Minister for Industry & Commerce v. Tooheys Ltd [1982] FCA 135

Federal Court of Australia|1982-07-15|Before: Lockhart JJ

Administrative Law - Customs Act 1901 - delegate of Minister

for Business and Consumer Affairs refuses to make a determination under s. 273 of Customs Act - whether such refusal a "decision of an administrative character" - distinction between legislative and administrative acts - whether decision part of the process of making or leading up to the making of a calculation of duty under the Customs Act - whether decision excluded from review under

Administrative Decisions (Judicial Review) Act 1977 (Cth.) s.3

THE RIGHT HONOURABLE STR PHILLIP REGINALD LYNCH, THE MINISTER

FOR INDUSTRY AND COMMERCE Appellant TOOHEYS LIMITED Respondent

N.S.W. NO. G 122 OF 1981 BOWEN C.J. NORTHROP AND LOCKHART JJ. AT SYDNEY

) NEW SOUTH WALES DISTRICT REGISTRY ) N.S.W. NO. G 122 OF 1981

BETWEEN: THE RIGHT HONOURABLE SIR PHILLIP REGINALD LYNCH, THE MINISTER FOR INDUSTRY AND

COMMERCE Appellant AND: TOOHEYS LIMITED Respondent ORDERS JUDGES: BOWEN C.J. NORTHROP AND LOCKHART JJ. DATE OF ORDERS: 15 JULY 1982 WHERE MADE: AT SYDNEY

The appellant pay to Tooheys Limited its costs of the appeal.

The further hearing of the matter, including the question of costs of the hearing of the objection to competency, be referred to the Judge who heard the argument on that

) ) NEW SOUTH WALES DISTRICT REGISTRY ) ae )N.S.W. NO. G 122 OF 1981 )

BETWEEN: THE RIGHT HONOURABLE SIR PHILLIP REGINALD LYNCH, THE

THE COURT: This appeal from a single Judge of this Court involves two questions. The first is whether a refusal of the Minister administering the Customs Act 1901 ("the Customs Act") to make a determination under s. 273 of that Act is "a decision of an administrative character" within the meaning of that expression in

s. 3 (1) of the Administrative Decisions (Judicial Review) Act

1977 ("the Judicial Review Act"). The second question, which

assumes an affirmative answer to the first, 1s whether the Minister's decision answers the description of a decision "making, or forming part of the process of making, or leading up to the making of,...calculations of...duty" under the Customs Act within the meaning of paragraph (e) of Schedule 1 to the Judicial Review

Act and is therefore not a decision to which that Act applies.

The facts are not in dispute. On 26 September 1978 Tooheys Limited, the respondent in this appeal, lodged a document

described as a "By-law Application" seeking by-law admission of

"l only Alvey Series 310 automatic palletizer with a palletizing capacity in excess of 70 cases and up to 300 cases per minute."

The application stated that the order for the goods had been placed cverseas in August 1978 and that they had not, at the date of the application, been entered for home consumption. The

expected date for importation was stated as "October 1978".

After Tooheys' "By-law Application" was lodged, it was

asked to supply additional information, including evidence to

support the claim that suitable equivalent goods were not

reasonably available from Australian manufacturers. On 9 October

1978 it lodged material for the purpose of satisfying the request.

After a long delay a determination was made by a delegate of the Minister for Business and Consumer Affairs on 10 January 1980 that item 19 of the Customs Tariff ("the Tariff")

should apply te the goods specified in the application and entered

for home consumption on or after 1 August 1978 and on or before 31

This determination would have operated to exempt the

specific goods from duty were it not for the fact that the application misstated the relevant facts as to importation and entry for home consumption. Although the application stated that the goods had not been entered for home consumption, in fact they were entered for home consumption on 4 July 1978. The application stated that the expected date of importation was October 1978; but in fact they were imported on 26 June 1978. As the determination only applied item 19 to the goods if they were entered for home consumption on or after 1 August 1978 but on or before 31 December 1978 it had no effect in relation to the actual importation. It

It was necessary for a fresh determination to be obtained if item 19 was tc be applied to the goods. Tcoheys'

customs agent wrote to the Department of Business and Consumer

Affairs on 22 February 1980 asking it to amend or, 1f£ this was not possible, to re-issue a ministerial determination for the relevant

There was further correspondence between the Department of Business and Consumer Affairs and Tooheys' customs agent which related in part to explanations as to why a mistake had been made as well as to the production of evidence necessary to establish that the goods, during 1977, fell within the terms of item 19. It is rot necessary for present purposes to set out the detail of that correspondence except a letter of 18 March 1981 signed by Mr.

Luckman, the Assistant Secretary, By-law Branch, of the Department

ef Business and Consumer Affairs, and sent to Tooheys' custom

"I refer to your application of 26 September, 1978 and numerous correspondence' since, requesting, on behalf of Tooheys Ltd., the by-law admission of an Alvey Automatic Palletizer imported in June, 1978.

Your submission of the 28th November, 1980 has been given careful consideration and in

As item 19 forms an integral part of the structure of the Tariff its administration must be compatible with the Government's general philosophy of industry assistance. It would be inappropriate for me to permit by-law admission under item 19 which had the effect of removing the tariff assistance accorded by Parliament to a particular industry or manufacturer. It is only in situations where it is quite clear that there is no local production competing with the imported goods that by-law admission can be granted.

In this case, at the time when your client decided to purchase the imported machine, neither APM or Allen Ygnis was given the opportunity to quote for the requirement. I accept that such a quotation would have involved development and/or modification but I do not feel that the situation 1s sufficiently clear for me to decide that By-law entry was appropriate in 1977/78.

Finally, your response to my letter of 20 March, 1980 is not entirely satisfactory. I

would expect any future applications from you to pay particular attention to essential facts such as date of order and the sequence of

events that preceded and surrounded the decision to order overseas."

It 1s common ground that Mr. Luckman was a person who held an appropriate delegation from the then Minister for Business and Consumer Affairs for the purpose of making By-laws and

determinations under ss. 271-273 of the Customs Act (s. 9).

On 14 April 1981 Tooheys instituted proceedings against the Minister for Business and Consumer Affairs under the Judicial Review Act seeking an order of review in respect of the "decision" made by the Assistant Secretary, the subject of the letter of 18

March 1981. After the proceedings were instituted the Minister for Business and Consumer Affairs filed a notice of objection to competency objecting to the jurisdiction of this Court to hear the application under the Judicial Review Act on various grounds namely, that the decision was not a "decision" at all, that it was not "a decision of an administrative character" within the meaning of that Act, that it was not a decision to which that Act applies

and that the respondent is not a person aggrieved" by a decision to which that Act applies. The learned primary Judge decided against the Minister for Business and Consumer Affairs on each of

these grounds. It as from that judgment that this appeal is

The former Department of Business and Consumer Affairs was abolished in May 1982 and replaced by the Department of

Industry and Commerce. The Minister for Industry and Commerce was entrusted with the management and administration of the Customs Act and the Tariff. At the commencement of the hearing of this appeal, on the application of counsel for the appellant, and without opposition from counsel for Tooheys, we added the Right

Honourable Sir Phillip Reginald Lynch, the Minister for Industry

and Commerce, as an appellant and deleted the Honourable John

Colinton Moore, the Minister for Business and Consumer Affairs, as

The primary Judge held that the letter of 18 March 1981

was evidence that a decision had been made on behalf of the then Minister for Business and Consumer Affairs refusing to make a determination under s. 273 of the Customs Act. His Honour also held that the respondent was "a person aggrieved" within the

meaning of that expression in s. 5 (1) of the Judicial Review Act. Although the Minister appealed against both of these findings,

In relation to the other findings appealed against it is necessary to examine the relevant provisions of the Customs Act

Tariff. Section 16 imposes the general rates of duty in respect

of goods, ascertained by reference to the rate of duty set out in column 3 in the tariff classification in the First Schedule to the Tariff. Cther sections of the Tariff impose other rates of duty; for example preferential rates (s. 17), special preferential rates (s. 17A) and surcharge rates (s. 20). Provision is made for

primage duty in Part III and support duties in Part IV. Part IVA

rovides special rates of duty. Section 33A (1) which is included in Part IV is an intricate provision; but it says, in effect,

that where an item in Part I of the Second Schedule to the Tariff

applies to goods, the duty payable in respect of them is the amount of duty applicable to the goods under that item and not any larger amcunt that otherwise would have been payable under Parts

Item 19 of Part I of the Second Schedule describes the

"19. Goods, as prescribed by by-law, being gocds a suitable equivalent of which that is the produce or manufacture of Australia 1s net reasonably available." If goods are covered by a by-law made for the purposes of item 19, the amount of duty payable in respect of them is the

amount applicable under item 19 if it is a lesser amount than

It is agreed between the parties that, in the absence of such a by-law, the rate of duty payable in respect of goods

involved in the present case would be 30%; and that, if a by-law

was made for the purposes of item 19, no duty would be payable.

The power of the Minister to make by-laws is conferred

(a) an item of a Customs Tariff, or a proposed item of a Customs Tariff, is expressed to apply to goods, or to a class or kind of gcods, as prescribed by

(b) under an item of a Customs Tariff, or a proposed item of a Customs Tariff, any matter or thing is expressed to be, or is to be determined, as prescribed or defined by by-law,

the Minister may, subject to the succeeding sections of this Part, make by-laws for the purposes of that item or proposed item."

"272. The Minister may specify in a by-law made for the purposes of an item, or a proposed item, of a Customs Tariff that is expressed to apply to goods, or to a class or kind of goods, as prescribed by by-law-

(a) the goods, or the class or kind of gocds, to which that item or proposed item applies;

(b) the conditions, if any, subject to which that item or proposed item applies to those goods or to goods included in that class or kind of gocds; and

The power of the Minister to make determinations 1s

"273. (1) The Minister may determine, by instrument in writing, that, subject to the conditions, if any, specified in the

determination, an item, or a proposed item, of a Customs Tariff that is expressed to apply to gocds, or to a class or kind of goods, as prescribed by by-law shall apply, or shall be

deemed to have applied, to the particular

under the last preceding sub-section for the purposes of an item, or a proposed item, of a

by-law for the purposes of that item or proposed item.

(3) Where, under this section, the Minister determines that an item, or a proposed item, of a Customs Tariff shall apply, or shail be deemed to have applied, to goods, that item or proposed item shall, subject to this Part and to the conditions, if any, specified in the determination, apply, or be deemed to have

applied, to those gocds as if those goods were specified in a by-law made for the purposes of

day on which those goods are or were entered for home consumption."

In the present case, the Minister's decision not to make a determination under s. 273 of the Customs Act meant that no

by-law was made for the purpose of item 19; so that duty was

It is not disputed that, because of the provisions of s. 273 (3), a determination by the Minister that an item shall apply

We turn to the first question, whether the primary Judge was correct in holding that the refusal of the Minister to make a determination under s. 273 of the Customs Act was "a decision of an administrative character" within the meaning of that expression un s. 3 (1) of the Judicial Review Act. That expression is not defined by that Act; but its very use 1S indicative of Parliament's intention to exclude from the operation of the Judicial Review Act decisions of a different character; for

Counsel for the appellant submitted that the decision

involved in the present case was legislative, not administrative in character. He argued that a determination by the Minister

under s. 273 1s a legislative act which Parliament could itself

do, but chose to delegate to the Minister; and that a

determination under that section in effect removes the relevant goods from the First Schedule and places them into Part I of the Second Schedule, thus altering their liability to duty and changing the relevant law. He submitted that a refusal to make a determination had the same character as a determination under s. 273. He argued that, although the Minister's power under s. 273 1s limited to making a determination with respect to particular goods falling within the general description of gocds or a class or kind of goods prescribed by by-law, a determination is, in substance, the same as a by-law, and that by-laws are essentially

legislative in character. He relied on s. 273 (3) which has been

The distinction between legislative and administrative acts 1s referred to in many cases. It is unnecessary to discuss

them in detail. The distinction is essentially between the creation or formulation of new rules of law having general application and the application of those general rules to

particular cases: Commonwealth v. Grunseit (1943) 67 C.L.R. 58;

Hamblin v. Duffy (1981) 34 A.L.R. 333 and de Smith's Judicial

Review of Administrative Action 4th Ed. p. 71. In Commonwealth v.

Grunseit, Latham C.J. expressed the distinction in these terms (at pp. 82-83):- "The general distinction between legislation

legislation determines the content of a law as a rule of conduct or a declaration as to

The proposition that by-laws are essentially legislative in character ius unsound. The appropriate categorization of by-laws is determined by their context and subject matter. They are not clothed with a legislative character merely because they are called "by-laws". We agree with the primary Judge that the making of a by-law can constitute a legislative act, not an administrative act, and vice versa. The capacity of by-laws, like

regulations, orders and rules, to assume either a legislative or

We agree with the conclusion of the primary Judge that

determinations under s. 273 are administrative in character and

generally with his reasons for that conclusion. We agree, i1n particular, with the following passage from his Honour's yudgment:- -

"Obviously Parliament decided that it could be desirable, where a suitable equivalent of goods was not reasonably available from goods of Australian production or manufacture, that the goods should be allowed in duty free or at a lower rate of duty than would otherwise be payable. Parliament could not possibly determine in advance the goods to receive this particular benefit. It therefore decided to

confer on the Minister a discretion to determine what particular goods should have it. The discretion so conferred was not confined to a decision as to whether particular goods satisfied the description in item 19 of the Tariff but a decision on this matter was made basic to the exercise of the discretion. When, therefore, a decision is made by the Minister to make a determination under s. 273 of the Act in relation to item 19 of the Tariff he is deciding that specific goods fall within the general description contained in that item and should be allowed in at a lower rate of duty or at no duty at all. Item 19 of the Tariff, in effect, lays down a general rule by describing in broad terms the goods which are to have the benefit of exemption or a lower rate of duty and s. 273 read with other provisions of Part XVI enables the Minister in his discretion to apply that general rule to particular cases. In my view this does not amount te changing

the law. He is simply applying it in the exercise of his discretion to a particular set of circumstances. This may amount to doing

the work which Parliament may have done had 1t been equipped to specify in advance all the goods 1t intended to cover but it does not follow from this that the Minister's decision

is legislative in character. (cf Q. v. Trade Practices Tribunal Ex parte Tasmanian

Breweries Pty. Limited (1970) 123 C.L.R. 361 per Kitto J. at p. 377)."

In our opinion the appellant's argument is not supported by s. 273 (3). A determination by the Minister under s. 273 that an item applies to the particular goods specified in the determination operates to apply that item as if those gocds were

specified in a by-law. This provision does not alter the true

character of a Ministerial determination under s. 273 so as to render it legislative. It merely describes the effect of such a determination i.e. to bring the particular goods within item 19 of

the Tariff and leaves unchanged the essential character of the

determination as the application of a general rule to a particular

We are reinforced in our conclusion by the general approach taken by the High Court to the character of the

Minister's powers under the Customs Act in Radic Corporation Pty.

Limited v. Commonwealth (1938) 59 C.L.R. 170. Although there was

no equivalent power of the Minister to make determinations under s. 273 then in force, the High Court considered the validity of

regulations made under the Customs Act which prohibited the importation of specified gocds unless the consent of the Minister

was first obtained. Latham C.J. said (at pp. 184-185):-

"It is also, in this latter connection, not unimportant again to remember that the Customs Act and the customs tariff contain a large number of provisions authorising the Minister or departmental officers to act according to their discretion, or making it a condition of the importation of goods that they or the Minister shall be satisfied as to the character of the goods or the purpose for which they are imported, or, more generally, that the determination shall be made by what is called a departmental by-law, that is to say, by an administrative decision taken from time to time as circumstances appear to

require according to the discretion of the Minister or officer concerned."

His Honour's judgment was agreed in by Rich, Starke, and

Counsel for the appellant relied strongly on certain

observations of Barwick C.J. in Giris Pty. Limited v. Commissioner

of Taxation (1969) 119 C.L.R. 365 which concerned the validity of

ss. 99 and 99A of the Inccme Tax Assessment Act 1936. Section 99A

provided that, unless the Commissioner of Taxation was of the opinion that it would be unreasonable that that section should

apply, tax should be payable on certain trust income at the

special rate declared by Parliament. If s. 99A did not apply, tax at a different rate was imposed under s. 99. The Chief Justice said that a duty was imposed on the Commissioner to decide in each case and in respect of each year of income whether it is unreasonable to apply s. 99A rather than s. 99. He said (at pp.

"What he 1s required to decide, in my opinion, is in truth a function of the legislature, rarely delegated to an official. Its repose in the Commissioner means that the citizen cannot know when disposing of his affairs what the impact upon him or them the law regarding the taxation of income will make: and unless the Commissioner 1s required to disclose the factual basis of his opinion as to unreasonableness, the taxpayer will not know after he is assessed upon what factual basis he was required to pay the tax imposed. But the wisdom of creating this somewhat unusual situation and the dangers inherent therein are of no concern to the Court, though they might well be to the Parliament, if the features to which I have called attention do not lead to invalidity.

However, in my opinion, the Commission is under a duty in each case to form an opinion and the taxpayer is entitled to be informed of

Counsel for the appellant argued that these observations of the Chief Justice could be applied to s. 273 which invested the

Minister with wide powers to make determinations and left it to

his discretion whether he made determinations or not and, 1f he

made them , on what conditions. The observations of Barwick Cc. Jd. relied on by counsel were obiter dicta and were made with respect to fundamentally different statutory provisions to those presently under consideration by us. The Chief Justice construed s. 99A as empowering the Commissioner in substance to choose whether trust

inceme would be taxed at one rate rather than another or would be assessed under one section rather than another. We see no

relevant analogy between the sections under consideration in Giris

It is important to bear in mind that the decision, the subject of these proceedings, 1S not a decision to make a determination under s. 273; rather it is a refusal to make such a determination. It is difficult to conceive of cases where a refusal to make such a determination under s. 273 would not assume the same character as a decision to make such determination; but 1t does not necessarily follow that there are no such cases.

However, in the present case,the refusal of the Minister's

delegate, embodied in the letter of 18 March 1981, to make a determination in respect of the particular goods the subject of

the respondent's application, was a decision of an administrative

It was suggested in.argument by counsel for the appellant that s. 271 permits the making of a by-law for particular goods and not only goods answering the general

description of "goods" or of "a class or kind of goods." The

correctness of this submission turns on the construction of s. 271

and, in particular, the word "goods" where appearing in the

expression "goods, or...a class or kind of goods". We do not find

it necessary to decide this question. Nor is it necessary

otherwise to determine the character or ambit of the Minister's

power under s. 271 to answer the questions raised in this appeal, including the question whether the power conferred by s.271 1s

We pass to the second question whether the decision falls within paragraph (e) of Schedule 1 to the Judicial Review

Act and is therefore not a decision to which that Act applies.

Section 3 (1) of the Judicial Review Act provides that:-

"...decision to which this Act applies' means a decision of an administrative character made, proposed to be made, or required to be made, as the case may be (whether in the exercise of a discretion or not) under an enactment, other than a decision by the Governor-General or a decision included in any of the classes of decisions set out in Schedule 1;..."

Schedule 1 contains a number of categories of decisions

including those mentioned 1n paragraph (e) as follows:-

"(e) decisions making, or forming part of the process of making, or leading up to the making of, assessments or calculations of tax or duty, or decisions disallowing objections to assessments or calculations of tax or duty, or decisions amending, or refusing to amend, assessments or calculations of tax or duty, under any of the following Acts:

tet ia th Tt AE lg a rT an I EET AIS MEN ATE TL ee al te WRT ROT = 1 nner Seemeepetrennror - eacmreniraG ataraeaeta

Australian Capital Territory Taxation (Administration) Act 1969

Income Tax Assessment Act 1936 Pay~roll Tax Assessment Act 1941 Pay-roll Tax (Territories) Assessment Act 1971 Sales Tax Assessment Act (No. 1) 1930 Sales Tax Assessment Act (No. 2) 1930 Sales Tax Assessment Act (No. 3) 1930 Sales Tax Assessment Act (No. 4) 1930 Sales Tax Assessment Act (No. 5) 1930 Sales Tax Assessment Act (No. 6) 1930 Sales Tax Assessment Act (No. 7) 1930 Sales Tax Assessment Act (No. 8) 1930

Sales Receipts Duties (Administration) Act Wool Tax (Administration) Act 1964;"

Counsel for the appellant submitted that the refusal in the present case to make a determination answered the description ef a decision "forming part of the process of making, or leading up to the making of,...calculations of...duty...under..." the Customs Act and the Tariff. He argued that a determination under s. 273 is an integral part of the process of determining liability

to customs duty; that once such a determination is made it

automatically affects liability to duty; and in essence is part ef the process of making or leading up to the making of a

It is necessary to examine the scheme of the Customs Act and the Tariff as to calculation and payment of customs duty. As mentioned before, customs duties are imposed on goods imported

into Australia by ss. 15 and 16 of the Tariff. The duty is

ascertained by reference to the rates of duties set out in column 3 in the First Schedule applicable to the goods. This is subject to s. 33A which can result in no duty or a lower duty being

"153. All duties shall constitute Crown debts charged upon the goods in respect of which the same are payable and payable by the owner of

the goods and recoverable at any time in any court of competent jurisdiction by proceedings in the name of the Collector."

"163. (1) Refunds, rebates and remissions of duty may be made -

(a) an respect of goods generally or in respect of the goods included in a class of goods; and

(b) in such circumstances, and subject to such conditions and restrictions (if

any), as are prescribed, being circumstances, and conditions and restrictions, that relate to goods

generally or to the goods included in the class of goods.

includes an amount paid to a Collector in respect of duty that may become payable."

Regulation 126 (f) of the Customs Regulations provides that the following circumstance is a prescribed circumstance for

of the Act, the effect is that duty 1s not payable on those goods or duty 1s payable on those goods at a rate which is less than the

rate which was applicable when the goods were entered for home consumption." An application for a refund of duty in a circumstance

specified in para. (f) may be made within 12 months after the date on which the by-law or determination was made (regulation

Section 167 of the Customs Act provides that 1f any dispute arises as to the amount or rate of duty payable in respect of any goods or as to the liability of any goods to duty, the owner may pay under protest the amount demanded by the Collector ana@ the sum so paid is, as against the owner, deemed to be the

proper duty payable, unless the contrary is determined in an

Section 273 GA. (1) (a) to (k) enables application to be

made to the Adminstrative Appeals Tribunal for review of certain decisions. Sction 273 GA (2) enables application to be made to the Administrative Appeals Tribunal for review of a demand made by

the Collector for funds paid under protest and where a dispute has

The primary Judge rightly explained the necessity of

having in mind the distinction between provisions. in a taxing

statute which prescribe the circumstances in which liability to

tax can arise and those in which the amount of tax is calculated or assessed in a particular case. One example is to be found in the Income Tax Assessment Act, which prescribes the circumstances in which liability to income tax can arise in its various provisions defining assessable income and those specifying allowable deductions for the purpose of arriving at the taxpayer's taxable income. The Income Tax Assessment Act also contains provisions dealing with the calculation or assessment of income tax, being provisions which provide for the lodging of income tax returns, the making of assessments including default assessments, the service of notices of assessment, objections to assessments,

the disallowance of objections, and the lodging of appeals.

"It is also important to have in mind the varying character of the assessment and calculation provisions in the Acts mentioned an para. (e). In some the actual liability to tax depends on the service of a notice of

assessment (e.g. income tax) whereas in others the liability is imposed by the statute itself (e.g. gift duty and customs duty). In some, provision is made for a complex system of objections review and appeal either to Boards of Review or the Courts. In others the rights

of appeal are much more limited. Paragraph (e) 1s intended to cover all these cases."

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Judgment (225 paragraphs)