MATSUSHITA ELECTRIC CO AUSTRALIA LTD AND SANYO AUSTRALIA PTY LTD

(1994) 32 ALD 463

(1994) 123 ALR 140

Customs - whether Administrative Appeals tribunal in reviewing decision made by Comptroller-General of Customs under s.269P(1) of Customs Act 1901 (Cth) rejecting the making of tariff concession order restricted to having regard only to materials referred to in paras (a), (b) and (c) of s.269P(1) - question whether Comptroller-General is so restricted considered.

Administrative Appeals Tribunal - whether competitor of applicant to Tribunal for review of decision rejecting the making of a tariff concession order is "a person whose interests are affected" and thus capable of being made a party to review - effect of s.31 Administrative Appeals Tribunal Act 1975 (Cth) purporting to exclude judicial consideration of decisions by Tribunal to add a party considered.

Customs Act 1901 (Cth): Part XVA, ss.269P(1)(a), (b), (c); s.269SH.

Administrative Appeals Tribunal Act 1975 (Cth): s.31.

Re Hunt; Ex parte Sean Investments Pty Limited [1979] HCA 32; (1979) 53 ALJR 552; discussed.

Alphapharm Pty Limited v Smithklein Beecham (Australia) Pty Limited (Full Court, 31 March 1994, unreported); distinguished.

Control Investments Pty Limited v Australian Broadcasting Tribunal (1980) 50 FLR 1; followed.

Counsel and Solicitors SJ Gageler instructed by the

Counsel and Solicitors P Strasser instructed by

1. Application dismissed.

2. Applicant pay the respondents' costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

HILL J The applicant, the Comptroller-General of Customs ("the Comptroller"), applies to the Court for judicial review of two decisions made by the first respondents as members of the Administrative Appeals Tribunal ("the Tribunal") or conduct (or proposed conduct) leading to the making of those decisions. The application is brought pursuant to s.39B of the Judiciary Act 1903 (Cth) as well as the provisions of the Administrative Decisions (Judicial Review) Act 1977 ("the ADJR Act"). To understand the decisions, conduct or proposed conduct sought to be reviewed, it is necessary to briefly set out the background to the present application. A more detailed examination will be undertaken later in the judgment.

2. Sanyo Australia Pty Ltd ("Sanyo") made two applications to the Comptroller for tariff concession orders in respect of certain imported colour television receivers. The applications differed in respect of the particular screen width of the television receivers. For reasons of clarity, I, like the Tribunal, will deal with the history of only one application. The issue between the parties arises in respect of both and for present purposes the relevant facts are identical.

3. One of Sanyo's applications was lodged on 10 November 1992 and was advertised as required by the Customs Act 1901 (Cth) ("the Act") in the Gazette on 25 November 1992. Thereafter the procedure contemplated by Part XVA of the Act relating to tariff concession orders was followed. I shall deal later with the relevant statutory provisions which detail that procedure. Suffice it to say here that Matsushita Electric Co Australia Pty Ltd ("Matsushita"), the third respondent, lodged an objection to the application. In due course a delegate of the Comptroller made a decision refusing the application for a tariff concession order. He did so on the basis of the information provided by Sanyo in its application and the information supplied by Matsushita in its objection. Reasons for the decision were given.

4. Further correspondence ensued which was taken by the Comptroller as involving an application, under s.269SH(1) of the Act, for reconsideration of the initial decision, a process sometimes referred to as internal review. After consideration of material in the original application, the objection by Matsushita, and subsequent information supplied outside the time limits relevant to the original application, another delegate decided to affirm the primary decision. Sanyo then applied to the Tribunal, as it was entitled to, on 8 June 1993 for review of that decision. Matsushita was subsequently joined as a party to the application without objection. The reference to the Tribunal was, the parties agreed, a reference to review the initial decision which had been affirmed: Gee v Director-General of Social Services (1981) 58 FLR 347. That was a decision made under s.269P(1).

5. Shortly before the application was due to be heard by the Tribunal, Sanyo advised the Tribunal and the other parties to the proceedings that, although it did not wish to withdraw its application for review it did not propose to present any evidence. When that became known, Akai Pty Ltd ("Akai"), an importer of colour televisions including receivers of the same screen width as those the subject of Sanyo's initial applications, made application to the Tribunal for an order, pursuant to s.30(1A) of the Administrative Appeals Tribunal Act 1975 (Cth) ("the AAT Act"), that it be added as a party to the proceedings. That application was heard ex parte and the Tribunal duly granted it adding Akai as a party.

6. When the matter came on for hearing, two preliminary questions arose. The first was whether Akai should have been joined as a party. The Tribunal indicated that it would hear the Comptroller and Matsushita on that question and, if of the view that Akai should not have been joined as a party, the Tribunal would make an order revoking the ex parte order it had originally made.

7. The second preliminary question related to the evidence that could be placed before the Tribunal on the review. The Comptroller submitted that the only evidence the Tribunal could take into account was that which was properly before the original decision-maker. For its part, Akai submitted that, provided it remained a party, it could call evidence which was not before the original decision-maker at the time of that decision. It may be said that Matsushita also intended to call evidence that had not been before the decision-maker.

8. In due course the Tribunal decided not to revoke its earlier ex parte order adding Akai as a party. In terms of s.30(1A) of the AAT Act, this involved the Tribunal deciding that Akai was a person affected by the original decision of the Comptroller not to grant a tariff concession order. The first decision challenged is the Tribunal's decision not to revoke its order adding Akai as a party. To the extent that the Tribunal's finding that Akai is a party affected by the Comptroller's initial decision may be conduct leading up to its decision not to revoke its order adding Akai as a party, the Comptroller challenges that conduct.

9. The Tribunal also ruled that at the review hearing all parties could produce evidence additional to that which was before the original decision-maker. This decision is likewise challenged.

10. Save in one respect, the Comptroller accepts that this Court has jurisdiction to review the decisions of the Tribunal, to which reference has been made. However, Akai lodged an objection to competency of the Court based upon s.31 of the AAT Act which provides as follows:

"Where it is necessary for the purposes of this

Act to decide whether the interests of a person

are affected by a decision, that matter shall be

decided by the Tribunal and, if the Tribunal

decides that the interests of a person are

affected by a decision, the decision of the

Tribunal is conclusive."

11. It is submitted that the consequence of s.31 is that this Court can not, in judicial review proceedings, consider whether any error of law or other judicially reviewable ground is made out in respect of any decision that Akai is a person affected. That decision is not, so it was submitted, able to be either appealed or dealt with on judicial review, by this Court. I shall return to that question later.

12. To understand the competing submissions of the parties, it is necessary to summarise the relevant provisions of the Act concerning applications for tariff concession orders and the review of decisions on such orders, whether by way of internal review or by application to the Tribunal. In so doing I will indicate, where appropriate, the relevant steps in fact taken by Sanyo in the present case. Part XVA of the Act

13. The provisions of Part XVA were introduced into the Act by the Customs Legislation (Tariff Concessions and Anti-Dumping) Amendment Act 1992 (Cth).

14. As the Second Reading Speech by the then Minister for Small Business, Construction and Customs makes clear, the 1992 provisions reflected a decision on the part of the Government to accept most of the recommendations of the Industry Commission in its report on tariff concessions, published the preceding year. There had been a system of tariff concessions introduced in 1983 and the 1992 legislation replaced that then system. The Industry Commission had reported on, what the Minister referred to as:

"a growing dissatisfaction with the operation of

the current system, particularly with the time

taken to obtain a concession order, and the lack

of transparency in the decision making process

leading to the grant or refusal of such an

order."

15. One can not extrapolate too much from the report of the Industry Commission, having regard to the fact that not all of its recommendations were apparently accepted, and the Minister made no attempt to identify those that were. The Report, however, makes clear that the dissatisfaction with the previous system arose when delays extended beyond a six month period between application and approval or denial, particularly when the application might be resubmitted.

16. The report did recommend, among other things, a change in the manner of resolving tariff concession disputes. Under the previous legislation there was no mechanism of dispute resolution and the only remedy a dissatisfied applicant had was to apply to this Court for judicial review under the provisions of the ADJR Act or s.39B of the Judiciary Act. The Industry Commission recommended that there should be "a merits review" to the Tribunal conditioned, however, upon a mandatory internal review mechanism. Although not much can be inferred from this, the discussion of this recommendation refers to a submission by the Administrative Review Council which mentions that the Tribunal could take into account later material that had come to light between the time of the decision and the time of the hearing by the Tribunal and the Report itself refers to the ability of the Tribunal to "access economic expertise".

17. Application for a tariff concession order is, under the 1992 legislation, made pursuant to s.269F(1). In the present case that application was made on 10 November 1992. Under s.269H of the Act, the Comptroller then has 28 days, after the application is lodged, to decide whether it is accepted as a valid application and to notify the applicant of the result of that consideration. Failure to accept or reject within the 28 days has the consequence of a deemed acceptance of the application as a valid one: s.269H(2).

18. As soon as practicable after the application has been accepted, the Comptroller is required to publish a notice in the Gazette setting out the matters referred to in s.269K(1) and inviting any persons who consider there are reasons why a tariff concession order should not be made to lodge a submission with the Comptroller not later than 50 days after the day of gazettal. In the present case the Gazette advertisement appeared on 25 November 1992.

19. The Comptroller also has power to invite persons, by a notice in writing, to lodge written submissions with him within a period specified in the notice given, being a period ending not later than 150 days after the gazettal day: s.269M(1). A submission in response to such an invitation has to be in writing and in an approved form and contain such information as the form requires. The approved form, as defined by "Guidance Notes" seeks information relevant to the issue ultimately to be determined by the Comptroller and includes matters which are clearly of a factual nature, matters of an opinion nature and matters requiring "assessment" (ie matters of a submission nature).

20. Pursuant to s.269M(1), the Comptroller wrote, on 17 November 1992, to Sharpe Corporation of Australia Pty Ltd, NEC Home Electronics Australia Pty Ltd and Matsushita, companies which had been nominated by Sanyo in its application as Australian manufacturers of colour televisions with the relevant screen sizes.

21. Sub-sections (4) and (5) of s.269M provide:

"(4) If the Comptroller considers that, in

relation to a particular TCO application,

any person (including the applicant or a

person who has lodged a submission with

the Comptroller) may be able to supply

information or produce a document or

material relevant to the consideration of

the application, the Comptroller may, by a

notice in writing, request the supply of

the information in writing or the

production of the document or material

within a period specified in the notice

and ending not later than 150 days after

the gazettal day.

(5) If a person refuses or fails to lodge a

submission under subsection (1) or to

supply information or produce a document

or material under subsection (4) within

the period allowed but subsequently lodges

that submission, supplies the information

or produces the document or material, the

Comptroller must not take that submission,

information, document or material into

account in determining whether to make a

TCO."

22. Matsushita lodged with the Comptroller a submission objecting to the grant of the order. According to the Tribunal, this was lodged pursuant to s.269K, sub-secs.(2), (3) and (4) of which provide:

"(2) A submission must:

(a) be in writing; and

(b) be in an approved form; and

(c) contain such information as the form

requires; and

(d) be signed in the manner indicated in

the form.

(3) A submission:

(a) must be lodged with the Comptroller

in the same manner and is taken to

be lodged on the same day, as is

specified in relation to a TCO

application; and

(b) must have the day of its lodgement

recorded.

(4) If a person lodges a submission later than

50 days after the gazettal day in respect

of a TCO application without being invited

by the Comptroller to do so under s.269M,

the Comptroller must not take the

submission into account in determining

whether to make a TCO."

23. It may well be that the submission lodged was in fact a submission under s.269M, but nothing turns upon this.

24. Section 269L provides for the giving of notice within 14 days after the end of the 50 day period referred to in s.269K, to the applicant, of any submissions lodged within time. The Comptroller advised Sanyo in the present case of Matsushita's objection by letter of 18 January 1993. Section 269L gives the applicant for a tariff concession order then a chance, if desired, to amend the application by altering the description of the goods and there is a time limit of 14 days for notification of amendments to objectors. No amendment was made in the present case.

25. Section 269P imposes an obligation upon the Comptroller to make a decision on the application. It provides relevantly:

"1. If a TCO application in respect of goods

... has been accepted as a valid

application under section 269H, the

Comptroller must decide, not later than

150 days after the gazettal day, whether

or not he or she is satisfied, having

regard to:

(a) the application; and

(b) all submissions lodged with the

Comptroller before the last day for

submissions; and

(c) all information supplied and

documents and material produced to

the Comptroller in accordance with a

notice under subsection 269M(4);

that the application meets the core

criteria.

(2) If the Comptroller fails to make a

decision under subsection (1) in respect

of a TCO application within 150 days after

the gazettal day, the Comptroller is

taken, for the purposes of subsection (1),

at the end of that period, to have made a

decision that he or she is not satisfied

that the application meets the core

criteria."

26. The reference to "the core criteria" is a reference to the criteria defined in s.269C, namely, that on a day 28 days before the day on which the application was lodged there were:

"(a) no substitutable goods ... produced in

Australia in the ordinary course of

business; or

(b) substitutable goods were produced in

Australia in the ordinary course of

business but the granting of the TCO was

not likely to have a significant adverse

effect on the market for the substitutable

goods."

27. Thus the issue which the Comptroller is required to decide is, under s.269P, whether, on the day 28 days before the date of lodging of the application, there were substitutable goods produced in Australia in the ordinary course of business and, if there were, whether the granting of the order would be likely to have a significant adverse effect on the market for the substitutable goods.

28. On 5 February 1993 a delegate of the Comptroller notified Sanyo, by letter, that its application had been unsuccessful. Two days before that letter, however, on 3 February 1992, Sanyo wrote to the Comptroller responding to Matsushita's objections and disputing much of the material in them. The Act makes no provision for such a course and the information not previously supplied following a notice under s.269M(4), would not fall within the category of information to which s.269P directs the Comptroller to have regard.

29. An applicant dissatisfied with a decision of the Comptroller refusing an order is entitled to initiate an internal review of the decision. Section 269SH provides that a request for such an internal review may be made within 28 days of gazettal of the decision refusing the application. That application must include the grounds on which the person objects to the decision. A letter of submission of Sanyo of 4 March 1993 was treated as the application under s.269SH for internal review, the decision refusing the application having been published in the Gazette on 17 February 1993. Sections 269SH(4), (6) and (7) of the Act provide as follows:

"(4) Where application is made for

reconsideration of a decision made on a

TCO application, the Comptroller, having

regard to:

(a) the TCO application; and

(b) the submissions, information,

documents and materials which the

Comptroller was entitled to take

into account in considering the TCO

application; and

(c) any new matter produced to the

Comptroller by the applicant for

reconsideration which, under

subsection (7), the Comptroller is

not prevented from taking into

account for that purpose;

must decide, no later than 90 days after

the last day for lodgement of the

application for reconsideration, whether

to affirm the original decision or to

substitute any other decision that the

Comptroller might have made.

(6) If the Comptroller fails to make a

decision under subsection (4) ... within

the period referred to in that subsection,

the Comptroller is taken, for the purposes

of the reconsideration, at the end of that

period, to have made a decision to affirm

the original decision.

(7) For the purposes of

the Comptroller must not take into account

any new material that is not produced to

him or her by the applicant for

reconsideration of an original decision

within the period of 28 days after

notification of the original decision in

the Gazette."

30. After the internal review is completed the Comptroller is required to give notice in writing to the applicant of the decision and publish a notice in the Gazette to inform other interested persons of the decision.

31. The persons who can seek, by way of internal review, a reconsideration of a decision on a tariff concession order are limited. By force of the definition in s.269SH(13), they are restricted to the applicant for the tariff concession order, any person who has lodged, in time, a submission in relation to the application or any person who, in the Comptroller's opinion, was not reasonably able to lodge a submission in relation to the application within 50 days of the gazettal day.

32. The review of a decision by the Tribunal is provided for in s.273GA(1)(n) of the Act. The review is, so far is relevant in the present case, a review of "a decision of the Comptroller under subsection 269P(1)". Sub-section 6A of the same section provides that an application may not be made unless:

"(a) the decision has already been the subject

of an application for reconsideration under

s.269SH; and

(b) the person who makes the application to the

Tribunal is an affected person within the

meaning of that section who is adversely

affected by the decision on the recommendation."

33. There is no argument that Sanyo was an affected person, within the meaning of s.269SH, and is adversely affected by the decision. Clearly, on the facts of the present case, no other party is an affected person. In particular, Akai is not, for it neither made a timely submission in relation to Sanyo's application, nor could it said to be a person not reasonably able to lodge a submission in the relevant 50 days because it was not a person who ever could have lodged a submission, or at least a submission that could be taken into account.

34. For the Comptroller it was submitted that the Comptroller, in making his decision under s.269P(1), was restricted to having regard only to the materials referred to in paras.(a), (b) and (c) of that sub- section. Next it was submitted that the Tribunal had jurisdiction only to address the same question as that which was addressed by the Comptroller under s.269P(1), that question being whether, having regard to the matters referred to in paras.(a), (b) and (c), the application met the core criteria. Thus it is submitted that the Tribunal, like the Comptroller, is restricted to considering the materials in paras.(a), (b) and (c) and accordingly would not be entitled to hear evidence of other matters that the parties may wish to place before the Tribunal. An alternative submission was that, even if the Tribunal was not limited precisely to the material before the decision-maker, it was still limited to deciding the issue under s.269P(1) so that any evidence which was adduced could be directed only to the question there dealt with, explaining or criticising the materials which the Comptroller was entitled initially to take account under s.269P(1).

35. The Comptroller further submitted that Akai was not a person whose interests were affected by the Comptroller's decision and therefore should not have been added by the Tribunal as a party under s.30(1A) of the AAT Act, with the result that the order of the Tribunal so to do should be revoked.

36. I shall deal with each of these submissions separately.

Was the Tribunal restricted to the materials in s.269P(1)(a), (b) and (c)?

37. The Comptroller's submission has, as its fundamental premise, the proposition that the Comptroller himself (or his delegate) is limited in making the decision under s.269P(1) to the material in paras.(a), (b) and (c) of that sub-section. That premise depends upon whether the words "having regard to", in the context of the sub-section, introduce the exclusive category of material to which regard may be had, or whether those words only tend to emphasise particular kinds of information and are not exclusive. The submission also places emphasis on the evident purpose of the legislature in imposing strict time limits up to the point of review by the Tribunal. To allow fresh evidence would, it was submitted, render if not nugatory at least relatively ineffective the attempt to ensure that the process for the grant of tariff concession orders is as curtailed as possible.

38. The Tribunal did not find it necessary to come to a concluded view on this question and ultimately nor do I. I would, however, make some comments on it.

39. Counsel for the Comptroller referred me to the decision of the Full High Court in Re Hunt; Ex parte Sean Investments Pty Limited [1979] HCA 32; (1979) 53 ALJR 552, a case concerned, inter alia, with the interpretation of s.40AA(7) of the National Health Act 1953 (Cth) as in force in 1977. That section provided for the permanent head of the department, in determining a scale of fees in relation to a nursing home, to "have regard to costs necessarily incurred in providing nursing home care in the nursing home". A question arose as to whether the permanent head was limited in his consideration only to the costs necessarily incurred in providing nursing home care or whether the permanent head could take into account other considerations. In the context of that case it was held that the permanent head was not so confined. Although required to take into account the matter referred to in sub-sec.(7), the sub-section was so generally expressed that it showed no intention to limit consideration to the one matter to which it referred.

40. The Sean Investment case does no more than illustrate the obvious proposition that words will take their meaning from the context in which they appear. In the context of that case, the words "have regard to" did not confine the matters to which regard may be had. In another context they might. An example of a context where the list of matters to which a decision-maker was required to have regard was exclusive would be s.99A(3) of the Income Tax Assessment Act 1936 (Cth), considered by the High Court in Giris Pty Limited v Federal Commissioner of Taxation [1969] HCA 5; (1968-1969) 119 CLR 365, a case in which the formulation "have regard to" was criticised where the matters to which regard may be had were a criterion for making a decision. Another example of a similar kind is s.177D of the same Act, cf Peabody v Commissioner of Taxation [1993] FCA 74; (1993) 40 FCR 531 at 541.

41. In the present context there are, as has been noted above, a number of sections which ensure that the Comptroller is not to have regard to certain material, for example, submissions not received in a timely way. These apart, it would hardly seem likely that the legislature saw the need specifically to provide that the Comptroller would take into consideration the submissions in fact received in a timely way, or other materials supplied either by the applicant or the objectors among other material not excluded from consideration, for this would be material which a fortiori the Comptroller would need to consider, without the need for paras.(a), (b) and (c), if the matter was at large. The need for procedural fairness would ensure this. This suggests to me that paras.(a) to (c) of s.269P(1) were inserted by the legislature to ensure that the Comptroller's decision was restricted to a limited class of material and to that alone.

42. Counsel for Akai made the point that submissions lodged with the Comptroller before the last day of submissions (para.(b)) could, if s.269P(1) be constrained in the way suggested, not be read unless they precisely followed the approved form, for, as has been seen, following the approved form appears necessary. Further, this interpretation would preclude the Comptroller from considering a mass of economic or other data which he might have in regard to other matters. For example, another manufacturer of television receivers such as Akai might have made, around the same time, a similar application, providing vital information with that application. That information would have to be ignored by the Comptroller unless the Comptroller went through the procedure under s.269M of requesting it and getting it within the time frame referred to in that section.

43. These arguments are compelling arguments against the construction that s.269P(1) should be read as limiting the material which the Comptroller is required to consider. Although I see the force of these arguments, I think the better view is that the Comptroller is restricted to the material referred to in paras.(a), (b) and (c). As will be seen, however, I need not so hold to come to the conclusion which I do. For the purposes of this judgment I am prepared to assume the base premise of the Comptroller that s.269P(1) confines him to considering only the matters referred to in the paragraphs when determining whether the application meets the core criteria.

44. The second premise of the Comptroller's submission is that the matter to be reviewed by the Tribunal should be stated as whether, having regard to the matters in paras. (a) to (c) of s.269P(1), the application meets the core criteria. In my view, this mistakes the question which the Tribunal is to address. As the Tribunal itself observed and as counsel for Akai submitted, the question before the Tribunal is more simply stated. It is rather the question whether the application meets the core criteria. The Tribunal's reasons for decision in the present matter make this point.

45. I reach the same conclusion as the Tribunal, both by reference to the construction of the Act and by reference to the construction of the AAT Act and the nature of the powers and functions of that Tribunal.

46. Under the Act, on the assumption I have made as to the correctness of the Comptroller's first premise, the Comptroller is restricted to the materials in paras.(a), (b) and (c) of s.269P(1) in answering the question which is posed to him, namely, whether the application meets the core criteria. The internal review, which is a precondition of the exercise of the right to a review by the Tribunal, is framed in terms which itself may require the Comptroller in the internal review to be limited to the material described in these paragraphs: see s.269SH. That, however, need not be the same material as the material considered under s.269P(1). Section 269SH allows the inclusion of new matter produced to the Comptroller by the applicant for reconsideration, provided it is not precluded from consideration by s.269SH(7). In the present case that included the material contained in Sanyo's letters of 3 February 1993 and 4 March 1993. Thus, to that stage, the scheme of the legislation is that the Comptroller in the internal review is entitled to consider any new matter produced in addition to the material which he was entitled to take into account under s.269P(1). It would be a strange consequence indeed if, when thereafter, a dissatisfied applicant sought a review from an external authority by the Tribunal, the Tribunal was precluded from taking into account the new matter. While it is true that when there has been a review of a decision by internal review and thereafter the matter comes before the Tribunal, it is the original decision which is to be reviewed by that Tribunal. At least in the ordinary case, the Tribunal is not confined to the material before the decision-maker.

47. This leads me to conclude, as I believe the Tribunal did, that the structure of the provisions is that in each case, whether involving the original decision, internal review or review by the Tribunal, the question at issue is whether the application meets the core criteria. The restrictions in ss.269P(1) and 269SH(4) go not to the statement of the issue but to the material which is to be considered by the Comptroller in each of the two decision-making processes which the Act entrusts to him. When a right of review to the Tribunal is thereafter invoked the intention of Parliament was, in my view, that the Tribunal operate in the ordinary way and review the decision of the Comptroller that the application did not satisfy the core criterion but without the limitations imposed upon the Comptroller under ss.269P(1) and 269SH. These limitations are limitations which, to adopt what was said by the Tribunal, must be observed by the Comptroller in the making of the original decision and the internal review decision, but they are not themselves part of the definition of the decision itself.

48. This view is reinforced by a consideration of the role and function of the Tribunal and the statutory provisions which relate to it in the AAT Act.

49. Section 25 of the AAT Act ensures that the Tribunal has power to review any decision made in the exercise of powers conferred by an enactment, so long as that jurisdiction is conferred upon the Tribunal by some other enactment. An Act conferring jurisdiction may, inter alia, specify conditions subject to which applications may be made and may add to or exclude any provisions of the AAT Act. No conditions or provisions modifying or excluding the AAT Act are to be found in the present circumstances.

50. The Tribunal is an administrative Tribunal and, as has often been said, its function is merely to do over again what the original decision-maker did, working out, as a further step in administration, what it considers the decision ought to be: see cf Mobil Oil Australia Pty Limited v Commissioner of Taxation [1963] HCA 41; (1962-63) 113 CLR 475 at 502 per Kitto J; Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 584-5 per Bowen CJ and Deane J and more recently see Liedig v Commissioner of Taxation (1994) 94 ATC 4269. In exercising its role, in what Davies J in Jebb v Repatriation Commission [1988] FCA 105; (1988) 80 ALR 329 at 333 referred to as a "part of" an administrative "continuum", the Tribunal, within the ambit of the jurisdiction conferred upon it as a review authority, decides the matter by reference to the evidence before it and not the evidence before the decision-maker, taking into account events that may have occurred to the date of decision: cf Jebb (supra at 334); Lucas v Repatriation Commission (1986) 69 ALR 415 at 421; Ward v Nicholls (1988) 84 ALR 471 at 476 per Wilcox J.

51. It is true that the review to be conducted by the Tribunal is a review of a specific decision and if that decision has to be made by reference to a particular point of time the Tribunal will be limited to deciding the question by reference to that point of time. That was the case in Hospital Benefit Fund of Western Australia Inc v Minister for Health, Housing and Community Services [1992] FCA 599; (1992) 111 ALR 1, but ordinarily in such a case the Tribunal will not be limited to the evidence before the decision-maker although obliged to address the question the decision-maker addressed.

52. In the Hospital Benefits Fund case, the Full Court, comprising Wilcox, Burchett and French JJ, expressed the view that the Tribunal could receive evidence of prospective developments which would throw light on the situation as at the date the decision was required to be made.

53. To enable it to exercise its role of independent review of administrative decision-making, the Tribunal is given all the powers and discretions conferred on the person who made the original decision: s.43 of the AAT Act. It may, inter alia, take evidence and require persons to attend before it for that purpose: s.40; it may inform itself in such a manner as it thinks appropriate: s.33(1). Its proceedings are within its own discretion but it is contemplated that parties to the proceedings before it will appear, either in person or by representative: s.32. No doubt to emphasise the need for the Tribunal to give procedural fairness to the parties to a review, the AAT Act provides for every party to the proceeding to be given "a reasonable opportunity to present his case ... and to make submissions ..." in relation to documents which the Tribunal proposes to have regard to: s.39. Ultimately it must make a decision giving reasons, either orally or in writing, for that decision: s.43(2). Reasons in writing must include findings on material questions of fact and reference to evidence or other material upon which those findings were based: s.43(2B).

54. It is no doubt true that it will not be in every case that the parties to the proceedings will wish to adduce oral evidence. Often the determination before the Tribunal will be a determination by reference to documents before the original decision-maker at the time the decision was made, there being no other relevant material to be considered. In such a case, of course, the Tribunal may be said to be reviewing the decision on the documentary material, but that is a matter which goes not to the powers of the Tribunal but the need for evidence adduced before it to be relevant to the question it must decide.

55. If the Comptroller's submission be accepted, Parliament has, by implication, severely restricted the ordinary proceedings of the Tribunal in the present case, but without expressly doing so. Although the Explanatory Memorandum which accompanied the Bill which introduced review to the Tribunal of decisions under s.269P(1) does not comment on the way the Tribunal will exercise its powers in that review, the absence of that very comment suggests that Parliament did not intend either that the review be a limited one, or that it be more limited than the internal review which the Comptroller himself is authorised to undertake.

56. Further, if the Comptroller's submissions be accepted, it is arguable that not only could no evidence be adduced before the Tribunal, but no submissions could be made at all to it. The only matters to which the Tribunal could have regard would be the matters referred to in s.269P(1), which include submissions from others made under the Act but not submissions made by parties to a later external review.

57. In my view, such a construction limiting the power and function of the Tribunal should be adopted only where express words or necessary implication require it. The present is not such a case. The argument that to allow the Tribunal to hear fresh evidence would unduly prolong the procedure for the grant of tariff concession orders, I find quite uncompelling. There is no reason to believe the Tribunal can not proceed with a review expeditiously and it can not be presumed that Parliament preferred speed of decision-making to just decision-making when the present provisions were enacted.

58. It follows, in my view, that the Tribunal, in the proceedings before it, is not limited to having regard to the materials referred to in s.269P(1), paras (a), (b) and (c), but may receive evidence relevant to the issue before it, namely, whether Sanyo's application met the core requirement.

59. As earlier noted, counsel for Akai submitted that the Court had no jurisdiction to determine the question whether Akai was a person whose interests were affected by the decision under review and thus qualified to be added as a party. If that submission were to be rejected then the Court would have no jurisdiction to review the decision whether or not Akai should be removed as a party because that question would merely be one of discretion and there was no suggestion that otherwise the discretion had miscarried.

60. The submission is based upon s.31 of the AAT Act which provides:

"Where it is necessary for the purposes of this

Act to decide whether the interests of a person

are affected by a decision, that matter shall be

decided by the Tribunal and, if the Tribunal

decides that the interests of a person are

affected by a decision, the decision of the

Tribunal is conclusive."

61. Counsel for the Comptroller submitted that s.31 should be so construed as not to preclude judicial review by the Court of a decision by the Tribunal that the interests of a person are affected by a decision: cf O'Toole v Charles David Pty Limited (1990-1991) 171 CLR 232 at 248-9; R v Hickman; Ex parte Fox v Clinton [1945] HCA 53; (1945) 70 CLR 598 at 615. If such a reading down was not undertaken, then the result would seem to me to be that s.31 might well be void and of no effect. However, I could not proceed to decide what would ultimately be an issue arising under The Constitution without the appropriate procedure under the Judiciary Act being followed.

62. In the context of the AAT Act where a question arises as to whether a person should be added as a party, that question must of course be decided first by the Tribunal. If the Tribunal determines that the person seeking to become a party is not a person affected by the relevant decision, then that person is given a right of appeal from the Tribunal to this Court: see s.44(2). The purpose of s.31 is, put negatively, not to confer upon other persons who are already parties to the proceedings a right of appeal to this Court if an order is made adding a party on the basis that the interests of the person seeking to be added are affected. It is for that reason that s.31 makes the Tribunal's decision conclusive. But s.31 was never intended to exclude the jurisdiction of this Court in judicial review proceedings from supervising the exercise by the Tribunal of its powers and functions and determining whether those powers and functions have been exercised in a way involving an error of law. It is well established that clauses of the present kind, making certain matters conclusive or final and binding, will not affect judicial review: cf R v Nat Bell Liquors Limited (1922) 2 AC 128 at 159-161; Aronson, M Review of Administrative Action Law Book Company 1987 at 679-680; see also Peiris, G Statutory Exclusion of Judicial Review in Australian, Canadian and New Zealand Law (1982) Public Law 451.

63. In the present case the privative effect of s.31 is of no consequence because I am firmly of the view that the Tribunal was entitled to find that Akai was a person whose interests were affected by the decision under review and to exercise its discretion to admit that company as a party.

64. The reason why Akai is a person affected by the decision not to grant the tariff concession order is quite plain. Akai imports products of the same class as Sanyo. It presently pays customs duty at a particular rate upon the importation of those products. If the tariff concession order had been granted on Sanyo's application, Akai would also pay less customs duty than it presently does. Its interest is more than that of a mere competitor of Sanyo. It has a direct financial interest in the outcome of Sanyo's application.

65. Counsel for the Comptroller referred me to the decision of the Full Court of this Court in Alphapharm Pty Limited v Smithklein Beecham (Australia) Pty Limited (31 March 1994, unreported) considering the meaning of the words "person whose interests are affected" for the purposes of a right to require the Minister to reconsider a decision under s.60(2) of the Therapeutic Goods Act 1989 (Cth). The Full Court held in that case that a person with a commercial interest as a competitor did not fall within this expression. The submission in the present case presumably was that, because Akai had a commercial interest and was a competitor, it likewise could not be a person whose interest was affected by the decision of the Comptroller.

66. As Gummow J observed in Alphapharm (at 15) the content in each case of the terms "affect" and "interest", "are to be seen in the light of the scope of the particular statute in issue." Considering the particular context of the legislation before their Honours, his Honour then said (at 17):

"Persons whose existing situation under the

legislation is changed by operation of the

initial decision which was not sought but which

was imposed upon them, must be persons whose

interests are affected by the initial decision."

67. This passage was relied upon in support of an argument that Akai had no standing. It was said that its position did not change as a result of the decision.

68. In one sense this is true in that Akai remained liable to pay the same customs duty before and after the decision. But Akai's decision would have changed if the decision had gone the other way. The decision had the consequence of not reducing its existing liability and that, in my opinion, is sufficient to make Akai a person affected by the decision.

69. The general principles discussing the phrase "interests are affected" and other matters of standing were considered by the Full Court of this Court in United States Tobacco Company v Minister for Consumer Affairs [1988] FCA 213; (1988) 20 FCR 520 at 526-30. That case concerned the joinder of a party to proceedings under the ADJR Act where the test was whether the person was "interested" in the challenged decision. In Control Investments Pty Limited v Australian Broadcasting Tribunal (1980) 50 FLR 1 at 8-9, Davies J considered s.30 of the AAT Act and in a passage approved by the Full Court in US Tobacco said:

"In their context in ss. 27 and 30, the words

`interests are affected' denote interests which

a person has other than as a member of the

general public and other than as a person merely

holding a belief that a particular type of

conduct should be prevented or a particular law

observed. The interest affected need not be a

legal interest nor need the person seeking

joinder establish legal ownership of the

interest. ... However a person seeking joinder

must be able to identify a relevant interest

which is his. In other contexts, dicta in cases

have used the adjectives `real', `genuine' and

`direct' to describe the relationship required

between the decision and the interest. Sections

27(1) and 30(1) do not make use of adjectives

but they do require that the applicant

demonstrates genuine affection of an interest

which attaches to him. The nature of the

interest required in a particular case will be

influenced by the subject matter and content of

the decision under review. As Brennan J said

in McHattan's case

Customs (1978) 18 ALR 154 at 157) `However, a

decision which affects interests of one person

directly may affect the interests of others

indirectly. Across the pool of sundry interest,

the ripples of affection may widely extend. The

problem which is inherent in the language of the

statute is the determination of the point beyond

which the affection of interests by decision

should be regarded as too remote for the

purposes of s.27(1). The character of the

decision is relevant, for if the interests

relied on are of such a kind that a decision of

the given character could not affect them

directly, there must be some evidence to show

that the interests are in truth affected.'"

70. As I have already said, the affection in the present case of the interest of Akai is not too remote but rather is direct. Accordingly Akai was a person entitled to be considered by the Tribunal for joinder as a party. Its discretion so to do did not involve the application by the Tribunal of any wrong principle and accordingly is not examinable by me.

71. It follows, in my view, that the application should be dismissed with costs.