectangular base
(c) length NOT less than 310mm”[1]