DISCUSSION
14 The applicant's arguments do not do justice to the respondent's case. Properly analysed the respondent's submissions involve an orthodox approach to the task of statutory construction.
15 As the respondent submitted, the legislation does not define the words "in the vicinity of". The words thus must be given their ordinary English meaning, having regard to the purpose and context of the provision. The purpose of the provision is to ensure that, in the circumstances specified in the statute but not otherwise, car parking provided by an employer is liable to the tax. Insofar as inequity is concerned the relevant comparison is between employees provided with car parking by their employer and employees not so provided who generally must pay for car parking with after tax dollars. The statutory context of the provision shows Parliament has identified a specific distance requirement for one relevant factor (the commercial parking station must be within a 1 km radius of the premises on which the car is parked under s 39A(1)(a)(ii)) but has not for another (the car is parked at, or in the vicinity of, the primary place of employment under s 39A(1)(f)). If Parliament had intended to specify a distance between the place where the car is parked and the workplace it would have done so. Instead Parliament chose different criteria - parking at or in the vicinity of the workplace. In this context, there is no basis for giving "in the vicinity of" any of the meanings for which the applicant contends (be it "sufficiently proximate to the workplace to be comparable to on-site parking", within reasonable walking distance of the primary place of employment, or less than the 1 kilometre radius rule established by s 39A(1)(a)(ii)).
16 The applicant's submissions start with the same conventional approach to statutory construction as the respondent by seeking to identify the ordinary meaning of the words "in the vicinity of". Various dictionary meanings of the word "vicinity" are available such as "near in space", "propinquity", "proximity", "near or close (to)", "in the neighbourhood (of)" (Oxford English Dictionary), "region near or about a place", "neighbourhood", "near in place", "proximity", "propinquity" (Macquarie Dictionary). Accordingly, it may be accepted that the phrase "in the vicinity of" means "near", "proximate" or "close". This is consistent with the authorities to which the parties referred concerning the phrase "in the vicinity of", as it appears in different statutory contexts, including Adler v George [1964] 2 QB 7 at 9 ("near in space"), Sea Swift at 396 ("near", "close at hand", "not distant"), Pollock v Ciccone (1988) 34 A Crim R 257 at 265 (not only "physical proximity" but also requiring, in that context, a functional relationship). The questions "how proximate?" or "how near?" were posed by Jacobs J in Abley v District Council of Yankalilla (1979) 22 SASR 147 at 152 in this way "…merely to pose 'proximity' or 'nearness in space' as the test only prompts the further questions 'how proximate?' or 'how near?', the answer to which must depend on the circumstances of each case". Jacobs J then gave an example of parcels of land close to each other but physically inaccessible due, for example, to separation by a river or deep gully. In other words, at least on the approach of Jacobs J, the questions of "how proximate?" or "how near?" depended on the application of the statutory test to the facts of the case. The approach in Sea Swift is similar. In that case the Commissioner was found to have erred by applying conclusions that had been reached in one case (Co-operative Bulk Handling Ltd v Australian Workers' Union, West Australian Branch, Industrial Union of Workers (1980) 32 ALR 541 (the CBH case) concerning the Kwinana Grain Terminal) to the facts of the case before the Commissioner in circumstances where the factual context was different. As explained in Sea Swift (at 396), the Court in the CBH case had considered the terminal at Kwinana to be in the vicinity of the wharf having regard to the integrated nature of that complex. That, however, provided little assistance to the resolution of the Sea Swift case where goods were loaded at the premises and transported 3 kilometres by road to the wharf. In other words, in both the CBH case and the Sea Swift case the actual physical context of the two locations in issue was considered to be relevant.
17 The cases thus support the respondent's approach to construction. The respondent submitted that Parliament's choice of the words "in the vicinity of", in contrast to the specification of a measurement of distance, must be recognised. "Vicinity" embraces the actual physical context of the objects in issue. By using the words "in the vicinity of" Parliament must be taken to have intended that the question of the sufficiency of the nearness, closeness or proximity will require an assessment of the distance between the two places (where the employee's car is parked and the primary place of employment) in the particular factual context within which those places are located. The respondent acknowledged that this means that the statutory condition could not be reduced to some absolute measure of distance. According to the respondent this was a result of the need to give effect to the statutory language. In any event, submitted the respondent, each of the applicant's alternatives, when analysed, involved the imposition of a subjective measure inconsistent with the statutory language.
18 I accept the respondent's submissions. The applicant's approach placed a series of glosses on the statutory language (that is, "sufficiently proximate to the workplace to be comparable to on-site parking", within reasonable walking distance of the primary place of employment, or less than the 1 kilometre radius rule established by s 39A(1)(a)(ii)). These glosses are not supported by the language of the statute, the context of the statute as a whole or any inferred legislative purpose. This is because Parliament has identified a test ("in the vicinity of" meaning "near", "proximate" or "close") which does not lay down any specific prescription about "how near", "how proximate", or "how close" the two places must be to each other. As the respondent's submissions recognised, the facts must answer the description of "in the vicinity of" meaning "near", "proximate" or "close", which necessarily involves consideration of the distance between the two places in their actual physical context.
19 Contrary to the applicant's submissions this does not conflate the statutory and factual context. The statutory context exposes Parliament's choice not to identify any maximum distance between the place where the car is parked and the primary place of employment (in contrast to its choice to specify a 1 kilometre radius in s 39A(1)(a)(ii)). The meaning of the phrase "in the vicinity of" does not change. It always means "near", "proximate" or "close". Further, in applying that test to different factual situations the distance between the place where the car is parked and the primary place of employment is a necessary and important, but not exclusive, consideration. As the respondent's submissions recognised, in applying the statutory test, the actual location of both the place where the car is parked and the primary place of employment, as well as what is located between and around those two places, are also relevant. This does not involve acceptance of any inappropriate ambiguity or vagueness in the distinction between a person liable and not liable to the tax. It gives effect to the language of the statute insofar as it expressly identifies a criterion involving a qualitative, rather than a purely quantitative, component. Given the geographical reach of the statutory provision, and the innumerable different factual situations which it must regulate, that choice by Parliament cannot be characterised as leading to unreasonable or absurd results.
20 Given these conclusions it cannot be said that, in s 39A(1)(f) of the Fringe Benefits Tax Assessment Act, "in the vicinity of" means sufficiently close to be comparable to on-site parking, within a reasonable walking distance or within a 1 kilometre radius. The phrase means "near", "proximate" or "close" having regard to the actual locations of the Melrose Car Park, Terminal 3, the distance between those two places and what is located between them. On the facts of this case the distance between the two locations (2 kilometres) is not necessarily a disqualifying factor. The locations are about 20 to 25 minutes apart if traversed on foot and 15 to 20 minutes apart if traversed by vehicle (including the time it takes to walk from the Terminal 4 bus stop to the Terminal 3 entrance and excluding any waiting time for the shuttle bus service which operates between the two locations). Importantly, the two locations are part of the same functional space - Melbourne Airport. While that space is large the two locations in question are both within a relatively small part of that space. According to photographic evidence the land between the two locations is generally flat and physically accessible by vehicle and on foot.
21 Given this context the Melrose Car Park is in the vicinity of (in the sense of near, proximate or close to) Terminal 3. The matters on which the applicant relies do not indicate to the contrary. The fact that a shuttle bus service operates between the two locations is irrelevant other than to the extent it shows the locations are physically connected by road links. The fact that the distance involves a 20 to 25 minute walk, in the actual physical context of the airport, does not suggest that the locations are other than in the vicinity of (in the sense of near, proximate or close to) each other. The fact that pedestrian facilities along the way (including footpaths, shelter and lighting) are not ideal, if relevant at all, is not of substantial weight given that, in this case, the two locations are physically accessible to each other both on foot and by vehicle. The fact that the applicant's employees are likely to be carrying luggage is also not material. The fact that Melrose Drive carries substantial vehicle traffic, particularly taxis, is also beside the point. If anything the traffic shows that the Melrose Car Park is located on an important feeder route to the terminal buildings including Terminal 3. For the purposes of s 39A(1)(f) one location either is or is not in the vicinity of another; policy and operational decisions such as the provision of a shuttle bus, the adequacy of pedestrian facilities and the need to carry luggage are immaterial.
22 The applicant bears the onus of establishing that the assessments are excessive. To do so the applicant must establish that the Melrose Car Park (being where its employees' cars are parked) is not in the vicinity of Terminal 3 (being its employees' primary place of employment). I am not satisfied that the applicant has discharged that onus. It follows that the appeal must be dismissed. The usual costs order should be made.
I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jagot.