reasoning
36 It is desirable first to address the legal foundation of the EFS. Unlike the ACIS, it was never enacted into law. The sole reference to it in statutory or regulatory sources is that which occurs in item 41A and the not dissimilar item 17. Each contains what can only be described as cryptic references to the EFS or EFS credits. When item 41A refers to importation by the owner of a determination 'issued' under the EFS, it cannot be read either literally (because the authority for the determination is s 273, not the EFS) or as an adoption of the provisions of the EFS. If the latter were the case, the statutory adoption would be effective only in relation to the terms of the Administrative Arrangements as they stood at the date of the coming into effect of item 41A but it is not contended that those Arrangements are frozen in that way.
37 This is not said to be a case in which the Minister has formulated a scheme for calling, and dealing with, tenders for the right to enter for home consumption during a period, or each of a number of periods, a determined quantity of particular goods, or particular goods of a determined value, at concessional rates of duty in accordance with s 266 of the Customs Act. Such a scheme arose for consideration in Gerah Imports Pty Ltd v Minister for Industry, Technology and Commerce (1987) 17 FCR 1. Davies J, after referring to and setting out authorities on the issue of whether departure from the terms of the non-statutory scheme may invalidate a decision, concluded that, despite the formulation pursuant to s 266, the scheme was a statement of guidelines not a prescription of legal entitlements. It was a statement of policy designed to assist the exercise of discretion under s 273 but did not have legislative character nor was it delegated legislation, a regulation or a by-law (at 10). Davies J's reasoning followed the analogous reasoning of the Full Court (Fox, Morling and Beaumont JJ) in Minister for Industry and Commerce v East West Trading Co Pty Ltd (1986) 10 FCR 264. This latter decision was relied upon by Burchett J in ACI Operations Pty Ltd v Chief Executive Officer of Customs (1998) 53 ALD 86 to conclude that a delegate was entitled under s 273 in the exercise of his or her broad discretion and in the application of departmental policy to decline to determine that the concessional rate provided for in item 43 of Sch 4 should apply to the goods of the applicant in that proceeding.
38 In our view it is clear from these authorities that the legislative references to the EFS do not constitute a statutory adoption of all of the terms of the EFS. Rather, what the references do is give specific statutory effect to an aspect of the EFS. We cannot therefore accept the appellant's contention that by the combined operation of s 273 and item 41A of Sch 4 of the Tariff Act read in respective contexts the terms of the Administrative Arrangements are given the status of statutory property rights: cf Australian Capital Territory v Pinter (2002) 121 FCR 509 at 527 per Black CJ. Consistently with East West and with Gerah, the EFS can only be understood as being a statement of guidelines stating relevant governmental policy. (That, of course, is not to say that a failure of a decision-maker to have regard to non-statutory rules does not mean such rules cannot have an effect in law because such non-regard (or misconstruction) may open itself to argument on judicial review that there has been failure to take into account a relevant consideration: Gerah at 15; Minister for Immigration, Local Government & Ethnic Affairs v Gray (1994) 50 FCR 189 cited in Misiura v Minister for Immigration & Multicultural Affairs [2001] FCA 133 per Madgwick J. Such are not considerations raised in this present appeal.) In order to determine what effect (if any) those guidelines have in relation to the legal obligation to pay duty and/or to pay a drawback, reference needs to be made to the Act and regulations, rather than the EFS.
39 It follows from the status of the EFS as guidelines that the use of language in it cannot be determinative of whether or not the application of EFS credits constitutes the payment of import duty so as to entitle the appellant to drawback. It is to the statutory and regulatory language that the Tribunal was required to have primary regard to resolve the issue of construction. We note that the Tribunal was of the view that the legislative statements in issue are so clear that the matters of purpose and policy and the like contended for by the appellant could not lead to a different result.
40 The appellant urges that in approaching the legislative and regulatory provisions we have well in mind that the Tribunal was required to address the legislation as 'beneficial' legislation. The respondent does not argue that the provisions in question should not be approached on that basis. That has the consequence that the Tribunal was required and this Court is required to look to the fair meaning of the language used and give it the fullest relief which that will allow: Bull at 384; Re Entech Printed Circuits Pty Ltd and Chief Executive Officer of Customs (1999) 55 ALD 244 at 254. However, adopting that approach does not in our view make apparent any error in the reasoning of the Tribunal.
41 In approaching those provisions it is also necessary to have in mind the principles applicable to the interpretation of the legislation and regulations in issue. These were recently stated by a Full Court constituted by Black CJ, Sackville and Sundberg JJ in Parks Holdings Pty Ltd at [41]-[48]. There the Court was concerned with the interpretation of s 167, a provision concerned with disputes as to duty. Although the Full Court accepted that the question of construction must be resolved by reference to the words used by Parliament, nonetheless it considered that in a case of legislation of the longevity of the Customs Act, it is desirable for intermediate appellate courts to proceed by reference to what the High Court has said as a guide to meaning: Longo at 464 [25].
42 Turning to those provisions, the definition of 'drawback' in s 4 supports a view that drawback may be paid in the form of or by way of bounty or allowance, such as by way of ACIS credits. This does not assist on the question of entitlement to drawback on export credits, only as to the method of payment once entitlement exists. It is apparent that s 168(1) does no more than pass attention to the regulations authorised by its terms. Section 168(2) demonstrates that Parliament considered there was a need for legislation to ensure that ACIS credits are treated as part of the amount of import duty paid. Yet Parliament did not provide any transitional provisions to ensure this with respect to EFS credits. Regulations 129 and 131, read in the context of other regulations relating to drawback, do not in themselves bring any light to the issue of whether drawback can apply to the utilisation of EFS credits. Like s 168(1), they rely on the concept of drawback being applicable to import duty which has been paid and therefore on the concept of payment. Hence those provisions in turn direct attention to the source from which payment derives, namely item 41A of Sch 4 of the Tariff Act. Even if the statutory and regulatory provisions are addressed with the priority urged by the appellant, the focus of attention inevitably comes down to the terms of this item, upon which the Tribunal's consideration was concentrated.
43 When attention is directed to the third column of item 41A and the language examined, it is impossible not to agree with the Tribunal that (at [21]):
'…The amount is described by reference to the result of a subtraction. The result of the subtraction is the amount left after the amount of ESF (sic) credits has been deducted from the basic duty. Literally read, there cannot be any doubt that the duty payable when EFS credits are employed, is the amount remaining after the EFS credits are used to reduce the amount of duty rather than the amount before the subtraction. …'
Reference to item 17(c)(ii) does not lead to a different conclusion. That sub-par is capable of application to goods on which part of the import duty has been met by application of export credits and the balance paid by cash. The reference there to export credits is used to describe the goods in issue and not to delimit the concept of drawback. Even if it is accepted that the sub-par is able to be applied in its terms to an instance where the importer has met the entire liability for import duty by application of export credits, it cannot lead to a different interpretation to what the plain reading of item 41A yields. Item 41A does not have about it the necessary ambiguity of item 17(c)(ii) to have influence if it was introduced after item 41A: Deputy Federal Commissioner of Taxes v Elder's Trustee and Executor Co Ltd (1936) 57 CLR 610 at 625-626. In the context of the new ACIS legislation, item 17(c)(ii) would of course be able to be understood as referring to drawback on ACIS credits.
44 The only question therefore remaining is whether the legislative intent and the other considerations raised by the appellant require item 41A to be interpreted in accordance with the alleged purpose and policy, rather than its terms.
45 We do not consider that there is any clear legislative intent in relation to drawback such as would override the express provisions of the item. Drawback is provided only in terms which the item permits. It follows from the provisions which we have traced through that the intent of their application is made apparent in terms of the item. This is not a case where it can be said that the provision of the benefit is to occur independently of the precise terms which it is provided for in the item. It is impossible to form the view that the legislation requires any 'payment' of drawback to be allowed irrespective of the application of the precise terms of item 41A.
46 The status of the EFS as guidelines does not permit that to be a determining influence on the rewriting of item 41A. In any event, if it did have the status of law or if consistency with it was required, it would not assist the appellant's case. That is because the Administrative Arrangements giving effect to the EFS refer to credits as being employed to 'offset' or effect a 'reduction' of import duty or to obtain a 'rebate' of it.
47 The fact that under the EFS as administered an importer is able to change the amount of EFS credits or that such credits may be bought and sold is simply irrelevant to the question whether their utilisation constitutes the payment of import duty for the purpose of the Act. Assuming that the practice is lawful (which was not disputed), if there is a change in the amount of the credits, that simply means that the amount of duty paid will also change with correlative consequences for any later claim of drawback.
48 We cannot accept the submission that item 41A does not create a 'rate' of duty. The words set out in the third column of the item clearly enable the relevant duty to be worked out in respect of the goods to which the item applies and is therefore a 'rate' of duty.
49 In relation to the argument that there is an inconsistency with legislative intent when the appellant elects to utilise EFS credits because it cannot claim drawback with respect to the credits, it is the case that reg 136B, by preventing an importer from claiming drawback of import duty to the extent that any 'rebate' has been allowed on that duty, manifests an intention contrary to the appellant's view.
50 In relation to the introduction of item 41E providing for drawback to be applicable to duty offset using ASIC credits, the appellant contends that this subsequent provision should be taken as casting light on the proper understanding of item 41A. The respondent contends that it is significant that no equivalent provision was introduced concerning the utilisation of EFS credits. The principle of interpretation in the light of retrospective enactment is only applicable, however, where the interpretation of a statute is 'obscure or ambiguous, or readily capable of more than one interpretation': Elder's at 625. We have found that not to be the case.
51 We do not consider that the appellant's argument that item 41A is not 'standard' contains any substance. It is apparent from inspection of Sch 4 that there is variety in the modes of the expression of the items even if many are shown simply as 'free'.
52 Consequently we accept the respondent's submission that the question whether the use of EFS credits amounts to 'payment' of import duty for the purposes of s 168 of the Customs Act and the regulations made under it cannot be determined in a manner divorced from the legislative and administrative context in which they arise. Nor does that context open itself to re-interpretation to accord with what the appellant contends are other purposes and intents than those expressly provided. Having done as the appellant contended and commenced with a consideration of the legislation rather than item 41A, we are nevertheless driven to the terms of that item and to the conclusion that the Tribunal was not in error in the conclusion which it reached.
53 For these reasons we conclude that the appeal must be dismissed.
I certify that the preceding Fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Nicholson, Weinberg and Selway.