Case: Rheem Australia Ltd v Collector of Customs (NSW) (1988) 78 ALR 285
Outcome: cited
I agree with the Commissioner's construction of par (d). Item 11(I) is divided into three paragraphs of increasing generality. The word "other" is used in a number of places see 11(I)(1)(b), 11(I)(2) ("other, in packages not exceeding 210 litres"), 11(I)(3) ("Other") and 11(I)(3)(d). On an ordinary reading of item 11(I), it seems to me that the word "other" as it is used in each case is intended to describe goods that come within the general item description ("other refined or partly refined petroleum products ..."), other than those that fall within any of the preceding, more specific, paragraphs. In other words, products that do not come within item 11(I)(1) ("recycled petroleum products not elsewhere specified") or 11(I)(2) ("Other, in packages not exceeding 210 litres"), would therefore fall to item 11(I)(3) ("Other"). Similarly, par (d) of item 11(I)(3) seems plainly to apply to any product within item 11(I)(3) that is not covered by pars (a), (b) or (c). A similar construction of the word "other" as it appears in the Customs Tariff Act 1982 (Cth) was adopted in Rheem Australia Ltd v Collector of Customs (NSW) (1988) 78 ALR 285 at 300 (Burchett J). On that construction, item 11(I)(3)(d) applies to any 'refined or partly refined petroleum product' that: &#8226; is not covered by either of the preceding paragraphs, 11(I)(1) or 11(I)(2); &#8226; is not for use in an internal combustion engine; and &#8226; does not contain the required chemical marker. Assuming they are "refined" products, the description just given is applicable to each of the residual oils. 113 Without more, it is difficult to read par (d) in the manner contended for by Caltex. Beyond reference to the extrinsic material, no explanation was offered as to why Parliament would not have clearly identified in the drafting that par (d) was to be limited to non-fuel uses. If "other" means anything, it means other than (a), (b) or (c). Between them, (a), (b) and (c) cover all possible uses. Putting to one side combustion engine fuel (dealt with by (a)), the only remaining discriminant between (b) and (c) on the one hand and (d) on the other is the inclusion of the marker. In my view this accords with precisely what Parliament had in mind when it introduced par (d). It appears from the passages in the extrinsic material quoted above that the marker was to be the "cornerstone" of the regime introduced in 1998. It was given a critical function, in that concessional status, or "free" status for non-fuels, would only apply to products if they contained the marker. This is made clear from the discussion of the proposed item 11(I) in the explanatory memorandum to the 1997 Bill. At page 12, the explanatory memorandum states: The new subitems of item 11 generally have a three tiered excise tariff rate based on the intended use of the products. Products for use otherwise than as fuels and containing the prescribed proportion of marker are dutiable at the rate of "Free". Products for use as a fuel otherwise than in an internal combustion [engine] and containing the prescribed proportion of marker are dutiable at a concessional rate. Products containing no marker and, generally, which are for use in an internal combustion engine are dutiable at the highest rates. 114 Further, the 1997 Act did not include item 11(I)(3)(d), but item 11(I)(1) was as follows: (1) Recycled petroleum products (a) Diesel fuel, and gasoline, on which customs or excise duty has been paid, recovered by a recycling process not being a process of refining Free (b) other (i) containing at least the prescribed proportion of the marker for use otherwise than as a fuel in an internal combustion engine Free (ii) other $0.34697/L (Emphasis added.)