Trim Knit Manufacturing Pty Ltd v Bates, Harvey
[1984] FCA 384
•15 NOVEMBER 1984
Re: TRIM KNIT MANUFACTURING PTY. LTD.
And: HARVEY BATES
No. VG34 of 1984
Administrative Law
COURT
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIAN DISTRICT REGISTRY
GENERAL DIVISION
Sweeney J.
McGregor J.
Lockhart J.
CATCHWORDS
Administrative Law - application for review of decision of Minister for Business and Consumer Affairs - determination of appellant's quotas for importation of knitwear - whether decision was the final and operative one determining its base entitlement - whether an improper exercise of power due to failure to take into account a relevant consideration.
Administrative Decisions (Judicial Review) Act 1977,ss. 3(1), 5, 13.
Customs Act 1901,ss. 2, 24(1), 271, 273.
HEARING
MELBOURNE
#DATE 15:11:1984
ORDER
The appeal be dismissed;
Trim Knit Manufacturing Pty. Ltd. pay the costs of Harvey Bates of this appeal.
JUDGE1
I agree with the reasons for judgment and the orders proposed by Lockhart J.
JUDGE2
TRIMKNIT MANUFACTURING PTY. LTD. (Trimknit) has appealed against a decision of a Judge of this Court dismissing an application by it under s.5 of the Administrative Decisions (Judicial Review) Act 1977 (the Judicial Review Act) for an order of review of a "decision" made by HARVEY BATES (respondent) as delegate of the Minister for Business and Consumer Affairs.
The application dated 7 December 1982, as set out in his Honour's judgment, described the "decision" in the following terms -
"...decision of the Respondent made on 17 December, 1981 pursuant to the provisions of Section 273 of the Customs Act 1901, that the Applicant's tariff quotas for the seven year period commencing 1 January, 1981 be as follows :
(a) 71132 units in respect of knitted coats, jumpers, cardigans, sweaters and the like: tube tops.
(b) $982,999-00 in respect of knitted coats, jumpers, cardigans, sweaters and the like: tube tops.
(The reference above to "1 January 1981" should be to 1982)."
Paragraphs (a) and (b) referred to decisions concerning respectively complete garments and "parts for" garments. Review was sought only of the decision relating to complete garments (although it was common ground that the "decisions" are interdependent; if one is impugned the other is affected). Counsel for Trimknit informed the learned primary Judge that this decision was constituted by a determination headed "Ministerial Determination - Quota Goods" made by the respondent on 17 December 1981. After transposing information from the table referred to in the body of the determination and making minor adjustments to wording, his Honour set out the "operative part" of the determination as follows -
"In pursuance of Section 273 of the Customs Act 1901, I, the delegate of the Minister for the time being administering the Act, hereby determine that item 672 in Schedule 2 Part II to the Customs Tariff Act 1966 as proposed to be altered shall apply to goods that are :
(i) knitted or crocheted coats, jumpers, cardigans, sweaters and the like and tube tops, entered for home consumption by the owner specified in the schedule attached hereto and in respect of any such owner, in such quantity as not to exceed during the period commencing on the first day of January 1982 and ending on the first day of December 1982 the amount specified opposite that owner in the abovementioned schedule and to which goods the item 60.05.150 applies; and
(ii) entered for home consumption not earlier than the first day of January 1982 and not later than the thirty first of December 1982; in total not in excess of 9514092."
(Underlining is mine: the parties and the primary Judge used the word "jumpers" to refer to all of the described articles). The attached schedule contained the names of various firms and companies under the heading "OWNER NAME"; opposite each name there were figures in columns headed, inter alia, "BASE", "ENTITLEMENT" and "ALLOCATION". As I understand it, the schedule included the names of all importers affected by the determination. Opposite Trimknit's name the figures "71132.00". "30302.00" and "30302.00" appeared respectively in the columns "BASE", "ENTITLEMENT" and "ALLOCATION". These figures referred to numbers of units of garments, not amounts of money. A further figure of "42.600%", described as "FACTOR", appeared in the schedule immediately above the columns containing the information pertaining to Trimknit. Application of this percentage to an importer's "BASE" yielded its "ENTITLEMENT" (these terms are explained later). Thus, "30302.00", which appeared as Trimknit's entitlement and allocation, represented 42.6% of 71132, its base. Trimknit could therefore enter for home consumption at the (preferential) rate of duty set out in item 672 in Schedule 2 Part II to the Customs Tariff Act 1966 (Customs Tariff) 42.6% of the number of jumpers imported in a previous two year period ending 30 June 1980.
The history of this matter should be noted. On 15 August 1980 the then Minister for Business and Consumer Affairs and Minister for Industry and Commerce in a joint media release announced that there would be introduced a new seven year programme of assistance for the textile, clothing and footwear industries, to be operative from 1 January 1982. They rejected recommendations by the Industries Assistance Commission on the stated ground that, if given effect to, these recommendations would cause loss of employment in Australia. The new programme continued protection of the local textile, clothing and footwear industries by containing imports to a level determined by the Government through tariff quotas. The scheme involved revision of existing categories of goods and introduction of new tariff quotas applying to goods within those categories. Essential features envisaged by the programme included -
1. Quotas with 12 months' validity would be issued in relation to various categories of goods including the category covering knitted coats, jumpers cardigans and sweaters for each calender years commencing 1 January 1982. A quota would represent the maximum qualtity or value of goods in a particular category which could be imported at a preferential rate of duty. Importation of goods beyond the quota was not prohibited but "ordinary" rates of duty (substantially higher than the preferential rates) would apply to deter this.
2. Initially established quotas would be based on the levels of imports in 1979/80.
3. Importers who had in the 24 month period ending 30 June 1980 (the base period) imported goods falling within a category specified in the new programme (i.e. had "previous import performance" or "PIP") could apply to participate in the quota for that category. The share of a quota allocated to such an importer was known as its "base quota".
4. The proportion of quotas to be allocated to importers on the basis of previous import performance was to be 85% of initially established quotas. The remaining 15% was to be sold by tender to new entrants into the particular trade.
5. The base quota to be allocated to an importer in any one year would depend upon the total number or value of "like" goods imported by it during the base period. This would be determined by reference to goods entered for home consumption by the importer:
"all goods entered for home consumption.... will be eligible for base performance."
"Goods entered" were goods in relation to which an entry had been made by the owner pursuant to s.37 of the Customs Act 1901 (as it was at the relevant time). The number of imports of "like" goods during the base period has been variously described as the "base", "base performance", "previous import performance", "established import performance", and, inconsistently with the use mentioned above, "base quota." (I shall generally refer to it as the base).
6. Therefore the base quota of an importer (A), i.e. its share of a quota for a particular category of goods, could be calculated according to the following formula -
A's Base Quota = Quota x 85 x A's Base
__ _________________________ 100 Total of Importer's Bases
(Therefore, the "Factor", referred to above, could be obtained as follows -
Factor = (Quota x 85) %
________________________ (Total of Importers' Bases)
Once established, the base would remain for the seven year period commencing 1 January 1982 and would be applied in each subsequent year to determine the importer's base quota.
When base performance was calculated, a determination would be made by the Minister or his delegate pursuant to s.273 of the Customs Act which would specify a rate of duty lower than that ordinarily otherwise payable in accordance with the Customs Tariff. In this case the relevant determination set out in paraphrase form earlier was dated 17 December 1981.
However, the determination was not itself the fixing of Trimknit's base (which was set out in a notification dated 10 March 1981 and quoted later) but only the rate of duty to be applied to the goods of particular importers including those of Trimknit.
His Honour in his Reasons for Judgment found the effect of the determination dated 17 December 1981 was to apply item 672 (instead of item 60.05.150) of the Customs Tariff to the first 30,302 goods (within the description mentioned) entered for home consumption by Trimknit in 1982. He found that the rate of customs duty under the new arrangements in respect of goods to which item 672 applied was 50%; whereas the rate of customs duty where item 60.05.150 applied was 50% plus $5 per garment; hence the effect of the determination was to apply a lower rate of customs duty (than would otherwise have applied) to those first 30,302 jumpers entered for home consumption by Trimknit in the 12 month period commencing 1 January 1982. He said at p.15 -
"In the language of the Bureau of Customs Notices the number of goods of the category mentioned in the determination which an importer could import during the specified period at a lower rate of duty was the importer's 'quota'."
(In the schedule annexed to the determination what his Honour referred to as the "quota" is in the column headed "Entitlement" or "Allocation"). His Honour decided that notwithstanding the recitation of figures in the columns headed "Base" and "Entitlement" in the schedule, the determination made on 17 December 1981 did not "determine" the "Base" - nor the "Entitlement" of Trimknit "for the seven year period" commencing 1 January 1982; the determination, limited on its face to goods to be "entered for home consumption" during 1982, was "plainly" not a decision determining "the Applicant's tariff quotas for the seven year period commencing" 1 January 1982 and thus the application to the Court was "incorrect in its assertion to that effect". His Honour pointed out that the determination did not state that it "determined" the base and he found, in effect, that the figure in the column headed "Base" merely recorded the figure which was in fact used in the determination as the base. Trimknit had been notified some nine months previously, i.e. on 10 March 1981, that its base performance had been determined at this figure in the following terms -
". . . .
Category 101
Your application for amendment of the advised total approved base performance of 68684 units, for the new arrangements commencing 1.1.1982, has been received.
After examination of the documentation submitted your base performance has been determined as follows:
Amendments: Nil
July 1978 - June 1980 Previously accepted = 68684 Approved Amendment = 2448 Total Approved Base = 71132"
Further, his Honour was of the opinion that s.273 of the Customs Act would not support the construction of the determination as having "determined" Trimknit's base because the section did not contemplate or authorize a determination by the Minister or his delegate of an importer's "base" in a particular period for the purpose of using that base as a factor in allocating a quota in respect of a certain category of goods to that importer.
Sections of the Customs Act 1901 (as it was at the relevant time) were referred to in argument including -
"7. There shall be a Comptroller-General of Customs who under the Minister shall be the permanent head of the Customs and shall have the chief control of the Customs throughout the Commonwealth.
. . . .
9. (1) The Minister may, either generally or as otherwise provided by the instrument of delegation, by writing signed by him, delegate to a person any of his powers under the Customs Acts, other than this power of delegation.
(2) A power so delegated, when exercised by the delegate, shall, for the purposes of the Customs Acts, be deemed to have been exercised by the Minister.
(3) A delegation under this section does not prevent the exercise of a power by the Minister.
. . .
36. Entries may be made for all goods subject to the control of the Customs.
37. (1) Subject to this section, an entry in respect of goods shall be made by the delivery to a Collector of an entry specifying the goods and on the delivery of the entry, the goods shall, for the purposes of this Act, be deemed to be entered.
. . .
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. . . . .
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.
. . . . 273D. Where -
(a) a by-law or determination is made for the purposes of a Customs Tariff proposed in the Parliament or of a Customs Tariff as proposed to be altered by a Customs Tariff alteration proposed in the Parliament: and
(b) the proposed Customs Tariff becomes a Customs Tariff or the proposed alteration is made, as the case may be.
the by-law or determination shall have effect for the purposes of that Customs Tariff or of that Customs Tariff as so altered, as the case may be, as if the by-law or determination had been made for those purposes and the proposed Customs Tariff or the Customs Tariff as proposed to be altered, as the case may be, had been in force on the day on which the by-law or the determination was made.
273EA. (1) The Minister may, at any time when the Parliament is prorogued or the House of Representatives has expired by effluxion of time, has been dissolved or is adjourned otherwise than for a period not exceeding 7 days, publish in the Gazette a notice that it is intended, within 7 sitting days of the House of Representatives after the date of the publication of the notice, to propose in the Parliament a Customs Tariff or Customs Tariff alteration in accordance with particulars specified in the notice and operating as from such time as is specified in the notice, not being -
(a) in the case of a Customs Tariff or Customs Tariff alteration that could have the effect of making the duty payable by any person importing goods greater than the duty that would, but for that Customs Tariff or Customs Tariff alteration, be payable - a time earlier than the time of publication of the notice: or
(b) in any other case - a time earlier than 6 months before the time of publication of the notice.
(2) Where notice of intention to propose a Customs Tariff or a Customs Tariff alteration has been published in accordance with this section, the Customs Tariff or Customs Tariff alteration shall, for the purposes of this Act (other than section 226) and any other Act, be deemed to be a Customs Tariff or a Customs Tariff alteration, as the case may be, proposed in the Parliament.
273F. (1) In this Part -
"proposed item of a Customs Tariff" means -
(a) an item of a Customs Tariff proposed in the Parliament: or
(b) an item of a Customs Tariff as proposed to be altered by a Customs Tariff alteration proposed in the Parliament.
(2) Unless the contrary intention appears, a reference in this Part to an item of a Customs Tariff shall be read as including a reference to a sub-item of such an item, a paragraph of such a sub-item and a sub-paragraph of such a paragraph."
Sections of the Customs Tariff (as it was at the relevant time, except for minor differences in wording, sufficient for present purposes) which were referred to included -
"5. The Customs Act 1901-1965 is incorporated and shall be read as one with this Act.
. . . .
14. (1) The Rules for the Interpretation of the First Schedule set out in Part 1 of the First Schedule have effect for the purpose of ascertaining -
(a) within which item or items any goods fall and, if the goods fall within two or more items, which one of those items applies to the goods:
(b) if the item that applies to the goods is divided into sub-items - within which of those sub-items the goods fall and, if the goods fall within two or more of those sub-items, which one of those sub-items applies to the goods:
(c) if the sub-item that applies to the goods is divided into paragraphs - within which of those paragraphs the goods fall and, if the goods fall within two or more of those paragraphs, which one of those paragraphs applies to the goods: and
(d) if the paragraph that applies to the goods is divided into sub-paragraphs - within which of those sub-paragraphs the goods fall and, if the goods fall within two or more of those sub-paragraphs, which one of those sub-paragraphs applies to the goods.
(2) In the last preceding sub-section and in the First Schedule, including Part 1 of that Schedule -
"Chapter" means a Chapter of a Division:
"column" means a column in Part 11 of the First Schedule:
"Division" means a Division of Part 11 of the First Schedule:
"item" means an item in Part 11 of the First Schedule:
"paragraph" means a paragraph of a sub-item:
"Sub-chapter" means a Sub-chapter of a Chapter:
"sub-item" means a sub-item of an item:
"sub-paragraph means a sub-paragraph of a paragraph.
. . . .
24.(1) The Minister may direct that such rate of duty as is specified in the direction applies, for the purposes of the next succeeding sub-section, in relation to -
(a) such goods as are specified in the direction: or
(b) such class of goods as is specified in the direction.
(2) Where -
(a) goods are parts for other goods:
(b) the first-mentioned goods are specified in a direction given under the last preceding sub-section or are included in a class of goods so specified:
(c) the tariff classification in the First Schedule that applies to the first-mentioned goods is the tariff classification that would apply to the goods if they were goods of the kind for which they are parts:
(d) the duty ascertained in respect of the first-mentioned goods be reference to the rate of duty specified in the direction is less than the duty that, but for this sub-section, would apply in respect of the goods: and
(e) the last-mentioned duty is ascertained by reference to a rate that is, in whole or in part, expressed otherwise than by reference to the value of goods.
the duty in respect of the first-mentioned goods is the duty ascertained by reference to the rate specified in the direction."
. . . ."
The First Schedule reads -
"1. . . . .
2. (1) A reference in an item (including a reference in a sub-item, paragraph or sub-paragraph) to goods of a particular kind shall be read as including a reference to -
(a) goods that are imported in an imcomplete or in an unfinished state but have the essential character of goods of that kind: and
(b) goods that are imported in an unassembled or in a disassembled state but, if assembled, would be goods of that kind or would be goods to which paragraph (a) of this sub-rule applies.
(2) . . .
(3) A reference in an item (including a reference in a sub-item, paragraph or sub-paragraph) to goods consisting of a specific material or substance shall be read as a reference to goods consisting wholly or partly of that material or substance.
(4) . . . ."
The definition of "decision" in s.3 of the Judicial Review Act is as follows -
"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 5 of the Judicial Review Act, so far as relevant, states:-
"(1) A person who is aggrieved by a decision to which this Act applies that is made after the commencement of this Act may apply to the Court for an order of review in respect of the decision on any one or more of the following grounds:-
(a), (b), (c), (d) . . . .
(e) that the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made:
. . . .
(2) The reference in paragraph (1) (e) to an improper exercise of a power shall be construed as including a reference to -
(a). . . .
(b) failing to take a relevant consideration into account in the exercise of a power:
(c), (d), (e). . . .
(f) an exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the particular case:
. . . ."
Senior counsel for Trimknit argued that the learned primary Judge was in error in deciding that the Application attacked the wrong decision. His Honour had found the decision as to Trimknit's base "in its final amended form" was made on 10 March 1981, not on 17 December 1981. Counsel criticised this conclusion, submitting that the decision of 10 March 1981 was not one which had, or purported to have, any statutory base whereas that of 17 December 1981 was referable to the Customs Act s.273. Section 273 authorised determination of quotas as it empowered the Minister to decide that an item should apply to a certain quantity of designated goods to which an item imposing a higher rate of duty would otherwise apply. Counsel argued that a decision as to importers' base performance was involved in a determination of quotas, which could therefore be attacked if there were defects in reasoning leading to the decision as to base performance. The earlier "decision" of 10 March 1981 was not made by the Minister's delegate, and counsel submitted, anticipating a similar submission by the respondent, it could not be reviewed because it was not a decision made under an enactment within the meaning of the definition of "decision" in the Judicial Review Act. Further, counsel submitted, referring to correspondence between Trimknit, its agent, the Victorian Director of Customs and the Quota Control Branch of the Bureau of Customs in Canberra, and Riordan v. Parole Board of the Australian Capital Territory (1980-1981) 34 ALR 322, the March decision was not a "final and operative one". There was no such decision until 17 December 1981. Counsel argued, in effect, that whether or not the earlier decision was reviewable was immaterial: the respondent's determination on 17 December 1981 necessarily involved a decision as to base performance; even if this was merely to adopt the 10 March 1981 decision it was nevertheless a decision of the respondent as to Trimnit's base.
Counsel submitted that the Rules for the Interpretation of Schedule 1 (or the First Schedule) of the Customs Tariff, set out in Part I of the Schedule (the Interpretative Rules), compelled the conclusion that the relevant goods imported by Trimknit in the base period should have been classified as complete goods for the purpose of determining its base. He referred to s.14 of the Customs Tariff providing that the Interpretative Rules have effect for the purpose of ascertaining within which items any goods fall, and Schedule 1 Rule 2(1). In his submission both sub-paras. (a) and (b) of Rule 2(1) applied; it could be said both that the goods (jumper backs and fronts) were imported in an incomplete or unfinished state but had the essential character of jumpers (para.a) and that they were imported in an unassembled or in a disassembled state but, if assembled, would have been jumpers or have had the essential character of jumpers (para.b). Counsel submitted that the learned primary Judge erred in concluding that even if the Interpretative Rules applied to the goods, the latter were correctly classified as parts. Counsel submitted, in effect, that an allocation of a share of the quota for whole jumpers was of greater value to Trimknit than an allocation of a share of the quota for "parts". Trimknit wanted its base quota for (whole) jumpers increased by adding to it half the number of parts for jumpers, being their backs and fronts. He argued that the primary Judge was wrong in concluding that the Interpretative Rules did not apply to the goods imported by Trimknit during the base period. In his submission, his Honour was incorrect in finding that the description of goods by reference to which Trimknit's imports were classified was contained in a Ministerial by-law made under Part XVI of the Customs Act. Counsel contended there was no evidence that the goods were imported under by-law in the base period and, even if they were, it was incorrect to say that the Interpretative Rules had no application to by-laws.
Counsel said, in effect, that if the appeal were successful and the matter remitted to the Minister's delegate, the latter could not vary quota allocation for 1982, but could do so in the future. He agreed that the shares of the available quota allocated importers could need adjustment and conceded that if Trimknit received a larger proportion of the quota, the shares of other importers would be reduced. He submitted that the way to ascertain whether the relevant goods imported ought to be regarded as complete goods satisfying sub-para.(a) or (b) of Rule 2(1) of the Interpretative Rules was to examine them. He conceded that this question might be impossible to decide. A fresh decision would be required; this could be difficult but it would be for the delegate - and not the Court.
Counsel submitted that the respondent when deciding what base quota to allocate to Trimknit could not simply apply the general guidelines laid down in BCN 80/176 without regard to the merits of Trimknit's particular case. But, he contended, referring to the evidence given on behalf of the respondent and the Reasons for Decision pursuant to s.13, this was what the respondent did; he refused to look at anything other than the documentation (i.e. the import entries) as it existed in relation to the relevant base period. If Trimknit had sought to have its import entries amended, then the Quota Control Branch would have considered adjusting Trimknit's base and therefore its base quota; otherwise the documentation would be taken at its face value and nothing else would enter into consideration. In counsel's submission, the respondent had wrongly failed to take into account Trimknit's contention, which was well known to him, that with the concurrence of the Department Trimknit's importations had been wrongly entered, and many imports entered by Trimknit as parts should have been entered as complete garments. He relied on Tagle v. The Minister for Immigration and Ethnic Affairs (1982-1983) 48 ALR 566 as authority for the propositions firstly that a general rule cannot be enforced without regard to the merits of the particular case and secondly, that if the affected person puts forward some considerations relevant to the determination of the matter then the determining authority is bound to take them into account although not bound to give effect to them. He paraphrased the attitude of the regulatory authority as -
"We are not going to take into account the actual facts until your records have been put straight and then we will act on the basis of our records only and will not take into account anything else."
Counsel further submitted that the primary judge erred in regarding the Bureau of Customs Notices (B.C.N.'S) as having statutory effect. He contended that his Honour, in dealing with the merits of the matter, after having decided that the attack was on the wrong decision, failed to analyse the various matters necessary to come to a conclusion about the merits.
Counsel submitted, in effect, that the instruction to the administrator should be that he ought to take into account Trimknit's importations in the base period of whole garments and of parts, to consider the proper classification of the parts imported and, if those parts ought to have been classified as complete garments, then to calculate Trimknit's base accordingly. As a summary of his case he agreed his main submissions were that there was a relevant decision made in December 1981 and the learned primary Judge was in error in finding to the contrary; the respondent erred in that he failed to take into account a relevant consideration, viz. the submissions put to him to the effect that the base underlying Trimknit's base quota had been erroneously determined in that only imported complete goods were taken into account and not, in addition, those deemed to be complete by reason of the Interpretative Rules. He submitted further that Rule 2(1)(a) operated in Trimknit's favour in relation to items and sub-items in that the goods were incomplete or unfinished jumpers having the essential character of jumpers.
So far as it is necessary to consider this aspect, apparently these parts were in separate cartons, viz. in one container there would be one bundle containing a whole series of fronts with arms attached and another bundle with backs which matched exactly, these being, as I understood it, in separate consignments. If, however, the backs and fronts were brought in on different ships, it would be necessary to look at the fronts separately from the backs because imported at a different time; but when all brought in at once sleeves and necks were sometimes separate.
At one stage senior counsel for the respondent pointed out in written submissions that in the court below, Trimknit's counsel contended that the decision which was wrong in law was the decision to fix Trimknit's "base performance". Respondent's counsel reminded the Court of the evidence, viz. that this occurred on 10 March 1981. In the hearing at first instance the grounds related exclusively to the challenge to the fixing of Trimknit's base performance. He submitted that ascertainment of "base performance" is distinct from the determination which is (ostensibly) the subject of review, viz. one pursuant to s.273 (which can be made only by instrument in writing); the determination in question did not on its face purport to be a decision with respect to base performance; further there was no legal obligation on the Minister to determine a quota derived from the ascertainment of base performance; it was wrong to allege that an ascertainment of base performance would necessarily lead to a quota being granted.
Counsel submitted that if the determination was made on the basis of an incorrect interpretation or assessment of a fact as opposed to being made on no evidence, the error was one of fact not of law. He referred to The Australian Gas Light Co. v. The Valuer-General (1940) 40 S.R. (N.S.W.) 126 at pp.137-138: Sean Investments Pty. Ltd. v. MacKellar (1982) 38 ALR 363 at p.375: Reg. v. Industrial Injuries Commissioner, Ex parte Amalgamated Engineering Union (No. 2) (1966) 2 Q.B. 31 at p.50: Peacock v. Zyfert (1982-1983) 48 ALR 549. He submitted that the error (not conceded) complained of was the allegedly wrong application of administrative policy to the facts and thus it was not an error of law; it did not involve the incorrect application of a principle of law to the facts of the case. Trimknit, he said, should not be entitled to complain about the ascertainment of "base performance" because any right to have its base performance taken into account to determine its base quota was, under the provisions of B.C.N No. 80/168, conditional upon goods during the base period having been "entered correctly." He referred to Sternberg v. The Queen (1953-1954) 88 C.L.R. 646. Here, he submitted, Trimknit's own case was that the "part" jumpers should have been entered as "whole" jumpers so that, according to it, these goods were entered incorrectly during the relevant period. He said that the scheme set up administratively on which the determination was based, took as its sole criterion for the ascertainment of base performance, entry and not mere importation; thus the actual nature of the goods imported, or contentions to the Department on that subject, was or were not a consideration relevant to the exercise of the power conferred by s.273 within the meaning of the Judicial Review Act s.5(2)(b), and the questions of the applicability and interpretation of the Interpretative Rules did not arise. Selection of entry as the criterion, he submitted, was in the circumstances, entirely reasonable; upon these entries (presented by the importers) duty had been levied and paid. Importers could hardly say they did not constitute the best or a reliable record. He submitted s.273 gave a wide discretion in terms which, notwithstanding the provisions of the Judicial Review Act, justified the Minister's action. Further, he submitted that if the representatives of Trimknit had approached the Tariff Section of the Customs Department, claimed that entries were wrong, and the Customs Department was so persuaded, and agreed to the amendment, then that could have been given effect to. However, he said, Trimknit had not done that. He submitted the Customs Department had considered what was put to them in the meeting in June 1981 in Canberra but they relied finally upon the best evidence, viz. the records made at the time commencing with an entry form brought into existence by Trimknit which showed the relevant goods as parts. He submitted that these initial documents gave rise to records that were treated as the decisive information in this case. He agreed it was unknown whether "what came in as a part" had a size on it or a label; and that it was not shown how one determined whether, for example, one sleeve was destined for one particular back or front; further, the onus of establishing such facts would lie upon Trimknit. He submitted there were difficulties in applying the Interpretative Rules to something not before one except for three instances; that the entries were a much better and safer record. He argued the Rules applied under s.14 of the Customs Tariff only for the purpose of determining classification for duty; whereas the quota scheme was not concerned with the ascertainment of duty. It was clearly shown, he said, that the Minister or his Delegate set up as an administrative arrangement a scheme indicating that it was based on a dichotomy between parts and wholes and the determining factor was to be the entries for home consumption made by each applicant. He agreed it was necessary to decide firstly what the trader had imported and whether, as a matter of fact, articles were parts or wholes. Thereafter it might or might not be that the Interpretative Rules applied because they in turn determined into which particular category of goods importations fell and this, in turn, had a relevance to duty to be levied; but, he said, the scheme as set up presupposed the existence of a category or sub-category of jumper parts.
Counsel submitted that the decision of 17 December 1981 which was being impugned was only a decision as to a tariff quota; Trimknit could not by means of it attack the figure taken as the base; that figure was only an element entering into the quota decision made on 17 December 1981. Trimknit could not relevantly "bring down" the base in order to succeed in impugning the quota allocation; it was impermissible for Trimknit to attack the base figure on factual questions. He submitted that the base was really a matter of fact. The decision to use a certain figure as a base had no independent force by way of affecting legal rights.
As to the argument that within the meaning of s.5(2)(b) of the Judicial Review Act there had been a failure to take a relevant consideration into account he submitted that the relevant consideration (if it be characterized as base performance) had been taken into account.
I have not attempted fully to restate all the arguments of counsel.
It is common ground that the Minister had settled a scheme whereby importers including Trimknit should have a share of a quota for jumpers to be calculated by reference to the total of their entries in the base period. As a separate act though part of the overall scheme envisaged, a determination was made pursuant to s.273 in favour of those importers fixing duty to be charged on goods which might be imported under their base quotas.
In its application dated 7 December 1982 Trimknit applied for review of a decision made on 17 December 1981. The figure of "71132" was referred to as a tariff quota, the subject of the decision. This was incorrect as this figure represented Trimknit's base for the relevant category of goods. In the opinion of the primary Judge (his Reasons have been referred to above), even if the application were to be treated as if its third line read ". . . applicant's base for the purpose of fixing tariff quotas for the seven year period commencing 1st January" the determination, said to constitute the decision of 17 December 1981, could not be construed as "determining" Trimknit's base. His Honour found that the decision as to Trimknit's base which in reality Trimknit wished to have set aside, was made on 10 March 1981. In the result, his Honour dismissed the application. Before us the respondent was not seeking to rely on the learned primary Judge's finding that because it attacked the "wrong" decision, viz. one as to base, the application was incorrect on its face. Senior counsel for the respondent said that the application sought review of the decision as to quota, and the figure as to base used in that determination could be looked at in a review (although not if it took one "into an area of fact. . . . which does not reveal an error of law"). In my view the determination of 17 December 1981 involved merely the adoption by the respondent of the figure of "71132" as Trimknit's base in relation to the category of complete garments, though not an independent decision in this regard. Calculation of an importer's base precedes determination as to his tariff quota. The determination of 17 December 1981 did not purport to fix bases; it reiterated figures long since decided upon in furtherance of the administrative scheme and not under an enactment. However, I shall accept for present purposes though without so deciding that the determination can be impugned if it is shown, for example, that it adopts an error of law made in calculating the base figure; or that an error previously made (e.g. on 10 March 1981) was carried forward into the determination of 17 December 1981. But here if there was any error made it was one of fact not law.
At the outset I should say that in my opinion the Interpretative Rules, or those set out in the Ministerial Direction made by the Minister pursuant to s.24 of the Customs Tariff, to which reference has been made, may be used to assist in deciding into which category of the Customs Tariff imported goods fall so as to enable the rate of duty to be determined. They have nothing to do with fixing a quota or a base in the terms of the quota scheme announced by two Ministers. There was no obligation to consider, when relying on import entries to ascertain base performance, whether in terms of the Interpretative Rules these entries were correct. Therefore, even if Trimknit's entries were incorrect no error of law was made in using them, as the scheme announced foreshadowed, in a calculation of Trimknit's base.
As was clear to importers from the Bureau of Customs Notices, importers' base performance was to be calculated by reference to their import entries in the base period. Matters to which regard was to be had in fixing bases (or indeed quotas) were for the Minister to decide; they were not prescribed by statute. If it is necessary to say so, in my view, the method adopted for the fixing and calculation of base performance was justifiable as within the general purpose of the Customs law being administered by the Minister. Indeed the entry forms, completed by importers contemporaneously with importation provided a fair, practical and apparently reliable basis on which to ascertain base performance; it is difficult to envisage what could constitute better evidence of this than such import documentation. Counsel for Trimknit did not contend that there was no entitlement to calculate base performance by reference to import entries but did submit that the Minister or Department was wrong in refusing to consider in addition to these in its case, its representations to the Minister that its importations were wrongly entered.
I do not accept that the Minister or Department was without more obliged to take this assertion of error into account; indeed why should this be done without satisfactory evidence to substantiate it? (There is some evidence that three samples only of imported goods were forwarded to the Department). Why should the whole administrative scheme, not devised pursuant to any enactment, be changed to suit one importer? Further, it appears from the s.13 Statement of Reasons and evidence given at the hearing before the learned primary Judge on behalf of the respondent that Trimknit would have been able to approach the Collector of Customs to have its import documentation amended. If the Collector were persuaded that amendment was appropriate then the amended documentation might well have been accepted for the purpose of calculating Trimknit's base. In my view there was not a refusal to consider the submissions of Trimknit; but only a requirement after consideration that, first, entries should be amended. It seems to me to have been appropriate that the Minister or the Department when confronted with a claim that the entries did not reflect the correct position, should suggest that amended entries be filed or that the entries filed should be amended. To vary the quota without lodging amended entries or making amendments to entries would be to alter what was fundamental to the implementation of the quota scheme and procedures to be applied, long since announced and communicated to all relevant importers. Assuming there could be some entitlement to have the scheme varied, as Trimknit, in effect, requested, other considerations arise. The nature of the alleged parts of goods could only, if at all, be within the knowledge of the Trimknit executives; they alone could make a suitable response. Lacking this, the Minister or Department would be open to the serious criticism, particularly by all other importers who were to partake of the quota, that he or it had accepted a notional ex post facto amendment to the scheme without any formal statement in importation documentation by Trimknit and possibly to the prejudice of other importers. Since the Minister and the Department had already announced that base performance was to be calculated upon a consideration of entries already submitted (meaning thereby documents being entries of all importers) why should not Trimknit have to conform to that requirement? If in the process Trimknit became liable to pay further duty on goods already imported (having, so it was said, saved duty of 11% or in the order of 2 million dollars by importing parts) then such payment would be appropriate. On the one hand its importations had been accompanied by an assertion in entries which were to its advantage and allowed it favourably to compete with others in terms of duty; on the other hand, now, by a description of its imported goods inconsistent with its previous statements Trimknit would have gained a further advantage over competitors in that its base quota would be increased. By seeking unreasonably and unsuccessfully to have an integral part of this quota scheme changed, speaking only for myself, I doubt whether Trimknit could validly claim to be "aggrieved" within the meaning of that term in the Judicial Review Act. Has it a legitimate grievance, as referred to by Ellicott J. in Tooheys Ltd. v. Minister for Business and Consumer Affairs (1981) 36 ALR 64 at p.79? Surely the adverse consequences (Ricegrowers Co-operative Mills Ltd. v. Bannerman (1981) 38 ALR 535 at p.540) of which an application complains must at least be referable to some departure from proper administration by a respondent? However, as this aspect of the matter was not the subject of argument, I need not consider it further.
Trimknit's argument regarding failure to take into account a relevant consideration was, in effect, alternatively presented as a submission that there was an application of a general policy without regard to the merits of the particular case. For similar reasons, in my opinion, this submission fails. If adoption of a certain method for calculation of base performance could be described as a "policy" within the meaning of s.5(2)(f) of the Judicial Review Act, the respondent has not been shown to have erred in adhering to that policy in Trimknit's case. However, I do not consider that the scheme is aptly or appropriately to be described as a "policy".
The learned primary Judge was not provided with any figures which would have enabled him to gauge the possible result of any variation of Trimknit's base; or that of other importers. There is good reason to suspect that no satisfactory evidence could be forthcoming from Trimknit. Further, there is no evidence to enable this Court to evaluate the ability now of other importers similarly affected to seek if they chose a corresponding variation. I have already expressed the opinion that the Interpretative Rules or Minister's guidelines have no place in this scheme. Even assuming the contrary for the purpose of discussion, we have not been referred to any evidence as to the possible number of whole jumpers which could be made up from the parts, even if one assumes that all imported parts were capable of assembly into whole jumpers. Some estimate of the number and description of such parts could be important at least on the question of the exercise of a discretion. Though there has been mention of sleeves and necks, implying the separate existence of a body section, the number of (notional) whole jumpers would depend on the number of these components. In the result, not only would Trimknit's base change but other importers might well have an increase on a similar basis. Whether finally Trimknit would be advantaged or the extent of any advantage to it by any variation of its base quota would depend initially on how many, if any, parts of jumpers imported by Trimknit could and would be treated as or deemed to be whole jumpers, and similarly what corresponding variation there might be in the base or base quotas of other importers; and whether these considerations might suggest that the quota ceiling itself might be varied. Lacking such information, it is not easy to accept that Trimknit has been disadvantaged by the Minister's response.
Even if there was accepted some recalculation of Trimknit's (and others') base which might bring about some adjustment of all base quotas, there would still remain the separate question as to whether the Minister would or should be prepared to make a fresh determination corresponding to that dated 17 December 1981 in favour of Trimknit or other importers. He could not be compelled to do so merely because bases or PIP had thereby been increased; and without such a determination the exercise of declining to increase Trimknit's base considered as a separate matter, has not been shown to be of itself to the disadvantage of Trimknit. The assumption seems to be that if there were some increase in the Trimknit base and other importers achieve a similar variation automatically, there must also be a matching determination pursuant to s.273 of the Customs Act. Without it the variation in base would be of little use to the importer. No indication has been given, or even discussed, so far as evidence tells us, as to the possible attitude of the Minister to what might become a rather different administrative scheme.
In the result, leaving aside my own doubt as to whether Trimknit could be said to be "aggrieved", I am of the view there was no decision within the meaning of the Judicial Review Act s.3, no failure to consider Trimknit's application and no unreasonableness demonstrated in the attitude of the Minister.
If there was any relevant decision and one shown to be erroneous whereby Trimknit was aggrieved contrary to my view, there are strong arguments which suggest that in the exercise of discretion, the Court would not make the order sought on behalf of the appellant Trimknit.
There has not been shown to be any error in the decision of the learned primary Judge or the order he made.
I propose that the appeal be dismissed with costs.
JUDGE3
This is an appeal from the judgment of a single judge of this Court (Keely J.) dismissing an application of Trim Knit Manufacturing Pty. Ltd. (the "appellant") for an order of review under the Adminstrative Decisions (Judicial Review) Act 1977 ("the Judicial Review Act") of a decision made on 17 December 1981 by the respondent, as Delegate of the Minister for Business and Consumer Affairs, determining the appellant's quotas for the importation of knitted clothing. The decision is described in the amended application as a:
"decision of the . . . respondent made on 17 December 1981 pursuant to the provisions of s. 273 of the Customs Act 1901 that the applicant's tariff quotas for the seven year period commencing 1st January 1981 be as follows:
(a) 71,132 units in respect of knitted coats, jumpers, cardigans, sweaters and the like: tube tops;
(b) $982,999 in respect of knitted coats, jumpers, cardigans, sweaters and the like: tube tops."
The appellant is an importer of knitted garments. Prior to the commencement on 1 January 1982 of a new scheme for the fixing of tariff quotas for the textile, clothing and footwear industries in Australia, the appellant imported into Australia a large number of knitted garments, including jumpers, for the purpose of selling them to retailers. Some jumpers were imported in a complete state, but most of them were imported in an incomplete state i.e. as fronts, backs, sleeves or collars which were later sewn together. The appellant chose to import most of its jumpers as parts rather than complete garments because the parts attracted a more favourable rate of customs duty. The saving of duty was about 11%.
Tariff quotas are a method of controlling imports to levels determined by the Australian Government. Where goods are allocated a particular quota they may be imported at a rate of duty which is generally lower than the rate applicable if goods are imported beyond the quota levels or are not otherwise the subject of a quota. There is no prohibition on the importation of goods outside the quota arrangements; but where such goods are imported, what are in substance additional or penalty rates of duty are applied, so as to discourage imports.
On 15 August 1980 the Minister for Business and Consumer Affairs and the Minister for Industry and Commerce announced new assistance arrangements to be operative from 1 January 1982 which were to provide for a seven year programme of tariff quotas for the textile, clothing and footwear industries. The essential features of these new administrative arrangements were outlined in a series of Bureau of Customs notices which may be summarised as follows:-
1. Application could be made by interested persons for base quotas to be allocated to them, and those applications would close on 28 November 1980. In order to establish eligibility for base quota entitlement under the proposed arrangements, the applicants for quotas were required to provide the details of imports of similar goods during the two year period ended 30 June 1980 (the "base period").
2. Quotas applicable to various categories of goods, including knitted garments, would be issued each calendar year and remain operative for twelve months commencing on 1 January each year.
3. A separate quota would apply to complete garments as opposed to parts of garments. Also, the quotas for each of the two categories were to be measured in different units. For whole garments the unit of measurement would be the number of whole garments imported, whereas for parts of garments, the unit would be the dollar value of all imported parts.
4. The size of a quota allocated to an importer depended upon the number or value, depending on the category, of "like" goods (i.e. goods falling within a category specified under the new arrangements) imported by him for home consumption during the base period.
5. Once established, the number of imports of "like" goods during the base period would remain for a seven year period commencing 1 January 1982 and would be applied in each subsequent year to determine the importer's share of the total available quota in the relevant categories. That number was known variously as the "base", "base quota", "base performance", "established import performance" or "previous import performance". I shall generally refer to it as the "base entitlement"; but sometimes, for convenience, as the "base performance".
Various letters are in evidence passing between the appellant (or its customs agent or solicitors) and various officers of the Department of Business and Consumer Affairs of which the Bureau of Customs formed part. I shall generally not distinguish between the officers or branches of the Department but refer to them, except where otherwise required, simply as the "Department".
By letter dated 30 September 1980 the appellant told the Department that it intended to lodge an application for a quota in respect of whole garments for the 12 months period commencing 1 January 1982 and requested that its base entitlement, of 68,354, be "carried forward" to the new arrangements. The letter also stated that a formal application for that quota would be lodged at a later date.
By letter dated 18 November 1980 the Department informed the appellant that a check of its base performance revealed that its base entitlement would be 68,454 whole garments.
On 27 November 1980 the appellant's customs agent lodged two formal applications for tariff quotas with the Department for the period to commence on 1 January 1982. The applications were:
(a) an application in respect of whole garments for which the appellant claimed a base entitlement of 68,354 items;
(b) an application in respect of parts of garments for which the appellant claimed a base entitlement valued at $968,812.
By letter dated 14 January 1981 the appellant informed the Department that the base performance figures it had claimed in its two applications were incorrect.
By letter dated 10 March 1981 the Department informed the appellant that its approved base entitlement for the new arrangements in respect of whole garments had been amended to 71,132 items.
On 15 July 1981 the appellant's solicitors wrote to the Department asserting that the appellant's base entitlement in respect of whole goods was 552,760 items and that the determination by the Department of the lower figure was erroneous. The letter said:
"Whilst you have made a determination of our client's base performance, you have not as yet dealt with our client's Application for a tariff quota."
On 24 July 1981 the Department replied to that letter stating inter alia:
"Trim Knit Pty Ltd's base performance for knitted coats, jumpers, cardigans and the like has been established at 71132 units. The quota factor to apply to base performance is 42.59% for the quota year commencing 1 January, 1982.
Trim Knit Pty Ltd's base performance for parts for knitted coats, jumpers, cardigans and the like has been established at $982,999. The quota factor to apply to base performance for parts is 40.92% for the quota year commencing 1 January, 1982.
The quota instruments which contain the quota allocation will be issued to your client later this year in advance of the commencement of the quota period. Your attention is drawn to Bureau of Customs Notice No. 81/117 page 2, paragraph 7 which details circumstances that could result in an increase in the quota factors.
Your letter indicates disagreement with the base performance figures which have been established for your client in each of these quota categories. The question of base performance has been discussed at length with representatives of Trim Knit Pty. Ltd. and their Customs Agent and has been the subject of recent exchanges of correspondence between the company and this Department.
The position is that base performance has been calculated on the basis of the company's recorded entries for home consumption of the goods in the base period 1 July, 1978 to 30 June, 1980. This action is in line with the quota administrative arrangements set out in Bureau of Customs Notice No. 80/176 and is consistent with the equitable treatment accorded all applicants for quota allocations."
On 30 July 1981 the appellant's solicitors wrote to the Department requesting that a statement in writing be furnished setting out:
". . . the findings on material questions of fact which were relevant in coming to your decision and referring to evidence or other material on which those findings were based and giving the reasons for your decision."
On 14 September 1981 the Department replied to the letter of 30 July 1981 in these terms, so far as relevant:
"I refer to your letter of 30 July 1981 in which you requested a statement in writing setting out the findings on material questions of fact which were relevant to the decision relating to your client's 'application for tariff quotas'.
It is not clear whether your letter was intended to be a request for a statement of reasons pursuant to the provisions of the Administrative Appeals Tribunal Act 1975 or the Administrative Decisions (Judicial Review) Act 1977.
An examination of the relevant documents has shown that there is no decision in respect of which an application may be made to the Administrative Appeals Tribunal for a review. It would therefore appear that your client is not entitled to request a statement pursuant to section 28 of the Administrative Appeals Tribunal Act 1975.
Accordingly, I have treated your letter as a request for a statement of reasons pursuant to sub-section 13(1) of the Administrative Decisions (Judicial Review) Act 1977. For the reasons stated below, I do not propose to furnish you with such a statement at this time. . . .
Allocation of base quota is to be made later this year after final consideration has been given to each applicant's claimed import performance during the two year base period referred to above. It is possible that, at this later stage, there may be an increase in the factors to be applied to each base quota category and this is dependent upon the outcome of bona fides checks on importers which are now being conducted.
All applicants for quota under the new system have been required to submit a schedule listing eligible imports during the two year base period and to supply copies of relevant import entries. Following a consideration of the application made by your client, Trim Knit was advised that its base performance during the two year period ending 30 June 1980, for knitted or crocheted coats, jumpers, cardigans, sweaters and the like, in the complete unit category was 71,132 units and for the category that covers parts for these garments, the base performance was $982,999.
These base performance totals will be taken into consideration when, as mentioned above, a decision is made to allocate quotas later this year.
The determination made in your client's case is a determination made in the course of making a final decision as to quota which will be allocated at a later time. As such, I do not consider that it is a decision to which the Administrative Decisions (Judicial Review) Act applies.
I therefore give you notice, in accordance with paragraph 13(3)(a) of the Act, of my opinion that you are not entitled to make a request for the statement of reasons that you have sought."
On 17 December, 1981 the respondent, as Delegate of the Minister for Business and Consumer Affairs ("the Minister") (see s. 9 of the Customs Act 1901 ("the Customs Act")), made two relevant determinations pursuant to sub-s. 273(1) of the Customs Act by separate instruments in writing, one relating to complete garments (No. A07740J) and the other relating to parts of garments (No. A07853F).
The learned primary Judge described the former determination as being in these terms:-
"In pursuance of Section 273 of the Customs Act 1901, I, the delegate of the Minister for the time being administering the Act, hereby determine that item 672 in Schedule 2 Part II to the Customs Tariff Act 1966 as proposed to be altered shall apply to goods that are:
(i) knitted or crocheted coats, jumpers, cardigans, sweaters and the like and tube tops, entered for home consumption by the owner specified in the schedule attached hereto and in respect of any such owner, in such quantity as not to exceed during the period commencing on the first day of January 1982 and ending on the first day of December 1982 the amount specified opposite that owner in the abovementioned schedule and to which goods the item 60.06.150 applies; and
(ii) entered for home consumption not earlier than the first day of January 1982 and not later than the thirty first of December 1982; in total not in excess of 9514092."
The determination included the figure "8201" in a box titled "quota period", and the words "This Determination is not transferable" at the foot of the document. Opposite the description "owner" the words "as per attached schedule" appeared. Annexed to the determination was a page forming part of a schedule containing, inter alia, the names of various persons under the heading "owner name" and, opposite each name, figures subsumed under columns headed, inter alia, "Base", "Entitlement" and "Allocation". It is common ground that the schedule contained the names of all importers affected by the determination.
The determination provided, in effect, that item 672 in Schedule 2 Part II of the Tariff "as proposed to be altered" would apply to the first 30,302 knitted garments entered for home consumption by the appellant in 1982. All knitted garments imported by the appellant over and above the 30,302 level would attract the rate of customs duty established by item 60.05.150. The figure 30,302 was obtained by multiplying the appellant's base entitlement approved by the Department (namely 71,132 units) by the quota factor for 1982 (42.59%). The rate of customs duty under the new arrangements in respect of goods to which item 672 applied was 50%; whereas the rate of customs duty in respect of goods to which item 60.05.150 applied was 50% plus $5 per garment. Hence, the effect of the determination was to apply a lower rate of customs duty to the first 30,302 knitted garments entered for home consumption by the appellant in the twelve month period commencing 1 January 1982.
The second determination made by the Delegate of the Minister on 17 December 1981 related to parts of garments. While the determination relating to parts of knitted garments and the determination relating to whole garments were in similar form, they were calculated upon a different basis. In the case of the former determination, the value of the goods imported plays an integral part, whereas with the latter determination, the number of goods imported is critical.
The appellant objected to both determinations.
By letter dated 26 January 1982 the appellant's solicitors again required the Department to furnish a statement in writing setting out the:
"findings on material questions of fact which were relevant in coming to your decision (i.e. in respect of both determinations) and refer to evidence or other material on which those findings were based and giving the reasons for your decision."
By letter dated 25 February 1982 the Department replied to the appellant's solicitors declining to furnish a statement of reasons for the decisions of the respondent on the ground that a determination under s. 273:
"is not a decision of an administrative character and, further, that such a decision is not a decision to which the Administrative Decisions (Judicial Review) Act 1977 applies."
Following the judgment of the Full Court of this Court in Peacock v. Zvfert (1983) 48 A.L.R. 549 which decided to the contrary of the Department's attitude, a statement pursuant to s. 13 of the Judicial Review Act was furnished to the appellant's solicitors which stated the findings on material questions of fact and the evidence upon which those findings of fact were based and the reasons for the decisions. The statement provided, inter alia, the following reasons:
"1. When the Minister for Industry and Commerce determines the total quota allocation for a particular year an allocation factor is determined by dividing the base quota ceiling by the combined total of all applicants' previous import performance. This factor when applied to each importer's previous import performance indicates the actual base quota entitlement available to be allocated to each holder of previous import performance.
2. Each importer's relative share of the available base quota is fixed for the seven year period. However the amount of the available allocations may change each year, and quotas by way of Ministerial Determinations pursuant to Section 273 of the Customs Act 1901 are issued on a calender basis with twelve months validity.
3. Whilst quotas are not specifically referred to in the Customs Act 1901 particular determinations of allocation entitlements are made and issued under Sections 271 to 273 of Part XVI of the said Act. Under these sections the Minister or his authorised delegate may make by-laws or determinations in relation to goods for the purposes of items or proposed items in the Customs Tariff Act 1977. 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.
4. Modran Proprietary Limited lodged quota applications on behalf of Trim Knit in response to BCN 80/176.
5. Following a decision by the Chief Tariff Officer, Bureau of Customs, Melbourne that certain shipments of goods were in fact sufficiently made up to be classified as complete garments the matter of quota allocation was raised with the Quota Control Branch by Trim Knit's agent, Modran Pty. Ltd. in January 1981.
6. The situation perceived by Trim Knit as a consequence of the decision referred to above, was discussed at the meeting referred to in paragraph 15 of the findings on material questions of fact and Trim Knit was advised to approach the Collector of Customs, Victoria, concerning any amendment of entries in respect of past shipments.
7. If Trim Knit had been successful in any approach to the Collector of Customs to have import entries in the base period amended the Quota Control Branch would if necessary have given consideration to any required adjustment of previous import performance and where appropriate quota ceiling levels and resultant quota allocations.
8. The Quota Control Branch was not aware of any action taken by Trim Knit to approach the Collector of Customs with a view to amending any information contained on previous import documentation.
9. Ministerial Determinations have been issued to Trim Knit for the period 1 January 1982 to 31 December 1982. The quota allocations in the particular quota categories were based upon the information shown on import entries submitted with the company's quota applications and were calculated according to formula mentiones in paragraph 1 above."
The appellant applied to this Court by application dated 7 December 1982 for an order of review of the respondent's decisions of 17 December 1981 on various grounds pursuant to s. 5 of the Judicial Review Act. The learned primary Judge said in his reasons for judgment that the decision sought to be reviewed was that relating to complete garments, not the one relating to parts of garments. I shall assume that the decision of 17 December 1981 relating to complete garments is the one impugned by the appellant. It is, however, common ground that both decisions are interrelated and that they stand or fall together. My reference to "the decision" henceforth must be so understood.
His Honour held that the appellant attacked the wrong decision. He said that it was not the decision of 17 December 1981 that determined the base or entitlement of the appellant for the seven year period commencing 1 January 1982, but the decision of the Department made on or about 10 March 1981 and notified to the appellant by a document of that date. His Honour also found that s. 273 of the Customs Act does not contemplate or authorise a determination by the Minister or his Delegate of an importer's base entitlement in a particular period for the purpose of using that base as a factor in allocating a quota for certain categories of goods to that importer. His Honour said that these considerations led to the dismissal of the application for an order of review because the application in terms linked the decision of 17 December with the fixing of the base entitlement for the seven year period.
His Honour nevertheless proceeded to consider the other arguments advanced by the appellant in support of its case attacking the decision of 17 December 1981. These arguments were essentially that the procedures which were required by law to be observed in connection with the making of the decision were not observed; that the making of the decision was an improper exercise of the power conferred by the Customs Act; and that the decision involved an error of law.
His Honour rejected these arguments of the appellant and dismissed the application with costs.
It was submitted by the appellant before us that his Honor erred in concluding that the appellant had attacked the wrong decision. Counsel for the appellant submitted that, although the decision of the respondent of 17 December 1981 pursuant to s. 273 was a decision allocating the appellant its quota for the twelve month period commencing 1 January 1982, it was a decision nevertheless which necessarily involved the respondent in reaching a prior and "intermediate" decision determining the appellant's base entitlement for the seven year period. The respondent's ultimate decision was to fix the appellant's quota, but this decision is susceptible of review because of defects in the process of reasoning which inevitably led to it, including defects in relation to the Department's decision on base entitlement made in March. It was also submitted by the appellants that the respondents made only one decision, namely that of 17 December 1981 and that the decision of 10 March 1981, in so far as it was a decision at all, was not made by the respondent but by the Senior Inspector Quotas of the Quotas Control Branch of the Department.
It was submitted by the appellant that the decision of 10 March was not reviewable under the Judicial Review Act because it was not made "under an enactment" within the meaning of the definition of that expression in sub-s. 3(1) of that Act and, in any case, was not final in character or operation. It was further argued that the only final and operative decision made by the respondent was the one made on 17 December. That decision was said not to have been founded in any relevant sense on the supposed decision of 10 March. It was submitted that the Department in any event led the appellant not to attack the decision of 10 March by asserting that that decision was not final in character, but only interim and that in these circumstances there was no reason why the decision of 17 December should not be open to attack on the ground that its essential foundation was erroneous.
It was conceded by the respondent in argument before us that the 10 March decision determining the appellant's base entitlement for the seven year period, was a necessary element in the decision of 17 December and that, if that base entitlement had been ascertained contrary to law, the 17 December decision could not itself be supported and would be therefore susceptible to review under the Judicial Review Act.
Sub-s. 273(1) of the Customs Act provides:
"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.
It is true that s. 273 does not specifically mention quotas; but the effect of by-laws made under s. 271 or determinations made under s. 273 can be to establish quotas. Under s. 271 the Minister, or his Delegate, may make by-laws in relation to goods or in relation to "kinds" of goods for the purposes of "items or proposed items" of the tariff. Section 273 empowers the Minister or his Delegate to make determinations with respect to particular goods. The exercise of these powers may result in items or proposed items of the Tariff being applied to goods so that, for practical purposes, a different rate of duty becomes payable on their importation. Thus, by making a determination under s. 273, certain numbers of items of particular goods may be imported at a lower rate of duty than would be payable if the goods were classified under a different item or proposed item of the Tariff.
The appellant submitted that the appellant's base entitlement for completed knitted garments was determined in March 1981 and that this was automatically adopted by the respondent on 17 December 1981 when he made his determination under sub-s. 273(1). Hence, so it was said, it was the March not the December decision that operated to determine the base entitlement. It was then submitted that the March decision was not a decision made "under an enactment" within the meaning of that expression in sub-s. 3(1) of the Judicial Review Act and therefore is not susceptible of review thereunder. I do not find it necessary to decide whether there was a decision made in March and, if so, whether it was made under the Customs Act. I am content to assume for present purposes that what was then done answered the description of a decision and that it was made under the Customs Act.
Whatever decision was made in March 1981 it was made by an officer of the Department, not being the Minister or his Delegate. It was not a decision that operated by itself to affect the interests of the appellant as an importer of goods. It was part of the administrative process within the Department which led in due course to the respondent, as the Minister's Delegate, considering whether or not to make a determination under sub-s. 273(1). It is not clear from the evidence whether the respodent gave fresh consideration to the base entitlement of the appellant or simply adopted, without independent consideration, the March findings as a necessary element in the determination of 17 December. The s. 13 statement suggests that the respondent automatically applied the March figures as a matter of departmental practice and then went on to decide what the appellant's quota should be for the year commencing 1 January 1982.
On any view of the matter, the determination of December 1981 necessarily involved either an intermediate decision of the respondent about the appellant's base entitlement or an assumption by him that the base was as found in March that year. The appellant's base was an essential element in the December 1981 determination. Until the base entitlement was fixed for the appellant and other importers for the seven year period the new scheme could not commence. Without these bases there could be no quotas allocated to each importer for any part of the seven year period for which the scheme was to operate. Hence the appellant's quota for the year commencing 1 January 1982 could not be determined until its base entitlement had been ascertained. Any error of law that may have been involved in fixing the appellant's base entitlement would, in my view, necessarily vitiate the determination of December 1981 itself. The base entitlement was the fundamental premise upon which the quota for the year commencing 1 January 1982 was determined.
The appellant submitted that the decision of 17 December was made on the basis that the entries made by the appellant during the base period relating to the relevant goods were to determine the appellant's quota entitlement during the year commencing 1 January 1982 and subsequent years. It was submitted that the respondent refused to consider the submissions of the appellant and its solicitors seeking, in effect, a revision or reconsideration of the particular provisions of the Tariff applicable to goods imported by the appellant during the base period. This refusal was said to both constitute a failure to take into account a relevant consideration when making the December determination and the exercise of a general rule of policy without regard to the merits of the appellant's case. The appellant submitted that, in the result, the December determination should be reviewed on the ground that the making of the decision was an improper exercise of the power conferred by s. 273 of the Customs Act in that the respondent either failed to take a relevant consideration into account in the exercise of its power or exercised its discretionary power in accordance with a rule or policy without regard to the merits of the particular case (see para. 5(1) (e) and paras. 5(2) (b) and (f) of the Judicial Review Act).
Counsel for the appellant relied in particular upon the judgment of a Full Court of this Court in Minister for Immigration and Ethnic Affairs v. Tagle (1983) 48 A.L.R. 566 and the judgment of Deane J. in Sean Investments Pty. Ltd. v. MacKellar (1981) 38 A.L.R. 363.
The new scheme involved as essential elements the introduction of revised categories of goods in the Schedule to the Customs Tariff Act 1966 ("the Customs Tariff Act"), and the application of new tariff quotas to clothing products within those revised categories. The amount of the total available allocations may, of course, change from year to year during the subsistence of the scheme. The scheme envisages that the quotas will be determined by determinations pursuant to s. 273 made each year for the ensuing twelve calendar months. The size of the quota cake may therefore vary from year to year and each importer's slice of the cake may also vary. But each importer's base quota entitlement is determined for the whole seven year period and is governed by his previous import performance during the base period i.e. the two years ended 30 June 1980. The base entitlement remains fixed, but the actual size of the annual quota may change for various reasons.
Most of the goods imported by the appellant during the base period were entered as parts of garments or incomplete garments which resulted in lower customs duty being payable by it under the law as it then stood. Later, the appellant sought to contend to the Department that its base entitlement should be changed for the purposes of the new arrangements effective from 1 January 1982; the change being in substance to treat the relevant parts (backs, fronts, sleeves and collars) as whole garments. The result would be the enlargement of the appellant's quotas for whole garments and a diminution of the appellant's quotas for parts of garments. The result under the new arrangements would be that the appellant would pay less customs duty.
The appellant made submissions to the Department, some in writing and others oral, asserting matters which, if accepted by the Department may have led to the revision, actual or notional, of the appellant's base entitlement for the base period and a consequent increase in its base entitlement for whole garments. I have already described the arrangements in some detail and need not repeat them.
The Department did not reject the submissions of the appellant but rather its response was to say, in effect, that each importer's base entitlement was determinative of his quota for each of the seven years for which the scheme was to operate. The base entitlement was itself to be determined by reference to the import entries of each importer during the base period. If any importer, including the appellant, wished to have those entries amended, the Department would consider whatever material that importer sought to place before it bearing on that question and, if satisfied that in all the circumstances it should be done, the Department would permit the amendment of that importer's base entitlement.
It is not clear from the evidence whether the Department said that in those circumstances it would itself amend the import entries of the particular importer, whether it would allow him to make the necessary amendment himself or whether it would treat the entries as if they had been amended and thus notionally re-assess the base entitlement of the importer for the purpose of the annual allocation of quotas. It was not submitted by the appellant that the Department lacked power to amend the past entries or allow the importer to make the amendments himself, so nothing turns on this point. The Department's attitude to the appellant's submission is encapsulated in the following extract from the letter from the Department to the appellant's solicitors of 14 September 1981:
"Allocation of base quota is to be made later this year after final consideration has been given to each applicant's claimed import performance during the two year base period referred to above. It is possible that, at this later stage, there may be an increase in the factors to be applied to each base quota category and this is dependent upon the outcome of bona fides checks on importers which are now being conducted."
The submissions of the appellant to the Department in support of its application for review of its base entitlement were based on the assumption that the Interpretative Rules set out in Part 1 of Schedule I to the Customs Tariff Act (especially paras. 2(1)(a) and (b)) operated to render the parts of garments imported during the base period as whole garments. It became common ground during the course of argument before us that those Interpretative Rules were not the relevant Interpretative Rules at all; but that a Ministerial direction, given under sub-s. 24(1) of the Customs Tariff Act, applied to the importation of the relevant goods by the appellant and other importers of garments during the base period and that this direction included its own Interpretative Rules. As the relevant provisions of those last mentioned interpretative rules were in substance the same as those in Part 1 of Schedule I to the Customs Tariff Act the respondent did not contend that the failure of the appellant to identify the relevant Interpretative Rules, in either his correspondence with the Department or in discussions with its officers, adversely affected the appellant's case.
The appellant did not assert that the Department was not entitled either to formulate and apply its new scheme founded on each relevant importer's base entitlement during a period determined by the Department or to determine the base entitlement of each importer by reference to the import entries of the particular importer. But the appellant submitted that the Department erred in relying solely on the import entries of the appellant in relation to quotas imported by it during the base period to determine the appellant's base entitlement.
If importations of goods during the base period are to form the nucleus of a scheme for allocation of quotas (and it was not suggested that they should not) it is difficult to visualise a more sensible basis from which to operate than the actual entries of the importers concerned. The importer himself (or his agent) completes the relevant forms and submits them to the Department. If the goods are processed through the Department based on those recorded entries I do not understand why the Department should be criticised for saying that an importer who seeks to amend those entries, whether actually or notionally, should satisfy the Department that in all the circumstances the amendment should be made. This is the very thing which the Department did in this case. Yet the appellant chose not to put before the Department the material, if any, which may have been relevant to the reclassification of the goods from parts of garments to whole garments.
Plainly it is not enough for the appellant to merely assert to the Department, as it did in 1981, that goods imported by it during the base period, although entered as parts of garments, in fact had the essential character of complete garments or would, if assembled, be complete garments or have the essential character of complete garments within the meaning of the Interpretative Rules. The facts relating to each importation would require careful analysis. There may be considerable difficulty in linking particular parts of jumpers with other parts. Mere correspondence in the numbers of parts imported in a particular shipment may not be sufficient. The appellant did not, of course, invite this Court to determine whether the parts of jumpers imported by it during the base period were in fact whole garments by operation of the Interpretive Provisions of the Minister's directions. Nor would it have been possible for us to do this.
The Department did not refuse to hear any representations of the appellant. All it did was to say to the appellant that, before any revision of the entries would be considered it would have to hear from the appellant and be satisfied by the appellant and the material submitted to the Department that it was appropriate to enlarge the base entitlement. Once this was done the quotas for each relevant year may be increased. This conduct was consistent with the scheme itself.
In my opinion the respondent's conduct did not fall within the conduct mentioned in any of the grounds referred to in sub-ss. 5(1) or (2) of the Judicial Review Act relied on by the appellant. The authorities to which we were referred by the appellant need not be mentioned by me. I considered them carefully in argument, but they do not appear to me to bear upon the issues arising in this case. I would dismiss the appeal with costs.
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