FEDERAL COURT OF AUSTRALIA

Automotive Components Limited (Receivers and Managers appointed) (in liquidation) v Secretary, Department of Industry and Science [2016] FCAFC 6

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The Applicant pay the Respondent’s costs of the appeal.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

INTRODUCTION

1    In this matter the applicant, Automotive Components Ltd (Receivers and Managers Appointed) (in Liquidation) (“ACL”), appeals from a decision of the Administrative Appeals Tribunal. The Tribunal affirmed the decision of a delegate of the respondent, the Secretary of the Department of Industry and Science, to deregister ACL as a participant in a federal government industry assistance scheme, the Automotive Transformation Scheme (“ATS” or “Scheme”). The appeal relates to the deregistration decision, which had the effect that ACL was not eligible to receive assistance payments in 2014.

2    The ATS was established under the Automotive Transformation Scheme Act 2009 (Cth) (“ATS Act”) and the Automotive Transformation Scheme Regulations 2010 (Cth) (“Regulations”). ACL produced automotive components in Australia until it ceased operations on 30 June 2014. On 1 January 2011 it became registered as a participant in the Scheme as an Automotive Component Producer (“ACP”). Under reg 2.22 of the Regulations the conditions for continuing registration include that in an ATS year (which is defined to correspond with a calendar year) an ACP must produce in Australia at least one kind of automotive component for use as original equipment in at least 30,000 motor vehicles (“the volume condition”) and that the production value of the automotive components must be at least $500,000 (“the production value condition”).

3    In 2011 ACL experienced difficulty in meeting the volume condition and on 23 December 2011 it sought permission under reg 2.25 from the Minister to continue registration as a Scheme participant, on the basis that its continuing registration was in the national interest. By letter on 27 February 2012 the Minister exempted ACL from the requirement to meet the volume and production value conditions in 2012 and 2013, permitting it to continue to be registered in those years without meeting those conditions (“the Exemption”).

4    On 3 December 2013, in its quarterly report to the Secretary for the third quarter of that year, ACL reported that its production of automotive components was well below the required volume and production value conditions. It stated that its eligibility for ATS registration “remains marginal”. On 17 January 2014, shortly after the end of the Exemption, the delegate of the Secretary notified ACL by letter that, pursuant to reg 2.28, it had been deregistered from the ATS from 31 December 2013 on the basis that it was unlikely to meet the conditions for continued registration.

5    ACL appealed the deregistration decision to the Tribunal, which upheld the decision on 13 February 2015: Automotive Components Ltd (Receivers and Managers Appointed) (In Liquidation v Secretary, Department of Industry and Science [2015] AATA 79. Essentially, the Tribunal decided that the delegate correctly determined ACL’s eligibility for continued registration in 2014 by reference to the production value ACL achieved in 2013. ACL appeals to the Court from the Tribunal’s decision.

6    The appeal turns on the proper construction of reg 2.22, particularly the expression “in the preceding 12 months” in reg 2.22(2)(b), including as to the proper operation of the regulation in the context of the Exemption. It concerns which year of production was required to be taken into account when deciding whether ACL was eligible for continued registration in 2014. The Secretary contended that reg 2.22(2)(b) required that the assessment of production value be made in respect of the preceding 12 months to the 2014 ATS year, being the period from 1 January to 31 December 2013. ACL contended that on its proper construction the Regulations required that the assessment take place at the end of the 2014 ATS year, looking back over the preceding 12 months, being the period from 1 January to 31 December 2014.

7    For the reasons we set out below we have dismissed the appeal. We consider reg 2.22 requires that a Scheme participant seeking continued registration must satisfy the production value condition by reference to the 12 months preceding the year for which registration is sought, in the present case by reference to production in 2013.

8    We have also considered the Secretary’s notice of contention which alleged that the Tribunal erred in construing reg 2.22 as requiring the volume condition to be assessed in a different ATS year to the production value condition. This issue also turns on a question of statutory construction and, although strictly unnecessary to decide, it is important in the administration of the Scheme. In these circumstances it is appropriate to note that, in our respectful view, the Tribunal erred in this regard. We consider reg 2.22 requires that compliance with both the volume and production value conditions be assessed in the same time period, by reference to production in the 12 months preceding the year for which registration is sought.

THE FACTUAL AND PROCEDURAL BACKGROUND

9    The ATS was established to encourage competitive investment and innovation in the Australian automotive industry and to place the industry on an economically sustainable footing by making cash payments to participants in the Scheme based on the level of each participant’s prescribed investment: see s 3 ATS Act. It replaced an earlier automotive industry assistance scheme, the Automotive Competitiveness Investment Scheme (“ACIS”), established under the ACIS Administration Act 1999 (Cth).

10    ACL was registered as a participant in the ACIS from 2001 until the end of 2010, when that scheme ended. On 26 August 2009 ACL appointed voluntary administrators and Ford Australia then appointed Receivers and Managers to it. ACL continued to produce automotive components and in December 2010 it applied for initial registration as a participant in the ATS. The transitional provisions in Part 7 of the Regulations provide for a registered participant in ACIS to become a registered participant in the Scheme, and ACL became registered on 1 January 2011.

11    On 23 December 2011 ACL informed the delegate that because of lower production volumes achieved by Ford Australia in 2011 it was unlikely that ACL would meet the 30,000 automotive components volume condition or the $500,000 production value condition. It requested the Minister's permission for continuation of its registration as a Scheme participant in the national interest.

12    By letter on 27 February 2012 the Minister provided the Exemption, which stated that the Minister had:

… decided that it would be in the national interest to continue ACL’s registration in the ATS. Specifically, due to ACL’s exclusive manufacture of in-line 6 engine bearings, I believe ACL’s continued registration in the ATS would provide benefit in the automotive industry and the Australian economy.

ACL will remain registered in the ATS provided it meets the following conditions:

•    ACL continues to meet all the conditions of registration other than the conditions set out in subregulations 2.22(1) and (2); and

•    ACL continues to manufacture in Australia in-line 6 engine bearings for Ford Motor Company of Australia Limited.

Subject to all conditions being met, ACL will continue to be registered in the ATS in the national interest until 31 December 2013. If by this time ACL meets the annual registration requirement, its registration will revert back to the standard ATS registration.

(Emphasis added.)

The highlighted part of the Exemption is significant in the appeal.

13    It is uncontentious that:

(a)    ACL did not meet the volume condition in 2011, producing 24,565 engine bearing sets in that year;

(b)    ACL did not meet the volume condition in 2012, producing 19,565 engine bearing sets in that year;

(c)    in its 3 December 2013 quarterly return for the third quarter of that year, ACL reported that it had produced 10,592 engine bearing sets in the first three quarters of 2013 with a production value of $317,506, and that its eligibility for ATS “remains marginal”; and

(d)    ACL did not meet the volume or production value conditions in 2013, producing a total of 14,583 engine bearing sets with a production value $419,034.

14    Based on what had been reported by ACL the delegate decided to deregister ACL under reg 2.28, doing so on the basis that ACL was unlikely to meet the conditions for continued registration as an ACP under reg 2.22(1)(a). On 17 January 2014 the delegate informed ACL of the decision by letter which, amongst other things, noted ACL’s advice that its business sale process had been unsuccessful, that its business was being wound down, that ACL had not met the volume condition in 2012 and that up to and including the third quarter of 2013 it had produced 10,592 engine bearing sets with a total production value of $317,506.

15    The letter noted that, pursuant to reg 2.28(2)(a), the Secretary must deregister an ATS participant if at any time the Secretary is satisfied that the participant is not likely, or has failed, to comply with a condition of registration in Division 2.5 of the Regulations. It stated that ACL is considered unlikely to meet the ongoing conditions of registration as an ACP under paragraph 2.22(1)(a) and that as a consequence ACL had been deregistered.

16    On 17 February 2014, ACL sought a reconsideration of the deregistration decision, doing so on the basis that it had received an order from Ford Australia for 35,595 engine bearing sets with a production value of $835,059, which were to be produced in the first six months of 2014. The delegate denied the request for reconsideration and noted by letter of 3 March 2014 that the Exemption required ACL to achieve ATS eligibility in 2013 to return to a standard registration in 2014, but it had not done so.

17    The Tribunal affirmed the decision to deregister ACL as a participant in the ATS. It is unnecessary to recount the Tribunal’s decision and it suffices to note that the decision turned on the Tribunal’s construction of reg 2.22(2). The Tribunal said (at [37]) that the production value condition “is assessed by reference to the total revenue from sales of the automotive components in the 12 months preceding the ATS year identified in r 2.22(1)(a) i.e. “the preceding 12 months”.” In the present case ACL sought registration for 2014 and the Tribunal decided that compliance with the production value condition therefore fell to be assessed by reference to production in 2013.

THE LEGISLATION

18    The “Automotive Transformation Scheme” is defined in s 4 of the Act to mean “the scheme prescribed for the purposes of section 5”. Section 5 of the ATS Act provides:

(1)    To further the object of this Act, the regulations must prescribe a scheme (the Automotive Transformation Scheme) about the following matters:

(a)    the registration of participants (ATS participants) by the Secretary;

(b)    the payment of an amount to an ATS participant if certain conditions are satisfied;

(c)    the recovery by the Commonwealth of amounts from ATS participants in prescribed circumstances;

(d)    the payment of interest by an ATS participant on an overpaid amount;

(e)    the review of decisions, and, in respect of decisions of a prescribed kind, the limitations that apply to implementing the Administrative Appeals Tribunal’s decision or a court’s decision about those prescribed kind of decisions;

(f)    the appointment of authorised officers by the Secretary;

(g)    a matter required or permitted by this Act to be included in the Scheme;

(h)    ancillary or incidental matters.

(2)    The Automotive Transformation Scheme is to be a self‑assessment scheme.

(Emphasis added.)

19    The Regulations prescribe the ATS. Regulation 1.5 provides the following relevant definitions:

ACP means a person registered as an automotive component producer under the Scheme.

…

ATS year means a year identified in the following table for which eligible investments or eligible production may be claimed by an ATS participant.

ATS year

1     1 January 2011–31 December 2011

2     1 January 2012–31 December 2012

3     1 January 2013–31 December 2013

4     1 January 2014–31 December 2014

5.    1 January 2015-31 December 2015

…

10    1 January 2020-31 December 2020

…

production value means the value of production, automotive components, tools, tooling, or a service worked out in accordance with the following:

…

(b)    for an ACP—subregulations 2.5(3) or 2.22(3)…

20    Regulation 2.22(3) says nothing in relation to production value. However, reg 2.22(2)(b) (which relates to the conditions for continued registration of an ACP) provides that:

…the production value of automotive components produced by the ACP is the total revenue from sales of the automotive components (excluding indirect tax) in the preceding 12 months.

Regulation 2.5(3) (which relates to the initial application for registration of an ACP) provides essentially the same.

21    Regulation 2.5 provides the conditions for initial registration. It states:

2.5 Application for ACP registration

(1)     A person who is a producer of automotive components may apply to the     Secretary for registration as an ACP if:

(a)     in the 12 months preceding the application:

(i)     the person produced in Australia at least one kind of automotive component for use as original equipment in at least 30,000 motor vehicles or in at least 30,000 engines and the production value of the component was at least

$500,000; or

(ii)     the production value of the automotive components produced by the person in Australia as original equipment was at least $500,000 and comprised at least 50% of the production value of all automotive components produced by the person; or

(b)     if paragraph (a) does not apply—the person is able to demonstrate, to the satisfaction of the Secretary, that for the ATS year to which the application for registration relates:

(i)     the person is likely to produce in Australia at least one kind of automotive component for use as original equipment in at least 30,000 motor vehicles or at least 30,000 engines and the production value of the component will be at least $500,000; or

(ii)     the production value of the automotive components produced by the person in Australia as original equipment is likely to be at least $500,000 and to comprise at least 50% of the production value of all automotive components produced by the person; or

(c)     if neither paragraph (a) nor (b) applies—the person has been given permission by the Minister, under regulation 2.8, to apply for registration as an ACP.

(2)     The application must be made in accordance with Division 2.4.

(3)     If paragraph (1)(a) applies, the production value of automotive components produced by an applicant for registration as an ACP is the total revenue from sales of the automotive components (excluding indirect tax) in the 12 months preceding the application.

(4)     If paragraph (1)(b) applies, the production value of automotive components produced by an applicant for registration as an ACP is the likely total revenue from sales of the automotive components (excluding indirect tax) in the 12 months following the application.

22    Regulation 2.22, which falls under Division 2.5—Conditions of Registration, provides the conditions for continued registration. It states:

2.22 Condition of ACP registration

(1)     It is a condition of registration for an ATS participant who is an ACP (other than an ATS participant mentioned in subregulation (3)) that:

(a)    the ACP produce in Australia at least one kind of automotive component for use as original equipment in at least 30,000 motor vehicles or in at least 30,000 engines and that the production value of the component be at least $500,000; or

(b)     the production value of the automotive components produced in Australia by the ACP as original equipment is at least $500,000 and comprises at least 50% of the production value of all automotive components produced by the ACP.

(2)     In subregulation (1):

(a)     the ACP must meet the requirement in each ATS year following the ATS year in which the ACP’s registration takes effect; and

(b)     the production value of automotive components produced by the ACP is the total revenue from sales of the automotive components (excluding indirect tax) in the preceding 12 months.

(3)     If the ACP:

(a)     had been registered following the Minister’s permission, under regulation 2.8, to apply for that registration; or

(b)     has continuing registration following the Minister’s permission under regulation 2.25;

the ACP must comply with the conditions relating to ongoing registration specified by the Minister in granting that permission.

(Emphasis added.)

23    Regulation 2.25 concerns the Minister’s power to provide an exemption from the conditions of continued registration. It relevantly states:

2.25     Ministerial permission to continue registration in national interest

(1)    An ATS participant, other than an ATS participant registered following the Minister’s permission under regulation 2.8, may seek the Minister’s permission to continue registration as an ATS participant on the basis that the registration would be in the national interest.

(2)    If the Minister is satisfied that, subject to the ATS participant’s meeting all the conditions of registration other than the conditions set out in subregulation (3), it would be in the national interest for the ATS participant to continue being registered, the Minister may, by notice in writing, give that permission.

(3)     Conditions that the Minister does not have to be satisfied the ATS participant is meeting are:

…

(b)     if the ATS participant is an ACP—subregulations 2.22(1) and (2)…

…

(6)     If the Minister grants an ATS participant permission to continue registration, the Minister must, in the decision granting that permission, set out the conditions to which the ongoing registration of the ATS participant is subject.

…

(7)     For the avoidance of doubt, conditions determined by the Minister under subregulation (6) are additional to any other requirements under these Regulations.

(8)     The Minister must not grant an ATS participant permission to continue registration under this regulation for a period of more than 2 successive ATS years.

24    Regulation 3.11(1) provides:

3.11 Sales-based cap for payment of assistance

(1)    For a particular ATS year, the payment of assistants under the Scheme to an ATS participant…must not exceed 5% of the sales value of the ATS participant’s goods and services for the previous year.

(Emphasis added.)

25    Regulation 3.13(1) concerns eligibility for quarterly assistance payments. It provides:

3.13 Quarterly payments

(1)    An ATS participant is entitled to a quarterly payment of assistance if the ATS participant has:

(a)    made an eligible investment or undertaken eligible production in accordance with Division 1.2; and

(b)    made a quarterly return for a quarter within the time permitted under subregulation 3.1(1); and

(c)    complied with the conditions of registration set out in Division 2.5.

(Emphasis added.)

CONSIDERATION

The appeal

26    The appeal turns on questions of statutory interpretation. In Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at 381 [69]-[70] (McHugh, Gummow, Kirby and Hayne JJ) the majority said that the meaning of a provision must be determined by reference the language of the legislation viewed as a whole, and the process of construction must always begin by examining the context of the provision to be construed. They also explained that:

Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions.

ACL’s contentions

27    ACL contended that the Tribunal erred in its interpretation of reg 2.22(2)(b). On ACL’s construction the expression “the preceding 12 months” meant that whether ACL was eligible for continued registration for the 2014 ATS year fell to be assessed at the end of that year looking back over the preceding 12 months, rather than by reference to the 12 months of 2013 as the Tribunal decided.

28    The crux of ACL’s appeal is that reg 2.22(2)(b) is ambiguous because it does not expressly identify the starting point from which to count the preceding 12 month period. ACL noted that reg 2.5 (which concerns initial applications for registration) expressly fixes the starting point from which to count the 12 month period to be used when deciding an application for registration, whereas reg 2.22 does not. Regulation 2.5(3) provides that if an applicant makes an application for initial registration under reg 2.5(1)(a) (relying on production of automotive components in the 12 months preceding the application) then it is the production value in that 12 month period that is relevant to the Secretary’s assessment. Regulation 2.5(4) provides that if an applicant makes an application for initial registration under reg 2.5(1)(b) (relying on the likelihood that it will produce sufficient automotive components in the ensuing 12 months) then it is the likely production value in that 12 month period that is relevant to the assessment.

29    ACL argued that:

(a)    reg 2.22(2)(a) requires that the production value condition be met “in” each ATS year (which it submitted is 2014 in the present case);

(b)    reg 3.11 employs the expression “the previous year” as distinct from “the preceding 12 months” as in reg 2.22(2)(b). It contended that the use of these different expressions in the Regulations gave rise to a rebuttable presumption that the expression in reg 2.22(2)(b) does not mean the same thing as “the previous year”: Scott v Commercial Hotels Merbein Pty Ltd [1930] VLR 75 at 30 (Irvine CJ); Bayley v R [2013] VSCA 295at [47] (Warren CJ, Neave and Coghlan JJ);

(c)    absent clear words to the contrary, measurement of production value in a year would ordinarily use the figures from that year. It noted that the revenue assessment periods in reg 2.5(3) and (4) are co-extensive with the corresponding periods for assessing production volume in reg 2.5(1)(a) and (b);

(d)    “revenue” (from which “production value” is derived) “in” a year is ordinarily the figure reached at the end of the year; and

(e)    as in reg 2.5(3), the reference point for counting back a preceding period is ordinarily the point at which the calculation takes place, which in respect of reg 2.22 ACL argued is the end of the 2014 ATS year.

30    ACL submitted that its construction of reg 2.22(2)(b) is supported by reg 2.25 (concerning Ministerial exemptions) and by the terms of the Exemption itself. In this regard it argued that:

(a)    the Tribunal’s construction of reg 2.22(2)(b) gives rise to an inconsistency between different Regulations. ACL argued that reg 2.22(3)(b) means that an ACP which has the benefit of an exemption under reg 2.25 is only required to comply with the conditions specified by the Minister, and that the Exemption permitted ACL to continue its registration until 31 December 2013 without any requirement to comply with the production value condition in reg 2.22(2). ACL submitted that the Tribunal’s decision brought the assessment of production value back into the period when ACL had the benefit of the Exemption and that, by requiring the assessment of production value by reference to the 2013 year, the Tribunal rendered the Exemption nugatory or denied ACL the full benefit of the Exemption;

(b)    the applicable Guidelines in relation to Ministerial exemptions (“Customer Guideline 9 – Ministerial Permission to Continue Registration in the National Interest” (2013)) (“Customer Guidelines”) make no reference to a requirement for an exemption-holder, at the end of the period of exemption, to meet the conditions of continued registration set out in reg 2.22. They specify instead that an ATS participant can continue its registration if it satisfies the eligibility requirements in reg 2.5; and

(c)    the Tribunal’s construction of reg 2.22(2)(b) creates a divergence between the conditions for initial registration in reg 2.5 and the conditions for continued registration in reg 2.22. ACL submitted that if a participant fell short of producing automotive components with a production value of $500,000 during a period of exemption but expected to meet the production value condition the following year (as in the present case), it would be:

(i)    ineligible to continue its registration the following year because it would not satisfy reg 2.22(2)(b); but

(ii)    eligible to register under reg 2.5(1)(b)(i).

ACL said that on the Tribunal’s construction the only way it could have remained registered after the Exemption would have been to deregister itself in 2013 during the period of the Exemption and to make a fresh application for registration under reg 2.5(1)(b) to commence in 2014, which it described as a “contortion”.

31    ACL submitted that the Regulations create a beneficial scheme and they should be construed so as to give the fullest relief that a fair reading of the words will allow: Bull v Attorney General (NSW) [1913] HCA 60; (1913) 17 CLR 370 at 384 (Isaacs J); Re Butterworths Pty Ltd v Minister for Business and Consumer Affairs (1979) 2 ALD 612 at 619 (SM Todd). On this submission the Tribunal should not have construed the ambiguous reg 2.22(2)(b) so as to negate other unambiguous provisions in the Regulations.

The proper construction

32    We do not accept ACL’s contentions. In our view reg 2.22 requires the Secretary to decide whether a participant is eligible for continued registration by reference to the production value (and volume) achieved in the 12 months preceding the year for which registration is sought. ACL sought registration for the 2014 ATS year and the assessment must therefore be by reference to production in 2013.

33    We say this, first, having regard to the text of reg 2.22(2)(b):

(a)    the word “preceding” in the expression “the preceding 12 months” refers adjectivally to the ATS year under consideration. Regulation 1.5 defines the 2014 ATS year to run from 1 January 2014 to 31 December 2014. In our view the 12 months “preceding” that year are the 12 months of 2013;

(b)    the word “preceding” indicates a backward-looking assessment. Had the drafters intended that satisfaction of the production value condition was to be assessed by reference to production value to be achieved in the forthcoming year it would have been straightforward for the Regulations to do so;

(c)    reg 2.22 prescribes conditions of registration which indicates that a participant wishing to obtain continued registration must satisfy those requirements to do so. We note too that 5(1)(b) of the ATS Act refers to the establishment of a scheme to pay monies to participants “if certain conditions are satisfied”. There is nothing to indicate that the Scheme is intended to allow a participant to enjoy the benefits of continued registration and receive quarterly assistance payments unless it first satisfies the relevant conditions.

34    Second, reading reg 2.22 in its context points the same way.

35    While we accept ACL’s contention that the wording in reg 2.5(1)(b)(i) stands in contrast to that in reg 2.22(2)(b) we do not consider this assists ACL’s case. Regulation 2.5(1)(b) expressly provides that an applicant may apply for initial registration if it can demonstrate to the satisfaction of the Secretary that, in the forthcoming 12 months, it is “likely to produce” sufficient automotive components to meet the volume and production value conditions. It would have been straightforward for the drafters to include a similar provision in relation to continued registration, yet reg 2.22 contains no such words.

36    The Regulations regarding quarterly assistance payments also indicate that entitlement to such payments does not arise until compliance with the conditions for registration has been established. Registration does not, by itself, confer entitlement to assistance payments under the ATS (reg 2.19) and participants must comply with Part 3 “Payments under the Scheme”. Regulation 3.1(1) states that a Scheme participant must provide a quarterly return to the Secretary within 45 days (or within such longer period as the Secretary in special circumstances allows) after the end of each quarter in an ATS year, but the provision of a quarterly return does not, by itself, confer entitlement to assistance (reg 3.2).

37    It is significant that reg 3.13(1)(c) provides that a participant is entitled to a quarterly assistance payment if it “has…complied” with the conditions of registration set out in Division 2.5 (which includes reg 2.22). By use of the past tense, reg 3.13(1)(c) shows that a participant is required to have complied with the conditions for continued registration before any entitlement to a quarterly payment arises. This confirms that, contrary to ACL’s submissions, quarterly assistance payments are not to be made “in advance” and eligibility for continued registration is not established by a backward-looking assessment made at the end of the ATS year for which registration is sought.

38    Again, it would have been straightforward for reg 3.13 to provide that the Secretary could make quarterly payments if satisfied that an applicant for continued registration is likely to comply with the conditions in that ATS year, but it does not.

39    There is little force in ACL’s submission that the word “in” in reg 2.22(2)(a) links the assessment task to the ATS year for which registration is sought. That word can just as readily be understood as requiring assessment of the production value in each year to determine eligibility for registration in the next. In any event, the intractable meaning of the words “in the preceding 12 months” in reg 2.22(2)(b) supersedes any such suggestion arising from subreg (2)(a).

40    We do not accept ACL’s contention that the use of the expression “the previous year”, in reg 3.11(1) means that the expression “the preceding 12 months” in reg 2.22(2)(b) has a different meaning. We do not cavil with ACL’s contention that there is a rebuttable presumption that, where drafters could have used the same words but chose to use different words, the intention is to change the meaning. However, read in their respective contexts we consider the two expressions plainly mean the same.

41    Third, although this is not a strong point, ACL’s construction of reg 2.22(2)(b) gives rise to practical difficulties in the administration of the ATS which weighs against ACL’s construction. As we have said, ACL’s construction requires the Secretary to make quarterly assistance payments in advance of determination of a participant's compliance with the conditions of continued registration, with compliance to be established by a backward-looking assessment at the end of the ATS year for which registration is sought. The basis for such payments is inherently uncertain and may give rise to difficulties in recovering payments that are later shown to have been wrongly made.

42    Recovery of overpayments is governed by Part 4 of the Regulations. It is unnecessary to descend to the detail of those provisions, save to say that none of them countenance the possibility that a participant may be overpaid because it failed to achieve registration. It suffices to note that if assistance payments are made “in advance” of registration being determined, and the participant is later unable to show an entitlement to have received them, difficulties may arise in recovery of such payments. ACL’s position is illustrative. At all material times it was in receivership and, had it received payments to which it had no entitlement, there would have been a real prospect that the Secretary would merely have joined the ranks of ACL’s unsecured creditors in relation to any monies sought to be recovered.

43    Fourth, ACL’s submissions regarding the beneficial nature of the ATS do not take the appeal far. As a general proposition we accept that the Regulations should be construed so as to give the fullest relief that a fair reading will allow, but the Court must construe the provisions according to conventional principles of statutory interpretation. In our view the meaning of reg 2.22(2)(b) is plain. It must also be accepted that the drafters will have been concerned to ensure that persons who are eligible to benefits are included, and also to ensure that those who are not eligible are excluded: Luttick Australia Pty Ltd v Export Development Grants Board [1985] FCA 173; (1985) 5 FCR 589 at 594 (Toohey J); Rose v Secretary, Department of Social Security [1990] FCA 59; (1990) 21 FCR 241 at 243-244 (Lockhart, Gummow and Einfeld JJ); Robert Bosch (Australia) Pty Ltd v Secretary, Department of Innovation, Industry, Science and Research [2011] FCA 1133; (2011) 197 FCR 374 at [74] (Murphy J).

44    Fifth, we do not accept ACL’s submissions as to the operation of the Exemption. ACL contended that the Exemption was rendered nugatory, or at least that ACL would be denied its full benefit, if ACL’s eligibility for continued registration in 2014 was assessed by reference to its 2013 production. However, the Exemption provided:

Subject to all conditions being met, ACL will continue to be registered in the ATS in the national interest until 31 December 2013. If by this time ACL meets the annual registration requirement, its registration will revert back to the standard ATS registration.

(Emphasis added.)

45    The Exemption was granted at the start of 2012 for the maximum allowable length of two successive years (reg 2.25(8)), and it expressly related to the 2012 and 2013 ATS years. Under the Exemption ACL was allowed to maintain its registration in the ATS through those two years notwithstanding its failure to satisfy the reg 2.22 conditions in 2011 and in 2012. The Exemption was not rendered nugatory. Through it ACL received almost two years of assistance payments which it otherwise would not have been eligible to receive.

46    The Exemption did not (and could not) extend to 2014 in the same manner, and once 2013 had passed, the exemption from compliance was at an end. Essentially, the Exemption allowed ACL up to two years to get its house in order. If ACL was able to meet the volume and production value conditions by 31 December 2013, its registration would (to use the words of the Exemption) “revert back to the standard ATS registration”. If it did not meet the necessary level of production value by the end of 2013 then it would not be eligible for continued registration in the 2014 ATS year. By the end of 2013, ACL had not brought its production up to the point where it met the threshold levels of volume and production value in that year, producing only 14,583 components with a production value of $419,034.

47    Sixth, given the likelihood that it would not meet the volume or production value requirements in respect of 2013, ACL could nonetheless have withdrawn from the ATS in that year and submitted a fresh application for registration for 2014. This would have allowed it to take advantage of the expressly forward-looking conditions in reg 2.5(1)(b). Although somewhat contrived, this approach is contemplated in the Customer Guidelines, which provide that following a period of exemption a participant “can still continue its registration if it can meet the normal eligibility requirements set out in…[reg] 2.5(1)(a) or (b)”.

The notice of contention

48    Although the reasoning is not clear, the Tribunal construed reg 2.22(1)(a) to mean that eligibility for continued registration in 2014 by reference to the volume condition fell to be assessed at the end of that year, rather than by reference to 2013 production. That is, compliance with the volume and production value conditions was to be assessed in different time periods. This is apparent (at [51]) where Tribunal said that:

…in the 2014 ATS year, ACL had to:

(1)    meet the production volume of 30,000 Engine Bearing Sets in the 2014 ATS year; and

(2)    meet the production value of $500,000 assessed by reference to the total revenue from sales in the automotive components in the 2013 ATS year i.e. in the preceding 12 months.

To similar effect (at [52]) the Tribunal indicated that for continued registration in 2014 ACL was required to meet the volume condition “during the course of that year”.

49    In the notice of contention the Secretary alleged that the Tribunal erred in so construing reg 2.22(1)(a). ACL accepted that the Tribunal erred in finding that the assessment of compliance with the volume and production value conditions for a given ATS year is to be undertaken by reference to different 12 month periods, but it reiterated the argument that the assessment was to be undertaken at the end of the relevant ATS year, looking back at production in the 12 months preceding that point.

50    As we have said, although strictly unnecessary to decide, in the circumstances it is appropriate to note that in our respectful view the Tribunal erred in this regard. We consider that for the Regulations to operate coherently as a whole the assessment as to whether a Scheme participant satisfies the volume condition under reg 2.22 must be undertaken in respect of the same time period as the assessment as to whether it satisfies the production value condition, by reference to production in the 12 months preceding the year for which registration is sought.

51    We say this, first, because reg 2.22(1)(a) provides:

It is a condition of registration for an ATS participant who is an ACP…that:

(a)    the ACP produce in Australia at least one kind of automotive component for use as original equipment in at least 30 000 motor vehicles or in at least 30 000 engines and that the production value of the component be at least $500 000...

The automotive components referred to must be the same components referred to in reg 2.22(2)(b) which, together with the rolled-up drafting of the conditions in reg 2.22(1)(a), indicates that compliance with the volume and production value conditions is to be assessed over the same time period. If the drafters intended that the volume and production value conditions be assessed by reference to different time periods we would expect the Regulations to expressly so provide, and they do not. In our view there is little or nothing in the Regulations to indicate that it is appropriate to bifurcate, between different years, the assessment of compliance with the volume and production value conditions for the same components.

52    Second, reg 2.22(2)(a) refers to the volume and production value conditions in reg 2.22(1)(a) as a “requirement”, in the singular, without differentiating between the conditions in respect to the relevant time period for assessment.

53    Third, as we have said, reg 3.13(1)(c) unambiguously shows that before ACL could receive quarterly assistance payments in 2014 it was required to satisfy the Secretary that it had complied with the conditions for registration in Division 2.5, (in which Division reg 2.22(1)(a) appears). This shows that compliance with the volume condition had to be assessed by reference to 2013 production.

54    Fourth, reg 1.6(2) also points away from bifurcating the assessment of production volume and value in respect of the same automotive components. It provides:

A person is taken to produce a thing only at the time when the person sells the thing produced.

When reg 2.22 is read with reg 1.6(2), there is no “production” of a component under reg 2.22(1)(a) until that component has been sold, at which time production value is also ascertainable. This binding of the concepts of production and value to the same occasion, the point of sale, indicates that the assessment under reg 2.22 is to be undertaken by reference to the same time period.

55    Fifth, the Tribunal’s approach to reg 2.22(1)(a) gives rise to practical difficulties in the administration of the ATS which, although not an important point, also weighs against that construction. As we have said, if the Secretary is required to make quarterly payments “in advance” of deciding whether the participant is eligible for continued registration in that year there may be difficulties in recovering payments from participants who are later unable to show an entitlement.

CONCLUSION

56    For these reasons the appeal is dismissed and ACL must pay the Secretary’s costs.

Associate:

Dated:    29 January 2016