Chief Executive Officer of Customs v El Hajje

Chief Executive Officer of Customs v El Hajje - [2005] HCA 35 - HCA 2005 case summary — Zoe

[43]

The respondent appeared in person at the trial of the proceeding. Oral evidence was given. Customs called those members of the police force who had intercepted the truck being driven by the respondent and those officers described the tobacco found in the truck. Investigators employed by the Australian Taxation Office and the Australian Customs Office gave evidence of an interview conducted with the respondent, of the weight of the cut tobacco, and of the calculation of duty payable in respect of the tobacco. An employee of the truck hire company gave evidence of the hire of the truck.
The respondent gave evidence in his defence. He gave an account of the circumstances which led to his driving the truck. He said that he knew that he was not allowed to carry tobacco and that the man who had loaded the truck with tobacco did not have a licence. The primary judge, however, said of the respondent's evidence that there were many aspects which caused his Honour "to suspect that it is a less than candid and accurate account"[13]. What, if any, consequences follow from that fact is not immediately relevant to the issues that must be determined in this appeal.
The primary judge said in his reasons[14] that the basic facts in the matter were not in dispute. He then identified three matters. First, the primary judge said that the respondent was intercepted in Broadford en route to Sydney in a hired truck containing about 1,500 kilograms of tobacco and four tyres and some wheel rims. Secondly, he said that the cut tobacco portion of the goods was manufactured excisable goods upon which duty had not been paid. Thirdly, he said that the duty payable on the cut tobacco was $165,567.97. Whether the primary judge was right to describe these as matters not in dispute was not relevant to and was not explored in argument in this Court. We therefore express no view about whether the second of these matters (that the cut tobacco was manufactured excisable goods upon which duty had not been paid) may permit or require some examination in the further hearing of this matter on remitter.

[57]

Both parties expressly contended that no question of the constitutional validity of s 144 (or any other provision of the applicable legislation) arises in this appeal. It followed that no notice was given under s 78B of the Judiciary Act 1903 (Cth) that the appeal involved a matter arising under the Constitution or involving its interpretation.
As explained in Re Patterson; Ex parte Taylor[25], the precept that this Court should not decide constitutional questions unless necessary for the decision of the case is a settled practice, dating from the early days of the Court[26]. There is no reason to depart from that practice, and especially is that so when the parties disavow any argument of the point. Moreover, to express a view on a question of the constitutional validity of a federal statute, without providing an opportunity to make submissions to the Attorneys‑General entitled by s 78A of the Judiciary Act to intervene in the proceedings for that purpose, denies procedural fairness to the polities whom those Attorneys represent.
Section 144 must be understood in the context provided by other provisions in that part of the Act (Pt XI) in which it is found. In particular, it is to be understood in the context of s 136 and its provision that every Excise prosecution "may be commenced prosecuted and proceeded with in accordance with any rules of practice (if any) established by the Court for Crown suits in revenue matters or in accordance with the usual practice and procedure of the Court in civil cases or in accordance with the directions of the Court or a Judge". Some aspects of the operation of this provision, and the equivalent provision made in the Customs Act 1901 (Cth)[27], were recently considered by this Court in Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd[28]. For present purposes, what is important is that the averment provisions of s 144 may find application in proceedings in which there are pleadings prepared according to the rules of pleading applicable in civil proceedings.
It is, of course, necessary to notice, and give due weight to, the elaboration of the way in which averments may and may not be used which is contained in the provisions of the section itself. That elaboration owes much to the history of averment provisions in Commonwealth Customs and Excise legislation.

[58]

As originally enacted, both the Act and the Customs Act contained averment provisions[29]. In this respect, they followed what had been done in earlier, colonial Customs legislation[30]. The application of the averment provisions of the Customs Act, and provisions like them, generated a deal of litigation. In 1909, Higgins J said of the then form of s 255 of the Customs Act[31] that it was a provision "meant to throw the burden of proof on the defendant in Customs cases of disproving the charge". He said also[32] that "[i]n all Customs Acts such provisions, apparently subversive of the first principles of justice, are to be found, for experience has shown them to be necessary in consequence of the peculiar difficulty of proving offences against the Customs."
In Baxter v Ah Way and subsequent cases[33], there was a deal of debate about the reach of averment provisions. Did averments reverse the burden of proof? Could a matter of mixed fact and law be averred? What significance was to be attached to an averment if evidence was led on the subject‑matter of the averment?
These questions were addressed in a new form of averment provision introduced into the Act in 1918[34] and into the Customs Act in 1923[35]. The form of averment provisions introduced was substantially identical to the form of s 144 set out earlier in these reasons. First, as is apparent from the text of s 144, an averment is prima facie evidence of the matter or matters averred[36]; it does not alter the incidence of the final burden of proof[37]. Secondly[38], an averment which was not confined to an allegation of fact, but alleged a matter of mixed fact and law, still had work to do - as "prima facie evidence of the fact only"[39]. Thirdly[40], the new form of averment provision made plain[41] that if evidence was led about a matter averred, the averment provisions of the Act still applied and the evidence given by witnesses in support or rebuttal of that matter was to be considered on its merits, the credibility and probative value of the evidence being neither increased nor diminished by reason of s 144[42]. Fourthly, the intent of the defendant could not be averred[43].

[66]

The difficulty that lies beneath the use of the expression "ultimate fact in issue" is that it seeks to draw a distinction between, on the one hand, some or all of the factual elements that must be established in the proceeding and, on the other, some other kinds of fact or evidence. That is not a useful distinction to be drawn in this context. That there is no statutory warrant for drawing the distinction is reason enough not to do so. Moreover, the distinction seems to be no more than the distinction that is drawn in common form rules of court between pleading material facts and the evidence by which those facts will be established.
Reference to cases like Hayes[48] does not support or require the conclusion that material facts or the ultimate fact or facts in issue cannot be averred. The distinction which Fullagar J made in Hayes[49] was between the proposition to be established and the material evidencing the proposition. That is a distinction found in the writings of Bentham[50] and Wigmore[51]. It is a distinction drawn by those authors in the context of describing the law of evidence as being concerned with the relationship between what is to be proved (the proposition to be established, whether as an ultimate fact in issue or subsidiary fact relevant to an issue) and the manner of its proof. As Bentham said[52], "[e]vidence is a word of relation". But in the present context a distinction between ultimate fact and facts adduced to prove that ultimate fact is inapposite. The averment provisions are concerned with what is to be proved. The Act provides that what is averred is to be prima facie evidence of the matter averred. Thus the Act prescribes a manner of proof (to the point of being prima facie evidence) of the matter averred. The matter averred is not then to be subdivided further, whether between material facts and evidence, or between ultimate facts and evidence, or between ultimate facts in issue and other facts going to the proof of those facts. What reference to Hayes does bring to attention, however, is that a pleading of the material facts alleged in an Excise prosecution may contain allegations which, on analysis, are allegations of mixed fact and law.
In the present case, par 4 of the Amended Statement of Claim alleged (and it was averred) that the respondent had in his possession, custody or control "manufactured or partly manufactured excisable goods". The allegation that the goods were "excisable" goods was an allegation of legal conclusion. And if the allegation that the goods were "manufactured or partly manufactured ... goods" was to be understood as no more than an allegation that the goods met the statutory description in s 117 of the Act, that too would be an allegation of law. But read in its context, this part of par 4 of the pleading is to be understood as making allegations of mixed fact and law: that the tobacco had been subjected to one or more manufacturing processes and, for that reason, fell within the reach of s 117. The former is an allegation of fact; the latter may be an allegation of law. Section 144(2)(b) then provided that, to the extent that the allegation averred was one of fact, the allegation was prima facie evidence of that fact.
This in turn leads to a further aspect of the matter foreshadowed in Labrador Liquor. Customs sought the conviction of the respondent. The elements of the offence alleged had therefore to be established beyond reasonable doubt[53]. The averments of fact were prima facie evidence of the facts averred but it remained a matter for the primary judge, and the Court of Appeal on appeal, to say, on the whole of the material that was adduced at trial, whether the facts averred were established to the requisite degree of proof[54]. Because the Court of Appeal in this case reached the conclusion which it did about the effect of the averments, that Court did not consider whether the necessary facts were established to the requisite degree and the respondent's contentions in that Court, that the primary judge erred in finding that the material in the respondent's possession, custody or control was manufactured or partly manufactured goods, remained undetermined. It will be necessary to remit the matter to the Court of Appeal for it to consider that question.

[84]

How the issue arises: Neither party to this appeal, whether in the Court of Appeal or in this Court, raised any specific question concerning the Constitution or submitted that it was relevant to the resolution of the issues in this case. Both in written and oral submissions, Customs and the respondent asserted that no constitutional issue arose[85].
The Constitution is the supreme law of the nation. It is not for parties, by their pleadings, conduct of their cases or agreement[86], to impose on a court an obligation to make orders and decide issues without regard to the Constitution where it is relevant[87]. By command of the Constitution itself, this Court and all Australian courts are obliged to obey its requirements[88]. No provision of statute[89], nor any rule of the common law or of court practice, could negative that fundamental duty[90].
From the earliest days of the Commonwealth (as pointed out in the joint reasons)[91], averments have been a feature of excise prosecutions and of the federal legislation providing for them. The supposed justification for provisions in the Act such as s 144, stated from early times, was the existence of similar United Kingdom practice. This rested on the suggested "peculiar difficulty" of otherwise proving offences against the Customs[92].
This line of authority has been accepted for a century, without substantial questioning as to whether the practice of pre-federation British statutes, concerning Customs offences, could be imported without modification, into the quite different constitutional environment of the Australian Commonwealth, with its express provisions for an independent judicature and the separation of the judicial power of the Commonwealth, with all that that implies. Legal minds can sometimes be locked in the history books. Blinded by history they may fail to perceive a new legal problem.
No one denies the importance of legal history and the guidance it gives for the resolution of contemporary questions. However, in the Australian context, all such questions, and the answers they suggest, must ultimately be measured, where relevant, against the Constitution. The earlier resolution of such questions in the United Kingdom, where no equivalent constitutional questions arose, cannot be determinative of the resolution of such questions in Australia. So much is self evident; but it needs to be stated in this case.
The special problem of grafting averment provisions, such as appear in s 144 of the Act, onto federal legislation in Australia, was perceived from the start by some of the early judges of this Court. They did not, however, in my respectful view, give sufficient attention to whether a difficulty was presented by a constitutional impediment. Thus, in Baxter v Ah Way[93], Higgins J acknowledged that the averment provisions in the Customs Acts of the Commonwealth were "meant to throw the [evidentiary] burden of proof on the defendant … of disproving the charge". His Honour declared that such a shift of onus was "apparently subversive of the first principles of justice". However, he justified such "subversion" by reference to what he declared was "necessary in consequence of the peculiar difficulty" of such cases.
This justification of supposed necessity (or prosecutorial convenience) is scarcely convincing when viewed from a constitutional standpoint. It will often be difficult for the prosecution to prove elements in criminal offences. In our system of government, that is conventionally regarded as rightly so. For centuries, this has been the response of our law to complaints of prosecutorial "difficulty" and suggestions of "necessity" to overcome them. As early as 1477, Brian CJ, addressing the peculiar difficulty faced by the prosecution in proving that an accused acted as he did with the intent requisite to establishing the offence charged observed that "[t]he thought of man is not triable, for the devil himself knows not the thought of man"[94]. Yet it remained for the prosecution to prove the element of intent in offences at common law and the "difficulty" of doing so did not afford a reason to bend the rule[95].
When it comes to constitutional requirements, it is not the usual answer (and may not be a valid answer) to enact laws that reverse the onus of proof and impose on the accused a duty to show an innocent intention and then to say that such laws are enacted to meet practical difficulties, otherwise arising. Doubtless, officials and prosecutors find "peculiar difficulty" in proving offences having particular features. Counter-terrorism and anti-drug trafficking legislation springs to mind. Yet the answer to such difficulties is not necessarily to uphold averments to overcome all problems of proof or invariably to shift the evidentiary burden (or even the legal burden) to the accused. The constitutional answer to whether such expedients are available is by no means clear cut.
Test it this way. There is a serious question as to whether it would be possible under the Constitution, to reverse the onus of proof of every federal offence or to provide that all relevant elements of fact and law necessary to constitute an offence could henceforth be averred by the Commonwealth and thus bind federal courts, in the trial of such offences, to a trivial function incompatible with that of a judicial body of the type envisaged by the Constitution. There must be a limit to the extent to which federal legislation could impinge on the activities of federal courts where the result would be to rob them of substantial functions as courts of the kind that the Constitution contemplates.
In the past, issues such as this have sometimes been decided by this Court by reference to the question whether attempts to permit averments and to alter the burden of proof in federal matters are constitutionally infirm because they have lost the essential connection with "the root of the existence of federal power"[96]. However, this is not the source of constitutional infirmity that concerns me. My concern relates to the compatibility of averment provisions in certain forms with the implications about judicial power and the judicature inherent in Ch III of the Constitution. That issue has previously been raised by this Court[97]. However it was not fully explored in Baxter, nor pursued in detail in R v Hush; Ex parte Devanny where observations were made that were critical of the practice of relying on averments in federal prosecutions, evident in an extreme form in the latter case[98]. The problem was clearly on the mind of Griffith CJ delivering the judgment of this Court in Adelaide Steamship Co Ltd v The King, where his Honour reserved the point with these words[99]:

[87]

It is true that s 144 of the Act, relied on by Customs in the present appeal, does not go to such extremes. Thus, it does not provide that an averment shall be conclusive evidence of the matters averred[100]; that it will be accepted whatever evidence is otherwise given by witnesses[101]; that it will bind the Court in the resolution of any question of law[102]; that it will apply to prove the intent of the defendant[103]; that it will govern indictable offences tried before juries as s 80 of the Constitution provides and bind such juries[104]; or that it will alter the onus of proof otherwise falling on the defendant[105].
However, legislation providing for averments can be amended by the Parliament in circumstances of supposed "necessity" and "peculiar difficulty" for prosecutors. Constitutional questions then present themselves. They must be resolved by reference to considerations of basic principle. At the very least, the imposition upon federal courts (or State courts exercising federal jurisdiction) of a supposed duty to decide a "matter … [that] is a mixed question of law and fact" potentially intrudes upon the capacity of such courts to decide such issues independently, and especially as they involve to any important degree a "question of law". Similarly, where a "legal standard" is involved, it is doubtful, in my view, that it is competent for the Federal Parliament to instruct federal courts (or courts exercising federal jurisdiction) to apply such a standard in any way differently than the law and the independent discharge of the judicial function demand. On the face of things, any attempt in federal legislation to provide in that way would be an intrusion by the legislature into the function of the judicial branch of government and invalid under the Constitution to that extent.
The issue is not argued: None of the foregoing questions has been argued in this appeal. This is so although they were raised by me during the oral submissions. The passage of time and the accumulation of experience have resulted in a greater appreciation on the part of this Court of the importance of the constitutional separation of the judicature[106]; of the necessity to preserve that separation as a central feature of the federation; and of the implications that derive from the operation of the judicature as the Constitution envisages[107]. Today, issues such as the foregoing, when raised, would not be approached, as in the past, only in terms of whether averments, or other federal procedural laws, had lost their essential connection with the requisite federal legislative power. They would now be decided by reference, as well, to whether such enactments were inconsistent with Ch III of the Constitution, and with the implications to be derived from its provisions.
In my reasons in Labrador[108] I noted that the appellant in that case put in issue a constitutional argument. It was an argument that was advanced defensively. It suggested that, if the federal Acts in question in that case, on their proper construction, permitted proof of the guilt of the elements of the offences alleged against the appellants to be determined according to a civil standard of proof, such a construction would offend implications inherent in s 71 of the Constitution. In the event, having regard to the conclusion that the criminal standard of proof applied, the constitutional question did not have to be addressed[109].
Had it been necessary, this Court would, in that case, have had to consider the respondents' arguments about the due process implications said to arise from Ch III of the Constitution[110]. In two extra-curial papers, Justice McHugh has recently argued that such questions will require the attention of this Court before long[111]. In the latest of those papers, Justice McHugh predicted that "constitutional practitioners will see a rich lode of constitutional ore in Ch III of the Constitution[112]. I agree. Perhaps blinded by the way such issues have been addressed in the past, the parties to the present appeal did not venture upon any such exploration. It involved questions they were not prepared to argue. However, that does not mean that the issue is irrelevant to the task of interpretation before this Court and to the disposition of this appeal.
The Constitution and interpretation: It is impossible to disjoin interpreting a federal law (such as the Act) from the Constitution. The basic law provides the most important contextual element for elucidating the meaning to be attributed to a statutory provision whilst remaining constitutionally valid. It provides the life-blood of power and it charts the constraints and restrictions that necessarily inform the law's meaning. Attempts to disconnect the task of interpretation from the constitutional source are merely extreme examples of the belief, now generally discredited, that words alone in the written law yield legal meaning. Context is as important as text. In the Australian Commonwealth, in respect of federal laws, context inevitably includes the Constitution. Some of the dicta in the reasons of this Court in its early days, suggesting disregard for constitutional considerations, can only be understood today as relics of the former literalistic and purely verbal approach to statutory interpretation that focused on words and ignored context. We should not now restore that approach for it is not the way meaning is derived from written language in everyday life[113].
This is why today the starting point for legislative construction is commonly a consideration of any applicable constitutional norms. This is not simply a view that I have expressed[114]. Other members of this Court have also approached the problem of meaning in particular cases from the starting point of any relevant considerations of constitutional context[115].
In other countries, with written constitutions constraining governmental power, it is a commonplace to approach the ascertainment of the meaning of legislation by reference to any relevant constitutional considerations. Thus, the South African Constitutional Court has recently affirmed[116]: "The Constitution is now the supreme law in our country. It is therefore the starting point in interpreting any legislation." Similarly, the Supreme Court of Canada has said that the values expressed in the constitutional Charter of Rights and Freedoms "must be at the forefront of statutory interpretation"[117]. In the United States too, it is generally accepted that constitutional norms inform performance of the task of judicial interpretation[118]. Indeed, in the United States, the debate has moved beyond this point. It is now more concerned with elucidating contemporary methodologies of statutory interpretation that conform to the Constitution[119]. The basic premise is not contested.
No statute and no rule of court practice in this country could excuse ignoring the Constitution, where it is relevant to a task of interpretation. The joint reasons[120] suggest that reference to the constitutional background is impermissible in this appeal because of the past practice of this Court and the provisions of s 78B of the Judiciary Act 1903 (Cth). This is not correct. The practice referred to is confined to avoiding decisions on constitutional questions that are unnecessary to the issues in a matter. In the present case, it is relevant, and not unnecessary, to construe the averment provisions by reference to constraints deriving from the Constitution. I reject the opinion that the Constitution can be ignored or that this Court's practice requires that course. Many recent cases prove the contrary.
Nor, in the ultimate, is there any procedural unfairness to the polities or persons referred to in s 78B of the Judiciary Act[121]. In this appeal, the constitutional norms are not, ultimately, determinative. But that does not mean that they may be ignored in fulfilling the task committed to this Court. Where federal legislation is in issue, the Constitution provides the background against which statutory interpretation takes place. In this sense, the Constitution is always the starting point even if only sub-consciously. Furthermore, many interpretative principles are themselves a product of constitutional elaboration. Parties, by their arguments and pleadings, cannot oblige a court to ignore a consideration important to interpretation - least of all where that consideration is found in the Constitution.
The Constitution and this case: It follows that, by force of legislation[122] and of necessity, federal statutes must be read, so far as possible, to conform to constitutional requirements. There are therefore limits to the extent to which an averment provision in federal legislation, such as s 144 of the Act, can diminish the function of federal courts in resolving controversies and deciding matters presented by law. It is not possible to reduce federal courts (or State courts exercising federal jurisdiction) to cyphers of the Executive Government by the simple expedient of shifting the burden of proof to persons accused of penal offences and imposing upon courts the resolution of questions that involve legal determinations, otherwise than in accordance with the applicable law as decided by such courts.
Doubtless because the Parliament itself is alert to such limitations[123], enactments providing for the legal effect of averments (and practices adopted by prosecutors) prevent most cases from arising that might involve an excess of federal legislative power. Nevertheless, provisions such as s 144 of the Act must be read against the constitutional background that I have outlined. Although these considerations are not expressed in their reasons (doubtless because they were not raised in argument) I take them to have informed the general approach of the judges in the Court of Appeal to the issue which that Court identified in the present case. The concern of the Court of Appeal was about the matters properly preserved in this country to the decision of the judiciary. In the case of federal legislation in Australia, that concern rests ultimately upon constitutional considerations.
In so far as it considered that an averment might not conclusively determine what was a question of law,[124] or oblige a court finally to decide what was an "ultimate fact", the Court of Appeal was protecting the irreducible jurisdiction of a court exercising federal jurisdiction. In doing so, the Court of Appeal's instincts were, in my view, correct. They reflected the approach to be taken conformably with the requirements of Ch III of the Constitution and of the judicature that the Constitution establishes. The Constitution establishes courts intended to have real functions, not tribunals forced by statute (through averment provisions or otherwise) to rubber stamp assertions made by the Executive and its agencies, including Customs. This Court, as the ultimate guardian of the Constitution, should be vigilant against the risks of averment provisions that would have a consequence of reducing the judicial function to nothing of substance because all matters of substance are settled by enacted presumptions, whether by a reversed onus or conclusive averments. A constitutional court, such as this, must always be looking down the years. It must do so lest an extreme case, close to the boundary of constitutional power, becomes a precedent for impermissible governmental and legislative action that endangers the basic constitutional design.
Because these precise constitutional questions were not argued in this appeal, it is impossible to decide them without the assistance necessary for that purpose. In default of argument, I am not finally convinced that s 144, as it may be read in the present context, is constitutionally invalid. Thus, I do not presently regard that section as offensive to Ch III or as unconnected with the requisite federal head of legislative power[125]. Nevertheless, in addressing the remaining issues, it is, in my view, essential to keep in mind the need to interpret the Act, and specifically the provisions of s 144, in a way that conforms to the fundamental presuppositions of the Constitution concerning the function of the judicature in resolving federal controversies in a manner compatible with the function of courts, performing their duties as the Constitution envisages them.

[88]

A strict approach to pleading: In the inference that it drew from the reasoning of Fullagar J in Hayes[126], the Court of Appeal adopted a stringent view about the extent to which averments could bind a court to a conclusion that the statutory ingredients in issue had been established by the matters averred. Because of the constitutional considerations that I have mentioned, I am far from convinced that the approach adopted by Fullagar J, and accepted by the Court of Appeal in this case, was inappropriate or inapplicable to the question for decision[127]. If, in effect, a party is to be tried and found guilty of a federal offence, it is legitimate to demand that the facts be proved to the requisite standard and that real questions concerning the legal ingredients of the offence remain for determination by the relevant court.
Two elements in this case occasion concern. They proved determinative for the Court of Appeal. The first is that the facts alleged to constitute "manufacture", so as to bring the tobacco leaf in question within the requirement for the imposition of excise duty under the Act, were not averred (assuming that to be permissible) or otherwise proved. The second concern is that one of the averments, relied upon by the prosecution, expressly asserts a legal (statutory) standard. This averment is found in par 19 of the statement of claim which includes the contention (summarising Customs' case) that the respondent "contrary to subsection 117(1) of the Excise Act 1901 [had] in his possession, custody or control manufactured or partly manufactured excisable goods, namely a quantity of cut tobacco …" (emphasis added).
Is it permissible for Customs, in an averment purportedly having effect under s 144 of the Act, to bind the court deciding the case (and the defendant) to a view of the Act as to what is "excisable" or not? In other words, is it permissible for the appellant, with the consequences that s 144 of the Act enacts, to assert that the goods in question are "manufactured" and that they are "excisable", although those are the central questions to be decided by a court, performing its functions as a court, on the basis of the application of the enacted law to the facts, as found?
The statutory provision: In my view it was not competent for Customs to plead that the goods, the subject of its proceedings, were "excisable". That was equivalent to a statement that the goods met all the legal and factual requirements to engage the Act. It was thus a statement of law, or of a legal conclusion, that offended applicable pleading principles that confine the pleader to an expression of the facts necessary to the applicable law, leaving it to the court concerned to apply that law and reach its conclusions[128]. Nevertheless, in this case, I would be willing to treat the word "excisable" in the statement of claim as immaterial surplusage, appearing as it does in the paragraph that simply summarises what is contended.
Of greater concern is the question that led the Court of Appeal to its eventual conclusion, namely that it was impermissible for Customs to treat "manufactured" as a matter of fact and that, necessarily, it involved the application of a legal standard that it was for the Court to ascertain and apply, not for a party to assert in an averment that purportedly attracted legal consequences.
The provisions of s 144(2)(b): This consideration brings me to s 144(2)(b) of the Act which states that:

[92]

Duty to the legislation: So long as a federal law is valid, courts must give effect to it in accordance with its language and so as to achieve its apparent purposes[129]. Because the respondent did not attack the validity of s 144 of the Act, and specifically of s 144(2)(b), the question for the Court of Appeal was whether that paragraph had the effect that Customs asserted. It was not whether, in accordance with general principles of the common law of pleading or otherwise, the averment in par 19 of the statement of claim was too wide.
The Court of Appeal did not address the correct question of the application of s 144(2)(b) of the Act. It was not enough that there should be distinctions between questions of fact and questions of law[130]. Here there was a question of mixed fact and law. Unless s 144(2)(b) was wholly invalid, or unless it should be read down in some way, the Court of Appeal was obliged to give it effect in accordance with its terms. Relevantly, those terms are clear.
Assuming that it was permissible to read s 144(2)(b) down, so that if an ultimate question of law were presented it would not be a "mixed question of law and fact" within that paragraph, there was certainly evidence which, together with the operation of the averment, was available to the primary judge for use in resolving the applicable question for decision. As the Court of Appeal itself noted, one witness at the trial described the tobacco found in the appellant's truck as "cut tobacco". On occasion, that witness equated this to "manufactured tobacco", although he did not descend into greater detail in his description of the form or character of the cutting[131]. Another witness described the tobacco as "cut tobacco ready for use"[132]. This evidence, together with the averment, applicable in terms of the Act as to mixed questions of law and fact, was available to the primary judge to assist in reaching a conclusion that the cut tobacco in question was indeed "manufactured". It therefore sustained the decision at trial.
Conclusion: error is shown: The result is that, so long as s 144(2)(b) of the Act is a valid law of the Commonwealth, it permitted the primary judge to conclude, as he did, that the cut tobacco was "manufactured or partly manufactured … goods, namely ... of cut tobacco"[133]. Although reaching that conclusion involved the application of a legal standard, it did so in a manner permitted by s 144(2)(b) of the Act. The only way that the respondent could have overcome that conclusion was by challenging the validity of that law. This he failed, and in this Court declined, to do.
In another case where the validity of s 144(2)(b) of the Act was directly challenged and subjected to a test by reference to the requirements of the Constitution (including the requirements implicit in Ch III) a different conclusion might possibly be reached. But in this appeal, no different conclusion should be adopted. To that extent, I agree with the joint reasons that s 144 of the Act does not provide an adequate statutory foundation for the distinction drawn by the Court of Appeal. This is so even if that paragraph is read down so as to avoid an impermissible intrusion into the functions of the judiciary deciding matters involving pure questions of law.

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