Selway v Minister for Infrastructure, Transport, Regional Development &... [2011] FCA 43 | Case summary

The Tribunal's Reasons 9 The issue before the Tribunal was confined to whether the Tribunal, standing in the place of the Minister and exercising through the discretion available under Reg 11 to allow Mr Selway to import the car into Australia, would exercise that discretion in favour of Mr Selway. It was accepted that Reg 13(1)(ac) was not satisfied. 10 The Tribunal observed that the main object of the Act, with respect to new vehicles, is to achieve uniform vehicle standards which apply to road vehicles when they begin to be used and transported in Australia, and with respect to used vehicles, to regulate the first supply to the market of those vehicles. Non-standard vehicles are vehicles that do not comply with the National Standards or the Australian Design Rules. An identification plate fixed to the motor vehicle establishes that the vehicle complies with the National Standards. 11 The opportunity for Mr Selway to return to Australia in late 2009 was unexpected on his part. Since he has returned to Australia, the car has been stored in an appropriate warehouse in Scotland, and its storage and care and insurance continues to be of significant cost to him. Its importation would cost a significant amount by way of tax and stamp duty. 12 The Tribunal also accepted that the car is a bona fide personal possession of Mr Selway, an Australian citizen returning from a lengthy period of time spent overseas. It accepted that he is seeking to import the car for his personal use and has no intention of selling it. It accepted that the car is safe, and that Mr Selway is prepared to make such adjustments to it as required by the Australian Design Rules. 13 Further, the Tribunal found that the importation of the car, as a single vehicle, would be consistent with and would not undermine the objects and purposes of the Act. It noted that the objects and purposes of the Act included both control over the import of new and second-hand vehicles, to ensure procedures to allow non-standard vehicles into Australia provided that the Minister is satisfied that proper arrangements exist to modify vehicles to ensure they meet those standards, and to make provision by regulation for the importation of vehicles which are bona fide personal possessions (see Second Reading Speech to the Motor Vehicles Standards Bill 1989 (Cth). 14 All of those expectations were satisfied by Mr Selway. 15 The Tribunal nevertheless concluded that, although the importation of the car would not undermine or frustrate the policy and objectives of the legislative scheme, there were other factors which it considered which led to the conclusion that the application could not be approved through the exercise of the discretion under the Regulations. 16 One ground of appeal concerns the way in which the Tribunal considered its task in exercising its discretion under Reg 11. It is necessary to look at how the Tribunal identified its task of exercising that discretion under Reg 11. 17 It should first be noted that the Minister accepted and accepts for the purposes of this appeal that Reg 11 provides a discretion available to the Minister to permit the importation of a motor vehicle such as the car, even though the criteria for such discretionary approval under Reg 13 are not met. It is not contended that Reg 13 covers the field or defines exclusively the circumstances in which a non-standard vehicle may be imported into Australia. 18 The Tribunal commenced by saying that the discretion under Reg 11 is unfettered. It noted that the wording of Reg 11 is general, and that neither the Act nor the Regulations set out specific factors to be taken into account in applying it. So much is unexceptionable. 19 It then referred to a series of Tribunal decisions addressing the proper construction and application of Reg 11, including those of Deputy President RNJ Purvis QC in Re Trajkovski and Department of Transport and Regional Services [2000] AATA 1073 at [35]: There is no question that the decision to be made now by the Tribunal is not to be arbitrary but is to be one consistent with the policy sought to be achieved by the legislation, taking into consideration the matters relied upon by the Applicant. Thus the matter is to be judged by weighing up the particular circumstances of the case in the light of the part which the policy plays in the overall context of the decision to be made. (Skoljarev v Australian Fisheries Management Authority (1995) 22 AAR 331 at 337). This application is to then be considered having in mind the facts and circumstances before the Tribunal but in the context of a regime having been established for the importation of vehicles and the same not being allowed onto roads in Australia without safety being ensured. The exceptions as provided for in the regulations where variation from the scheme may be enabled apart from the circumstances therein specified must of necessity be exceptional. The Tribunal in making its decision is to give primary weight to the scheme and the intent of Parliament in enacting the legislation. 20 The Tribunal also referred to some observations of Deputy President SD Hotop in Re Marra and Minister for Transport and Regional Services [2003] AATA 323 at [20] where the Deputy President said: That discretionary power is, however, not at large - it must be exercised in accordance with the policy and objects of the Act and Regulations, having regard to all relevant considerations, and disregarding any irrelevant considerations, as determined from a consideration of the subject matter, scope and purpose of that legislation: R v Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd (1979) 144 CLR 45 at 49; Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-40. It said those comments reiterated the comments quoted of Deputy President Purvis. 21 The Tribunal said at [19] of its reasons that both of those decisions indicated that the discretion in Reg 11 should only be exercised "in exceptional circumstances". I observe that the quoted observations of Deputy President Hotop in Marra do not make that express point. 22 The Tribunal then referred to the observations of Senior Member B McCabe in Re Williamson and Minister for Infrastructure, Transport, Regional Development and Local Government [2009] AATA 48 at [11] where the Member said: By its nature, the discretion must be exercised sparingly; there is no point having a national scheme if the discretion is used to make so many exceptions that the standards become meaningless. But the discretion can be exercised if there is a good reason to do so and the objectives of the legislative scheme are not compromised. The Act does not attempt to define what facts or circumstances might justify the exercise of the discretion. I must instead consider each application on its merits, while keeping a careful eye on the objects of the Act. … (emphasis added by Tribunal) 23 It is not clear why the Tribunal referred specifically to that passage. On its face, it is unexceptionable. The Tribunal had found that the exercise of the discretion in favour of the application in this matter would not in any way make the national safety standards meaningless. To the contrary, it found that the standards would be satisfied notwithstanding that the application was made in circumstances which did not allow its consideration under Reg 13. It had also found specifically that the importation of this vehicle in the circumstances could not undermine or frustrate the policy and objectives of the legislative scheme. 24 The Tribunal then separately addressed considerations under the headings of "Policy Objectives", "Unfairness or Injustice", "Financial Loss", "Unique Vehicle", "Unexpected Events" and "Exceptional Circumstances". In the course of discussing the topic "Exceptional Circumstances", the Tribunal at [35] again referred to the observations in Re Trajkovski referred to above and to Re Anthony and Department of Transport and Regional Services [2001] AATA 543 in which the Tribunal said the exercise of the discretion under Reg 11 would only be made in circumstances that were "very exceptional, extraordinary or special circumstances". The Tribunal in this matter then continued in its reasons at [35]: In my view, having regard to the various authorities dealing with the application of Regulation 11, it is obvious that Tribunals have had regard to the intention on the part of the Commonwealth to ensure that its road safety standards are implemented and departure would be permitted only in "unusual", or in circumstances beyond normal practice or expectation, that is to say "exceptional". In all of the circumstances, I cannot find that there are exceptional circumstances with respect to the application made by Mr Selway and accordingly I am unable to exercise the discretion available under Regulation 11 in his favour. 25 What, then, were the factors which led to the conclusion that the application should not be approved by the exercise of the discretion under Reg 11? 26 Its approval could not have undermined the policy or objectives of the legislative scheme. It would not have affected adversely or permitted the making of exceptions so that the standards proposed by the Act might become meaningless. To the contrary, they would be adhered to. The remaining matters which the Tribunal addressed concerned unfairness or injustice, financial loss, the uniqueness of the vehicle, and unexpected events. It is necessary to deal only briefly with them. 27 Under the heading of "Unfairness or Injustice", after distinguishing Mr Selway's case from other cases in which that factor had been considered, it concluded that there was nothing unfair or unjust or indeed unexpected about any of the consequences that followed from Mr Selway's decision to accept the position in Australia requiring him to return to Australia earlier than he had previously planned. It accepted at [25] that the opportunity was "an outstanding business opportunity", but had regard to the fact that he knew of the restriction relating to the importation of motor vehicles and was "thus faced with a difficult choice": He could return to Australia and commence working for Boral in a job that uniquely suited his skills, or he could reject the job opportunity and remain in the United Kingdom for the remaining years of his tenure … It regarded him as simply having made a choice, in effect between the job opportunity and the vehicle being imported into Australia. That is, in my view, somewhat misguided. It is misguided because, at the time he acquired the vehicle intending to import it into Australia, he anticipated remaining in Scotland until early 2011 at the least. He would then have been eligible to seek the exercise of a ministerial discretion under Reg 13. The change of circumstances was the unexpected job opportunity. True it is that he then could have chosen to reject that job opportunity to qualify to bring the vehicle into Australia under Reg 13, subject to the Minister's discretion, but that is a rather artificial way to look at the matter. Whether it involves an error of law is a matter to be determined later. In my view, it is not a factor which tells against the exercise of the discretion in favour of Mr Selway. 28 Under the heading "Financial Loss", the Tribunal noted that financial hardship is not of itself enough to attract the exercise of the discretion in Reg 11. It was accepted, on behalf of Mr Selway, that there would not be a significant financial hardship notwithstanding that he would suffer a significant financial loss if he was not able to import the car into Australia. The Tribunal noted that he could sell the car in the United Kingdom, with some inconvenience, and with the additional cost of transporting it to England from Scotland where its sale was more likely to be effective at a higher price. It did not think those matters warranted the exercise of the discretion in his favour. Nor did it consider that, assuming he was able to sell the car in England at a fair market price, the additional cost of acquiring either a new Aston Martin in a different colour in Australia for either $A439,000 or $A250,000, at his option, would be significant. 29 As to the uniqueness of the car, the Tribunal did not accept that Mr Selway had a genuine personal connection to the particular vehicle, although it was a bespoke vehicle with a particular colour and internal finishes. It accepted at [32] that the car was "rare and exclusive", but considered that like cars were available as new vehicles in Australia with the same colour options, although there may not be secondhand vehicles currently available in that colour scheme. It regarded the colour scheme as cosmetic only. It accepted at [32] that such vehicles are difficult to obtain, with specific exterior and interior colour combinations but that does not make them "unique". The significance of the particular colour combination was not sufficient to justify the exercise of a discretion that "should only be used in the rarest of cases." 30 As to "Unexpected Events", again after referring to other cases where "unexpected events" have been regarded as a relevant factor to the exercise of a discretion favourable to an applicant, the Tribunal did not accept that Mr Selway's circumstances created any such element. It did not think there was a sufficient causal relationship between the global financial crisis and his inability to comply with the requirements of Reg 13, although it was suggested in evidence that it was the global financial crisis which led to the need for Boral Limited to replace its Chief Executive Officer and to invite Mr Selway to undertake that position. That, the Tribunal said at [39], did not "create a problem for Mr Selway which directly affected the importation of his motor vehicle". It distinguished between Boral's need for a new Chief Executive Officer and the problem created by Mr Selway, of accepting the position that was offered to him. Consequently, it did not consider that his decision to take up a job opportunity in Australia, at the expense of being unable to import the vehicle, involved particular injustice or unfairness to him.

Consideration 33 In my judgment, the first asserted error of law is made out. Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 47-48 pointed out that the circumstances in which an error of law in the exercise of a discretion may be established are set out in House v The King (1936) 55 CLR 499 at 504-505. His Honour was there referring to the review of a judicial discretion, but where the review of an administrative decision is confined to review on a question of law. I think similar considerations apply. Consequently, as Mr Selway accepted, it is not enough to show that a reasonable decision-maker might or should have reached a different result. The first contention goes beyond that. It seeks to show that the Tribunal misdirected itself as to its proper inquiry by stipulating that the discretion should only be exercised in exceptional or very confined circumstances. Such an approach would involve an error on a question of law: Osland v Secretary to the Department of Justice (2010) 267 ALR 231 at [14] per French CJ, Gummow and Bell JJ. 34 I am mindful that the Court should not construe the Tribunal's reasons with an eye keenly attuned to the perception of error: Minister for Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259. I have endeavoured to resist that temptation. Nevertheless, in my view, the Tribunal's reasons generally including the passages referred to in [21], [24] and [29] above indicate that it applied what it took to be a legislative prescription against exercising the discretion unless special or exceptional reasons were demonstrated to justify the exercise of the discretion, notwithstanding that the exercise of the discretion in this instance would not (as it found) impair the fulfilment of the objectives of the Act. The use of the expressions "exceptional circumstances" and the "rarest of cases" indicate the way in which the Tribunal assessed the factors it discussed in its reasons. I do not consider that its reasons indicate merely that it adopted a cautious approach to the exercise of the discretion, without imposing a test for its exercise beyond that which is provided in Reg 11. In reaching that view, I have taken into account that earlier in its reasons the Tribunal at one point appears to have accepted that the discretion was unfettered, as noted in [18] above. Nor do I accept that, as counsel for the Minister contended, the Tribunal adopted an appropriate construction in its application of Reg 11, albeit that it is expressed in unqualified terms, because of the terms of the adjacent Reg 13. 35 The principles are clear enough. In Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, the majority (McHugh, Gummow, Kirby and Hayne JJ) at [69] re-emphasised that the primary object of construing a statutory instrument is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. In this instance, there are no apparently conflicting provisions. 36 The general rule is that a discretion expressed without any qualification is unconfined except insofar as it is affected by limitations to be derived from the context and scope and purpose of the legislative scheme: The Queen v Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd (1979) 144 CLR 45 at 50 (the ABT decision) per Stephen, Mason, Murphy, Aickin and Wilson JJ. The Minister accepted that Reg 13 does not provide a code for the circumstances in which a vehicle intended to be privately used may be imported by a citizen returning to Australia after a period of work overseas. Once that is acknowledged, it is difficult to see how Reg 11 should be confined in the manner the Tribunal approached it. 37 It may well be that it will not be a common circumstance that a person seeking to import a non-standard vehicle will have the discretion available under Reg 11 exercised in that person's favour. In some circumstances, such an importation might undermine or frustrate the policy and objectives of the Act. Clearly, in such a circumstance, the favourable exercise of the discretion under Reg 11 would require there to be weighty counterveiling factors. The fulfilment of that policy or those objectives is clearly relevant to the exercise of the discretion under Reg 11. This is not a case where the Tribunal has found that the importation of the car would undermine or frustrate the policy or objectives of the legislative scheme. In fact, it accepted the opposite. 38 However, beyond that consideration, the discretion under Reg 11 is, in its terms, unfettered. It would be appropriate to have regard to the criteria specified in Reg 13(1) when considering whether to exercise the discretion, but because the discretion under Reg 13 is a separate one, the fact that not all those criteria are satisfied is not itself a reason not to exercise the discretion under Reg 11. The Minister accepted that. In fact, on the Tribunal's findings, Mr Selway satisfied all those criteria except for that specified in Reg 13(1)(ac) because he had owned the car only for about nine months rather than 12 months immediately before arriving in Australia. 39 In my view, it was an error of law for the Tribunal to construe the apparently unlimited discretion in Reg 11 so that, even where the policy or objectives of the legislative scheme were not undermined, there had to be some exceptional or special or rare circumstances before the discretion could be exercised in favour of Mr Selway. I do not consider that Reg 11, in its context in the legislative scheme, implies that further fetter or gloss upon its operation. The observations of Deputy President Hotap in Marra do not suggest otherwise. He referred, appropriately to the observations of the majority judgment of the High Court in the ABT case at 49 to the following effect: In the absence of some positive indication of the considerations on which a grant or refusal of consent is to depend, the discretion is "unconfined except in so far as the subject matter and the scope and purpose of the statutory enactments may enable the Court to pronounce given reasons to be definitely extraneous to any objects the legislature could have had in view", to use the words of Dixon J in Browning. After referring to the particular circumstances of that case, their Honours went on at 50 to say: Plainly enough, when the power to grant or refuse consent is unconfined by the express words of the statute the conclusion that the Tribunal has virtually no discretion at all is unacceptable. 40 It would not be accurate to attribute to the Tribunal the view that it had virtually no discretion under Reg 11. But in my view, it erroneously circumscribed or fettered its discretion by the formulation of the test to be applied before it could be exercised in Mr Selway's favour. I consider that such fettering is not warranted by the words of Reg 11 either taken alone or in their place in the Regulations having regard to the legislative scheme. The subject matter of the Act and the Regulations, and the scope and purpose of the legislative scheme, does not support such an implication: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-40 per Mason CJ. See also Bennion on Statutory Interpretation, (5th ed Lexis Nexis, 2008) at 90. 41 For those reasons, I consider that the Tribunal erred in law in the matter asserted. 42 It is therefore strictly necessary to address the other three alleged errors of law. As I propose to remit the matter to the Tribunal for reconsideration according to law, it is also not appropriate that I should determine the asserted errors (2) and (4) set out in [32] above as they involve some qualitative assessment of potentially relevant considerations. 43 I observe in relation to asserted error (3) that there does appear to be some logical error or some misunderstanding of Mr Selway's case in the way the Tribunal approached the "unexpected events" topic in its reasons. If a person acquires a non-compliant motor vehicle overseas intending to seek to import it into Australia within the succeeding 12 month period, that would obviously be a factor against exercising the discretion under Reg 11. That is not this case. When he purchased the car, Mr Selway expected, and had good reason to expect, that he would own it for more than 12 months before he sought to import it into Australia. He expected to satisfy the criteria under Reg 13. The "unexpected" event was the job offer. The Tribunal said at [34] that the job offer and its acceptance was "not an unexpected event" because it was "an event over which he had complete control". It appears, therefore, to have discounted those circumstances in deciding whether to exercise the Reg 11 discretion in his favour. In my view, the circumstances giving rise to the earlier than anticipated return to Australia may well be relevant to its exercise. Here, there was an unexpected event, namely the obviously significant job offer. Mr Selway was entitled to ask the Tribunal to have regard to that circumstance. As the Tribunal recognised at [34] of its reasons, the circumstances prompting an earlier return to Australia than anticipated may well be relevant to the exercise of the discretion. The examples it gave from earlier decisions (earlier immigration following a violent robbery, the deterioration of a wife's disease, and the reduction in salary producing marital pressure) are not really different in kind, but only of degree, from Mr Selway's circumstances. In each instance, the early arrival in or return to Australia was prompted by personal circumstances. The Tribunal in those cases correctly, in my view, had regard to the reasons for that earlier arrival in or return to Australia. In this matter, too, there is a clear and unexpected event which prompted Mr Selway's earlier return to Australia than he intended. It may not have been of the same personal significance as the events considered in those other decisions, but it was nevertheless an important personal circumstance. I think the Tribunal's approach of discounting that circumstance because his decision to accept the job was within his "complete control" and because his recruitment did not, on its own cause a problem for Mr Selway in "his relationship with his motor vehicle" was erroneous. Whether that involved an error on a question of law I do not need to finally determine. 44 Until the amendments to s 44 of the AAT Act effected by the Administrative Appeals Tribunal Amendment Act 2005 (Cth), it is clear that the Court in the present circumstances could not have exercised the discretion which Reg 11 gives to the Tribunal, so the appropriate order would have been to remit the matter to the Tribunal for reconsideration according to law: see eg Minister for Immigration and Ethnic Affairs v Gungor (1982) 42 ALR 209 at 221. This is not a case where, in the light of the error of law identified, the decision of the Tribunal must have been favourable to Mr Selway: cf Statham v Federal Commissioner of Taxation (1988) 16 ALD 723 at 725. The error of law identified means that the discretion available to the Tribunal should be re-exercised. Whilst there is, in my view, a strong case for the discretion to be exercised in favour of Mr Selway having regard to the considerations I have discussed above, the position is not so clear that in reality there is no remaining discretion to be exercised (cf NAAO v Secretary, Department of Immigration and Multicultural Affairs (2002) 66 ALD 545 at 555). As there is a residual discretion to be exercised (see Canberra Trademan's Union Club v Gambling and Racing Commission (2002) 72 ALD 359 at 367; and cf Commissioner of Taxation v Eskandari [2004] FCA 8), the appropriate order is to return the matter to the Tribunal. 45 Counsel for Mr Selway contended that the effect of subs (7)-(10) of s 44 of the AAT Act, introduced by that amendment, now permits the Court to do so. 46 I do not consider that, in the circumstances, those amendments enable the Court to exercise the discretion of the decision-maker. In my view, they are confined to enabling the Court, in certain circumstances, to make findings of fact additional to those made by the Tribunal in the circumstances stipulated. There is sometimes an obvious benefit in doing so, as it may save the parties costs and time. But those extended powers, in their terms, are confined to making additional findings of fact. They do not extend to exercising a discretion of the decision-maker. It appears that a legislative decision was made to limit the extended powers of the Court, consistent with the recommendations of the Administrative Review Council, (Parliament of Australia) Report No 41: Appeals from the Administrative Appeals Tribunal to the Federal Court (1977). 47 In this matter, the Tribunal has, in my view, made the findings necessary to exercise the discretion under Reg 11, although upon reconsideration there may be additional findings sought by either the Minister or by Mr Selway. It has found how Mr Selway came to be in his present situation, although I think it erred in the way in which it then apparently decided to give no weight to that matter. It accepted his evidence, including about the reasons why he returned to Australia earlier than he had planned at the time he required the car. It found that allowing the importation of the car would not transgress the policy of the legislative scheme. It found that, apart from the period specified in Reg 13(1)(ac) not being met by a period of about three months, the criteria in Reg 13 was satisfied. It made findings on the other matters raised by the parties. 48 Accordingly, I consider that the appropriate order is to remit the matter to the Tribunal for re-determination according to law. The parties were agreed that the costs of the application should follow the event, so I also order that the Minister pay to Mr Selway his costs of the application. I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.

Selway v Minister for Infrastructure, Transport, Regional Development & Local Government

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