Poole v Wah Min Chan [1947] HCA 37

; nd Radio Corporation Ply, Ltd. v. The Commonwealth (1938) 59 'OL R applied.

'The defendant was charged under s. 233 (1) (d) of the Customs Act |

1936 that he eer had in his possession prohibited imports, to diamonds.

information was dismissed on the ground that the informant did nc that the defendant had knowledge that the diamonds found in his were prohibited imports. 'The informant appealed to the High Coy

without reasonable excuse of prohibited imports is in itself an offence under 8. 233 (1) (d) of the Customs Act 1901-1936.

'The Court being equally divided on the validity of the regulation on which the prosecution was based, the decision of the Court was in accordance with the opinion of the Chief Justice.

Case Starep. Upon an information laid under s. 233 of the Customs Act 1901- 1936, by John Burfitt Poole, an officer of Customs stationed at Sydney, Wah Min Chan, of 115 Storey Street, Maroubra, New South Wales, was charged that at Sydney, in the said State, on or about 16th April 1947, he did contrary to the Customs Act 1901-1936, unlawfully have in his possession prohibited imports, to wit, six hundred and thirty-four (634) diamonds whereby Wah Min Chan, the defendant, had incurred a penalty in excess of the sum of £500, but such excess was abandoned. The informant averred, inter alia, that the said diamonds were brought to Australia from parts beyond the seas subsequent to Ist March 1940, and that a licence under reg. 3 of the Customs (Import Licensing) Regulations had not been granted for the importation of the diamonds.

• Section 52 of the Customs Act 1901-1936 provides that " the illowing are prohibited imports" and then follows a list under heads (a) to (') of the most heterogenous character. One of these headings is: '"(q) All goods the importation of which may be prohibited by regulation." So far as material, s. 233 of the Act provides : - (1) No person shall . . . (d) unlawfully convey or have in his possession any smuggled goods or prohibited imports or prohibited exports . . . (2) It shall not be lawful for any
• person to convey or have in his possession without reasonable

excuse (proof whereof shall lie upon him) any smuggled goods or prohibited imports. (3) It shall not be lawful for any person to convey or have in his possession any prohibited exports with intent to export them or knowing that they are intended to be unlawfully exported."

Regulation 3 of the Customs (Import Licensing) Regulations _ (Statutory Rules 1939 No. 163) provides that " the importation _ of any goods shall be prohibited unless - (a) a licence to import the _ goods is in force and the terms and conditions (if any) to which the licence is subject are complied with ; or (6) the goods are excepted from the application of these Regulations." The defendant pleaded not guilty.

The following facts were found by the magistrate to be established

_ to his satisfaction by the evidence given before him : - (a) that the

Starke, McTiernan and Williams JJ, that possession H. C. or A.

defendant on 16th April 1947 at Sydney, New South Wales, had in his possession six hundred and thirty-four diamonds ; (6) t] the said diamonds were prohibited imports (a submission by cot for the defendant that the said diamonds were not prohibited imyx in that the Customs (Import Licensing) Regulations by which th importation was prohibited were invalid was left undecided) ; that the defendant gave an untrue account as to how he came to be possessed of the said diamonds ; (d) that a licence to import t said diamonds had not been issued to the defendant ; and (e) that the defendant had the said diamonds in his possession unlawfi

After hearing the informant and his witnesses the magistrate dismissed the information on the following grounds : - {i) 1 submission by counsel for the defendant, citing in support th the cases of Hill v. Donohoe (1) and Lyons v. Smart (2) that it

that the diamonds found in his possession were prohibited impo: was upheld by him; and (ii) that whilst from the untrue ace and evasive answers given by the defendant when questioned a to his possession it could be implied that his possession of the diamonds was unlawful, there was, in the magistrate's opinion, no

as to the specific character of the said goods, that is to say, tl a they were prohibited imports.

Upon the informant contending that the magistrate was in in holding that the prosecution must prove, as an element of offence constituted by s. 233 (1) (d) of the Customs Act 1901-19 and charged against the defendant, that the defendant had know- ledge that the goods found in his possession were prohibited import a case was stated for the opinion of the High Court. The questi for the determination of the Court was whether the magistrat determination dismissing the information was erroneous in pi

Further relevant statutory provisions appear in the judgm hereunder.

Taylor K.C. (with him Allen), for the appellant. The Custo Act 1901 was materially amended by the Customs Act 1910 by # insertion in s. 233 (1) (d) of the words " prohibited imports " the inclusion of sub-s. (2) which defines " unlawful," therefore decision in Lyons v. Smart (2) is no longer applicable. In th case there was no evidence to show that the defendant knew th the goods in question were prohibited imports. The case was

authority for the sole proposition that no offence had been com- mitted. The Court in that case, and also in Hill vy. Donohoe (1) was only concerned with the quality of the offence, that is, whether or not it was an offence under the Customs Act, and was not at all concerned with the onus of proof. The finding of the magistrate of the fact that the possession was unlawful is sufficient to dispose of the case. It is a finding that the respondent had the subject goods unlawfully in his possession, The offence is established, irrespective of proof of knowledge, when the ingredients set out in par. (d) of s. 233 (1) are established, and it is then incumbent upon

the defendant, if he desires to exculpate himself, to establish a reasonable excuse under sub-s. (2) of s. 233. Once it is conceded that lack of knowledge that the goods are prohibited imports is a reasonable excuse, then it must follow that proof of knowledge is not necessary to establish the offence in the first instance (Maher v. Musson (2)). It is not necessary for the informant to prove lack of knowledge on the part of the defendant ; the onus of proving such lack of knowledge is upon the defendant (Francis v. Rowan (3) ; Prowlman vy. Dayman (4); McLeod v. Buchanan (5)). Section 233 (1) (d), read particularly in the light of sub-s. (2) of s. 233, clearly establishes that the offence is prima facie proved against the defendant by proof of the matters specified.

Barwick K.C. (with him Smyth), for the respondent. The findings by the magistrate are, in effect, that in his opinion the possession by the defendant was not honest, but that there was not sufficient evidence to enable him, the magistrate, to conclude that the defen- dant had any knowledge of the precise character of the goods in the relevant sense, namely, that they were prohibited imports. It is quite clear that the magistrate did not mean to find that they were unlawfully in the defendant's possession within the meaning of par, (d) of s. 233 (1). It was held in Lyons v. Smart (6) that the word "unlawfully" in s. 233 included " knowingly," but that it

_ was not merely " knowing " and the Court came to the conclusion that the portion of the statute that the possession had to contravene was the part relating to importation. The insertion in s. 233 of sub-s, (2) by the 1910 Act was directed only to that part of Lyons y. Smart (6) involving the word " unlawfully" and which dealt with the endeavour to find what was in contravention of the Act.

(1) (1911) 18 C.L.R. 224. (4) (1941) 67 C.L.R. 536, at pp. (2) (1934) 52 CLR, 100, at pp. 538-540, 543. 103-105, 109. (5) (1940) 2 All E.R. 179, at p. 186.

(3) (1941) 64 CLR. 196, at pp. (6) (1908) 6 C.L.R. 143, » 202, 204.

a The Parliament intended scienter to be part and parcel of the offence. ' Sub-section (2) of s. 233 creates a substantive and separate offence e This view is assisted by sub-s. (3). Section 233 (1) (d) is not impin ; ged; the draftsman has provided a new offence. He got rid of tl word " unlawfully" and he got rid of the need for scienter as par of the Crown case, but he has left the escape for the defendant in- the words " without reasonable excuse." The onus is upon the prosecution of proving that the defendant was in fact in possession of goods which goods were in fact prohibited imports, or in lai prohibited imports, and that he knew that they were prohibit imports. Lyons v. Smart (1) decided that s. 233 meant that defendant had to have the goods in his possession knowing them | 0 be prohibited imports and that he must have partipatadal in tl importation in substance. The section as amended provides for the retention of all the words and that it was not necessary that 2 defendant should have been a participant in the importation of the prohibited goods. The amendment deals only with one of the two elements in Lyons y. Smart (1). Section 2338, inserted by the 1910 Act, is notable for the absence of the word " unlawfully " for the fact that it provides for a precise set of circumstances th would be covered by s. 233 (1) (d) if the word " unlawfully " does not involve scienter. There is some difference between s, 233 | (d) and s, 2338, Alternatively, on the footing that sub-s. (2) of s. 233 provides a full dictionary for the word " unlawfully " in 233 (1) (d), there is no difference. Hill v. Donohoe (2) is a preci and distinct decision that scienter is a necessary ingredient of offence, that guilty knowledge is an essential ingredient of offence. Reasonable excuse is not directed to the mental clement. Maher v. Musson (3) was decided, in one sense, on the narrow ground that the Court was justified in construing the statute there under consideration as involving mens rea. The statute was hi to be a revenue statute im stricto sensu and because of that one co be warranted in not requiring mens rea. The expression in sub-. (2) of s. 233 " without reasonable excuse" must mean " with reasonable excuse in relation to the Customs Act," that is to say there must be some Customs' excuse for the possession. There is _ nothing in the Act which makes want of knowledge a reasonabl Cosine excuse. ene BOC of the legislature is to make it

(1) (1908) 6 C.L.R. 143. (3) (1934) 52 C.L.R, 100. (2) (1911) 13 C.L.R, 224.

at all. What is dealt with under " reasonable excuse" is some Customs' excuse which would exclude his possession under the Customs law. Lyons v. Smart (1) was regarded in Attorney-General for New South Wales v. Brewery Employés Union of New South Wales (2) as an authority for the proposition that without scient

_ the offence would have been ultra vires. 'The construction of s should not be approached without the aid of the intervening d and amendments. An analysis of Lyons v. Smart (1) sho

_ "knowingly" was there held to be part of "unlawfully." The cases where mens rea is said not to be an essential ingredient of the offence are summarized in R. v. Turnbull (3). The fact that s. 2338 was inserted in the Act at the same time as s. 233 (1) was amende and that there was no repetition of the word " unlawfully _ 233n, is an additional aid to the view that there is some significance left in the word " unlawfully " beyond mere contravention of the Act. This is particularly so having regard to the fact that s. (1) (c) may cover some part of the same ground. If the words "without reasonable excuse" mean, as it is submitted they do, that knowledge is a necessary ingredient of the offence under s.

• 233n, then " without reasonable excuse" cannot be directed to knowledge. There is no room for that view of s. B. The Customs (Import Licensing) Regulations are ultra vires. Those regulations, which were promulgated after the decision in Radio Corporation Pty. Ltd. v. The Commonwealth (4) do not specify a list of prohibited goods but are in general terms. The regulations are repugnant to the Customs Act because they cover in part, and severally cover, classifications covered by the statute. Regulation ~ $ of those regulations covers all the goods specifically referred to in _ s, 52 of the Act and subjects them to licence. _In effect it provides that goods prohibited by s. 52 may be imported subject to a licence 'therefor being granted under the regulations. This effect is not cured by reg. 5 of the regulations. The whole of the law which ~ operates in the case of prohibited imports is to be found in the Customs Act. The reference to " any other law" in reg. 5 must refer to something outside s. 52, because s. 52 is the law on the subject (Baxter v. Ah Way (5)). The regulations are not in themselves ~ the law, they are simply part of s. 52. 'The effect of the regulations is to supersede all the classifications in s. 52 and supplant them
• with a statement, " any goods except under licence." The regu- lations make goods which are absolutely prohibited in s. 52 impor-

(2) (908) 6 C.L.R. 145. (4) (A938) 59 C.L.R. 170. . a (1908) 6 C.L.R. 469, at p. 518. (5) (1909) 8 . at pp. 636- @) (1942) 44 SB 2) Los; GL 640.

• table subject to licence, a result which is not avoided by reg. 5,

It follows that the regulations are ultra vires (Bentham y. Hoyle (1) The power given under s. 52 (g) to make regulations is merely power to nominate classes of goods. To provide that all go are prohibited imports is to do something which s. 52 does contemplate, because it is a section in which there is a spec segregation of prohibited imports in a fairly limited range of go all of which, on the face of them, have some public reason associat with their prohibition. There is an intention that the Governor General in Council should consider and direct his attention to a specific class or classes of goods. The regulations, however, a a general policy that no goods ought to come into this count unless the Executive permits the importation of those goods. is entirely outside the basis of s. 52. The regulations change 1

its provisions. The decision in Radio Corporation Pty. Ltd. y. Commonwealth (2) does not mean that the Minister may reserve himself some individual remission of the prohibition, All he do is to make the conditions of the prohibition itself a general uniform rule.

Taylor K.C., in reply. Although the Customs Act was am by the 1910 Act, s. 233 was not amended. It is a completely section and the word " unlawfully " contained in the new secti must be understood at least in the light of sub-s. (2) which enacted at the same time. Sub-sections (2) and (3) were inter to deal with the word " unlawfully " in relation to the prohil te imports and exports so far as they are covered by s. 233 (1) (d), The question of onus of proof was not discussed in Hill v. Donohoe (3) and it is submitted that the Chief Justice at no time intende deal with it. His Honour did not adopt Lyons v. Smart (4) real basis so far as onus of proof was concerned but made refer to the nature of the offence. Although the question of knowl was dealt with in R. v, Turnbull (5) that was an entirely diffe case. Section 233 does not make an offence of innocent poss Section 2338 is directed to preventing the unlawful possession prohibited imports. Referring more particularly to s, 233 ( prohibited imports are well within the sphere of Customs legisla and possession of such imports without lawful excuse is well the ambit of such legislation. The various sub-sections of s

(1) (1878) 3 Q.B.D. 289, at pp. 293, (4) (1908) 6 C.L.R. 143, {

204. (5) (1943) MSR. (N.S.W,) 108; | (2) (1938) 59 C.L.R. 170. W.N, 7 (3) (1911) 13 C.L.R. 224,

do not furnish mutually exclusive groups of goods. The provision H- ©. oF A.

as to " all goods " in sub-s. (g) of s. 52 is a power which is sufficiently _ wide to prohibit absolutely the importation of all goods and certainly includes a power to prohibit subject to a " condition or restriction " (s. 56), the importation of any goods. It has been said that the __ limit of the discretion conferred by s. 52 (g) possibly was a discretion to examine particular classes of goods and to decide whether their importation should be prohibited. Instead of, perhaps, in a partic- ular ease the Executive directing its attention to a particular limited class of goods the importation of which should be totally prohibited, it might think it necessary that all goods, unless they complied with some specified condition or restriction should be "prohibited imports. Radio Corporation Pty. Ltd. v. The Common- wealth (1) decides that the requirement that the Minister's consent shall be obtained is a permissible condition or restriction under 8, 52 (g) and s. 56; then under s. 52 (g) the importation of all goods may be prohibited subject to that particular specified condition or restriction. There is nothing in s. 52 (y) to warrant the view that the word "all" in the phrase " all goods " means " such specified class." This Court has held that "all goods" in circumstances Ry a id to the circumstances in this case mean " all" goods

• (Vietorian Chamber of Manufactures vy. The Commonwealth (Prices ; sr Riblations) (2)). The expression " any other law " in reg. 5 of the Customs (Import Licensing) Regulations means " any law other than these regulations."

'3 The following written judgments were delivered : - Latiam ©.J. This is an appeal by of case stated from a sion of a stipendiary magistrate dismissing a charge against Yah Min Chan that he did, contrary to the Customs Act 1901-1936, a unlawfully have in his possession prohibited imports, to wit, 634 ionds. It was proved that the defendant had 634 diamonds in his possession. It was also proved that no licence to import the diamonds had been issued to the defendant. The Customs (Import Licensing) Regulations, (Statutory Rules 1939 No. 163) provide (reg. 3) that : - " The importation of any goods shall be prohibited unless - (a) a licence to import the goods is in force and the terms conditions (if any) to which the licence is subject are complied "3 with: , OF (b) the goods are excepted from the application of these Tt was also established to the satisfaction of the

ee ) (1898) 59 CLR. 170. (2) (1943) 67 C-L.R. 335, at pp. 340,

magistrate that the defendant gave an untrue account as to ho came to be possessed of the diamonds. The magistrate dismi: the information on the ground that the cases of Hill v. Donohoe and Lyons v. Smart (2) showed that it was a necessary element the offence charged that the defendant should know that diamonds found in his possession were prohibited imports. magistrate adds, in his statement of the grounds upon whic dismissed the information : - * That whilst from the untrue account and evasive answers given by the defendant when questioned to his possession it could be implied that his possession of th diamonds was unlawful, there was, in my opinion, no eviden which a knowledge could be imputed to the defendant as to specific character of the said goods that is that they were prohibit imports." The charge was laid under the Customs Act 1901-19 s. 233, which provides as follows : - '" (1) No person shall smuggle any goods; or (b) import any prohibited imports ; (c) export any prohibited exports; or (d) unlawfully convey have in his possession any smuggled goods or prohibited imy or prohibited exports. Penalty: One hundred pounds. ( shall not be lawful for any person to convey or have in his posse without reasonable excuse (proof whereof shall lie upon him) smuggled goods or prohibited imports. (3) It shall not be la for any person to convey or have in his possession any prohibit exports with intent to export them or knowing that they intended to be unlawfully exported." When Lyons v. Smart (2) was decided in 1908 s, 233 was im very different form. Section 233 of the Customs Act 1901 'then provided as follows : - * No person shall smuggle or unl y import, export, convey or have in his possession any goods. The Court held that the word " unlawfully " attached to the acts described in this provision. A provision, however, no person should unlawfully have in his possession any g construed according to the simple and natural meaning of the wi could not be supported as legislation with respect to customs. Court interpreted the section as not purporting to impose a pe on a person who is in possession of goods which had been unk; imported if that person was in no way connected with their in tation, although he knew that they had been so imported. Se 233 of the 1901 Act, however, was repealed by Act No. 36 of I! and the section as it now appears (amended by Act No. 12 of is in a very different form. 'The difficulties with which th dealt in Lyons vy. Smart (2) do not arise in connection with

(1) (1911) 13 C.L.R, 224. (2) (1908) 6 C.L.R. 143, s

_ present section as it stands, In my opinion the decision in Lyons vy. Smart (1) does not give any assistance in the interpretation of the present section. 3

Hill v. Donohoe (2) was a decision upon s. 2338 (1), which provides that any person who - * (c) without reasonable excuse (proof whereof

shall lie upon him) has in his possession any prohibited imports to

which this section applies which have been imported into Australia

'in contravention of this Act " shall be guilty of an offence against

the Act. In Hill vy. Donohoe (2) it was held that it was an element

of the offence constituted by this section that the defendant should

_ know that the prohibited imports found in his possession had been

imported into Australia in contravention of the Act. Section 233n

(1) () is a very different provision from s. (1) (d) read in con-

_ junction with sub-ss, (2) and (3) of that section, and Lill v. Donohoe

(2) construing s. 2338 (1) (c), cannot, in n opinion be regarded as

ag an authority upon the construction of s. 233 (1) (d).

The section as it now stands provides that a person is guilty

of an offence if he unlawfully has in his possession any (1) smuggled goods, or (2) prohibited imports, or (3) prohibited exports. Under

_ such a provision a question at once arises as to the meaning of the

word "unlawful." In sub-s. (2) the legislature has expressly

Provided that certain facts shall constitute unlawful possession of

smuggled goods or prohibited imports. Sub-section (2) provides

that the possession by a person of goods shall be unlawful if () they are prohibited imports, and (2) he is in such possession without reasonable excuse, proof of such excuse to lie upon him. If these conditions are satisfied the possession is declared by the statute to

Aa be unlawful and it is unnecessary to consider whether or not the

_ person charged knew that the goods were prohibited imports. A

defendant may be able to show that he had no reason to believe

that the goods were prohibited imports. Generally, such proof would provide a reasonable excuse, The opinion that possession without reasonable excuse of prohibited imports in itself and independently of any further mental element consisting in know- ve ledge that the goods are prohibited imports is an offence is supported

a by a consideration of sub-s. (3). Sub-section (3) relates to prohibited

3 exports and contains a provision which is applicable in interpreting _ the word " unlawful " in s. 233 (1) (¢) in connection with prohibited

EBay orts Sub-section (3) provides that it shall not be lawful for

any person to convey or have in his possession any prohibited sors "with intent to export them or knowing that they are (1) (1908) 6 CLR. 143. (2) (1911) 13 CLLR. 224.

present section, and it is the duty of the Court to construe the H- ©. or A. ' 194

~233 (1) (d). They do, however, expressly provide that ce

intended to be unlawfully exported." In this case the legislati has defined a mental element the presence of which is necessary it order to make possession unlawful under the provisions of sub-s. ( There is no corresponding provision in sub-s. (2) relating to any mental element in the offence except in so far as a mental element is introduced by the words " without reasonable excuse " - wor which would entitle the defendant to explain his possession of goods by reference to his knowledge or intent. The onus of pro' the existence of a reasonable excuse is expressly imposed pure defendant.

possession shall be unlawful, and in the present case the condition specified in sub-s. (2) are satisfied in that the defendant had diamonds in his possession, and he had no reasonable excuse having them in his possession. If they were prohibited impo he should have been convicted. f

The next question is whether the diamonds were prohibit imports. It is contended that the Customs (Import Licensing Regulations, the principal provision of which has been quoted, invalid. They were made under the power conferred by ss. 52. 270 of the Customs Act. Section 270 confers a general power make regulations prescribing matters which by the Act are permit to be prescribed &c, Section 52 provides that: " The follow are prohibited imports." Then follows a list under heads (a) to ( of the most heterogenous character. One of these headings i

"(y) All goods the importation of which may be prohibited b regulation." It is contended for the defendant that some limitatio1 should be placed on the generality of these words. On the ofl hand, it is contended for the prosecutor that the words simply m« that the list of prohibited imports may be added to by regulat and that regulations may add small classes or large classes or m go so far as to prohibit the importation of any goods at all.

I have said that the categories of goods mentioned in s. 52 con stitute a heterogenous list. The list includes (a) copies of work which, if made in Australia, would infringe copyright, provi that a certain notice is given; (b) false money of various kin (c) blasphemous, indecent or obscene works or articles ; (d) manufactured by prison labour; (e) exhausted and adulter tea; (f) oleomargarine or substitutes for butter unless colour and branded as prescribed ; (h) all goods having thereon or thers e any false suggestion of government guarantees ; and (/) m

oil and mineral spirits unless imported under and subject to such restrictions as may be declared by proclamation. Thus the goods bs "which are specified are described by reference to what may be _ aalled physical or moral or economic or hygienic qualities except _ in the case of mineral oil &c. They possess no common charac-

ic except that for one or other of greatly varying reasons

_ Parliament was of opinion that their importation should be pro- nibi It has been held in Radio Corporation Pty. Ltd. v. The monwealth (1) that the ejusdem generis rule cannot be applied ¢ provision authorizing the prohibiting by regulations of " all s the importation of which ape be ees by regulation."

estriction which could validly be imposed falar s. 56 of the Act, hich provides that the power of prohibiting importation of goods which is plainly a reference to s. 52 (g) ) shall authorize prohibition, ubject to any specified condition or restriction, and that goods orted contrary to any such condition shall be prohibited or 'icted imports,

i ei anes of the feiae In my opinion no argument of y definiteness and precision has been adduced to support this tention. I agree that the power to add by regulation to the | of prohibited imports has been used so as to produce a complete we in the effect of customs legislation. The Customs Act, with the importation of goods, provides for importation of ds subject to the operation of a limited list of prohibitions. s to that list may be made by regulations. The effect of 'Import Licensing Regulations is to substitute for this system eral prohibition of imports subject to allowances of importation y licences. There are many obvious objections to a system which clearly involves the risk of arbitrary control and discrimination ct of which a member of the public has no effective remedy. ether economic or other circumstances justify the establish- of 'such a system notwithstanding such objections i is a matter r Parliament, and not for the court. In my opinion the provision t prohibited imports include all goods the importation of which be prohibited by regulations means that regulations may ~~ importation of any specified goods or of all goods.

A similar question arose with respect to the power confer upon the Minister by the National Security (Prices) Regulat reg. 22, to declare " any goods to be declared goods " for the purp of the regulations. It was argued that the Minister under th provision had power only to declare goods class by class and he had no power to make what might be called an over-all dec! tion of all goods subject only to a very limited exception. Thi contention was rejected in Victorian Chamber of Manufacture The Commonwealth (Prices Regulations) (1). In my opinion, reasoning upon the basis of which that case was decided app to meet the objection now under consideration. See also Regos (2) ; Cody v. Nelson (3). In these cases it was argued 1 a power to declare by regulation any act in contravention of National Security Regulations to be black marketing should be limited some way so as to be applicable only to some acts in contravent of National Security Regulations. This argument was not accep by the Court. '

It was further contended that the Import Licensing Regulat were invalid because they provide that the importation o: goods shall be prohibited unless a licence to import the goods. been granted under the regulations. It was argued that - provision meant that if a licence were granted for any goo goods could be imported, and that such a provision would be in sistent with s. 52, which provided that certain goods should n amparted In my, opinion a is 'no substance in this obje

vision makes it unlawful. They leave all the provisions of s. pars. (a) to (f) and (h) and (¢) in full operation. Further, ri of the Import Licensing Regulations provides that the grant licence under the regulations with respect to any goods shall not absolve any person from the obligation to comply the provisions of any other law relating to the importation o: The Customs Act is a law which contains many provisions relat to the importation of goods. Regulation 5 makes it plai abundanti cautela, that all these provisions, including s. 52. continue to be applicable. But, apart altogether from reg. provisions of the Act would of course continue to operate.

In ay, opinion, therefore, the determination of the ma

should be allowed and the case remitted to the magistrate fi determination in accordance with law.

my brother Dizon and agree with it. The appeal should be dismissed.

Es Starke J. This is an appeal which comes before this Court in the form of a case stated pursuant to the Justices Act of New South Wales by a stipendiary magistrate exercising Federal jurisdiction.

The respondent - the defendant - was charged under s. 233 of the Customs Act 1901-1936 that he unlawfully had in his possession prohibited imports, to wit, 634 diamonds. The magistrate dismissed the information for the reason that the informant did not prove that the defendant had knowledge that the diamonds found in his possession were prohibited imports.

So far as material s. 233 provides : - (1) No person shall

(@) unlawfully convey or have in his possession any smuggled goods or prohibited imports or prohibited exports. . . . (2) It shall not be lawful for any person to convey or have in his possession x without reasonable excuse (proof whereof shall lie upon him) any smuggled goods or prohibited imports. (3) It shall not be lawful _ 'for any person to convey or have in*his possession any prohibited _ exports with intent to export them or knowing that they are intended to be lawfully exported.

An Act of Parliament "may prohibit an act or enforce a du in such words as to make the prohibition or the duty absolute " (et. Mousell Bros. Ltd. v. London and North-Western Railway C 'o.(1)). 'The presumption that the wrongfulness of an act is an essential ingredient of every offence "is liable to be displaced " by the scope of the Act are the offence and the evils to be avoided (Sherras _y. De Rutzen (2) ). And the presumption is weak in the case of e. iF offences pda 3 the revenue, public health and so forth (cf. _ Cundy v. Le Cocg (3); Horton v. Garynne (4); R. v. Duke of Lein- ster (5); Proudman vy. Dayman (6) ). The words of the Customs Act are absolute in form. No person shall unlawfully have in his possession prohibited imports. ' Unlawfully," as Denman J. said _in R. y. Prince (7) means "* without lawful excuse,' using those words as equivalent to ' without such an excuse as being proved would be a complete legal justification for the act, even where all 'the facts constituting the offence exist'. '"* Cases," he adds, ** may easily be suggested where such a kana might be made out, as, for

(1) (1917) 2 K.B. 836, at p. 845. (5) (1924) 1 K.B. 311. (2) (1895) 1 Q.B. 918. (6) (1941) 67 C.L.R. 536, at p. 540. (3) (1884) 13 Q.B.D. 207, (7) (1875) LR. 2 C.C.R. 154, at p.

Ricu J. I have had the advantage of reading the judgment of H- ©. or A.

• instance, if it were proved that he had the authority of a court 0

competent jurisdiction, or of some legal warran ." And an insta of a lawful excuse in the present case might be the seizure of pro: hibited imports by customs officers in the performance of the duties. x

The intention of the Act to create as wide a presumption possible of knowledge is disclosed by the sub-section declaring it shall not be lawful for any person to have in his possession out reasonable excuse (the proof whereof shall lie upon him) prohibited imports. The next sub-section is also important, f intent and knowledge is expressly required in the case of exports "Tt shall not be lawful for any person to convey or have in his possession any prohibited exports with intent to export the knowing that they are intended to be unlawfully exported." -

In my opinion, therefore, the provisions of s. 233 are abs

possession, the proof whereof lies upon him. A reasonable ex depends upon the facts established in evidence. The sub-section contemplates that the person in possession of the prohibited im may not establish any legal justification for his possession and have a reasonable excuse. ee' The magistrate relied upon Lyons v. Smart (1) and Hi ill Donohoe (2) in support of his decision. But the Act has materially amended since those decisions and the intention o Parliament more clearly expressed in the sub-section provi that it shall not be lawful for any person to have in his posse prohibited imports without reasonable excuse. During the ment the cases of Maher v. Musson (3); Francis v. Rowan | and Proudman v. Dayman (5) were also referred to but they are} inconsistent with any proposition of law already stated and tl do not affect the proper construction of the Customs Act 1901- for they were decided on other Acts.

contrary to the provisions of the Customs (Import Licensing) lations, Statutory Rules 1939, No. 163, purporting to have been) under the Customs Act 1901-1936, ss. 52 (g), 56, 270. : ¢ But the defendant contends that the diamonds were not } hibited imports. @ (1) (1908) 6 ©.

(4) (1941) 64 C.L.R. 196. (5) (1941) 67 C.L.R. 536.

They are not included, I gather, in the schedules to the Customs H- C. oF A. rohibited Imports) Regulations, Statutory Rules 1934 No. 152, 7; No. 69 or in any of the subsequent amendments of those lations the latest of which appear to have been made in 1947 Statutory Rules 1943 No. 11, note (c), 1947 Nos. 66 and 81). The validity of the 1934 and 1936 regulations was 'established in io Corporation Pty. Lid. v.. The Commonwealth (1) under the powers contained in ss. 52 (g) and 56 of the Customs Act 1901-1936. regulations prohibited the importation of various goods, me absolutely, some subject to the consent of the Minister and "some subject to certain conditions and restrictions. But, as already ted, the informant relied upon the provisions of the Customs (Import Licensing) Regulations, Statutory Rules 1939, No. 163.

'¢ - 'The Act, s. 52, prohibits the importation of various articles and z sub-s. (g) all goods the importation of which may be prohibited regulation.

And s. 56 provides that the power of prohibiting importation

of goods shall authorize prohibition subject to any specified con- dition or restriction and goods imported contrary to any such ndition or restriction shall be prohibited imports.

The Customs (Import Licensing) Regulations, 1939 No. 163, by

3, provide : - -The importation of any goods shall be prohibited

• (a) a licence to import goods is in force and the terms and

ie Minister may grant a licence subject to such terms and con- s as he approves or determines and he may revoke any licence he may also delegate his powers to a licensing officer subject to eal to himself. The regulations apply notwithstanding that a e or pub Ss the importation of goods is in force under

absolve any person from the obligation to comply with Bie ions of any other law relating to the importation of goods. regulations are carelessly drawn. But they do not enable the er to licence the importation of goods prohibited by the oms Act or the Customs (Prohibited Imports) Regulations. It is t clear, however, whether a licence is required in respect of goods importation of which is prohibited under the regulations except h the consent of the Minister. And it is also not clear whether e licence required by the Jmport Licensing Regulations is additional he conditions and restrictions in respect of goods the importation (1) (1988) 59 C.L.R. 170.

H.C.or A. of which is prohibited under the Prohibited Import Regulations rages except subject to conditions and restrictions specified there Botiess But it is established by the Radio Case (1) that the require

v. of the consent of the Minister to the importation of goods is witl wa ee the power conferred by the Customs Act. And it must be conced a also, in view of that decision, that the goods may be described "tarkeJ- general terms. There is little difference between the consent of the Minister and the licence of the Minister, And the eri question is whether the regulations must particularize or identify

in some manner the goods in respect of which a licence is required,

The importation of any goods is prohibited by the regulatio unless a licence to import the goods is in force and the terms and conditions of the licence are complied with. But the Act appli : to all goods the importation of which may be prohibited by regu- lation which indicates that some particularization and identificat of the goods is required, even though a licence be a condition restriction upon importation under s. 56 of the Act, and even thot the description or classification of the goods may be in general ter such as may be found in the Customs (Prohibited Big O) Regu. lations.

In my judgment, however, prohibiting the importation of all goo unless with the licence of the Minister or his delegate is too wi and beyond the power conferred by the Act. The Minister his delegate are at large. "A loose and unfettered discretio this sort upon matters of such grave import, is a dangerous weaj to entrust to any court," or to any Minister. "Its exercise likely to be the refuge of vagueness in decision, and the harbour half-formed thought " (cf. Morgan v. Morgan (2) ). If the languay of the Customs Act 1901-1936 plainly requires the wide construe which has been suggested the courts must give effect to it but the words of the Act must be clear and compelling. Here they admit readily of the interpretation that some particularization or identifi cation is required of the goods in respect of which a licence must be obtained. Moreover, as I have indicated, the relation and int action of the Customs (Import Licensing) Regulations and the Custon (Prohibited Imports) Regulations 1934-1947 is somewhat uncertai But that is unimportant if the Customs (Import Licensing) R lations axe ultra vires the Customs Act 1901-1936, s. 52 (g), as, in

The result is that the magistrate was right in dismissing information though for reasons which he left undecided as he state in this case. -

(1) (1938) 59 C.L.R. 170. (2) (1869) LR. 1 P. & D. 644, at p. 647.

under s. 233 (1) (d) of the Customs Act 1901-1936. 'The foundation _ of the offence is the possession of prohibited imports. The goods alleged to be prohibited imports are diamonds, and the ground alleged for treating them as prohibited imports is that no licence had been granted under the Customs (Import Licensing) Regulations 'a _ for the importation of the diamonds. Regulation 3 of those regu- __ lations, which are Statutory Rules 1939 No. 163, provides that the importation of any goods shall be prohibited unless (a) a licence to import the goods is in force and the terms and conditions (if any) to which the licence is subject are complied with, or (b) the goods s are excepted from the application of the regulations. ee, The licence is granted by the Minister of Trade and Customs or "e a licensing officer to whom he delegates the power. Exceptions are made by the Minister. The person desiring to import goods is must apply upon such form as the Minister directs for a licence in respect of the goods and must supply any additional information that is sought. He must give firm directions to his overseas 4 "supplier for the exportation of the goods to Australia and must sian the Collector of Customs if the goods are not despatched

ithin a month or if the directions are countermanded or if the are not imported within the time specified in the licence. The Minister or his delegate may grant the licence in respect of all or part only of the goods, may impose terms and conditions, may 4 'vary or modify the terms and conditions and may revoke the licence. There is nothing to indicate the grounds upon which his

discretion should be exercised. It will be seen that the purpose of ei the regulation is to prohibit all importation, whatever the goods, unless a licence for the particular consignment or importation is obtained from the Minister or the goods are excepted. It places the entire inward trade of the country under the control of his c particular discretion or that of his delegate, exercised in respect of

eyery separate parcel or consignment of goods which it is sought to import.

_ There is, of course, no doubt that the Parliament in the exercise of the power to make laws with respect to trade and commerce with other countries could enact a law in the form of the regulations if it thought fit to do so. But it has not yet done so, and it is self- _ evident that nothing but a clear and unmistakable expression of intention would justify a court in concluding that Parliament had del to the Governor-in-Council power to make such a law as a subordinate legislative authority. No delegation of power can

_ Dixon J. The conviction appealed against is for an offence H.C. or A.

s. 52 (g) of the Customs Act. 1 am clearly of opinion that the regula tion is quite outside the scope of s. 52 (g). Section 52 begi "The following shall be prohibited imports." It then proce: set out nine heads, lettered from (a) to (7), of imports that ar bidden. Shortly described, they are (a) certain infringeme) copyright ; (b) false and counterfeit money ; (c) blasphem: FI obscenity ; (d) prison-made goods ; (e) exhausted and adulte1 tea; (f) butter substitutes improperly branded ; (h) goods which there is a false suggestion of governmental guarantee, w: or concern in their production ; (7) mineral oil and spirits not plying with prescribed restrictions. Amidst these there paragraph in question, namely - * (g) all ecede the import: which may be prohibited by regulation."

In Baater vy. Ah Way (1), O'Connor J. gives the following dag tion of the plan and, as I think, purpose of these provisions so far as the Customs Act does not deal with the impositio: collection of duties, it is founded upon the power to regulate and commerce with other countries. Under the latter head the provisions which deal with prohibited imports.

this: By s. 50 the Act directly prohibits the importation of pro hibited imports under a penalty. By another section " (s. 52) "i specifies a number of imports which it declares are prohibited. But in that list it leaves a blank to be filled up by proclamatio:

(now regulation) " of the Governor-General in Council, to be fi up as the Governor-General and the Executive Council may fit in any contingency that may hereafter arise. The Act recogn the proclamation" (now regulation) " as part of the scheme legislation, because in s. 229 it provides that all goods imported,

excepts goods prohibited by proclamation " (now regulation), ~ they have been shipped to be imported without knowledge of # proclamation " (now regulation) " by the shipper, and befor expiration of a reasonable time for the acquisition of the knowl at the port of shipment. The whole of the law, therefore, operates in the case of prohibited imports is to be found Statute itself except the naming of the article to which these visions are to apply". It perhaps should be added that s. provides that the power of prohibiting importation of goods authorize prohibition subject to any specified condition or restri¢ and that goods imported contrary to any such condition or tion shall be prohibited imports.

with the few simple and innocent-looking words of par. (7) of s. 52 the entire importing trade of the Commonwealth has been placed a under direct ministerial control without the intervention of the Parliament.

• Our standpoint in matters of interpretation is doubtless affected by what we have grown accustomed to and after two wars, during which the, Executive Government necessarily took over a great part of the legislative function, we can hardly be expected to have " the same sensibilities as formerly in defining a power of subordinate legislation. But the provisions were passed in 1901 and, with the 'unimportant change of the word " proclamation " to " regulation " 'made to bring the instrument within the requirement that it should mi laid before the Houses of Parliament, and with an immaterial alteration in par. (a), they have remained in the same form. Can it really be supposed that in the first year of the Parliament, islation was consciously framed enabling the Executive Govern- ~ ment to forbid all importation except by licence from the Minister ? 'The licence indeed is only a qualification or condition ; to support 'it the power conferred by par. (y) must authorize the 'absolute _ suppression by the Executive of all importation into the Common- wealth, Imagine such a meaning being attached in 1901 to par. (9) ! Yet, however much we may have changed, the meaning of the "paragraph has not. The four judges who decided Bazter v. Ah Way (1) did not dream of it. Griffith C.J. treated the provision in s. 52 (y) as remitting to the Executive the duty of deciding a question fact, viz., "The expediency of admitting particular goods into e Commonwea'th at a particular time " and another question of fact, " Whether it is desirable or reasonable that goods in a certain condition should be excluded " (2). O°Connor J. spoke of the pro- vision as leaving " the filling up of the blank, and the naming of the article in each contingency that may happen in the future . . . to the absolute discretion. of the Governor-General in Council " (3). Isaacs J. said: - " The sub-section . . . empowers the overnor-General to prohibit goods by proclamation, and read with 56 enables him to do so subject to conditions or restrictions. But nothing more, The proclamation stands per se as a mere notification to the world that specified goods are prohibited. The nation is a mere fact" (4). In a rhetorical question Higgins J. shows his view of the para- "graph : - * Why should not a provision be valid to the effect that

Wea 8 CLR. 626. (8) (1909) 8 C.L.R., at p. 637. (2) (1909) 8 C.L.R., at p. 635. (4) (1909) 8 C.L.R., at p. 641.

Tt is indeed surprising to find that by combining this provision H.

all goods named, from time to time, on a black list to be kept by th Governor-General, shall be prohibited imports, shall not be ported ?" (1).

43 Vict. : 49 and 50 Vict. c. 41, s. 2, and 52 53 Vict. . 2: 60 and 61 Vict. c. 63, s. 1. Section 43 of 3 and 40 Vict. ¢. 36, on which was based s. 57 of the Victorian Act,

provided that the importation of arms, ammunition, gunpowe

Council. To this provision Isaacs J. (2) referred as an exampl of how " in England for a very long period Parliament has legislate in a similar manner" to par. (g) of s. 52, and he quoted Hai Laws of the Customs, (1854) p. 106, as saying of the provision. "This power, though seldom exercised, is a wholesome provisi for defensive as well as sanitary purposes." A much more extensive use of the provision was, however, attempted bet 1916 and 1920, and when the validity of a proclamation pro- hibiting the importation in Great Britain of a long list of arti was under attack in Attorney-General vy. Brown (3), the Attorn General claimed that the words "any other goods" gave Crown a general power to prohibit the importation of goo of every kind. In the argument Sankey J. observed to him "You may be right in saying that under the Order in Council whole of the free imports of the country could be stopped, but is a little astonishing " (4). In his judgment his Lordship said > "The learned Attorney did not shrink from the consequences | his argument. He admitted that if it was correct it was open the Executive, on their own motion, to prohibit the importati of corn and meat into this country entirely, or, at any rate, prohibit the importation of corn, meat, and other articles fro certain countries while allowing them to come in free from o countries. His answer was that it was easy to put cases" were grotesque, but that it must be assumed that where a diseret is left in the hands of the donee of a power it was thought

argument appears to beg the question, which is not whether | donee would exercise a power reasonably, but whether he hai

(1) (1909) 8 C.LLR., at p. 645. (3) (1920) 1 K.B, 773; 36 T.LR. (2) (1909) 8 C.L.R., at p. 640. 165; (1921) 3 K.B, 29. (4) (1920) 36 T.L.R., at p. 166.

power at all, and upon such an issue it is not immaterial to consider the magnitude of the power alleged to be conferred " (1). So far as general considerations are important, the analogy is close. But Sankey J. restricted the general words by the ejusdem generis rule of construction, a course which is not admissible in s. 52 (Radio

Corporation Pty. Ltd. v. The Commonwealth (2) ). There are, however,

particular considerations in the present case which combine with

the foregoing more general considerations. As it appears to me

they demonstrate the irrelevance of the power conferred by s. 52 (9)

to what the Customs (Import Licensing) Regulations seek to do.

In the first place, the scope and object of the regulations are plain.

• It is their purpose to invest the Minister with a control by the licensing of all inward overseas commerce in goods. The regulations are concerned with the control by administrative act of importation irrespective of the goods to be imported. The prohibition is universal. It ignores every attribute of the goods to be imported, every circumstance or condition connected with the goods as such or with their importation or arising thereout or consequential thereon. The regulations are directed to importation alone, and in relation to importation they do nothing except establish a licen- sing system so that all importing may be administratively controlled. The barest reading of s. 52 shows that par. (y) is concerned with _ placing goods in a category, a category of prohibited imports. Let it be supposed that the category may be indefinitely large, that it may be framed in completely general terms, that the conditions chosen to bring goods within the category need not relate to physical attributes of the goods or to the purposes to which they may be put, but may relate to their source, provenance or other cireum- ~ stances accidental to the goods as goods. These are suppositions which I should not adopt as true. But if they be accepted, they ~ do not meet the objection that the regulations are addressed to an entirely different purpose. It is a purpose remote from the prohi- t bition of the importation of goods because they fall within a category.

_ The purpose is that of establishing an administrative regulation of inward foreign commerce in goods by a system of discretionary licensing. That is a purpose which I should have thought to be _ plainly outside the scope and purpose of the power conferred upon

In the second place, upon the face of s. 52 it appears clearly enough to be concerned with the prohibition of imports as an _ exceptional measure, and this is true of all of Div. 1 of Part IV. _ The key to the whole Customs Act is the * due importation of goods," (1) (1920) 1 K.B,, at pp. 790, 791, (2) (1938) 59 C.LLR., at p. 181,

a phrase used in s. 49, which, " for the purpose of securing the du importation of goods," provides for the boarding of ships,

reporting of cargo and the entering, unshipping and examinati of goods. The whole of the customs legislation, including tariff, is framed to deal with a continual flow of goods into country, to subject the goods to the control of the customs, to provi a procedure for the due introduction of the goods into the counts and to collect the duties levied by Parliament upon them. The prohibition of imports is exceptional. The legislature has provi a short list and included a power enabling the Executive to to it. Of course the Customs (Import Licensing) Regulations do no} really intend to prohibit the importation of goods. They do

belie their title. They really intend only to license importatio and that is why I have said that they are outside the scope a object of the power given by s. 52 (y). But, because they co not be justified unless under s. 52 (g) it was necessary to frai

list of prohibited imports the Executive may prohibit the impo tion of all goods whatsoever. Such a proposition appears to to be directly opposed to the tenor of Division 1 in its entirety and of s. 52 in particular. The proposition invokes a power to exclude goods exceptionally, in order to prohibit all overseas im commerce in goods. The very words with which s, 52 open "the following are prohibited imports "' - indicate that a list of particulars is to ensue. Write into the list " all goods" and how incongruous it would be with the opening words. It would The following are prohibited imports - (g) all goods. 'The words of par. (g) "All goods the importation of which may be prohibited by regulation " have quite a different meaning from " the impo tion of all goods may be prohibited." They have the same mean as "* goods the importation of which &e." or " Any goods the i tation of which &e." or "Such goods as may be declared regulation to be prohibited imports." The paragraph is fra so that the Executive must form its opinion concerning the probit bition of particular goods or descriptions of goods. However

or descriptions and is inconsistent with a universal prohibitio which .is neither based on nor takes into account anything.

ations are outside the power given by s. 52 (g). Inthe third place, I am of opinion that a regulation under s. 52 (7) _mustname the goods. They will, of course, be named by description. But the description must be such as to enable merchants and others

• to ascertain what classes of goods according to their nature are ibited imports. This is the view taken of the provision in y. Ah Way (1) and in my opinion it is the natural meaning 'the words of par. (y) when read in its place in the catalogue of rohibited imports contained in s. 52. It is, I think, supported by endency of ss. 229 (b), 231 (1) (a), 233 and 2338. In Radio oration Pty. Ltd. v. The Commonwealth (2) the Customs (Pro- ibited Imports) Regulations and the amendment of the Customs Proh rie Imports) Regulations there upheld listed the goods That decision does not appear to me to be an authority affecting y of the grounds I have assigned for holding that the Customs port Licensing) Regulations are invalid. There are additional ls, independent grounds, for saying they are invalid in the ting judgment of Hvatt J. and myself, but in deference to the of the majority I have not taken those into account. n my opinion the regulations are void. In this view the other )bjections relied upon by the appellant do not arise. I think that the appeal should be dismissed.

i an J. In this case I agree with the judgment of the Tustice. Tadd a reference to Bruhn v. The King (3).

us J. T agree with the judgment of the Chief Justice,

Appeal allowed with costs. Order of magistrate set aside. Case remitted to magistrate to be dealt with in accordance with law.

r or for the appellant, H. F. £. Whitlam, Crown Solicitor Commonwealth,