Comptroller General of Customs v Zappia [2018] HCA 54 | Case summary

KIEFEL CJ, BELL, GAGELER AND GORDON JJ. This appeal from a judgment of the Full Court of the Federal Court, given on appeal on a question of law from a decision of the Administrative Appeals Tribunal, turns on whether an employee of the holder of a warehouse licence can meet the description of "a person who has, or has been entrusted with, the possession, custody or control of dutiable goods which are subject to customs control" in s 35A(1) of the Customs Act 1901 (Cth) ("the Act"). Contrary to the conclusion of the majority in the Full Court, an employee of the holder of a warehouse licence can meet that statutory description. Moreover, on the facts found by the Tribunal, Mr Domenic Zappia ("Domenic") met that description in his capacity as an employee of Zaps Transport (Aust) Pty Ltd ("Zaps"). The Act "Dutiable goods", within the meaning of the Act, include goods in respect of which customs duty is payable. Tobacco products are dutiable goods. Customs duty is payable on dutiable goods by the time those goods are entered for home consumption. The customs duty is payable as a debt to the Commonwealth by the "owner" of the goods. The term "owner" in respect of goods is defined for the purposes of the Act to include "any person (other than an officer of Customs) being or holding himself or herself out to be the owner, importer, exporter, consignee, agent, or person possessed of, or beneficially interested in, or having any control of, or power of disposition over the goods". The object of that definition is "to extend to several persons liabilities in respect of the same goods". The customs duty on the goods "follows the goods until the duties are paid" and "a personal liability arises in the case of any person who becomes owner of the goods before the duties are paid". By operation of s 30 of the Act, goods imported into Australia become subject to "customs control" and remain subject to customs control until either exported from Australia or delivered into home consumption in accordance with an authority or permission under the Act. Ordinarily, an authority to deliver goods into home consumption must be given by a "Collector", who can be the Comptroller‑General of Customs (who has the general administration of the Act) or an officer of Customs, after goods have been entered for home consumption and any applicable customs duty has been paid. During the period in which the goods remain subject to customs control, the goods cannot be moved, altered or interfered with except as authorised by or under the Act. The statutory policy which underlies that operation of s 30 was identified by O'Connor J soon after the enactment of the Act. Because goods become difficult to trace once delivered into home consumption or "circulation", goods must "from the time they are first imported until duty is paid ... be kept under customs control" for the protection of the revenue. That statutory policy continues in the Act, which, in its amended form, must be read as an integrated whole. Relevantly, the policy informs interlocking provisions of the Act designed to facilitate the warehousing of imported goods prior to those goods being entered for home consumption. Where goods are imported, the owner of the goods has the option of entering them for warehousing as an alternative to immediately entering them for home consumption. Where the goods are entered for warehousing and any applicable charges or fees have been paid, an authority must be given to the owner of the goods to take the goods into warehousing. The warehoused goods must then be stored in a licensed warehouse where they remain subject to customs control under s 30 until such time as the goods are entered for home consumption and a further authority is given, after payment of the applicable customs duty. Part V of the Act makes elaborate provision for the grant, suspension and cancellation of warehouse licences by the Comptroller‑General. Grant of a warehouse licence is on written application. Where the applicant is a company, it is required to describe any director, officer, shareholder and employee who "would participate in the management or control of the warehouse". Any warehouse licence then granted is subject to standard conditions which include that the holder of the licence must notify the Comptroller‑General if a person not so described in the application "commences ... to participate" in "the management or control of the warehouse". Amongst the circumstances in which the Comptroller‑General is prohibited from granting a warehouse licence is if he or she is of the opinion that a director, officer, shareholder or employee of the applicant "who would participate in the management or control of the warehouse is not a fit and proper person so to participate". Correspondingly, amongst the circumstances in which the Comptroller‑General may suspend or cancel a warehouse licence is if he or she is satisfied that a director, officer or shareholder or an employee of the holder of the licence, being a person "who participates in the management or control of the warehouse", is "not a fit and proper person so to participate". A person is taken to participate in the management or control of a warehouse for each of those purposes if he or she has authority to "direct the operations of the warehouse" or "direct activities in the warehouse, the removal of goods from the warehouse, or another important part of the operations of the warehouse" or "direct a person who has [such] authority ... in the exercise of that authority". The "holder of a warehouse licence" is subject to a number of specific obligations. One of them is that the holder "must not permit warehoused goods to be delivered for home consumption" unless the goods "have been entered for home consumption" and "an authority to deal with them is in force". Within that overall context, s 35A(1) of the Act provides: "Where a person who has, or has been entrusted with, the possession, custody or control of dutiable goods which are subject to customs control: (a) fails to keep those goods safely; or (b) when so requested by a Collector, does not account for those goods to the satisfaction of a Collector in accordance with section 37; that person shall, on demand in writing made by a Collector, pay to the Commonwealth an amount equal to the amount of the duty of Customs which would have been payable on those goods if they had been entered for home consumption on the day on which the demand was made." The Court was informed on the hearing of the appeal that, in practice, officers of the Australian Taxation Office have been appointed as officers of Customs for the purpose of exercising the powers of a Collector under the Act in relation to tobacco products. Like customs duty, an amount payable by a person on whom a demand is made by a Collector pursuant to s 35A(1) is a debt due to the Commonwealth. Liability to pay that amount does not affect the liability of that person under or by virtue of any other provision of the Act, including such criminal liability as the person might have under s 36 of the Act. Mirroring the language of s 35A(1)(a) and (b), s 36 of the Act provides that a person who "has, or has been entrusted with, the possession, custody or control" of dutiable goods which are subject to customs control commits an offence of strict liability if the person "fails to keep the goods safely" or "when so requested by a Collector, does not account for the goods to the satisfaction of a Collector in accordance with section 37". Bearing on the operation of s 35A(1)(b), and on the operation of equivalent language in s 36, is s 37 of the Act. Section 37 provides that a person accounts for goods to the satisfaction of a Collector in accordance with that section if, and only if, the Collector sights the goods or (if the Collector is unable to sight the goods) the person satisfies the Collector that the goods have been dealt with in accordance with the Act. A decision of a Collector to make a demand under s 35A(1) is subject to review by the Tribunal. From the decision of the Tribunal on review an appeal lies on a question of law to the Federal Court. The facts Zaps operated a warehouse pursuant to a warehouse licence issued to it under Pt V of the Act. Mr John Zappia was the sole director of Zaps. Domenic, his son, was employed by Zaps as its "general manager" and its "warehouse manager". In accordance with the standard condition of its warehouse licence which required such notification, Zaps had notified the Australian Taxation Office that each of Domenic and his father was a person who participated in the management or control of the warehouse. Tobacco products were stolen from the warehouse in a break‑in which occurred when none of Zaps' employees were present. Following a meeting between Domenic representing Zaps and officers of the Australian Taxation Office, a Collector served a notice of demand under s 35A(1) of the Act on each of Zaps, Domenic and his father. Each notice asserted a failure to keep the stolen goods safely as required by s 35A(1)(a) and demanded from each respective person payment of an amount equal to the customs duty which would have been payable on the stolen goods if those goods had been entered for home consumption on the day on which the demand was made. Zaps, Domenic and his father each applied to the Tribunal for review of the decision to demand payment from them. Each was unsuccessful; the Tribunal affirmed each decision of the Collector. In affirming the Collector's decisions to demand payment, the Tribunal found that the tobacco products had not been kept safely, that Zaps had been entrusted with the possession, custody and control of those tobacco products by their owner, that Domenic's father as the person "in overall command of the business" exercised control over the stolen goods and had also been entrusted with that control in his capacity as an officer of Zaps, and that Domenic also exercised control over the tobacco products. In relation to the control exercised by Domenic, having recounted evidence to the effect that he made the operational decisions at the warehouse, that he oversaw and was responsible for what happened to warehoused goods and that he had operational control of the warehouse subject to needing to refer anything "big" - meaning any decision that might require legal advice or that might have taxation consequences - to his father, the Tribunal expressed its finding as follows: "I am also satisfied Domenic exercised control over the goods, albeit that his control was subordinate to that of his father and - ultimately - that of the company. The evidence establishes that he was the one who directed what was to happen to the goods on a day‑to‑day basis. He exercised delegated authority under which he could accept and release the goods. If he gave orders with respect to the goods, the employees followed them. His operational role was underlined by the fact he met with the officers from the [Australian Taxation Office] ... to discuss what had happened to the goods." Domenic appealed from the Tribunal's decision to the Federal Court. No appeal was brought on behalf of or by his father, who was a bankrupt, or by Zaps, which was in liquidation. The Full Court The Federal Court was constituted for the purpose of the appeal by a Full Court comprised of Davies, White and Moshinsky JJ. By majority, the Full Court allowed the appeal, set aside the decision of the Tribunal and declared that the demand made by the Collector on Domenic was "invalid and of no effect". The majority, White and Moshinsky JJ, concluded that s 35A(1) on its proper construction "is not to be understood as directed to the kind of control exercised by an employee of a licensed warehouse, acting in that capacity". The principal steps by which their Honours reached that conclusion were: first, to disaggregate the section's reference to "a person who has, or has been entrusted with, the possession, custody or control of dutiable goods" into six distinct applications; second, to treat the section's disaggregated application to a person who "has" the "possession" of dutiable goods as limited to a person who has exclusive possession of the goods; and third, to treat the section's similarly disaggregated application to a person who has "the control" of dutiable goods as similarly limited to a person who has exclusive physical control of the goods. Control exercised by employees, their Honours opined, "is not generally of that kind". Adoption of that construction meant that, in the opinion of the majority, the Tribunal had erred in law in its understanding of "control". "It determined the review adversely to Domenic even though he was an employee and even though he had incomplete control over the goods." Davies J disagreed. Her Honour took the view that "the possession, custody or control" in s 35A(1) should be read as a composite phrase in which "possession", "custody" and "control" each connoted a degree "of some right, power or authority to deal with the goods in question", with the result that the question of liability will "in each case ... depend on the measure of control exercised by the person over the dutiable goods". Her Honour accordingly declined to construe the section to mean that a person acting in the capacity of an employee and under the direction of someone else "could never be liable under that section", and noted that the Tribunal found that Domenic exercised "operational control". Her Honour nevertheless considered that the Tribunal erred in law in failing specifically to address the statutory question posed by s 35A(1)(a) of whether the operational control was such that it could be said that Domenic "failed" to keep the stolen goods safely on the occasion of the break‑in. On that basis, her Honour would have allowed the appeal and remitted the matter to the Tribunal for reconsideration, a course which White and Moshinsky JJ would have taken if their conclusion had been wrong. The appeal to this Court The Comptroller‑General, in the appeal by special leave to this Court, argues that Davies J was correct to decline to construe s 35A(1) of the Act in a way that puts an employee beyond the section's reach, and challenges the reasoning which led the majority in the Full Court to the contrary conclusion. The Comptroller‑General goes on to argue that the facts found by the Tribunal are sufficient to establish that Domenic both had control of the stolen goods and failed to keep those goods safely on the occasion of the break‑in. For Domenic, it is argued that the majority in the Full Court was correct in its ultimate conclusion that the Tribunal erred in law in its understanding of "control" in s 35A(1) of the Act, on the basis that the section's reference to "a person who has ... the ... control of dutiable goods" should be construed in context to connote a person who has "paramount control" as distinct from "subordinate control" of dutiable goods. That narrow construction is argued to be indicated by the "quasi‑penal" nature of s 35A(1) and by the use of the same language in the offence‑creating provisions of s 36. Although his father might have had paramount control, the argument is that on the facts found by the Tribunal Domenic did not. Construction of s 35A(1) The description in s 35A(1) of the Act of "a person who has, or has been entrusted with, the possession, custody or control of dutiable goods which are subject to customs control" must be read in light of the statutory purpose of subjecting dutiable goods to customs control, namely, to ensure that customs duty is paid before delivery of those goods into home consumption. The description must also be read in light of the obligations imposed by s 35A(1)(a) and (b) on a person who meets that statutory description, breach of either of which, on demand for payment by a Collector, triggers civil liability on the part of that person to pay to the Commonwealth an amount equal to the customs duty which would have been payable on those goods if they had been entered for home consumption on the day of the demand. Stated in affirmative terms, the obligation imposed by s 35A(1)(a) is to keep the dutiable goods safely, including by preventing their entry into home consumption without customs duty being paid. Stated in similarly affirmative terms, the obligation imposed by s 35A(1)(b) when read with s 37 is, on request by a Collector, either to show the dutiable goods to a Collector or to satisfy the Collector that those goods have been dealt with in accordance with the Act. The critical reference within the description to "the possession, custody or control" must be read in that context, recognising that none of the terms "possession", "custody" or "control" has a fixed legal meaning and that the power or authority of a person in relation to a thing connoted by any one or more of those terms in statutory collocation is a question of degree. The individual terms, used disjunctively, serve to indicate both that the requisite degree of power or authority is not closely confined and that the requisite degree of power or authority can arise from such a range of sources that, depending on the circumstances, one term might be more appropriate to use than another. Plainly, the reference within the description is to a degree of power or authority in relation to dutiable goods which need not rise to the level of having such control of, or power of disposition over, the dutiable goods as is needed for a person to be an owner of those goods within the meaning of the Act. Equally plainly, the reference is to a degree of power or authority in relation to dutiable goods which subsists despite those goods being subject to customs control under s 30 and which is sufficient to enable a person to meet the affirmative content of the obligations in s 35A(1)(a) and (b). The combination of the last two of those characteristics yields the relevant discrimen. The reference to "the possession, custody or control" of dutiable goods is appropriately construed as a compendious reference to that degree of power or authority which is sufficient to enable a person to meet the obligations both to keep those goods safely and, on request by a Collector, either to show the goods to a Collector or to satisfy a Collector that the goods have been dealt with in accordance with the Act. A person who "has" the possession, custody or control of dutiable goods within the meaning of the section is a person who possesses power or authority in relation to those goods to that degree, irrespective of the manner in which that person might choose to exercise that power or authority. This construction of s 35A(1) of the Act is consistent with the construction of an earlier and materially identical provision in s 60(1) of the Excise Act 1901 (Cth) adopted in Collector of Customs (NSW) v Southern Shipping Co Ltd. There a manufacturer had delivered, to a shipping company, excisable tobacco products which had not been entered for home consumption and which therefore remained "subject to the control of the Customs". Pending shipment, and with the knowledge and approval of an examining officer employed by the Department of Customs and Excise, agents of the shipping company had locked the tobacco in a store on a wharf which was owned by the Maritime Services Board of New South Wales. The agents had then handed the keys to the Customs office operated by the Collector of Customs for New South Wales. The wall of the store was broken and the excisable goods were stolen from it. The Collector of Customs afterwards demanded payment of the amount of excise which would have been payable had the goods not been stolen. The questions asked of the Full Court of this Court on a case stated included whether, as a matter of law within the meaning of s 60, the shipping company was "a person who had the possession custody or control" of the excisable goods and "a person who had been entrusted with the possession custody or control" of those goods. Also included in the case stated was a question whether, as a matter of law within the meaning of s 60(1)(a) - the equivalent of s 35A(1)(a) of the Act - the shipping company "failed" to keep those goods safely. To each of those questions the unanimous answer of the Court was affirmative. In so answering those questions, all members of the Court rejected arguments put on behalf of the shipping company to the effect that the "possession, custody and control" of the goods had passed to the Collector of Customs on the handing over of the key "because the Customs had a greater interest in the goods than the [shipping company] who was a mere carrier for reward" and to the effect that the shipping company had not "failed" to keep the goods safely because there had been no "dereliction of duty". Rejecting the argument that the shipping company had not "failed" to keep the goods safely, McTiernan J said that "[t]he task of keeping goods safely cannot be said to have been fulfilled if the goods are stolen even though reasonable precautions were taken". Yet his Honour also rejected as too extreme an argument made on behalf of the Collector of Customs to the effect that "fails" in s 60(1)(a) meant no more than "does not" and thereby imposed absolute liability. He said: "'Fails' is a word with various meanings. I think that in s 60 its appropriate meaning is that the person concerned is to be liable if he comes short of keeping the goods safely, that is preserving them from loss or damage. The word 'fails' in my opinion is not strong enough to impose upon the person concerned so onerous a duty as that of avoiding the unavoidable. ... Lex non cogit ad impossibilia. Paragraph (a) should be read subject only to that presumption." Dixon CJ, with whom Windeyer J agreed, adopted a similar construction of the word "fails". The reasoning of the other members of the Court, with the exception of Owen J, was not inconsistent with this approach. Once it is accepted that s 35A(1)(a) of the Act - and by parity of reasoning s 35A(1)(b) of the Act - imposes an obligation which a person must have the capacity to comply with in order to meet the description of "a person who has, or has been entrusted with, the possession, custody or control of dutiable goods", there is no reason why the power or authority that the person possesses needs to be exclusive or paramount. The subject of s 35A(1) is "a person". Consistent with the section's purpose of protecting the revenue, the operation of s 35A(1) is wider than that of a section dealing with, for example, the "holder of a warehouse licence". Several persons may each possess power or authority to the requisite degree within a chain of command or hierarchy of responsibility. Within the scheme of the Act, there is nothing surprising about the potential for several persons to be subject to liability under s 35A(1) for the same amount. Just as an amount of customs duty will be payable on dutiable goods entered for home consumption by each of several persons who meet the definition of "owner" until that amount is paid by some person, so an amount equal to the customs duty which would have been payable on dutiable goods if they had been entered for home consumption will be payable, on demand, by each person who meets the description of "a person who has, or has been entrusted with, the possession, custody or control" of those goods and who fails to comply with an obligation in s 35A(1)(a) or (b) until that amount is paid by some person. Thus, as is implicit in the detail of the licensing regime in Pt V of the Act to which attention has already been drawn, multiple directors, shareholders, officers or employees of the holder of a warehouse licence might have such authority to direct the operations of the warehouse or a part of the operations of the warehouse as to meet the description of "a person who has, or has been entrusted with, the possession, custody or control" of the dutiable goods within their respective spheres of responsibility. The mere fact that one or some of those persons might act subject to the direction of another is insufficient to disqualify any of them from having the requisite degree of power or authority in relation to the dutiable goods. Contrary to the argument advanced on behalf of Domenic, application of that approach to the equivalent language imposing criminal liability in s 36 of the Act does not run counter to the general principle of statutory construction that the imposition of criminal liability should be "certain and its reach ascertainable by those who are subject to it". The task of identifying the employees of the holder of a warehouse licence on whom that criminal liability is imposed is not significantly more difficult than the task of identifying the employees whom the holder of a warehouse licence is obliged to notify as persons who participate in the management or control of the warehouse. It is also incorrect to characterise the civil liability created by s 35A(1) of the Act as "quasi‑penal in character". To construe the common language of ss 35A and 36 in the manner indicated does not involve "extending any penal category". Application of s 35A(1) The facts found by the Tribunal were sufficient to establish that Domenic was a person who had the possession, custody or control of the stolen goods and who failed to keep those goods safely. The fact that he had authority to direct what was to happen to the goods in the warehouse on a day‑to‑day basis was sufficient to establish that he had the requisite degree of power or authority in relation to the goods. And the fact that the goods were stolen from the warehouse during a period in which he continued to have that authority was sufficient to establish that he failed to keep the goods safely. Orders The appeal is to be allowed. Orders 1 to 3 of the orders made by the Full Court on 19 September 2017 are to be set aside and, in their place, the appeal to the Federal Court is to be dismissed. In accordance with an undertaking given by the Comptroller‑General at the time of the grant of special leave to appeal, there is to be no order as to costs.

Comptroller General of Customs v Zappia

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