[1990] FCA 358; 26 FCR 366

Customs and Excise - importation - prohibition of imports - regulations providing for prohibition - items prohibited - description by reference to ministerial opinion - validity - alternative basis for forfeiture - determination of classification of goods on judicial review application - source of jurisdiction - remedies - semi-automatic rifle - semi-automatic version of Chinese military rifle - spike bayonet affixed - whether "rifles of a military type".

Statutory Interpretation - delegated legislation - customs (Prohibited Imports) Regulations - definition of goods by reference to ministerial opinion - whether impermissible sub-delegation.

Administrative Law - judicual review - administrative decisions (Judicial Review) Act 1977 - jurisdiction and remedies - declaration of rights under s.16(1)(c) - questions of fact relevant to discretion to grant relief.

Words and Phrases - "goods which in the opinion of the minister are of a dangerous character and a menace to the community"; "rifles of a military type".

Administrative Decisions (Judicial Review) Act 1977

Customs Act 1901 s.203

Radio Corporation Pty Ltd v The Commonwealth [1938] HCA 9; (1938) 59 CLR 170

Baxter v Ah Way [1909] HCA 30; (1909) 8 CLR 626

Poole v Wah Min Chan [1947] HCA 37; (1947) 75 CLR 218

R. v McLennan [1952] HCA 39; (1952) 86 CLR 46

R. v Bull [1974] HCA 23; (1973) 131 CLR 203

Hawke's Bay Raw Milk Producers Co-Operative Co. Ltd v N.Z. Milk Board (1961) NZLR 218

Welsbach Light Co. of Australasia Ltd v Commonwealth [1916] HCA 59; (1916) 22 CLR 268

Racecourse Co-Operative Sugar Association Ltd v Attorney-General (Qld) [1979] HCA 50; (1979) 142 CLR 460

Giris Pty Ltd v Federal Commissioner of Taxation [1969] HCA 5; (1969) 119 CLR 365

Counsel for the Appellants: Mr G. Davies QC and Mr M. Boulton

Solicitors for the Appellants: Australian Government Solicitor

Counsel for the Respondent: Mr R.G. Bain and Mr A. Hart

Solicitors for the Respondent: Morris Fletcher and Cross

The orders contained in paragraphs 1 and 4 of the order which is the subject of the appeal be set aside and in lieu thereof it be ordered that the application be dismissed.

Each party bear his own costs of the application and of the appeal.

NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

The reasons for judgment of the other members of the Court, which I have had the advantage of reading, disclose the questions for decision in this appeal and the facts which evoke those questions.

2. In my opinion so much of the Customs (Prohibited Imports) Regulations as is contained in Regulation 4(1) and Item 18 of the Second Schedule is authorised by s.50 of the Customs Act 1901. As French J. explains, the phrases of which Item 18 is constituted may be found in Item 18 of the First Schedule to the Customs (Prohibited Imports) Regulations which were made in 1934. In that Item 18 the word "weapons" appeared immediately after the verb. In 1946 the word "goods" was substituted for the word "weapons". No further amendment of Item 18 occurred before the 1934 regulations were repealed by the Customs (Prohibited Imports) Regulations which were enacted in 1956, and with which the Court is presently concerned. In the original regulations of 1956, as now, what had appeared as Item 18 of the First Schedule to the repealed regulations appeared as Item 18 of the Second Schedule, but shorn of the word "goods" where it had occurred after the verb. In neither of those Schedules does the content or expression, outside Item 18, give any compelling indication of the sense in which the expression "of a dangerous character" is used in Item 18. But even if the original association of the phrase with the word "weapons" be ignored, I cannot doubt that the phrase is to be understood as limited in meaning to the character of goods in virtue of which the goods are likely to cause physical damage to people or property. Nothing in the context which either the 1934 or the 1956 regulations provide suggests that Item 18 is to be understood otherwise than in the sense which ordinary vernacular usage in my opinion dictates. The usage is not only vulgar, but also legislative. In 1985 the Victorian Parliament entitled an Act, one of the declared objects of which was "to promote the safety of persons and property in relation to the manufacture, storage, transport, transfer, sale and use of dangerous goods", the Dangerous Goods Act 1985, and provided no definition of "dangerous".

3. If that be the proper construction of the phrase "of a dangerous character", the further description," and a menace to the community", becomes less uncertain in meaning. Since Chaucer the word "menace" has been attributed to impersonal agents. In collocation with the phrase which precedes it in Item 18, the expression "a menace to the community" may be taken, in my opinion, to signify that the goods in reference to which the expression is used are likely by reason of their dangerous character to cause physical damage, to people or property, so great in degree or so extensive in incidence as to impair seriously the welfare of the Australian community.

4. So construed, Regulation 4(1) and Item 18 constitute a valid exercise of the power conferred by s.50(1), in my opinion. The goods are described by intelligible characteristics : their tendency to cause physical damage of a certain gravity. I respectfully agree in the opinion French J. expresses that s.50(2)(c) of the Customs Act 1901 provides no justification for the introduction into Item 18 of the Minister's opinion. And I agree also with his Honour's opinion that, upon the premise which he holds that the words "of a dangerous character and a menace to the community" are not indicative of a factual criterion or class description limited by any intelligible boundary, Item 18 would commit to the Minister what s.50(1) requires the Governor-General to do. Upon the contrary premise, which I hold, the commitment to the Minister's opinion of a determination whether particular goods are of the description contained in Item 18 does not pass to him the function the exercise of which s.50(1) requires of the Governor-General : it prescribes a mode of identification of goods within that description and is in my opinion within the ambit of what s.50(1) authorises : see Welsbach Light Co. of Australasia Ltd. v. Commonwealth [1916] HCA 59; (1916) 22 CLR 268 at 281, 284. The commitment of that determination to the Minister would also in my opinion be supported by the general power to "make regulations not inconsistent with this Act prescribing all matters . . . as may be . . . convenient to be prescribed for giving effect to this Act or for the conduct of any business relating to the Customs", which is conferred by s.270(1) of the Customs Act 1901. If the language of Item 18 be thought to be of uncertain meaning, it is to be remembered that in King Gee Clothing Co. Pty. Ltd. v. The Commonwealth [1945] HCA 23; (1945) 71 CLR 184 at 195 Dixon J. was "unaware of any principle of law or of interpretation which places upon a power of subordinate legislation conferred upon the Governor-General by the Parliament a limitation or condition making either reasonableness or certainty indispensable to its valid exercise".

5. The only evidence as to whether the goods which were the subject of the proceeding before the learned trial judge were the subject of an opinion of the kind which Regulation 4(1) and Item 18 require was the document dated 9 March 1987 and signed by the second appellant. The verbiage of the document finds no warrant in any legislation to which our attention was drawn : the Minister is not authorised to declare his opinion as to whether the importation of goods of a dangerous character is prohibited. If the Minister chooses, presumably for ease of administration, to give written expression to an opinion he has formed, for the purposes of Item 18, about goods identified, not by a manifest entry or other singular description, but only by reference to some characteristic of the mode of their construction or to some characteristic of their function, as seems to have been intended in this document dated 9 March 1987, the risk is that the identification will fail. I refrain from expressing a concluded opinion whether in this case the identification did fail, because the matter was not argued and the appeal may be determined on other grounds. But my tentative opinion is that unless the expression "Weapons of a machine gun construction" in its application to particular goods, in this case the seized weapons, admits of no reasonable doubt that the Minister would regard the particular goods as comprehended by the expression, it cannot be concluded that the opinion concerning those particular goods which Item 18 requires has been formed. It is not enough, in my opinion, to justify that conclusion that the Court would, for itself, find that the particular goods are comprehended by the expression. In my opinion the evidence before the learned trial judge admitted of no confident answer as to whether the second appellant would regard the seized weapons as comprehended by that expression. It is not an expression of such universally accepted and precisely defined meaning as would easily permit of an inference concerning the Minister's required opinion. I express no concluded opinion on the further question whether the first appellant had reasonable grounds for a belief that the second appellant would regard the seized weapons as comprehended by the expression. Merely to prove that a policeman would so regard the weapons is hardly to show reasonably grounds for a belief that the second appellant would so regard them. Unless the first appellant had that belief, and reasonable grounds for it, he had not, as I am inclined to think, reasonable grounds for a belief that the seized weapons were forfeited goods.

6. For the reasons given by French J. I am of opinion that the trial judge had jurisdiction to determine whether the seized weapons were forfeited goods by reason of the operation of Regulation 4(1) and Item 30 of the Second Schedule, that it is appropriate that this Court make that determination on appeal, and that the weapons were so forfeited. Accordingly I agree in the orders proposed by the other two members of the Court.

This is an appeal from a judgment of this Court, setting aside a decision of the first appellant to seize all rifles of a certain description, under the Customs Act 1901. I have read the reasons of my brother French and gratefully adopt his Honour's detailed explanation of the facts, to which I will add but little. The judgment attacked by the appellants depended in part upon a consideration of those facts, but in part upon a legal question which will be dealt with first.

2. The kind of law which is in question may be described as loose sub-delegation. One issue is whether the law relied on may be adequately traced back to Parliamentary authority; no question of a non-Parliamentary basis arises. The insistence on a link to statute may bear a pedantic appearance, in these days when the volume of legislation is such that members of neither chamber are likely to have read or analysed much of the statutory language placed before them. Yet the general principle is part of the very foundation of our legal system: an expression of view or edict by a Minister or official is of no legal consequence unless directly or indirectly authorised by Parliament.

3. The seizure of the rifles was sought to be justified by s.203(2) of the Customs Act 1901, ("the Act") which provides that:

"An authorised person may seize any forfeited goods

or any goods that he believes on reasonable grounds

are forfeited goods."

4. One of the contentions was that the rifles were forfeited, or believed to be so, as falling within the following description:

"104. Weapons of a machine gun construction and

parts therefor, unless for official purposes."

5. Counsel for the respondent persuaded the primary judge that it is of no consequence whether the rifles fall within or outside that description, because it has no legal force.

6. Section 229(1)(b) of the Act has the effect that, inter alia, all "prohibited imports" are forfeited to the Crown and s.51(1) provides that "goods the importation of which is prohibited under s.50 are 'prohibited imports'". Section 50 of the Act provided at the relevant time:

"50(1) The Governor-General may, by regulation,

prohibit the importation of goods into Australia.

(2) The power conferred by the last preceding

sub-section may be exercised -

(a) by prohibiting the importation of goods absolutely;

(b) by prohibiting the importation of goods

from a specified place; or

(c) by prohibiting the importation of goods

unless specified conditions or

restrictions are complied with.

(3) Without limiting the generality of paragraph

(2)(c), the regulations -

(a) may provide that the importation of the

goods is prohibited unless a licence,

permission, consent or approval to

import the goods or a class of goods in

which the goods are included has been

granted as prescribed by the regulations;. . ."

7. It was not suggested that the Governor-General had directly prohibited the importation of the rifles, but the appellants contended that there was a prohibition under s.50, arising in the following way. Regulation 4 of the Customs (Prohibited Imports) Regulations provides:

"(1) The importation into Australia of the goods

specified in the Second Schedule to these

Regulations is prohibited unless the

permission in writing of the Minister to

import the goods has been granted."

8. The Second Schedule sets out a number of descriptions of goods under the heading:

"GOODS THE IMPORTATION OF WHICH IS PROHIBITED UNLESS

THE PERMISSION IN WRITING OF THE MINISTER HAS BEEN GRANTED."

"Goods which, in the opinion of the Minister, are of

a dangerous character and a menace to the community".

It should be noted that there is nothing to say whether the opinion is to be effective on its mere formation or whether some form of publication of the opinion is necessary to give it legal effect. This characteristic is not enough to defeat the appellants, as to the point being discussed, but it justifies hesitation in upholding such an incomplete scheme of law-making. The appellant's contention was that the Minister had properly exercised the power given by item 18 by a document issued by the second appellant, Mr Jones, dated 9 March 1987. By that document, Mr Jones purported to declare:

". . . that the importation into Australia of the

goods specified in the Schedule hereto is

prohibited as the goods are, in my opinion, of a

dangerous character and a menace to the community."

There followed a list of 104 categories, the last of which is quoted above. It should be observed that the document prohibits, apparently absolutely, the importation of certain goods; the regulations give the Minister no power of prohibition, a matter discussed below.

9. It can be seen that there are three levels to be considered: firstly, the statute allows the Governor-General to prohibit importation, by regulation; secondly, the Governor-General has purported to exercise that power by prohibiting the importation (without written permission) of goods of a description depending on the Minister's opinion; thirdly, the Minister has expressed an opinion. It is the second and third levels which must be scrutinised to determine their validity.

10. The learned primary judge was of the view that item 18 quoted above is "an attempt to empower the Minister to proscribe the importation of goods"; he thought the function entrusted to the Minister to be a legislative one and pointed out that s.50 empowers prohibition "by regulation, not 'by or under' any proclamation or regulation". As will appear, I agree with this view.

11. The appellants' challenge to the primary judge's view on the validity point was based primarily upon the decision of the High Court in Baxter v. Ah Way [1909] HCA 30; (1910) 8 CLR 626. There, an attack upon the then s.52(g) of the then Act failed. That provision provided merely for prohibition of imports by proclamation; it has no counterpart in the current statute. The argument advanced was that s.52(g) was an improper delegation of legislative power. The contention was not accepted, the principal ground being that a long course of legislative history showed that it must have been intended that the Commonwealth Parliament could, at least to some extent, vest discretions of the relevant kind in subordinate persons or bodies. (The case is further discussed below.)

12. In Victorian Stevedoring and General Contracting Co Pty Ltd v. Dignan [1931] HCA 34; (1931) 46 CLR 73, a statute empowered the Governor-General to make regulations whose character was described in a rather general way; the regulations were expressed to have the force of law notwithstanding anything in any other Act except the Acts Interpretation Act 1901. Dixon J., in what appears to be the leading judgment on the whole question, remarked that:

". . . it has always been found difficult or

impossible to deny to the Executive, as a proper

incident of its functions, authority to require the

subject or the citizen to pursue a course of action

which has been determined for him by the exercise

of an administative discretion." (92)

His Honour also said, after referring to Baxter v. Ah Way and Roche v. Kronheimer [1921] HCA 25; (1921) 29 CLR 329, that the latter case decided:

". . . that a statute conferring upon the Executive a

power to legislate upon some matter contained

within one of the subjects of the legislative power

of the Parliament is a law with respect to that

subject, and that the distribution of legislative,

executive and judicial powers in the Constitution

does not operate to restrain the power of the

Parliament to make such a law." (101)

His Honour went on to refer to the possibility that a delegation might fail as being too wide or uncertain, but that is a problem which, as it seems to me, does not arise here.

13. Assuming the Minister's expression of opinion to have legal effect, viz. the effect of prohibiting the importation of the listed goods, then that derives from s.50, quoted above. Unless s.50 empowers the making of the regulations and they in turn empower the expression of opinion, that expression can have no legal effect. Counsel for the appellants argued, on the basis of Baxter v. Ah Way, that the Minister's expression of opinion is merely a fact upon which the regulations operate directly. If that is so, then the Minister's expression of view did not make any law; it merely brought into existence a fact upon which the regulations operate, namely an opinion. It is true that the contention finds solid support in some of what was said in Baxter v. Ah Way (e.g. "The proclamation is a mere fact" (641)) but application of the notion here would, as it seems to me, be unjustifiable. Further, this facile solution has not become an orthodox method of determining the validity of delegated legislation; nor should it. The proclamation there was not "a mere fact" but a law, for breach of which citizens might suffer penalties.

14. The statute in question here says that the Governor-General may, by regulation, prohibit the importation of goods. A regulation prohibiting the importation of such goods as in the opinion of a person nominated by the Governor-General should be prohibited could not be an exercise of that power; that would merely delegate the Governor-General's power of prohibition to another. The question here is whether a narrower sort of delegation is permissible, one empowering the Minister to include goods in the prohibited class by forming an opinion that they are dangerous or, to use the words of the regulation, "of a dangerous character and a menace to the community".

15. It is sub-delegation of power which is in issue. The general question of validity of sub-delegation was first considered by the High Court in the Welsbach Light Company of Australasia Limited v. The Commonwealth [1916] HCA 59; (1916) 22 CLR 268. There, a statute gave the Governor-General power to prohibit certain acts or transactions by proclamation; he purported to exercise it in a way which gave the Attorney-General a limited power to bring matters within the prohibition. Griffith C.J. remarked that delegations of the relevant kind had been very common (275), and held it to be valid on the wording of the particular statute; it referred to "any act or transaction which is prohibited by or under any proclamation . . . " (emphasis added). The Chief Justice remarked:

"The word 'under' is apt to denote the intermediate

step of an Order in Council made in pursuance of a

Proclamation, and plainly means 'under the authority of'."

It will be recalled that the learned primary judge, as I have pointed out, relied in his reasons on the absence of the word "under" from s.50(1) of the Act.

16. The next substantial consideration of the topic of sub-delegated power by the Court appears to have been that in Esmonds Motors Pty Limited v. The Commonwealth [1970] HCA 15; (1969-1970) 120 CLR 463. There, an ordinance, being itself delegated legislation, purported to authorise a Minister to make certain broadly described regulations. Kitto J., while not expressing a concluded view, doubted the validity of the regulations. The ground of his Honour's doubt was that the Federal Executive, having a general power to make ordinances having the force of law, had exercised the power by empowering the Minister "to make provisions of his own which likewise shall have the force of law . . ." (472) The same point was discussed by Menzies J., who remarked:

"I have found no reason for concluding that

Parliament may not, in authorising subordinate

legislation, confer power to authorise the making

of regulations or by-laws not inconsistent with the

legislation which Parliament has directly

authorised . . . if the regulations or by-laws so

made are themselves subjected by Parliament to its

control . . ." (477)

The qualification which Menzies J. attached - namely the requirement of Parliamentary control - should be noted. At the least, the absence of such control, so far as the Minister's opinion is concerned in the present case, is a reason for caution; see also Dignan's case at p 123, where the power of disallowance of regulations is referred to.

17. In both the Welsbach case and Esmonds Motors, the Act of Parliament expressly contemplated sub-delegation; as to the former case, I refer again to the quotation from Griffith C.J. set out above. Here, there is in a sense a power of sub-delegation implied in the Act, because s.50 allows the Governor-General to prohibit the importation of goods without a "licence, permission, consent or approval": s.50(3)(a). The person or body empowered to license importation may be regarded as exercising, in a delegated way, the Governor-General's power to prohibit importation, given by sub-s.(1). But the question is whether the Governor-General may, in the exercise of his power to prohibit importation by regulation empower another person - whether a Minister or anyone else - to bring goods within a prohibited class by forming an opinion. If that can be done, then it is hard to see any logical ground for limiting the power; the list in the Second Schedule to the regulations could then be added to by including, for example, goods which, in the opinion of the Minister, are such that their importation would unfairly compete with goods of Australian manufacture.

18. See also Godkin v. Newman (1928) NZLR 593, Hookings v. Director-General of Aviation (1957) NZLR 929 and (in the Supreme Court of Canada) Vic Restaurant v. City of Montreal (1959) SCR 58.

19. It is my opinion that s.50 does not, on its proper construction, contemplate a regulation empowering a Minister to declare that certain kinds of goods may not be imported, let alone one creating a prohibition founded on a mere ministerial thought. The only express indication in s.50 that a person other than the Governor-General has a power to decide what shall be prohibited is the reference to "licence, permission consent, or approval". The regulations may perhaps validly have an operation conditional in some respects upon the formation of an opinion by the Minister that a state of objective fact exists. But it appears to me that the breadth of the considerations which the Minister must survey, when exercising the power under item 18, is such that what has been done by way of delegating is beyond anything which a reader of s.50 might think was intended by the legislature. Many sorts of articles and substances which are dangerous, to a greater or lesser degree, are imported and no doubt the Minister would balance the degree of danger against other considerations, in exercising his power; the function is essentially legislative rather than administrative.

20. It should be added that in Baxter v. Ah Way and some similar cases, reference is made to the inconvenience of Parliament having to anticipate the proper governmental response to a whole range of factual situations which may arise in the future. It does not appear to me that the construction set out above is open to this criticism. Presumably with little extra trouble, types of goods the exportation of which is thought to be undesirable on one ground or another may be prohibited by regulation; if reasonably believed to fall within a prohibited class, they may be seized under s.203(2) of the Act.

21. The result is that the scheme of sub-delegation fails at the second stage referred to above; item 18 is invalid.

22. A further objection, as it seems to me, to the contention that item 104 has legal effect is that the Minister's declaration goes too far. It declares:

" . . . that the importation into Australia of the

goods specified in this Schedule hereto is

prohibited as the goods are, in my opinion, of a

dangerous character and a menace to the community."

To recapitulate, reg.4(1) prohibits the importation of goods specified in the Second Schedule without the permission in writing of the Minister and one of the items in that Schedule is item 18, which says nothing about prohibition. The Minister had no power to declare the importation of any goods to be prohibited. If he formed the opinion mentioned and the regulation were valid, then the expression of that opinion would bring the goods within a class of goods whose importation is not absolutely prohibited, but prohibited (by the regulation) without the requisite permission in writing. The reader of the declaration, on the other hand, is told, without any reference to the possibility of obtaining permission, that the importation of the goods is prohibited by the Minister.

23. The declaration incorporates, as a ground of the purported prohibition of importation, an opinion of the kind mentioned in item 18. The question is whether the divergence between the form and substance of the Minister's declaration and that which is contemplated by the regulation is such that the former cannot stand. I have found it unnecessary to resolve that problem.

24. The conclusion to which I have come is that item 18 was not validly included in the Second Schedule to the regulations. It follows that, insofar as the questions in the case depend on item 18, the appeal must fail.

25. It is necessary next to consider item 30 in the Second Schedule to the regulations, under which importation without permission is prohibited as to:

"Rifles of a military type, being rifles the calibre

of which is greater than .22 calibre, and parts for

those rifles."

No challenge to the validity of item 30 was made. Two questions arise under this head: first, whether or not this Court has jurisdiction to resolve the issue of forfeiture and, secondly, whether the seized rifles are indeed "of a military type".

26. The statement of claim raised the question whether the rifles were within the ambit of item 30 but the learned primary judge apparently did not find it necessary to deal with that. His Honour's omission to do so might have been due to a view which he expressed that the Customs Service, having released the goods, could not in circumstances such as the present later seize them; that point is discussed below.

27. Counsel for the respondent, Mr Bain, argued that the primary judge had found the rifles were not in fact of a military type within the meaning of item 30, but I can find nothing in the reasons to support that contention.

28. Senior counsel for the appellant, Mr Davies QC, contended that to succeed in such a case as this, the person challenging the seizure must show both that the goods in question are not forfeited goods, and also that the person seizing them did not believe, on reasonable grounds, that they were forfeited goods: see s.203(2) of the Act, quoted above. That is plainly correct, but the Full Court's decision in Pearce v. Button [1986] FCA 51; (1986) 8 FCR 408 suggests that it was not open to the primary judge to determine whether or not the goods were forfeited in fact. I have noted that my brother French says in his reasons that the question whether or not the rifles fell within item 30 is able to be determined in this Court, upon the evidence. I agree, but on one view Pearce v. Button is against the proposition that the Court may properly decide whether goods are forfeited goods for the purposes of the Act: O'Neil v. Wratten (1986) 11 FCR 404. The advent of the cross-vesting legislation may solve the problem of jurisdiction with regard to the matter of forfeiture, but its effect on the present case was not argued before us.

29. Fox J., presiding in Pearce v. Button, decided that a question relating to forfeiture could not be litigated under s.32(1) in this Court, where a seizure is challenged under the Administrative Decisions (Judicial Review) Act 1977, but neither of the other members of the Full Court discussed the matter. The question is whether the view of Fox J. as to s.32(1) should be followed; it reads:

"To the extent that the Constitution permits,

jurisdiction is conferred on the Court in respect

of matters not otherwise within its jurisdiction

that are associated with matters on which the

jurisdiction of the court is invoked."

30. Two points may be noted at the outset: first, the express intention is to extend the Court's jurisdiction to certain matters not otherwise within its scope and, secondly, the use of the word "matters" gives the provision, in accordance with a long course of decision in the High Court, a wide ambit.

31. Fox J. remarked in Pearce v. Button that it had been decided that the section only applies where the -

" . . . 'associated' matter was federal in nature. The

essence of the claim respecting forfeiture is

however a common law one. It is one respecting the

right to possession of goods." (415)

32. Philip Morris Inc v. Adam P. Brown Male Fashions Pty Ltd (1981) 148 CLR 457 concerned a suit in this Court relying upon the Trade Practices Act 1974, and also upon the general law viz. the law of passing off. The defendant asserted unsuccessfully that the Court had no jurisdiction to decide the passing off claim. A similar question arose in the case heard with Philip Morris, namely United States Surgical Corporation v. Hospital Products International Pty Limited.

33. The scope of s.32(1) still has some importance, despite the evolution of the doctrine of accrued jurisdiction. One reason is that the accrued jurisdiction is of a special kind in that it is discretionary, whereas ordinarily a grant of jurisdiction to a Court creates a positive obligation in the Court to exercise the jurisdiction granted: Ward v. Williams [1955] HCA 4; (1955) 92 CLR 496 at 507.

34. It is not a simple task to determine what was decided about s.32(1) in Philip Morris and the difficulty is illustrated by noting what is said on the subject in the Commonwealth Law Reports' headnote (148 CLR at 457-458), and comparing that with the Australian Law Reports' headnote (33 ALR 466). Barwick C.J. held the sub-section to be invalid to the extent that it is incapable of being "confined to the express provision of that additional federal jurisdiction necessary for the resolution of the matter in relation to which federal jurisdiction has been attracted" (478). That additional federal jurisdiction, his Honour held, is the "accrued" jurisdiction to resolve the "whole matter", once federal jurisdiction was attracted (475). It seems to me implicit that Barwick C.J. thought the provision to be valid to the extent just mentioned. Gibbs J. held that once Federal Court jurisdiction is invoked, then that jurisdiction is "extended by s.32(1) to associated matters which arise under other laws made by the Parliament, even though the Parliament has not (except by s.32(1)) conferred jurisdiction on the Court in respect of those matters" (494). That is, his Honour held the provision effective, where a suit is brought in the Federal Court under a certain federal statute, to extend the jurisdiction to associated "matters" which arise under any other federal statute. Mason J., with whom Stephen J. agreed, appears to have been of the opinion that s.32 validly confers "jurisdiction on the Federal Court in a federal matter which is associated with another federal matter in which the Federal Court has not otherwise been given jurisdiction" (516). Murphy J. thought the reach of s.32 extended to non-federal matters (521). Aickin J. read s.32(1) as limited to "such matters falling within s.75 and 76 (of the Constitution) as are 'associated' with matters otherwise within the jurisdiction of the Federal Court pursuant to some other act of Parliament . . ." (538). Lastly, Wilson J. held the section could "do no more than to extend the jurisdiction of the Federal Court to include matters of federal jurisdiction which in the particular case are associated with a matter within jurisdiction". (547)

35. At the least, Philip Morris is authority for the view expressed by Gibbs J.; none of the judges held the provision to have less effect than his Honour stated. Therefore the determination whether the goods are forfeited or not is within this Court's jurisdiction. That is plainly a matter arising under a law of the federal Parliament, namely the Customs Act 1901. One thing which is absolutely clear is that even where proceedings are brought seeking a remedy under the general law (e.g. on an application for habeas corpus) there may be a federal "matter": see per Gibbs J. in Philip Morris at 498. Further, issues pleaded by way of defence may attract federal jurisdiction: Moorgate Tobacco Co Ltd v. Philip Morris Ltd [1980] HCA 32; (1980) 145 CLR 457 at 476 per Stephen, Mason, Aickin and Wilson JJ.

36. In my respectful opinion, a curial controversy as to whether goods are forfeited under the Customs Act 1901 is one which is federal in nature and is an "associated" matter within the jurisdiction of the Court under s.32(1); insofar as a suggestion is made to the contrary in Pearce v. Button, that is incorrect, being inconsistent with the High Court cases to which I have referred. Nor is it correct, as counsel for the appellants contended, that if such a question arises, this Court has jurisdiction to decide it against, but not for, the person whose goods have been seized. I have noted that in O'Neil v. Wratten (1986) 11 FCR 404, views are expressed consistent with those set out above, but they were not applied by the judge there, as it was held that in Pearce v. Button a majority decided the contrary. In my opinion, Pearce v. Button did not decide the contrary, and if it had the decision would be inconsistent with higher binding authority.

37. The question then is whether the goods were forfeited as being a military type, or, to use the whole expression, "of a military type, being rifles the calibre of which is greater than .22 calibre . . ." The calibre is 7.62 mm.

38. The principal grounds of the contention that the rifles are of a military type are that they are a modification of an admittedly military rifle and they are sold with a fixed bayonet.

39. The rifle is, as to design, a modification of one used by the Army of the People's Republic of China. The appellant's case on this aspect appears to me hard to resist.

40. The rifles were manufactured in China by an organisation ("Norico") which makes a military rifle known as a type 68. That is a weapon capable of fully automatic fire, which can also be used to fire single shots. The rifles imported by the respondent, type 63, are semi-automatic, that is, they are incapable of fully automatic fire unless modified. The main difference between the two sorts of rifles is that just mentioned. Further, it was found that the imported rifles were made from the outset in such a way that they could not be used for automatic fire; it is not the case that the manufacturers made type 68 rifles and then modified them. It was on this ground that the learned primary judge found that the type 63 is not a "weapon of machine gun construction".

41. The learned primary judge found that one cannot "clip feed" the type 63 so that "points toward a non-military purpose in its construction". His Honour held, however, that the "two essential differences" between the two types were in parts which determined whether or not the rifle could be used for automatic fire. Those differences are not, on physical examination of the rifles, very noticeable, but no doubt they are of functional importance.

42. It was pointed out in argument that provision for affixation of a bayonet on rifles not used militarily is fairly common. Accepting that, still it appears to me that the presence of a fixed bayonet points strongly towards the characterisation of the rifles as of a military type. Sporting shooters may, it was said, use a bayonet in some circumstances to protect themselves against wounded animals; but one does not ordinarily think of sporting use of a rifle (whether for hunting or target shooting) as requiring the use of a bayonet.

43. Some may be found to question whether prohibition of importation of rifles of a "military type" is desirable, doing so both on the ground that non-military types may be just as lethal or more so, and on the ground that the criterion used is rather vague. But it was not argued that item 30 is bad for uncertainty, nor that the relevant exercise of power was bad in the Wednesbury sense. It appears to me that the rifles in question are of a military type as contended and, since they are greater than .22 calibre, their importation without the written permission of the Minister was prohibited.

44. An entry for home consumption was completed by the respondent and duty was paid on 19 March 1987. The rifles were moved to the respondent's premises at Underwood and were inspected and, as I understand the procedure, passed by a police constable whose duty it was to consider the legality of importation of guns. On 24 March 1987, a "query memorandum" was signed by an authorised Customs official indicating that the rifles were not prohibited imports. Thereafter, there was a change of mind, and on 9 April 1987, such of the rifles as had not by them been sold were seized. The learned primary judge held that there had been full disclosure of "all relevant facts and documents" and that the Customs officials could not, in those circumstances, seize the rifles.

45. It appears to me that the statute is silent on this point. The power of seizure is not expressly stated to depend upon there having been no prior official act giving approval to the importation of the goods seized.

46. It may well be that in some circumstances a decision to seize after goods have been imported may be subject to attack on one or other of the grounds of fairness or failure so to act as to fulfil a citizen's legitimate expectations. The general rule is that there is no estoppel against exercise of statutory powers: see Attorney-General v. Quin (unreported, High Court, 7 June 1990) per Mason C.J. at p 11; however, as his Honour recognised, there may be some exceptions to that. Here it does not appear to me that any doctrine analogous to estoppel can operate in favour of the respondent, for there was no finding that he acted to his detriment on the faith of the initial favourable reaction to the importation.

47. Further, it has to be kept in mind that the question of validity of seizure is not the same as that of forfeiture; there may be a forfeiture with no seizure. Here, in my view, the rifles were prohibited imports because they were of military type and of calibre greater than .22. One can understand the respondent's harbouring a sense that he has been unjustly treated by the Customs authorities, whose apparently inconsistent treatment of the rifles is to be deprecated, yet once it is concluded (a point, I reiterate, not dealt with below) that the rifles were of a military type and of calibre greater than .22, they became the property of the Crown immediately upon their importation: Burton v. Honan [1952] HCA 30; (1952) 86 CLR 169.

48. The description in the Second Schedule to the relevant regulations "Goods which, in the opinion of the Minister, are of a dangerous character and a menace to the community" (item 18) has no legal consequence; that is so because it constitutes an impermissible attempt to delegate a power to prohibit importation of goods.

49. Item 30 in the same schedule prohibits the importation without permission of rifles of a military type and of calibre greater than .22; that description covers these rifles which were (no permission to import having been given by the Minister) forfeited to the Crown on importation.

50. The circumstance that on importation there was some official action taken on the basis that the importation had been lawful does not give the respondent any rights and, in particular, does not estop the appellants.

51. I would allow the appeal and dismiss the respondent's application but, in the whole of the circumstances, I do not favour making any order for costs.

Ronald Owen is a licensed firearms dealer who has carried on business in Queensland under the name "Owen Guns" for over ten years. The majority of the firearms which he sells are manufactured overseas. In March 1987 he imported into Australia some 200 Type 63 7.62 mm semi-automatic rifles manufactured in China by the North China Industries Corporation known as Norinco. The rifles were initially approved for entry by customs officials acting on the advice of a Senior Constable of the Australian Federal Police who had relevant expertise. However, on 9 April 1987 Mr Robert Turner, an officer of Customs who claimed to be acting on further advice from a more senior officer, Detective Sergeant O'Rourke, of the Federal Police in Canberra, seized the 31 rifles that then remained in Mr Owen's possession on the basis that they were prohibited imports and forfeited to the Crown.

2. On an application for an order of review under the Administrative Decisions (Judicial Review) Act which named the seizing officer, Mr Robert Turner, and the relevant Minister, then charged with the administration of the Customs Act, Mr Barry Jones, as respondents, the learned trial judge allowed the application as against Turner. In particular he set aside the decision to seize Owen's rifles and subject to a stay pending appeal, directed their return. Although he made no formal order in relation to the Minister it is apparent from the Reasons for Judgment that he intended to dismiss the application so far as it affected him.

3. The principal issue on this appeal is whether the rifles seized by Mr Turner were prohibited imports. A secondary issue is whether, as found by his Honour, the power to seize was extinguished upon their first approval for entry by customs. It is necessary to turn first to the statutory framework under which it is claimed that the goods are prohibited imports.

4. Section 203 of the Customs Act 1901 confers on officers of Customs and others a power of seizure. The relevant parts of that section are as follows:

"203(1) In this section, "authorized person" means

(a) a member of the Defence Force;

(b) an officer of Customs; or

(c) an officer of police.

(2) An authorized person may seize any

forfeited goods or any goods that he believes on

reasonable grounds are forfeited goods."

Section 229 then provides for forfeiture:

"229(1) The following goods shall be forfeited to

the Crown:

.

.

.

(b) All prohibited imports."

The class of goods which are prohibited imports is defined in sub-section 51(1):

"51(1) Goods, the importation of which is prohibited

under section 50, are prohibited imports."

Section 50 provides for the making of regulations to prohibit the importation of goods:

"50(1) The Governor-General may, by regulation,

prohibit the importation of goods into Australia.

(2) The power conferred by the last preceding

sub-section may be exercised -

(a) by prohibiting the importation of goods absolutely;

(b) by prohibiting the importation of goods from a

specified place; or

(c) by prohibiting the importation of goods unless

specified conditions or restrictions are complied with."

Sub-sections (3), (3A) and (4) are not material for present purposes. Regulations known as the Customs (Prohibited Imports) Regulations have been made pursuant to s.50. By Regulation 3 the importation into Australia of goods specified in the First Schedule to the Regulations is prohibited absolutely. Regulation 4, which is material for present purposes, establishes a conditional prohibition of the kind contemplated by sub-s.50(3)(c) of the Act. Regulation 4 provides:

"4(1) The importation into Australia of the goods

specified in the Second Schedule to these

Regulations is prohibited unless the permission in

writing of the Minister to import the goods has been granted.

(1A) A permission granted for the purposes of

sub-regulation (1) may specify conditions or

requirements to be complied with by the holder of

the permission and may, in respect of any such

condition or requirement, specify the time, being a

time either before or after the importation of the

goods to which the permission relates, at or before

which the condition or requirement is to be

complied with by the holder of the permission."

Sub-regulation 4(2) is not material for present purposes. The Second Schedule referred to in Regulation 4(1) is entitled "GOODS THE IMPORTATION OF WHICH IS PROHIBITED UNLESS THE PERMISSION IN WRITING OF THE MINISTER HAS BEEN GRANTED" and comprises two columns. The first column sets out an item number, the second column sets out a description of the goods in respect of each such number. The two items relied upon by the appellants in this case are items 18 and 30. Item 18 refers to:

"Goods which, in the opinion of the Minister, are of

a dangerous character and a menace to the community."

"Rifles of a military type, being rifles the calibre

of which is greater than .22 calibre, and parts for

those rifles."

There is also in existence and there was in evidence before the learned trial judge, a document dated 9 March 1987 bearing the signature of the Minister and the title "CUSTOMS (PROHIBITED IMPORTS) REGULATIONS" which begins with the following recital:

"I, BARRY OWEN JONES, Minister for Science, for and

on behalf of the Minister for Industry, Technology

and Commerce, pursuant to Regulation 4 and Item 18

in the Second Schedule to the Customs (Prohibited

Imports) Regulations, hereby declare that the

importation into Australia of the goods specified

in the Schedule hereto is prohibited as the goods

are, in my opinion, of a dangerous character and a

menace to the community."

There follows a schedule of some 104 items. Item 104 is in the following terms:

"104. Weapons of a machine gun construction and

parts therefor, unless for official purposes."

5. Also before His Honour was another document dated 9 March 1987 and signed by the Minister evidently intended to constitute a written permission for the purposes of Regulation 4:

"CUSTOMS (PROHIBITED IMPORTS) REGULATIONS -

PERMISSION TO IMPORT

I, BARRY OWEN JONES, Minister for Science, for and

on behalf of the Minister for Industry, Technology

and Commerce, pursuant to Regulation 4 of the

Customs (Prohibited Imports) Regulations, hereby

give permission for the importation into Australia

of the goods noted in Part 1 of the Schedule

hereto, subject to the conditions noted in Part 2

of the Schedule hereto.

The Schedule

Part 1:

Weapons of a machine gun construction and parts

therefor, unless for official purposes.

Part 2:

(a) The relevant Police Authority is not opposed

to the importer possessing the weapon or part, and

(b) The Australian Federal Police verify that:

in the case of the weapon it has been

irreversibly rendered incapable of firing, or

in the case of a part the weapon for which the

part is required is, on the installation of

that part, incapable of firing and of being

repaired, modified or otherwise activated to fire.

The permission to import dated 3 September 1984 is

hereby revoked."

There is no procedure laid down in the Act or Regulations for the publication of the Ministerial Prohibition and permissions and there was no evidence before the learned trial judge that they had been published in any formal sense.

6. The reasons for judgment set out the factual background to the importation of the seized weapons. Their manufacturer, Norinco, has divisions concerned respectively with military and commercial firearms production. Owen only ever dealt with the commercial divisions. One of Norinco's products is an automatic rifle designated Type 68, which is similar in appearance to the Type 63. Many of its parts, including the trigger mechanism, are of similar construction. Although his Honour made no express finding on the point, it appears that the Type 68 is a military rifle. Norinco had marketed commercially a Type 68, modified after construction to limit it to a semi-automatic capacity. However Owen, as his Honour found, had instructed the company that any Type 63s delivered to him were to be manufactured as semi-automatic weapons and not by way of modification of constructed automatic weapons. He specified that they should be manufactured with a two notch safety catch/selector horizontal bar instead of the three notches used in the Type 68. A component called a secondary sear in the trigger mechanism was to be manufactured without an additional lug. It was not sufficient that a lug be ground off a Type 68 sear component. Drawings illustrating his requirements were made by the Norinco representatives.

7. On 14 August 1986 he signed a contract for the purchase of 500 rifles designated "Model 63's 7.62 mm semi-auto rifle with bayonet and 120 round magazine, sling". After an indication from Turner in February 1987 that importation of the Type 63 rifles might be prohibited, Owen contacted Senior Constable Knispel of the Australian Federal Police who Turner had suggested was the person best qualified to advise him on the proposed importation. Knispel told Owen that if the rifles were not of machine gun construction or ex-military rifles, they would not be prohibited imports. In the event only 200 rifles were able to be supplied to him by Norinco and on 26 February 1987 a shipment of that number left Huangpu for Brisbane on a ship called the "Australian Advance". On its arrival at Brisbane, Owen completed an Entry for Home Consumption dated 19 March 1987 and paid $767.03 duty. On that same day he was granted permission under s.40AA of the Customs Act to move the consignment to a shop at 9 Kenway Drive, Underwood. Senior Constable Knispel inspected the rifles on 24 March and indicated that they could be imported. He signed a certificate entitled:

"Australian Federal Police

Firearm submitted by the Bureau of Customs for

Safety Testing

(Item 18 of the Customs (Prohibited Imports) Regulations)"

"Samples taken. All weapons in new condition.

Commercial manufacture. Not machine gun const.

Pass all aspects safety test."

The form signed by Constable Knispel, identified by the designation "AFP 162", was evidently a form of advice upon which the officers of the Customs Bureau were prepared to act. On the same day, a Mr Hewitt of Customs signed a document called a "Query Memorandum". The document bore a stamp advising that all of "the rifles sampled have complied with standards and are not prohibited imports. Goods may be released."

8. On 6 April 1987 however, a Detective Senior Constable O'Rourke of the Australian Federal Police in Canberra contacted Senior Constable Knispel and on 7 April 1987 was sent a photograph of the trigger mechanism of one of the imported rifles. On 8 April one of the rifles was sent to him. O'Rourke then telephoned Knispel instructing him to amend his AFP 162 Certificate of 24 March. Knispel informed Owen of his instruction. Owen then contacted a Detective Sergeant Prior in Canberra on 9 April. Prior told Owen he would get back to him when he had "clarified the situation". But Knispel acting, as his Honour found, pursuant to O'Rourke's direction, signed a further AFP 162 Certificate on the same day in the following terms:

"Weapons previously inspected at dealer's shop at

Underwood and were passed after Customs clearance

being described as above (semi-automatic only).

Advice received from AFP Firearms Section,

Canberra, on 8-4-87 is that these are not as

described above, are of machine gun construction,

and therefore prohibited import."

Turner acting on advice from O'Rourke then seized all the remaining Type 63 rifles, of which there were 31, in Owen's possession. The seizure took place on 9 April.

9. On 21 May 1987, Turner provided a statement of reasons which had been sought by Owen's legal advisers. His Honour referred to the following parts of that statement of reasons:

"23. Reference was made to illustrated descriptive

literature titled '1963 Year Model 7.62 mm

Automatic Rifle. Simplified Instruction

Manual Peoples Republic of China 1974'. In

this literature the subject rifle is described

as an automatic rifle and a weapon for

infantry personnel. I also referred to

extracts from the reference book 'Small Arms

of the World'. I have had experiences with

the weapon described as type 63 prior to Mr

Owen's consignment. These experiences have

made me familiar with this particular weapon.

24. From previous experiences in conjunction with

reference material, I formed the opinion that

these rifles were of a military type and

therefore fell within the ambit of Item 30 of

the Second Schedule to the Customs (Prohibited

Imports) Regulations. The factors I

considered in forming this opinion are:

(a) weapon for infantry personnel

(b) weapon was designed as a selective fire

weapon fitted with a gas regulator

(c) weapon is fitted with a bayonet.

25. Given all the above information I formed the

opinion that:-

(1) The rifles fell within the Ambit of Items

18 and 30 in the Second Schedule to the

Customs (Prohibited Imports) Regulations.

(2) The goods are prohibited imports."

His Honour found that the statement of reasons was by way of reconstruction intended retrospectively to justify the seizure on any arguable ground. He did not accept that weapons were seized because they were of a military type within Item 30. He did not believe that Turner then reasonably entertained a suspicion that the goods were prohibited imports. The real reason for the seizure was that expressed by a Customs Officer, Tesch, in a receipt given for the seized rifles namely "pending further enquiries". It was, his Honour said, "a case of act now, justify later". On the meaning of the term "of machine gun construction" used in the Minister's declaration, his Honour held that it referred to weapons which, as originally manufactured, had the capacity of fully automatic fire. On this basis the Type 63 rifles were not of machine gun construction. On the question whether they were weapons of a military type within Item 30, he made no finding.

10. Having found the weapons not to be of machine gun construction, his Honour went on to hold that goods regularly imported and "passed" by customs into Australia are not liable to be seized merely because an "authorised person" acting under s.214 of the Act disagrees with the earlier conclusion or reasonably suspects that they are of a different character from that assessed by the officer who authorised their entry for home consumption.

11. A challenge to the validity of Item 18 in the Second Schedule to the Regulations also having been raised, his Honour held that it had the effect of substituting the Ministerial opinion for that of the Governor-General. Item 18 was not an attempt to confer an administrative function but rather to empower the Minister to proscribe the importation of goods. The formation of the Ministerial opinion contemplated by Item 18 could only have a legislative function. After reviewing a number of the authorities, his Honour then said:

"A review of the disparate but non-exhaustive

categories of items referred to in the declaration

by Mr. Jones leads me to the conclusion that there

has been an impermissible entrusting to him by the

Executive Government of the determination of what

goods are to constitute prohibited imports on the

ground that they are of a dangerous character and a

menace to the community.

For these reasons, in my view, Item 18 does not

provide a lawful basis for concluding that the

seized rifles were prohibited imports. Since this

was, in truth, the only basis on which the seizure

was based, it follows that for this reason also the

decisions of the first respondent must be set aside."

1. Whether the inclusion of Item 18 in the Second

Schedule of the Customs (Prohibited Imports)

Regulations is a valid exercise of the regulation

making power conferred by s.50 of the Customs Act.

2. Whether if it is, the weapons were of machine gun

construction.

3. Alternatively, and assuming Item 18 to be valid,

whether his Honour ought to have concluded that

Turner had a reasonable belief that they were of

machine gun construction.

4. Whether the rifles were of a military type in terms

of Item 30 of the Second Schedule.

5. Whether this Court can definitively resolve the

question whether the rifles were forfeited to the Crown.

6. Whether goods imported and approved for importation

by customs into Australia can be subsequently

seized under the power conferred by s.203.

13. The Customs Act 1901 which was personally settled by the first Minister for Trade and Customs, the Right Honourable C.C. Kingston KC, was substantially based upon the Customs Consolidation Act 1876 (UK). Section 42 of that Act embodied a "table of prohibitions and restrictions inwards" which set out various classes of goods which were by force of the section "prohibited to be imported or brought into the United Kingdom save as thereby excepted . . .". Section 43 provided that:

"The importation of arms ammunition, gunpowder or

any other goods may be prohibited by proclamation

or order in council."

A similar regulatory model was used in the Customs legislation of the various colonies in force before federation. The New South Wales, Victorian and South Australian statutes all expressly authorised prohibition by proclamation of the importation of arms, ammunition, gunpowder and other explosives. In Victoria and South Australia, the gubernatorial powers extended to "military and naval stores".

14. The statutory mechanism used in the Customs Act 1901 in its original form resembled that of the Customs Consolidation Act 1876 (UK). By s.50 it was provided that:

"No prohibited imports shall be imported.

Penalty: One hundred pounds."

and then set out various classes of goods including:

"(g) all goods the importation of which may be

prohibited by proclamation."

Section 56 authorised the prohibition of importation subject to any specified condition or restriction.

15. The validity of the scheme for prohibition by proclamation came under early attack on the basis that it was a delegation of legislative power to the Governor-General repugnant to s.1 of the Constitution which vested that power in the Federal Parliament. That contention was rejected by the High Court in Baxter v Ah Way [1909] HCA 30; (1909) 8 CLR 626. And in any event Griffith C.J. and O'Connor J. saw para.(g) as prohibiting importation upon a condition satisfied by the inclusion of the relevant goods in a proclamation (p 635 (Griffith C.J.) and 638 (O'Connor J.)). The remaining justices treated it simply as attaching certain consequences to a fact, namely the proclamation by the Governor-General - p 641 (Isaacs J.) and implicitly at pp 645-646 (Higgins J.). On neither of these approaches did a true question of delegation arise.

16. Provision for prohibition of imports by way of regulation was introduced in 1934 by an amendment to s.52 which deleted the word "proclamation" from para.(g) and inserted the word "regulation" instead (Customs Act 1934 - No. 7 of 1934). The scheme of the prohibiting section otherwise remained intact. In the same year Customs (Prohibited Imports) Regulations were enacted (Statutory Rules 1934 NO. 152). Regulation 4, in language substantially similar to that now in force, provided that:

"The importation of the goods specified in the

Second Schedule to these Regulations shall be

prohibited unless the consent in writing of the

Minister to the importation of the goods has first

been obtained."

There was no equivalent of the present Item 18 in the Second Schedule. It is noteworthy however that Item 18 in the First Schedule setting out goods the importation of which was prohibited absolutely under Regulation 3 covered:

"Goods which, in the opinion of the Minister, are

weapons of a dangerous character and a menace to

the community."

Item 17 of the Second Schedule to the 1934 Regulations was expressed to apply to:

"Rifles of .303 inch calibre and any parts thereof."

This item was carried over from a proclamation made in 1932 by the then Deputy Governor-General, Sir Philip Game.

17. In 1937 the validity of Regulation 4 came under challenge on the basis that para.52(g) required that regulations made under it specify the goods to be prohibited, a requirement said not to be met where the prohibition was subject to a ministerial discretion to permit importation. The challenge was rejected by the High Court in Radio Corporation Pty Ltd v The Commonwealth [1938] HCA 9; (1938) 59 CLR 170. Latham C.J. (Rich, Starke and McTiernan JJ. agreeing) first affirmed, on the authority of Baxter v Ah Way, the power of the Parliament to prohibit the importation of goods by regulation. The provision for ministerial consent in Regulation 4 was characterised as a condition of the importation of the goods authorised by s.56. The legislation showed that "in the opinion of Parliament, the regulation of trade and commerce may properly involve the exercise of discretion in individual cases" (at p 185). Dixon and Evatt JJ. dissented on the basis that the regulation making power did not contemplate that the mere will of the Executive Government could be a condition or restriction upon importation.

18. In November 1949 the Regulations were amended to extend the class of rifles conditionally prohibited under Regulation 4 and Item 17 of the Second Schedule to:

"Rifles of a military type being of a calibre larger

than .22 inches and parts of such rifles."

The amendment followed a submission to the Commonwealth Government by the then Premier of New South Wales pointing out that the Police Offences (Firearms) Amendment Act (NSW) made the possession of a military rifle by any person not specifically exempted an offence. The definition of a military rifle under the New South Wales Act at the time was:

"Any rifle of larger calibre than twenty two one

hundredths of an inch which is of a type used by

the naval, military or air forces of any country

but does not include any rifle used by the naval,

military or air forces of any country prior to the

year One thousand eight hundred and ninety."

It is apparent from a press release of the time that Item 17 was amended "in order to assist the State authorities in controlling the distribution of military type rifles". A contemporary memorandum prepared by the Comptroller-General for advice to the Collector of Customs indicated that for the purposes of administration of the restriction the term "rifle of a military type" was taken to mean "rifles of a calibre larger than .22 inches for the possession of which a licence is necessary in terms of State legislation".

19. In 1939 the Customs (Import Licensing) Regulations were enacted and provided a blanket prohibition on the importation of any goods unless a licence to import the goods was in force. The regulations were eventually challenged on the basis that they did not specify the classes of goods to which they applied, a contention rejected in Poole v Wah Min Chan [1947] HCA 37; (1947) 75 CLR 218 by Latham C.J. at 229 (McTiernan and Williams JJ. agreeing). In his Honour's opinion:

"the provision that prohibited goods include all

goods the importation of which may be prohibited by

regulation means that regulations may prohibit the

importation of any specified goods or of all goods."

On this question however the Court was evenly divided. Dixon J. (with whom Rich J. agreed) and Starke J. thought the regulations were ultra vires. Dixon J. came to this conclusion for three reasons:

1. The evident purpose of the regulations was to

establish an administrative regulation of

inward foreign commerce in goods by a system

of discretionary licencing (p 239). This was

a process remote from that contemplated by

para.52(g) which was the categorisation of

goods as prohibited imports.

2. The regulation making power required the

Executive to form its opinion concerning the

prohibition of particular goods or

descriptions of goods, a requirement

inconsistent with a universal prohibition (p 249).

3. A regulation under para.52(g) must describe

the goods prohibited so that it is possible

for merchants and others to ascertain what

classes of goods according to their nature are

prohibited imports (241).

Starke J. considered a prohibition of importation of all goods unless licenced by the Minister to be too wide and beyond power. The Chief Justice, McTiernan and Williams JJ. being of the contrary view however, there was a statutory majority in favour of validity.

20. Similar issues were considered in relation to the Customs (Prohibited Exports) Regulations in R. v McLennan [1952] HCA 39; (1952) 86 CLR 46. Section 112 of the Act authorised the Governor-General by regulation to prohibit the exportation of goods, the exportation of which would, in his opinion, be harmful to the Commonwealth. Regulation 6 prohibited the exportation of goods mentioned in the Third Schedule unless the conditions there specified were complied with. Item 65 of that Schedule relating to non-ferrous scrap metal required the approval of the Department of Supply and Development. The Court rejected a contention that the decision whether exportation was harmful had thereby been delegated. The nature of Item 65 was consistent with the opinion that the export of the goods concerned would always be harmful but that justice or wisdom required or made desirable exceptions under an administrative discretion (Dixon C.J., Williams, Fullagar and Kitto JJ. at 59).

21. In November 1952 the provisions of ss.50 to 57 of the Customs Act which comprised Div.1 of Part IV of the Act relating generally to prohibited imports were repealed by the Customs Act 1952 and a new Division 1 comprising only ss.50 and 51 enacted in its place. These new sections so far as is relevant to the present case remain substantially unchanged. The operation of the statutory scheme and the course of judicial decision-making were summed up by Barwick C.J. in R v Bull [1974] HCA 23; (1973) 131 CLR 203 at 222:

"Section 50(1) empowers the Governor-General, by

regulation, to prohibit the importation of goods.

Under this power he may prohibit the importation of

all goods except under licence. He is not limited

to prohibiting the importation of specific goods or

goods of a class. The width of the power to

proclaim the prohibition of importation may be seen

in the decisions of this Court in Radio Corporation

Pty Ltd v The Commonwealth [1938] HCA 9; (1938) 59 CLR 170; Poole

v Wah Min Chan [1947] HCA 37; (1947) 75 CLR 218 and R v McLennan;

Ex parte Carr [1952] HCA 39; (1952) 86 CLR 46. Thus, the

importation of all goods could be prohibited as the

result of a regulation made under s.50. In that

case, all goods would be prohibited imports."

22. The first issue in the appeal concerns the effect of Item 18 in the Second Schedule to the Customs (Prohibited Imports) Regulations. His Honour concluded that the Item reflected an impermissible entrusting to the Minister by the Executive Government of the determination of what goods are to constitute prohibited imports on the ground that they are of a dangerous character and a menace to the community. Although sometimes discussed in terms of a maxim prohibiting the sub-delegation of delegated power, the validity of such subordinate legislation generally depends upon its proper construction and that of the empowering statute. This, as Professor Pearce has pointed out, is the preferred approach of the Australian Courts - Pearce - Delegated Legislation (1977) para.527. That is not to say that it is inappropriate to approach the question of construction upon the basis that where the legislature has designated a particular official or body as the repository of a power, then, in the absence of any express statutory authority to delegate, it is that official or body who is intended to exercise the power. The observation made nearly 30 years ago in Hawke's Bay Raw Milk Producers Co-Operative Co. Ltd v N.Z. Milk Board (1961) NZLR 218 at 226 is at least as persuasive today as it was then:

"Government today is so complex, and so many

statutes confer such wide powers upon such a

variety of bodies and persons that it is essential

that those to whom the Legislature delegates the

duty of deciding any particular matter should make

the decision: if there is to be power for that

person or body to whom the Legislature has entrusted

its legislative power to be free himself or itself

to subdelegate, it should be made clear beyond any

doubt that such power of subdelegation is given,

and to whom, and if it is only a limited power of

subdelegating, that the limits should be plainly defined."

23. Statutory mechanisms providing for the regulation of various activities more precisely identified by proclamation or other instrument have frequently been the subject of litigation testing the validity and construction of the various elements. The leading cases in relation to the prohibition of importation of goods have already been mentioned.

24. The validity of a proclamation, authorised by statute, which in turn referred to a Ministerial declaration was considered in Welsbach Light Co. of Australasia Ltd v Commonwealth [1916] HCA 59; (1916) 22 CLR 268. There Isaacs J. held that there was authority under the Trading with the Enemy Act 1914 for a proclamation by the Governor-General which prohibited trade with any company declared by the Attorney-General to be, in his opinion, managed or controlled by persons of enemy nationality. Isaacs J. applied the same kind of analysis he had used in Baxter v Ah Way:

"The declaration which it authorizes is itself, when

made, a fact. It is a fact which enables the

company with respect to which it is made to be

identified as one to which the Proclamation applies." (p 281)

There was therefore no delegation of legislative power to the Attorney-General. The effect of the declaration was determined by the proclamation. This approach was not followed by Griffith C.J. who held that the reference in the Act to transactions prohibited "by or under any proclamation . . ." authorised "such a delegation as that now in question" - at 275. Barton J. agreed. Higgins J. regarded the legislation as conditional:

"The Attorney-General does not legislate; Parliament

legislates conditionally on the declaration of the

Attorney-General".

Gavan Duffy and Rich JJ. decided there was no cause of action anyway and did not consider the validity of the Act or the proclamation (p 285). Powers J. thought the proclamation invalid for failure to fix the prohibited acts or transactions in its own terms (p 286). The varying approaches make it difficult to extract any common principle on which the decision can be said to be based.

25. On the other hand it is clear that delegated authority, whether to make proclamations or regulations, must be exercised as contemplated by the empowering statute. In Racecourse Co-Operative Sugar Association Ltd v Attorney-General (Qld) [1979] HCA 50; (1979) 142 CLR 460, the High Court held that a proclamation made under the authority of the Sugar Acquisition Act 1915 (Qld) was invalid for failing to do what the Act authorised, namely determine and declare the value or fix the price of sugar acquired under the Act. The impugned proclamation effectively provided for the Sugar Board to determine the value of the sugar. Gibbs J. (with whom Stephen, Mason and Wilson JJ. agreed) said at 481:

"A power given to one person to determine a value or

fix a price will not be validly exercised by

allowing another to exercise a wide and

unreviewable discretion in determining that price,

although the person upon whom the power is

conferred may, instead of actually fixing a money

sum himself, 'lay down a method of finding it which

will produce the same result whoever applies it, so

long as he uses it correctly'."

26. As it stands today, sub-s.50(1) requires that the regulations made by the Governor-General prohibit the importation of goods. The prohibition may be absolute or qualified by limitation to the importation of goods in specified circumstances or from a specified place. The prohibition of a class of goods defined by description but expressed to be subject to ministerial consent or dispensation is authorised by sub-s.50(2)(c). However it is not in the same logical category as a prohibition directed to the importation of such goods as a third party may consider ought to be prohibited. The Act contemplates that the Governor-General will "by regulation prohibit the importation of goods into Australia". But when he makes a regulation that purports to prohibit "goods which in the opinion of the Minister, are of a dangerous character and a menace to the community" he does not do what he is empowered to do. On any functional analysis of the regulation it effectively places the power of prohibition in the hands of the Minister. The words "dangerous character and menace to the community" are not indicative of a factual criterion or class description limited by any intelligible boundary. They are almost entirely normative. They may be applied with equal facility to offensive weapons, non-biodegradable plastic bags, or publications espousing political ideas with which the Minister disagrees. They are legislative in character - cf the word "unreasonable" in s.99A(2) of the Income Tax Assessment Act 1936 so characterised by Barwick C.J. in Giris Pty Ltd v Federal Commissioner of Taxation [1969] HCA 5; (1969) 119 CLR 365 at 372. They ask the Minister to do what the Governor-General is supposed to do, that is to prohibit. Regulation 4 read with Item 18 in the Second Schedule is not therefore a valid exercise of the regulation making power under s.50.

27. Item 18 is in any event an extraordinary piece of drafting. There is no requirement for any formal expression of the ministerial opinion. It may be arrived at informally, quite literally under the shower, and if the Minister changes his mind goods which became prohibited imports without any announcement of the fact may become permitted imports, again without any publication.

28. It follows that the question whether the weapons were of machine gun construction and whether his Honour ought to have concluded that Turner had a reasonable belief that they were of machine gun construction, becomes academic.

29. Counsel for the appellants did not confine his contentions to the application of Item 18, but submitted in the alternative that the weapons were, in any event, properly seized as forfeited goods, being rifles of a military type within Item 30 of the Second Schedule.

30. The preliminary question to be addressed is whether it is open to the Court to consider that issue and make a finding upon it. That requires a consideration of the question whether it was open to the trial judge to make such a finding. It is not answered by reference to Pearce v Button [1986] FCA 51; (1986) 8 FCR 408 which is authority for the proposition that s.16(1)(c) of the Administrative Decisions (Judicial Review) Act 1977 is not a source of jurisdiction to determine the question whether goods the subject of a challenged seizure were or were not forfeited to the Crown - at p 414 per Fox J. and p 430 per Spender J. In this case, a claimed basis for the seizure, Item 18 of the Second Schedule, is shown to be invalid. The Court nevertheless has the discretion whether to grant relief. If the goods seized were forfeited upon another basis then the grant of relief may be futile and properly refused. Whether the Court will embark upon such an inquiry will depend upon its width and the convenience of determining it. In this case, in my opinion, the question whether or not the rifles fell within Item 30 is able to be conveniently determined upon the evidence before the trial judge. If the rifles are caught by that provision, it follows that they were prohibited imports and forfeited to the Crown by virtue of s.229(1) of the Customs Act. And in that event the seizure was proper. If they were not within Item 30, the Court can say so. To go further as was suggested and make a declaration in that event that they were not forfeited would require a wider inquiry than the scope of the case and the evidence allows. It would involve a determination that Items 18 and 30 exhausted all possible bases for forfeiture. A determination, therefore, of the question whether the rifles fell within Item 30 is appropriate and does not conflict with what was said by the Court in Pearce v Button (supra).

31. Regulation 4 read with Item 30 in the Second Schedule conditionally prohibits the importation of "rifles of a military type, being rifles the calibre of which is greater than .22 calibre and parts for those rifles". The history of the item indicates that it originated in a specific concern with rifles regarded as military by State authorities. But there is nothing in that history to suggest that the collocation of words used was intended to bear anything other than its ordinary English meaning. The adjective "military" is defined in the Shorter Oxford Dictionary as:

"1. Pertaining to soldiers; used or done by,

befitting a soldier

2. Of or belonging to an army b. soldierly

3. Having reference to armed forces or to the

army; connected with a state of war;"

The statutory history suggests that the item is limited to weapons of a type used by armed forces of the 20th century. Within that framework the reference to "type" can be construed narrowly as applying to rifles of a make or model which have been constructed for or which are or have been used by armed forces. That construction would not however dispose of the mischief to which the item is directed. That mischief is the importation into Australia of weapons which have features of military rifles. Rifles which have design and performance characteristics explicable only by reference to military purposes will fall into that category. Rifles whose design history indicates that they are military rifles modified in the production process may also, although not necessarily, answer the description in Item 30. The narrower construction suggested has the virtue of greater precision. On the other hand, the purpose of the prohibition and the choice of the word "type" rather than "make" or "model" suggests a wide meaning was intended. To the extent that there is uncertainty, the onus is on the importer of dangerous weapons to ensure that that which he imports is not prohibited.

32. The Type 63 rifles imported by Owen in this case had a design and manufacture history closely related to the Type 68 also made by Norinco. In a publication "Small Arms of the World" which was in evidence before the learned trial judge, the Type 68 was described as a "basic patented selective fire weapon" used by the Peoples Liberation Army of the Peoples Republic of China. Standard features of the Type 68 included "a permanently attached spike bayonet". In an affidavit read at trial, Owen said that he had been aware of the Type 68 rifle since 1985. He believed that if he could obtain a semi-automatic version then it would sell well. The two principal reasons were that it was a rifle of "military appearance" which would appeal to ex-military rifle collectors and military competition shooters. The detachable magazine and bayonet would appeal to hunters of feral pigs and goats.

33. On his trip to China in June 1985, he asked Norinco's representatives whether they could supply him with "semi-automatic versions of the Type 68 rifle". And it is clear that the rifles supplied to him answered that description. Nothing, in my opinion, turns for present purposes on the fact that Owen required the Type 63 to be assembled from parts manufactured for a semi-automatic weapon rather than manufacturing parts for the automatic weapon and then modifying them.

34. The two salient facts for present purposes are that the Type 63 is a semi-automatic version of a military rifle and that it has a bayonet. Despite the reference to feral pigs and goats the bayonet fixture is explicable principally by reference to military purposes. In my opinion therefore the Type 63 is a rifle of a military type and its importation without ministerial permission is prohibited under Regulation 4 of the Customs (Prohibited Imports) Regulations.

35. The goods in question, being prohibited imports, they were forfeited to the Crown by force of s.229 upon their importation into Australia - Burton v Honan [1952] HCA 30; (1952) 86 CLR 169. The seizure of the goods was therefore lawful although the officer effecting the seizure proceeded upon the erroneous assumption that Item 18 of the Second Schedule was valid. The decision to seize ought not to have been set aside. In the circumstances the appropriate disposition of the case is to allow the appeal, set aside the orders made by the learned trial judge and substitute an order that the application be dismissed. In the circumstances however in my opinion each party should bear its own costs.