Tooheys Ltd v Minister for Business and Consumer Affairs

[1981] FCA 135

Re: TOOHEYS LIMITED
And: THE HONOURABLE JOHN COLINTON MOORE, the Minister of State for Business
and Consumer Affairs of the Commonwealth of Australia (1981) 54 FLR 421
No. NSW G35 of 1981
Objection to Competency - Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Ellicott J.(1)

CATCHWORDS

Objection to Competency - Administrative Law - Customs - Customs Tariff

Whether a decision was made - whether decision under s.273 of the Customs Act was legislative or administrative in nature - distinction between legislative and executive action -

Whether the decision was one to which the Act applies - Administrative Decisions (Judicial Review) Act (Paragraph (e) of Schedule 1) - distinction between circumstances in which liability to tax arise and curcumstances in which tax is calculated or assessed - assessment - decision "leading up to making" of calculation of duty - character of determination -

Whether applicant "a person who is aggrieved" - Administrative Decisions (Judicial Review) Act - s.5 considered - unnecessary to show right to refund of duty to establish locus standi - should not be given narrow construction

Administrative Decisions (Judicial Review) Act, 1977 ss. 3, 5 6, 7, 13 Schedules 1 and 2

Customs Act 1901 ss. 15, 16, 163, 167, 271, 272, 273 and Regulations and By-Laws, reg. 126, 128A.

Customs Tariff s. 33A(1) Second Schedule item 19

Rules Publication Act 1903-1939

Administrative Law - Customs Tariff - No determination by delegate of Minister to exempt from tariff - Whether Administrative Decisions (Judicial Review) Act applies - Objection to competency - Whether decision - Whether of administrative character - Whether applicant "person aggrieved" who could apply - Administrative decisions - Customs Act 1901 (Cth), ss. 15, 16, 163, 167, 271, 272, 273 - Customs Tariff (Cth), s. 33A (1), Second Schedule, item 19 - Rules Publication Act 1903 (Cth) - Administrative Decisions (Judicial Review) Act 1977 (Cth), ss. 3, 5, 6, 7, 13, Scheds.1, 2 - Customs Regulations, regs. 126, 128A.

HEADNOTE

The applicant had brought proceedings under the Administrative Decisions (Judicial Review) Act 1977 seeking an order of review of a decision of a delegate of the respondent. It was alleged in the proceedings that the delegate had refused to make a determination wholly or partly to exempt goods from tariff under the Customs Act 1901. The effect of that refusal was that higher duty was paid on the goods when they were imported. The respondent then filed a notice objecting to the competency of the court to try the proceedings.

Held, notice of objection dismissed, that a decision to refuse to make a determination had been made. The decision was of an administrative character. Commonwealth v. Grunseit (1943), 67 CLR 58, referred to. The Adminstrative Decisions (Judicial Review) Act applied to the decision. The applicant was "a person aggrieved" by the decision within the meaning of the Act. The proceedings were therefore competent.

HEARING

Sydney, 1981, April 30; May 20; June 3-4; August 19. #DATE 19:8:1981

APPLICATION.

Application that objections to competency raised by the respondent be dismissed.

The facts appear from the judgment.

P. R. Graham, for the applicant.

R. J. Burbidge Q.C. and J. J. Steele, for the respondent.

Cur. adv. vult.

Solicitors for the applicant: Parish Patience.

Solicitor for the respondent: B. J. O'Donovan, Commonwealth Crown Solicitor.

J. H. TELFER

ORDER

1. Each of the objections to competency raised by the respondent be dismissed.

2. The further hearing of the matter be adjourned to a date to be fixed.

3. The question of costs of the hearing of the objections to competency be reserved for further argument.

JUDGE1

These proceedings are brought by Tooheys Limited under the Administrative Decisions (Judicial Review) Act 1977 (hereinafter called "the Review Act") and seek an order of review in respect of a decision made by the delegate of the Minister for Business and Consumer Affairs under Part XVI of the Customs Act 1901 (hereinafter called "the Act"). Part XVI is entitled "Regulations and By-laws" and under ss.271 to 273 thereof the Minister is empowered to make by-laws or determinations in relation to goods for the purposes of items or proposed items in the Customs Tariff (hereinafter called "the Tariff") By-laws may be made with respect to goods or a class or kind of goods. Determinations may be made with respect to particular goods. In some cases the effect of a by-law or determination so made can be to exempt the goods, the class or kind of goods or the particular goods from duty either wholly or partially. In this case, it is alleged that the effect of the relevant decision, the subject of review, was to refuse to make a determination with the result that a higher rate of duty was paid and no part of it became refundable under other provisions of the Act.

After the proceedings were instituted the Minister filed a notice of objection to competency objecting to the jurisdiction of the Court to try this application under the Review Act on a number of grounds, namely, that the decision was not a decision at all, that it was not "a decision of an administrative character" within the meaning of that Act, that it was not a decision to which that Act applies and that the applicant is not "a person aggrieved" by a decision to which that Act applies.

It was agreed by the parties that this objection to competency should be heard as a preliminary matter. In order to appreciate the nature of the grounds of objection it is necessary to set out a number of relevant facts.

On 26 September 1978, the applicant lodged what is described as a "By-law Application" seeking by-law admission of goods described in the application as:-

"1 only Alvey series 310 automatic palletizer with a palletizing capacity in excess of 70 cases and up to 100 cases per minute."

In the application it was stated that the order for the goods had been placed overseas in August 1978 and that they had not at the date of the application been entered for home consumption. The expected date for importation was stated as "Otober 1978".

In order to understand what happened in relation to this application it will be helpful to refer to some of the relevant provisions of the Act and the Tariff. Sections 271 to 273 (inclusive) of the Act provide:-

"271. Where -

(a) an item of a Customs Tariff, or a proposed item of a Customs Tariff, is expressed to apply to goods, or to a class or kind of goods, as prescribed by by-law; or

(b) under an item of a Customs Tariff, or a proposed item of a Customs Tariff, any matter or thing is expressed to be, or is to be determined, as prescribed or defined by by-law,

the Minister may, subject to the succeeding sections of this Part, make by-laws for the purposes of that item or proposed item.

272. The Minister may specify in a by-law made for the purposes of an item, or a proposed item, of a Customs Tariff that is expressed to apply to goods, or to a class or kind of goods, as prescribed by by-law -

(a) the goods, or the class or kind of goods, to which that item or proposed item applies;

(b) the conditions, if any, subject to which that item or proposed item applies to those goods or to goods included in that class or kind of goods and

(c) such other matters as are necessary to determine the goods to which that item or proposed item applies.

273.(1) The Minister may determine, by instrument in writing, that, subject to the conditions, if any, specified in the determination, an item, or a proposed item, of a Customs Tariff that is expressed to apply to goods, or to a class or kind of goods, as prescribed by by-law shall apply, or shall be deemed to have applied, to the particular goods specified in the determination.

(2) The Minister may make a determination under the last preceding sub-section for the purposes of an item, or a proposed item, of a Customs Tariff whether or not he has made a by-law for the purposes of that item or proposed item.

(3) Where, under this section, the Minister determines that an item, or a proposed item, of a Customs Tariff shall apply, or shall be deemed to have applied, to goods, that item or proposed item shall, subject to this Part and to the conditions, if any, specified in the determination, apply, or be deemed to have applied, to those goods as if those goods were specified in a by-law made for the purposes of that item or proposed item and in force on the day on which those goods are or were entered for home consumption."

Customs duties are imposed by ss.15(1) and 16 in Part II of the Tariff subject to the other provisions of the Tariff and the Act. Subject to the Tariff and the Act the duty in respect of goods is to be ascertained by reference to the rate of duty set out in column III in the tariff classification in the First Schedule to the Tariff that applies to the goods (s.16). This is the general rate of duty but provision is also made, in other parts of the Tariff, for other rates, e.g. the preferential rate and surcharge rate. There are also special provisions for Primage Duties (Part III) and Support Duties (Part IV).

Of particular relevance to this case are the provisions of Part IVA of the Tariff which provide for special rates of duty. Section 33A(1) found in Part IVA is in the following terms:-

"33A.(1) Where an item in Part 1 of the Second Schedule applies to goods and the amount of duty applicable to the goods under that item is less than the sum of the amount of duty ascertained in respect of the goods in accordance with Part II of this Act and the amount of any primage duty and the amount of any support duty that, but for this section, would be payable in respect of the goods, then, subject to this section -

(a) the duty payable under Part II of this Act in respect of the goods is, in lieu of the amount that but for this section would be so payable, the amount of duty applicable to the goods under the item in Part I of the Second Schedule that applies to the goods or, if no duty is applicable to the goods under that item, no duty is payable in respect of the goods under Part II of this Act; and

(b) no primage duty or support duty is payable in respect of the goods."

The provision is somewhat complex without the detail of the Tariff before you but its effect, as I read it, is that if goods fall within the terms of an item in Part I of the Second Schedule of the Tariff the duty payable in respect of them under the Tariff is the amount of duty (if any) applicable to the goods under that item and not any larger amount that would otherwise have been payable in respect thereof under the provisions of Part II and those relating to primage and support duty. It can be of advantage therefore to an importer to show that such an item applies to its goods.

Here the applicant has sought the benefit of item 19 of Part I of the Second Schedule of the Tariff which describes the following goods:-

"19. Goods, as prescribed by by-law, being goods a suitable equivalent of which that is the produce or manufacture of Australia is not reasonably available."

The result of s.33A(1) of the Tariff is that if goods are covered by a by-law made for the purposes of this item the amount of duty payable in respect of them is the amount applicable under that item if it is a lesser amount than would otherwise be payable. I was informed that in the absence of such a by-law the rate of duty with respect to the goods here in question was 30%. If a by-law was made for the purposes of the item no duty would be payable. Because of the provisions of s.273(3) of the Act a determination by the Minister that the item shall apply to the relevant goods would have the same effect. That is why the applicant sought a determination.

After the applicant's By-Law Application was lodged, it was asked to supply additional information including evidence to support the claim that suitably equivalent goods were not reasonably available from Australian manufacturers. The names of particular manufacturers were mentioned.

On 9 October 1978 the applicant lodged evidence in order to satisfy the departmental request.

A long delay then occurred but on 10 January 1980 a determination was made by a delegate of the Minister which determined that item 19 should apply to the goods specified in the application and entered for home consumption on or after 1 August 1978 and on or before 31 December 1978.

This determination would have been effective to exempt the specific goods from duty but for the fact that the By-Law Application misstated the relevant facts as to importation and entry for home consumption. Although the application, as indicated earlier, stated that the goods had not been entered for home consumption and that the expected date of importation was October 1978 the fact is that they were imported on 26 June 1978 and entered for home consumption on 4 July 1978. Because the determination only applied item 19 to the goods if they were entered for home consumption on or after 1 August 1978 but on or before 31 December 1978 it had no effect in relation to the actual importation and was therefore of no value to the applicant.

Confronted with this problem it was necessary for a fresh determination to be obtained if item 19 was to be applied to the goods. With this in mind the agent wrote to the Department of Business and Consumer Affairs on 22 February 1980 requesting the Department to amend or if this was not possible to re-issue a Ministerial determination for the equipment. Attached to that was the entry for home consumption dated 4 July 1978 and the Ministerial determination of 10 January 1980.

The entry for home consumption showed the owner of the goods as Alvey (Australasia) Pty. Ltd. and the supplier to be Alvey International Sales Corporation. The duty payable calculated at a rate of 30% of a value for duty of $67,610.39 was $20,283.12.

The evidence before me shows that the original purchase order lodged by the applicant was dated 9 December 1977. It confirmed the oral acceptance of a quotation made earlier dated 5 April 1977. In the quotation the following appears in relation to price: -

"All prices are ex works, St. Louis MO.USA and freight insurance and Australian customs duty will be additional at actual cost with support documents for verification".

In addition to the price ex works and an estimate for freight an amount of $A18,659 was shown in it as "estimated Australian customs duty". Immediately following this there appeared: -

"We have the facility to import machines on the basis of inter company transfer, which has the effect of minimising duty. The above estimates are based on the current applicable duty rate of 30%."

The applicant's purchase order having been directed to it, Alvey (Australasia) Pty. Ltd. in turn, lodged its purchase order with Alvey International Sales Corporation. This was dated 28 November 1977. The goods were manufactured by the American company and shipped to Australia and it issued its invoice dated 31 May 1978. The goods in due course arrived in Australia, being consigned to Alvey (Australasia) Pty. Ltd., and were, as indicated earlier, entered for home consumption on 4 July 1978. After being entered for home consumption they were delivered to the applicant's premises in Sydney. The applicant paid the full invoice price for the goods. It also received an invoice covering duty payable dated 30 June 1978 and this amount was paid by the applicant to Alvey (Australasia) Pty. Ltd. on or about 3 August 1978.

Further correspondence took place between the Department and the applicant's customs agent, Molcolm Pty. Limited, following the letter dated 22 February 1980. This correspondence related, in part, to explanations as to why a mistake had been made as well as to the production of evidence necessary to establish that the goods, during 1977, fell within the terms of item 19. I do not think it necessary for present purposes to set out the detail of that correspondence except two letters.

The first is a letter dated 28 November 1980 from the applicant's customs agent to the Department. It was in the following terms: -

"I thank you for your courtesy in seeing me at your office on 18 November 1980.

With regard to above subject I have forwarded the copy of specification and drawing outlining the Allen Ygnis (Australia) Pty. Ltd. "LAWRENCE" MK3 FULLY AUTOMATIC PALLET LOADER as provided by you to TOOHEYS LIMITED for their comment.

Attached please find their reply (original) which is self explanatory.

May I comment, in conclusion, having a reasonable grasp of the technical intricasies of the equipment under reference, the pallet loader as offered by Allen Ygnis is definitely not a suitable equivalent for the end use intended and required by Tooheys.

It would be befitting, with the oncoming festive season in mind as well as all the comments made by us in this lengthy case, that reinstatement of the amended by-law would be appropriate.

I thank you for your co-operation in this matter and look forward to hear from you soon."

On 18 March 1981 the Department replied through the Assistant Secretary, By-Law Branch, in the following terms: -

"I refer to your application of 26 September, 1978 and numerous correspondence since, requesting, on behalf of Tooheys Ltd., the by-law admission of an Alvey Automatic Palletizer imported in June, 1978.

Your submission of the 28th November, 1980 has been given careful consideration and in response I would offer the following comments:

As item 19 forms an integral part of the structure of the Tariff its administration must be compatible with the Government's general philosophy of industry assistance. It would be inappropriate for me to permit by-law admission under item 19 which had the effect of removing the tariff assistance accorded by Parliament to a particular industry or manufacturer. It is only in situations where it is quite clear that there is no local production competing with the imported goods that by-law admission can be granted.

In this case, at the time when your client decided to purchase the imported machine, neither APM or Allen Ygnis was given the opportunity to quote for the requirement. I accept that such a quotation would have involved development and/or modification but I do not feel that the situation is sufficiently clear for me to decide that By-law entry was appropriate in 1977/78.

Finally, your response to my letter of 20 March, 1980 is not entirely satisfactory. I would expect any future applications from you to pay particular attention to essential facts such as date of order and the sequence of events that preceded and surrounded the decision to order overseas."

It is agreed that Mr Luckman, the Assistant Secretary, is a person who holds an appropriate delegation from the Minister for the purposes of making by-laws and determinations under ss.271-273 of the Act. The applicant treated the letter of 18 March 1981 as a refusal to grant its application for a fresh or amended determination and brought these proceedings seeking an order reviewing that decision.

Under s.5(1) of the Review Act a person who is aggrieved by a decision to which the Act applies, made after the commencement of the Act, may apply to the Court for an order of review in respect of the decision on any one or more of the grounds set out in that sub-section.

The phrase "decision to which this Act applies" is defined in s.3(1) of that Act in the following terms: -

"decision to which this Act applies" means a decision of an administrative character made, proposed to be made, or required to be made, as the case may be (whether in the exercise of a discretion or not) under an enactment, other than a decision by the Governor-General or a decision included in any of the classes of decisions set out in Schedule 1;"

Section 3(2) provides that a reference to the making of a decision includes, inter alia, a reference to making, suspending, revoking or refusing to make a determination.

The Act not only provides for applications for the review of decisions but also for the review of conduct relating to the making of decisions (s.6) and in respect of failures to make decisions (s.7). As indicated the application here is for an order of review under s.5 in respect of a decision refusing a determination.

I shall now deal in turn with the matters raised by the notice of objection to competency.

Was a decision made?

In my opinion the letter from the Assistant Secretary dated 18 March 1981 is evidence that a decision had been made on behalf of the Minister refusing on the evidence then before him to make a determination under s.273 of the Act. This letter refers (inter alia) to the submission of 28 November 1980 and, under that, the applicant's agent sought the making of the determination in the light of the evidence which had been produced up to that date. In stating in the letter of 18 March that it would be inappropriate for him to permit by-law admission under item 19 and, later, that he did not feel that the situation was sufficiently clear for him to decide that by-law entry was appropriate in 1977/78, the Minister's delegate was, in my opinion, indicating that he had decided to refuse to make a determination under the section on the basis of what was then before him. He had had the letter of 28 November 1980 for several months which pressed him to make a favourable determination and this I think was a refusal of the application either to amend the previous determination or make a fresh determination.

In so far as it was a refusal of the application to amend the previous determination I think it was correct. The Minister does not appear to have power to amend a determination. However, the Minister clearly had power to issue a fresh determination if he thought the circumstances warranted it. By his letter of 18 March he was refusing to do so. In other words, within the meaning of s.3(2)(a) of the Act, he was "refusing to make a determination" on what was before him and he was doing so not because he had not made up his mind about it but because he had decided that what was before him was inadequate to justify it. If, in order to satisfy the requirements of the Review Act, it is necessary that a decision reviewable under that Act be a final decision, I think that requirement is clearly satisfied. (cf Director General of Social Services v. Chaney (1980) 31 A.L.R. 571; Riordan v. Connor Lockhart J. 5 March 1981 not yet reported). On what was before him, he was making a final decision not to make a determination.

If I were wrong in this view it would in my view be proper to hold that the delegate was engaging in conduct for the purposes of making a decision and that therefore the applicant was entitled to rely on this to base an application for an order of review under s.6 of the Act. The applicant has not done so and I am satisfied that he had no need because a decision had in fact been made.

Was it a decision of an administrative character?

It was submitted, on behalf of the Minister, that a decision under s.273 was of a legislative nature and not of an administrative nature. It is argued that a decision to make a determination has the effect of changing the relevant law, is therefore legislative in character and a refusal to do so is of the same quality.

The argument is based partly on the view that under s.271 the Minister is given power to make by-laws for the purposes of an item, that by-laws are essentially legislative in character and that a determination is in substance the same as a by-law. Under s.273 a determination applies to goods or is deemed to have applied to the goods as if they were specified in a by-law made for the purposes of that item and in force on the day on which those goods are or were entered for home consumption.

It is relevant for the purposes of considering the nature of a by-law and a determination under Part XVI of the Act to note the provisions of s.273B of the Act. This section provides for the publication and taking effect of a by-law made under Part XVI but states (sub. s.(1)(c)) that a by-law shall not be deemed to be a statutory rule within the meaning of the Rules Publication Act 1903-1939. As to a determination s.273B(2) provides: -

"(2) Notice of the making of a determination under this Part shall be published in the Gazette as soon as practicable after the making of the determination and the notice shall specify -

(a) the kind of goods to which the determination applies;

(b) the conditions, if any, specified in the determination; and

(c) the item or proposed item for the purposes of which the determination was made."

The Rules Publication Act relates (inter alia) to statutory rules in the nature of rules regulations or by-laws made under any Act which are made by the Governor-General or any Minister or the Interstate Commission or any Government Department. The Act provides for the printing, numbering and sale of statutory rules and the incorporation of amendments therein.

It is clear from a consideration of the Rules Publication Act and s.273B of the Act that a determination is not a statutory rule within the meaning of the Rules Publication Act and that the Parliament, in enacting s.273B did not think it necessary to exclude a determination under s.273 from the operation of the Rules Publication Act as it did to a by-law (s.273B(1)(c)).

There can be no doubt that the making of a by-law can, like the making of a regulation, constitute a legislative act and not an administrative or executive act. However, it is equally clear that the making of what are called "by-laws" can be an act of an executive or administrative character. For instance, such a distinction was made in s.5(4) of the National Security Act 1939 which applied certain provisions of the Acts Interpretation Act to "orders rules and by-laws which are of a legislative and not an executive character in like manner as they apply to regulations." Several cases came before the High Court which were concerned with this distinction. (See Commonwealth & Ors. v. Grunseit (1943) 67 C.L.R. 58; Victorian Chamber of Manufacturers v. Commonwealth (1943) 67 C.L.R. 347).

Whether a decision to make a by-law under s.271 of the Act is of a legislative or executive character I find unnecessary to decide in this case. I would only point out that the mere use of the term "by-law" does not make it legislative in character. It is sufficient for present purposes to consider the nature of a decision to make a determination under s.273.

The meaning of the phrase "decision of an administrative character" in the definition of "decision" in s.3 of the Review Act has already been the subject of comment in this Court. (See Hamblin v. Duffy & Ors (1981) 34 A.L.R. 333; Evans v. Friemann & Ors., Fox A.L.J. 26 June 1981 (not yet reported)).

It is unnecessary to repeat the analysis and discussion contained in the judgments in those cases. It is sufficient to make the following observations. The phrase "decision of an administrative character" is one of wide import. The Review Act confers on citizens important procedural rights against executive action under Commonwealth enactments and I agree with Fox J. that the phrase should be given a wide construction and application. It is undesirable to attempt to define in advance its full scope and operation. Some assistance as to the broad character of the decisions included in the phrase is to be gained from a consideration of those types of decisions expressly excluded from the operation of the Review Act or of s.13 thereof by Schedules 1 and 2 thereof. Assistance is also to be gained from those cases which discuss the distinction between legislative executive and judicial power embedded in the Constitution. Here the assertion is that the decision was legislative and not administrative or executive in character.

The distinction between legislative and executive action has been considered both here and in the United States. It is illustrated by the following passage from the judgment of Latham C.J. in The Commonwealth v. Grunseit (supra at pp.82-3):-

"The provisions of sec 5(4) of the National Security Act are based upon the proposition that it is possible to distinguish between orders, rules, and by-laws which are of a legislative character and orders, rules and by-laws which are of an executive character. It is not always easy to draw this distinction. Rules and by-laws by their very nature appear to partake of a legislative character, but it is plain that sec.5(4) contemplates that they may be executive rather than legislative in character. In the case of orders, some orders would plainly be executive, as, for example, where in pursuance of a power created by legislation a particular person was ordered by another person to do a particular thing. The general distinction between legislation and the execution of legislation is that legislation determines the content of a law as a rule of conduct or a declaration as to power, right or duty, whereas executive authority applies the law in particular cases. Attention has been given in the United States of America to this distinction for the purpose of applying the doctrine which is there accepted of the separation of legislative, executive, and judicial power.

My brother Williams referred to the case of J.W. Hampton Jr. & Co. v. United States (1928) 276 U.S. at p.407 (72 Law. Ed., at p.629) where it was said:- 'The true distinction, therefore, is between the delegation of power to make the law, which necessarily involves a discretion as to what it shall be, and conferring an authority or discretion as to its execution, to be exercised under and in pursuance of the law.' - See also Panama Refining Co. v. Ryan (1935) 293 U.S. 388, at pp. 426, 429, 430 (79 Law Ed. 446, at pp.462, 463, 464) and Opp Cotton Mills Inc. v. Administrator of Wage and Hour Division of Department of Labour (1941) 312 U.S. 126, at p.145 (85 Law. Ed. 624, at p.636).

In the present case, in my opinion, the direction of the Minister for the Army applies the general rule which is laid down by reg. 8 to particular cases which are described by reference to common characteristics. The law is not altered by the direction of the Minister; it is neither extended nor limited. The direction makes the law applicable in certain cases, the content of the law not being changed. The case might be more open to argument if the order of the Minister created a new rule of conduct depending upon circumstances or considerations which were not stated or indicated in the regulation."

In my opinion, bearing in mind the long accepted distinction drawn in this passage, a decision to make a determination under s.273 of the Act is of an executive or administrative character.

Obviously Parliament decided that it could be desirable, where a suitable equivalent of goods was not reasonably available from goods of Australian production or manufacture, that the goods should be allowed in duty free or at a lower rate of duty than would otherwise be payable. Parliament could not possibly determine in advance the goods to receive this particular benefit. It therefore decided to confer on the Minister a discretion to determine what particular goods should have it. The discretion so conferred was not confined to a decision as to whether particular goods satisfied the description in item 19 of the Tariff but a decision on this matter was made basic to the exercise of the discretion. When, therefore, a decision is made by the Minister to make a determination under s.273 of the Act in relation to item 19 of the Tariff he is deciding that specific goods fall within the general description contained in that item and should be allowed in at a lower rate of duty or at no duty at all. Item 19 of the Tariff, in effect, lays down a general rule by describing in broad terms the goods which are to have the benefit of exemption or a lower rate of duty and s.273 read with other provisions of Part XVI enables the Minister in his discretion to apply that general rule to particular cases. In my view this does not amount to changing the law. He is simply applying it in the exercise of his discretion to a particular set of circumstances. This may amount to doing the work which Parliament may have done had it been equipped to specify in advance all the goods it intended to cover but it does not follow from this that the Minister's decision is legislative in character. (cf Q v. Trade Practices Tribunal Ex parte Tasmanian Breweries Pty. Limited (1970) 123 C.L.R. 361 per Kitto J. at p.377).

Nor do the provisions of s.273 in the context of Part XVI lend any support to this view. The effect of a determination that an item applies to goods is that the item applies to them as if a by-law had been made specifying those goods. Whatever the character of a decision to make a by-law I do not think the effect of these provisions is to render the making of a determination legislative in character. They describe the effect of it but do not alter its real character as the application of a general rule to a particular case.

Was the decision one to which the Act applies?

This depends on whether it falls within the description of paragraph (e) of Schedule 1 to the Review Act. If it does it is not a decision to which the Act applies. Paragraph (e) describes:-

"(e) decisions making, or forming part of the process of making, or leading up to the making of, assessments or calculations of tax or duty, or decisions disallowing objections to assessments or calculations of tax or duty, or decisions amending, or refusing to amend, assessments or calculations of tax or duty, under any of the following Acts:-

Australian Capital Territory Taxation (Administration) Act 1969
Coal Excise Act 1949
Customs Act 1901
Customs Tariff Act 1966
Estate Duty Assessment Act 1914
Excise Act 1901
Gift Duty Assessment Act 1941
Income Tax Assessment Act 1936
Pay-roll Tax Assessment Act 1941
Pay-roll Tax (Territories) Assessment Act 1971
Sales Tax Assessment Act (No. 1) 1930
Sales Tax Assessment Act (No. 2) 1930
Sales Tax Assessment Act (No. 3) 1930
Sales Tax Assessment Act (No. 4) 1930
Sales Tax Assessment Act (No. 5) 1930
Sales Tax Assessment Act (No. 6) 1930
Sales Tax Assessment Act (No. 7) 1930
Sales Tax Assessment Act (No. 8) 1930
Sales Tax Assessment Act (No. 9) 1930
States Receipts Duties (Administration) Act 1970
Wool Tax (Administration) Act 1964;"

It is submitted that a determination in writing by the Minister under s.273 that item 19 shall apply to the specific goods in question here is within the meaning of paragraph (e) a decision "forming part of the process of making" or "leading up to the making" of an assessment or calculation of duty under the Act and the Tariff.

By s.153 of the Act all duties constitute Crown debts charged upon the goods in respect of which the same are payable and payable by the owner of the goods and recoverable at any time in any court of competent jurisdiction by proceedings in the name of the Collector. Such duty is calculated at the rate in force when the goods are entered for home consumption (s.132). It is calculated on the value of goods and the provisions relating to the determination of value are found in Part VIII Division 2 of the Act.

By ss. 15 and 16 of the Tariff duties are imposed on goods imported into Australia and the duty in respect of goods is to be ascertained by reference to the rate of duty set out in column 3 in the Tariff classification in the First Schedule that applies to the goods. As previously pointed out this is subject to the provisions of s.33A which can, if applicable, result in a lower duty being payable.

Section 163 of the Act provides:-

"163. (1) Refunds, rebates and remissions of duty may be made:-

(a) in respect of goods generally or in respect of the goods included in a class of goods; and

(b) in such circumstances, and subject to such conditions and restrictions (if any), as are prescribed, being circumstances and conditions and restrictions, that relate to goods generally or to the goods included in the class of goods.

(2) In the last preceding sub-section 'duty' includes an amount paid to a Collector in respect of duty that may become payable."

Regulations have been made for the purposes of s.163(1)(b).

In this respect reg. 126(f) provides that the following circumstance is a prescribed circumstance for the purposes of s.163 of the Act:-

"(f) After duty has been paid on goods, a by-law or determination is made under Part XVI of the Act, the effect is that duty is not payable on those goods or duty is payable on those goods at a rate which is less than the rate which was applicable when the goods were entered for home consumption."

By virtue of reg. 128A(iv) an application for refund of duty in a circumstance specified in paragraph (f) may be made within twelve months after the date on which the by-law or determination was made.

Another relevant provision is s.167 dealing with disputes as to the amount or rate of duty. It provides, in effect, that if any dispute arises as to the amount or rate of duty payable in respect of any goods or as to the liability of any goods to duty under the Tariff, the owner may pay under protest the amount demanded by the Collector and the sum so paid is, as against the owner, deemed to be the proper duty payable unless the contrary is determined in an action brought in pursuance of the section. Other provisions of the section provide for the bringing of the action which must be brought within certain specified times (sub ss. (2) and (4)). It is expressly provided (sub s.(5)) that nothing in that section is to affect any rights or powers under s.163.

Recent amendments have enabled applications to be made to the Administrative Appeals Tribunal for the review of certain decisions (see s.273 GA(1)(a) to (k) inclusive). That section also gives a power to make an application for review of the demand made by a Collector where a dispute has arisen under s.167 and the owner has paid under protest. None of these provisions relate to any right to a refund pursuant to s.163.

For the purposes of this case, I think it is important to note that where a by-law or determination is made under ss.271-3 of the Act, so as to apply an item such as item 19 in Part I of the Second Schedule of the Tariff to goods, it is s.33A of the Tariff that determines the amount of customs duty payable under Part II of the Act (ss. 15 and 16). However, that section cannot and does not operate to determine that duty until a by-law or determination is first made. Obviously, if neither is made, the amount of duty will be determined by the other provisions of the Tariff. It follows that a decision to make a determination under s.273 that an item such as item 19 in Part I of the Second Schedule of the Tariff shall apply to certain goods has the effect of bringing s.33A of the Tariff into operation. It is as if the Act then contained a provision that the amount of duty payable in respect of those particular goods is the amount calculated by reference to the rate applicable to those goods under Part I of the Second Schedule.

In applying the provisions of para. (e) of Schedule 1 to the Review Act I think it is necessary to bear in mind the distinction between those provisions in a taxation act which lay down the circumstances in which a liability to tax can arise and those under which the amount of tax is calculated or assessed in a particular case.

For instance under the Income Tax Assessment Act there are many provisions which deal with what is assessable income and what are allowable deductions in order to arrive at taxable income. There are also other provisions which provide for the lodging of returns, the making of assessments including default assessments, the service of notice of assessments and the lodging of appeals against assessments.

It is also important to have in mind the varying character of the assessment and calculation provisions in the Acts mentioned in para. (e). In some the actual liability to tax depends on the service of a notice of assessment (e.g. income tax) whereas in others the liability is imposed by the statute itself (e.g. gift duty and customs duty). In some, provision is made for a complex system of objections review and appeal either to Boards of Review or the Courts. In others the rights of appeal are much more limited. Paragraph (e) is intended to cover all these cases.

In the interpretation of these acts it has been open to debate what actually constitutes the assessment. In Batagol v. Federal Commissioner of Taxation (1963) 109 C.L.R. 243 at p. 252 Kitto J. considering the meaning of the word "assessment" in the Income Tax Assessment Act said:-

". . . . . . . . the definition of 'assessment' means in my opinion, the completion of the process by which the provisions of the Act relating to liability to tax are given concrete application in a particular case with the consequence that a specified amount of money will become due and payable as the proper tax in that case."

For these reasons His Honour thought the service of a notice of assessment on the taxpayer was critical to determine whether the Commissioner had in law made an assessment for the purposes of the Act. (cf. Federal Commissioner of Taxation v. Hoffnung & Co. Ltd. (1928) 42 C.L.R. 39 at p.55).

This passage also points up the distinction which I think is important in applying the provisions of para. (e) of Schedule 1 of the Review Act. His Honour speaks of the process by which the provisions of the Act relating to liability are given concrete application in a particular case. In my opinion it is to this process that para. (e) is directed. Under each of the acts mentioned it is necessary to assess or calculate what is the liability of the subject in a particular case. In arriving at that assessment or calculation decisions may have to be made about matters which lead to the making of it or which are part of the process of making it. For instance, under the Income Tax Assessment Act, the Commissioner can make a default assessment in certain circumstances e.g. if he is not satisfied with the returns furnished by any person but before making the assessment he must be so satisfied. A decision that he is so satisfied is, in my view, an example of a decision "leading up to" the making of an assessment. He may then proceed to make an assessment and in the course of so doing will make a number of decisions which form "part of the process of making it". In the opinion of Kitto J. it is not made, under that Act, until the notice of assessment is served, because, only then, is the liability to tax created.

The calculation of customs duty, in a particular case, involves identifying the applicable rate of duty and the value of the goods. The rate of duty as already discussed is ascertained by reference to the schedules to the Customs Tariff and after having regard to provisions such as ss.15, 16 and 33A thereof. The content of those schedules, in part, depends on and must be read with the by-laws and determinations already made pursuant to ss. 271 to 273 of the Act. The schedules so read are, in part, the provisions in the light of which the liability to customs duty is to be calculated in a particular case. The by-laws and determinations can of course, as illustrated by this case, be specific and relate to the very goods in respect of which the calculation is being made.

However, this does not, in my view, alter the character of a determination that an item shall apply to particular goods. It is one of the provisions in the light of which customs duty is to be calculated. The making of it is not part of the process of calculation of duty nor is it in my view a decision which can properly be said to be a decision "leading up to the making" of the calculation of duty. The words "leading up to the making" are intended to point to decisions which have to be made or in the circumstances it is appropriate to make before the actual process of assessment or calculation can begin. A determination may be made under s.273 relating to particular goods but the process of calculating duty does not depend on it any more than it depends on the existence of the general provisions of the Act relating to value or duty.

In other words, what para (e) is directed to is the process whereby the liability to tax or duty is calculated in a particular case. A decision to make a by-law or determination is a decision which affects liability. It is not a decision dealing with the calculation of liability. It is only in a temporal sense that it could be said to lead to the making of a calculation of duty, but in my view this is not enough. If it were not possible to point to circumstances where the words were appropriate to describe decisions which were bound up with the assessment or calculation process there may be some force in this approach to construction. As I have illustrated this is not so. I therefore prefer to construe para. (e) in the manner I have indicated.

It follows therefore that in my view a decision to make a determination under s. 273 of the Act is one to which the Act applies. Likewise, a decision refusing to do so.

Is the applicant "a person who is aggrieved" by the decision within the meaning of s.5 of the Review Act?

Under s.5(1) it is only a person who is aggrieved by a decision who can apply for an order of review in respect of it. In this case it was the actual importer, Alvey (Australasia) Pty. Ltd., and not the applicant that paid to the Commonwealth the duty imposed on the goods when they were entered for home consumption. However, after the goods were delivered to it, the applicant was invoiced for and paid an equivalent amount to the importer. The applicant claims that if a determination was made by the Minister applying item 19 to the goods Alvey (Australasia) Pty. Ltd. would be entitled to a refund of duty from the Commonwealth and would in turn be bound to refund a similar amount to the applicant. The respondent has submitted that the applicant is not a person who is aggrieved by the decision because it has not established a right to such a refund. The applicant on the other hand submits first that it has but, alternatively, that, even if it hasn't, it is clearly a person who is aggrieved by the decision.

If I thought it was necessary for the applicant to establish its right to a refund in the event of a determination being made by the Minister I would decline to determine this issue as a preliminary point. The question whether an applicant is a person aggrieved is one of mixed law and fact and in many cases would best be determined at a final hearing when all the facts are before the court and the court has the benefit of a full argument on the matter. This is so in this case.

However, I have formed the view that it is unnecessary for the applicant to show that it has a right to a refund, in the circumstances mentioned, in order to establish locus standi to bring these proceedings. The words "a person who is aggrieved" should not in my view be given a narrow construction. They should not, therefore, be confined to persons who can establish that they have a legal interest at stake in the making of the decision. It is unnecessary and undesirable to discuss the full import of the phrase. I am satisfied from the broad nature of the discretions which are subject to review and from the fact that the procedures are clearly intended in part to be a substitution for the more complex prerogative writ procedures that a narrow meaning was not intended. This doesn't mean that any member of the public can seek an order of review. I am satisfied however that it at least covers a person who can show a grievance which will be suffered as a result of the decision complained of beyond that which he or she has as an ordinary member of the public. In many cases that grievance will be shown because the decision directly affects his or her existing or future legal rights. In some cases however the effect may be less direct. It may affect him or her in the conduct of a business or may, as I think is the case here, affect his or her rights against third parties (cf Robinson v. Western Australian Museum (1977) 138 C.L.R. 283).

In this case, if a decision is made applying item 19 to the goods in question, the applicant will be able to assert a claim to a refund against the importer. On what is before me, I am satisfied that this would be a serious and not a frivolous claim and one which the applicant, on sound legal grounds, might well be advised to pursue. In these circumstances I think it clearly has a grievance, due to the Minister's refusal to make a determination, over and above that which it would have as an ordinary member of the public. The fact that it might pursue the claim and lose is not, in my view, to the point. It is sufficient that it has a serious claim it wishes to pursue and can only pursue if the Minister's decision is overturned. Needless to say if I felt that its claim was frivolous or "colourable" (to use the description of Gibbs J. (as he then was) in Robinson's case supra at p.302) I could readily find that its grievance was no different to that which other members of the public have.

In my view, therefore, the applicant is a person who is aggrieved by the decision in question within the meaning of s.5 of the Review Act.

Conclusion

It will be apparent from my answers to the objections put by the respondent that, in my opinion, these proceedings are competent and that the application should proceed to a full hearing.

I therefore direct that the further hearing of the matter be adjourned to a date to be fixed. I reserve for further argument the question of costs of the hearing of the objections to competency.