South Blackwater Coal Ltd v Chief Executive Officer, Australian Customs Service [2000] 1398

FEDERAL COURT OF AUSTRALIA

South Blackwater Coal Limited v Chief Executive Officer, Australian Customs Service [2000] FCA 1398 ADMINISTRATIVE LAW – judicial review under ss5 and 6 of Administrative Decisions (Judicial Review) Act 1977 (Cth) and section 39B (1A) of the Judiciary Act 1903 of a decision and conduct leading to the decision of the CEO Australian Customs Service not to make a determination under s273 of the Customs Act 1901 that item 45 of Schedule 4 (relating to concessions for customs duty) to the Customs Tariff Acts 1987 and 1995 applied to certain equipment for a colliery project – Ministerial policy requiring demonstration of absence of Australian manufacturing capacity – further Ministerial policy against application for concessions being made after commitment to importation – what constituted an application for concessions – whether application retrospectively made – whether rejection of application occurred without regard to merits – construction of s273 – whether inconsistency of decision-making occurred. WORDS AND PHRASES – Change of policy – onus of proof – unreasonableness Khan v Minister for Immigration and Ethnic Affairs (unreported Fed Ct of Aust 11 December 1987 Gummow J) applied Bruce v Cole (1998) 45 NSWLR 16 applied Surinakova v Minister for Immigration, Local Government and Ethnic Affairs (1991) 33 FCR 87 applied Re Drake and Minister for Immigration and Ethnic Affairs (1978-1986) 2 ALD 634 distinguished Attorney General (NSW) v Quinn (1989-1990) 170 CLR 1 at 35-37 applied BHP Direct Reduced Iron v Chief Executive Office Australian Customs (1988-9) 55 ALD 665 distinguished Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24 applied Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 290 applied Enichem Anic Srl v Anti-Dumping Authority (1992) 39 FCR 458 at 469 applied Save The Showground For Sydney Inc v The Minister for Urban Affairs and Planning (1997) 95 LGERA 33 applied ACI Operations Pty Ltd v CEO Customs (1998-9) 53 ALD 86 at 91 applied Swan Television and Radio Broadcasting Ltd v Australian Broadcasting Tribunal (1985) 8 FCR 291 cited Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 at 420-2 distinguished Abebe v Minister for Immigration and Multicultural Affairs (1999) 162 ALR 1 at 54 applied Mohamed v Minister for Immigration and Multicultural Affairs (1998) 83 FCR 234 distinguished SOUTH BLACKWATER COAL LIMITED v CHIEF EXECUTIVE OFFICER, AUSTRALIAN CUSTOMS SERVICE CONTI J SYDNEY 4 OCTOBER 2000