Minister for Transport and Regional Services v Marra [2003] FCAFC 294

FEDERAL COURT OF AUSTRALIA

Minister for Transport and Regional Services v Marra [2003] FCAFC 294

CUSTOMS AND EXCISE – transport – importation of vehicle without identification plate – whether approval can be granted after vehicle imported

Administrative Appeals Tribunal Act 1975 (Cth) s 44 Customs Act 1901 (Cth) ss 68, 71B Judiciary Act 1903 (Cth) s 39B Motor Vehicles Standards Act 1989 (Cth) ss 5, 17A, 18, 19, 20 Motor Vehicle Standards Regulations 1989 (Cth) regs 5, 9A, 9B, 9C, 9D

McGurk Construction and Rigging Co Ltd v Comptroller-General of Customs (1987) 73 ALR 381cited Re Marra and Minister for Transport and Regional Services (2003) 73 ALD 704 affirmed R v Bull (1974) 131 CLR 203 cited MINISTER FOR TRANSPORT AND REGIONAL SERVICES v ATTILIO MARRA W84 OF 2003 TAMBERLIN, R D NICHOLSON & EMMETT JJ 18 DECEMBER 2003 PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY W84 OF 2003

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN: MINISTER FOR TRANSPORT AND REGIONAL SERVICES

APPELLANT

AND: ATTILIO MARRA

RESPONDENT

JUDGES: TAMBERLIN, R D NICHOLSON & EMMETT JJ

DATE OF ORDER: 18 DECEMBER 2003

WHERE MADE: PERTH

THE COURT ORDERS THAT: 1. the appeal be dismissed; 2. the appellant pay the respondent's costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY W46 OF 2003

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN: MINISTER FOR TRANSPORT AND REGIONAL SERVICES

APPELLANT

AND: ATTILIO MARRA

RESPONDENT

JUDGES: TAMBERLIN, R D NICHOLSON & EMMETT JJ

DATE: 18 DECEMBER 2003

PLACE: PERTH

REASONS FOR JUDGMENT

THE COURT:

1 This appeal from a decision of a Deputy President of the Administrative Appeals Tribunal ('the Tribunal') involves a question of law as to the interpretation of the provisions of the Motor Vehicles Standards Act 1989 (Cth)('the Act') and the Motor Vehicle Standards Regulations 1989 (Cth) ('the Regulations') made under the Act. The question is whether the appellant, the Minister for Transport and Regional Services ('the Minister'), has power to approve the importation of a road vehicle, after the vehicle has been imported into Australia, so as to permit the owner to take delivery of the vehicle. The respondent, Attilio Marra ('Mr Marra'), applied for such approval in respect of a 2000 Honda Montesa FX 650Y Vigor motorcycle ('the Motorcycle'). The Minister refused to give approval and Mr Marra sought review of that decision under the Administrative Appeals Tribunal Act 1975 (Cth) ('the AAT Act'). The Tribunal set aside the decision under review and, in substitution for that decision, decided that the application should be approved: see Re Marra and Minister for Transport and Regional Services (2003) 73 ALD 704. The Minister appeals from that decision. 2 On 22 May 2000, Mr Marra applied to migrate from Italy to Australia. On 15 December 2000, he purchased the Motorcycle in Italy and then registered and used the Motorcycle in Italy. On 12 February 2001, Mr Marra and his family were granted visas to enter and remain in Australia. Mr Marra ceased using the Motorcycle in Italy on 30 July 2001 and shipped it to Australia. The Motorcycle was landed in Fremantle on 6 September 2001. Mr Marra and his family arrived in Australia on 11 September 2001. 3 On 20 September 2001, Mr Marra lodged with the Department of Transport and Regional Services ('the Department') a form entitled 'Application For Vehicle Import Approval' in respect of the Motorcycle. After some correspondence, a delegate of the Minister refused Mr Marra's application on 24 December 2001. On 21 January 2002, Mr Marra lodged an application for review of the delegate's decision by the Tribunal. 4 The Minister applied for the application for review to be struck out but, on 21 June 2002, the Tribunal declined to strike out the application. The Tribunal considered that, standing in the shoes of the original decision maker, the Tribunal had power to approve the application to import the Motorcycle after it had been imported. The Tribunal remitted the matter to the Minister's delegate to consider the exercise of the discretionary power to grant approval. 5 The Minister then sought prerogative writ relief from the Federal Court under s 39B of the Judiciary Act 1903 (Cth)in respect of the Tribunal's decision not to strike out the application. On 7 February 2003, the Federal Court adjourned the proceeding with a view to the Tribunal completing its review of the whole of the matter. 6 On 7 April 2003, the Tribunal reiterated its earlier ruling that the power to approve an application to import the Motorcycle could be exercised after the Motorcycle had been imported. The Tribunal also decided that the discretion to approve the application should be exercised in favour of Mr Marra. 7 The Minister then brought this appeal pursuant to s 44 of the AAT Act from the decision made by the Tribunal on 7 April 2003. Under s 44(1) of the AAT Act, there is a right of appeal to the Federal Court on a question of law from any decision of the Tribunal. 8 The Act was enacted to provide for national motor vehicle standards and for related purposes. According to s 3, the object of the Act is to achieve uniform vehicle standards to apply to road vehicles when they begin to be used in transport in Australia. Under s 5(1), the term 'use in transport' in relation to a road vehicle means 'drive' the 'vehicle on a public road'. 9 Under s 7(1) of the Act, the Minister may determine, in writing, vehicle standards for road vehicles. Under s 5(1), 'vehicle standard' means a standard for road vehicles that is designed to: * make road vehicles safe to use; * control the emission of gas, particles or noise from road vehicles; * secure road vehicles against theft; * promote the saving of energy. 10 Under s 10 of the Act, the Minister may determine procedures and arrangements for the placement of plates on road vehicles, if approval has been given under s 10A for plates to be placed on the vehicles. Under s 10A(1), if road vehicles of a particular type comply with the national standards, the Minister must give written approval for identification plates to be placed on vehicles of that type. Under s 10A(2), if road vehicles of a particular type do not comply with the national standard, but the Minister is satisfied that such non-compliance is only in minor and inconsequential respects, the Minister may give written approval for identification plates to be placed on vehicles of that type. Under s 5(1), a 'national standard' is a vehicle standard determined under s 7. An identification plate is, under s 5(1), 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 s 10. 11 The question in issue concerns the operation of Pt 4 of the Act, which is concerned with the supply and importation of vehicles. First, however, it is necessary to say something about the Customs Act 1901 (Cth) ('the Customs Act'). Section 68 of the Customs Act applies to goods that are imported into Australia. Under s 68(2) and s 68(3), the owner of goods to which s 68 applies must enter the goods for home consumption, for warehousing or for transhipment. Section 68(3) recognises that entry of goods must occur after the arrival of the ship or aircraft, that is, after importation, although s 68(2) makes permissive entry beforehand. An import entry advice must then be given by Customs under s 71B(1). Section 71B(4) of the Customs Act provides that, where an import entry advice is given and a payment is made of any duty or other charge or fee payable at the time of entry of the goods covered by the import entry advice, Customs must give an authority to take the goods into home consumption, to warehouse them or to tranship them, as the case requires. 12 Section 17A(1) of the Act provides that an authority to deal with an imported road vehicle under the Customs Actis subject to the condition that an approval under s 17A for the importer to take delivery of the vehicle is given by the Minister or an officer of the Department. Under s 17A(2), if the vehicle does not have an identification plate, an approval under s 17A must be granted if the importer produces to the Minister, or to such officer, a copy of 'the approval under section 19 or 20' in respect of the vehicle. 13 Section 19(1) of the Act relevantly provides that a person may import a road vehicle that does not have an identification plate 'with the written approval of the Minister'. Section 20(1)(b) relevantly provides that a person may import a road vehicle that does not have an identification plate in prescribed circumstances. Section 20(3) provides that regulations for the purposes of that paragraph may provide for the importation of a road vehicle 'with the written approval of the Minister'. 14 The Regulations, as in force at the time when the decision was made by the Tribunal, dealt with approval to import vehicles without 'compliance plates'. It is common ground that references to 'compliance plates' in the Regulations are references to 'identification plates' within the meaning of the Act. Regulation 5(1) provided that application may be made to the Minister for authority to place a compliance plate on a road vehicle specified in the application. Such an application must be made in accordance with the approved form. Under reg 5(4), if the vehicle complies with the national standards, the Minister must authorise the placing of a compliance plate on that vehicle. 15 Regulation 9A provided that a person may apply to the Minister for approval to import a road vehicle that does not have a compliance plate. Under reg 9B(1), the Minister may approve an application to import a road vehicle that does not have a compliance plate. Under reg 9B(3), the Minister may require that an identification plate in such form and containing such information as the Minister determines be placed on the vehicle. 16 Under reg 9C(c), the Minister must approve an application to import a road vehicle that complies with the national standards but does not have a compliance plate if the applicant has not imported a road vehicle within the year ending on the day on which the vehicle in respect of which the application is made is landed in Australia. Regulation 9D provides that the Minister must approve an application to import a road vehicle that does not have a compliance plate if the vehicle had been owned and used by the applicant for a continuous period of at least 12 months and, at the time the vehicle is imported, the applicant has applied to become an Australian citizen or an Australian permanent resident, and the applicant had not imported a road vehicle owned by him within the year ending on the day on which the vehicle in respect of which the application is made is landed in Australia. 17 An important element in the scheme of Pt 4 of the Act is the prohibition contained in s 18. Section 18(1) provided, at the time of importation of the Motorcycle, that, subject to ss 19 and 20, a person must not knowingly or recklessly import a road vehicle that does not have an identification plate. Under s 5(1), 'import', in relation to a road vehicle, means 'do an act that constitutes importation of the vehicle for the purposes' of the Customs Act. In R v Bull (1974) 131 CLR 203, the High Court held that goods are not 'imported' into Australia until they are 'landed' or brought within the Port with the intention of landing them: see R v Bull (at 212, 248, 254-255 and 266). See also McGurk Construction and Rigging Co Ltd v Comptroller-General of Customs (1987) 73 ALR 381. 18 It is common ground that the Motorcycle was imported into Australia on 6 September 2001. At that time, the Motorcycle did not have an identification plate as referred to in s 18. The Act was amended with effect from 1 October 2001. Amendments that were made included the deletion of the phrase 'knowingly or recklessly' from s 18. 19 There has been no suggestion that Mr Marra will be prosecuted for a contravention of s 18 of the Act. Whether or not s 18(1) was contravened by the importation of the Motorcycle is not in issue. However, the operation of s 18 may throw light on the meaning of s 19 and s 20 in relation to s 17A(1). That is the question in issue. 20 It may be that, if a vehicle were to be imported before any approval were given under s 19 or s 20, such that there was a contravention of s 18, the subsequent granting of written approval would not excuse that contravention. The subsequent grant may go to the question of penalty, but that is not the point. The question in issue concerns the operation of s 19 and s 20 in the context of s 17A(1), not the operation of s 19 and s 20 in the context of s 18. 21 Authority to take delivery of the Motorcycle pursuant to s 71B(4) of the Customs Act was, under s 17A(1) of the Act, subject to the condition that approval under s 17A must be given by the Minister. Under s 17A(2), the Minister or officer of the Department was required to give that approval if Mr Marra produced to the Minister or an officer a copy of an approval under s 19 or s 20 in respect of the vehicle. Since the Motorcycle does not have an identification plate, Mr Marra had to produce to the Minister or an officer of the Department a copy of an approval under s 19 or s 20 in respect of the Motorcycle in order to be entitled to take delivery of the Motorcycle. 22 There is nothing in the terms of s 19 that says expressly that the written approval cannot be given after importation. Giving the approval would not, of course, affect the question of whether or not a contravention of s 18 has occurred. Clearly, if the approval had been given prior to importation, there would not be a contravention of s 18. Nevertheless, even though there has been a contravention of s 18, there is nothing in the scheme of the Act and the Regulations to require that approval under s 19 could not be given in respect of the Motorcycle so as to satisfy the condition for the grant of an approval under s 17A(1), after its importation. That would be consistent with the provisions of s 68(3) in not relying on the moment of importation as the definitive time for exercise of control. 23 It would be possible for Mr Marra to export the Motorcycle from Australia and import it again. So long as he had the approval of the Minister under s 19 prior to the second importation, there would be no offence under s 18 in respect of the second importation. In anticipation of taking those steps, there is no reason why, in the terms of the Act and the Regulations, the Minister could not grant approval for that importation. There is no reason to construe the Act such that an approval under s 19 could not be given until the Motorcycle was removed from Australia. 24 There is no reason to treat any application that Mr Marra may have made after the landing of the Motorcycle in Australia as an application for approval to import, after its importation. Once the approval is given, there is no reason why it could not then be produced to the Minister or an officer of the Department pursuant to s 17A(2), whether or not the Motorcycle is subsequently imported. Once the approval is so produced, the prerequisites for the giving of approval under s 17A(1) would be satisfied and the condition for Mr Marra taking delivery of the Motorcycle would be satisfied. 25 There is nothing in s 17A(1) to make the production of an approval under s 19 or s 20 a precondition of an approval under s 17A(1). Section 17A(2) simply provides that, where an approval under s 19 or s 20 is produced, the Minister or an officer of the Department must give approval pursuant to s 17A. There is nothing in the scheme of the Act, therefore, to suggest that an approval under s 19 for the future importation of the Motorcycle, albeit even after it has been imported into Australia for the first time, would not satisfy the requirements of s 17A(1). 26 The application made by Mr Marra for 'vehicle import approval' does not, in its terms, specify when the Motorcycle is to be imported. Of course, the application was known by the Minister's delegate to have been made after the Motorcycle had in fact been imported. Nevertheless, the decision of the Tribunal, in substitution for the decision of the Minister's delegate, is that the application to import the Motorcycle is approved pursuant to reg 9B. That decision was authorised by the Act and the Regulations, albeit that it has no consequences in relation to any contravention of s 18 that might already have occurred. It would be operative for any future importation of the Motorcycle if Mr Marra were disposed to export it from Australia and to import it again. Nevertheless, it is a valid approval under s 19 and is capable of supporting an approval under s 17A(1). That is the only issue between Mr Marra and the Minister. There was no error of law on the part of the Tribunal in giving approval for importation of the Motorcycle after its importation. 27 It follows that the appeal should be dismissed with costs. I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Tamberlin, R D Nicholson & Emmett.