In making application to the Administrative Appeals Tribunal, Qantas Airways Limited acted upon the view that a decision of the Commissioner of Taxation with respect to exemption from sales tax may not be reviewed by a Taxation Board of Review. Such a Board is authorised by sections 41 and 42 of the Sales Tax Assessment Act (No.1) 1930 to review a decision in those cases where "A taxpayer who considers that any amount upon which he is required to pay sales tax in respect of any goods is not the sale value of those goods as declared by this Act or who is dissatisfied with any assessment or decision made by the Commissioner under this Act by which the sale value of any goods is ascertained...." has duly objected and his objection has been disallowed. These sections empower a Taxation Board of Review not merely to determine the value of goods but also to review a decision on a taxpayer's contention that the Commissioner is seeking to tax a transaction which does not involve any dealing in goods within the meaning of the Act or that the alleged goods have no sale value within the meaning of the Act. See M.R. Hornibrook (Pty.) Ltd. v. Federal Commissioner of Taxation [1939] HCA 29; (1939) 62 CLR 272 per Latham CJ at p.280 and per Rich J at p.282. However, Taxation Boards of Review have held that the sections do not empower a Board to review a decision of the Commissioner of Taxation where the taxpayer's contention is that the subject goods are exempt from sales tax by virtue of a provision of the Sales Tax (Exemptions and Classifications) Act 1930. The Boards have expounded the view that such an issue does not contest the sale value of goods but rather whether the goods are exempt from sales tax. See Case G.90 7 TBRD 493 and Case 69 71 ATC 305. As a result, disputes between taxpayers and the Commissioner of Taxation with respect to the operation of the Sales Tax (Exemptions and Classifications) Act 1930 have been litigated, if at all, in courts of law. See e.g. Deputy Commissioner of Taxation v. Fowler Rex (N.S.W.) Pty. Limited [1967] HCA 7; (1967) 118 CLR 160 and Deputy Federal Commissioner of Taxation v. Rotary Offset Press Pty. Ltd. (1971) 45 ALJR 518; on appeal 3 ATR 319. Accepting this view, but desiring a review by an administrative tribunal, Qantas Airways Limited made application for review to the Administrative Appeals Tribunal. I listed the application for hearing on the preliminary point whether the Tribunal has jurisdiction to review the decision.

It was put by counsel for Qantas Airways Limited that, if this Tribunal has a discretion to do so, it should exercise the discretion in favour of reviewing the decision. If the Administrative Appeals Tribunal is authorised to review the decision no doubt it should do so. The empowering of the Tribunal to review a decision ordinarily confers upon the Tribunal not merely an authority but also a duty to do so whenever proper application is made to it. However, the real question is whether the Tribunal is empowered to review the subject decision.

In argument, counsel for Qantas Airways Limited relied upon the provisions of s.25 of the Administrative Appeals Tribunal Act 1975, particularly the provisions of ss (4) that, "The Tribunal has power to review any decision in respect of which application is made to it under any enactment.". He submitted, as a matter of construction, that the words "under any enactment" qualify the word "decision" and not the word "application". In my view, the expression qualifies "application" so that the Tribunal has power to review a decision only in those cases "in respect of which application is made to it under any enactment.". Were there any doubt about this, which I think there is not, that doubt is resolved by the context. Section 25(1) provides that "An enactment may provide that applications may be made to the Tribunal..". An application for which provision is so made is an application made under an enactment. Moreover, s.26(2) provides that a reference in s.25(4) to an enactment includes a reference to the Schedule. The effect of s.26(2) is that, for the purpose of s.25(4), applications authorised by the provisions of the Schedule are applications made under an enactment.

Counsel for Qantas Airways Limited further submitted that an application to review a decision made under an enactment is itself an application made under that enactment and, therefore, it is an application which, by the operation of s.25(4), confers upon the Administrative Appeals Tribunal power to review the relevant decision. Counsel submitted that the terms of S.25(1), which state that an enactment may provide that applications may be made to the Tribunal, do not limit the interpretation of s.25(4) but rather are an enabling provision providing for the granting of power to the Tribunal in specific cases. I do not accept this submission. An application is not made under an enactment unless the enactment empowers the making of the application.

In the present instance, no enactment empowers the making of the application to the Administrative Appeals Tribunal. Therefore, the Administrative Appeals Tribunal has no jurisdiction to review the subject decision.

The Administrative Appeals Tribunal will not proceed further with the application.