207 | 92° Administrative Law ~- Judicial review - Decision that goods are prohibited imports - No licence authorising importation - Whether goods excepted from application of Customs (Import Licensing) Regulations - Construction of Exception Notice made by Minister - Submission that court had no jurisdiction since only question of fact raised - Questions of law and questions of fact - Meaning of statutory rules of znterpretation raising question of law. Administrative Decisions (Judicial Review) Act, 1977 - s.5 Customs Act, 1901 - ss.50, 203, 229(1) (b) Customs Tariff Act, 1966 - s.14 and Schedule 1 (Part I, Interpretative Rules and Part .II) Customs Tariff Amendment Act, 1980 - Schedule 8 Customs Tariff Amendment Act, 1982 - Schedule 6 Customs (Import Licensing) Regulations - regs. 7 and 17(1) THE COLLECTOR OF CUSTOMS FOR NEW SOUTH WALES v. PUTALE PTY.LIMITED No. G268 of 1982 Bowen, C.J., Neaves and Beaumont, JJ. 26 August, 1983. Sydney. IN THE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) : ) ) GENERAL DIVISION No. G268 of 1982 BETWEEN: THE COLLECTOR OF CUSTOMS FOR NEW SOUTH WALES Appellant D: PUTALE PTY. LIMITED Respondent ORDER Judges making order: Bowen, C.J., Neaves and Beaumont, JJ. Date of order: 26 August, 1983. Where made: Sydney. THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay the respondent's costs of the appeal. "+ ty SUSTPat ZY TEE FEPESSi COURT ft NEW SOUTH WALES DISTRICT REGISTRY GENERAL CIVISICN No. G26 cf 1962 BETWEEN: THE CCLLECTOR_OF CUSTOMS FCR NEW SOUTE WALES Appellant ANC: PUTALE PTY. LIMITEL Respondent CCRAM: Bowen, C.J., Neaves and Beaumont, JJ. CATED: 26 August, 1983. REASONS FOR JUDGMENT The Court This is an appeal from orders and a declaration made by a Judge of the court in an application under s.5 cf the Administrative Decisions (Judicial Peview) Act, 1977. The applicaticn was heard immediately before a similar applicaticn by Thomas Zyfert and Levis Yuller. The Judge granted relief in beth aprelicaticns. In both matters, the th "ae * . -= ~>+ ah. - roo7v Ss Ccu7er wD » Cellector c cr e- = Custers éf "ty ry 'Dp fu te) matter was heard by another Full Court. A decision has recently been given in that apseal (Minister for Industry ance Commerce v. gyfert end Muller 16 August, 19€3, unreported). The administrative decision the subject of the application for an order of review was a decision made by an officer of Customs under s.203 of the Customs Act, 1901 tc seize certain goceds imported inte Australia by the respondent. The gocds were said to be forfeited gocds by virtue of the operation of para. (b) of sub-s. 229(1) which provides that all prohibited imports, that 1s to say all gocds the importetion of which is prohibited under s.50 cf the Customs Act, 1901 are forfeited to the Crown. The judgment under appeal held that the gcods were not prohibited imports and sgranted to the respondent relief of the kind which 1t sought. THE FACTS The primary facts, as found by the learned Judce, are not in dispute and are as follows: The article in guéesticn, a fully fitted bedéy fer a Persche motor vehicle, arrived ir Australla by &4ir freight in August, 1982. Tt was the subject of an @ir wéybill ene the aircreft Cr the Ft to in tre role c i) cn é& cell ion was Carrie ny same flight, but shipped under a different air waybill, were @onumper of parts, includin¢ an engine and & cearkox whictr covld have oveen usec for tne uxcese cir evilldinrg or 'S o assembling the beéy into fully fretted mctor car. EHcewever, 1t was not the intention of the respondent to use those parts for this purpose. They were intended for another vehicle or body, not the subject of any relevant iumportaticn. Although the parts which arrived at the same time and on the same flight as the bedy in question could have been used in connection with it, cther parts were needed before the body could have become a roadworthy vehicle. The bedy was fully fitted in the sense that the interior was virtually complete; 1t contéined all pbedy panels (including bumper bars), windows, lights, wipers, @ tool kit, horn, battery, tyre pump, fuel and oil tanks, brake master cylinder and pedal, clutch, accelerator, alrconditioning, instruments, radic cassette, gear stick, carpets, seats, head lining, door trims, fuel pump and filters, torsion bars, wiring, tubes and linkages and a steering wheel. Comrlete as the bcedy was, the goods' laecked essential mechanical parts such as an engine, @ gear bex, steering mechanism, wheels, suspension ana sub-frame. Although a used car of less than five years of age, the vehicle had been dismantlec tefere shipment. hy rh t ta 7)A a443io) A Section 50 of the Customs Act 1901 provides that the Gcevernor-General may, oy regulation, orehipit che importation of goods into Australia. The power may ce exercised by prohibiting the importation of goods unless specified conditions or restrictions are complied with. The regulations may provide, inter alia, that the importation cf the goods is prohibited unless a licence, permission, consent or approval to import the goods or a class of goods aun which the gcecds are included has been granted as prescribed by the regulations. By reg. 7 of the Customs (Import Licensing) Regulations the importation of any gcods (not being goods which are exempted from the application of the regulations) is prchibited unless a licence under the regulations tc import the goods is in force and the conditions and restrictions (1 any) to wnich the licence is subject are complied with. The Minister may except from the application of the regulations "any gocds or any goods included in a class of goods" (sub-reg. 17(1)). * It 1s common ground that at the date of importation of the gocds in question no licence was in force authorising their importation. The gocds, therefore, answer the description of prohibited imports within the meaning of para. 229(1)(b) of the Customs Act, 1901 unless at the time of importation they had been excepted from the apclication cf the Custeme tlarert Licensirec, Feacisticns Th m rsver m co to that question depends on the meaning and effect cf Exception Notice No. M61 made by the Minister of State for Business and Ccnsumer Affairs on 3C March, 1962 ane published in Commonweaith of Australia Gazette Noe. S59 cn 1 April, 1982. The notice was expressed tc have effect from the latter date. By that notice the Minister excepted from the application of the Customs (Import Licensing) Regulations the gocds specified in the schedule to the notice. Item 4 an the schedule describes the goods thereby excepted in the following terms: "Goods other than: (a) used, second-hand or disposals earth-moving or excavating vehicles, machinery cr equipment e.g. rock buggies, dumpers, graders, draglines, mechanical shovels, loaders, ditchers, excavators, scrapers, bulidozers and Parts thereof; (b) used, second-hand or disposals tractors (net being agricultural tractors) road rollers and parts thereof; (c) used, second-hand cr daisposals material handling equipment (e.g. cranes, forklift trucks) and parts thereof, but not zncluding gocds falling within Item 66.06 in Schedule Ll; (a) used, seccend-hand cr disposals four-wheel drive vehicles having & qross vehicle weight of less than 10.16 tonnes, faciczcin¢ puiolic service tyre passenger vehicles, of a kind falling within Items 87.02, 87.03 cr 87.04 in Schedule l ; vehicles of a kind (e) passencer motor falling within sub-paragraph §&7.02.119 in Schedule l, but not incluéine vehicles over five years of age." The references to Schedule 1 are by reason of the terms of the notice, to be read as references to Part II of Schedule 1 te the Customs Tariff Act, 1966 as propesed to be altered. {The learned Judge and the other Full Court were to an earlier notice, No. M55, but, inadvertently referred so far as relevant, it was in the same terms.) Thus, although the statutory context 1s that of the licensing of imports, in the case of passenger motor vehicles (para.4(e)) the Parliament has chosen to classify what may or may not be imported py reference, in part, to the Customs Tariff Act, 1966. By Act No. 105 of 1980, assented to on 6 June, 1980, the Customs Tariff Act, 1966 was amended (with effect so from 1 January, 1980) by substituting a new item 87.02, far as material, as follows: "87.02 Motor vehicles for the transport cf persons, ¢ccés cr materials srclieéirs sperts motor venicles, cther tran tncese falling within item 87.09); 87.02.1 - Vehicles of a kind operated by self- contained power (other than four-wheei drive vehicles, battery overéted vebicles or air-cushion vehicles), being-- (a) motor cars; (b) station wagons; or (c) derivatives of motor cars or station wagons; 87.02.11 ~- Assembled: 87.02.1111 -- As prescribed by by-law 95.53 95.5% 87.02.119 -- Other 57.53 57.5% 87.02.12 -- Unassembled: 87.02.121 -- As prescribed by by-law 25% 253 87.02.129 -- Other 35% 353" By Act No. 30 of 1982, assented to on 19 May, 1982, the Customs Tariff Act, 1966 was, further amended, with effect from 19 August, 1981, by substituting a new item 87.02.1 as follows: "87.02.1 Vehicles of a kine cpérated by selif- contained power (other than four-wheel drive vehicles, cab over forward centrol vehicles, battery operated vehicles or air-cushion vehicles), beincs TCLOr Car 7) ; . rt (bp) station wagons; cr {c) variants of mctor caérs or station wagons. 87.02.11 - Assembled 87.02.i11 ~-~- As prescribed by by-law 95.5% 95.5% 87.02.112 --- As prescribed by by-law 131.53 131.5% 87.02.119 ~~- Other 75.5% 75.5%" .(The learned Judge was inadvertently referred to Act No. 105 of 1980 as the provision in force at the relevant time. As at August, 1982 that provision was, so far as material, no longer in force). Reference should also be made to item 87.05: "Bodies (including cabs) for mctor vehicles of a kind falling within items 87.01, 87.02 or 87.03." Sub-paragraph 87.02.1199 1s in Chapter 87 of the Tariff which is entitled, "Vehicles, other than Railway cr Tramway Rolling Stock, and Parts therefor". There are a number cf nctes which precede the items in the chapter. Notes 9 and 10 are as follows: 9. . "Oo, in @ suc-iter (ctrer then syr-iter 87.10.2) paragréph or sup-rarecreécr. in this Chapter, "unassembled' means goods that are not assembled or are not further assembled than a stade that constitutes é sub-assembly. 10. In a sub-1item, paragraph or sub-paragraph in this Chapter, 'assempled' includes goods that are not 'unassembled' by virtue of the last preceding note." Sub-section 14(1) of the Customs Tariff Act 1966 provides: "The Rules for the Interpretation of Part II of Schedule 1 set out in Part I of Schedule I have effect for the purpose of ascertaining - (a) within which item or items any goods fall and, if the goods fall within two or mcre items, which one of those items applies to the gocds; (b) 1£ the item that applies to the geods is divided into sub-items - within which of those sub-1tems the geods fall and, if the gocds fall within two or more cf those sub-1tems, which one of those sub-items applies to the goccs; (c) if the sub-item that applies to the goods is divided into paragraphs - within which of those paragraphs the goods fall and, 1f the goods fall within two or more of those paragraphs, which one of these paragraphs applies to the goods; and (a) 1f the paragraph that applies to the goods 1s divided into sub-paragraphs ~- within which of those sub-paragraphs the goods fall and, 1f the gcods fall within two or more cf those sub-paracraphs, which one of those sub-paragraphs applies te the goods." LO. Fule ste-ruie 241: aré ves. Ffi)fai sit provide: "L. (1) The titles of Pivisions, Chapters and Sub-chapters in Part ff of this Schedule are provided for reference only, and shall not be used for the purpose cf interpreting this Schecule. (2) For the purpose of ascertaining whether goods fail within an item, sub-item, paragrapn or sup-peregraph or whether an item, sub-item, paragraph or sub-paragraph applies to goods, regard shall, subject to sub-rule '3) of this rule, be had te the terms of items (including sub-itens, paragraphs and sub-paragraphs) and of notes to [Pivisions and Chapters and, except where those terms otherwise reauire, to rules 2, 3 and 4 of these Rules. (3) For the purpose of ascertaining whether gocds fall within an item or whether an item applies to goods, regard shall not be had to the terms of any sub-item; for the purpose of ascertaining whether goods fall within a sub-1tem cr whether a sub-item applies to gocds, regard shall not be had to the terms of any paragraph; for the purpose of ascertaining whether goods fall within a paragraph or whether a paragraph applies to qcods, regard shall not be had to the terms of any sub-paragraph. 2. (2) A reference in an item (including a reference in a sub-item, paragraph or sub-paragraph) to gocds of a particular kind shall be read as including a reference to: (a) (b) gocds that are imported in an incomplete or in an unfinished state but have the essential character of goods of that kind; and geods that are imported in an unassembled or in a Gisassembled state put, 1f assembled, would be goods of that kind or would be gecds to which paragraph (@) cf this sub-rule applies. y y OH a ll. 3. (1) 'Where, fcr any reason, gocds fail within two or more items, two or more sub-1tems of an 1zem, two or mcre paragraphs of a sub-ltem, or two or more sub-paragraphs cf & paragraprk, the item, sub-item, paragraph or sub-paragraph, 4s the case may be, that applies to tne geodcs shall, subject to sub-rule (2) of this rule, be ascertained in accordance with the following principles: (a) If one of the items, sub-items, Paragraphs or sub-paragraphs, as the case may be, provides a more specific description of the gocds than any other of the items, sub-1tems, paragraphs or sub-paragraphs, that rfirstmentioned item, sub-item, paragraph cr sub-paragraph, as the case may be, applies to the goceds." Rule 4 provides that where goods do not fall within any item, the item that applies to the goods is the item that applies to gocds that are most akin to those goods. For the appellant ut 1s contended that the gocds imported by the respondent are properly described as a passenger 'motor vehicle of a kind falling within sub-paragraph 87.02.1119 in Schedule 1 to the Customs Tariff Act, 1966 and that, it being ccnceded that, if properly so described, the vehicle is not over five years of age, the importation of the goods was prohibited, there being, as has been said, no licence in force authorising the respondent to import such a vehicle. 12. JURISDICTION Tz véS Sucmiited cn cera.l oor che 2rat the learned Judge had no jurisdiction in the matter. In essence, the submission was put upon the 'fcceting that the enly question raised wasS cne cl fact, that is, ci classificatien of the goods, and in the absence cf an het question of law, the court lacked jurisdiction. Reference was made to Eope v. The Council of the city of Bathurst (1980) 144 C.L.R. '1 at p.7 per Mason, J. In our opinion, even 1f the -Court acquires jurisdiction under the Administrative Decisions (Judicial Review) Act, 1977 only 1£ @ question of law is raised, this proceeding does raise such a question. In cur view, consideration of the contentions of the parties 25 tc the meaning or impact, lf any, of the statutory rules cf interpretation itself raises a question of law and not merely a question of fact. The application of such an interpretative rule presumably involves a devarture from the ordinary or popular meaning of the words employed. This serves to emphasise that it 1s necessary to engage in "a process of construction" in order to arrive at the meaning of the words in the Customs Tariff Act 1966 (see Hone's Case (at p.8) per Mason, J.). In this sense, it may be said that the statutory meaning of the terms in question is a special technical one in the nature of @ term cf art and cthis involves a question cf law (see Lombardo v. Federal Commissioner cf Taxation (1979) 28 A.L.F. 374 at o.577). In 13. cer vlew, 2 ci 1aw is im clued i wris even 1f it be assumed, for the purposes of the argument, that the o¢rounds stated in s.5 of tne Acministretive Decisiens (Judicial Peview) Act, 19°77 are sc confired Prima fecie, trey ere not sce limited (cf asdrinistrative Apreals Tribunal Act 1975, s.44(1)). In the present case, para (€) of s.5(1) -- "that the decision was not authcrised by the enactment in pursuance of which it was purported to be made" -- would appear tc pe the appropriate provisic., 1f any, to be invoked. Tt 1s at least strongly arcuabs 2 that the Court would have jurisdiction under this pberagraph, even 1£ no question of law, in the strict sense, arose. However, for the reason given, the process of construction required by the statutory rules of interpretation in this case does ralse a question of law in any event. It follows, in our opinion, that the Court had jurisdiction to deal with the application made in this proceeding. CONSTRUCTION OF THE EXCEPTION NOTICE The appellant contends that the goods are properly classified as goods in an "incomplete" state, which have the essential character of a motor vehicle so tnat, by dint cé the application of interpretative ruie 2(1)(a), the gocds should be treated as 1f they were a mctor vehicle for tte th 1eé nh at > corm or ss - tors 323 acl, ety the Cp. roa 7s 2 =o oS mm m4 cerpeses oc Customs (Import Licensing) Requlations and the exception notice. The appellant does not suggest that the cccds were in any "unfinisneé" state within the weaning of rule 2(1)(a); nor dces he rely upon rule 2(1)(b). In cur opinion, the concession that tsed gcocds are not in an "unfinished" state for the purposes of rule 2(1)(a) was rightly made. On the other hand, whilst a secondary meaning of "incomplete" suggests something not fully formed, or not fully mace (see the Cxford English Dictionary), its primary meaning 1s "lacking a part or parts or not having all parts arranged in a final or functional order" (see Webster's Third New International Dictionary). It may therefore oe possible to describe the goods here és in an "incomplete" state in that sense (but see Zyfert and Muller, supra, per Fox, J. at p.14). It 1s more difficult to characterise the goods as having the "essential character" cf aqoods of that kind for the purposes of rule 2(1)(a). In our opinion, 1¢ 1s at least doubtful whether the subject goods, in their present state, have the "essential character" of a motor vehicle although incomplete. However, having regard tc the view which we have formed in the matter, this question need not << be determined (but see Zyfert and Muller, supra, per Fox, J. at p.14). 15. -. aric-ar 0 --e acrcer- : Ir our crinicr, ire secrect <° c rooretite, of ne) cectic lts true cconstruction, intends to pick up gcods which, first, may be fairly Gescricec as "pessenger motcr vehicles" end secendiy, fall within tre statutory Cefiniction founé in sub-para. §7.02.113 ian Schedule 1- Tre use cf zhe description "passenger motor vehicles" rather than ""gecds" un this connection is significant. It 1S an indicatior that, in the first instance at least, the draftsman intended to deal with something more specific than what could, neutrally, be described as "goods". Thus, the description ln the exception notice should be read as having two distinct limbs. The first limb refers to "passenger motor vehicles" in the ordinary, popular sense. The second limb refines the class of vehicles referred to in the first limb by restricting that class to those falling within the special meaning to be derived from the application of the treatment accorded "other assembled motor vehicles cf a kind operated by self-contained power" by the provisions of the Customs Tariff Act, 1966 construed by reference to the interpretative rules. In the first instance then, the question arises: 1s 1t proper to describe the fully fitted pody as a "passenger moter vehicle" for the purposes of the first limb of the definition? That 1s, are the imported gocds a "passenger motor vehicle" in the ordinary, copular sense? At this stage, 1% 1s not necessary tc consider the 16. apclicaticn, 12 ary, cf the svecieal roles c provided for by the Customs Tariff Act, 1966. A. fn It must o€ acceptec that cquesticns of fact (0) [@) Gegreé ainevitacsly arise in che present ccntexc. r example, a passenger motor vehicle without wheels or even without an engine could still properly be chéracteriseéed as, in substance, a 'motor vehicle. Yet as more ltems are stripped from the unit, it begins to change its character until, by a process of transmogrification, it has become, in truth, nothing more than a car body. In the present case, the unit nad been dismantled to the point where, 1n our ovinion, it conld fairly be described as a fully fatted car body rather then as a notor vehicle. Its total lack of mechanical parts 1s, we think, determinative in this respect. In cur view, the first inaredient in the descripticn in para.(e) of the excestion notice, that 1s, "passenger mctor vehicles" has not been satisfied in the present case, irrespective of the application, 12 any, of sub-para.&7.02.11¢9 in Schedule 1 ané the interpretative rules. It follows that the subject gocds are not covered by para.4(e) of the exception notice. Three further matters should ce mentioned. First, i) ue 6) "ry ty 4) m ia) tT r (0s) i) fu ry ct fw a ut) ' tH tu ~ ' tH a is) ar ' th lit may be sarc tret ot any weight to the rules usually employed in the identification of goods for tariffs purpeses (see Re Renault toms (No. 3) oO fay n (wholesale) Pty. Ltd. and Coliecter of (1978) 2 A.L.B. 111; Blackwood Eodge (Australie) Pty. ied. v. Collector of Customs, New South Wales (No. 2) (1980) 3 &.L.B. 38; Re Triden Pty. Ltd. and Collector of Customs (1982) 4 A.L.D. 615 at p.620). In our view, those rules would only have relevance here 1f 1t became necessary to consider the further question whether sub-para. 87.02.119 applies. In this connection, it 1s significant that the exception arises in the context of import licensing and not that of the tariff. It may be accepted that different consideraticns may well apply in the latter connection but, in our view, they do not assist here. Secondly, 1t 1s not necessary to consider what consequences, 1f any, flow £Erom the fact that, although Act No. 30 of 1982 was not assented to until 19 May, 1962, 1% operatecad from a date prior to the date of the subject exception notice which is dated 30 March, 1982 (cf. Craires on Statute Law, 7th Ed. (1971) at p-404). Finally, we note that in the appeal Minister for Industry and Commerce v. Zyfert and Muller (supra) it was common ground cetween the parties that the only question to be determined was whether sub-para.87.02.119 apolied. In this appeal, the matter was approached differently by the partles. No such common grounG existed. [t was necessary for this Court te determine the preliminary cuestion whether Y¢ 18. th ale! the exc m iv (b gtlor netice secl2 Lrst irs tance er determined this question adversely to the appellant, it was was determined by the cther Full Cer supra namely, whether che sub-para.87.02.119. The appeal is dismissed with costs. LOT /93 - CATCHWORDS Administrative Law - Judicial review - Decision that goods are prohibited imports - No licence authorising importation - Whether goods excepted from application of Customs (Import Licensing) Regulations = Construction of Exception Notice made by Minister - Submission that court had no jurisdiction since only question of fact raised - Questions of law and questions of fact - Meaning of statutory rules of interpretation raising question of law. Administrative Decisions (Judicial Review) Act, 1977 - s.5 Customs Act, 1901 - ss.50, 203, 229(1) (b) Customs Tarirtf Act, 1966 - s.14 and Schedule 1 (Part Tf, Interpretative Rules and Part II) Customs Tariff Amendment Act, 1980 - Schedule 8 Customs Tarizf Amendment Act, 1982 - Schedule 6 Customs (Import Licensing) Regulations - regs. 7 and 17(1) THE COLLECTOR OF CUSTOMS FOR NEW SOUTH WALES v. PUTALE PTY.LIMITSL No. G268 of 1982 Bowen, C.J., Neaves and Beaumont, JJ. 26 August, 1983. Sydney. IN THE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) ) ) GENERAL DIVISION No. G268 of 1982 BETWEEN ; THE COLLECTOR OF CUSTOMS FOR NEW SOUTH WALES Appellant AND: PUTALE PTY. LIMITED Respondent ORDER Judges making order: Bowen, C.J., Neaves and Beaumont, JJ. Date of order: 26 August, 1983. Where made: Sydney. THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay the respondent's costs of tne appeal. a mM m2 eat s-r-3k Sat Tk FED COURT CF & S ry ix TE NEW SOUTH WALES DISTRICT REGISTRY GENERAL CIVISICN No. G26& cf 1982 BETWEEN: THE CCLLECTOR OF CUSTCMES FCR NEW SOUTE WALES Appellant ANT: PUTALE PTY. LIMITEL Respondent CCRAM: Bowen, C.d., Neaves and Beaumont, Jo. CATED: 26 August, 1983. REASONS FCR JUDGMENT The Court This is an appeal from orders and a declération made by a Judge of the court in an application under s.5 ci the Administrative Cecisions (Judicial Pevisw) Act, 1977. The application was heard immediately oetcre 2 similar apclicaticn by Thomas granted reliel in bSceth arrlicectziors in cctr matters, the ity "a w o con - or © Vese *O matter was heard by recently been given in end Commerce v. Zy unreported). The administrative decision the subject of the application for an order,of review was a decision made by an efficer cf Customs under $.203 of =he Customs Act, 1901 tc seize certain gocds imported into Australia by the respondent. The goods were said to be forfeited geocds by virtue of the operation of para. (b) of sub-s. 229(1) whach provides that all prohibited imports, that is to say ail goods the importetion of which is prohibited under s.50 cf the Customs Act, 1901 are forfeited to the Crown. The judgment under appeal held that the gccds were not prohibited imports and granted to the respondent relie=l of the Kind which 1% scught. THE rd ye CT in The primary facts, as found by the learned Judge, are not in dispute and ere as follows: The article in auéesticr, 2 fully frccted sedyv for a2 Persche motor venicle, arrived in Rustrelia sv re rhe eae 410 waS tre seer i) in August, 1982. uy» cn é@ cailet in th th the aircreficz. Cn the ren oO Fh nel {b fh p was carr. same fiight, but shipped under a different air waybill, were @ numper cf parts, includine an engine and @ cearpox which y could have oeen used fe the purpose ci curicin¢g or ully f1tted mctor car. Eowever, i) rh assembling the bedy into the respondent to use those 10) th Lt was not the intention s. parts for this furpose. They were intended for another vehicle or body, not the subject of any relevant importation. Although the parts which arrived at the same time and on the same flight as the body in question could have been used in ccennection with it, other parts were needed before the body could have become a ,readworthy vehicle. The body was fully fitted in the sense that the oy cdy interior was virtually complete; 1t contained all panels (including bumper bars), windows, lights, wipers, 4 uel and o11 tanks, Fh tool kit, horn, battery, tyre pump, brake master cylinder and pedal, clutch, accelerator, airconditioning, instruments, radic cassette, gear stick, carpets, seats, head lining, door trims, fuel pump and filters, torsion bars, wiring, tubes and linkages and a steering wheel. Complete as the bedy was, the goods lacked essential mechanical parts such @s an engine, & geer tex, st @ ering mechanism, wheels, susvcensicn and sup-irame. mh '— i) Although a used caro $35 tnan Five years oft age, the vehicle had ceen dismantled cefors shioment. iB) - ta a lH "an —+ Ii re "Z Section 50 of the Customs Act 1901 provides chat the Gevernor-General may, ody regulation, orehibpit the importation of goods into australia. The power may ce exercised by prohibicing the importation of gocds unless specified conditicns or restrictions are complied with. The regulations may provide, inter alia, that the importation of the goods is prohibited unless a licence, permission, consent or approval to import the goods or a class of gocds in which the gceceds are included has been granted as prescribed by the regulations. By reg. 7 of the Customs (Import Licensing) Regulations the importation of any gcods (not being gocds which are exempted from the application of the regulations) is prohibited unless a licence under the regulations tc import the goods is in forces and the conditions and restrictions (12 any) to which the licence is subject are complied with. The Minister may except from the application of the regulations "any goods or any goods N included in a class of gocds" (sub-reg. 17(1)). it 1s common ground "hat at the date of importation of the gocds in question no licence was in force authorising their aumportation. The gocds, therefore, answer th o description of prohibited imports within che neaning of = para. 229(1)(b) of the Custems Act, 190% unless at c=he cime £ ad cz the Customs (imcert Licensine) Peculatiens. The éns.er " to that question depends on the meaning and effect ci Exception Notice No. M61 made by the Minister of State for Business and Consumer Affairs on 3C March, 1982 ane published in Commonwealth of Australia Gazette No. S59 en i April, 1982. The notice was expressed to have effect from the latter date. By that notice the Minister excepted from the application of the Customs (import Licensing) Regulations A the gocds specified in the schedule to the notice. Ttem 4 in the schedule describes the goods thereby excepted in the following terms: "Goods other than: (a) used, second-hand er disposals earth-moving Or excavating vehicles, machinery er equipment e.g. rock buggies, dumpers, graders, draglines, mechanical shevels, loaders, Gitchers, excavators, scrapers, pulldozers and parts thereof; (b) used, second-hand or disposals tractors (not peing agricultural tractors) road rollers and parts thereof; (¢) usec, second-hand ocr 4isposals material handling equirment (2.¢. cranes, forklift trucks) and pests thereor, put not including goods Falling within <Item 36.76 in Schedule Ll; (4a) used, secenc-nand cr discoséis four-wheel érive vehicles having a gross venicle welgnet fo) n cu = = 10.16 torres, excludi passenger vehicles, of a Items 87.02, 87.03 cr 87. z= 1 falling within 4 in Schedule lL; (e) passenger moter vehicles cf a kind -falling within sub-paragraph &7.062.119 in Schedule 1, but not including vehicles over five years of age." The references to Schedule 1 are by reason of the terms of the notice, to be read as references to Part II of Schedule 1 to the Customs Tariti act, 1966 as proposed to Ee altered. (The learned Judge and the other Full Court were inadvertently referred to an earlier notice, No. M55, but, so far as relevant, it was in the same terms.) Thus, although the statutory context is that of the licensing of umports, in the case of passenger motor vehicles (pera.4(e)) the Parliament has chosen to classify what may or may not be imported by reference, ln pert, to the Customs Tarif= Act, 1966. c By Act No. 105 cf 1980, assented to cn 6 June, 1980, the Customs Tariff Act, 1966 was amended (with e rect aly From 1 January, 1980) by substituting a new ztem 37.02, so far as material, as follcws: th "87.02 Motor vehicles rer the transpori oo ct 87.02.1 contained power cer eccés sports motor fal ing within item 87.09); 7. er avéeriels irel jenicles, scther tran - Vehicles of a kind operéted by seif- (other than £our-wheel drive vehicles, battery cperated vehicles or alr-cushion vehicles), — i eing-- (a) motor cars; (b) station wagens; or (c) derivatives of motor cars or station wagons; 87.02.11 -- Assembled: 87.02.1111 -- As prescribed by by-law 95.5% 95.5% 87.02.119 --— Other 57.5% 57.5% 87.02.12 -- Unassembled: 87.02.121 -- As orescribned by py—-law 25% 25% 87.02.1129 -- Cther ' 35% 353" By Act No. 30 of 1982, assented to on 19 May, 1982, he Customs Tariff Act, 1966 was further amended, with fiect from 19 August, 1981, ty substituting a new item ~ -02.1 as fo 3TCLICr cf (b) (c) iy station wagons; wh cr variants of metor cars or statlon wagons. - Assembled 87.02.11 87.02.1111 --- As prescribed by by-law 95.5% 95.5% 87.02.1172 --- As prescribed by py~law 131.5% 131.5% 87.02.119 --- Other 75.5% 75.5%" (The learned Judge was inadvertently referred to Act Wo. 105 of 1980 as the provision in force at the relevant time. As at August, 1982 that provision was, so far as material, ne longer in force). Reference should also te made to item 87.05: "Bodies (including cabs) for mctor vehicles of a kind falling within items 87.01, 87.02 or 87.03." . Sub-paragraph 87.02.119 1s in Chapter 87 of th Tariff which 1s entitled, "Vehicles, other than Railway c Tramway Rolling Stock, and Parts therefor". There are a numper cf actss which crecede the Ltem Netes 9 anc 10 are 2s Fclilows: un the chapter. "9 10. Sub-section 14(1) of the Customs Tariff Act provides: In @ sac-1tev (etrer than suc-Lie> 67.16.2, paragraph cr sub-paregrasn in this Chapter, 'unassembled' means coods that are rot assemble or are not further assembled than stade that constitutes & sub-assembly. in & sup-item, paragrern or sub-paragraph in this Chapter, 'assembled' includes goods that are not 'unassembled' by virtue of the last preceding note." "The Rules for the Interpretation of Part IT of Schedule 1 set out in Part I of Schedule I have effect for the purpose oz ascertaining - (a) (b) (c) (4) within which item or items any goods fall and, if the gocds fall within two or mere 1ltems, which one of those items applies to the gocds; 1£ the item that applies to the gcods is divided inte sub-items - within wnich of those sub-items the geeds fall and, 1f the goods fall within two er more et those sub-items, which one of those sub-1tems applies to the gocds; 12 the sub-1tem that applies to the goods is divided into paragrapns - within which of those paragrapns the goods fall and, if the goods fall within two or more of those paragrapns, which one of these paragraphs apolies to the goods; and 1f the paragraph what applies to the geeds 1s Givided inte sub-paragrzohks - within which of those sub-paragracns =ne gocds fall and, if the gcods fall within two or more ef those suc-caragrapns, which cne sf thesé sub-caracrarcns cores = applies to provide: "7 and Schedule and shall (1) Sub-chapters 10. Ur ci) " f. Ie (b nN = fy os ren Vs] i ty tod I- ru oO th ct titles of Divisions, Chapters in Part II of this are previded for reference cnly, not te used fer the purpose cf cl The interpreting this Schedule. . rule, (including sub-paragraphs) and Chapters anc, otherwise require, (2) whether sub-item, wnether an item, sub-paragrapn shall, For the purpose of ascertaining goods fail within an 1tem, paragraph or sub-paragraph or Sub-1item, paragraph or applies to goods, regard subject to sub-rule (3) of this be had to the terms of items sub-1tems, paragraphs and and of notes to Divisions except where those terms to rules 2, 3 and 4 of these Rules. (3) For the purvose of ascertaining whether gocds fall within an item or whether an item applies to goods, regdard shall not be had to the terms of any sub-item; for the purpose of ascertaining whether gocds fall within a sub-item or whether a sub-item apolies to gocds, regard shall not be had to the terms of any paragraph; for the purpose of ascertaining whether goods fall within a paragraph or whether a paragraph éppiies to gccds, regard shall not be had to the terms of any sub-paragraph. 2. (1) a reference in a sub-item, sub-paragranvh) item (including paragraodh or zOo gocds of a particulér A reference in an kind shall be read as including a reference to: (a) (bd) gocds that are imported in an incomplete or in an uniinished state Dut have the essential character or goods of that <ind; and geceds thét are imperted in an unassembled or in a disassembled state but, 12 assempled, wouleé de goods of that «ind or would be goeds to «hich paracrach 2} ci this suo-rule applies. ei fea CH) 0) li. 3. (1) where, cor any reason, ¢goccs fail within two or more items, two or more sub-1tems oft an ltem, TWO or more paragraphs of a sub-item, or two cr more Sub-paragraphs of a paragraph, the ltem, sub-item, paragraph or sub-paraégrapn, 35s the case may be, that applies =e the gsods shall, subject te sub-rule (2) of this rule, be ascertained in accordance with the following principles: (a) If one of the items, sub-items, paragraphs or sub-paragraphs, 3s the case may be, provides a more specific description of the goods than any other of the items, sub-items, paragraphs or sub-paragraphs, that firstmentioned item, sub-item, paragraph or sub-paragrapn, as the case may be, applies to the gocds." Rule 4 provides that where goods do not fall within any item, the item that applies to the gceeds is the item that applies to gocds that are most akin to those gocds. For the appellant it is contended that the gocds imported by the respondent are preperly described &@s a passenger motor vehicle of a Kind falling within sub-paragraph 87.02.119 in Schedule 1 to the Customs Tarifi Act, 1966 and that, it being conceded that, 125 properly so described, the vehicle is not over five years of age, the importation of the gocds was srohibited, there being, as has been said, no licence in force authorising the respondent to import such a vehicle. 12. JURISDICTION It was submitted on beneit of tre essellanz that the learned Judge had no jurisdiction in the matter. In essence, the submission was put upon the footing that the enly question raised was cone cf fact, that is, of classification of the goods, and in the absence of any question of law, the court lacked jurisdiction. Reference was made to Eore ¥. The Council of the City of Bathurst —— (1980) 144 C.L.R. 1 at p.7? per Mason, J. In our opinion, even 1f the Court acquires Decisions (Judicial fe) b n cr K sl re I <i i) jurisdiction under the Adm Review) Act, 1977 only 1£ a question of law is raised, this proceeding does raise such a question. In cur view, consideration of the contentions of the parties as to the meaning or impact, if any, of the statutory rules of interpretation itself raises @ question of law and not merely a question of fact. The avoplication of such an interpretative rule presumably involves a4 departure from "*he ordinary or popular meaning of the words employed. This serves to emphasise that 1t 1s necessary to engage in "a process of constructicn" in crder to arrive at the meaning of the words in the Customs Tariff Act 1966 (see Hope's case (at p.8) per Mason, J.). In this sense, 1t may be said that the statutory meaning of the terms in question is a sr tecial technical one in the mature of 2 term cf art end this aunvolves a question cf law 'see Leombarao v. Federal Commissioner cf Taxation 1.1979, 28 3A.L.7. 3 13. ue fon tion Gt aw iS Inve. Yea im Inls Srocse tf) Sew aS cur Vlew, = Q even 1f it be assumed, for the purposes of the argument, that the g¢rceunds stated in s.5 of the Administrative 1977 are sc confined. Becisions {Judicial Review) Act Prima facie, they are not seo limited (cf. Administraziive Appeals Tribunal Act 1975, s.44(1)). In the present case, s.5(1) -- "that the decision was nct a@utherised inly para.(d) o by the enactment in pursuance of which it was purported to be made" -- would appear tc be the appropriate proevisic., if y : any, to be invoked. Tt its at least strongly arcuab'?: thes : the Court would have jurisdicticn under this caragrapn, even ' 1= no question of law, in the strict sense, arose. However, for the reason given, the process of construction required by the statutory rules of interpretation in this case does rarse a question of law in any event. It follows, 1n our opinion, that the Court hae x jurisdiction to deal with the application made in this + proceeding. CONSTRUCTION OF TEE EXCEPTION NOTICE The appellant contends that the goods are properly Classified as gocds in an "incomplete essential character of a motor vehicle so that, cy Gint cf "a fox ce] zy be mu o o cr Ny wv fy rs iD fa} iy wv v th fal ra (D Ne > i) Kh wo iie) ci fe) ny @ io n a b th oO ry ctwm 14. v3) ay th mwth ' D) in =~ -re =2-6S + --S c i 6] 19) wo i) w 9) th fa re) 1) Customs (Import Licensing) Regulations and the exception notice. The appellant does not suggest that the gocds were state within, the meaning of ruls in any auntinisned 2(1)(a); nor dees ne rely upon rule 2(1)(¢c) In our cpinion, the concession that used gcods are not in an "unfinished" state for the purposes of rule 2(1)(a) was rightly made. On the other hand, whilst a secondary meaning of ""incomplete" suggests something not fully formed, or not fully made (see the Cxford English Dictionary), 1ts primary meaning is "lacking a part or parts or not having all parts arranged in a final or functional order" (see Webster's Third New International Dictionary). It may therefore ce possible to describe the goods here €&s in an "incomplete" state in that sense (but see Zyferc an wb Lai fu Q Muller, supra, per Fox, J. at p.l4). It is more dutficult to character I+ se the goods as having the "essential character" cf goods of that kind for the purposes of rule 2{(1)\a). In our ecpinicn, 1t 1s @ rl least doubtlul whether the suozect goods, in cheir cresent state, have the "essential character" of a motor venicle although incomplete. However, having regard tc the view which we have formed in the matter, this auestion need noc be determined (but ses Zyferz and Muller, supra, ser Fox, J. at p.l4). 'g 15. Th our crinicn, tre sub tts true construction, intends to pick up goods which, first, may be fairly described as passenger motor vehicles" and secendly, fall within the statutory CGefinitiona found in sub-para. €7.02.119 un Schedule 1. The use cf =ne description "passenger motor vehicles" rather than "gecds" in this connection 1s significant. Tt 18 an indicaticn that, in the first iAscance at least, the draitsman intended to deal with something more specific than what could, neutrally, be described as "goods". Thus, the description in the exception notice should be read as having two distinct limbs. The first limp refers to "passenger motor vehicles" in the ordinary, popular sense. The second limb ey refines the class of vehicles referred to in the first iim tH by restricting that class to those falling within <h special meaning to be derived from the application of the treatment accorded "other assempled motor venicles of a Kind operated by self-contained power" by the provisions c= the Customs Tariff Act, 1966 construed by reference to the uhterpretative rules. In the f£1rst instance then, the question arises: is ut proper to describe the fully fitted body as a "passenger moter venicle" for the surposes of the first limo p of the definition? That is, ar2 the imported gecds ra "passenger motor vehic At this stage, lz ols) 6 10t necessary tc conmsider the 16. apolicaticn, 1f any, cf the special rules cf interoretation provided for by the Customs Tarifi Act, 1966. It must o@ acceptec tnat cuestions of Tact and degree inevitacly arise in the present context. For example, a passenger motor vehicle without wheels or even without an engine could still properly be characterised as, tn substance, a motor vehicle. Yet as more items are stripped from the unit, it begins to change its character until, by a process of transmcegrification, it has become, in truth, nothing more than a car body. In the present case, the unit had been dismantled to the point where, in our opinion, it could fairly be described as a fully fitted car body rather than as a motor vehicle. Its total lack of mechanical Darts is, we think, determinative in this respect. In cur view, the first the exception rh lngredient in the desczvipticn in para.(¢) o notice, 'that 1s, "passenger mctor vehicles" has not been satisfied in the present case, irrespective of the application, 12 any, of sup-para.87.02.119 in Schedule l and the interpretative rules. Aa a ~ tag fe) a fe} ieiy wo A. Follows that the subject goc cr I by para.4(¢) of the exception notice. kK wo oO rh G My faa (D a} Al fu a a mM ba a nH v~c I~ $2 te) o i) a) re] ci he O ie] @ on ye taxen Fails tz oe Fa o be} im ie) ty '- lt may ce sarc that the arcrcac any weight to the rules usually employed in the identification of goods for tarifi purposes (se¢ Re Renault Customs (No. 3) im (Wholesale) Ptv. Ltd. and Collector o (1978) 2 A.L.D. ill; Blackwood Hodge (Australie) Pty. Led. v. Collector of Customs, New South Wales (No. 2) (1980) 3 A.L.D. 38; Re Triden Pty. Ltd. and Collector of Customs (1982) 4 A.L.D. 615 at p.620). In our view, those rules would only have relevance here 1f it became necessary to consider the further question whether sub-para. 87.02.1119 applies. In this connection, 1t is significant that the exception arises in the context of import licensing and not that of the tariff. It may be accepted that different considerations may well apply in the latter connecticn but, in our view, they do not assist here. Secondly, it is not necessary to consider what consequences, 12 any, flow from the fact chat, although Act Mo. 30 of 1982 was not assented to until 19 May, 1982, it operated from a date prior to the date of the subject exception notice which is dated 30 March, 1982 (cf. Craies on Statute Law, 7th Ed. (1971) at p.404). Finally, we note that in the appeal Minister for Industry and Commerce v. Zyfert and Muller (supra) it was common ground between the parties that the only question cto be determined was whether sub-para.87.02.119 arpvlied. In this appeal, the matter was approached differently by «tne parties. No such common ground existed. [iz was necessary for this Ccurt to determine the preliminary guestion vwnhetner 18. Py the excertion notice aprile ncé. Hevinse u in the [on nrst inst; determined this questicn adversely to the appellant, 1% was a not necessary for us tc consider the next question, which wags determined by the cther Full Court in Zyierz and Muller, supra namely, whether the gocds fell within sub-para.87.02.119. The appeal 1s dismissed with costs. S aed cy arc tue |] preceding Pages are a true core of c-2 pea: ; Mics rages for judgment herein of =43 Ce a YA Associate