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FEDERAL COURT OF AUSTRALIA

Port of Brisbane Corporation v Deputy Commissioner of Taxation

[2004] FCA 1232

Moore J

24 September 2004 - Sydney

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Moore J.    This is an appeal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) from a decision of the Administrative Appeals Tribunal (the tribunal) of 3 March 2004. The tribunal determined that diesel fuel used in some aspects of the dredging operations of the Port of Brisbane Corporation (the corporation) was used "in marine transport" and diesel fuel used in other aspects was not. The effect of this determination was that the corporation was entitled to a diesel fuel rebate under the Customs Act 1901 (Cth) or the Excise Act 1901 (Cth) in relation to diesel fuel used in some aspects of its dredging operations only.

  2  While the present proceedings are described in s 44 as an appeal, they are proceedings in this court's original jurisdiction and are limited to questions of law. The facts are not in dispute and it is convenient to repeat the tribunal's account. The corporation is a State government owned corporation established in 1994. It is responsible for the operation and management of the Port of Brisbane. The corporation's activities include the dredging of navigation channels in the Port of Brisbane and other ports and waterways to remove sand, silt and other spoil to ensure the efficient movement of ships and cargo. The spoil is either carried away by the dredging vehicle or pumped ashore through pipes.

  3  The corporation maintains a fleet of dredges of varying configurations to carry out this dredging. The corporation used the following diesel fuel powered dredges:

 (i)  The "SD Brisbane", a trailer suction hopper dredge, which is a self-propelled, crewed vessel 84 metres long and 16 metres wide which travels to the dredging site, and then deploys 2 drag arms that trail behind the vessel along the seabed. A vacuum pump sucks the spoil from the seabed into a hopper in the hold of the vessel. The water is then drained from the spoil. When the hopper is full, the vessel transports the spoil to a disposal site where it is either dumped through hydraulically operated valves in the bottom of the hopper or pumped ashore through long floating hoses. Diesel fuel powers the propulsion, pumping and other mechanical activities of the vessel. The "SD Brisbane" is best suited to dredging long straight channels.

 (ii)  The "Sir Thomas Hiley", a trailer suction hopper dredge of the kind described in (i) above, was used by the corporation until approximately November 2000, when it was replaced by the "SD Brisbane".

 (iii)  The "Amity", a cutter suction dredge, which is a non-propelled barge 72 metres long and 14 metres wide with a cutter arm extending to the seabed. The arm rotates, cutting the seabed, and the displaced spoil is sucked up by a vacuum pump and pumped ashore using a floating hose and pipes. The hose or pipe is directed to a dumping area on nearby land under reclamation. The barge moves through the area being dredged using a system of anchors and winches together with hydraulic "spuds", steel pylons that rest on the seabed. Diesel fuel powers the cutter arm, pumps and other mechanical equipment. Because of its heavy duty metal cutter, the "Amity" is used for dredging large areas of more compacted material such as berth pockets or the areas in front of wharfs.

 (iv)  The "Juno", a cutter suction dredge of the kind described in (iii) above, which was used by the corporation until around July 2001, when it was replaced by the "Amity".

 (v)  The "Ken Harvey", a grab dredge, which is a non-propelled barge 22 metres long and 9 metres wide that uses a grab bucket fitted to a crane to grab and lift spoil from the seabed and deposit it in a separate hopper barge moored alongside. When full, the hopper barge is towed to a disposal site and emptied by dumping the spoil through hydraulic opening doors in the bottom of the barge. The barge moves through the area being dredged using a system of anchors and winches. Diesel fuel powers the crane and grab bucket, the winches and other mechanical equipment.

  4  In 2001, 2002 and 2003, the corporation lodged a number of applications for a diesel fuel rebate which, in various ways, claimed rebates for diesel used in the dredging operations of the "SD Brisbane", the "Sir Thomas Hiley", the "Amity" and the "Ken Harvey". These claims were refused and objections disallowed. The corporation sought the review of those decisions by the tribunal.

  5  The decision of the tribunal of 3 March 2004 was in the following terms:

   

The tribunal varies the decisions under review by determining that diesel fuel:

 (a)  used by the self-propelled trailer suction dredges in travelling to and from dredging operations or dump sites; and

 (b)  used to tow the cutter suction or grab dredges to and from dredging operations or dump sites;

 

is used by the corporation in marine transport for the purposes of s 164(1) of the Customs Act 1901 (Cth) and s 78A(1) of the Excise Act 1901 (Cth) so that a rebate of duty is payable.

 In effect, the tribunal concluded that the corporation was entitled to a diesel fuel rebate in relation to diesel fuel used for some of its dredging operations but not all of them.

  6  Before explaining how the tribunal reached this conclusion, it is convenient to set the relevant legislative provisions in force during 2001, 2002 and 2003. For that purpose, it is sufficient to refer only to s 164 of the Customs Act 1901 (Cth) (and I do so from this point) as the relevant provisions of the Excise Act 1901 (Cth) were in identical terms or imported relevant provisions of the Customs Act 1901 (Cth). Section 164 of the Customs Act 1901 (Cth) and the relevant provisions of the Excise Act 1901 (Cth) have been repealed and rebates of this character are now dealt with by the Energy Grants (Credits) Scheme Act 2003 (Cth).

  7  Subsection (1AA) of s 164 of the Customs Act 1901 (Cth) provided:

   

(1AA) This section makes provision for a rebate to be payable in respect of diesel fuel purchased for certain usages. In particular (but without limiting the effect of the provisions), it sets out:

 (a)  the particular usages of diesel fuel that would entitle a person to apply for rebate (subsection (1)); … .

 The circumstances in which the use of diesel fuel attracted a rebate were set out in subs (1) which provided:

   

(1) A rebate is, subject to subsections (2) and (4A) and to such conditions and restrictions as are prescribed (being conditions and restrictions that relate to goods generally, to goods included in a class of goods that includes diesel fuel or to diesel fuel only), payable to a person who purchases diesel fuel for use by the person:

 (a)  in mining operations (otherwise than for the purpose of propelling any vehicle on a public road);

 (aa)  in primary production (otherwise than for the purpose of propelling a road vehicle on a public road);

 (ab)  in rail transport (otherwise than for the purpose of propelling a road vehicle on a public road) in the course of carrying on an enterprise;

 (ac)   in marine transport (otherwise than for the purpose of propelling a road vehicle on a public road) in the course of carrying on an enterprise;

 (ad)  at particular premises to generate electricity for use in the course of carrying on, at those premises, an enterprise that:

 (i)  has, as its principal purpose, the retail sale of goods or services or the provision of hospitality; and

 (ii)  does not have, at those premises, ready access to a commercial supply of electricity;

 (b)  at residential premises to generate electricity for use in:

 (i)  providing food and drink for;

 (ii)  providing lighting, heating, air-conditioning, hot water or similar amenities for; or

 (iii)  meeting other domestic requirements of;

    residents of the premises;

 (c)  at a hospital or nursing home or at any other institution providing medical or nursing care; or

 (d)  at a home for aged persons.

 (Emphasis added.)

  8  Subsection (7) contained definitions. The expression "marine transport" was defined:

   

marine transport includes transport by vessels in or on fresh water, but does not include any transport relating to forestry.

 The definition of "mining operations" in the subsection made reference to dredging as an activity (undertaken for specified purposes) not comprehended by that expression. The definition commenced:

   

mining operations means:

 (a)  exploration or prospecting for minerals, or the removal of overburden and other activities undertaken in the preparation of a site to enable mining for minerals to commence; or

 and was followed by paragraphs concluding with (w) identifying the circumstances in which diesel fuel might be used which would constitute "mining operations" as defined. The definition included further paragraphs identifying circumstances in which diesel fuel might be used which would not constitute "mining operations". Those paragraphs commenced:

   

… but does not include:

 (x)  quarrying or dredging operations to the extent that the purpose of the operations is to obtain materials for use in building, road making, landscaping, construction or similar purposes; or (Emphasis added.)

  9  Subsection (2) of s 164 made it clear that the entitlement to a rebate only arose from actual use for a specified purpose or activity. That subsection provided:

   

(2) A person is not entitled to be paid diesel fuel rebate, or to retain diesel fuel rebate paid to the person, in respect of diesel fuel purchased by the person for use by the person in a manner referred to in subsection (1) that is specified in the application for that rebate if, in fact, the person:

 (a)  uses the fuel otherwise than in that manner; or

 (b)  sells or otherwise disposes of the fuel; or

 (c)  loses the fuel (whether because of accident, theft or any other reason).

  10  Various rates of rebate were specified in s 164. Subsection (4C) provided that use in marine transport attracted the same rate of rebate as use in primary production. The subsection provided:

   

(4C) The rebate payable under subsection (1) to a person in respect of diesel fuel purchased by the person for use in a manner referred to in paragraph (1)(ab) or (ac) (rail or marine transport) or in a manner referred to in paragraph (1)(ad) (generation of electricity for retail or hospitality purposes) is payable at the rate that the rebate would be payable if the use of the diesel fuel had been in primary production.

 Subsection (5) specified the rates and provided:

   

(5) Subject to subsections (5AA) and (5AC), the rebate payable under subsection (1) to a person in respect of any diesel fuel purchased by the person for use in a manner referred to in a paragraph of that subsection is payable at the rate of:

 (a)  in the case of paragraph (1)(a) - $0.07619 per litre;

 (b)  in the case of paragraph (1)(aa) - $0.10007 per litre;

 (c)  in the case of paragraph (1)(b) - $0.07619 per litre;

 (d)  in the case of paragraph (1)(c) - $0.07619 per litre;

 (e)  in the case of paragraph (1)(d) - $0.07619 per litre.

 It can be seen that the rate specified for use in mining operations ((a) above) was different to the rate for use in primary production ((b) above). The rate for primary production was, because of subs (4C), also the rate for use in marine transport.

  11  I turn to consider the tribunal's reasons for decision. It set out the critical legislative provisions: (s 164(1)(ac) and the definition of "marine transport" in s 164(7). It then set out the terms of a bulletin published by the Australian Taxation Office (Excise bulletin EB2000/3 "Diesel Fuel Rebate Scheme"). As quoted, the bulletin stated, amongst other things, that the use of diesel fuel in the operations of a dredge was not eligible for the rebate perhaps in the mistaken belief that the qualification in the definition of "mining operations" operated as an exclusion in the legislative scheme more generally. The tribunal said of the bulletin (Re Port of Brisbane Corporation and DCT (2004) 55 ATR 1029 at 1034-1035):

   

[16] The tribunal assumes the Excise Bulletin constitutes departmental policy. The tribunal notes that in the case of relevant policy of a government department or agency, in the absence of a statutory obligation to do so, the Tribunal will ordinarily apply that policy unless it is unlawful or its application would cause injustice, or there are other cogent reasons for not applying it in the circumstances of the particular case: Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 645.

  12  The tribunal then set out what it understood to be the issue for determination. It said (at ATR 1035):

   

[19] Essentially, therefore, the question to be determined by the tribunal is one of statutory interpretation. How is the expression "use in … marine transport" to be interpreted? Does it include the relevant activities of the corporation's dredges?

 This paragraph stated correctly, in my opinion, the issue raised. The tribunal then referred to concessions of the Deputy Commissioner of Taxation (the Commissioner) which were to the effect that a rebate was payable to the corporation in respect of diesel used to propel the trailer suction hopper dredges (the "SD Brisbane" and the "Sir Thomas Hiley" - both self-propelled dredges) from the dredging site to the disposal site (of the spoil recovered by the dredging) and diesel used to propel a self-propelled dredge to and from the point of dredging (and from port to port).

  13  The tribunal then noted that because of these concessions (at ATR 1035):

   

… the issue to be determined was narrowed to whether the use of diesel while a dredge is engaged in dredging processes can properly be characterised as use in marine transport. If the answer to this question is "Yes", then diesel fuel powering the pumps, winches and other on-board equipment used to extract spoil from the seabed, transfer spoil to the vessel and dispose of spoil from the vessel would be excluded. Thus, the entirety of the operations of the cutter suction dredges and the grab dredges would be excluded, and the operations of the trailer suction hopper dredges involving the actual dredging process.

 The tribunal referred to authority indicating the legislation should be construed beneficially rather than restrictively and to another authority concerning the meaning of the word "in", namely Chief Executive Officer of Customs v Dyno Wesfarmers Ltd (1997) 73 FCR 1.

  14  After setting out the submissions of the parties, the tribunal explained its reasoning (at 1037-1038):

   

[31] The tribunal agrees with the parties that the phrase "use in … marine transport" should be accorded its ordinary and natural meaning. In this context, the normal association of "marine" with the sea is extended by the definition of "marine transport" in s 164(7) to include fresh water. That same definition, which "includes transport by vessels in or on fresh water", while not an exhaustive definition because it is extending the ordinary meaning of "marine" to include an association not only with sea water but also with fresh water, nevertheless refers to transport by vessels.

 

[32] In the tribunal's opinion, the ordinary meaning of "marine transport" does not include the conveying of things via a pipe that is in, that is, passes through, water or floats on water. Otherwise, one can foresee it might be argued that the pumping of natural gas or oil from an off-shore drilling rig to shore via a pipeline could constitute "marine transport". In the tribunal's opinion, the key to the meaning of "marine transport" lies in the meaning of the word "transport". The Concise Macquarie Dictionary, 3rd ed (1988) lists as the sixth meaning of transport:

   

6. a means of transporting, as a ship, truck or plane used for transporting soldiers or miliary stores, or convicts.

 

The first meaning of transport in the Oxford English Dictionary is:

   

1. the action of carrying or conveying a thing or person from one place to another, conveyance.

 

The use of the word "transport" in the phrase "marine transport" suggests a conveyance - something which does the conveying - a vehicle or vessel or aircraft which moves through its particular medium (land, water, air) carrying a thing or person. The medium in this case is, of course, water. Thus, in the tribunal's opinion, "marine transport" should in this instance be interpreted as meaning the act of conveying a thing or a person from one place to another through or over water using some kind of vessel or vehicle.

 

[33] The parties agree and the tribunal accepts that the word "in" in this context means "in the process or act of". On the one hand, the corporation contended that diesel used to power dredging operations was being used to facilitate marine transport by maintaining navigable channels and was therefore used in the process of marine transport. On the other hand, the respondent contended that the process of marine transport does not include activities designed to facilitate marine transport.

 

[34] The tribunal agrees with the latter view. For diesel to be used in the process or act of marine transport, the use must be associated with the conveying of a thing or person from one place to another through or over water using some kind of vessel or vehicle. To break the link with conveying using a vessel or vehicle would, in the tribunal's view, extend the meaning of the phrase beyond its ordinary or natural meaning even when construed beneficially.

 

[35] Thus the tribunal agrees, as the respondent has conceded, that diesel used by the corporation in powering the self-propelled trailer suction dredges in travelling to and from dredging operations or dump sites or used in towing the cutter suction or grab dredges to and from the dredging operations or dump sites should be considered as being used in marine transport because the diesel is being used to power a vessel conveying dredging machinery or the spoil generated by the dredging activities from one place to another. However, diesel used in powering dredging activities where there is no conveying by a vessel involved, is not used in marine transport so as to attract a fuel rebate.

 

[36] The tribunal therefore varies the decisions under review by determining that diesel fuel:

 (a)  used by the self-propelled trailer suction dredges in travelling to and from dredging operations or dump sites; and

 (b)  used to tow the cutter suction or grab dredges to and from dredging operations or dumpsites;

 

is used by the corporation in marine transport for the purposes of s 164(1) of the Customs Act 1901 (Cth) and s 78A(1) of the Excise Act 1901 (Cth) so that a rebate of duty is payable. (Emphasis added.)

  15  The construction of the legislation adopted by the tribunal at [32] of its reasons and, in particular, the emphasised passage, was, in my opinion, the correct construction.

  16  In seeking to impugn the decision of the tribunal, the primary focus of the submissions of counsel for the corporation, was on the approach taken by the tribunal to ascertain the meaning of the expression "in marine transport" and the meaning it adopted at [32] of its reasons. It was submitted that the tribunal erred in calling in aid the bulletin in determining the meaning of the expression. Counsel for the corporation also submitted that the tribunal erred in suggesting that the reference to "vessel" in the definition of "marine transport", a definition extending the expression's meaning, indicated that the expression only comprehended transport involving the use of a vessel or vehicle. Additionally, the tribunal erroneously referred to an inapt definition of "transport" in the Concise Macquarie Dictionary, 3rd ed. The appropriate defined meaning in that dictionary was "the act or method of transporting or conveying; conveyance". Further, the expression "in marine transport" should have been beneficially construed and not given a narrow meaning. Properly construed the expression comprehended activities necessary to ensure waterways used by vessels remained navigable.

  17  It may be accepted that the provisions presently under consideration reflect a legislative policy of encouraging, relevantly, marine transport and should not be given a narrow application: see Collector of Customs v Cliffs Robe River Iron Associates (1985) 7 FCR 271 at 275, Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 289 and Collector of Customs v Rottnest Island Authority (1994) 48 FCR 177 at 189; 119 ALR 406 at 417-418. Putting it slightly differently, the provisions are intended to benefit operations of the type identified by the legislature: see Re Tas Island Shipping Pty Ltd and Collector of Customs (1989) 11 AAR 121 at 123. Accordingly, a starting point in ascertaining the meaning of the expression "in marine transport" might conveniently be what activity the legislature was encouraging by providing for the rebate.

  18  The words used to describe the activity, namely "in marine transport", the definition of the expression "marine transport" and the context in which it appeared provide some indication of the beneficial reach of the provisions intended by the legislature.

  19  The word "in" found in similar formulations in diesel fuel rebate legislation has been viewed as meaning "in the process or act of": see Chief Executive Officer of Customs v Dyno Wesfarmers Ltd (1997) 73 FCR 1 at 5. The definition of "marine transport" is, as discussed below, one of extension. However, the definition does suggest fairly clearly the word "marine" was intended to be a reference to transport in or on the sea. The word "transport" in the expression probably has the meaning suggested by counsel for the corporation. That is, the act, action or method of transporting or conveying a thing or person. Accordingly, the use of diesel "in marine transport" is likely to have been intended to comprehend the use of diesel in the process or act of transporting or conveying a thing or person in or on the sea as well as, by operation of the definition, in or on fresh water. However I do not think that the expression was intended to comprehend transportation where the medium of transport was sea or fresh water (as, for example, a slurry of sorts in a pipe) or where the surrounding environment in which the transportation occurred was sea or fresh water (in, for example, a pipe immersed in water).

  20  As noted earlier, the statutory definition extends the plain or ordinary meaning of marine transport. That is apparent first from the use of the word "includes": see Pearce and Geddes, Statutory Interpretation in Australia, 5th ed at 6.56, and secondly from the fact that the word "marine" ordinarily concerns or pertains to the sea (and thus salt water in contradistinction to fresh water) and the definition extends the expression from transport in or on the sea, to transport in or on fresh water (presumably lakes, rivers and other inland waterways). However, in my opinion, the reference to "transport by vessels" in the extended definition indicates what parliament intended, namely, that the expression "in marine transport", as it concerns transport in or on the sea, is directed to transport by vessels. Were it otherwise, the expression "in marine transport" would comprehend transport in or on the sea whether by vessels or other means but transport in or on fresh water by vessels only. While the definition does not use the word "only", it is framed in a way which suggests this limitation. It is difficult to discern why the legislature would have created this apparent anomaly which would arise if transport in or on the sea was not limited to transport by vessels.

  21  Extrinsic material tends to point to the same conclusion though its significance should not be overstated. The Bill as originally drafted referred to "in marine use" but this expression was subsequently amended to refer to "in marine transport" which is an expression narrower in its scope. The former would more clearly comprehend dredging operations and the latter would not do so obviously.

  22  In the end, the case of the corporation amounted to a contention that the tribunal misconstrued s 164(1)(ac) and, in particular, the expression "in marine transport" or a contention that it failed to recognise that the facts, as found, concerning all aspects of the operation of its dredges were comprehended by the expression "in marine transport". However, as I have already discussed, I am satisfied that the tribunal did not misconstrue s 164(1)(ac). In addition, it was open to the tribunal to conclude that the use of diesel for the immediate purpose of retrieving spoil from the bed of the river was not a use "in marine transport" while accepting that the movement of the self-propelled dredges to and from locations where dredging was undertaken (and from port to port) and from those locations to points where spoil was discharged did involve such a use.

  23  I accept it might conceivably have been open to the tribunal to have concluded that the use of diesel for the immediate purpose of retrieving spoil from the bed of the river was use "in marine transport". It might have been characterised, at least in relation to the self-propelled dredges, as a process analogous to loading a cargo or container ship using an onboard crane. Accordingly it might have been viewed as an activity ancillary to, but part of, "marine transport."

  24  It is a vexed question whether in any given situation, it is a question of law whether facts as found are within a statutory description: see the discussion of Gleeson CJ and Gummow and Callinan JJ in Vetter v Lake Macquarie City Council (2001) 202 CLR 439 at [24]-[27]; 75 ALJR 578 583-584; 178 ALR 1 at 8-9, of Kirby J (at CLR [75]; ALJR 592; ALR 21) and of Hayne J (at CLR [108]; ALJR 599; ALR 30). However in the present case I should give considerable weight to the approach of the full court in BHP Billiton Petroleum Pty Ltd v Chief Executive Officer of Customs (2003) 129 FCR 31; 52 ATR 491. That matter also concerned rebates for the use of diesel fuel. Vessels using diesel fuel were involved, in various ways, with oil and gas exploration on the Northwest Shelf and in the Timor Sea. The vessels were used to take supplies and personnel to and from offshore platforms and to tow rigs from place to place. In issue was whether that use of diesel was "in mining operations" having regard to elements in the lengthy definition of that expression (part of which was set out earlier). The following parts of that definition were relevant:

   

mining operations means:

 (a)  exploration or prospecting for minerals, or the removal of overburden and other activities undertaken in the preparation of a site to enable mining for minerals to commence; or

 (b)  operations for the recovery of minerals, being:

 (i)  mining for those minerals including the recovery of salts by evaporation; or

 (ii)  the beneficiation of those minerals, or of ores bearing those minerals;

    and includes:

 …  

 (c)  if minerals, or ores bearing minerals, are beneficiated at a place other than the mining site as an integral part of operations for their recovery:

 (i)  the journey undertaken for the purpose of transporting the minerals or ores from the mining site to that place except to the extent (if any) that the journey involves transportation by sea; and

 (ii)  the return journey of a vehicle, a locomotive or other equipment from that place to the mining site or any part of that journey if it is undertaken for the purpose of repeating a journey referred to in subparagraph (i) or for the backloading of raw materials or consumables for use in a mining operation referred to in paragraph (a) or (b); or

 …  

 (n)  the supply of water solely for use in a mining operation referred to in paragraph (a) or (b) if:

 (i)  the supply is to the place where the mining operation is carried on; and

 (ii)  the water comes from that place or a place adjacent to that place; and

 (iii)  the supply is carried out by the person who carries on the mining operation or by a person contracted by that person to carry out the supply; or

 …  

 (s)  the removal of waste products of a mining operation referred to in paragraph (a) or (b) from the place where the mining operation is carried on;

 …  

    but does not include:

 …  

 (z)  the transport, by any means, of people, equipment or goods to or from a place where a mining operation referred to in any of paragraphs (a)-(w) is, or is to be, carried on, or to or from a place adjacent to that place, other than such transport to the extent that it constitutes the activity described in paragraphs (c), (n) or (s).

 The full court said (at FCR 41 [29]-[30]; ATR 500 [29]-[30]) after analysing the paragraphs of the definition:

   

The above shows the unreality of the applicant's suggested construction. Paragraph (z) and indeed such as paragraphs (c), (n) and (s) should simply be approached (as the tribunal here did) by asking whether, as a matter of ordinary English and of fact, the transport was to or from a place where a mining operation referred to in any of (a) to (w) is, or is to be, carried on.

 

The Tribunal's conclusion that the supply boats and tugs (when the latter are towing rigs from permit area to permit area) transport people or equipment or goods to or from places where a mining operation is carried on were factual conclusions open to it: cf Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389 and Vetter v Lake Macquarie City Council (2001) 202 CLR 439 at [24]-[28].

 It can be seen that the full court apparently viewed the application of legislation, correctly construed, to particular facts as a matter for the tribunal to determine.

  25  However, in these proceedings, even if the tribunal correctly construed the legislation and its application to particular facts was a matter for the tribunal, there remains the question of whether it erred in law in apparently relying on the bulletin and, if so, was it a material error. In a passage of the tribunal's decision quoted at [11] above, it referred to Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634. I apprehend it was not seriously in issue in these proceedings that the tribunal was wrong to suggest, as it did in that passage, the construction of the relevant legislation and its application to the facts (a process which would not involve the exercise of a discretionary power) should be influenced by a declaration by the executive (in the bulletin) about the reach of the legislation.

  26  The decision of Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 concerned a deportation order under the Migration Act 1958 (Cth). The then President of the tribunal, Brennan J, discussed the role of ministerial policy in the exercise of the discretionary power to deport. His Honour concluded that while the tribunal was not bound to apply that policy, it should only depart from it cautiously and sparingly, particularly if parliament had in fact scrutinised and approved the policy. That case does not suggest (nor does any other case of which I am aware) that guidelines or policy documents which express a view about the scope or meaning of legislation provide a tool or aid in construing the legislation. In the present case the bulletin was no more than an expression of an opinion about what the relevant legislation meant after the legislation was enacted: see Hunter Resources Ltd v Melville (1988) 164 CLR 234 at 241; 62 ALJR 88 at 90-91; 77 ALR 8 at 11-12 per Mason CJ and Gaudron J and Irving v Minister for Immigration, Local Government and Ethnic Affairs (1995) 59 FCR 423 at 430. In relying on the material in the way it discussed in the passage quoted above at [11], the tribunal erred in law. It might be characterised as the tribunal having taken into account an irrelevant consideration: see Maritime Union of Australia v Minister for Transport (2000) 100 FCR 58 at 70-71 [31], though it is probably unnecessary and perhaps even undesirable to put it this way. That is because the construction of the legislation did not involve the exercise of a power on which relevant or irrelevant considerations might operate.

  27  The issue then is whether this error was a material one. Counsel for the Commissioner submitted it was not a material error. The relevant principles were recently discussed by a full fourt in Repatriation Commission v Stoddart (2003) 77 ALD 67 at 92 [43]:

   

It is uncontroversial that it is open to the court hearing an appeal under s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) to dismiss the appeal if, having found an error of law, it nonetheless considers: (i) the tribunal's decision was clearly correct on the material before it: see Morales v Minister for Immigration and Ethnic Affairs (1995) 60 FCR 550 at 560-562; Harris v Repatriation Commission (2000) 31 AAR 270; or (ii) the same result would be inevitable on the remitter: Nguyen v Minister for Immigration and Multicultural Affairs (1998) 88 FCR 206 at 213-214. But where "it is possible" for reasons of change of mind, re-appraisal of the evidence, or otherwise that a different result could ensue, the court should be slow to exercise its discretion to shut an applicant out of relief on the basis of futility: Santa Sabina College v Minister for Education (1995) 58 ALR 527 at 540; Arnott v Repatriation Commission (2001) 106 FCR 83; S115/00A v Minister for Immigration and Multicultural Affairs (2001) 180 ALR 561 at 567-568.

 See also Commonwealth Banking Corporation v Percival (1988) 20 FCR 176 at 182; 82 ALR 54 at 59-60.

  28  In the present case, I cannot discount entirely the possibility that the tribunal, in applying the correct construction of the expression "in marine transport", was nonetheless influenced by the bulletin (and its erroneous view of its relevance) in reaching the conclusion it did about which aspects of the corporation's dredging activities attracted the rebate. Had it applied literally and narrowly what was said in the bulletin, it might have concluded that none of the corporation's dredging activities were "in marine transport". But it had to (or at least believed it had to) accommodate the concessions made by the Commissioner. It may have been that for this reason the tribunal reached the conclusion it did about some of those activities being "in marine transport" and not because it considered, independently from what was said in the bulletin, the operation of the expression and reach of s 164(1)(ac) on the facts it found.

  29  In these circumstances the decision of the tribunal should be set aside and the matter remitted to the tribunal to be decided again.