McPartland and Minister for Infrastructure, Transport, Regional Development and Local Government and Anor [2010] AATA 80 (4 February 2010)

Last Updated: 5 February 2010

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 80

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2008/4486

GENERAL ADMINISTRATIVE DIVISION		)
	Re		DARRYL JAMES McPARTLAND

Applicant

And

MINISTER FOR INFRASTRUCTURE, TRANSPORT, REGIONAL DEVELOPMENT AND LOCAL GOVERNMENT

Respondent

And KATHLEEN McPARTLAND

Other Party

DECISION

Tribunal

Senior Member R W Dunne

Date 4 February 2010

Place Adelaide

Decision

The Tribunal affirms the decision under review.

..........................................
R W DUNNE
(Senior Member)

CATCHWORDS

TRANSPORT – application for approval to import road vehicles (Harley Davidson motor-cycles) – non-standard road vehicles – no identification plates – applicant wished to import the motor-cycles as part of his collection and for show purposes only – application refused – discretion – no grounds for exercise of discretion – decision affirmed

Motor Vehicles Standards Act 1989 (Cth) ss 3, 5, 18, 19, 20

Motor Vehicles Standards Regulations 1989 (Cth) Regs 9, 11, 18

Re Marra and Minister for Transport and Regional Services [2003] AATA 323; (2003) 73 ALD 704

REASONS FOR DECISION

4 February 2010

Senior Member R W Dunne

INTRODUCTION

1. The applicant in this case, Mr Darryl McPartland, is a collector of 105th Anniversary Series Harley Davidson motor-cycles. On 1 August 2008, he applied for approval to the Administrator of Vehicle Standards (“Administrator”) to import eight of the 105th Anniversary Series motor-cycles from the United States of America. He did not specify the actual motor-cycles involved or their Vehicle Identification Numbers (“VIN”). Although he applied in his own name, it appears he may have done so in his capacity as a trustee of his superannuation fund. On 4 September 2008, the Administrator, a delegate of the Minister for Transport and Regional Services (“Minister”), refused the application. The refusal was on the ground that each of the motor-cycles was non-standard or did not have an identification plate. As such, they could not be imported into Australia unless they were approved for importation pursuant to the Motor Vehicles Standards Act 1989 (“MVS Act”) and the Motor Vehicles Standards Regulations 1989 (“MVS Regulations”).
2. On 25 September 2008, Mr McPartland applied to this Tribunal for review of the Administrator’s decision. At the hearing, he represented himself and gave oral evidence. Mr Andrew Dillon represented the respondent. The documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 were admitted in evidence (Exhibit R1). In addition, the Tribunal admitted the following documents in evidence:
   • applicant’s undated witness statement (Exhibit A1);
   • applicant’s documents (Exhibit A2);
   • email from the National Motor Museum, Birdwood, dated 23 July 2009 (Exhibit A3);
   • emails dated 22 June 2009 and 24 June 2009 from the Harley Owners Group (“HOG”) (Exhibit A4);
   • respondent’s Statement of Facts and Contentions, with Attachments A-H (Exhibit R2);
   • extract from website entitled “Fox Classic Car Collection”, printed on 26 October 2009 (Exhibit R3);
   • email correspondence between the applicant and Mr Andrew Dillon dated 26 October 2009 (Exhibit R4); and
   • witness statement of Mr Stephen Spencer dated 8 July 2009, with amendments to paragraphs 14 and 17 of the statement (Exhibit R5).

ISSUES FOR THE TRIBUNAL

3. Under the relevant provisions of the MVS Act, a person must not import a “road vehicle” that is non-standard or does not have an identification plate. However, the MVS Act goes on to provide that a person may import a non-standard road vehicle that does not have an identification plate with the written approval of the Minister or in “prescribed circumstances”. Regulations 9-18 (inclusive) of the MVS Regulations prescribe the circumstances under which the Minister (or his delegate) may approve an application by a person to import a non-standard road vehicle or a vehicle that does not have an identification plate. Regulation 18(1)(e) provides that the Minister may approve an application to import a non-standard road vehicle or a road vehicle that does not have an identification plate if he is satisfied that the vehicle is of a type not generally available in Australia and is to be imported primarily for exhibition.
4. The issue for the Tribunal is whether the discretionary power under Regulation 18(1)(e) of the MVS Regulations is enlivened in the applicant’s case and, if so, whether the Tribunal should exercise the discretion to approve the applicant’s application to import six Harley Davidson 105th Anniversary Series motor-cycles (the “Motor-cycles”). In particular, under Regulation 18(1)(e), the discretionary power is enlivened only if the Tribunal is satisfied that:

(a) the Motor-cycles are of a type not generally available in Australia; and

(b) the Motor-cycles are to be imported primarily for exhibition.

5. Even if the Tribunal is satisfied that paragraph 4(a) and paragraph 4(b) above are complied with, the power to approve an import under Regulation 18(1)(e) is discretionary, and a further issue is whether the exercise of the Tribunal’s discretion is warranted in the applicant’s case.
6. At the hearing, there was no dispute that each of the Motor-cycles:

(a) was a “road vehicle”;

(b) was “non-standard”; and

(c) did not have an “identification plate”.

LEGISLATION

7. The MVS Act and the MVS Regulations relevantly provide as follows:

MVS Act

8. Defined terms from s 5 of the MVS Act:

“...
identification plate means a plate declaring the status of a road vehicle in relation to the national standards and approved to be placed on vehicles of that type or description under procedures and arrangements provided for in subsection 10(1).
...
motor vehicle means a vehicle that uses, or is designed to use, volatile spirit, gas, oil, electricity or any other power (not being human or animal power) as the principal means of propulsion, but does not include a vehicle used on a railway or tramway.
...
nonstandard, in relation to a road vehicle or a vehicle component, means not complying with the national standards and not taken to comply with the national standards by virtue of an approval given under subsection 10A(2).
...
road motor vehicle means:
(a) a motor vehicle designed solely or principally for the transport on public roads of people, animals or goods; or
(b) a motor vehicle that is permitted to be used on public roads.
...
road vehicle means:
(a) a road motor vehicle; or
(b) a road trailer; or
(c) a partly completed road motor vehicle;
but does not include vehicles which the Minister has determined, under section 5B, are not road vehicles.
...”

9. Sections 18, 19 and 20 of the MVS Act:

“18 Prohibition of importation of nonstandard vehicles etc.
(1) Subject to sections 19 and 20, a person must not import a road vehicle that:
(a) is nonstandard; or
(b) does not have an identification plate.
Penalty: 120 penalty units.
...
19 Importation of vehicles requiring modification
(1) A person may import a nonstandard road vehicle, a road vehicle that does not have an identification plate or a nonstandard prescribed vehicle component with the written approval of the Minister, which may be approval subject to written conditions determined by the Minister.
...
20 Approval to import certain nonstandard vehicles
(1) A person may import a nonstandard road vehicle or a road vehicle that does not have an identification plate:
(a) where the vehicle is to be exported from Australia (with or without further work being done on it) without having been used in transport in Australia; or
(b) in prescribed circumstances.
...
(3) Regulations for the purposes of paragraph (1)(b) or (2)(b) may provide for the importation, whether generally or in specified circumstances, of a road vehicle, or a vehicle component, as the case may be:
(a) with the written approval of the Minister; or
(b) with such approval subject to written conditions determined by the Minister.
...”

MVS Regulations

10. Regulation 9 of the MVS Regulations:

“9 Approval to import vehicles without identification plates
For the purposes of section 20 (1) (b) of the Act, a person may import a nonstandard road vehicle or a road vehicle that does not have an identification plate if the Minister has approved an application by the person to import the vehicle.”

11. Regulation 11 of the MVS Regulations:

“11 Minister’s approval to import vehicles without identification plates
(1) The Minister may approve an application to import a nonstandard road vehicle or a road vehicle that does not have an identification plate.
(2) An approval may be given subject to conditions specified in the instrument of approval.
...”

12. Regulation 18 of the MVS Regulations:

“18 Approval to import vehicles without identification plates for evaluation etc
(1) Without limiting the generality of subregulation 11 (1), the Minister may approve an application to import a nonstandard road vehicle or a road vehicle that does not have an identification plate if he is satisfied that the vehicle:
...
(e) is of a type not generally available in Australia and is to be imported primarily for exhibition.”

BACKGROUND

13. In an “Application for Approval to Import a Vehicle” (“Application”) dated 1 August 2008 (Exhibit R1, T4), Mr McPartland applied for approval to import the Motor-cycles into Australia. In completing the Application, he indicated that the Motor-cycles did not come within any of the express exceptions provided for in the MVS Regulations. Although he completed the Application in his own name, it appears the owner of the Motor-cycles was to be his superannuation fund (McPartland Family Super Fund), the trustee of which was a company. In the letter accompanying the Application (Exhibit R1, T5), Mr McPartland stated that the Motor-cycles were to be imported and “used for our collection and for show purposes only, under the category of Collectible and Show Pieces”. On 4 September 2008, the Administrator advised the applicant that the Application was refused (Exhibit R1, T13). The Administrator stated:

“... Harley Davidson Australia have advised that the eight Harley Davidson 105 Anniversary Series are similar to motorcycles supplied to the Australian Market. As a result the vehicles are not eligible to be imported under the provisions of Regulation 18(1)(e) nor are they eligible under any of the other provisions set out in the regulations.”

Although the Application related to the importation of eight Harley Davidson 105th Anniversary Series motor-cycles, Mr McPartland already owned eight of the Series and wished to import the remaining six Motor-cycles, to make a total of 14, being the full collection of the 105th Anniversary Series motor-cycles. If the importation was refused, Mr McPartland would be seeking to establish a Registered Automotive Workshop (“RAWS”) to enable the Motor-cycles to be modified for importation into Australia.

EVIDENCE OF APPLICANT

14. In examination, Mr McPartland stated that the Motor-cycles each had an individual VIN, with particular badging on the fuel tank. The Motor-cycles were different from other Harley Davidson models available in Australia. There was variation in the seats, the handle bars and the wheels and there was extra chrome work.
15. The Motor-cycles were to be supplied to the Birdwood Motor Museum and shown as part of the exhibits within the Museum. Mr McPartland referred to the email from the Curator at the Birdwood Motor Museum (Exhibit A3), which expressed interest in a showing of the complete set of the 105th Anniversary Series. He also referred to the emails from Mr Trevor Smith, the manager of the HOG, which was to conduct a Harley Davidson rally in Tasmania (Exhibit A4). Mr McPartland said that he had decided to hold the Motor-cycles in his superannuation fund and to use them for exhibition purposes. His intention was to retire and live off the proceeds from the sale of his earth-moving hire business and from the sale of industrial land he owned at Roseworthy in country South Australia. All these assets were retained in his superannuation fund, along with properties he owned in the United States of America. He acknowledged that little income would be derived in the superannuation fund from the showing of the Motor-cycles at the Motor Museum. He was proposing to build a large trailer to transport the Motor-cycles to the Eastern States to generate income from the exhibition of the Motor-cycles.
16. In cross-examination by Mr Dillon, Mr McPartland identified the six models of the 105th Anniversary Series he wished to import into Australia, they being:

XL1200L – Sportster Low Rider
FXDWG – Dyna Wide Glide
FLSTN – Softail Deluxe
FLSTC – Heritage Softail Classic
FLHX – Street Glide

FLTR – Road Glide

He admitted it was his intention to borrow against the 105th Anniversary Series within the superannuation fund and that the Motor-cycles would be a form of investment. However, he denied that the holding and use of the Motor-cycles in the superannuation fund would constitute trading or business activities. He acknowledged that he had discussed the importation of the Motor-cycles into Australia with Mr Peter Robertson, the Administrator of Vehicle Standards, and the possible use of the approval available under Regulation 18(1)(e) of the MVS Regulations. However, he said it had been his intention to exhibit and display the Motor-cycles before he had spoken to Mr Robertson.

17. Mr McPartland also acknowledged that he did not have any history of exhibiting motor vehicles and had never been a proprietor of a motor vehicle museum. He did not have any experience in curating exhibitions or any staff who had such experience. However, he recognised that he would have to gain this experience and it was his intention to do so through the exhibition of the complete set of the Harley Davidson 105th Anniversary Series motor-cycles. He had obtained council approval to build a shed to house the Motor-cycles and the shed would probably be built in the next six months. He was in the process of constructing a 40 foot refrigerated Pantex to transport the Motor-cycles. The building of the shed and the construction of the Pantex were planned to take place for his retirement and for the exhibition of the Motor-cycles.
18. When questioned by Mr Dillon about a statement he had made in an email to Mr Stephen Spencer (Exhibit R1, T10) that his operations would be “the same as Lindsay Fox”, he denied that he had made any such statement. He maintained that the email would have been sent by his wife and that the statement had not been made by him. When questioned further by Mr Dillon about the nature of the exhibition of the Motor-cycles, he said that it would not be permanent. However, it would be open to the public and no fee would be charged for admission. He had not obtained council approval to run a museum on his property, and he had no plans to have conducted tours or corporate functions. His plan for a motor museum did not include staff, employees or volunteers.
19. Mr McPartland acknowledged that his business was having financial difficulties, but that two or three Motor-cycles would be acquired through his superannuation fund. He acknowledged further that he had not identified the individual units that he wished to import into Australia. It had been agreed that, once the units had been purchased, he would be able to supply the relevant VIN to the Administrator. He no longer had agreements for the purchase of the Motor-cycles, but he was confident that he would be importing them into Australia, whether he obtained approval or not. This would be done by dismantling the Motor-cycles or bringing them into Australia through a RAWS. He said that such a workshop had recently been approved in Queensland. This would enable three of the six Motor-cycles to be brought into Australia through the workshop. He agreed that he wanted to show the eight 105th Anniversary Series Harley Davidson motor-cycles he presently owned at the HOG rally in Tasmania to demonstrate his bona fides as an exhibitor, so he could obtain approval under Regulation 18(1)(e) of the MVS Regulations.

EVIDENCE OF MR STEPHEN SPENCER

20. Mr Dillon referred Mr Spencer to his witness statement dated 8 July 2009 (Exhibit R5). In his statement he said he currently occupied the position of Section Head – Policy, Legislation and Import Section, Vehicle Safety Standards in the Australian Government Department of Infrastructure, Transport, Regional Development and Local Government. Mr Spencer acknowledged that, apart from the corrections to two dates in the statement (from 2009 to 2008), the content was otherwise correct.
21. In cross-examination, the applicant asked Mr Spencer about the Harley Davidson 105th Anniversary Series motor-cycles that were generally not available in Australia. By reference to paragraph 29 of the respondent’s Statement of Facts and Contentions, it became apparent that the 2008 Sportster 1200 Low Rider, the 2008 Road Glide and the 2008 Dyna Wide Glide were all unavailable in Australia. Of the remaining Motor-cycles the applicant sought to import, these models were available as standard vehicles in Australia. The differences from the 105th Anniversary Series were only cosmetic – a different paint scheme, varying engine covers and seats as well as the 105th Anniversary Series badge. These differences did not cause the Motor-cycles to be of a different type from the standard Harley Davidson vehicles being marketed in Australia. Vehicles of the same model were available here, and the 105th Anniversary Series was simply a variant of those models. Mr Spencer explained that the importation refusal by the respondent was either because the Motor-cycles were of a type generally available in Australia or that they were not going to be exhibited in the sense required by Regulation 18(1)(e) of the MVS Regulations. When cross-examined further, Mr Spencer had no recollection of a telephone conversation with the applicant’s wife, while she was overseas, giving a verbal approval to import the Motor-cycles into Australia.

CONSIDERATION

Are the Motor-cycles of a type not generally available in Australia?

22. The Tribunal notes that the main objects of the MVS Act, as set out in s 3, 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.

23. Regulation 18(1)(e) of the MVS Regulations sits within the legislative framework contemplated by s 3 of the MVS Act. Section 18 of the MVS Act creates a general prohibition on the importation of non-standard vehicles. Sections 19 and 20 then establish a regime of exceptions to the general prohibition. Relevantly, s 20 provides that certain non-standard vehicles or vehicles without an identification plate may be imported into Australia under the Regulations set up under s 20(3) of the MVS Act. Regulation 18 is one of those, but it does not give automatic approval. It establishes a series of criteria by which vehicles, that are not going to be used on the road, may be imported if they are non-standard or do not have an identification plate.
24. Regulation 18(1)(e) comprises two limbs. It says that, if the Minister (and, on review, the Tribunal) is satisfied that the vehicle is of a “type” not generally available in Australia and is to be imported primarily for exhibition, there is a discretion to allow its importation. The expression “type” is not defined in the MVS Act or the MVS Regulations. However, the Tribunal accepts the respondent’s submission that “type” means the make and model or the design of a vehicle (see the Explanatory Memorandum to the Motor Vehicles Standards Amendment Bill 2001 at page 4).
25. The relevant facts of this case are largely not in dispute. Mr McPartland initially sought approval to import into Australia eight Harley Davidson 105th Anniversary Series motor-cycles. He later changed this to only the six Motor-cycles.
26. He applied for approval and in a letter accompanying the Application, he stated:

“Some of these Motorbikes will be new and some will be second hand, depending on what we find when we get over there, these will go with our collection of the other 8 x 105 Anniversary Harley Davidson motorbikes that we already purchased in Australia. These models are not available in Australia, but we would like to import them from the USA. These will be used for our collection and for show purposes only, under the category of Collectable and Show Pieces.”

The respondent sought VIN models of the Motor-cycles. Mr McPartland replied that he could not give the VIN as he had not purchased the Motor-cycles and it could take several weeks or months to find them. He said:

“Once again these bikes are individually numbered as a limited edition model. I was told I could get these passed for import because they are collectors items and to finish our collection off which we have in Australia.”

It is clear that the Application was made by Mr McPartland under Regulation 18(1)(e) of the MVS Regulations.

27. The Tribunal notes the advice obtained from Harley Davidson Australia (Exhibit R2, Attachment B) which sets out the full set of 105th Anniversary Series motor-cycles that have been released by the Harley Davidson Motor Company. This full set includes those motor-cycles imported by Harley Davidson Australia and marketed as 105th Anniversary Series Motor-cycles, as well as Harley Davidson Motor-cycles marketed in Australia as standard variants of the 105th Anniversary Series models.
28. On the evidence, the Tribunal is satisfied that the Motor-cycles the applicant sought to import and which are not readily available in Australia are:
    

2008 Sportster 1200 Low Rider (XL1200L)
2008 Road Glide (FLTR)
2008 Dyna Wide Glide (FXDWG)

These Motor-cycles are able to be imported into Australia under Regulation 18(1)(e), subject to satisfying the requirement that they are imported primarily for exhibition.

29. Standard variants of the following 105th Anniversary Series Motor-cycles are marketed in Australia by Harley Davidson Australia and are of a type generally available here. As such, these Motor-cycles are not able to be imported for exhibition under Regulation 18(1)(e) of the MVS Regulations:

2008 Softail Deluxe (FLSTN)
2008 Heritage Softail Classic (FLSTC)

2008 Street Glide (FLHX)

Again, on the evidence before the Tribunal, the differences between the 105th Anniversary Series versions and the standard variants marketed in Australia are cosmetic only. There is a different paint scheme, varying engine covers and vinyl inserts on seats, as well as the 105th Anniversary Series badge. As was said by Harley Davidson Australia and the Harley Davidson Motor Company (in the United States of America) in an enquiry directed to them (Exhibit R1, T12 at page 37):

“H-DA [Harley Davidson Australia] did market some of the models from the 105th Range during 2008MY.
As the differences are basically cosmetic, different colours, badges and trim materials we really treat them as the same model with a 105th Option.”

30. Having regard to the findings made above, only three of the Motor-cycles are of a type not generally available in Australia and satisfy the requirements of the first limb of Regulation 18(1)(e) of the MVS Regulations.

Are the Motor-cycles to be imported primarily for exhibition?

31. To enliven the discretion to approve Mr McPartland’s application for importation under Regulation 18(1)(e) of the MVS Regulations, the Motor-cycles must be imported primarily for exhibition. The words “primarily” and “exhibition” are not defined in the MVS Act or the MVS Regulations. According to the Macquarie Dictionary, 5th Edition 2009, “primarily” means: “in the first place; chiefly; principally”. “Exhibition” means: “an exhibiting, showing or presenting to view; a public show or display”. The use of the word “primarily” does not mean that the Motor-cycles cannot be sold if, for financial reasons, Mr McPartland is forced to sell them. However, the Tribunal’s understanding is that, if this occurred, the respondent would require a condition to be attached to the sale that the Motor-cycles be sold as exhibition vehicles. It is the Tribunal’s further understanding that it would be an offence to breach such a condition.
32. In determining whether the Motor-cycles are to be imported primarily for exhibition, Mr McPartland’s intentions at the time of his importation Application are most relevant. It appears that, at the time he made enquiries of the respondent as to his capacity to import the Motor-cycles, the applicant did not indicate that he sought to exhibit them in Australia. In referring to the Application, Mr Spencer said in his witness statement (Exhibit R5 at paragraph 5):

“... The application was made by the McPartland Superannuation Trust and Mr McPartland indicated that the intention of the collection was to be the only person [sic] in the world to have a complete set of 105th Anniversary Edition Harley Davidsons with the view that this collection would appreciate in value and that at some stage the collection might be sold.”

33. It was Mr McPartland’s evidence that the Motor-cycles were to be supplied to the Birdwood Motor Museum and shown as part of an exhibit there. However, it is clear that the Museum was only interested in showing a complete set of the 105th Anniversary Series motor-cycles (Exhibit A3) and there was no evidence as to the fee (if any) that might be paid by the Museum for the showing of the complete set. Mr McPartland acknowledged that he did not have a history of exhibiting motor vehicles and had never been a proprietor of a motor vehicle museum. He had no experience in curating exhibitions or any staff who had this experience. He said he had obtained council approval to build a shed to house the Motor-cycles, which would probably be built in the next six months. He was also in the process of constructing a 40 foot refrigerated Pantex to transport the Motor-cycles. In questioning by Mr Dillon, he said that the exhibition of the Motor-cycles would not be permanent. It would be open to the public, but no fee would be charged for admission. He had not obtained council approval for a museum on his property, and he had no plans to have conducted tours or other functions. His plans for a museum did not include staff, employees or volunteers.
34. Mr McPartland also acknowledged that his business was having financial difficulties. It was apparent to the Tribunal that, even if importation of the Motor-cycles was approved, it was unlikely that his plan to exhibit the Motor-cycles would take place in the foreseeable future. Overall, there was no history or business plan for exhibition and no support structure to implement it. The proposed arrangements involving the Birdwood Motor Museum and the HOG rally take Mr McPartland so far, but they do not (in the Tribunal’s view) demonstrate that importation of the Motor-cycles are (or will be) primarily for exhibition. In these circumstances, exercise of the discretion in Mr McPartland’s favour, under Regulation 18(1)(e), is not warranted.
35. During the giving of his evidence, Mr McPartland sought from Mr Dillon an outline of the intended operation of Regulation 11 of the MVS Regulations. This Regulation had been referred to by Mr Dillon in his opening. He explained that Regulation 11 would be available if prohibition on the importation of the Motor-cycles under Regulation 18(1) and any other application provision would cause Mr McPartland an injustice. As to the application of the discretion in Regulation 11, the Tribunal notes that the discretion should be exercised only in exceptional circumstances and not in such a way as would undermine or frustrate the object of the MVS Act and the MVS Regulations (see Re Marra and Minister for Transport and Regional Services [2003] AATA 323; (2003) 73 ALD 704 per Deputy President S D Hotop at paragraph [26] in considering Regulation 9B (now Regulation 11) of the MVS Regulations. Having reviewed Mr McPartland’s case, the Tribunal finds that there are no grounds to warrant the favourable exercise of the discretion under Regulation 11 of the MVS Regulations.

CONCLUSION

36. The Motor-cycles are subject to the MVS Act and may only be imported under its terms or the terms of the MVS Regulations. The Motor-cycles are non-standard road vehicles that must not be imported without the approval of the Minister or in prescribed circumstances. There are no grounds to support exercise of the Minister’s discretion under the MVS Regulations.

DECISION

37. The decision under review is affirmed.
    

I certify that the 37 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member R W Dunne

Signed: .............J Coulthard........................................

Associate

Date of Hearing 29 October 2009

Date of Decision 4 February 2010

Advocate for the Applicant Self-represented

Counsel for the Respondent Mr A Dillon

Solicitor for the Respondent AGS (Canberra)