Federal Court of Australia Comptroller-General of Customs v Smoothflow Australia Pty Ltd [2021] FCA 144 File number: NSD 805 of 2020 Judgment of: THAWLEY J Date of judgment: 22 February 2021 Catchwords: TAXATION – customs and excise – tariff classification – appeal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) – whether imported goods were to be classified as "tubes of iron or steel" or tubes of iron or steel "prepared for use in structures" – consideration of French text of the tariff – held imported goods were tubes prepared for use in structures under heading 7308 in Sch 3 to the Customs Tariff Act 1995 (Cth) Legislation: Acts Interpretation Act 1901 (Cth) s 15AB Administrative Appeals Tribunal Act 1975 (Cth) s 44 Customs Tariff Act 1995 (Cth) ss 7, 16, Sch 3 International Convention on the Harmonized Commodity Description and Coding System (14 June 1983) 1503 UNTS 168 (entered into force 1 January 1988) Vienna Convention on the Law of Treaties (23 May 1969) 1155 UNTS 331 (entered into force 27 January 1980) arts 31, 32 Cases cited: Barry R Liggins Pty Ltd v Comptroller-General of Customs (1991) 32 FCR 112 Chief Executive Offıcer of Customs v Biocontrol Ltd (2006) 150 FCR 64 Comptroller-General of Customs v Pharm-A-Care Laboratories Pty Ltd (2020) 375 ALR 98 Primaplas Pty Ltd v Chief Executive Officer of Customs (2016) 242 FCR 268 Re Gissing and Collector of Customs (1977) 1 ALD 144 Smoothflow Australia Pty Ltd and Comptroller-General of Customs [2020] AATA 1890 Toyota Tsusho Australia Pty Ltd v Collector of Customs [1992] FCA 282 Division: General Division Registry: New South Wales National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 50 Date of hearing: 22 February 2021 Counsel for the Applicant: G Kennett SC with D Hume Solicitor for the Applicant: Australian Government Solicitor Counsel for the Respondent: S Lloyd SC with H Younan SC Solicitor for the Respondent: Clayton Utz ORDERS NSD 805 of 2020 BETWEEN: COMPTROLLER-GENERAL OF CUSTOMS Applicant AND: SMOOTHFLOW AUSTRALIA PTY LTD Respondent order made by: THAWLEY J DATE OF ORDER: 22 FEBRUARY 2021 THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay the respondent's costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT (revised from transcript) THAWLEY J: Introduction 1 The respondent, Smoothflow Australia Pty Ltd, imported pipes to Australia. The imported pipes were designed for use in fire hydrants and fire sprinkler systems within buildings, and could also be used for fire hydrants not associated with buildings if appropriate modifications were made. 2 Under protest, Smoothflow paid customs duty on the imported pipes as assessed by the Comptroller-General under the Customs Tariff Act 1995 (Cth). The Comptroller-General classified the pipes as "tubes … of iron or steel" under heading 7306 in Sch 3 to the Tariff Act. Before the Tribunal, Smoothflow argued that the pipes should instead have been classified as tubes of iron or steel "prepared for use in structures" within the meaning of heading 7308. 3 The Tribunal accepted Smoothflow's case: Smoothflow Australia Pty Ltd and Comptroller-General of Customs [2020] AATA 1890 (hereafter referred to as "T"). In reaching this conclusion, the Tribunal considered the apparent divergence in the wording of the English and French text of heading 7308 contained in the Convention on which the Tariff is based, being the International Convention on the Harmonized Commodity Description and Coding System (14 June 1983) 1503 UNTS 168 (entered into force 1 January 1988). Whilst the English text of heading 7308 of the Convention used the phrase "prepared for use in structures", the French text as translated to English (according to the evidence before the Tribunal) used the phrase "prepared for use in the construction industry". The Tribunal held that a common meaning between the English text and the translated French text could be found, and construed the words "prepared for use in structures" (English) and "prepared for use in the construction industry" (French) in heading 7308 as meaning "prepared for use in connection with the construction of structures", thereby reaching a meaning inconsistent with both the English text and the translation of the French text: T[23]. 4 The Comptroller-General appeals the Tribunal's decision to this Court on a question of law, in accordance with s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act). The Comptroller-General submits that heading 7308, properly construed, only refers to tubes that are prepared structural elements or ready for use as a structural element of the structure, and therefore does not apply to the relevant goods. 5 The Comptroller-General, by its notice of appeal, asks this Court to make the following findings pursuant to the power in s 44(7) of the AAT Act rather than remitting the matter to the Tribunal: (1) The goods in issue were steel pipes for use in fire protection systems inside buildings. (2) The goods in issue were not steel pipes prepared for use in structures. 6 The respondent says that the Tribunal undertook its task properly, finding a common meaning between the narrower English text and the broader translation of the French text and reaching a conclusion which the Comptroller-General does not like. Statutory Framework 7 The Tariff Act imposes duties of customs on goods imported into Australia. The amount of duty imposed on imported goods is calculated by reference to the rate of the duty set out in the tariff classification in Sch 3 to the Tariff Act under which the goods are classified: Tariff Act s 16. The statutory premise is that all goods are classifiable under a uniquely applicable tariff classification. 8 The dispute between the parties concerns whether heading 7306 or heading 7308 in Sch 3 to the Tariff Act applies to the imported pipes. Heading 7306 states: OTHER TUBES, PIPES AND HOLLOW PROFILES (FOR EXAMPLE, OPEN SEAM OR WELDED, RIVETED OR SIMILARLY CLOSED), OF IRON OR STEEL 9 Heading 7308 states: STRUCTURES (EXCLUDING PREFABRICATED BUILDINGS OF 9406) AND PARTS OF STRUCTURES (FOR EXAMPLE, BRIDGES AND BRIDGE-SECTIONS, LOCK-GATES, TOWERS, LATTICE MASTS, ROOFS, ROOFING FRAMEWORKS, DOORS AND WINDOWS AND THEIR FRAMES AND THRESHOLDS FOR DOORS, SHUTTERS, BALUSTRADES, PILLARS AND COLUMNS), OF IRON OR STEEL; PLATES, RODS, ANGLES, SHAPES, SECTIONS, TUBES AND THE LIKE, PREPARED FOR USE IN STRUCTURES, OF IRON OR STEEL 10 For the sake of convenience, I observe that heading 7308 comprises two parts, the first of which has two components: Part 1: STRUCTURES (EXCLUDING PREFABRICATED BUILDINGS OF 9406) AND PARTS OF STRUCTURES (FOR EXAMPLE, BRIDGES AND BRIDGE-SECTIONS, LOCK-GATES, TOWERS, LATTICE MASTS, ROOFS, ROOFING FRAMEWORKS, DOORS AND WINDOWS AND THEIR FRAMES AND THRESHOLDS FOR DOORS, SHUTTERS, BALUSTRADES, PILLARS AND COLUMNS), OF IRON OR STEEL; Part 2 PLATES, RODS, ANGLES, SHAPES, SECTIONS, TUBES AND THE LIKE, PREPARED FOR USE IN STRUCTURES, OF IRON OR STEEL 11 The French text of heading 7308 is as follows: Constructions et parties de constructions (ponts et éléments de ponts, portes d'écluses, tours, pylônes, piliers, colonnes, charpentes, toitures, portes et fenêtres et leurs cadres, chambranles et seuils, rideaux de fermeture, balustrades, par exemple), en fonte, fer ou acier, a l'exception des constructions préfabriquées du n° 94.06; tôles, barres, profilés, tubes et similaires, en fonte, fer ou acier, préparés en vue de leur utilisation dans la construction. 12 The Tribunal and the parties proceeded upon a translation of the French text of heading 7308, which was in the following terms (emphasis added): Structures and parts of structures (bridges and bridge sections, lock gates, towers, pylons, pillars, columns, framework, roofing, doors and windows and their frames, window-sills and thresholds, shutters, balustrades, for example) in cast iron, iron or steel, except for prefabricated structures as per n° 94.06; sheet metal, bars, profiles, tubes and similar, in cast iron, iron or steel, prepared for use in the construction industry. 13 The parties agreed that, in accordance with the General Rules for the Interpretation of the Harmonized System (GIRs), if both heading 7306 and 7308 are prima facie applicable to the imported goods, the goods will be classified under heading 7308: GIR 3(a); Tariff Act s 7. The parties also agreed that, if the goods are not classifiable under heading 7308, they are classifiable under heading 7306. The issue between the parties is whether heading 7308 applies to the goods. Principles 14 Tariff classification involves a two staged approach, as outlined by Brennan J in Re Gissing and Collector of Customs (1977) 1 ALD 144 at 145 to 146. This approach was summarised by the High Court in Comptroller-General of Customs v Pharm-A-Care Laboratories Pty Ltd (2020) 375 ALR 98 at [17]: The first stage involves making findings as to the identification of the goods in the condition in which they were imported, including as to the composition of the goods and the functions the goods were designed to serve. The second stage is the construction and application to the goods so identified of the potentially relevant provisions of Sch 3 in accordance with the applicable GIRs set out in Sch 2. 15 As to the first stage of tariff classification, the parties did not challenge the Tribunal's findings regarding the character of the imported pipes. The Tribunal stated: [7] In the present case, the subject goods were pipes of 5.8 m in length. The pipes had printed on them references to Australian standard AS 2419.1 and certification marks from international certification bodies FM Global and Underwriting Laboratories (UL) showing that the goods were constructed so as to comply with requirements for fire protection systems in buildings. The pipes also had printed on them references to AS 1074, a mandatory standard applicable to all steel tubes and tubulars for ordinary service. That standard says little as to the purpose for which the goods were prepared, in contrast to the references to AS 2419.1. The parties agree that the markings on the pipes show that they are designed to comply with standards applicable to both fire hydrants and fire sprinkler systems in high-rise buildings. [8] It is alleged by the applicant, and not disputed by the respondent, that the goods are suitable for installation in fire protection systems. Fire protection systems (both sprinkler systems and internal and external hydrants) are required by the standards in question to be included in certain high-rise buildings and the pipes are required to meet the specifications which are set out in AS 2419.1 and AS 4118.2.1. [9] The applicant submitted that insofar as the subject pipes are for use in fire hydrant installations, they are for use only inside a building. Commenting on that submission, Mr Northcote, for the respondent, submitted that the fire hydrant pipes could be adapted for use in fire hydrants not associated with buildings, by being cut down from their 5.8 m length to shorter lengths of 1.5 m or less, and being covered with petrolatum tape. It emerged that the respondent was not submitting that the pipes as imported had not been prepared for use within high-rise buildings, but rather was denying that they could be used only for that purpose. [10] Automatic fire sprinkler systems are dealt with by AS 4118.2.1 and AS 2118.1. Insofar as the subject pipes are for use in fire sprinkler systems, there is no dispute that they are for use in buildings. [11] So I proceed on the basis that the fire sprinkler pipes will be put to use within buildings, and that the fire hydrant pipes will likely be used within buildings, and were prepared for such use, but they may also be used in connection with fire hydrants including fire hydrants not associated with buildings if appropriately cut down and covered in petrolatum tape. 16 As to the second stage of tariff classification, the parties agreed that because Sch 3 to the Tariff Act adopts the English text of the Convention, principles of treaty interpretation are relevant to the construction of heading 7308. These principles were summarised by the High Court in Pharm-A-Care (citations omitted): [35] Transposition of the English text of the Harmonized System into the text of Sch 3 to the Tariff Act attracts the principle of statutory construction identified by Brennan CJ in Applicant A v Minister for Immigration and Ethnic Affairs: If a statute transposes the text of a treaty or a provision of a treaty into the statute so as to enact it as part of domestic law, the prima facie legislative intention is that the transposed text should bear the same meaning in the domestic statute as it bears in the treaty. To give it that meaning, the rules applicable to the interpretation of treaties must be applied to the transposed text and the rules generally applicable to the interpretation of domestic statutes give way. [36] By operation of Art 33 of the Vienna Convention on the Law of Treaties, not only is the French text of the Harmonized System Convention equally authoritative with the English text, but each term of the Harmonized System Convention is presumed to have the same meaning in each text. Application of that presumption "requires that every effort should be made to find a common meaning for the texts before preferring one to another", from which "[i]t follows that the treaty interpreter should seek the meaning that gives effect, simultaneously, to all the terms of the treaty, as they are used in each authentic language". 17 The respondent made the following further submissions regarding the principles of treaty interpretation, with which the applicant agreed (citations omitted, emphasis in original): [14] First, a treaty is to be "interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose": Article 31(1) [of the Vienna Convention]. That general rule has been understood by Australian courts to give primacy to the text of the treaty, but also to allow a more liberal manner of construction than is usually adopted by a court construing domestic legislation. [15] Secondly, recourse may be had to supplementary means of interpretation, under Article 32 [of the Vienna Convention], for the purpose of either confirming the meaning of a treaty identified by applying Article 31 or determining the meaning of the treaty if the meaning is otherwise ambiguous or obscure, or manifestly absurd or unreasonable. [16] Thirdly, where a treaty has been authenticated in multiple languages, the text is equally authoritative in each language (unless the treaty provides or the parties agree otherwise) and the terms of the treaty are presumed to have the same meaning in each authentic text: Article 33(1), (3) [of the Vienna Convention]. Article 20 of the Convention provides that the text of the Convention is equally authoritative in English and in French. Article 33(4) of the Vienna Convention provides relevantly that "when a comparison of the authentic text discloses a difference of meaning which the application of articles 31 and 32 does not remove, the meaning which best reconciles the texts, having regard to the object and purpose of the treaty, shall be adopted." [17] Referring to Article 33 of the Vienna Convention, the Court in Pharm-A-Care said (at [36]): Application of that presumption "requires that every effort should be made to find a common meaning for the texts before preferring one to another", from which "[i]t follows that the treaty interpreter should seek the meaning that gives effect, simultaneously, to all the terms of the treaty, as they are used in each authentic language". [18] The presumption to which the Court was referring is that in Article 33(3) of the [Vienna] Convention: namely, that each term of the Convention is presumed to have the same meaning in the English and French texts. In referring to the endeavour to find a common meaning, the Court relied on the commentary in the United Nations, Yearbook of the International Law Commission (1966), vol II, p 225 (fn 42). [19] In that regard, the International Law Commission (ILC) was examining a draft article (then, Article 33(3)) that was later adopted as both Article 33(3), regarding the presumption of the same meaning in each authentic text, and Article 33(4), regarding the principle of reconciliation "as far as possible" of the texts. In examining the presumption (which is found in the current version of Article 33(3)), the ILC observed that the equality of the texts means that every reasonable effort should first be made to reconcile the texts and to ascertain the intention of the parties by recourse to the normal means of interpretation. [20] The ILC also referred to the decision of the Permanent Court of Justice in the Mavrommatis Palestine Concessions case (PCIJ (1924 ), Series A, No 2, p 19), as authority for the principle of 'conciliating' – i.e. harmonizing – the texts, although not calling for a general rule laying down a presumption in favour of a restrictive interpretation (i.e., the more limited interpretation which can be made to harmonize with both texts), which was found to be appropriate in that case. SUMMARY OF PARTIES' DISAGREEMENTS 18 The primary disagreement between the parties involved the application of the principles concerning the second stage of classification and whether the goods fell within heading 7308 properly construed. 19 A second disagreement between the parties concerned the use which could be made of the Harmonized System Explanatory Notes (HSEN). The applicant submitted that the Tribunal erred in failing to consider the HSEN in the construction of heading 7308, submitting that it was permissible to consider the HSEN as a matter of context whether or not there was ambiguity. The respondent contended that the HSEN could be an aid to interpretation only if there was ambiguity. It is convenient to say something briefly about the second issue first. USE OF HSEN 20 The Tribunal observed at T[27] that the HSEN are sometimes useful as an aid to interpretation of the Tariff Act if ambiguity or a lack of clarity exists – see: Primaplas Pty Ltd v Chief Executive Officer of Customs (2016) 242 FCR 268 at [72]; Chief Executive Offıcer of Customs v Biocontrol Ltd (2006) 150 FCR 64 at [39]; Barry R Liggins Pty Ltd v Comptroller-General of Customs (1991) 32 FCR 112 at 118-120. 21 The Tribunal referred to the following passage from the judgment of Black CJ and Heerey J in Toyota Tsusho Australia Pty Ltd v Collector of Customs [1992] FCA 282 at [24] (citations omitted): It is established by decisions of Full Courts of this court that s 15AB of the Acts Interpretation Act 1901 permits, in the manner allowed by s 15AB(1), reference to be made to the Explanatory Notes to assist in the interpretation of the Customs Tariff Act: Barry R Liggins Pty Ltd v Comptroller-General of Customs and Ors (1991) 103 ALR 565. In Gardner Smith Pty Ltd v Collector of Customs, Victoria (1986) 66 ALR 377, the Full Court of the Federal Court approved the use of the Explanatory Notes to the Brussels nomenclature as an aid to the interpretation of Schedule 3 to the Customs Tariff Act 1982, to which the same principles apply. 22 The Tribunal, after resolving the inconsistency between the English text and the translation of the French text, held that there was no ambiguity in heading 7308, and for that reason declined to consider the HSEN. 23 The applicant submitted that the Tribunal did not first need to conclude that there was any ambiguity before being permitted to consider the HSEN, referring to the High Court's approach in Pharm-A-Care. The applicant submitted that, in any event, the Tribunal must have perceived relevant ambiguity. The applicant observed that the High Court in Pharm-A-Care used the HSEN in the interpretation of the Tariff Act without mention of s 15AB of the Acts Interpretation Act 1901 (Cth) or any requirement for there to be ambiguity in the relevant provisions of the Tariff Act, stating at [58] (some citations omitted): … The Explanatory Notes [the HSEN] are prepared and approved under the Harmonized System Convention as a guide to the interpretation of the Harmonized System. In consequence, they are available to be used in the interpretation of so much of the Tariff Act as transposes the text of the Harmonized System Convention: Barry R Liggins Pty Ltd v Comptroller-General of Customs (1991) 32 FCR 112 at 118-120, 123. 24 The applicant submitted that the principles articulated in Pharm-A-Care and the High Court's statement at [58] demonstrate that regard may be had to the HSEN in accordance with Arts 31 and 32 of the Vienna Convention on the Law of Treaties (23 May 1969) 1155 UNTS 331 (entered into force 27 January 1980) whether or not there is ambiguity. 25 The issue dividing the applicant and respondent on this point need not be resolved. As I will discuss later, it has not been shown on appeal that, if the Tribunal had taken the HSEN into account, it might have reached some other conclusion – see: Pharm-A-Care at [40]. DID THE TRIBUNAL ERR IN ITS CONSTRUCTION OF HEADING 7308? 26 As noted at [3] above, the Tribunal held that the words "prepared for use in structures" in heading 7308 were to be interpreted as meaning "prepared for use in connection with the construction of structures". The Tribunal's reasoning for this construction was as follows: [20] The French text and the English text must be read in context. The words 'use in the construction industry' would not be thought to refer to any general use in the construction industry. The subject matter is, to use Ms David's translation, 'sheet metal, bars, profiles, tubes and similar' or in the English text, 'plates, rods, angles, shapes, sections, tubes and the like.' Those subject matters are physical objects capable of being used in the construction of structures, such as a building, and use in the construction industry which seems to involve the use of the objects in connection with the building of structures. [21] The English text, referring to the objects 'prepared for use in structures' also seems to be apt to capture objects prepared for use in connection with the building of structures. The word 'in' in the English text, like 'dans' in the French text, is not so precise as to exclude use in connection with structures, and in the search for a common meaning between the English and the French texts, the adoption of a requirement for a connection with the building of structures appears to be within the test stated by the High Court in Pharma-a-Care at [36]. [22] Neither the French text nor the English text seems to require that the objects, when used, necessarily form part of the structure or structures involved. That is because the heading commences with the words 'structures … and parts of structures.' There would be no need to add the words in question if the objects would always form parts of structures. [23] In the application of the common meaning, it is necessary to ask concerning the subject pipes, as at the date of their importation were they prepared for use in connection with the construction of structures. 27 In applying the presumption that the authentic texts of the Convention have the same meaning, one must look for a meaning "that gives simultaneous effect to all of the terms of the English text and of the French text": Pharm-A-Care at [37]. The Tribunal's construction of heading 7308 did not find a common meaning between the English text and the translation of the French text; it found a meaning which was inconsistent with both. It did this by broadening the meaning of the English text and narrowing the meaning of the translation of the French text. 28 As to the English text, the expression "prepared for use in structures" is not synonymous with the expression "prepared for use in connection with the construction of structures". The Tribunal's construction involves: (i) interpreting the word "in" to mean "in connection with"; and (ii) adding the words "construction of" to heading 7308. As to the first matter, read in the context of heading 7308, the word "in" was not intended as a word expressing general connection between the tubes and the structures; it signifies that tubes are incorporated in the structure as whole, for example by being a fixture. As to the second matter, adding the words "construction of" changes the meaning of heading 7308. Something can be used "in connection with the construction" of a structure, but not in the structure itself. For example, a pole might be used to support a wall whilst the building is being constructed. The pole is certainly used in connection with the construction of a structure, but it might not be able to be said that it was "prepared for use in the structure". 29 As to the translation of the French text before the Tribunal, the Tribunal's construction of the translated version of heading 7308 significantly constricts that part of the translated text which refers to use in the construction industry. A pole might play no role in connection with any structure, but might simply be used for various useful purposes in the construction industry, such as holding up a warning sign. 30 The Tribunal's construction does not give simultaneous effect to the English text and the translation of the French text and is sufficiently inconsistent with both for a conclusion that the Tribunal erred. Should the appeal be allowed? 31 The Tribunal's errors do not necessarily mean that the applicant's appeal should be allowed. For an error of law on the part of the Tribunal identified in an appeal on a question of law to the Federal Court to result in an order setting aside the decision of the Tribunal, the error must be shown to be material to the decision of the Tribunal in the sense that the decision which was in fact made by the Tribunal might have been different if the error of law had not occurred: Pharm-A-Care at [40]. 32 At the commencement of the hearing, the Court raised with the parties its concern about the translation upon which the Tribunal relied. Leaving aside the translation which was put before the Tribunal, it is not clear that the French text of heading 7308 is any different from the English text in the way the parties and the Tribunal have proceeded to date. 33 As noted earlier, the French text is (emphasis added): Constructions et parties de constructions (ponts et éléments de ponts, portes d'écluses, tours, pylônes, piliers, colonnes, charpentes, toitures, portes et fenêtres et leurs cadres, chambranles et seuils, rideaux de fermeture, balustrades, par exemple), en fonte, fer ou acier, a l'exception des constructions préfabriquées du n° 94.06; tôles, barres, profilés, tubes et similaires, en fonte, fer ou acier, préparés en vue de leur utilisation dans la construction. 34 It may be accepted that "la construction" (appearing in the final sentence) in a certain context might be understood as referring to the construction industry generally. It would depend on the surrounding conversation or words. It is equally clear, however, that a principal meaning of the word "la construction" is "structure". It is not immediately obvious that the context here is such that, in the French text of heading 7308, "la construction" is being used to signify the construction industry. It seems to me that the word "la construction" in the last sentence is being used in precisely the same way as the word is being used in the opening words of the heading – "Constructions et parties de constructions" – which means "structures or parts of structures". Indeed, this is the very meaning the translator gave the word "construction" in the first sentence. The reference in the last sentence appears to me to be a reference to the opening words. It would be unusual to use the same word in different senses in the one heading. It would not have been difficult to refer to "l'industrie de la construction", or some equivalent, if it had been intended to depart from the meaning with which the word was otherwise used in the heading. There does not appear to be any material difference between the English text and the French text which requires resolution; they have a common meaning. Indeed, they appear to employ precisely the same text, in their different languages. 35 Turning then to the translation, the request which was made of the translator was made in the following terms: Please find attached a three page document. It is an extract from a French tariff nomenclature. The document is to provide some context. The only text we ask you to translate is that of item 7308: Constructions et parties de constructions (ponts et éléments de ponts, portes d'écluses, tours, pylônes, piliers, colonnes, charpentes, toitures, portes et fenêtres et leurs cadres, chambranles et seuils, rideaux de fermeture, balustrades, par exemple), en fonte, fer ou acier, à l'exception des constructions préfabriquées du n° 94.06; tôles, barres, profilés, tubes et similaires, en fonte, fer ou acier, préparés en vue de leur utilisation dans la construction It has been suggested that the last three words "dans la construction" may be translated as "in the building industry" or as "in the building sector". Do you agree, or not? Please provide brief reasons as a translator's note, in the same document as your translation. 36 It will be observed that the translator was asked whether she agreed that the words "dans la construction" were capable of meaning "in the building industry" or "in the building sector". The translator was not asked if that is what the words should be understood as meaning where they are used in heading 7308. The translator's notes, accompanying her translation, state (italics in original): 1) The specific terms used in this text are related to the building and construction industry, and as with most translations, various synonyms may exist for the terms I selected and used. 2) During and after completing my translation, I consulted various online English-language and bi-lingual dictionaries, including Collins, Larousse, Glossary of French Housing and Building Terms: Construction comes from the word 'construct,' which means 'to build.' In engineering terms, construction is usually associated with larger structures like houses, railways, and power plants. - la construction = construction, building, construct, structure, manufacturing, erection - le bâtiment = building, construction, vessel, ship, block, boat 3) It has been suggested that the last three words "dans la construction" may be translated as "in the building industry" or "in the building sector". – I prefer to use the precisely equivalent and wider generic term 'Construction', because similarly in French and in English, building (le batiment in French) is often understood to refer to, and implies eg. the building industry or somewhat smaller or domestic structures. 4) The examples given in the text indeed range from bridges, pylons and lock gates down to roofing, window sills and shutters, thus indicating various applications in all manner of building and construction situations. 37 These notes suggest that the translator may not have turned her attention to the possibility that the word "la construction" was being used harmoniously throughout the heading, as might be expected. Her attention had been focussed, by the question she had been asked, on whether the words were capable of bearing a particular meaning rather than on whether they did in fact bear that meaning in the particular context. 38 Nor was the translator asked to consider the English text in arriving at her translation. This is odd given, as the High Court observed in Pharm-A-Care, the "treaty interpreter should seek the meaning that gives effect, simultaneously, to all the terms of the treaty, as they are used in each authentic language": at [36]. The drafters of the headings in their respective languages, if not the one person, must have had available the text of the other or worked on them together in an iterative process, with the intention of the heading meaning the same thing, albeit in different languages. The meaning of the word "la construction" in the French text depends on context. Context is not necessarily simply the context of the French version of the heading. The English text seems to me to be a relevant matter of context for a translator to take into account. After all, the object of the translation is to determine the meaning of the French heading from a treaty which contains both French and English versions of text intended to mean the same thing. 39 Both parties were content, in the event that error was found on the part of the Tribunal, for the Court to proceed on the basis of the English text alone or, implicitly, on an assumption that the French text carried the same meaning as the English text. 40 It is only the second part of heading 7308 which the respondent contends covers its tubes, namely: PLATES, RODS, ANGLES, SHAPES, SECTIONS, TUBES AND THE LIKE, PREPARED FOR USE IN STRUCTURES, OF IRON OR STEEL 41 Both parties agreed that, as to the second component of heading 7308, what must be of iron or steel is the articles referred to, not the structure in respect of which the relevant articles were prepared for use. 42 The applicant contended that the correct meaning of heading 7308 is such that the tubes, in order to be "prepared for use in structures", must be load-bearing and that the imported pipes were not prepared for use in structures, submitting: [44] 7308 applies to tubes for use "in" structures. [45] The ordinary meaning of the term "in" given by the Oxford English Dictionary. It means: "[t]hat is in; that lies, remains, lives, is situated, or is used in or within; internal". [46] A tube is prepared for use in a structure if it is ready for use as a structural element, or part of, the structure. It must lie in, and be situated in and as part of, the structure. [47] This is consistent with the opening part of 7308, which indicates that the heading applies to "structures … and parts of structures". The concluding words of 7308 are part of that genus. [48] In this case, the tubes served no structural purpose. Their function was to pipe water for fire safety. They could be installed within buildings, but not as part of the structural aspects of the building. Their purpose was not structural. 43 The applicant submitted that, in order for the tubes to have a "structural purpose" (see [48] of the applicant's written submissions), the tubes had to be load-bearing, in the sense of supporting the load of the structure or perhaps holding it together. The submission set out above elides the word "structure" with the word "structural". The noun "structure" describes, for example, an object that is built or constructed (eg a building or bridge), or the way in which something has been put together (eg the structure of a building). Structural, on the other hand, refers to a component or material having a structural or a load-bearing role. Heading 7308 does not use the word "structural". The terms of heading 7308 do not imply that a tube must be load-bearing for it to be "prepared for use in structures". 44 The terms of heading 7308 more broadly provide support for the fact that an item can be part of a structure without being load-bearing. Heading 7308 defines structures and parts of structures (being the first part of heading 7308) as including doors and windows, shutters and balustrades. None of these items imply any necessary requirement for the part of the structure to be load-bearing, but recognises that doors and windows are parts of the structure. The HSEN for heading 7308 says "[f]or the purpose of [heading 7308], these structures are characterised by the fact that once they are put in position, they generally remain in that position". The HSEN does not suggest a requirement that the relevant part of the structure is load-bearing. A window, once put into place, will generally remain in its position. It will not, however, generally be load-bearing. 45 A tube does not have to be load-bearing, in the sense of bearing the load of the structure in which it is used, for it to be "prepared for use in structures". 46 I have earlier set out the Tribunal's findings of fact. I refer in particular to those at T[8] to [10]. On these findings, the Tribunal had to reach a conclusion that the imported pipes fell within the meaning of "tubes … prepared for use in structures". The imported pipes were manufactured (or prepared) so as to comply with the requirements and standards for fire protection systems in buildings; there were markings on the pipes which indicated the pipes met these standards. The pipes could only be used outside of buildings if they were modified. The pipes were prepared for the purpose of being installed in buildings as part of the relevant building's fire protection system. Whether the pipes were prepared to be used as part of a fire extinguishment structure for installation in a building or prepared for use in the building itself as part of its structure, they were prepared for use in structures. 47 I have considered whether the Tribunal could have reached some different conclusion if it had considered the HSEN. The HSEN for heading 7308 provides: This heading covers complete or incomplete metal structures, as well as parts of structures. For the purpose of this heading, these structures are characterised by the fact that once they are put in position, they generally remain in that position. They are usually made up from bars, rods, tubes, angles, shapes, sections, sheets, plates, wide flats including so-called universal plates, hoop, strip, forgings or castings, by riveting, bolting, welding, etc. Such structures sometimes incorporate products of other headings such as panels of woven wire or expanded metal of heading 73.14. Parts of structures include clamps and other devices specially designed for assembling metal structural elements of round cross-section (tubular or other). These devices usually have protuberances with tapped holes in which screws are inserted, at the time of assembly, to fix the clamps to the tubing. Apart from the structures and parts of structures mentioned in the heading, the heading also includes products such as: Pit head frames and superstructures; adjustable or telescopic props, tubular props, extensible coffering beams, tubular scaffolding and similar equipment; sluice-gates, piers, jetties and marine moles; lighthouse superstructures; masts, gangways, rails, bulkheads, etc., for ships; balconies and verandahs; shutters, gates, sliding doors; assembled railings and fencing; level-crossing gates and similar barriers; frameworks for greenhouses and forcing frames; large-scale shelving for assembly and permanent installation in shops, workshops, storehouse, etc.; stalls and racks; certain protective barriers for motorways, made from sheet metal or from angles, shapes or sections. The heading also covers parts such as flat-rolled products, "wide flats" including so-called universal plates, strip, rods, angles, shapes, sections and tubes which have been prepared (eg drilled, bent or notched) for use in structures. The heading further covers products consisting of separate rolled bars twisted together, which are also used for reinforced or pre-stressed concrete work. 48 The HSEN for heading 7306 provides (emphasis added): This heading includes, in particular, line pipes of a kind used for oil or gas, casing and tubing of a kind used in the drilling for oil or gas, tubes and pipes suitable for use in boilers, superheaters, heat exchangers, condensers, feed-water heaters for power stations, galvanised or black tubes (so-called gas tubes) for high or medium pressure steam or water distribution in buildings, as well as tubes for water or gas street distribution mains. In addition tubes, pipes and hollow profiles are used for the manufacture of parts for automobiles or for machinery, bicycle frames, prams, or for other structural uses, scaffolding or tubular structures or building construction. "Open seam" tubes are used, for example, as frames for metal furniture. 49 A consideration of these notes does not take the matter any further. Like heading 7308, they contain their own ambiguities. The relevant part of the HSEN for heading 7308 (the second last paragraph extracted above) does little more than repeat the terms of the second part of heading 7308. The applicant relied, in particular, on the words from the HSEN for heading 7306 underlined above. I accept that those words provide some limited support for the view that tubes used in buildings were to come within heading 7306. However, the HSEN for heading 7306 could not reasonably be used to alter the clear meaning of heading 7308. I am not satisfied that, if the Tribunal had considered the HSEN, it might have reached a different outcome. Conclusion 50 The application should be dismissed. I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Thawley. Associate: Dated: 26 February 2021