Chief Executive Officer of Customs v Granite Arms Pty Ltd

background 2 The facts are not in dispute. They are set out in the reasons for judgment of his Honour the primary Judge. The second respondent Omeo Way Pty Ltd was at the relevant time a licensed firearms dealer in Queensland trading under the name 'Owen Guns'. It was controlled by Mr Ronald Owen. 3 On 3 January 2000 Omeo Way entered into an agreement with Wong Long Development Co Ltd, a company in China, for the purchase of 3000 handguns for a total of $US144 540. It was agreed that the goods be delivered in two lots of 2000 and 1000 handguns. It is the importation of the 2000 handguns which is in issue here. On 19 January 2000 Omeo Way paid the first instalment of the contract price. Two further instalments were paid on 8 March 2000 and 19 April 2000. 4 On 27 January 2000 Mr Owen applied to the Weapons Licensing Branch of the Queensland Police Service for what was described as an 'import permit' with respect to the 2000 handguns in question. His request was in these terms: 'Could you please supply an Import Permit to suit the Customs Service for Import into Australia, I think the name of the form is a B2709a or something similar to that. I am a licenced dealer No 5000130-04 for category H. The Pistols are Semi Automatic 9 mm, calibre, 8 shot capacity of a Tokorev design, Model 213, Manufactured in China by the China Xian Shi Dia Corporation, which is a state owned company. Please find below the attached 2000 Serial Numbers for the Model 213 pistols. If you have any problems or queries please contact us on the above numbers, we are expecting the goods to leave shortly by Air to Brisbane.' 5 The Queensland Police Service issued an authorisation number 060596 with respect to the 2000 handguns on 10 February 2000. The form which was completed by the Police Force and which was entitled 'B709A-FIREARMS' was one issued by the Australian Customs Service. In completing the form the relevant police officer did: '…hereby confirm that for the purposes of Regulation 4F and Schedule 6 of the Customs (Prohibited Imports) Regulations the firearm, firearm part, firearm accessory, firearm magazine and/or ammunition listed in table below for the importer [RONALD OWEN] being a resident of Australia or overseas visitor holds a licence or authorisation in accordance with the law of this State or Territory to possess the relevant items.' 6 That authorisation was rescinded by a letter dated 24 February 2000 to Mr Owen's solicitors. The letter referred to a dispute between Mr Owen and the Service as to whether modifications carried out by him in respect of 'category H weapons' were in breach of certain Queensland statutory provisions ('Category H weapons' under the Queensland Weapons Categories Regulations 1997, s 7 refers to firearms under a particular length and would include handguns). The letter continued: 'The assertion that your client will continue to modify category H weapons by a method that is considered to be in breach of Section 7(1) of the Weapons Act 1990 and Section 73(2) to (5) of the Weapons Regulation 1996 is of great concern to the Queensland Police Service. This is a serious matter of public interest and safety. Accordingly I have rescinded import permits number 061583 issued on 10 January 2000 and 060596 issued on 10 February 2000.' 7 Mr Owen then took steps to overcome the difficulty with which he was faced. He said in evidence: ´15. As the goods had been paid for and were ready to be shipped a decision had to be made by Omeo Way as to where they should be shipped to. As the goods were to be wholesaled to Licenced Dealers throughout all States of Australia, the decision was made to Consign the goods to a trusted business associate Garnet Featherstone of Granite Arms, a Licensed Dealers of Firearms in Victoria, who had agreed to import them. 16. Wong Long Developments was contacted and asked to Consign the goods to Garnet Fetherstone [sic], Granite Arms..´ 8 Granite Arms, the first respondent, operates the business of a licensed gun dealer in Victoria. It is controlled by Mr Featherstone. 9 On 11 April 2000 Granite Arms lodged with Victoria Police an application with respect to the importation of the 2000 handguns which Omeo Way had purchased. No disclosure was made by Granite Arms as to Omeo Way's interest in the goods or the rescission of its authority, but no issue arises as to the non-disclosure. On 12 April 2000 Victoria Police issued authorisation No. 058417 in Form B709A to Granite Arms. It was in the same terms as that which had earlier been issued to Mr Owen, save that 'Granite Arms Pty Ltd' was now listed as the importer. 10 On or about 8 May 2000 the handguns were landed in Australia at Tullamarine Airport Melbourne. The handguns were seized on 7 September 2001. In that period Omeo Way paid the storage charges with respect to the handguns. It had paid all the costs and expenses relating to their importation. 11 Granite Arms and Omeo Way sought declarations that the seizure of the handguns was unlawful and orders for the return of the goods together with damages for their detention or conversion. The Chief Executive Officer of Customs ('Customs') cross-claimed for a declaration that the handguns are 'special forfeited goods' and an order that they be condemned as forfeited to the Crown. At the request of the parties his Honour the primary Judge first heard the cross-claim. On 23 May 2003 his Honour ordered that the cross-claim be dismissed with costs. Customs appeals from that decision.

statutory provisions 12 Section 50(1) of the Customs Act 1901 (Cth) provides that the Governor-General may, by Regulation, prohibit the importation of goods into Australia. By s 50(2) that power may be exercised: '(a) by prohibiting the importation of goods absolutely; (aa) by prohibiting the importation of goods in specified circumstances; (b) by prohibiting the importation of goods from a specified place; or (c) by prohibiting the importation of goods unless specified conditions or restrictions are complied with.' 13 Goods which are prohibited under s 50 are 'prohibited imports': s 51(1). Prohibited imports are amongst goods which are 'forfeited goods' under s 229(1)(b) and liable to be forfeited to the Crown. It is an offence for a person to import any prohibited imports: s 233(1)(b) and (1AA). Forfeited goods referred to in s 229(1)(b) are 'special forfeited goods': s 183UA. 14 Section 203B of the Customs Act provides for the seizure of goods by an authorised officer where that person reasonably suspects that goods are special forfeited goods. The owner of goods may claim their return: s 205D(2). Where a claim is made, as it was here, s 205D(2) requires the goods to be returned by the person who seized them unless one of pars (a) to (e) of s 205D(2) apply. Paragraph (e) requires their return unless proceedings are brought before a Court of summary jurisdiction for a declaration that the goods are special forfeited goods and, on completion of the proceedings, a Court has made an order for condemnation of the goods as forfeited to the Crown. Customs made the requisite application to the Magistrates' Court of Victoria within the time allowed. 15 Section 205D(5) provides, by pars (b) and (c), that where proceedings of the kind referred to in s 205(2)(e) are commenced and, on completion of the proceedings, the Court is satisfied that the goods are special forfeited goods, the Court must declare the goods to be special forfeited goods and make an order for condemnation of the goods as forfeited to the Crown. 16 Regulation 4F of the Customs (Prohibited Imports) Regulations 1956 was entitled 'Importation of firearms, firearm accessories, firearm parts, firearm magazines, ammunition, components of ammunition and replicas'. Regulation 4F(1) provided, subject to certain exceptions not presently relevant, that the importation of a firearm was prohibited unless the firearm was an article to which an item in Part 2 of Schedule 6 applied and the importation was in accordance with the requirements set out in column 3 of the item. A handgun was included as a firearm in Schedule 6, Part 2, item 9, column 2. The column 3 'Requirements' for Item 9 provided in relevant part: 'For a handgun: (a) the importation must comply with at least 1 of the following tests: (i) the official purposes test; (ii) the specified purposes test; (iii) the specified person test; (iv) the Police authorisation test; and (b) …the firearm must bear a unique serial number; and (c) …the firearm must comply with the safety requirements set out in [item 1 of Part 3]. 17 It is the requirements of the 'Police authorisation test' and their fulfilment which are here in question. The provision relating to the 'Police authorisation test' in Schedule 6, Part 1, was at the relevant time in these terms: '4. Police authorisation test 4.1 The importation of an article, being a firearm, a firearm accessory, a firearm part, a firearm magazine, ammunition a component of ammunition or a replica to which the police authorisation test relates, complies with the test if: (a) the importer of the article has been given a statement, in an approved form, to the effect that the importer holds a licence or authorisation according to the law of the relevant State or Territory to possess the article, or that a licence or authorisation to possess the article is not required under the law of the relevant State or Territory, and the statement is given by: (i) for a State - by the Commissioner or Chief Commissioner of the police force of the State; and (ii) for the Northern Territory - The Commissioner of Police of the police force of the Northern Territory; and (iii) for a Territory other than the Northern Territory - The Chief Police Officer of the Australian Capital Territory; and (b) for a category C article - the importer has also been given a certificate, in an approved form, by a person mentioned in subparagraph (a) (i), (ii) or (iii) certifying that the importer is a primary producer; and (c) the importer produces to a Collector, at or before importation: (i) the statement in the approved form; or (ii) the statement and the certificate in the approved forms. Note: The importer can produce the statement, or statement and certificate, personally or by an agent, eg a firearm dealer.' 18 So far as concerns sub-paragraph (b), category C articles did not include handguns. The word 'importer' is not defined in the Act or Regulations.

PRIMARY JUDGE'S REASONS 19 It was submitted by Customs before his Honour that 'importer' should not be given its ordinary meaning in the context of the importation control scheme. Rather it should be read more narrowly to refer to the beneficial owner of the goods. It is the principal who must hold the authority to possess the article and who must give the statement. It was pointed out that the purpose of the prohibition on the importation of firearms was the advancement of public safety. 20 His Honour the primary Judge considered that the concern about the safety of the community was met by Reg 4F(1) requiring the importer, whoever that person may be, to satisfy the Police authorisation test. His Honour did not consider that there was any warrant to be found from the history of the statute, in the statutory scheme or its terms which requires the words 'the importer of an article' to be given other than their ordinary and natural meaning. In that regard his Honour referred to cases dealing with the meaning given to the 'importation' of goods such as R v Bull (1974) 131 CLR 203 at 212 where Barwick CJ said: '…in general, importation of goods, in my opinion, according to the natural meaning of the word, involves landing them, or bringing them within a port for the purpose of landing them in the country or place in relation to which importation is regulated.' and Wilson v Chambers (1926) 38 CLR 131 at 150 where it was observed that the act of importation was complete where goods are brought into their port of destination for the purpose of being discharged there. 21 His Honour the primary Judge also considered an observation by Higgins J in Wilson (at 147) to be of some importance. Higgins J there alluded to the definition of the 'owner' in the Customs Act as including the consignee of the goods. Collector of Customs (NSW) v Darch (1990) 98 ALR 225, to which his Honour referred, was an example of a situation where the importer of goods may be a person other than the person who ordered the goods and paid for the freight. 22 In his Honour the primary Judge's view there was nothing in the ordinary meaning of 'importer' which required that that person be the owner at law of the goods. Importers frequently act on behalf of owners of goods. It was, his Honour considered, with that circumstance in mind that it was necessary in s 47A(7) of the Trade Practices Act 1974 (Cth) to deem a corporation on whose behalf goods are imported into Australia to be the importer, for the purposes of a product liability claim. His Honour went on: '50. The test for a prohibited import does not depend on the identification of the owner at law of the imported goods. It depends on whether there is a Police statement that the "importer" is lawfully entitled to possess the article. The focus on a legal entitlement to possession, as opposed to ownership, is a strong indication, in my opinion, against the construction contended for by Customs.' 23 His Honour also placed some reliance upon admissions and concessions made by Customs in confirming his view that Granite Arms was the importer. In its cross-claim Customs had made what his Honour considered to be 'an important admission'. The allegation that Granite Arms 'as the importer, as agent for the Second Applicant, imported into Australia, 2,000 Norinco M213 pistols' was there admitted. Further, Customs in its correspondence with the solicitor for Omeo Way in the period between the landing of the handguns in Australia and seizure, had also contended that Granite Arms was the importer and therefore the entity with which Customs should deal in relation to the possible release. 24 His Honour, in conclusion, returned to the expanded definition of 'owner' in s 4 of the Customs Act and provisions such as s 183(1) which provided that where a person holds themselves out to be, or acts as if he were, the owner of goods that person shall, for the purposes of the Customs Act, be deemed to be the owner of those goods. In ACE Custom Services Pty Ltd v Collector of Customs (NSW) (1991) 104 ALR 463 at 466 Davies J had observed that the s 4 definition of 'owner' encompassed importers of all types, whether they have the legal ownership of the goods or are merely the persons in Australia to whom, by arrangement, the goods are consigned or who otherwise have the control of the goods. In the view of his Honour the primary Judge: '53. This last sentence reflects a recognition that in its ordinary meaning, an importer can be not only persons who have the legal ownership of the goods, but also persons who are merely the persons in Australia 'to whom by arrangement the goods are consigned', or persons 'who otherwise have the control of the goods'. 54. Here, Granite Arms was unquestionably the consignee of the handguns; the bill of lading was in favour of Granite Arms as consignee; and the letter from Jaclyne Fisher dated 6 December 2000 … in my view, acknowledges that Granite Arms was the importer of the handguns.'

the appeal 25 On the appeal Customs did not maintain its concession that an agent such as Granite Arms might be regarded as an importer. To the contrary it submitted, in reliance upon a common law rule, that an agent could not have attributed to it the actions of its principal. No point was taken by the respondents about the concessions or admissions made below. I would not consider the matters adverted to in the pleading and in the correspondence to prevent Customs from arguing the question whether Granite Arms was an importer for the purposes of Schedule 6, Part 1, par 4.1 of the Regulations. His Honour the primary Judge does not appear to have approached the matter in that way. Whilst his Honour considered the admissions to be of importance, a view which I am respectfully unable to share, his Honour referred to them only as confirming the opinion he had reached about the meaning of 'importer'. 26 Customs' principal argument on the appeal was that the principle established at common law - that the act of the agent is the act of the principal - should be applied in the present case because there was nothing in the Customs Act or Regulations to displace it. There was no doubt in the present case that Granite Arms was to import the goods as agent for and on behalf of Omeo. The fact that Granite Arms took some steps to have the goods landed through Customs is not to the point. Everything Granite Arms did it did as agent and the acts of Granite Arms were therefore the act of Omeo. 27 It follows, on Customs' argument, that his Honour the primary Judge ought to have concluded that Omeo was the importer of the handguns. That conclusion is said to accord with the policy of the Regulations which was that the requirement for Police authorisation was to attach to the person who would have possession of the handguns and the ability to control their disposition following importation. 28 Alternatively, it is submitted that the word 'importer' should be read more narrowly in context and having regard to its purpose. The Police authorisation test is one of a few exceptions to the general prohibition on the importation of firearms and its purpose plainly protective. The use of an agent would enable the particular provision to be circumvented. The requirement for Police authorisation under the 'relevant' State or Territory law would be rendered meaningless if it were met by reference to the location of the agent. The word 'importer' should not therefore be read as extending to an agent who brings in the goods for another. 29 The respondents submit that the policy of the Regulations in question, as contended for by Customs, is beyond the scope of the Customs Act. It is concerned with the importation of goods into Australia. The disposition of imported firearms by firearms dealers is a matter for legislation by the States and Territories. The only policy, the respondents submit, which can be discerned from the Regulations is that the importer - the person who will take possession of the goods on arrival - will be authorised to possess the goods under the domestic law of the State in which the goods are to be landed. On the facts Granite Arms satisfied that policy, as his Honour the primary Judge found. It was authorised to receive and hold the firearms in Victoria. 30 The respondents' contention relating to the proper subject matter of the Customs Act does not raise any question of invalidity. The scope of the Act is relied upon as an aid to construction of the Regulations and to show how the Police authorisation test is to operate with State legislation dealing with firearms. I should also add that the question whether the Queensland Police Service was entitled to rescind the earlier statement it provided to Mr Owen is not in issue in these proceedings.

STATUTORY HISTORY, CONTEXT AND PURPOSE 31 The Australian Customs Act does not and has not historically contained a definition of 'importer'. When it was enacted in 1901 the equivalent legislation in the United Kingdom contained a definition which would include an agent (s 284 Miscellaneous Matters of the Customs Law Consolidation 1876 (UK)): ' 'Importer' shall mean, include, and apply to any owner or other person for the time being possessed of or beneficially interested in any goods at and from the time of the importation thereof until the same are duly delivered out of the charge of the officers of Customs.' 32 It is not apparent why the Australian statute did not define the term 'importer'. It may be that it was not considered necessary for the purpose of the Customs Act given the width of the word's ordinary meaning. 33 The present definition is in similar terms (see s 1 of the Customs and Excise Management Act 1979 (UK)). 34 Regulation 4F was inserted into the Regulations by the Customs (Prohibited Imports) Regulations (Amendment) 1996 No 91. The Explanatory Statement to those Regulations identified the Port Arthur tragedy, an incident which occurred in Tasmania on 28 April 1996 in which many people were shot and killed by one gunman, as the catalyst for a revision of 'effective national firearm controls'. A special meeting of the Australian Police Ministers' Council made a number of resolutions including one by which the Commonwealth Government would impose a total prohibition on the importation into Australia of all self-loading and pump action longarms. While the importation of fully automatic weapons was always prohibited under the Regulations, amendments were made to tighten the controls on the importation of certain rifles and shotguns. The structure was simplified by placing both the firearms and the requirements for the importation in the same schedule. It went on: 'These requirements fall into 4 broad categories or "tests": (1) the official purposes test; (2) the specified purposes test; (3) the specified persons test; and (4) the Police authorisation test (items 1 to 4 of Part 1 of Schedule 6 refer). The requirements of three of the four tests (numbers (1), (2) and (4)) are a substantial carry over of previous requirements for the importation of firearms. The fourth test, the specified persons test contains a new set of requirements which arise from the APMC Resolution of 10 May 1996. This new test recognizes the need of certain persons to possess semi-automatic firearms for the purposes of their occupation.' 35 The Explanatory Statement did not discuss the requirements of the tests in any detail. 36 Prior to the 1996 amendments the Regulation relating to the importation of handguns (Reg 2.1(b)) required an importer to produce a statement, at or before importation, by the Commissioner or Chief Commissioner of a State or Territory police force to the effect that the importer was the holder of a licence or authorisation, in accordance with the law of that State or Territory, to possess a handgun of the kind in question. Regulation 2.1(b) in the terms with which I am concerned was inserted by the Customs (Prohibited Imports) Regulations (Amendment) 1991 No 248. The Explanatory Statement to those Regulations contained a reference to a proposal which would have allowed the relevant police force to state whether it had an objection to the importation. This was considered too subjective a test, with nothing to guide the exercise of the discretion. The Statement went on: 'The Minister for Small Business and Customs accepted the Committee's concerns and undertook to amend the Regulations to limit the statement by the relevant Police Commissioner to a mere statement of fact as to whether or not the importer holds a licence or authorisation to possess the handgun in the relevant jurisdiction into which it is to be imported.' (emphasis added). 37 The statement went on further to explain that Regulation 2.1: '…amends the definition of an "exempt firearm" with respect to handguns in order to clarify that the exemption from the prohibition is based upon whether the importer of the handgun is licensed or authorised to possess that particular handgun in the State or Territory in which the firearm is to be used. The importer must be licensed or authorised by the Commissioner of Police of that State or Territory (or by the Commissioner of the Australian Federal Police if the importation is to take place in the Australian Capital Territory).' (emphasis added). 38 The Explanatory Statement to the 1996 amendments said that 'the requirements of Police authorisation test are identical to the previous requirements for the importation of handguns and certain categories of "exempt firearm"'. It was submitted by Customs on the appeal that the same policy relevant to 1991 Regulations is continued and 'relevant State' in par 4.1(a) should be read as referring to the State in which the goods will be used. In that event the statement should be from the Queensland Commissioner. It may however be observed that the Explanatory Statement is not consistent in its approach. It refers to both the State into which the handguns are to be imported and the State in which they are to be used. It would not appear to provide much by way of assistance. 39 It may also be relevant to observe that par 4.1(b) and (c), together with the 'Note' appearing at the foot of par 4.1, were inserted in 1998 (No 52 of 1998). 40 At the time of the importation in question the tests, in addition to the Police authorisation test, contained in Schedule 6 to be applied to importations were the 'Official purposes test' the 'Specified purposes test', the 'Specified person test', the 'Sports shooter test' the 'International sports shooter test' and the 'Dealer test'. The Dealer test was not then applicable to handguns in column 3 of Schedule 6, Part 2, item 9. 41 The Official purposes test required the permission of the Commonwealth Attorney-General, which permission could not be given unless the Attorney-General was satisfied that the article to be imported was for the purposes of the government of the Commonwealth, a State or Territory and ownership arrangements for the article would be made as was required (Sch 6, Pt 1, par 1.1, 1.2). Examples of importations which might be for the purposes of government were given by par 1.3: articles to be supplied to the government under contract; articles to be used in demonstrations for the government; articles that the government proposed to inspect, test or evaluate; articles that it proposed to use for training or which had been given or donated to the government. The necessary arrangements with respect to ownership by the government were set out in the Table which follows on in par 1.4. 42 The Specified purposes test (par 2) also required the written permission of the Attorney-General. The Attorney-General was required to be satisfied that the article was not available in Australia and was to be used for certain purposes such as the production of a film. Other purposes included the development of mountings for a laser target designator in a State or Territory in which the importer had a licence to possess the article; the supply of ammunition by export, where there was a licence to export; transhipment; and the purpose of repairs undertaken by the government of another country in a State in Australia, but where there was authorisation to possess the article. 43 The Specified person test (par 3) also required the Attorney-General to be satisfied that the importer was a person whose occupation was the control of vertebrate pest animals on rural land; and that the importer held a licence or authorisation, in accordance with the law of the State or Territory in which they carried out that occupation, to possess the article. 44 The two Sports shooter tests (pars 5 and 5A) required a person to be certified for the sport. The Dealer test (par 6) related to category C articles and required the Attorney-General's permission. It could only be given if the 'importer is a licensed firearm dealer'. Category C articles did not include handguns. Category H articles included handguns. The Dealer test at that time did not refer to this category of firearm. 45 The tests have been further amended since the date of importation. The present Police authorisation test requires, with respect to Category H articles, in addition to the statement referred to in par 4.1(a), a certificate that the person is certified as either a sports shooter, an international sports shooter, for business or occupational purposes, or is certified as a collector for the article. 46 There are now two Dealer tests - one for each of Category C and H articles. The importation of a Category H article complies with the test if the importer carries on the business of a firearm dealer and the importer has a licence, in accordance with the law of the State or Territory where they carry on business, to possess the category of article. A category C article continues to require the Attorney-General's permission which has regard to the use to which the article will be put, amongst other things.

CONSIDERATION OF THE APPEAL 47 The principle of agency law upon which Customs relies is expressed as: He who does an act through another is deemed in law to do it himself: see Broom's Legal Maxims, 10th edn p 558. As is there pointed out, the maxim enunciates the general doctrine upon which the law relating to the rights and liabilities of principal and agent depends. Customs seeks to apply the principle to equate the 'importer' referred to in the Regulations with the principal to an agreement for importation. 48 The question as to the identity of the importer falls to be resolved by reference to the terms of the Police authorisation test in the context of the Act and Regulations and having regard to their general purpose and policy: Commissioner for Railways (NSW) v Agalianos (1955) 92 CLR 390 at 397 cited with approval in Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 at 381; [1998] HCA 28 at [69]. In that approach the construction of a legislative instrument is to proceed upon the assumption that its provisions are intended to give effect to harmonious goals. A Court should attempt to give meaning to every word of the provision and not to regard them as superfluous in any way: Project Blue Sky at 381-382; [70]-[71]. 49 There may be no express provision in the Customs Act or Regulations which would prevent recourse to principles applying in the law of agency, as Customs submitted. It may however be observed that agents are referred to in the Act as coming within the definition of 'owner' in s 4 and are made personally liable where they hold themselves out as agents of the owner by s 183. This might suggest to the contrary of Customs' argument, given that an agent is regarded as responsible for their own actions at least for some purposes. It is not necessary to further consider the question. Customs' principal argument does not involve the necessary process of construction referred to in cases such as Project Blue Sky. It would only be after consideration of the terms of the particular provision in context and having regard to purpose that one could know whether resort to external legal principles was necessary or appropriate. I should add that this argument was raised for the first time on appeal. Given my view about its apparent irrelevance to the process of construction to be undertaken it is not necessary for me to further consider what effect this might have. 50 The alternative arguments for Customs proceeded upon an acceptance that the ordinary meaning of 'importer' extends to include persons other than those who have paid for the goods brought in. This accords with the view of his Honour the primary Judge, with which I respectfully agree. It would extend to an agent such as Granite Arms as the company which took steps to bring the goods into Australia. Furthermore, there may be more than one person taking part in an importation and who might be said to be an 'importer'. Such persons may be liable for their actions in connexion with prohibited imports under s 233. Whether such persons are contemplated as the importer for the purposes of the tests in the Regulations is another question. 51 The aim of Reg 4F is to control the circumstances in which a person might import firearms into Australia. It may be inferred, without reference to the Explanatory Statement of 1996, that the concern of the Regulations is the protectionof the public from the danger of firearms. The danger of course arises when they are in the possession of persons who might use them to harm others. Protection is sought to be achieved, in the first place, by a prohibition upon the importation of firearms. The prohibition is removed if the requirements of the Regulations with respect to the particular category of firearm are met. These are called 'tests'. It may be observed from the tests that only persons or governments who are considered to have a legitimate use or purpose for the firearms, or are licensed by a State or Territory to have the guns, might qualify. The requirements of the tests might be seen to proceed upon an assumption that persons with a proper purpose for firearms might not misuse them to harm persons. Nevertheless the fact that some importation is allowed, in the event that the necessary test is satisfied, should not detract from the purpose of protection of the public. The tests should be read in a way which is consistent with that aim. 52 His Honour the primary Judge considered that concerns about community safety were sufficiently met by requiring the importer, whoever that might be, to meet the Police authorisation test. In my respectful view it was necessary to consider whether the tests, consistent with the statutory purpose, were more stringent in their requirements. In particular it has not been considered whether a coincidence in the identity of the importer and the person who is to maintain possession of the goods is more consonant with the statutory purpose and whether the tests can be read as requiring that coincidence. 53 The satisfaction of the Police authorisation test by permitting an agent of the person who will ultimately hold the goods to produce a statement in their capacity as importer would not appear to provide a tight control, as one might infer the tests were intended to do. Such an agent may only 'possess' the firearms temporarily in a physical sense or not at all. They may simply be said to have a right to their possession to the extent that their contract of agency requires. They may never be responsible for their physical custody, use and disposition. The person who will be responsible is the person under whose State or Territory licence or authority they will be held for whatever uses. I appreciate the respondents' arguments that dealers might be viewed in a different way, since they are subject to stringent controls, and that a dealer-agent's dispossession of the goods would be recorded under the terms of State or Territory legislation. The Police authorisation test is not however limited in its application to dealers. 54 His Honour the primary Judge considered that the focus on a legal entitlement to possession, as opposed to ownership, was a strong indication to the contrary of Customs' argument. It would not however appear that the requirement of a licence or authority to possess the firearm in the tests was of some right to possession recognized by the common law. The use of the word 'possess' in the tests would appear to be derived from the use of that term in legislation of the various States and Territories in describing what a licence generally authorises. In s 49A(1) of the Weapons Act 1990 (Qld) a licence is said to authorise a licensee to 'possess and use a weapon or category of weapon endorsed on the licence for any lawful purpose' (see also Weapons Control Act (2003) (NT), s 6(e); The Weapons Prohibition Act 1998 (NSW),s 7(1); the Prohibited Weapons Act 1996 (ACT), s 5(1), the Control of Weapons Act 1990 (Vic), s 5(1)(e); the Weapons Act 1999 (WA), ss 6(1) and 12(2); the Firearms Act 1996 (Tas), s 9(1) and the Firearms Act 1977 (SA), s 11(1) and (2)). And whilst it is correct to observe that the Customs Act does not express or imply a concern, by reference to the term 'possess', about what the person is actually licensed or authorised to do pursuant to the relevant State or Territory legislation, it is plain enough that it is contemplated that the weapons will have some purpose to the person. In that background it seems to me unlikely that the limited rights to possession that an importing agent would have could have been intended. It is more likely that they were intended to refer to the person who was to possess them for a purpose even if that purpose does not extend beyond possession itself. 55 Further, in my view, a construction of the Police authorisation test which allows an agent to be the importer does not give meaning to the words 'the relevant State', as Customs submitted. The State is not identified in the test as that place into which the goods are landed. It is identified by reference to the authorisation which has been provided to the person to possess the firearms. Having said that, it seems to me that the test assumes that the importer and the person so authorised will be the same person, at least for its purposes. 56 There are some aspects of the other tests which tend to support this view of the 'relevant State' and of the coincidence in identity of the importer and the person who is to hold the goods in a real, and not a technical, sense of possession. The Specified purposes test refers to the permitted purposes as those taking place in the State or Territory in which the importer has been provided with the licence to possess. The Specified person test requires the importer to hold a licence from the State in which they carry out the occupation which will involve the use of firearms. To read the importer and the person to possess the firearms for whatever purposes as are authorised as the same person in the Police authorisation test would be consistent with the requirements of these tests. There would not appear to be any reason to treat the Police authorisation test as requiring a different approach. The principal object of statutory construction is consistency of language and purpose in all statutory provisions: Project Blue Sky at 381; [69]. There are strong indications that an approach which separates the importer from the person who is authorised to hold the goods should not be undertaken. 57 In the process I have undertaken I have not taken account of the later amendments to the tests under the Regulations. I have not considered it necessary to do so and, in any event, there would appear to be conflicting views about the appropriateness of such an approach: see Brooks v Commissioner of Taxation (2000) 100 FCR 117 at 135 and the cases therein referred to. 58 In considering the meaning of the words in the test I have not read the words of the note to par 4.1 as affecting the construction I have reached. It is not apparent why a firearm dealer is chosen as the example of an agent. In any event the note would appear to be concerned only with the production of the statement or certificate referred to in par 4.1(a) and 4.1(b). As a footnote it does not form any part of the Statute: s 13 Acts Interpretation Act 1901 (Cth). Viewed as an example it is inconsistent with the requirements of par 4.1(a) and not useful: s 15AD Acts Interpretation Act.

CONCLUSION 59 In my view the word 'importer' in Schedule 6, Part 1, par 4 of the Regulations and the 'Police authorisation test' is not used in its ordinary meaning. It does not extend, as that meaning would allow, to persons acting as agents for the purposes of importation being persons who will not continue to possess the firearms after importation. The term refers to the person who is to maintain their possession under the authority of the State or Territory in which they are to be held for some purpose referred to in the legislation of the State or Territory. 60 It follows that the requirements of importation have not in this case been in accordance with Reg 4F(1). The goods are prohibited imports and special forfeited goods. Being satisfied that that is the case a declaration to that effect and an order for their forfeiture should be made. Although there is a reference to a Court of summary jurisdiction for the purpose of the commencement of proceedings, nothing in s 205D of the Customs Act would suggest any restriction upon this Court making the orders on the cross-claim in these proceedings. 61 In my view the appeal should be allowed and the order dismissing the cross-claim set aside. It should be declared that the pistols which were imported into Australia by Omeo Way Pty Ltd on 3 May 2000, under cover of entry for home consumption numbered 2E.0129.0382E, are special forfeited goods. There should be a further order that those firearms are condemned as forfeited to the Crown. The respondents should pay Customs' costs of the appeal and of the proceedings below. I certify that the preceding sixty-one (61) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kiefel.

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

RD NICHOLSON ANd North jj: 62 We are indebted to Kiefel J for a draft of her reasons. Other than in the ultimate resolution of the issue of interpretation we are in agreement with those reasons. Where we differ is that we do not consider that the Police authorisation test in par 4.1 of Pt 1 of Sch 6 of the Customs (Prohibited Imports) Regulations is required to be read as requiring a coincidence in the identity of the importer and the person who is to maintain possession of the goods. We accept that such a coincidence may arguably be more consonant with the statutory purpose but we consider the statutory purpose can also be served satisfactorily by approaching the application of the paragraph in accordance with ordinary understandings of the term importer in the context of the Customs Act 1901 (Cth). 63 In her reasons Kiefel J respectfully agreed with the view of the primary Judge that the ordinary meaning of 'importer' extends to include persons other than those who have paid for the goods brought in: R v Bull (1974) 131 CLR 203 at 212 and Wilson v Chambers (1926) 38 CLR 131 at 150. As those authorities make apparent, importation involves the landing of goods and the bringing of them within a port for the purpose of landing them in the country or place in relation to which importation is regulated. There is no reason made apparent by the express terms of par 4.1 why the word 'importer' should be approached with any different concept in mind. On the contrary, it is structured fundamentally around the same concept of importation which permeates the provisions of the Customs Act. 64 We agree with Kiefel J that it is apparent the aim of reg 4F, the source of authority for prohibition of the importation of firearms unless (relevantly) the Police authorisation test applies, is to control the circumstances in which a person might import firearms into Australia. We accept that it may be inferred, without reference to the Explanatory Statement of 1996, that the concern of the Regulation is the protection of the public from the danger of firearms. However, in our view neither the Regulation nor the requirements of the test as set out in par 4.1 limit the application of the concept of possession. In its terms it is capable of applying to an importing agent, even if that agent will have considerably more limited rights than a principal. 65 There is a sound reason why, consistent with the policy of the provision, that should be so. The aim is the protection of the public. The point of control is fixed upon the moment of importation. It is at that moment that the public interest must be satisfied. It is also at the place of importation that such interest must be protected. No such protection would follow if the relevant State or Territory of ultimate use was other than the place of importation. If the rights of the importing agent are fleeting, that only has the consequence of passing the point of control on to another stage and another authority. Further, the reference to the relevant State or Territory in par 4.1 will not lack meaning on that understanding because it will refer to the State or Territory of the place of importation. This clear provision does not require to be read differently to accommodate the different provisions governing the Specified purposes test. We agree with Kiefel J that as the construction of the provision leads to a resolution it is not necessary to have regard to the principal submission for the appellant on the principle of agency, which is external to the Act. 66 There is a further powerful consideration supporting the interpretation of par 4.1 in a way which does not narrow its apparent scope. Section 229(1)(b) mandates the forfeiture of all prohibited imports. In Forbes v Traders' Finance Corporation Limited (1971) 126 CLR 429 at 437 Menzies J said in relation to a provision in s 229(1)(j) of the Customs Act providing for forfeiture in respect of 'any carriage or animal used in smuggling or in the unlawful importation, exportation, or conveyance of any goods': 'A well established principle of construction is that provision imposing forfeiture must be construed strictly….However, it is not for the courts to aid …legislative policy by a benevolent construction of provisions effecting forfeiture.' Gibbs J at 447 said: 'Our duty is to give effect to the intention of the legislature as expressed in the statute, but since the stature imposes a forfeiture we must construe it strictly, in the sense that we must not extend its provision to cases not clearly within their scope but must resolve any doubt or ambiguity in favour of the subject whose property is sought to be forfeited.' In Murphy v Farmer (1988) 165 CLR 19 at 28-29 Deane, Dawson and Gaudron JJ considered s 229(1)(i) of the Customs Act providing for forfeiture of goods in respect of which any false or misleading entry invoice declaration, answer, statement or representation had been made or produced. Their Honours found the provision to be penal or quasi-penal in character and as one attracting the rule that 'those who content that [a] penalty may be inflicted, must show that the words of the Act distinctly enact that it shall be incurred under the present circumstances. They must fail, if the words are merely equally capable of a construction that would, and one that would not, inflict the penalty: Dickenson v Fletcher(1873) LR 9 CP 1 at p7.' It is these principles which we consider must govern the ultimate understanding of the par 4.1 and Police authorisation test. 67 Accordingly our conclusion is that the appeal should be dismissed. I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices RD Nicholson and North.

Associate: Dated: 30 March 2004 Counsel for the Appellant: Mr CM Maxwell QC and Mr RM Niall

Solicitor for the Appellant: Australian Government Solicitor