Milicevic v Campbell

Milicevic v Campbell - [1975] HCA 20 - HCA 1975 case summary — Zoe

[30]

The Commonwealth Parliament has power to make laws with respect to "trade and commerce with other countries " (s. 51 (i.) of the Constitution). That power clearly authorizes the Parliament to prohibit the importation of goods from other countries (Baxter v. Ah Way [3] ; Radio Corporation Pty. Limited v. The Commonwealth [4] ). To render any such prohibition effective the Parliament may validly legislate to render unlawful the possession of goods which have been imported in contravention of the prohibition (Irving (Collector of Customs for Queensland) v. Jengora Nishimura [5] ; Hill v. Donohoe [6] ) and to provide for the forfeiture of goods so imported (Burton v. Honan [7] ). It is unnecessary to discuss whether such legislation can be enacted under s. 51 (i.) alone or whether it also needs the support of the incidental power given by s. 51 (xxxix.). The power to make laws with respect to taxation (s. 51 (ii.)), under which legislation for these purposes may be enacted in so far as the protection of the revenue is involved, does not extend to s. 233B, which has nothing to do with taxation. Some remarks in Hill v. Donohoe [8] raise the question whether the statement that the parliament has power to make it unlawful to have possession of goods that have been unlawfully imported requires some qualification to render it correct. In that case it was held that knowledge is an element of the offence created by s. 233B (1) (c) - a situation since altered by the addition of sub-s. (1A) to s. 233B - but the court [9] left open the question whether parliament could validly legislate to make it an offence for a person to have in his possession prohibited goods which in fact had been imported, if he was ignorant of that fact. It is, however, difficult to see any reason in principle why the power should not extend to such a case. The fact that the statute may expose to punishment a person who was unaware that the goods in his possession had been imported would seem to go rather to the justice of the provision than to the question whether it was within the power. In Poole v. Wah Min Chan [10] it was held that s. 233 (1) (d) upon its proper construction did not make knowledge of the unlawful importation an element of the offence which it created, and the court assumed (although it did not expressly hold) that the section so construed was valid. Further, in Burton v. Honan [11] the court held valid a provision which brought about the forfeiture of goods unlawfully imported even though they had passed into the hands of an innocent purchaser. The fact that under s. 233B (1) (ca) it is not necessary for the prosecution to prove that the accused knew or himself suspected that the goods were unlawfully imported is therefore no objection to its validity.

[33]

The foundation of the argument for the plaintiff was that s. 233B (1) (ca) upon its proper construction does not make it an element of the offence which it creates that the goods the subject of the charge have been imported. To prove an offence against that section it is necessary to show that the accused had in his possession "prohibited imports". However, those words do not connote that the goods to which they refer have in fact been imported. They are given by s. 51 the special meaning of goods whose importation is prohibited under s. 50. They are goods which have been "put in a class tabooed", as Griffith C.J. said in Hill v. Donohoe [13] and it is made unlawful to import goods of that class (see ss. 233 (1) (b) and 233B (1) (b)) but the goods answer the description of "prohibited imports" whether they have been imported or not. The decision of this Court in Reg. v. Bull [14] established, although not without dissent, that goods can be "prohibited imports" within ss. 231 (1) (c) and 233B (1) (a) although they have not been imported [15] . Similarly, in s. 231 (1) (a) the words "prohibited imports" must have the meaning defined by s. 51 because it would not be sensible to refer to persons assembled for the purpose of importing goods which had already been imported. It is true that there are some sections of the Act - particularly, ss. 229 (b), 233 (1) (d) and 233 (2) - that would appear to be beyond power if the "prohibited imports" to which they refer have not in fact been imported into Australia, and it may be necessary, in order to render those provisions valid, to understand them as referring only to prohibited imports that have in fact been imported - cf. Irving (Collector of Customs for Queensland) v. Jengora Nishimura [16] . However, in the case of s. 233B (1) (ca) it is clear that the words "prohibited imports" simply refer to goods whose importation has been prohibited under s. 50 whether or not they have been imported. If it were necessary for the prosecution to establish that the prohibited imports had in fact been imported, the description of the goods as reasonably suspected of having been imported in contravention of the Act would be surplusage, and the provisions of s. 233B (1B) would be quite unnecessary.

[37]

The parliament may, when legislating with respect to a subject within the ambit of its powers, validly enact laws prescribing the rules of evidence and procedure to be observed in any legal proceedings, whether criminal or civil, arising in relation to that subject matter and may in particular cast the onus of proof upon either party to those proceedings: Williamson v. Ah On [18] ; Orient Steam Navigation Co. Ltd. v. Gleeson [19] ; and see also The Commonwealth v. Melbourne Harbour Trust Commissioners [20] . Of course, the parliament may not, by enacting legislation which purports to be merely procedural, extend the operation of its laws to subjects beyond its power; it cannot, in other words, expand the boundaries of its powers by its own enactments. For example, it could not validly provide that goods which had in fact originated in Australia should be deemed to have been imported, and that the customs legislation should accordingly apply to them. However, s. 233B (1) (ca), read in the light of s. 233B (1B), applies only to goods which have been imported into Australia, although the burden of proving that the goods were not imported lies on the person charged with the offence. Section 233B (1B) is an enactment of an evidentiary kind, and does no more than regulate the burden of proof, notwithstanding that if the fact in issue - that the goods were not imported - is established the person accused will have done nothing that could have been rendered unlawful by any enactment of the parliament. Section 233B (1) (ca) does not invalidly purport to apply to goods which in fact were not imported, for if it is proved, in the manner prescribed, that the goods were not imported, no offence is committed. The decision of this Court in Williamson v. Ah On [21] is in my judgment a very clear authority in favour of the validity of s. 233B (1) (ca) and s. 233B (1B). In that case the provisions of the Immigration Act Cth held to be validly made under s. 51 (xxvii.) and (xxxix.) of the Constitution operated in two ways now relevant - they placed on a person charged with being a prohibited immigrant the burden of proving that he was not an immigrant, and provided that the burden of proof should not be discharged unless (subject to an immaterial exception) the defendant in his personal evidence truly stated the name of the vessel by which he travelled to Australia and the date and place of his arrival. The provisions now under consideration do not go so far - they place the burden of proof on the person accused, but impose no limitation on the way in which the burden may be discharged. If Williamson v. Ah On was correctly decided, ss. 233B (1) (ca) and 233B (1B) should with stronger reason be held to be valid.

[57]

The question of substance sought to be argued only arises if in the context of s. 233B the words "prohibited imports" mean goods of a kind the importation of which has been prohibited. Then the offence is without reasonable excuse having in possession any goods of that kind which are reasonably suspected of having been imported into Australia in contravention of the Act. In my opinion the Commonwealth Parliament can validly create such an offence. It is true that if the words of s. 233B (1) (ca) are looked at without regard to sub-s. (1B) an offence may thereby be created in respect of goods which are in fact but not in proven fact indigenous to this country. But I do not think that thereby the legislature has exceeded its power. Importation is a part of trade and commerce with overseas countries. It appears to me that the purpose and effect of the paragraph is to deal with one aspect of that subject matter. It is a provision which is recognizably ancillary to the matter of importation. It gives practical effect in one important respect to the purpose of prohibiting the import of goods of the prohibited kind, namely, the prevention of the presence of such prohibited imports in Australia. A reasonable suspicion of import or of import in contravention of the Act may be all that can be established. That suspicion may be required to exist in the mind of some person at the time when the possession charged is alleged to have occurred or to exist in the mind of the court before whom the alleged offender is brought, depending on the true construction of the paragraph. But on either construction the reasonableness of the suspicion is a justifiable question. It is not the mere presence of the goods in Australia which is made the basis of the offence. It is the presence of those goods when they have the quality that they are reasonably suspected of having been imported in contravention of the Act. In my view such a provision must be regarded as a control in aid of the power to prohibit imports and effectively to forbid the presence or use in this country of imported goods, the importation of which is prohibited. Control provisions of like purpose may be found in other sections of the Customs Act. See, e.g., ss. 196, 197, 203 and 210 (1).

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Judgment (60 paragraphs)

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