Re Robert Alfred Turner and Barry Owen Jones v Ronald Owen [1990] FCA 358; 96 ALR 119 21 ALD 115 26 FCR 366

Re Robert Alfred Turner and Barry Owen Jones v Ronald Owen [1990] FCA 358; 96 ALR 119 21 ALD 115 26 FCR 366 - FCA 1990 case summary — Zoe

[31]

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".

[32]

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.

[90]

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)

At a glance

Court

Decision date

Source

Judgment (197 paragraphs)

Re Robert Alfred Turner and Barry Owen Jones v Ronald Owen [1990] FCA 358; 96 ALR 119 21 ALD 115 26 FCR 366 (14 September 1990)

Parties

Legislation Cited (48)

Cases Cited (18)