The Honourable Peacock, A. & Ors Zyfert, T. & Anor [1983] FCA 190

Federal Court of Australia|1982-09-08|Before: Lockhart JJ, Sheppard J, Fox J

THE HONOURABLE ANDREW PEACOCK MINISTER FOR INDUSTRY AND COMMERCE AND THE COLLECTOR OF CUSTOMS FOR NEW SOUTH WALES

CORAM: Fox, Franki and Lockhart JJ. REASONS FOR JUDGMENT FOX J. This is an appeal from a judgment of a Judge of this Court (Sheppard J.) ain proceedings brought under 5.5 of the Administrative Decrsions (Tustc1eai Review) Acr 1977 ("the Judicial Review Act") resoecting a decision of an officer of the

into Australia dv tne aovallants. I say 'venicies' because che

, bUt Wnicn have meicher engines nor dear boxes, snould nave

peen trysarted for the purposes cf the Customs Paritr 19595, as amended, as at the date of antry for home consumption, namely 8 September 1982. A customs officer decided that the goods in

The scheme of the relevant provisions commences with

s.50(1) of the Customs Act 1901 ("the Customs Act"):

"50.(1) The Governor-General may, by regulation, prohibit the importation of zocds into Australia.

(2) The power conferred by the Last preceding sub-section may be exerc

(b) by prohzbiting the importation of aeods fram a specified place; or

mneo af anv moods 'not being RAYS 20 frem the acroinrrtsc-ion mle BE Teanrziten unless - 2) so PF fo ans 1D) rae operdditier- ana yveeteistiins 1

any) to which the licence is subject are complied with."

""17.(1.) The Minister may except from the application of these Regulations any goods or any goods included in a class of goods."

By Exception Notice No. M55 the Minister proclaimed as follows:

"I, RANSLEY VICTOR GARLAND, the Minister of State for Business and Consumer Affairs, in pursuance of the power conferred upon me under Regulation 17 of the Customs (Import Licensing) Regulations, do hereby:

(a) revoke all subsisting exceptions made in pursuance of that regulation; and

(b) except from the application of those regulations the goods specified in the Schedule to this Notice."

Item 5(£) of the description of goods in the Schedule to

(fT) passenger motor vehicles of a kind falling within sub-paragraph 87.02.1135 un Schedule i, dSut 704 incluains vehicies over five

Chapter 87 in Part fI of & "Vehicles, Other Than Railway or Tramway rolling Stock, and Parts Therefor". Item 87.02 un that chapter sets out cateqgorias of

"87.02 *Motor vehicles for the transport of persons, goods or materials (including sports motor vehicles, other than those falling within item 87.09):

87.02.1 -Vehicles of a kind operated by self-contained power (other than four-wheel drive vehicles, cab over forward control vehicles, hattery operated vehicles or air-cushion

87.02.11 --Assembled: 87.02.111 ---As prescribed by by-law 87.02.112 ---As prescribed by by-law

(b) battery operated vehicles having a gross vehicla weight rating of less than 2.72 tonnes; or

87.02.21 --Assembled, having a gross ° weight rating of less than tonnes, mot Seing four-wheei vehicles

a p 4] faa c tete oO a fh % ii) Tr iD {u p. | et fs) Q

(See Customs Tarifit Amendment Act 1980, Schedule &, item 283 and Customs Tariff Amendment Act 1982, Schedule 6, item 9.)

The appeal was initially argued on the basis that item 87.02 uncluded an additional paragraph and two sub-paragraphs, mamely 87.02.12, 87.02.1121 and 387.02.129. They referred to "unassembled" Motor vehicles of a kind described in sub-item 87.02.1. However, the Customs Tarifé Amendment Act 1982, Schedule 6, item 9, operates to delete paragraph 87.02.12 and its two sub-paragraphs as they were in the Customs Tariff Amendment Act 1980, Schedule 8, item 283. This problem was raised with counsel who made written comments as to its effect on their submissions. I also understand that the axception notice tea which we were referred had been replaced by another (M61) prior to the entry of the goods, but so far as relevant the fresh notice is in the same terms. Iocan but echo the concerns of the trial Judge relative to the unavailability of a complete and

updated print of the relevant chapter of the Tariff, as amended.

called Chapter Notes, whicn have statutory fFforea, Those he

"9. In a sub-item (other than 987.10. paragraph or sub-paragraph in this Chapter, "unassembled" means goods tnat are not assembled or are not further assembled than a stage that constitutes a sub-assembly. N '

In a sub-item, paragraph or sub-paragraph in this Chapter, "assembled" includes goods that are not "unassembled" by virtue of the lLlast preceding note."

Section 14 of the Customs Tariff ("Tarift") authorises

rules for interpretation of Schedule 1. Sub-section (1) of that

"14.(1) The Rules for the Interpretation of the First Schedule set out in Part I of the First Schedule have effect for the purpose of ascertaining -

(a) within which 1tem or itams any goods fall and, if the goods fall within two or more items, which one of those items applies to the goods;

(bh) aif the item that applies to the qoods is divided into sub-1tems - within which of those sub-items the goods fall and, if the goods fall within two or more of those sub-items, which one of those sub-items applies to the goods;

(c) if the sub-1tem that applies to the goods is davided into paragraphs - within which of chose paragrapns the goous fall and, 1f tne goods fail within two or more of tnosea daragraons, which one of those paragraphs arolies

within which of those subp-paragraphs the goods fall and, if the goods fall within two or more or those

sub-paragraphs, which one of those Sub-paragraphs applies to the goods."

The first two rules for interpretation set out in Schedule l.are

"1.(1) The titles of Divisions, Chapters and Sub-chapters in Part II of this Schedule are provided for reference only, and shall not be used for the purpose of interoreting this Schedule.

(2) For the purpose of ascertaining whether goods fall within an item, sub-item, paraqraph or sub-paragraph or whether an item, sub-item, paragraph or sub-paragraph applies to goods, regard shall, subject to sub-rule (3) of this rule, be had to the terms of items (including sub-items, Paragraphs and sub-paragraphs) and of notes to Divisions and Chapters and, except where those terms otherwise require, to rules Z, 3 and 4 of these Rules.

(3) For the purpose of ascertaining whether goods fall within an item or whether an item applies to goods, regard shall not be had to the terms of any sub-item; for the purpose of ascertaining whether goods fall within a sub-item or whether a sub-1tem applies to goods, regard snall not be had to the terms of any paragraph; for the purpose of ascertaining whether goods fall within a paragraph or whether a paragraph applies to goods, regard shall not be had to the farms of any sub-paragraph.

2.(1) A yveterence in an item (including a reference in a sub-2tem, pdaracrann or sub-varagrapn) to goods of a particular kind shall be read as including = raferance to -

incomplete or un an untinishec state but have tne essential character of

goods of tha- «ind; ana (3) umporked in an Gisassembled strate wouln be qaods of be aqoods to wnich this sunc-rule (2) ystsrence in an item (including a referance in a sub-item, paragraph or

sub-paragraph) to a Material or substance shall be read as including a reference toa Mixture or combination of that material or substance with another material or substance or with other materials or substances."

Section 229(1)(b) of the Customs Act provides that all prohibited imports "shall be forfeited to the Crown". There has

What hapoened in this case amomg the customs officials was that a query memorandum was raised (in relation to berh

items, which nad been entered as ""hodies"), and the decision,

apparently that of a senior ar1iit officer, was nored in a brief

On the reverse side there were two numbered entries:

There is no evidence that a Licence was obtained, or

It is doubtful whether Mr. Walker, who seemingly made most ot the notations, made the decision. The document suggests to me that Mr. Murphy did. Mr. Walker gave evidence axplaining why in his view the imported goods were not "bodies", but came within paragraph 87.02.11 and sub-paragraph 987.02.119. This meant that in his view, which was accepted by Mr. Murphy, the goods were "assembled" motor vehicles. No argument was presented as to the meaning of the phrase "passenger motor vehicles" in

para. (f) of clause 5 of the exception notice, the submission being related to the view expressed in the documents that

. The first and principal submission is that the decision that the imports were prohibited is not open to review under the Judicial Raview Act. The arqument is that it was for the customs officer, exclusively, to decide which item of the Tariff applied iI use "item" in a general sense), and, therefore, whether tha goods were prohibited imports, and forfisited to the Crown. It was said that the whole matter was one of Fact, and reference was made to Hope v. Bathurst City Councii (2920) 1l4d4 C.L.8. 1 and

Blackwood Hodge (Australia; Ftv. ckd. v. Coliector of Customs

There can he extended argument about whether a question is one of fact, or of law, or of mixed fact and law, and of course there are academic discussions about the fundamental distinctions. Separate questions arise as to the extent of judicial review. One general proposition which can be stated with confidence is that the construction of leqislation isa matter exclusively for the courts. A power in someone to determine facts, no matter how widely the power is expressed, or with what seemingly conclusive effect, does not remove this jurisdiction from the courts. It is, however, 1mportant to hear in mind a distinction between the meaning of the words used, and their application. In relation to the latter, some individual or tribunal might be given very wide powers. It may be, for

example, that, according to the proper construction of the

relevant legislation, nis or its odpinion or decision might be

vietually conclusive, subie viy to such powers of review as

Tf che Court were to decide ther words tn the 3chedule SUCH as 'Motor car' or 'assanoled" ar Ustad according to nneir aqyvdinary meaning, 1£ does nor follow cnat the cCecision oF a narifft officer applying these ina parricular case, will he

reqarded as beyond challenge. In fact, under the dudiczal Peview

Act, such a decision is never eritirely bayond challenge under one

or more of the paragraphs of s.5(1). It may appear that a wrong understanding of the language of the Tariff was applied, or that the decision could not reasonably be reached on the facts (sea

It is arqued in the oresent case that the relevant lanquage used in the Tariff is ardinary plain English, and that the tariff officers therefore have the exclusive power to apply it. Courts spend much of the1r time construing "plain English" for purposes in hand. Put more directly, and in relation to this case, it is tor the Court cto determine whether the LlLanquage in

question is used according to its common understanding (see

N.S.W. Associated Blue Metal Quarries Limited v. Federal Commissioner of Taxation (1955) 34 C.L.R. 509 ac pp.511-512, per

Kitto J.). There are very manv cases where seemingly plain words

have, for qood reason, been given unexpected (ons mary

ay "bechnical") meanings. One old example is where the words Single woman" were construed tc includ] marrisea voman" in some

Ie i) Ay vl o Fy iJ rm a , uw Lay Ve th th 3 Py He] re

sub-divisions and many definitions, or descriptions, shades of

meaning are bound to arise and to effect conclusions. Th

meaning of the words "motor car" and "assembled" in the Tarift

are in my view affected by the context in which they appear. Except where a particular rule otherwise expressly provides, the rules for the interpretation of Schedule 1 are mandatory. It appears from s.14(1) and from interpretative rule 1(3) that the first step is to make a selection between items, and, once that is done, to make a selection between sub-items. This is not to say that the language of any specific provision should be forced. Interpretative rule 4 provides that "Where goods do not fall within any item, the item that applies to the goods is the item that applies ta goods that are most akin to

The goods are to be classified according to the state in which they are at the time of the Customs entry. This is not to say history, orf purpose or intention are to be excluded; sometimes the description used in the Tariff will require some

Counsel for the appellants, seeking to apply interpretative rule Z(1)(a), sSubm:ts that the goods in question were "imported in an incompiets or in an unfinished state, but

by self-contained power, Deing motor vars ... assembied". I

doubt. that what was imported could properly be described as "incomplete" or "unfinished" in any sense. Cars were to he created, but by modification' of the bodies and by inserting modified engines, the work being done in Australia, so as to create a special vehicle to be known under a different name (Alpina). Further, it does not seem to me to he consistent with the general scheme of the Schedule 1 of the Tariff, or to accord with any reasonable construction of the particular sub-item and paragraph, to regard the goods in question as having the aforementioned essential character. They lacked major essential items. The rule in question in my view is concerned only with situations in which some minor part or feature is absent. To say that, while lacking engines and gear boxes they nevertheless had the essential character of assembled motor cars, seems to me to

So far as concerns the application of rule 2(1)(b), it is my view that the goods cannot be regarded as unassembled or disassembled. For that reason I need make no comment on whether any aspect of item 937.02 deals with "unassembled" vehicles of a kind operated by self-contained power, other than to say that

sub-item 87.02.1 does not do so. [8] ct wu 'S re) ran

To would dismiss the appeal and osts of the apreal.

aa etdan anni eetempeneestneemneanaeen tememmemmnenernee ene een en

Teertify that thas and the eleven Cn) | rreceadung pages are a true copy of the Feasons for Judgment herein of his Honour

) ) NEW SOUTH WALES DISTRICT REGISTRY ) No. G269 of 1982 ) )

BETWEEN: THE HONOURAELE ANDREW PEACOCK MINISTER FOR INDUSTRY AND COMMERCE AND THE COLLECTOR OF CUSTOMS FOR NEW SOUTH WALES

LOCKHART J: The relevant facts and statutory provisions are set

forth 1n the judgments of the other members of the Court, so I

meed not refer to them in detail. The statutory provisions are bemusing. I agree with averytning tnat mas 36sn said about canen by the other members of the Jourt including ines primary Judges

The Governor-General may, by regulation, prohibit the importation of goods into Australia: Customs Act 1901, s. 50. The importation of any goods (not being goods which are excepted from the application ot the Customs (Import Licensing) Requiations) is prohibited unless, inter alia, a licence under the Regulations to import the goods is in force: Regulation 7. The Minister may except from the application of the Regulations any goods or any goods included in a class of goods: Sub-Regulation 17(1). By Exception Notice No. M6l the Minister proclaimed that im pursuance of the power conferred upon hin under Regulation 17 of the Regulations he excepted from the application of the Regulations "the goods specified in the

Schedule to the Notice". Item 4(@) in that Schedule reads thus:-

(@) passenger motor vehicles of a kind falling within sub-paragraph 947.02.119 in Schedule 1, but not : including vehicles over 5 years of age." Chapter 87 in Part II of Schedule 1 of the Customs Tariff 1966 as amended ("the Tariff") is titled "Vehicles, Other Tham Railway or Tramway Rolling Stock, and Parts Therefor". The Chapter sets out goods by reference to numbered "Items" which are in tur sub-divided unto sub-items, paragrapns ana subD-paragraphs. When considering tne operation 35 Chaptsr 87 <o determine whether goods are sxceptead from tne application of tne

Requlations one proceeds in turn from the qanus oF chapter cto tne

species or itam, then cc the sub-specress oF Suo-itam, tna

peer ele et em ar we Na na near a a a he Ne te te et eet ee ene

Gategory of paragraph and the This seems to me to be the only consonant with the provisions of in the Rules for the Interpretation of

sub-paragraph. permissible approach and is terpretative sub-rule 1(3) of inserted in the

rules are, sao far as material, in the following terms:-

"lL. (1) The titles of Divisions, Chapters and Sub-chapters in Part II of this Schedule are provided for reference only, and shall not be used for the

sub-paragraph or whether an item, sub-item, paragraph or

sub-paragraph applies to go sub-rule (3) of this rule,

(including sub-items, paragraphs and sub-paragraphs) Divisions and Chapters and,

(3) For goods fall within an item goods, regard shall not sub-item; for the purpose fall within a sub-item or goods, regard shall not paragraph; for the purpose

fall within a paragraph or whether regard shall not be had to the

ods, regard shall, subject to be had to the terms of items

or whether an item applies to be had to the terms of any of ascertaining whether goods whether a sub-item applies to be had to the terms of any of ascertaining whether goods @ paragraph applies terms of any

@ in anitem (including a aragraph or sub-paragraph) toa

goods of a particular kind shall be read as including a reference to - -

(a) goods that are imported in an incomplete or in an unftinisnec stata Sut Aeave thea assential character 22 goceds sf that "2nd; and

(Bb) qoods that 4f3 imported in an unassemblec or tm oa disassembled stare Ddburt, 1F assembiead, would Be goods 3f tnat «ind sr would 22 goods tO oOwhich Saragcaon a Sf this sub-ruls applies

: ee a emd eet Het rere ee eet Ree a Et Cc a A el a re ee ee ce ee

The first question is whether the gaods answer the description of "Motor Vehicles for the transport of persons, goods or materials..." (item 87.02). If that question is

answered in the affirmative one praceeds ta ask if the goods fall

"Vehicles of a kind operated by self-contained power (other than four-wheel drive vehicles, cab over farward control vehicles, battery operated vehicles or air-cushion vehicles), being -

If the answer is "yes" to 87.02.11 then one asks if the goods fall within the relevant paragraph (87.02.11) as "Assembled" and, if an affirmative answer is given to that question, one then asks finally 1f the goods fail within the relevant sub-paragraph (87.02.1159) "Other". If an affirmative amswer is giver toa that questior it would fallow that the goods are not excepted. from the application of the Regulations with the result that the goods'were imported otherwise than umder a current Licence (sub-regulation 7(a)) and are prohibited imports

(para. 229(1)(b) of the Customs Act 1901) and therefore forfeited

The first question 1s -'vhether <he aceds answer che description of "Motor Vehicles for the transport 25 ygersons, goods or materials" for the survceses of ttem 47.072 ft was net

ee ee ee ee ee re er eet a Ae et tm tr Ae a et mea eae -- - mee eee erry

disputed that this question must be answered in the arfirmative.

The second question is whether the goods are within the description of sub-item 87.02.1 as "Vehicles of a kind operated by self-contained power...being (a) motor cars..." Counsel for the appellants conceded that this conclusion could be reached only hy calling in aid interpretative rule 21). Counsel pased the question as being whether the goods answer the description of motor vehicles for the transport of persons of a kind operated by self-contained power being motor cars and, by calling in aid interpretative rule 2(1)(a), said that although che goods as imported were im an incomplete or unfinished state they nevertheless had the essential character of goods of the relevant kind. In short, he argued that as the BMN motor cars were complete, when imported, except for engines and gear boxes, they nevertheless had the essential character of motor cars operated

I fatlL to understand how a motor car (I use this ina neutral sense for purpases of description) which lacks an engine am&k gear hox can be said to have the essential character of a

motor vehicle of a kind operated by seli-contained power.

Reliance was also piacead by counsel for the sopeilancs on interoretative rule 2¢liici In AY opinion the geods do nec answer che description of goods <tnat vera imported in an

enter tthe See pn ce te ee enw ne ne merce OS Oe me a ee ees ---

goods of the relevant kind. Disassembled, in the context of interpretative rule 2(1), means, in my view, having previously been assembled but subsequently taken apart. If a motor vehicle was. once assembled hut later disassembled so that 1t lacks an engine and agear bor it cannot be described as goods of the relevant kind. Chapter Notes 9 and 10 to Chapter 87 provide no

assistance in resolving the questions in this case.

Counsel for the appellants argued that the qoods fell within the description of sub-paragraph 87.02.11. He conceded that this result could be achieved only with the assistance of interpretative rule 2(1). It is mot strictly necessary to pursue this submission in view of the conclusion I have reached that paragraph 87.02.1 does not apply to the goods in this case; but I shall deal with it for the sake of completeness. If one assumes that the goods are within paragraph 987.02.1 and ars therefore vehicles of a kind operated by self-contained power being motor cars, the question arises whether they are "Assembled" for the Purposes of sub-paragraph 87.02.11 Although I may be quilty of repetition, [TC reject the nation that a motor car which lacks an engine and. gear box. can be accurately described as having the essential character of a motor vehicle operated by self-contained power (interpretative rule 2(1)(a)). I rely also on wnat I sara

In my opinion the relevant gocds ars not orchizicted

Ee LL AT NS ge ee Ne EN et NR ar a ne ee ee ee - - c

I now turn taa submission made on hehalr of the appellants that the question which was before the Customs for

determination in this case was ome of fact and that the primary dudge erred in treating it as a question of law. Reliance was Placed upormr the principle chat where a word is an ordinary English word, its meaning is not a question of law and, accordingly, whether the facts of a given case fall within that

meaning is a question of fact. Reference was made to Hope

v. Council of the City of Bathurst (1980) 144 C.L.R. 1 per Mason cd. (at pp. 6-8); Blackwood Hodge (Australia) Pry. Limited v.

Collector of Customs, New South Wales (No. 2) (1980) 3 A.L.D. 38

per Fisher J. (at pp. 49-51) and Sheppard J. (at pp. 55-56); and Brutus v. Cozens £19733 A.C. 854 especially per Lord Rezd (at

"The meaning of an ordinary word of the English language is not a question of law. The proper construction of a statute is a question of law. Tf the context shows that a word is used in an unusual semse the court will determine in other words wnat that unusual sense is...It is for the tribunal which decides the case to consider, not as law but as fact, whether in the whole circumstances the words of the statute do or do not as a matter of ardinary usage of the English language covér or apply to the facts which have been proved. If wt 1s alleged that the tribunal has reached a wrong decision then there can be a question of law but only of a limited character. The question would normally be whether their

decision was unreasonabie in the no tribunal acgquarntec owitn the ord: 22 lanquace could resascnanly reach taat

In my Opinion TRLS ofineiple nas na applicactiin in cnis

case. [If taxen to its itaical tonclusien the avgsliants

argument really asserts that it 1s for the Customs to say in each

case whether any, and if so which, provision of the Tariff

applies to particular goods. But 1t is not a question of the

Customs simply determining whether particular goods fall within the meaning of ordinary English words. What the Customs would be deciding, if the appellants are correct, is whether the description of particular goods falls within particular chapters, items, sub-items, paragraphs and sub-paragraphs of the Tarif. It must be a question of law whether a given description of goods falls within a particular part of the Tarifi. Here the question is what particular part of the relevant Schedule, if any, applies. This necessarily involves a question of construction of the Tariff and is a question of law: See Whitton (Collector of

Customs for Victoria) v. Falkiner (1915) 20 C.L.R. 118 per Isaacs

Review of the relevant decision 15 avazlabie under the

Administrative Decisions (Judicial Review) Act 1977. There was

an error of law made by the person making the decision (para.

At a glance

Court

Decision date

Before

Source

Judgment (152 paragraphs)