Williamson and Minister for Infrastructure, Transport, Regional Development and Local Government [2009] AATA 48 (16 January 2009)

Last Updated: 23 January 2009

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 48

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2008/4272

GENERAL ADMINISTRATIVE DIVISION		)
	Re		GRAHAM WILLIAMSON

Applicant

And

MINISTER FOR INFRASTRUCTURE, TRANSPORT, REGIONAL DEVELOPMENT AND LOCAL GOVERNMENT

Respondent

DECISION

Tribunal

Senior Member Bernard J McCabe

Date 16 January 2009

Place Brisbane

Decision

The Tribunal: sets aside the decision under review; and substitutes the decision that the applicant is permitted, pursuant to reg 11 of the Motor Vehicle Standards Regulations 1989, to import his nonstandard motor vehicle into Australia.

........................[Sgd]......................
Senior Member

CATCHWORDS

CUSTOMS – Prohibited imports – Import of nonstandard motor vehicle – Vehicle manufactured after 1 January 1989 – Vehicle manufactured on 9 January 1989 – Ministerial discretion – Whether discretion should be exercised – Discretion exercised – Combination of applicant’s circumstances – Applicant’s genuine misapprehension of regulations caused him to buy unacceptable vehicle – Decision under review set aside and substituted

Motor Vehicle Standards Act 1989 (Cth) s 3

Motor Vehicle Standards Regulations 1989 (Cth) regs 11, 17

REASONS FOR DECISION

16 January 2009

Senior Member Bernard J McCabe

1. Mr Graham Williamson, the applicant, purchased a 1989 Honda Goldwing motorcycle in Canada last year. He bought the vehicle for the purposes of a motoring holiday. Now Mr Williamson wants to import the vehicle into Australia. He needs the permission of the Minister for Infrastructure, Transport, Regional Development and Local Government, the respondent, pursuant to the Motor Vehicle Standards Regulations 1989 (“the Regulations”). On 4 July 2008, a delegate of the Minister refused Mr Williamson’s application for permission to import the vehicle.
2. The Regulations prohibit the import of nonstandard motor vehicles, although the Regulations also provide for several exceptions to the general rule. Some of the exceptions are specific in the sense that they address a specific factual scenario. A relevant example is found in reg 17, which says the Minister must approve the import of a nonstandard or unplated vehicle if the vehicle was manufactured before 1 January 1989. There is also a residual discretion in reg 11. That regulation says the Minister may approve an application to import a nonstandard vehicle, although the regulation does not specify what matters the Minister should take into account when exercising that discretion.
3. It was established at the hearing that the vehicle was manufactured in the sense that it was assembled on 9 January 1989. It follows that Mr Williamson is unable to satisfy the requirement in reg 17. He asked the Tribunal to exercise the discretion in reg 11.

FACTUAL BACKGROUND

4. Mr Williamson testified that he travelled to Canada for the purposes of a motorcycle touring holiday with his wife. He said he knew that it was expensive to hire vehicles, so he decided instead to purchase a motorcycle in Canada. He wanted to leave himself the option of importing the vehicle into Australia when the holiday ended. He subsequently made inquiries of people in the industry in Australia about the rules applicable to imports. He also conducted a number of internet searches. He said the people in the industry were largely unhelpful: no one seemed to have a clear understanding of the rules. At some point during these discussions, he formed the view that vehicles manufactured in 1989 or earlier were able to be imported without difficulty. He now concedes that understanding was wrong. He also concedes the mistake was his alone, and it could have been cleared up if he contacted the department.
5. I am satisfied the error was an innocent one. Mr Williamson said he had already contracted to purchase another motorcycle that had been manufactured after 1989. When he became aware that the vehicle could not be imported, he withdrew from the purchase and located another motorcycle that was manufactured in 1989. I accept that evidence, and I acknowledge it is consistent with the applicant labouring under a genuine misapprehension as to the requirements of the Regulations.
6. Mr Williamson did not intend to import the Honda Goldwing into Australia when he took delivery of it at the start of his holiday. But he changed his mind by the end of his holiday. Once the vacation concluded, he made hurried arrangements to deliver the vehicle to a shipping agent so that it could be sent to Australia. He obtained some documentation from the respondent, which drew his attention to the requirement that the vehicle must be manufactured prior to 1 January 1989 in order to qualify for the exception.
7. The applicant said he was initially troubled by the requirement being at odds with his memory. But he then concluded it was unlikely to be a difficulty since the vehicle was likely to have been assembled over the course of the 1988-1989 period out of materials manufactured in 1988. He instructed the shipping agent to proceed on a Friday before departing Canada over the course of the weekend that followed.
8. Mr Williamson’s assumptions about the assembly process were wrong. Evidence obtained from Honda confirms the vehicle was manufactured in the course of a single day, ie 9 January 1989. His interpretation of the law was also wrong as the date of manufacture is the date on which the vehicle comes off the assembly line.
9. The vehicle was off-loaded in New Zealand, where it remains in storage.

EXERCISING THE DISCRETION

10. The objects of the legislative scheme are referred to in s 3 of the Motor Vehicle Standards Act 1989 (“the Act”). They are:
    • (a) to achieve uniform vehicle standards to apply to new vehicles when they begin to be used in transport in Australia; and
    • (b) to regulate the first supply to the market of used imported vehicles.
      
11. It follows that any exercise of the discretion in reg 11 must be consistent with those objectives. By its nature, the discretion must be exercised sparingly: there is no point having a national scheme if the discretion is used to make so many exceptions that the standards become meaningless. But the discretion can be exercised if there is a good reason to do so and the objectives of the legislative scheme are not compromised. The Act does not attempt to define what facts or circumstances might justify the exercise of the discretion. I must instead consider each application on its merits, while keeping a careful eye on the objects of the Act.
12. Mr Williamson says that he nearly comes within reg 17, and that he genuinely thought he had satisfied the requirements imposed by that regulation. Given reg 17 sets out a precise date after which the prohibition applies, it is not open to me to effectively waive that requirement using the discretion in reg 11 on the basis that the specific requirement was nearly satisfied. Unfortunately for Mr Williams, near enough is not good enough. But a narrow failure to comply with a technical requirement in reg 17 might be a relevant consideration for the purposes of reg 11 if other factors were present.
13. I accept the applicant laboured under a genuine misapprehension as to the requirements of reg 17. He thought he was in the clear. Under the old legislation, he would have been. He showed a level of diligence in researching the rules on the internet. There appears to be a degree of confusion in the industry about the requirements, although the respondent points out that any confusion could have been cleared up by making an inquiry of the department. I accept there is no evidence that the respondent gave bad advice. Bad advice has been recognised in some other cases as a factor militating in favour of the exercise of the discretion.
14. Mr Williamson, for all his diligence, should have contacted the department – if not immediately, then certainly in the days before he gave the motorcycle to the shipping agent when he received the paperwork informing him of the 1 January 1989 time limitation. I acknowledge his explanation that he was about to leave the country and felt he had no choice but to take the risk of shipping the vehicle because there was nowhere to store the vehicle in Canada after he left. But the fact remains it was his mistake.
15. There was no other evidence of hardship or loss that might be relevant to the discretion.
16. Mr Williamson’s reason for asking the Tribunal to exercise the discretion is not especially good or powerful, although in his defence it is easy enough to see how the misapprehension came about. But there it is. It remains for me to consider whether exercise of the discretion would undermine or compromise the objects of the Act and the national registration standards that are envisaged under the legislative scheme.
17. I do not think the objects of the legislative scheme will be compromised if the discretion is exercised in Mr Williamson’s favour. Mr Williamson seeks to bring in one vehicle. There was no evidence that he is importing the vehicle for the purposes of resale. If he wanted to sell it, he could have done so in Canada, or in New Zealand. It is not in any event a unique vehicle: other vehicles like it are already operating on Australian roads.
18. I am satisfied the combination of circumstances – particularly the genuine and clearly established misapprehension as to the requirements imposed by reg 17 that caused him to buy an inappropriate vehicle – suggests this is one of those relatively unusual cases where the discretion should be exercised to permit the import.

CONCLUSION

19. The decision under review is set aside. The Tribunal decides in substitution that the application to import the vehicle should be approved pursuant to reg 11 of the Regulations.

I certify that the 19 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe.

Signed:................................[Sgd]..............................................

Michael Buckingham, Associate

Date of Hearing 16 January 2009

Date of Decision 16 January 2009

Date of Written Reasons 22 January 2009

Applicant was self-represented

Solicitor for the respondent DLA Phillips Fox