Zillin and Minister for Infrastructure, Transport, Regional Development and Local Government
[2011] AATA 135
•1 March 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 135
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2010/2578
GENERAL ADMINISTRATIVE DIVISION ) Re ADAM ZILLIN Applicant
And
MINISTER FOR INFRASTRUCTURE, TRANSPORT, REGIONAL DEVELOPMENT AND LOCAL GOVERNMENT
Respondent
DECISION
Tribunal Deputy President D G Jarvis Date1 March 2011
PlaceAdelaide
Decision The tribunal sets aside the decision under review, and in place of that decision, decides that the applicant’s application to import the Subaru Forester STI motor vehicle referred to in the application dated 9 January 2010 be approved, subject to the following conditions:
(a) the applicant must not apply for approval to import a vehicle into Australia pursuant to the personal imports scheme provided for in the Motor Vehicle Standards Act 1989 (Cth) or the Regulations made thereunder on or before 31 March 2015;
(b) the applicant must not sell the vehicle in Australia before 30 September 2011;
(c) the applicant must advise the Administrator of Motor Vehicle Standards in writing of the name and address of the person(s) who primarily have possession of the vehicle between when the vehicle is landed in Australia and 30 September 2011 AND for the purposes of this condition, the person(s) who primarily have possession of the vehicle shall mean the person(s) who have been permitted by the applicant to have possession of the vehicle, but shall not include other persons who may drive the vehicle with the prior consent of such first mentioned person(s);
(d) the applicant must take steps for the vehicle to comply (through any necessary modifications) with registration requirements in the jurisdiction in which the vehicle is to be registered, as soon as practicable after the vehicle is intended to be used in Australia; and
(e) once the vehicle has been endorsed by the registration authority of that jurisdiction, the applicant must arrange for the vehicle to be fitted with a Personal Import Plate, being a plate of a kind customarily issued by the Department of Infrastructure, Transport, Regional Development and Local Government in the case of importations under Regulation 11 of the Motor Vehicle Standards Regulation 1989 (Cth), and which is intended to give notice to prospective users that the vehicle was personally imported rather than manufactured in Australia or imported commercially.
D G Jarvis
... [Signed] ...
Deputy President
CATCHWORDS
TRANSPORT – Motor vehicles – non standard motor vehicle – application to import – applicant sought approval under Regulation 13 of Motor Vehicle Standards Regulations 1989 – applicant did not intend to return to Australia indefinitely – discretion under Regulation 11 exercised subject to conditions prohibiting sale of vehicle and applying for further import approval for specified periods.
Motor Vehicle Standards Act 1989 (Cth), s 5
Motor Vehicle Standards Regulations 1989 (Cth), regs 11 and 13
Legislative Instruments Act 2003 (Cth), ss 12 and 19
Selway v Minister for Infrastructure, Transport, Regional Development and Local Government [2011] FCA 43
REASONS FOR DECISION
1 March 2011 Deputy President D G Jarvis 1. The applicant, Adam Zillin, lives in Japan. In May 2008, he purchased a second-hand 2005 Subaru Forester STI motor vehicle. He used it as his personal vehicle until the registration lapsed in April 2010. He did not re-register it or incur the related expense of arranging for a vehicle inspection in Japan, because he intended to export the vehicle to Australia under the personal import scheme provided for pursuant to the Motor Vehicle Standards Act 1989 (Cth) (the Act).
2. In an application dated 9 January 2010, Mr Zillin applied for permission to import the vehicle into Australia. In response to a question on the application form reading “Date you are returning/coming to Australia”, Mr Zillin replied “25/5/2010”, but underneath that date wrote “To be Announced” (exhibit R1, T5, page 108).
3. In June 2010, the Administrator of Vehicle Standards decided not to approve the application, on the grounds that Mr Zillin had not provided evidence, at the time of his application, that he intended to remain in Australia indefinitely, as was, by then, required by Regulation 13(1)(b)(i) of the Motor Vehicle Standards Regulations 1989 (Cth) (the Regulations) made under the Act. The Administrator further decided not to exercise the general discretion, conferred by Regulation 11 of the Regulations, to approve an application to import a non standard vehicle.
4. Mr Zillin has applied to this tribunal for review of the administrator’s decision.
Background Facts
5. The following facts are based on Mr Zillin’s evidence, which I accept.
6. Mr Zillin went to Japan in January 2005, and worked for a university as a teacher, teaching English. He was always interested in motor vehicles, and about 18 months ago, he stopped teaching and became a motoring journalist.
7. When he purchased the vehicle, Mr Zillin had a general understanding of the personal import scheme, and his intention was at all times to export the car to Australia pursuant to that scheme. He regards the car as “collectable in a way” in that this particular model is not available in Australia. The differentiating features are that the colour is WR blue, it is fitted with a high performance engine (which is available in Australia only on sedan models, and not STI models), it has 18 inch wheels instead of 16 inch wheels, and it has high performance brakes. Mr Zillin also fitted a different muffler to the car, which he thinks makes the car sound better, and replaced the tyres on the car.
8. He thought that he would be able to sell the car to an enthusiast in Australia, and also discussed the possibility of the vehicle being used by his family in Adelaide, and in particular, by his mother.
9. Over a period prior to November 2009 he made some preliminary inquiries amongst other motor car enthusiasts in an attempt to determine the interest in the car in Australia, but he did not elicit or obtain a commitment from anyone to purchase it. He also made a telephone call to the department that administers the personal import scheme, and was not given to understand that there would be any difficulty in his proposals for the car to be imported into Australia, and in particular, he was not told anything about pending changes to the Regulations.
10. However, the Regulations were amended, on 18 November 2009, by the Motor Vehicle Standards Amendment Regulations 2009 (No.1) (Cth) (the Amending Regulations). The amendments included a new requirement, contained in Regulation 13(1)(b)(i), which requires an applicant to provide evidence to show that they intend to return to Australia indefinitely, as one of the pre-conditions of the grant of approval to the importation of a non standard vehicle under Regulation 13. There had not previously been any such requirement in Regulation 13, and apart from this matter, Mr Zillin was able to satisfy the other requirements of Regulation 13.
11. Mr Zillin lodged his application in January 2010, very promptly after learning of the amendments to the Regulations. He sent a letter to the department making an “impassioned plea” to consider and grant his application for a number of reasons, which he outlined (see exhibit R1, T5, pages 110-111). He pointed out in his letter that he had by then satisfied the 12-month threshold for the use of the vehicle, and went on to explain that he had not sent the car to Australia sooner:
“... because we are a hard working couple and have been diligently saving money over the past year to cover the expenses we will need to pay to get the car through Customs and Quarantine and then onto the road. It has been a difficult and stressful exercise.”
He also said that he and his wife had adhered to all of the departmental guidelines, including completing and translating all necessary documents, had “endured” depreciation of the car, and had spent almost $10,000 in upkeep for the vehicle, including parking, registration, servicing and insurance. He referred to the disadvantage of selling the car on the local market, when prices had plunged, and he was not in a position to comply with the amended Regulations. He asked that his application be treated as an exceptional case for the reasons he outlined.
12. On 26 February 2010, the Department advised Mr Zillin that consideration was being given to the use of discretion in his case, and inquired whether he was willing to accept conditions on his import approval prohibiting the sale of the vehicle in Australia for two years from the date of import approval and preventing him from applying to import another vehicle under the personal imports scheme within five years from the date of the import approval (exhibit R1, T11, page 174).
13. After further communications, Mr Zillin accepted the second postulated condition, that is, that he would not be permitted to import a vehicle into Australia for a five-year period, but was not prepared to agree to the first postulated condition, and he did not suggest an alternative that was acceptable to the Department. As a result, the Administrator refused the application on 15 June 2010, on the grounds that Mr Zillin did not intend to remain in Australia indefinitely as required by Regulation 13(1)(b)(i). The Administrator also said that he did not think it appropriate to use the discretion conferred by Regulation 11, because Mr Zillin had not been able to demonstrate an intention to return to Australia and use the vehicle (exhibit R1, T23, page 197).
14. Mr Zillin has not used the car in Japan since its registration ran out. He is incurring parking expenses at the rate of $2,500 - $3,000 per annum. The car was damaged in August 2010, and he estimates that the cost of repairing the damage would be about $2,500 in Japan, although it is likely to be somewhat less in Australia.
15. Mr Zillin called a vehicle import broker, Kristian Appelt, to give evidence. Mr Appelt estimated the value of the vehicle to be approximately $30,000-$35,000 in Australia but only $18,000 - $19,000 in Japan, assuming that the vehicle had been re-registered in Japan, and in each case, repaired. He estimated that the costs of importing the car into Australia for sale, including transport and freight costs in Japan, a valuation fee to enable Customs duty to be assessed, the amount of Customs duty, and registering the car in Australia, including stamp duty and an inspection fee, would be approximately $9,380. He said that some modifications would be required to be made to the vehicle to permit it to be registered in Australia, but these related to relatively minor matters such as modifying the anchor point for child restraints, the near side rear vision mirror and possibly the headlights. He estimated the costs of the modifications at approximately $400. He confirmed that Subaru Forester vehicles were sold in Australia, but not the particular model that Mr Zillin owned, because that vehicle was equipped with a higher performance engine, which was only available in Australia in Subaru sedans. He thought that there were no material differences in the safety requirements in Australia, compared with those in Japan.
Legislative Scheme
16. Section 3 of the Act provides that its main objects are:
“(a)to achieve uniform vehicle standards to apply to new vehicles when they begin to be used in transport in Australia; and
(b) to regulate the first supply to the market of used imported vehicles.”
17. Section 18 of the Act provides that a person must not import a road vehicle that is non standard, or does not have an identification plate.
18. Under s 5 of the Act, the words “non standard” and “identification plate” are defined as follows, unless the contrary intention appears:
“non standard, in relation to a road vehicle or a vehicle component, means not complying with the national standards and not taken to comply with the national standards by virtue of an approval given under subsection 10A(2).
identification plate means a plate declaring the status of a road vehicle in relation to the national standards and approved to be placed on vehicles of that type or description under procedures and arrangements provided for in subsection 10(1).”
19. The prohibition in s 18 is subject to s 19, under which the Minister may approve importation subject to conditions to be determined, and s 20. Under s 20(1)(b), a person may import a non standard road vehicle or a road vehicle that does not have an identification plate in prescribed circumstances. The relevant circumstances are provided for in the Regulations.
20. Regulation 10 of the Regulations provides that a person may apply to the Minister for approval to import a non standard road vehicle or a road vehicle that does not have an identification plate. Regulation 11 confers a general discretion on the Minister to approve the importation of a non standard vehicle. It provides relevantly:
“(1)The Minister may approve an application to import a non standard road vehicle or a road vehicle that does not have an identification plate.
(2)An approval may be given subject to conditions specified in the instrument of approval.
…”
21. Regulation 13 of the Regulations provides relevantly as follows:
“(1)The Minister may approve an application to import a nonstandard road vehicle or a road vehicle that does not have an identification plate if the Minister is satisfied that:
(aa) the applicant owns the vehicle at the time the application is made; and
(ab) the applicant acquired ownership of the vehicle overseas; and
(ac)the applicant owned the vehicle while overseas and owned it for a continuous period of at least 12 months immediately before arriving in Australia for the purpose of remaining in Australia indefinitely as mentioned in paragraph (b); and
(ad)during that period of ownership the vehicle was available to the applicant for use in transport; and
...
(b) at the time the application is received by the Minister, the applicant is:
(i)an Australian citizen or permanent resident and provides evidence that he or she intends to remain in Australia indefinitely; or
...
(e)the applicant has not been granted an approval under this regulation within the period of 5 years ending on the day on which the vehicle in respect of which the application is made is landed in Australia.
(2)An approval under subregulation (1) is subject to any written conditions determined by the Minister.”
22. Mr Zillin gave evidence confirming the various matters referred to in his “impassioned plea letter” to which I referred in paragraph 11 above. He also referred to the substantial loss that he would sustain if he is forced to sell the vehicle in Japan, and said that the amount involved was significant to him and his wife. He further confirmed that the lack of approval had caused considerable stress and worry. In addition, he expressed concern that there had been no period of grace before the amendments to Regulation 13 became operative, and thought that a Regulation Impact Statement (RIS) should have been provided before the amendments were implemented. He further reiterated that he would have been eligible to import the car into Australia from as early as May 2009 without any obligation to permanently relocate to Australia.
Consideration
23. Mr Zillin does not dispute that he has not complied with Regulation 13(1)(b)(i), and he said that he intends to continue to live in Japan, and not to return and remain in Australia indefinitely. It is accordingly clear that Mr Zillin does not meet one of the mandatory requirements of Regulation 13. I therefore have no discretion under that regulation to permit the importation of the vehicle. It remains necessary to consider whether I should exercise the discretion conferred by Regulation 11 to permit the importation of the vehicle. This discretion may be exercised in circumstances where the requirements of Regulation 13 are not satisfied.
The nature of the discretion under Regulation 11
24. The nature of the discretion conferred by Regulation 11 was recently considered by Mansfield J in Selway v Minister for Infrastructure, Transport, Regional Development and Local Government [2011] FCA 43. His Honour held, at [34], that the tribunal had erred in that case in applying what it took to be a legislative proscription against exercising the discretion conferred by Regulation 11 unless special or exceptional circumstances were demonstrated to justify the exercise of the discretion, notwithstanding that the tribunal had found that the exercise of the discretion in that case would not impair the fulfilment of the objectives of the Act. He did not consider that the tribunal had merely adopted a “cautious approach” to the exercise of the discretion, without imposing a test for its exercise beyond that which is provided in Regulation 11.
25. Mansfield J went on to refer to authorities for the proposition that the general rule is that a discretion expressed without any qualification is unconfined except insofar as it is affected by limitations to be derived from the context and scope and purpose of the legislative scheme, and continued, at [36]:
“The Minister accepted that Reg 13 does not provide a code for the circumstances in which a vehicle intended to be privately used may be imported by a citizen returning to Australia after a period of work overseas. Once that is acknowledged, it is difficult to see how Reg 11 should be confined in the manner the Tribunal approached it.
37 It may well be that it will not be a common circumstance that a person seeking to import a non standard vehicle will have the discretion available under Reg 11 exercised in that person’s favour. In some circumstances, such an importation might undermine or frustrate the policy and objectives of the Act. Clearly, in such a circumstance, the favourable exercise of the discretion under Reg 11 would require there to be weighty counterveiling factors. The fulfilment of that policy or those objectives is clearly relevant to the exercise of the discretion under Reg 11. This is not a case where the Tribunal has found that the importation of the car would undermine or frustrate the policy or objectives of the legislative scheme. In fact, it accepted the opposite.
38 However, beyond that consideration, the discretion under Reg 11 is, in its terms, unfettered. It would be appropriate to have regard to the criteria specified in Reg 13(1) when considering whether to exercise the discretion, but because the discretion under Reg 13 is a separate one, the fact that not all those criteria are satisfied is not itself a reason not to exercise the discretion under Reg 11. The Minister accepted that. In fact, on the Tribunal’s findings, Mr Selway satisfied all those criteria except for that specified in Reg 13(1)(ac) because he had owned the car only for about nine months rather than 12 months immediately before arriving in Australia.
39 In my view, it was an error of law for the Tribunal to construe the apparently unlimited discretion in Reg 11 so that, even where the policy of objectives of the legislative scheme were not undermined, there had to be some exception or special or rare circumstances before the discretion could be exercised in favour of Mr Selway. I do not consider that Reg 11, in its context in the legislative scheme, implies that further fetter or gloss upon its operation.”
26. In some earlier decisions of the tribunal, unfairness or injustice to the applicant, financial loss suffered by the applicant, substantial compliance with the requirements of Regulation 13, unexpected events and exceptional circumstances have been thought to be sufficient to warrant the grant of approval under Regulation 11. I do not understand Mansfield J to have said that such considerations are irrelevant; indeed, he remitted the matter to the tribunal because other matters put forward by Mr Selway, some of which were of the above kind, involved (as his Honour put it, at [42]), “some qualitative assessment of potentially relevant considerations” requiring the tribunal to re-exercise its discretion under Regulation 11. Of course, considerations of the above kind may not in themselves be sufficient to constitute “weighty counterveiling factors” if the grant of approval would undermine or frustrate the policy and objectives of the legislative scheme.
27. Mansfield J also discussed, at [43], the tribunal’s reference to unexpected events in terms that indicated that such events might support the favourable exercise of the discretion where this would not undermine or frustrate the policy or objectives of the legislation. His discussion of this aspect indicated that the determination of whether events were unexpected should be made by reference to the applicant’s state of knowledge at the time when the vehicle was acquired, and not necessarily in the light of subsequent events.
28. It is also relevant, in considering the exercise of discretion under Regulation 11, to take into account that approval may be granted subject to conditions, and in appropriate cases, decision-makers may be able to frame conditions that would achieve the attainment of the policy and objectives of the legislation. Indeed, that is the way in which the Administrator endeavoured to approach the present matter, because he inquired whether Mr Zillin would accept the two postulated conditions of an approval under Regulation 11, to which I referred in paragraph 12 above.
The Objectives of the Act
29. The objectives of the Act can be ascertained from s 3, which as mentioned above provides that the main objects of the Act are:
“(a)to achieve uniform vehicle standards to apply to new vehicles when they begin to be used in transport in Australia; and
(b)to regulate the first supply to the market of used imported vehicles.”
30. The expression “vehicle standard” is defined in s 5(1) as follows:
“vehicle standard means a standard for road vehicles or vehicle components that is designed to:
(a) make road vehicles safe to use; or
(b) control the emission of gas, particulars or noise from road vehicles; or
(c) secure road vehicles against theft; or
(d) promote the saving of energy.”
31. The Act goes on to provide in Part 2 for the Minister to determine vehicle standards, which may incorporate documents that set out standards produced by various organisations, including Standards Australia International Limited. The Minister is also empowered to determine procedures for testing vehicles and components. Part 3 of the Act deals with the placement of identification plates and used import plates on vehicles, to evidence the approval by the Minister of new vehicles or vehicle components of a particular type where they comply with relevant standards. Part 4 of the Act deals with the supply and importation of vehicles, and is relevant to the matters in issue in these proceedings. Part 4A provides for the approval of registered automotive workshops, which are entitled to import and plate a limited number of used vehicles per annum, which must be recorded on a register of specialist and enthusiast vehicles.
32. Counsel for the respondent, Mr Carroll, drew my attention to the Second Reading Speech at the time of the introduction of the Motor Vehicles Standards Bill 1989 (Cth). The then Minister stated that “a vital component of the Federal Government’s road safety strategy is to make the motor vehicle as safe as possible. Our aim is to prevent the crash in the first place and, in the event that a crash occurs, to protect the occupants”. The Minister went on to refer to the relevance of the Australian design rule system, and the objective of enabling the Federal Government “to establish and apply nationally uniform standards for motor vehicle safety and environmental quality expected by the community”, and to underpin national uniformity of standards. The speech further stated that the amendments would represent a major improvement over the then current situation, particularly concerning second-hand imported vehicles.
33. The Minister also referred to provisions in the Bill to control the import of vehicles, both new and second-hand, and continued:
“Provision will also be made in the regulations for the importation of vehicles which are bona fide personal possessions. This will apply to migrants or Australian citizens returning from long periods overseas.”
34. The Explanatory Statement in respect of the Amending Regulations referred to the personal imports scheme. It reads in part:
“For the personal imports scheme, the Regulations limit the ability of individuals to import nonstandard vehicles by extending the eligibility period so that each applicant is only entitled to import one vehicle every five years rather that [sic] one vehicle every 12 months. The purpose is to more accurately focus the scheme onto the original policy intent. The scheme allows migrants and expatriate Australians returning from long periods overseas to bring their personal vehicles with them. Previously, the scheme was open to applicants who had only stayed a relatively short period of time overseas (12 months). Similarly, the scheme was also open to expatriate Australians regularly importing a vehicle every year whilst remaining overseas. These vehicles by-passed normal certification standards. The Regulations prevent abuse of the scheme without impacting upon migrants and Australian citizens returning permanently to Australia.”
35. Further evidence of the intended purpose of the Amending Regulations insofar as they relate to the personal imports scheme appears from the Administrator’s response to an email inquiry from Mr Zillin as to why his application was not being considered by reference to the regulations that were current when he purchased the vehicle, instead of by reference to the Amending Regulations. The Administrator responded:
“I have had a few people ask similar questions, and have advised that the changes to the regulations were made to prevent some people circumventing the intent of the scheme. Alerting people to the changes, and giving significant lead time would have lead [sic] to large numbers of additional people importing in advance of the new regulations.” (exhibit R1, T17, page 187)
Considerations relevant to the subject application
36. Regulation 4 of the Amending Regulations contains transitional provisions whereby Regulation 13 as earlier in force continued to apply to applications made, but not formally determined, under that regulation 13 before the Amending Regulations came into force. In addition, the commencement of the further amendment to Regulation 13 precluding a person who has been granted an importation approval under Regulation 13 from obtaining a further approval under that regulation for five years was deferred by the transitional provisions. However, the amendment requiring the importer to return to Australia indefinitely with the vehicle was operative immediately.
37. On the face of it, to permit the importation of the vehicle under Regulation 11 would be contrary to the purpose and objective of the Amending Regulations and to the purpose and objectives of the Act. However, I think that this would not be the case if conditions along the lines of the two conditions postulated by the Department were to be imposed on a grant of approval under Regulation 11. The imposition of a condition to the effect that Mr Zillin would only be entitled to import one vehicle every five years would place him in a similar position to that of other expatriates from and after the effective date of the Amended Regulations. The other postulated condition would prevent Mr Zillin from selling the vehicle for a not insignificant period after it was imported into Australia. This would not meet the stipulated legislative purpose that importation should only be permitted in circumstances where the applicant is bringing a bona fide personal possession, namely a motor vehicle, to Australia when migrating to this country, or when returning to this country after a long period of absence. However, such a condition should have the effect of discouraging Australian expatriates from engaging in the practice referred to in the explanatory notes to the Amending Regulations, namely regularly importing vehicles into Australia every year whilst they remained overseas.
38. Notwithstanding that an approval under Regulation 11 subject to the two conditions referred to in the preceding paragraph might not be contrary to the policy or objectives of the Act, I do not think such an approval should be issued unless there are circumstances in the particular case that make such an approval appropriate. I think that in the present matter, a number of considerations, in combination, make it appropriate to exercise the discretion. These considerations, which I have not attempted to rank in any particular order of priority, are as follows.
(a)Mr Zillin would have been entitled under the Regulations as they had previously existed to have the vehicle imported into Australia at the time when he acquired the vehicle.
(b)He acted in good faith, in that he had commenced the importation process by making preliminary inquiries as to whether there was interest in the vehicle in Australia.
(c)He had not previously made a practice of importing vehicles into Australia after using them for 12 months. The subject application was the first such application he had ever made, and by the time of his application, he had used the vehicle for appreciably more than the previously applicable minimum 12 month period.
(d)He has already suffered considerable financial hardship as a result of not being able to import the vehicle to Australia within the time frame he had intended.
(e)According to copies of communications included in the section 37 documents, his financial losses have caused stress in his marital relations.
(f)The extent of his financial loss would be reduced if he is able to have the car imported into Australia and sold here.
(g)He has family in South Australia, and may be able to arrange for one or more of his family members to use the vehicle in the period before it may be sold.
(h)His application complied with all aspects of Regulation 13, except for the amending provisions of Regulation 13(1)(b)(i).
(i)There is evidence before me that the vehicle would require relatively slight modifications in order to be registered in Australia, and that it is not dissimilar to other Subaru vehicles that are available in Australia.
(j)The Department itself had explored the grant of import approval under Regulation 11, and from the exchange of emails appeared to accept that the conditions it postulated would put Mr Zillin in a substantially comparable position to other people affected by the Amending Regulations.
(k)Mr Zillin (mistakenly, as I shall explain) thought that the Minister should have issued an RIS before the Amending Regulations came into effect, and that the Amending Regulations were not valid, and this led to protracted further communications with the Department and appears to have made him reluctant to agree to the Department’s postulated conditions.
Validity of the amending regulations
39. In support of his contention that an RIS should have been promulgated before the Amending Regulations came into effect, Mr Zillin referred to the Best Practice Regulation Handbook issued by the Minister for Finance and Deregulation. Clause 2.7 provides:
“A RIS is mandatory for all decisions made by the Australian Government and its agencies that are likely to have a regulatory impact on business or the not-for-profit sector, unless that impact is of a minor or machinery nature and does not substantially alter existing arrangements.”
40. It appears from the email referred to in paragraph 35 above, that a number of expatriates were arranging for vehicles to be imported into Australia under the personal imports scheme, but it is not clear on the evidence before me that the amendments were likely to have “a regulatory impact on business or the not-for-profit sector”. Further, the Explanatory Statement issued by the Minister in relation to the Amending Regulations explained that the Amending Regulations had not been subject to formal consultations as they were of a minor or machinery nature, clarified existing provisions, closed loop holes and ensured that the original policy intent of the scheme was given effect.
41. Mr Zillin contended that the Amending Regulations should not have applied because that would be contrary to s 12(2) of the Legislative Instruments Act 2003 (Cth) (LI Act). That subsection provides in effect that a legislative instrument has no effect if it would take effect before the date it is registered, and as a result the rights of a person as at the date of registration would be affected so as to disadvantage that person, or liabilities would be imposed on a person in respect of anything done or omitted to be done before the date of registration.
42. However, Regulation 2 of the Amending Regulations is expressed to take effect from the day after the Amending Regulations are registered on the Federal Register of Legislative Instruments. It is Regulation 2 that amended Regulation 13. Section 12(2) of the LI Act does not therefore apply to the amendment that resulted in the inclusion of Regulation 13(1)(b)(i). In any event, under s 19 of the LI Act, the fact that consultation does not occur does not affect the validity or enforceability of a legislative instrument.
Conditions of exercise of Regulation 11 discretion
43. I agree with Mr Carroll’s submissions that the postulated conditions that were explored by the Department as conditions of a possible grant of approval under Regulation 11 are not the subject of the reviewable decision before me. However, applications for review in this tribunal proceed by way of a re-hearing. I have the powers and discretions of the decision-maker whose decision is under review. In this context, I am able to consider whether in the circumstances of this matter, approval should be granted under Regulation 11, and also to consider whether any, and if so, what, conditions should be attached to any such approval.
44. In the particular circumstances of this case, to which I referred in paragraph 38 above, I think it appropriate to grant approval under Regulation 11 subject to appropriate conditions that will ensure that the policy and objectives of the Act and the Amending Regulations are not undermined. I consider that the approval should be subject to the conditions set out in paragraph 45 below.
45. In fixing the periods referred to in the condition of approval, I have taken into account that the application to import the vehicle was lodged on 28 January 2010, and conditions to the effect of those referred to in paragraph 46(a) and (b) below were first raised by the Department in an email of 26 February 2010. If Mr Zillin had accepted the postulated conditions (as I think he would have been well advised to have done), I think it likely that his application would have been approved subject to those conditions, and the vehicle would have been imported, by about 31 March 2010. Restraints for the periods which I have proposed would, I think, be adequate to ensure that the policy and objectives of the Act and Amending Regulations are maintained. The condition referred to in paragraph 46(c) below is imposed to facilitate any measures that the Administrator might wish to take to ensure compliance with conditions (a) and (b). The conditions referred to in paragraphs 46(d) and (e) below are standard conditions which, I understand, the Administrator customarily imposes in cases where approval is issued under Regulation 11.
Decision
46. The tribunal sets aside the decision under review, and in place of that decision, decides that the applicant’s application to import the Subaru Forester STI motor vehicle referred to in the application dated 9 January 2010 be approved, subject to the following conditions:
(a)the applicant must not apply for approval to import a vehicle into Australia pursuant to the personal imports scheme provided for in the Motor Vehicle Standards Act 1989 (Cth) or the Regulations made thereunder on or before 31 March 2015;
(b) the applicant must not sell the vehicle in Australia before 30 September 2011;
(c)the applicant must advise the Administrator of Motor Vehicle Standards in writing of the name and address of the person(s) who primarily have possession of the vehicle between when the vehicle is landed in Australia and 30 September 2011 AND for the purposes of this condition, the person(s) who primarily have possession of the vehicle shall mean the person(s) who have been permitted by the applicant to have possession of the vehicle, but shall not include other persons who may drive the vehicle with the prior consent of such first mentioned person(s);
(d)the applicant must take steps for the vehicle to comply (through any necessary modifications) with registration requirements in the jurisdiction in which the vehicle is to be registered, as soon as practicable after the vehicle is intended to be used in Australia; and
(e)once the vehicle has been endorsed by the registration authority of that jurisdiction, the applicant must arrange for the vehicle to be fitted with a Personal Import Plate, being a plate of a kind customarily issued by the Department of Infrastructure, Transport, Regional Development and Local Government in the case of importations under Regulation 11 of the Motor Vehicle Standards Regulation 1989 (Cth), and which is intended to give notice to prospective users that the vehicle was personally imported rather than manufactured in Australia or imported commercially.
I certify that the 46 preceding paragraphs are a
true copy of the reasons for the decision herein
of Deputy President D G Jarvis... [Signed] ...
AssociateDate/s of Hearing 10 February 2011
Date of Decision 1 March 2011
Applicant In person
Counsel for the Respondent Mr J Carroll
Solicitor for the Respondent Clayton Utz
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