Newbridge Civil Pty Ltd and Comptroller-General of Customs [2016] AATA 81 (17

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1 Newbridge Civil Pty Ltd and Comptroller-General of Customs [2016] AATA 81 (17 February 2016) Division: GENERAL DIVISION File Number: 2015/2800 Re: NEWBRIDGE CIVIL PTY LTD APPLICANT And: COMPTROLLER-GENERAL OF CUSTOMS RESPONDENT DECISION Tribunal Deputy President S A Forgie Date 17 February 2016 Place Melbourne The Tribunal decides: 1. that the respondent: (1) has either made a decision on 13 January 2015; or (2) is deemed to have made a decision by virtue of s 25(5) of the Administrative Appeals Tribunal Act 1975; to the effect that the amendment the applicant had proposed to its TCO application does not contravene s 269L(3) of the Customs Act 1901; and 2. that the Tribunal has power to review that decision; and 3. to affirm the decision. [sgd]. Deputy President Commonwealth of Australia 2016

2 CATCHWORDS CUSTOMS application for Tariff Concession Order - description of goods amendment of description proposed whether amendment did otherwise than narrow the description of the goods as set out in the application whether use of goods may form part of description decision affirmed LEGISLATION Administrative Appeals Tribunal Act 1975 s 3(3), 25(1), 25(2), 25(3), 25(3)(b), 25(5), 29(3) and 29(3)(a) Customs Act 1901 s 269B(1), 269B(1)(a), 269C, 269D, 269E, 269F, 269F(1), 269F(2), 269F(2)(b), 269F(2)(c), 269F(3), 269F(3)(a), 269FA, 269G, 269H, 269HA(1), 269HA(2), 269K, 269K(1), 269K(1)(b), 269K(1)(c), 269K(2), 269K(3), 269K(4), 269L, 269L(2), 269L(3), 269L(3)(a), 269L(3)(b), 269L(4), 269L(4)(a), 269L(4)(b), 269L(4A), 269L(4B), 269L(4B)(a), 269L(4B)(b), 269L(4C), 269L(5), 269L(6), 269M, 269P, 269P(1), 269P(1)(d), 269P(3), 269P(4), 269P(4)(a), 269Q, 269R(1), 269SH, 269SH(1), 269SH(2), 269SH(3)(a), 269SH(13)(a)(i), 269SJ, 269SJ(1), 269SJ(1A), 269SJ(1)(a), 269SJ(1)(aa), 269SJ(1)(b), 273GA, 273GA(1), 273GA(8) and 273GA(maa) Customs Tariff Act 1995 ss 15(a), 17, 18, 20 and 22 CASES Carpenter v Carpenter Grazing Co. Pty. Ltd. & Ors (1987) 5 ACLC 506 Chief Executive Officer of Customs v Toyota Material Handling Australia Pty Ltd [2012] FCAFC 78; (2012) 203 FCR 129 Collector of Customs (New South Wales) v Brian Lawlor Automotive Pty Ltd [1979] FCA 21; (1979) 24 ALR 307; 41 FLR 338; 2 ALD 1 Kingham v Sutton [2002] FCAFC 107; [2002] FCA 506 Minister for Immigration and Ethnic Affairs v Kurtovic [1990] FCA 22; (1990) 21 FCR 193; 92 ALR 93 Re HAG Import Corporation (Australia) Pty Ltd and Chief Executive Officer of Customs [2013] AATA 599 Re SMS Autoparts and Chief Executive of Customs [1996] AATA 158; (1996) 41 ALD 615; 23 AAR 44 STI Tyres as Trustee for On Track Tyre Trust and Chief Executive Officer of Customs [2009] AATA 877; (2009) 112 ALD 381 Times Consultants Pty Ltd v Collector of Customs (Qld) [1987] FCA 488; (1987) 16 FCR 449; 76 ALR 313 Waltons Stores (Interstate) Pty Ltd v Maher (1988) 164 CLR 387 OTHER MATERIAL Shorter Oxford English Dictionary, 5th edition, 2002, Oxford University Press REASONS FOR DECISION 1. On 8 September 2014, Newbridge Civil Pty Ltd (Newbridge) applied under s 269F of the Customs Act 1901 (Customs Act) for a Tariff Concession Order (TCO) number TC regarding certain goods. It described the goods in terms of their being structural and corrugated and curved plates bolted together on site to be used for large tunnels, grade PAGE 2 OF 27

3 separations, bridges and culverts. After correspondence between Newbridge and the Comptroller-General of Customs (Comptroller-General), a wording for a TCO was agreed upon. The TCO application was accepted as valid and notified in the Government Gazette (Gazette) dated 8 October On 25 November 2014, Holcim (Australia) Pty Ltd (Holcim) objected to the making of the TCO on the basis that it produced substitutable goods in Australia in the ordinary course of business. The Australian Customs and Border Protection Service (ACBPS) advised Newbridge of the objection by letter dated 28 November 2014 and ed on the same day. Newbridge responded to the objection by letter dated 4 December 2014 and ed to the ACBPS on the same day. In its response, it proposed an amendment to its original application. In an dated 13 January 2015, the ACBPS notified Newbridge that the proposed amendment related to the goods use. Use was not part of the goods description, the ACBPS advised. Therefore, it would not publish a new notice in the Gazette. Its notification was followed by the Comptroller-General s decision on 23 January 2015 refusing the TCO application. 3. The Comptroller-General refused Newbridge s application for an internal review of his decision under s 269SH on the basis that it had been made outside the time permitted under that section. Newbridge then applied to this Tribunal on 8 April 2015 for review of what it asserted was the Comptroller-General s earlier decision made on 13 January 2015 under s 269L(4) that he was not satisfied that its proposed amendment did not contravene s 269L(3). Its application was out of time but, on 16 July 2015, I granted an extension of the time within which it was permitted to lodge its application. 4. I have decided that Newbridge proposed an amendment to its application for a TCO. I have decided that, even though the dated 13 January 2015 was not written by a delegate of the Comptroller-General, it was in fact a decision and reviewable by the Tribunal. If it is not such a decision, the Comptroller-General is deemed to have decided that he was not satisfied that the proposed amendment did not contravene s 269L(3) by virtue of s 25(5) of the Administrative Appeals Tribunal Act 1975 (AAT Act). That entitled Newbridge to lodge an application for review in the Tribunal. I have reviewed the decision, deemed or otherwise, and concluded that, by amending the statement of uses, the proposal to amend the application did otherwise than narrow the description of the goods in contravention of s 269L(3). Therefore, I have affirmed the Comptroller-General s decision to that effect. PAGE 3 OF 27

4 BACKGROUND 5. Duties of customs are imposed by the Customs Tariff Act 1995 (CT Act) on goods imported into Australia. 1 The way in which duty is calculated is set out in ss 17, 18, 20 and 22 of that legislation. The circumstances in which concessional duty is paid are set out in s 18. Among them are the circumstances prescribed in items 19 and 50 of Schedule 4 to the CT Act and which turn on a TCO s applying to the goods. Making a TCO application A. Legislative provisions 6. A person may apply to the Comptroller-General under s 269F of the Customs Act for a TCO in respect of goods. 2 Section 269F(2) provides that: An application must: (a) be in writing; and (b) be in an approved form; and (c) contain such information as the form requires; and (d) be signed in the manner indicated in the form. 7. Section 269F(3) goes on to expand upon what is required under s 269F(2)(c): Without limiting the generality of paragraph (2)(c), a TCO application must contain: (a) a full description of the goods to which the application relates; and (b) a statement of the tariff classification that, in the opinion of the applicant, applies to the goods; and (c) if the applicant is not proposing to make use of the TCO to import the goods to which the application relates into Australia on the applicant s own behalf the identity of the importer for whom the applicant is acting; and (d) particulars of all the inquiries made by the applicant (including inquiries made of prescribed organisations) to assist in establishing that there were reasonable grounds for believing that, on the day on which the application was lodged, there were no producers in Australia of substitutable goods. 8. Section 269FA requires an applicant for a TCO to establish to the Comptroller-General s satisfaction that there are reasonable grounds for asserting that the application meets the core criteria. A TCO application is taken to meet the core criteria if, on the day on which it 1 CT Act; s 15(a) 2 Customs Act; s 269F(1) PAGE 4 OF 27

5 is lodged, no substitutable goods were produced in Australia in the ordinary course of business. 3 The expression substitutable goods is defined in s 269B(1) to mean: in respect of goods the subject of a TCO application or of a TCO, means goods produced in Australia that are put, or are capable of being put, to a use that corresponds with a use (including a design use) to which the goods the subject of the application or of the TCO can be put. Section 269D elaborates on when goods are taken to be produced in Australia and s 269E with when goods that are substitutable goods in relation to goods that are the subject of a TCO application are taken to be produced in Australia in the ordinary course of business. B. TCO application made on behalf of Newbridge 9. Question 1 on the form on which a TCO application must be made asks a TCO applicant to Describe the goods as you would propose the wording to appear if the Tariff Concession Order is granted. Before that section, there is an explanation: Description of goods (a) The description of the goods in the application may be used as the description of the goods in the TCO (if made). (b) The application must provide a full description of the goods, including the physical features of the various components of the goods. It must not describe the goods in terms of what they do. (c) in accordance with section 269SJ of the Customs Act 1901, the CEO must not make a TCO in respect of goods: (i) described in terms other than in generic terms; or (ii) described in terms of their intended end use; or (iii) declared by the regulations to be goods to which a TCO should not be extended. Goods will be taken to be described in terms other than in generic terms if, for example, their description, either directly or by implication, indicates that they are goods of a particular brand or model, or that a particular part number applies to the goods. (d) Guidance on the drafting of the description of goods is contained in relevant Practice Statements and/or Instructions and Guidelines on the Internet at Failure to comply with Customs and Border Protection requirements may result in rejection of the application. 10. Under the heading Describe the goods as you would propose the wording to appear if the Tariff Concession Order is granted. In Question 1, Newbridge wrote the words See Attached. The Attachment read: 3 Customs Act; s 269C PAGE 5 OF 27

6 Goods Description STRUCTURAL B381 BOLTED PLATE, DEEP CORRUGATED GALVANISED STEEL, conforming to AS/NZS Part 6 Bolted Structures having all of the following: galvanised coating conforming to AS 4680 annular corrugations with nominal 381mm pitch and 140mm depth material strength not less than 300 Mpa Structural base metal thickness in accordance with AS/NZS Section 7 Stated Use: Structural modular bolted corrugated plate for large tunnels, grade separations, bridges and culverts Question 4 was headed: USES OF THE IMPORTED GOODS Describe ALL uses (including design uses) to which the goods can be put. Newbridge wrote: Structural corrugated and curved plates bolted together on site to be used for large tunnels, grade and separations, bridges and culverts. 5 Withdrawal of application 12. Section 269G of the Customs Act permits an applicant for a TCO to withdraw that application at any time before a decision is made in relation to it under ss 269P or 269Q. Comptroller-General s obligation on lodgement of TCO application A. Legislative provisions 13. Section 269H sets out the Comptroller-General s obligations on the lodgement of a TCO application. He has to decide whether he is satisfied that the application complies with s 269F, whether there are reasonable grounds for believing that the applicant has discharged the responsibility referred to in s 269FA and if he is aware of any producer in Australia of substitutable goods. The Comptroller-General must come to a decision no later than 28 days after the lodgement of the TCO application. If he is so satisfied, he must inform the applicant that he has accepted the TCO application as a valid application. If he is not so satisfied or is aware that there is a producer in Australia of substitutable goods, he must reject the application. If the Comptroller-General does not take either of these courses, he is taken to have accepted the application as a valid application. 4 T documents; T3.2 at 65 5 T documents; T3.2 at 58 PAGE 6 OF 27

7 14. After accepting a TCO application as a valid application, the Comptroller-General must publish notice of it in the Gazette as soon as practicable in the terms prescribed by s 269K(1). Among those terms is a requirement that the Comptroller-General provide: a description of the goods to which the application relates including a reference to the Customs tariff classification that, in the opinion of the CEO, applies to the goods 6 The notice must also invite persons to lodge submissions if they consider that there are reasons why the TCO should not be made The Comptroller-General accepted Newbridge s application as a valid application on 1 October 2014 and advised that notice of it would be published in the Gazette dated 8 October On the same day, the ACBPS wrote to a number of Australian manufacturers and invited them to lodge a submission objecting to the making of the TCO if they considered they had reason to do so. Those invitations were issued under s 269M of the Customs Act. 16. The notices are preceded by a general statement that includes the following sentence: To assist local manufacturers, the use(s) to which the goods can be put follow the description of the goods. The notice in relation to Newbridge s TCO application reads: Description of Goods including the Customs Tariff Classification Schedule 4 General CORRUGATED PLATES, galvanised steel, having BOTH of the following: (a) compliance with Australia/New Zealand standard AS/NZS :2010, Table 7.1.1(A) AND Table 7.1.1Black s Law Dictionary with pronunciations, 5th edition, 1989, West Publishing Company, St Paul); (b) annular corrugations with a pitch NOT less than 381 mm AND a depth NOT less than 140 mm Op TC Item Number Duty Rate 50 Stated Use: For constructing large tunnels, bridges and culverts Applicant: NEWBRIDGE CIVIL PTY LTD 9 6 Customs Act; s 269K(1)(b) 7 Customs Act; s 269K(1)(c) 8 T documents; T14 at Gazette No. TC 14/39 PAGE 7 OF 27

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9 Objecting to the making of a TCO A. Legislative provisions 17. An objection is made by way of a submission. A submission must be in writing and in an approved form as well as containing information required by that form and signed in accordance with it. 10 It must be lodged in the same manner as the TCO application. 11 Unless the Comptroller-General invites a person to make a submission under s 269M, he may not have regard to any submission that is lodged later than 50 days after the gazettal day 12 in respect of a TCO application. 13 B. Holcim s submission 18. In response to the notice, Holcim s broker lodged a submission on its behalf objecting to the TCO application. It did so on the basis that it produces substitutable goods being CORRUGATED PLATES, galvanised steel. The uses to which those goods are capable of being put were stated to be for constructing large tunnels, bridges and culverts. 14 Comptroller-General s obligations on receiving submission objecting to making of a TCO and Newbridge s response A. Legislative provisions 19. If a person lodges a submission, and so an objection, within the time limit, the Comptroller- General must give the TCO applicant notice in writing of it. The notice must include the name and address of the person lodging it and a short statement of the grounds on which the submission is based Provided a TCO applicant does so within 28 days of receiving notice of the submission and has regard to the grounds on which the submission was made, s 269L(2) permits it to notify the Comptroller-General that it: proposes to amend the application by altering the description of the goods the subject of the application, and set out in that notice the proposed amendment. In proposing that amendment, the TCO applicant must comply with s 269L(3), which provides: 10 Customs Act; s 269K(2) 11 Customs Act; s 269K(3) 12 The day on which the Comptroller-General published a notice in the Gazette in respect of the TCO application under s 269K(1): Customs Act; s 269B(1)(a). 13 Customs Act; s 269K(4) 14 T documents; T16.1 at Customs Act; s 269L(1) PAGE 9 OF 27

10 The applicant must not, under subsection (2), propose an amendment of an application: (a) that would cause the goods to which the application relates to be covered by a different Customs tariff classification to the one notified by the CEO in the Gazette under section 269K; (b) that would do otherwise than narrow the description of the goods as set out in the application. 21. If a TCO applicant proposes an amendment, the Comptroller-General has seven days after being notified of it to decide whether or not it contravenes s 269L(3). If he decides that it does not do so, he must notify each person who lodged a submission and give each an opportunity to make a further submission as to why the application as proposed to be amended should not be made. That further submission must be based on reasons not dealt with in the original submission. 16 The Comptroller-General must publish a further notice in the Gazette setting out the amended description in relation to the application and inviting persons who consider the TCO as proposed to be amended should not be made to lodge a submission. 17 That notification and subsequent publication of an amended TCO application does not affect the gazettal day in relation to the application. Nor does it affect any time limits calculated by reference to that gazettal day Any person who made a submission on the TCO application may, within 14 days of being notified of a proposed amendment to that application, withdraw its submission. If he or she does so, the submission is taken to have been withdrawn. If such a person does nothing, he or she is taken to wish to proceed with the submission as if it were made in respect of the amended application If the Comptroller-General is not satisfied that the proposed amendment does not contravene s 269L(3), he must inform the TCO applicant of that and of his reasons. He makes that decision under s 269L(4)(b) and continues to consider the application as it was originally made. The Comptroller-General s obligation is imposed by s 269L(4A). B. Submission on Newbridge s TCO application and Newbridge s response 24. The Comptroller-General gave Newbridge notice of Holcim s submission by sent on 28 November Newbridge Civil responded on 4 December 2014 under cover of an 16 Customs Act; ss 269L(4)(a) and (4B)(a) 17 Customs Act; s 269L(4B)(b) 18 Customs Act; s 269L(4C) 19 Customs Act; ss 269L(5) and (6) PAGE 10 OF 27

11 . The advised that our response to the objection regarding our TCO was attached. 20 In its letter, Newbridge advised that it, in response to Holcim s submission, it: would like to dispute and provide clarification to their objection. Section 1: Substitutable goods. Substitutable goods mentioned in section 1 of the objection by Holcim do not comply with our Gazetted description of goods. Gazetted description of goods specifies compliance with both of the following: Australian Standard AS/NZ :2010 Table 7.1.1(A) and Table 7.1.1(B) (these are bolted structures.) Annular corrugations with a pitch NOT less than 381mm and a depth Not less than 140mm Holcim do not manufacture bolted plate structures in Australia. (See attached from Holcim). Holcim corrugated galvanised steel products do not comply with Australian Standard AS/NZ :2010 Buried corrugated metal structures Part 6:Bolted plate structures. Holcim corrugations are not Annular Corrugations With a pitch not less than 381mm and a depth not less than 140mm. Section 2: State use(s) to which the substitutable goods are put or are capable of being put: Newbridge acknowledge that the description for constructing large tunnels, bridges and culverts is not very specific and suggest that the wording of the description can be changed to: For constructing tunnels, bridges and culverts in excess of 10 metres in diameter or span Attached to the letter were marked up copies of page 3 of Newbridge s TCO application, its attachment to Question 1 and Holcim s submission together with an from Holcim confirming that they do not produce bolted plate structures in Australia. Beginning with Holcim s submission, Newbridge wrote two annotations. The first was written against the description given by Holcim of the goods it produces locally and read: There is no reference with these goods to the specific requirements of compliance to the Australian Standards and the Corrugation Pitch & Depth per the Gazetted description of the goods Newbridge made a further annotation in the section dealing with Stated Uses for the goods which Holcim had put forward as substitutable goods. It underlined the word large and 20 T documents; T19 at T documents; T19.1 at T documents; T19.1 at 167 PAGE 11 OF 27

12 wrote that it proposed to be more definitive of large per attached p 3 of TCO Form and attachment for Question 1 as per the original submission These notations were reflected in the marked up copy of Newbridge s TCO application. With the relevant words deleted and those added indicated by underlining, the marked up copy of the Attachment to Question 1 asking for a description of the goods now read: STRUCTURAL B381 BOLTED PLATE, DEEP CORRUGATED GALVANISED STEEL, conforming to AS/NZS Part 6 Bolted Structures having all of the following: galvanised coating conforming to AS 4680 annular corrugations with nominal 381mm pitch and 140mm depth material strength not less than 300 Mpa Structural base metal thickness in accordance with AS/NZS Section 7 Stated Use: Structural modular bolted corrugated plate for large tunnels, grade separations, bridges and culverts in excess of 10 metres diameter or span. 24 The answer to Question 4 of the marked up copy read: Structural modular bolted corrugated plate for large tunnels, grade separations, bridges and culverts in excess of 10 metres diameter or span In response, the ACBPS wrote to Newbridge by on 13 January 2015 advising that: With regard to your suggestion that stated use of the goods might be revised, the reality is that Stated use in a gazettal notice is not part of legal wording, and is intended only to inform of the intended use of the imported goods, and that locally produced goods may be considered substitutable where there is even an intersection of capabilities. However, I have been in contact with the objector s broker and am advised that Holcim s position regarding the application would not vary in relation to revised stated use of your goods: so that while it is not normal practice to re-gazette an application solely on the basis of revised stated use, in this particular instance there is no point at all. Bottom line being that your application should proceed to be assessed on its merits, and particularly on the points made in your 04 December response to the objection. 26 Holcim s position was formally confirmed in an from its broker to the ACBPS on 21 January T documents; T19.1 at T documents; T19.1 at T documents; T19.1 at T documents; T21 at T documents; T22 at 172 PAGE 12 OF 27

13 Considering a TCO application A. Legislative provisions 29. When, as in this case, a TCO application does not relate to goods sent out of Australia for repair, s 269P requires the Comptroller-General to consider a TCO application once he has accepted it as a valid application under s 269H. The Comptroller-General has 150 days after the gazettal day within which to decide whether he is satisfied that the application meets the core criteria. In reaching that decision, he must have regard to the application, all submissions lodged within the required time, all information he has received in response to any invitation or request he has made under s 269M and any inquiries he has made. That is the effect of s 269P(1). Subject to a qualification to which I will return, the Comptroller-General must, if satisfied that the goods meet the core criteria, make a written order declaring that the goods the subject of the TCO application are goods to which a prescribed item specified in the order applies. 28 As soon as practicable after the Comptroller-General makes a decision under s 269P(1), he must give the TCO applicant written notice of the decision and publish notice of it in the Gazette The qualification to which I refer is found in s 269HA(1) when read with s 269SJ(1) and (1A). Section 269HA(1) provides: If, at any time during the period starting from the receipt of a TCO application and ending with the making of a TCO, the Comptroller-General of Customs becomes satisfied that the goods to which the application relates are goods in respect of which, under subsection 269SJ(1), the Comptroller-General of Customs is prevented from making a TCO, the Comptroller-General of Customs must: (a) reject the application; and (b) by notice in writing given to the applicant, inform the applicant that the application is rejected and of the reason for the rejection. 31. Section 269SJ(1) provides: The Comptroller-General of Customs must not make a TCO in respect of goods: (aa) described in terms other than generic terms; or (b) described in terms of their intended use; or (c) declared by the regulations to be goods to which a TCO should not extend. 32. Section 269SJ(1A) expands on what is meant by s 269SJ(1)(aa) when it provides: Without limiting the meaning of the reference in paragraph (1)(aa) to goods described in generic terms, goods are taken not to be so described if their 28 Customs Act; s 269P(3) and see also s 269P(4) as to the information that must be included in a TCO. 29 Customs Act; s 269R(1) PAGE 13 OF 27

14 description, either directly or by implication, indicates that that they are goods of a particular brand or model, or that a particular part number applies to the goods. 33. If the Comptroller-General decides under s 269HA(1) to reject a TCO application of which notice has been given in the Gazette, he must, as soon as practicable, publish a further notice stating that he has done so and the reason for the rejection. 30 B. Comptroller-General s consideration of Newbridge s TCO application 34. In a letter dated 23 January 2015, a delegate of the Comptroller-General advised Newbridge that he had decided that its application did not meet the core criteria and that he had refused the TCO application. That refusal was made under s 269P(1). Attached to the letter were the delegate s reasons for finding that the core criteria were not met. He also addressed the amendment noting that Newbridge had not proposed wording as required by s 269L(2). It had, instead, proposed to amend the Stated Use of the imported goods but, as that does not form part of the legal description of the goods, the proposed amendment did not invoke any action under s 269L. 31 Internal review of decisions 35. Section 269SH permits an affected person (including a TCO applicant 32 ) who objects to the making of a decision on a TCO application (original decision) to apply to the Comptroller-General for reconsideration of that decision. The application must be made not later than 28 days after the gazettal of that decision. 33 It must be in writing and set out the grounds on which the person objects to the decision 34 as well as being lodged with the Comptroller-General in the same manner as is specified in relation to a TCO application No express provision is made in the Customs Act for an extension of the 28 day time period within which an application may be lodged. The language of s 269SH and the legislative scheme regulating TCOs and their making and revocation within precise time limits counters against any conclusion that the Comptroller-General has implied power to extend the time. Therefore, even though Newbridge was only a day or so out of time in lodging its application for internal review, its application for reconsideration of the decision was not validly made and could not be considered by the Comptroller-General under s 269SH. 30 Customs Act; s 269HA(2) 31 T documents; T24 at Customs Act; s 269SH(13)(a)(i) 33 Customs Act; s 269SH(1) 34 Customs Act; s 269SH(2) 35 Customs Act; s 269SH(3)(a) PAGE 14 OF 27

15 Review by the Tribunal 37. A person may make an application to the Tribunal for review of a decision if an enactment provides that such an application may be made. That is the effect of s 25(1) of the AAT Act. Where an enactment has such a provision, s 25(3) of the AAT Act requires it to specify the person or persons to whose decisions the provision applies. It may apply to all of a person s decisions or a class of decisions and may specify conditions according to which an application may be made. It may be implied from the fact that an application may be made to it and the scheme of the AAT Act generally that the Tribunal has power to review a decision in respect of which an application may be made to it. 38. Section 273GA of the Customs Act is a provision of the sort referred to in s 25(1). Subject to certain conditions, it sets out the decisions in respect of which an application may be made to the Tribunal for their review. Of relevance in this case are its provisions that: Subject to this section, applications may be made to the Administrative Appeals Tribunal for review of: (a)-(m) (maa) a decision under subsection 269L(4) to the effect that the Comptroller- General of Customs is not satisfied that a proposed amendment of a description of goods to be covered by a TCO does not contravene subsection 269L(3); (ms) (n) a decision of the Comptroller-General of Customs under section 269SH on a reconsideration of a decision of the Comptroller-General of Customs under subsection 269P(1); (o)-(s) The word decision is defined by s 273GA(8) to have the same meaning as in the AAT Act. 39. In the absence of any reconsideration decision under s 269SH, Newbridge accepts that it could not make an application to the Tribunal for review of the Comptroller-General s decision to refuse its TCO application. It has, instead, relied on s 273GA(maa) to seek review of the decision it asserts has been made under s 269L. THE SUBMISSIONS 40. Mr Horan SC of counsel submitted that Newbridge was entitled to apply under s 273GA(1)(maa) on one or both of two bases. The first basis was that the Comptroller- General had failed to make a decision under s 269L(4) of the Customs Act. Mr Horan relied further on ss 273GA(8) of the Customs Act and ss 3(3) and 25(5) of the AAT Act to support his submission that Newbridge could apply to the Tribunal for review of a decision PAGE 15 OF 27

16 deemed to have been made by the Comptroller-General regarding its proposed amendment. Mr Horan s second basis was that there had been a decision and a process failure. In particular, the Comptroller-General had failed to consider whether the proposed amendment to the description of the goods set out in the TCO application contravened s 269L(3) of the Customs Act. 41. On behalf of the Comptroller-General, Mr Northcote submitted that Newbridge s letter to him dated 4 December 2014 and its amendment did not propose any amendments to its TCO application by altering the description of the goods the subject of the application. All that it proposed was an amendment of the uses of the proposed TCO goods as set out in section 4 of the TCO application and the stated use in the attachment to that application. They are not part of the description of the goods as that expression is used in s 269L(2). That interpretation is supported by reference to the context provided by ss 269F(3)(a), 269K(1), 269L, 269P(4), 269SJ, 269HA(1) and 273GA(1). He explained how that support is given and I will refer to that later in these reasons. The essence of Mr Northcote s submission was that, had the stated use put forward by Newbridge been regarded as part of the description, its application would not have been accepted as a valid application. That would have followed from the requirements of ss 269HA(1) and 269SJ(1). 42. Therefore, the letter of 4 December 2014 does not constitute notice to the Comptroller- General under s 269L(2). Therefore, the Comptroller-General did not fail to consider a proposed amendment under s 269L(4), the Tribunal does not have jurisdiction under s 273GA(1)(maa) and should dismiss Newbridge s application lodged in the Tribunal. 43. Furthermore, Mr Northcote continued, s 269L provides a once only opportunity for a TCO applicant to request amendment of it proposed description of the TCO goods. A TCO applicant must do so within 28 days of being notified of the objection to the proposed TCO. The Tribunal does not have power to amend the wording of the proposed description of the TCO goods and then consider whether it should grant a TCO with that amended description. 44. Mr Horan countered Mr Northcote s submission arguing that Newbridge had made its application for amendment in accordance with the requirements of s 269L(2) of the Customs Act and had done so within the permitted time limit. It had amended the description of the goods set out in its TCO application as opposed to the description of those goods included in the notice published by the Comptroller-General in the Gazette. The amendment was designed to narrow the description to include only goods which met the criteria set out in the TCO application and that, as a result of meeting those criteria, PAGE 16 OF 27

17 could only be used for constructing large tunnels, bridges and culverts with a diameter or span in excess of 10,000 millimetres. The use formed part of the description of the goods. The Comptroller-General was required to consider whether or not the amended TCO application contravened s 269L(3) and then to proceed to take the steps required under ss 269L(4), (4A) or (4B). CONSIDERATION Did Newbridge propose an amendment of its TCO application under s 269L(2)? 45. Having regard to Newbridge s letter dated 4 December 2014 and particularly to the marked up copy of its TCO application included in that letter, I am satisfied that it intended to amend its application and that its correspondence should be regarded as a proposal to amend that application. That intention is apparent in the amendment it made to its response to Question 1 on the TCO application when that question asked Newbridge for a description of the goods if the TCO were made. The content of its covering letter also indicates that it intended to give a more detailed description of the goods for which it sought a TCO when it made distinctions between its goods and those manufactured by Holcim. Even if it were to transpire that it were misguided in its understanding of the distinction between the description of goods and the uses to which they may be put so that the proposed amendment were in breach of s 269L(3), it would not alter my conclusion that Newbridge has made an application proposing to alter the description of the goods for which it sought a TCO application. Such a breach would be relevant in the Comptroller- General s making a decision under s 269L(4) but it would not render ineffective any application for an amendment of a TCO application. Is the Comptroller-General deemed to have made a decision? 46. Section 25(5) of the AAT Act provides for the situation in which a decision-maker fails to make a decision within a designated time frame. It does so in order to ensure that a person is not denied an opportunity to make an application simply because a decision has not been made. Section 25(5) provides: For the purpose of an enactment that makes provision in accordance with this section for the making of applications to the Tribunal for review of decisions, a failure by a person to do an act or thing within the period prescribed by that enactment, or by another enactment having effect under that enactment, as the period within which that person is required or permitted to do that act or thing shall be deemed to constitute the making of a decision by that person at the expiration of that period not to do that act or thing. PAGE 17 OF 27

18 47. I have summarised the provisions of s 269L(4) at [21]-[23] above but will now set it out in full: As soon as practicable after, but not more than 7 days after, a proposed amendment of a TCO application was notified to the Comptroller-General, the Comptroller-General must consider the proposed amendment and: (a) if the Comptroller-General is satisfied that the proposed amendment does not contravene subsection (3) the Comptroller-General must inform the applicant that he or she is so satisfied and that subsection (4B) applies accordingly; or (b) if the Comptroller-General is not so satisfied the Comptroller-General must inform the applicant that he or she is not so satisfied and of the reasons for not being so satisfied. 48. The time within which the Comptroller-General was required to make a decision under s 269L(4) ended on 11 December 2014 being seven days after Newbridge notified its proposed amendment to it. For the purposes of making an application to the Tribunal, that meant that, when the Comptroller-General did not make a decision by 11 December 2014, he was deemed to have made a decision not to make a decision that he was satisfied that the proposed amendment of the TCO application did not contravene s 269L(3). Section 29(3) of the AAT Act provides the prescribed time within which an application may be lodged when a decision has been deemed to have been made by reason of the operation of s 25(5) of that legislation and no written document setting out the terms of that decision has been given. The time is 28 days after the decision is deemed to have been made. In this case, and had the of 13 January 2015 not been written and sent by the ACBPS, that would have given Newbridge until 8 January 2015 in which to lodge an application for review of the deemed decision. 36 Newbridge did not make an application to the Tribunal within that time. Has the deemed decision been replaced by an actual decision under s 269L(4)? 49. I am satisfied that, when the ACBPS responded to Newbridge in an dated 13 January 2015, a decision was purported to have been made on Newbridge s proposed amendment. I say purports because there is no statement by the ACBPS officer who wrote to Newbridge on that day that he had delegated authority from the Comptroller-General. At the same time, he was dealing with the substantive issues raised by Newbridge in its of 4 December 2015 following an earlier conversation with a staff member of Newbridge. Whether apparent authority is a sufficient basis on which it could be said that the Comptroller-General has made a decision is an issue to which I will return. 37 For the 36 AAT Act; s 29(3)(a) 37 See [54]-[56] below PAGE 18 OF 27

19 moment, I will set out my reasons why I have concluded that, if the were written by a person with actual authority or if the doctrine of apparent authority of some other basis would lead to the same result, it would amount to a decision under s 269L(4). 50. I have set out the substantive content of that at [28] above. While there is no reference in it to either s 269L in general terms or to the Comptroller-General s obligation to make a decision under s 269L(4), the addresses the issue at the heart of s 269L(4) and the consequence of a decision unfavourable to Newbridge. 51. The issue at the heart of s 269L(4) is whether the Comptroller-General is satisfied that the proposed amendment contravenes s 269L(3). In this case, resolution of that issue required a consideration of whether the proposed amendment would do otherwise than narrow the description of the goods as set out in the application. The conveys a decision that the proposed amendment is addressed to the goods uses and not to their description. Implicit in that decision is a decision that the proposed amendment would do otherwise than narrow the description of the goods as set out in the application. Therefore, implicit in the ACBPS s is that there has been a decision that the Comptroller-General is not satisfied that the proposed amendment of Newbridge s TCO application does not contravene s 269L(3). 52. That conclusion is supported by the decision not to give further notice of the TCO application in the Gazette. It would not be normal to do so, the states, when the uses are revised. There was no point in doing so in this case, the continued, because Holcim had indicated that it would not change its position even if the stated uses were modified. The bottom line was that the application should proceed to be assessed on its merits. That is a conclusion consistent with the requirement in s 269L(4A) that, if the Comptroller-General is not satisfied that a proposed amendment of a TCO does not contravene s 269L(3), he must continue to consider the application as it was originally made. It remains consistent even though the has stated that regard would also be had to the points made by Newbridge in response to Holcim s submission. Section 269P(1)(d) permits the Comptroller-General to have regard to any inquiries he has made. That is broad enough to permit him to consider information of the limited sort in this case. It is information given in response to a submission made by Holcim and given to a TCO applicant, Newbridge, and focused on a particular aspect regarding the goods uses and description. It has been discussed between that TCO applicant and the Comptroller- General s officers. PAGE 19 OF 27

20 53. In view of these matters, I am satisfied that the dated 13 January 2015 and sent by an ACBPS officer amounted to written notice of a decision made in the same terms as the deemed decision. As it gave reasons, the time for lodgement of an application for its review expired on the 28 th day after 13 January 2015 as prescribed by s 25(3)(b) of the AAT Act. If that were not a decision, Newbridge s entitlement to apply to the Tribunal would have hinged on the deemed decision and it would have had 28 days after the date of the deemed decision within which to apply for its review. Apparent authority, the presumption of regularity, estoppel and ultra vires 54. Whether an officer of ACBPS may make a decision in the exercise of powers given to the Comptroller-General by the Customs Act but in circumstances where the Comptroller- General has not delegated authority to that person is a question, the answer to which may be unclear. In some contexts, the answer lies in a consideration of issues relating to apparent authority, ultra vires and estoppel. It may be an answer shaped by all or some of those issues considered in the context of the system of regulation prescribed by the Customs Act. The presumption of regularity may also become a consideration. That presumption was described by Wilcox and Marshall JJ in Kingham v Sutton 38 when they said: 58 The essence of the presumption of regularity is that official appointments were duly made and that official acts were duly performed ; see G.D Nokes, An Introduction to Evidence, 2nd ed 1956 at 64. The presumption is rebuttable and may be displaced by a contrary inference from additional facts however established. (see Nokes at 61). 59 As Wigmore, in Evidence in Trials at Common Law Vol 9, reveals at para 2534, the presumption of regularity is:...more often mentioned than enforced; and its scope as a real presumption is indefinite and hardly capable of reduction to rules. It may be said that most of the instances of its application are found attended by several conditions; first, that the matter is more or less in the past and incapable of easily procured evidence; second, that it involves a mere formality or detail of required procedure in the routine of a litigation or of a public officer s action; third, that it involves to some extent the security of apparently vested rights so that the presumption will serve to prevent an unwholesome uncertainty; and finally, that the circumstances of the particular case add some element of probability. 55. In Carpenter v Carpenter Grazing Co. Pty. Ltd. & Ors, 39 Hope JA, with whom Samuels and Priestley JJA concurred, gave the following explanation: 38 [2002] FCAFC 107; [2002] FCA 506; Kiefel J dissenting 39 (1987) 5 ACLC 506 PAGE 20 OF 27

21 As I understand it, the true rule is that the presumption may reasonably be drawn where an intention to do some formal act is established, when the evidence is consistent with that intention having been carried into effect in a proper way, the observance of the formality has not been proved or disproved and its actual observance can only be inferred as a matter of probability: Harris v. Knight (1890) L.R. 15 P. & D. 170 at pp ; In the Estate of Bercovitz (1962) 1 W.L.R. 321 at p I would need to have more material than I do before I would feel able to conclude that it is difficult to prove or disprove that the Comptroller-General had, or had not, delegated authority to make a decision under s 269L(4) to an officer of ACBPS or to an officer holding a particular position in ACBPS. If I were to come to that conclusion, the possibility that the officer did not have authority would remain a live issue as would the question whether the decision was made ultra vires. If the presumption of regularity were to override, as it were, considerations of actual power so that ostensible power were enough, the Comptroller- General would be estopped from arguing, in the context of the exercise of a statutory discretion, 41 that a decision had been made without power. Such an outcome would arguably fetter the exercise of his discretion in making decisions required by the Customs Act. In 1990, Gummow J reviewed developments in the law in the United States and in the United Kingdom on these issues. His Honour observed in Minister for Immigration and Ethnic Affairs v Kurtovic: 42 It remains to be seen whether there develops in this country any exception or qualifications to the ultra vires doctrine which relies upon principles of ostensible authority and presumptions of regularity drawn from the law of agency in private law and from company law. Some limited assistance is given by the provisions dealing with delegation in the Acts Interpretation Act 1901, ss 34AA, 34AB, 34A. Any such development here would be the first true exception or qualification to the general rejection of estoppel in public law Although reference is made to issues of this sort in later cases, there has been no clear resolution of them. I do not need to attempt to do so for Newbridge s entitlement to apply to the Tribunal arose quite separately from the operation of those principles through one of two ways. One was through the operation of the deeming provisions in s 25(5) of the AAT Act and s 269L(4) of the Customs Act, to which I have already referred. 40 (1987) 5 ACLC 506 at The Commonwealth may be estopped from resiling from a decision when it is engaged with outsiders in its proprietary, rather than governmental, capacity and its dealings are the subject of private law e.g. Waltons Stores (Interstate) Pty Ltd v Maher (1988) 164 CLR 387; Mason CJ, Wilson, Brennan, Deane and Gaudron JJ 42 [1990] FCA 22; (1990) 21 FCR 193; 92 ALR 93; Neave, Ryan and Gummow JJ 43 [1990] FCA 22; (1990) 21 FCR 193; 92 ALR 93 at 213; 114 PAGE 21 OF 27

22 58. The other is through the application of the principles formulated in the case of Collector of Customs (New South Wales) v Brian Lawlor Automotive Pty Ltd 44 (Brian Lawlor). Bowen CJ and Smithers J were of the same view and may be summarised in the conclusion expressed in the judgment of the Chief Justice: In the view which I take as to the meaning of s. 25 of the Administrative Appeals Tribunal Act an applicant to the Tribunal has standing and the Tribunal has jurisdiction provided there is a decision in fact and provided further that the decision purports to have been made in exercise of powers conferred by an enactment whether or not as a matter of law it was validly made and whether or not action on the basis there was power to make the decision was right or wrong The ACBPS s decision that Newbridge had not applied to amend the description in its TCO application and consequent decision not to place a further notice in the Gazette but to consider the application as originally made, brought to an end any opportunity that Newbridge had to amend its application. Whether made with or without authority, that was the practical effect of the way in which the ACBPS dealt with Newbridge s application. It was a decision made in fact about Newbridge s application. Given that the Tribunal has power to review decisions made on such applications, the principles established by Brian Lawlor lead to the conclusion that it would have power to review the decision made in fact on 13 January Application to the Tribunal 60. On 5 June 2015, Newbridge lodged an application for an extension of the time within which it might be permitted to lodge the application for review it had lodged at the same time. The Comptroller-General opposed the application but on 16 July 2015, I extended the time to 5 June By that time, the Comptroller-General had made a decision under s 269P refusing the TCO application. That raises the question whether the application for review of a decision under s 269L regarding a proposal to amend a TCO application continues to have any relevance. Mr Horan submitted that, if it were decided that the proposed amendment had not contravened s 269L(3), the Comptroller-General would be required to follow the notification procedures stipulated by s 269L(4B) and then consider the TCO application as amended. Its earlier decision on the TCO application would be a nullity as it was affected by jurisdictional error. Whether Mr Horan is correct or not is not a matter I must consider for I 44 [1979] FCA 21; (1979) 24 ALR 307; 41 FLR 338; 2 ALD 1; Bowen CJ and Smithers J; Deane J dissenting 45 [1979] FCA 21; (1979) 24 ALR 307; 41 FLR 338; 2 ALD 1 at [23]; 317; 346; 7 PAGE 22 OF 27