CCH Case Summaries in Administrative Law

Barton v Croner Trading Pty Ltd (1984) 54 ALR 541

Croner Trading Pty Ltd imported kangaroo and koala toys and supplied them to Woolworths. The toys were labelled "Made in Australia" and carried the statement "This item exceeds all Australian Safety Regulations including the Inflammability Act". The toys were made in Korea and there was no legislation concerning the flammability of toys. Following a number of purchases of these toys from Woolworths, the Minister for Home Affairs and the Environment consented to the institution of proceedings by the Trade Practices Commission for false representation. The Federal Court was asked to consider whether the Minister had been properly authorised to approve commencement of proceedings, whether Croner committed the offences charged and whether the prosecutions were statute barred by s.21 of the Crimes Act 1914 (Cth). The Minister was authorised as the person who from time to time held the office of Minister of State for Home Affairs and the Environment. The Court held that the authorisation was a valid exercise of s.163(4)(b) of the Trade Practices Act (Cth). It was not necessary that the authorisation be to a named person rather than to the holder of an office. Furthermore, to the extent to which the authorisation was beyond power, s.46(b) of the Acts Interpretation Act (Cth) operated to read it down so as to be a valid authorisation of the Minister holding the specified office at the relevant date. The Court also held that Croner made a representation to prospective purchasers by means of the label affixed to the goods upon the occasions when Woolworths displayed the goods for sale. Representations were made whenever they were communicated to consumers. A statement about a standard which did not exist could contravene s.53(a) of the Trade Practices Act as a false representation that a standard existed and applied to the goods and that those goods achieved a particular safety standard. Further, the Court held that in every case, the toys were either offered for sale to a possible purchaser or sold to an actual purchaser at a time within the 12 months specified by s.21 of the Crimes Act.

Case D68 No 2 Board of Review (1972) ATC 405

A timber miller claimed a deduction pursuant to s.124JA of the Income Tax Assessment Act for expenditure incurred in the purchase and construction of buildings constituting a timber mill. That section permits a deduction for a building "situated in a forest and in or adjacent to the area where timber milled in the course of that business is or is to be felled ..." All the logs for the mill came from a State forest situated some 20 miles by road from the mill. It was normal procedure in the region to cart logs some distance to a mill. The mill's location was substantially bush and pastureland with a number of trees in the area. The Board of Review held that having regard to the conduct of timber felling operations in the general district, the mill could be regarded as "adjacent" to the timber to be felled within the meaning of s.124JA. Moreover, it was not necessary that the mill be located in the forest in which the timber was milled. The taxpayer's claim failed, however, as the mill could not be regarded as in a "forest" in any sense in which that word was used in Australia.

The Commissioner of Taxation v Miller (1946) 73 CLR 93

The Board of Review determined that a taxpayer in charge of a boat in Milne Bay, Papua New Guinea during military operations in 1942\43 was a resident of Papua New Guinea and therefore exempt from tax under the Income Tax Assessment Act. S.196 of that Act provided that an appeal lay to the High Court on a matter of law only. The High Court held that the question of residence under the Act was one of degree and thus one of fact. Unless the decision of the Board of Review was based on some error of law including an absence of evidence to support its decision, the Board's decision could not be reviewed.

Re Control Investment Pty Ltd and Ors and Australian Broadcasting Tribunal (No 1) 1980 3 ALD 74

The Australian Broadcasting Tribunal refused to approve certain transactions involving the News Group of companies. On appeal to the AAT, the Federal Executive, Victorian State Executive and State and Federal Branches of the Australian Labor Party, an unincorporated association called Justice in Broadcasting, The Australian Journalists Association and Rupert Public Interest Movement Incorporated each applied to be made a party to the proceedings under s.30(1)(c) of the AAT Act as persons whose "interests" were "affected" by the decisions under review. S.27(2) of the Act provides that an organisation or association of persons, whether incorporated or not, "shall be taken to have interests that are affected ...if the decision relates to a matter included in the objects or purposes of the organisation or association". The AAT held that a person was entitled to be joined if his interest was such as to enable him to seek review of the decision in a court of law. But such standing while sufficient was not a necessary requirement for review before the AAT. In ss.27 and 30 the words "interests are affected" denote interests other than those of a member of the general public or interests greater than mere beliefs or concerns relating to particular conduct. A person seeking joinder must be able to identify a relevant interest which was his and demonstrate a genuine affection of that interest. The nature of the interest required in any particular case whould be influenced by the subject matter of the decision under review. While the Tribunal's power to join a party was not discretionary, it might refuse to do so where joinder might prevent a fair hearing or impede the expeditious conclusion of the proceedings. Interests might be affected by a decision beneficially aswell as adversely. The Tribunal ordered that the ALP be joined: its interests were affected because the control of media interests had a potential and actual effect upon political processes and the welfare of the ALP, because the decisions under review related to matters included within the objects of the Party and because of the part played by the ALP in the proceedings before the Australian Broadcasting Tribunal. The objectives were those of the Party as a whole and likewise the joinder. Other applications on behalf of the ALP related either to a part of the structure of the Party or individuals who failed to show any separate specific interest. The Tribunal also ordered that Justice in Broadcasting be joined as the decisions under review related to one of its objects which was to obtain "effective public access to the process of broadcasting". The Tribunal also ordered the Australian Journalists Association to be joined as it represented affected employees and had interests in maintaining ethical standards in television. Its interests were therefore affected by the decisions under review and, moreover, those decisions related to matters within its objects. The Tribunal considered that the objects of the Rupert Public Interest Movement Incorporated were concerned with education and research directed to promoting public participation in decision-making and responsiveness to the public interest. The objects were concerned with the process of decision-making, not with the results of a particular decision which had considered the public interest. The connection between the objects and the decisions under review was therefore too tenuous to show a real or genuine relationship. Accordingly the associations's application to be joined was dismissed. ?check No 2 at p96 for relevance

Convery and Another v Ziino (1985) 70 ALR 383

Convery and another had sought an order of review pursuant to the Administrative Decisions (Judicial Review) Act in respect of the seizure of their yacht under s.203 of the Customs Act. The decision to seize was made on the basis that the yacht was forfeited having been used in the unlawful conveyance of cannabis resin. The Federal Court was asked to consider whether the application for review should be dismissed pursuant to s.10(2)(b)(ii) of the Administrative Decisions (Judicial Review) Act. That sub-paragraph provides the Court with a discretion to refuse to grant an application where an alternative means of review is available. Assuming that such an alternative was available, the Court considered whether it should exercise its discretion. The Court held that the onus was clearly on those seeking to persuade the Court not to exercise the jurisdiction conferred on it by the legislature. Where an order for dismissal was sought at a stage when the issues had not been clearly defined the onus was a heavy one. The mere possibility that the real issue between the parties, namely, whether the yacht was forfeited, might not be determined by the Court was not a sound ground for refusing to entertain the application. Accordingly the application for dismissal was refused. The Court considered the appropriateness of granting discovery in proceedings under the Administrative Decisions (Judicial Review) Act. In doing so, the Court noted that the required information had most likely been provided during the course of concurrent criminal proceedings. In the cirmcumstances, the Court ordered that an order for discovery previously made, be vacated. The Court also considered whether the current proceedings should be stayed pending the disposal of the criminal proceedings under the Customs Act. The Court concluded that neither the possible advantage to be gained in the current proceedings by claims of self-incrimination nor the risk of injustice in the cirminal proceedings were sufficiently demonstrated to warrant interference with the right of the parties to have the current proceedings heard.

Re O R Cormack Pty Ltd and Collector of Customs (NSW) (1983) ?6 ALN N15 ?(ought I to be summarising their notes only?)

The AAT was required to consider whether two articles, an imported liquid dispenser and a sprayer, should be classified under Tariff item 98.14 being "Scent and similar sprays of a kind used for toilet purposes, and mounts and heads therefor" as argued by the importing company or whether the dispenser should be classified under item 84.10.9 being "Pumps (including motor pumps and turbo pumps) for liquids" and the sprayer classified under item 84.21.9 being "Mechanical appliances ... for projecting dispersing or spraying liquids or powders" as argued by Customs. The Tribunal held that the dispenser came within both items 84.21.9 and 84.10.9 but by application of Interpretative Rule 3(1)(a) it was more appropriately classified under 84.21.9 as the more specific of the two descriptions. Further, the Tribunal characterised the sprayer contemplated by 98.14 as stylish, small in capacity and output with a fine spray. This contrasted with the imported sprayer which had a large capacity and had no reservoir attached. The Tribunal concluded that the imported sprayer was, like the imported dispenser, properly classified under item 84.21.9. In refusing to refer to the Brussels Explanatory Notes to interpret item 84.21.9, the Tribunal commented that while the Tariff was for use in commerce and was no place for technical legalism, "the ordinary sense of language should be the guide to its interpretation" and the Explanatory Notes should be applied only when the scope of an item was truly in doubt.

Re Datacraft (Aust) Pty Ltd and Collector of Customs (1982) 4 ALD 557

The importer paid duty under protest and sought and obtained reasons for the Collector's decision. The importer then applied for review of the decision more than 28 days after receipt of a statement of the reasons. This was outside the time limit provided by s.29 of the Administrative Appeals Act but within the six months provided in s.273GA(5) and s.167(4) of the Customs Act. The AAT distinguished Customs matters from other jurisdictions in that the time limit for review was determined by the time at which a payment was made under protest not the time at which a decision in writing was made. The AAT concluded that the difference in the nature of review of Customs matters was such that the provisions of s.273GA(5) and s.167(4) excluded tha operation of the provisions as to time contained in s.29 of the AAT Act. Accordingly the application for review was within time.

Re David Linacre Pty Ltd and Bureau of Customs (1978) 1 ALD 421

The AAT considered whether rolls of waste polyethylene film, loose sheets of polyethylene and other scraps which were entered for duty under sub-item 39.02.1 were "blocks, lumps, powders ...or similar forms of polyethylene" under item 27 and thus entitled to a special preferential rate of duty. Sub-item 39.02.1 characterised polymerisation and copolymerisation products as "bulk forms; waste and scrap". Chapter note 3 to Chapter 39 distinguished "waste and scrap" from "blocks, lumps, powders ... and similar bulk forms". It was accepted that the imported goods were undoubtedly waste products The Tribunal held that once it was established as a matter of ordinary commercial usage that goods were "waste and scrap" it was that identification which determined their classification under the Tariff. It mattered not that before becoming "waste and scrap" the goods might have been classified in another form such as "blocks" or "lumps". Accordingly the goods did not qualify for the special preferential rate of duty.

Re Hayes and Others; Ex parte J Wattie Canneries Ltd (1986) 70 ALR 65

J Wattie Canneries Ltd exported frozen peas to Australia. Following inquiries concerning possible dumping, Customs made a preliminary finding against the company and sought to impose cash securities. By s.42(1B) of the Customs Act, Customs may require securities "for payment of any duty that may be payable on goods under the Customs Tariff (Anti-Dumping) Act 1975". The Company challenged the preliminary finding on a number of grounds. The Federal Court upheld the preliminary finding and the imposition of cash securities. In doing so, the Court commented that the Customs Act entrusted Customs with the exercise of a provisional judgment as to whether anti-dumping duty "may be payable" and in such circumstances the Court would be reluctant to intervene unless Customs clearly acted perversely or manifestly unreasonably. At the preliminary stage Customs was not required to adhere to procedures appropriate only in the event of a decision to impose duty. It was not necessary for Customs to warn the company of the material which gave rise to the adverse finding. It was sufficient for the company to be informed that a complaint of dumping had been made and to be afforded an adequate opportunity to be heard. Given the preliminary nature of the finding and the provisional character of the measures involved, Customs was not obliged to take account of certain matters nor was Customs failure to do so manifestly unreasonable. There was no doctrine of constructive notice whereby Customs could be challenged for unreasonably failing to ascertain relevant facts. Given the preliminary nature of the inquiry and the fact that the matter was one for the judgment of Customs it was impossible to say that the material relied upon by Customs lacked probative value. Finally, the Court held that the imposition of securities disclosed no improper purpose.

Hope v Bathurst City Council (1980)144 CLR 1

The High Court considered the meaning of "business", more specifically the meaning of "carrying on the business" in the context of a dispute concerning the ratable value of land under s.118(1) of the Local Government Act 1919 (NSW). The sub-section refers to land used for "carrying on one or more of the businesses ... of grazing". The Court construed the expression "carrying on the business" in the sub-section as having its ordinary or popular meaning, that is, activities engaged in for the purpose of profit on a continuous and repetitive basis. The land had been used for agistment since 1965. Customers were sought by advertising, financial records were kept and the land was put to its best potential use. The Court concluded that the facts admitted of no other conclusion than that the ratepayer's activites constituted a "business". The High Court upheld the ratepayer's appeal from the Court of Appeal which had erred in law in finding the activities did not consitute a business.

International Nickel Australia Ltd v The Commissioner of Taxation of the Commonwealth of Australia (1977) 137 CLR 347

The High Court considered the effect of exchange rate variations on the assessable income of a taxpayer. The taxpayer imported nickel products at a price payable in sterling. Sterling was devalued in 1967 and, as a result, the number of Australian dollars required to extinguish the taxpayer's liabilities to its overseas suppliers was considerably reduced. The Court held that exchange gains made by the taxpayer in relation to goods used as its trading stock, formed part of the taxpayer's assessable income.

Jeppe v R (1985) 61 ALR 383

Jeppe was convicted of possession of cocaine under s.233B(1)(c) of the Customs Act. That paragraph creates an offence where any person who "without reasonable excuse (proof whereof shall lie upon him) has in his possession any prohibited imports ..." A parcel containing the cocaine was delivered to Jeppe's residence addressed to a third party. Jeppe said he would pass it on to the person concerned. He later began opening the parcel. During a search of the premises a book entitled "Cocaine - Consumer's Handbook" was seized. The Court of Criminal Appeal, Western Australia, followed the decision of the High Court in He Kaw Teh v R (1985) 60 ALR 449. It was there held that in a charge under s.233B(1)(c) when the accused had in his possession a container containing the prohibited import, the prosecution must prove that the accused knew that the prohibited import was in the container and the jury should be directed accordingly. As the trial judge had erred in his direction to the jury, the Court of Criminal Appeal quashed the conviction and ordered a new trial. The Court also considered the admissibility of the "Cocaine - Consumer's Handbook". By majority decision, the Court found that the trial judge had not erred in admitting the book. The book was probative of the matter in issue and therefore relevant. Furthermore, in declining to exercise his discretion to exclude the book on the basis that its prejudicial effect far outweighed its probative value, the trial judge had not erred in concluding that any prejudice could be counter balanced by an appropriate direction to the jury.

Jones v Commonwealth of Australia and Others (1987) 71 ALR 497

Jones sought declarations that s.20 of the Telecommunications (Interception) Act 1979 (Cth) was beyond the Commonwealth's power, that two warrants purporting to have been issued under that section were invalid and that s.7 prohibited the admission of evidence without lawful authority. Jones had been charged with conspiring to pervert the course of justivce on the basis of telephone conversations recorded pursuant to warrants issued under s.20. The High Court by a majority of six to one, refused to reconsider the correctness of its previous decision in Hilton v Wells (1985) 157 CLR 57. In that decision, the Court held by a majority of three to two, that s.20 was valid because the power which it conferred on judges to issue warrants for the interception of telephone conversations was conferred on judges as designated individuals, and that s.7 did not prohibit the admission of evidence obtained by unlawful interception.

Kanbur Pty Ltd and Another v Adams (1984) 55 ALR 158

A certificate of title and share certificate were seized as forfeited goods representing the proceeds of drug trafficking within the meaning of s.229A of the Customs Act. Application was made for review of the decisions leading up to and including the seizure of the certificates on the grounds that the certificates were not "goods" nor were they "forfeited goods". S.4(1) of the Act defines "goods" to include "all kinds of movable personal property". By s.229A of the Act, money or goods that came into a person's possession or control "by reason of" certain drug trafficking activities, are deemed to be "forfeited goods".The Federal Court held that the certificates were "goods" within the meaning of ss4(1) and 229A of the Act and "forfeited goods" within the meaning of s.229A. For the purpose of s.229A, possession or control need not be the immediate result of the forbidden conduct. So long as possession or control was achieved as a result of that conduct, there might be intervening steps such as the negotiation of some asset other than goods or money which was not itself liable to forfeiture.

Kingswell v R (1985) 62 ALR 161

The High Court considered the provisions of s. 235(2) of the Customs Act including their relationship with s.233B(1)(cb) and their validity in the light of s.80 of the Constitution. S.233B(1)(cb) creates the offence of conspiring to import prohibited imports meaning narcotic goods. The penalty for this and other offences against s.233B(1) is provided in s.235. That section provides a range of penalties depending, in part, on the quantity of narcotics concerned and whether the offender has previously been convicted of a similar offence. S.80 of the Constitution provides for trial by jury for Commonwealth indictable offences. The accused's indictment omitted reference to the quantity of heroin imported and the accused's previous conviction for a similar offence. The High Court, by majority, found against the accused's argument that s.235(2) read together with s.233B(1) created distinct offences containing elements from both sections. The Court concluded that s.233B(1)(cb) created one offence and s.235(2) and (3) provided a range of penalties applicable to that offence in certain circumstances. The elements of the offence were defined in s.233B(1)(cb) and were to be found by the jury and the additional matters stated in s.235(2) were relevant to the maximum sentence and were to be found by the judge. Ss 233B(1)(cb) and 235(2) did not contravene s.80 of the Constitution. S.80 did not require Parliament to include in the definition of any offence any factual ingredient which would have the effect of increasing the maximum punishment. For the purpose of imposing a sentence within the limits fixed by s.235(2), the judge would form his own view of the facts provided that that view was not in conflict with the verdict of the jury. Nevertheless the Court held that, in general, a practice should be followed that where the circumstances of aggravation described in s.235(2) were relied on, they should be charged in the indictment. In the case of the accused's previous conviction, however, it would not be proper to bring the fact of the previous conviction to the notice of the jury until the guilt of the accused had otherwise been established. This practice of disclosure in the indictment save in the case of previous convictions, had not been observed but there had been no miscarriage of justice. Accordingly the appeal was dismissed.

Kirk and Others v Commissioner of Australian Federal Police (1988) 81 ALR 321

S.243B and subsequent sections of the Customs Act provide for the imposition of a pecuniary penalty in respect of certain narcotics dealings. S.243E enables the Official Trustee in Bankruptcy to apply to the Court for an order to take control of property and such order may provide for "reasonable living and business expenses". By s.243J, this order creates a charge on a defendant's property. S.243F provides for the furnishing of a statement of his property by a defendant and for examination of a defendant concerning his property interests. A considerable sum of money had been passed to the defendants' solicitors subject to an agreement that the money be used in criminal proceedings pending against the defendants. Certain shares were also placed in the hands of the solicitors and, after a s.243E order was made, sold with a view to the use of the proceeds in the pending criminal proceedings. The Full Court of the Federal Court held, by majority, that the money retained by the solicitors was subject to an order made under s.243E. The agreement between the defendants and the solicitors was for the payment of fees in advance. The beneficial ownership of the money remained at all times with the clients subject only to the solicitors' lien for fees and expenses properly incurred. As there were no such costs outstanding, the money was properly subject to the order made under s.243E. A s.243E order on all the property of the defendants enabled the Official Trustee to take control of the proceeds of the sale of the shares which had been sold after the date of the order to a bona fide purchaser for value without notice. An order under s.243F for a statement of property interests and examination on those interests overrode the common law rule protecting against self-incrimination. Such an order did not, however, override the court's discretion to stay civil proceedings while criminal proceedings were on foot. It was therefore open to the defendants' to apply to the Court to exercise its discretion so as to exclude from the s.243F order information which would prejudice the defence of the prosecution proceedings. Justice Davies also commented that the expression "living and business expenses" in s.243E should be read widely to encompass fees and expenses incurred in the defence of the prosecution proceedings provided they were reasonable and chargeable.

Lee and Another v Anderson (1986) 70 ALR 575

This was an appeal to the Queensland Supreme Court against a conviction for making a false statement contrary to s.234(1)(e) of the Customs Act. The applicant had answered no in a document in response to the question whether he was carrying prohibited goods including firearms. The facts showed that he was carrying a pistol at the time although because it was licenced and because he had not obtained it overseas, he did not believe it to constitute prohibited goods. Section 234(1)(e) as it then was, prohibited the making "in any declaration or document produced, given, delivered or furnished to any officer any statement which is untrue in any particular" or furnishing "to any officer any declaration or document containing any such statement". The issue was whether the offence required proof of mens rea. The Court held, by majority, that the offence did not require proof of mens rea meaning proof of an evil intention or knowledge as to the wrongfulness of the statement made. Given the applicant's mistaken belief and his good character, however, the charge should have been dismissed without a conviction being recorded.

Lyons v Smart (1908) 6 CLR 143

Lyons was found to be in possession of indecent articles which were prohibited imports under the Customs Act. He was convicted of an offence against s.233. That section then provided that "No person shall ... unlawfully ... have in his possession any goods". On appeal, the High Court held by a majority decision of four to one, that the mere possession of prohibited imports by a person unconnected with the importation did not constitute an offence against s.233 notwithstanding that the possessor was aware that the goods were unlawfully imported.

McNeill v Whitton (1915) 20 CLR 573

The High Court held that a wharf labourer who merely hammered down part of a case which was open in a Customs shed, did not interfere with goods subject to the control of the Customs within the meaning of s.33 of the Customs Act.

Maher v Musson (1934) 52 CLR 100

Musson was acquitted of having in his custody illicit spirits contrary to s.74(4) of the Distillation Act 1901-1931. The section, as it then was, provided that "No person shall ... have ...in his custody ... any illicit spirit." On appeal, the High Court held, by a majority of four to one, that the accused was entitled to be acquitted if he proved that he reasonably believed that the spirit was not illicit. This was so notwithstanding that the legislation was a revenue Act.

Mallan v Lee (1949) 80 CLR 198

A company was charged with contravening s.230 of the Income Tax Assessment Act in that its public officer had knowingly and wilfully understated the amount of income in its return. Mallan, the company's public officer, was charged with being knowingly concerned in the commission of this offence contrary to s.5 of the Crimes Act 1914 (Cth). S.5 provides that accessories, including those knowingly concerned in the commission of an offence, "shall be deemed to have committed that offence and shall be punishable accordingly". On the statement of a special case as to whether the prosecution against Mallan was barred under the Crimes Act, the High Court held that s.5 of the Crimes Act had no application as s.230, amongst other things, made it an offence for any person to understate income in a return, whether his own or that of another person. Accordingly Mallan, like the company, was liable as a principal. During the course of the judgement, the nature and effect of s.5 was considered. Chief Justice Latham commented that s.5 could only apply where the principal offence had been committed. Justice Dixon commented that the application of sections such as s.5 might be excluded by the nature of the principal offence or the general policy of the provisions by which it was created.

Manley v Tucs (1984) 58 ALR 217

This was an appeal to the Supreme Court of South Australia from a conviction for possession of a prohibited import, namely tetrahydrocannabinol, to which s.233B(1)(ca) of the Customs Act applied. That section refers to the possession of prohibited imports "which are reasonably suspected of having been imported into Australia in contravention of this Act". The Court held that the suspicion of importation was not the suspicion of the arresting officer nor any other individual but the quality which the court or jury on hearing the charge attached to the imports after objectively considering all relevant evidence bearing upon the matter of importation. The prosecution failed to discharge its onus of proof, where, in the case of tetrahydroccannabinol, doubt remained as to whether the substance was necessarily imported from outside Australia as opposed to being extracted from cannabis plants grown in this country.

?The Marine Board of Hobart v The Commonwealth and Another (1915) 20 CLR 15

The Marine Board of Hobart sought a declaration that the Commonwealth was not entitled to require a security for payment of Customs duties on goods not belonging to or under the control of the Board. S.42 empowers Customs to take securities for compliance with the Act and for the protection of Customs revenue. By regulation pursuant to that power, such security may be required of the owner of any wharf. As a condition of granting the privilege of landing goods at a private wharf the owner must give security that the Customs duty upon them shall be paid. The Board was a corporation charged with the management and control of wharves in the port of Hobart with full powers of maintenance and regulation and the power to charge for services rendered. The High Court unanimously held that the Regulations, by making the owner of premises on which uncustomed goods were landed responsible for the payment of Customs duty, were within the Commonwealth's power to take the necessary steps to secure payment of duty.

?Charles Markell and Alexander Markell v H N P Wollaston and the Commonwealth (1906) 4 CLR 141

The High Court was required to consider whether flypaper should be classified as insecticide for the purposes of duty. S.138 of the Customs Act as it then was, provided that where goods could be classed under two or more headings, the goods should be classed so that duty was payable. Customs contended that the goods were a manufacture of paper "not elsewhere included". The Court held that in the absence of evidence that the word "insecticide" had acquired a special commercial meaning, its ordinary meaning should be used in the context of the relevant part of the Tariff. That part of the Tariff was entitled "Drugs and Chemicals". The Court concluded that the word included any preparation in the nature of a drug or chemical used mainly for the destruction of insect life being spread on paper for its effective use. S.138 had no operation as the goods were "elsewhere included" and accordingly only one class applied.

Marshall v London Passenger Transport Board [1936] 3 All ER 83

The plaintiff was injured by one of the Board's trams and he sued for damages for negligent driving. He subsequently sought to amend his writ to include the Board's negligence in maintaining the tramway. The Court of Appeal held that such an amendment amounted to a new head of claim which was beyond the statutory time provided for the commencement of the action and accordingly the amendment was not allowed.

May v O'Sullivan (1955) 92 CLR 654

The High Court made brief observations on the onus of proof in criminal proceedings. The Court observed at pages 658 and 659, that when, at the close of the case for the prosecution, a submission was made that there was "no case to answer", the question to be determined as a matter of law, was whether on the evidence, the defendant could be convicted not whether he ought to be convicted. In the absence of special statutory provision, a finding of "no case to answer" had no effect on the onus of proof which rested throughout on the prosecution. After the prosecution had brought evidence to support proof of the issue, the defendant might or might not call evidence. Whether he did or not, the question to be determined as a matter of fact, was whether on all the evidence the Court was satisfied beyond reasonable doubt that the defendant was guilty. In doing so, the Court could, in some cases, where the facts while well known to the defendant were not easily ascertainable by the prosection, properly take into account the defendant's failure to give evidence as making an inference of guilt less unsafe than otherwise. Where the court finds a "case to answer" and the defendant fails to bring evidence, the Court may yet refuse to convict on the evidence for the prosecution.

?The Merchant Service Guild of Australasia v The Commonwealth Steamship Owners Association and Others (1913) 16 CLR 664

An industrial dispute arose concerning working conditions on board two vessels travelling between Australia and certain Pacific Islands. A case was stated for the opinion of the High Court. The Court held that the words "extending beyond the limits of any one State" in the conciliation and arbitration power in s.51(xxxv) of the Constitution, meant extending from one State into another. The words "first port of clearance" and "port of destination" in s.5 of the Commonwealth of Australia Constitution Act meant the beginning and end of a complete voyage as intended at the commencement of the voyage of which the ship's papers provided some but not conclusive evidence. By virtue of s.5 of the Commonwealth of Australia Constitution Act, a dispute was not the less a dispute extending beyond the limits of any one State, merely because some of the operations in respect of which the dispute existed were performed extra-territorially. In such a dispute, the Commonwealth Conciliation and Arbitration Court had the power to fix terms and conditions in agreements between the disputing parties.

Mills (Collector of Customs for NSW) v Parkes and Another (1914) 18 CLR 189

Parkes was agent for a ship and to enable it to be unloaded, he and his co-defendant gave security under s.42 of the Customs Act by which they acknowledged themselves bound to Customs in a particular sum for the payment of the cargo's Customs duties. Part of the cargo disappeared from the wharf. The High Court held that as there was no evidence to show that the loss occurred through unavoidable accident, an eventuality for which the defendants were not liable under the terms of the security, and as the duty on the lost goods had not been paid, the defendants were liable for the amount of unpaid duty.

Minister for Industry and Commerce and Another v East West Trading Co Pty Ltd (1986) 64 ALR 466

?see case listed probably as this but where East West Trading Co v Minister should be - that abstract should be put here and thendecide whether to do earlier case or not.

Minister for Industry and Commerce v Tooheys Ltd (1982) 42 ALR 260

Tooheys Ltd sought review of a decision of the Minister's delegate refusing to make a determination under s.273 of the Customs Act that item 19 of the Tariff applied to certain imported goods. Item 19 refers to goods which are not reasonably available from Australian manufacturers. By s.273(3), a determination takes effect as a by-law. The Minister objected to the jurisdiction of the Court on the grounds that the refusal was not "a decision of an administrative character" as required by the Administrative Decisions (Judicial Review) Act, but if it were, then it was specifically excluded by Schedule 1 of the Act. Schedule 1 excludes, amongst other things, a decision "forming part of the process of making, or leading up to the making of ... calculations of ... duty ... under ..." the Customs Act and Tariff. The Federal Court found against the Minister on both grounds. S.273(3) did not change the true character of a Ministerial determination so as to render it legislative: it merely described the effect of such a determination. The determination was administrative in that it was the application of a general rule to a particular case. With regard to Schedule 1, the Court distinguished between a decision such as a Ministerial determination which affected liability to pay duty and a decision which dealt with the calculation of the duty to be paid. It was the latter decision which was contemplated by Schedule 1.

Moore v Jack Brabham Holdings Pty Ltd and Another (No 1) (1986) 67 ALR 561

Proceedings were instituted against the defendants for evading Customs duty and other offences against s.234 of the Customs Act. The offences occurred some ten years before and the defendants sought to have the proceedings dismissed as an abuse of process by reason of the plaintiff's delay.. S.247 of the Act requires a Customs prosecution to be commenced, prosecuted and proceeded with, subject to any special directions which may be given, "in accordance with the usual practice and procedure of the court in civil cases". The Supreme Court of NSW held that the true nature of the proceedings brought in the Supreme Court as a Customs prosecution was criminal despite the civil nature of the procedure which was made applicable to them by s.247. Nevertheless, s.247 required that civil practice and procedure relating to applications for the dismissal of proceedings for non-prosecution must also apply to a Customs prosecution. The Court had to exercise its discretion to do what was just between the parties having regard to the cause of the delay, the blame for it and the prejudice which it had created for the defendants. In determining the question of prejudice, it was relevant to take into account the criminal nature of the proceedings. While any prejudice caused by a delay before the commencement of the proceedings was by itself irrelevant, in the case of a Customs prosecution it was to be expected that some explanation for the delay should be provided. Delay, in rendering more difficult the determination of factual issues, had a greater consequence for the defendant in a Customs prosecution because of s.255 which made Customs' allegations in a statement of claim prima facie evidence of the matters alleged. On balance, and taking into account the defendants' delay in seeking a witness and in complaining of Customs' delay, and despite the particular anxiety caused to a defendant in the public eye, the Supreme Court found against the defendants' application for the proceedings to be dismissed.

Moore v Jack Brabham Holdings Pty Ltd and Another (No 2) (1986) 67 ALR 577

This was a Customs prosecution in which the plaintiff sought to amend the statement of claim in a number of respects. When the prosecution commenced, s.245 of the Customs Act required prosecutions to be instituted "in the name of the Minister". The Minister had subsequently changed. The Act had also been amended to substitute the Comptroller for the Minister in s.245. S.249 precludes the institution of prosecutions after a period of five years. The Supreme Court of New South Wales allowed the amendments. The Court held that because the proceedings were taken by the Minister on behalf of the Crown, once they were properly instituted in the name of the Minister as was required by s.245, the proceedings properly remained on foot thereafter, and the substitution of one plaintiff on behalf of the Crown for another neither affected their continued existence nor had the effect of commencing new proceedings and thus defeating the statutory limitation period. The Minister's right to continue proceedings properly instituted did not depend upon his right to institute fresh proceedings. The new Minister would have the benefit of s.255 which presumes a certain evidentiary effect of particular allegations in the statement of claim, both in respect of facts already alleged by the former Minister and further facts the new Minister wished to allege in an amended statement of claim. Although the proceedings were criminal in nature, the power to amend was that which applied in civil procedure by virtue of s.247. Neither the general delay nor the fact that the defendants might challenge the retainer of Counsel for the former Minister, were matters which were relevant to the Court's exercise of discretion to allow the amendments sought. The Court allowed a number of other amendments on the basis that they involved no injustice to the defendants.

McDowell and Partners Pty Ltd and Another v Button and Another (1983) 50 ALR 647

The applicant sought review under the Administrative Decision (Judicial Review) Act of the Minister's declaration under s.8(2) of the Customs Tariff (Anti-Dumping) Act that the price of glass patio door panels from Spain were less than the normal value of those goods. The issues concerned the method of determining "the normal value" of the goods under s.5 of the Act. The Federal Court held that sales at a loss, without more, were not necessarily outside the "ordinary course of trade" within the meaning of s.5 but if such sales were persisted in they might indicate an ulterior object sufficient to take the transactions outside the ordinary course. It was not appropriate to use information concerning costs for exports from the USA to construct a normal value for exports from Spain for a number of reasons: the Spanish panels were of a lower quality, average prices over a period of three years varied significantly between the two countries, there was only scant material available from the USA, and there was no natural, let alone necessary, relationship between a reconstruction of costs of a producer in the USA with a similar reconstruction in Spain. The information available from Spain, its limitations notwithstanding, should have been used in the calculation when the only primary material available from the USA was information as to profits, not costs of production, and when the information was neither verified nor reliable. Accordingly, the Minister's declaration was set aside.

?Re Munro and Collector of Customs (NSW) (1984) 2 AAR 305

Munro imported a yacht which was sailed from Scotland. During the voyage to Australia it ran aground and a considerable sum of money was expended in salvaging and repairing the yacht for its continued voyage to Australia. The AAT was required to consider whether that expense constituted "overseas freight" and thus, in accordance with s.161(7) of the then Customs Act, an allowable deduction from the value of the yacht for the purposes of Customs duty. "Overseas freight" was defined in the then s.154 to mean "any costs, charges and expenses of, or associated with, the transportation of the goods from the place of export to Australia". The AAT held that the meaning of transportation was consistent with conveying a thing directly. The use of the expression "costs, charges and expenses" indicated a broad range of expenditure. That expenditure was an amount actually incurred and was not limited by notions of normal or appropriate expenditure. When considered "in accordance with generally accepted accounting principles" as required by the then s.161(7), the salvage and repair expenditure was a charge against revenue not capital. The AAT concluded that the expenditure was actually incurred in the conveyance of the yacht from the point of export to the point of import and was otherwise within the definition of "overseas freight". Accordingly, it was an allowable deduction under s.167(1) of the then Act.

Murphy v Farmer (1987) 72 ALR 691

The issue in this case before the Court of Appeal was whether the word "false" in s.229(1)(i) of the Customs Act meant "purposely untrue" or merely "wrong in fact". S.229(1)(i) provides for the forfeiture of all goods in respect of which "any entry invoice declaration answer statement or representation which is false or wilfully misleading in any particular has been delivered made or produced ..." The Court of Appeal unanimously held that the word "false" in s.229(1)(i) meant wilfully false. In reaching this conclusion, the Court was persuaded by its combination with "wilfully misleading" together with their sequence, and the difference in some contexts between "false" and "untrue", the former at least sometimes meaning deliberately untrue. This decision was appealed to the High Court.

Murphy v Farmer (1988) 79 ALR 1

This was an appeal to the High Court from the Court of Appeal's decision concerning the meaning of the word "false" in s.229(1)(i) of the Customs Act in Murphy v Farmer (1987) 72 ALR 691 which is summarised above. The High Court noted that in isolation the word "false" was latently ambiguous, capable of meaning "untrue" or "wrong". The Court held, by a majority of three to two, that the provision was penal or quasi-penal in character and, accordingly, the ambiguity should be construed in favour of the subject to mean purposely untrue.

Murphy and Others v KRM Holdings Pty Ltd (1985) 63 ALR 397

Motor cars were seized pursuant to s.203(2) of the Customs Act and the question was whether Customs was obliged to provide a statement of reasons under s.13 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) in relation to the decision to seize. By virtue of s.13(11)(c) of that Act, decisions referred to in paragraphs (e) and (f) of Schedule 2 of the Act, are excluded from the requirement to provide statements. Paragraph (e) covers "decisions relating to the administration of criminal justice and in particular - (i) decisions in connection with the investigation or prosecution of persons for any offences against a law of the Commonwealth ..." Paragraph (f) covers "decisions in connection with the institution or conduct of proceedings in a civil court, including decisions that relate to, or may result in, the bringing of such proceedings for the recovery of pecuniary penalties arising from contraventions of enactments ..." The evidence showed that in determining whether to seize, Customs considered whether there was sufficient evidence to proceed to prosecution for an offence against s.234(1) of the Customs Act. The Federal Court held that the decision to seize did not come within paragraph (e) nor (f) and therefore was not excluded by operation of s.13(11)(c). In so concluding, Justice Pincus found, with general agreement from Justice Beaumont, that although contraventions of s.234(1) were criminal in nature, on the facts of the case there was insufficient connection established between the seizure and an investigation to bring the seizure within paragraph (e). Furthermore, the seizure was not "in connection with" civil proceedings for the purpose of paragraph (f) nor did it "result in" those proceedings as argued by Customs.

?D & W Murray & Co Ltd v The Collector of Customs (1903) 1 CLR 25

In a dispute about the payment of duty on goods imported into Western Australia from abroad, the High Court held that by s.95 of the Constitution, in the first five years after the imposition of uniform duties of customs, where the Western Australian Tariff imposed a higher duty on goods of Australian origin than the Commonwealth Tariff imposed on the same goods from overseas, then the Commonwealth Tariff was to take effect as though the higher Western Australian Tariff was imposed.

Naismith v McGovern (1953) 90 CLR 336

A taxpayer sought discovery in relation to documents held by the Commissioner of Taxation in relation to certain taxation offences allegedly committed by the taxpayer. By s.237 of the then Income Tax and Social Services Contribution Assessment Act 1936 (Cth), the procedure for the recovery of a penalty under that Act was the usual practice and procedure of the Court in civil cases. By s.64 of the Judiciary Act 1903 (Cth), where the Commonwealth was in suit with a private litigant, the rights of the parties were, so far as possible, to be the same. The High Court held that as the relevant procedure was civil, s.64 of the Judiciary Act applied and accordingly the Commonwealth was required to comply with the notice of discovery.

Nashua Australia Pty Ltd v Channon (1980) 36 ALR 215

The Minister's delegate revoked a determination made under s.273 of the Customs Act. The revocation was challenged on a number of grounds, including, lack of power, failure of natural justice and failure to exercise discretion personally. The Supreme Court of NSW held that the power of the Minister's delegate to make a determination derived from s.273 but that power was defined by s.33(3) of the Acts Interpretation Act 1901 (Cth) to include the power of revocation. Accordingly, the delegated power included the power of revocation. The Court further held that a decision to revoke would depend upon matters concerning the goods themselves in relation to tariff policies and considerations applied by the Department. There could, accordingly, be no assumption that a particular tariff classification would necessarily be appropriate at a future date. The spectrum of considerations which might properly be taken into account was so wide that it could not be reasonably expected that Customs make known or justify its reasons for withdrawing a particular tariff concession. Accordingly the rules of natural justice did not apply to a revocation of a determination under s.273. Insofar as judicial authority recognised as a separate concept the notion of a "legitimate expectation" that the determination would continue in force, the same reasoning applied against its operation in the context of the Customs Act. The circumstances themselves militated against the operation of such a concept of "legitimate expectation" as the Department had warned that the determination might be terminated in the light of further information. The Court finally held the revocation to be invalid on the ground that the delegate acted in accordance with the instructions of his superiors without exercising his own independent judgment in the matter.

Neumann Dredging Co Ltd v Collector of Customs (Qld) (1987) 79 ALR 588

The Company sought a rebate in respect of diesel fuel used in dredging sand for material for land reclamation and retaining wall contruction. The issue was whether this activity constituted "mining operations" within the meaning of s.164 of the Customs Act as applied in s.78A of the Excise Act. S.164(7) provides as an exception to the definition, the words "but does not include quarrying operations carried on for the sole purpose of obtaining stone for building, road making or similar purposes". The Federal Court noted that the meanings of "minerals and "mining" were imprecise and little helped by dictionary definitions. Judicial decisions had, however, settled on a view which would exclude activities such as quarrying for blue metal. To argue that the exception implied a radically different understanding of "mining for minerals" in s.164(7) than previously accepted was to construe the definition in a manner which distorted the true meaning of its substantive provisions. The Court concluded that the dredging was for building materials and not for anything which ordinary understanding would describe as minerals.

North Australian Cement Limited v Federal Commissioner of Taxation (1969) 119 CLR 353

A taxpayer extracted limestone by the open cut method for use in making cement and claimed certain expenditure as a deduction being incurred in connection with "mining operations upon a mining property" within the meaning of s.122(1) of the Income Tax Assessment Act 1936. The High Court held that the issue of whether an open cut extraction of material was mining was to be determined by an informed general usage which took into account the way in which the deposits occurred, the character of the material to be recovered and the use to which it might reasonably be put. The conclusion was largely one of fact. Applying such a pragmatic test, it was outside common usage to speak of limestone workings as a mining property, even if technically justifiable, and accordingly the expenditure did not qualify as a deduction. NSW Associated Blue-Metal Quarries Ltd v Federal Commissioner of Taxation (1956) 94 CLR 509 was applied.

NSW Associated Blue-Metal Quarries Limited v Federal Commissioner of Taxation (1955) 94 CLR 509

A taxpayer claimed a deduction in respect of expenditure incurred in "mining operations upon a mining property" as that expression was used in s.122(1) and s.122A of the then Income Tax and Social Services Contribution Assessment Act 1936. The company's operations were for the winning, by the open cast method, and crushing of blue-metal at a quarry. The High Court held that the words "mine" and "mining" were by no means fixed and were readily controlled by context and subject matter. While the word "mine" was always somewhat indefinite in its application, judicially, its primary meaning unaffected by context was taken to refer to underground workings and not open cast extraction or quarrying. Further, bluestone was outside the scope of metals, minerals or substances which in thought or tradition were associated with underground workings. It would be odd to refer to a bluestone mine or to such a quarry as a mining property. Accordingly the expenditure was not an allowable deduction.

Ogle and Another v Strickland and Others (1987) 71 ALR 41

Two priests sought review of the decisions of the Censorship Board made under the Customs (Cinematograph Films) Regulations to grant a licence to import, to approve for registration and to register the film "Je Vous Salue Marie". The priests contended that the film was blasphemous in that it denied the basic tenets of the Christian faith in an offensive manner. The issue was whether the priests were "aggrieved" within the meaning of s.5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) and thus entitled to challenge the decisions under that Act. The Federal Court held that the expression "a person who is aggrieved" in s.5, as a formula for determining standing, was flexible and derived its meaning from the particular context and statute concerned. The subject matter being the Christian faith, it had a greater significance for the priests and a greater effect on the priests when compared to members of the public or other Christians in the community. On the basis that registration of the film under the Regulations enabled the film to be exhibited in Australia, there was sufficienct nexus between the decisions in question and the subject matter of the complaint to enable the decisions to be challenged under the Administrative Decisions (Judicial Review) Act.

O'Neil v Wratten and Others (1986) 65 ALR 451

Customs obtained certain information in purported exercise of a customs warrant which showed that Customs duty on an imported car had been understated. Customs sent a notice of seizure to the importer of the car who sought review of the decision to seize. The issues were whether the decision to seize was lawfully made and whether the car was lawfully seized. S.203 provides for the seizure of forfeited goods and s.229(1)(i) provides, in part, that all goods in respect of which a false invoice has been produced, are forfeited goods. S.214(3) of the Customs Act provides that a customs warrant may be executed "if any person fails to comply with a requirement by the Collector" to produce all documents relating to the imported goods. The Federal Court held that as the "requirement" to produce had not been communicated, there had not been a failure to comply and, as a consequence, the information had been illegally obtained. The Court refused to exercise its discretion to exclude illegally obtained evidence, however, as the illegality was due to a mistaken view of the law not a deliberate disregard of the legal requirements and the information was necessary to decide the very issue which the importer sought reviewed. The information showed that Customs had reasonable grounds for believing that the car was forfeited by reason, at the least, of the importer's production of a false invoice. Accordingly the decision to seize was lawfully made. The Court further held that by s.205(2) of the Customs Act, notice of seizure was a separate and subsequent event to seizure. It was necessary in order to constitute a seizure that there be some act to intimate that a seizure had been made. As no step at all had been taken to effect a seizure, the car had not been lawfully seized. The Court was also invited to determine whether the car was in fact "forfeited goods" under the Act. The Court held that it had no jurisdiction to consider the matter either under the Administrative Decisions (Judicial Review) Act or the Federal Court of Australia Act 1976 (Cth) and while it might have accrued jurisdiction to determine the question, it exercised its discretion against doing so on the basis of views expressed by the Court in Pearce v Button (1986) 65 ALR 83.

Oriental Foods (Wholesalers) Co Pty Ltd v Commonwealth of Australia (1983) 50 ALR 452

The Commonwealth applied to dismiss a claim for damages based on the alleged negligence of a Customs officer during the course of his examination and repacking of certain goods. The issue was whether the Commonwealth could be held vicariously liable for the actions of the Customs officer. The Supreme Court of NSW considered that the issue was covered by the rule that the Crown was liable for the negligence of its officers unless an officer was negligent in the execution of some independant duty cast upon him by common law or statute. As the examination and repacking of goods was a purely ministerial and somewhat menial task, not involving special duties, the Commonwealth could be held vicarious liable

Peacock and Another v Zyfert and Another (1983) 48 ALR 549

Zyfert and another had imported two cars without engines, gear boxes and steering pumps. Customs classified them under item 87.02.119 of the Tariff with the result that the cars, being imported without a licence, were prohibited imports under the Customs Regulations and therefore forfeited to the Crown. The classification was disputed. Customs challenged the Court's jurisdiction to hear the matter under the Administrative Decisions (Judicial Review) Act 1977 (Cth) submitting that the issue was one of fact for determination by the Customs officer concerned. In order to be classified under 87.02.119, it was necessary, when viewed in the light of interpretative rule 2(1), that the cars be "vehicles of a kind operated by self contained power ... being ... motor cars ... assembled". The Federal Court held that it was not correct to regard the determination of an article's classification under the Tariff as a single question of fact for the Customs officer alone. Application of the Tariff was a matter of construction which was a matter of law. Further, the classification was incorrect as cars without engines and gear boxes could not be described as "operated by self contained power" with or without the aid of interpretative rule 2(1). There had accordingly been an error of law within the meaning of s.5(1)(f) of the Administrative Decisions (Judicial Review) Act.

Pearce and Another v Button and Others (1986) 65 ALR 83

Customs seized six imported cars as forfeited goods under s.229(1)(i) of the Customs Act on the ground that the price of those cars cars had been understated. Evidence of that understatement was obtained by examination of certain documents retained in Hong Kong. Order 33, rule 3 of the Federal Court's Rules permits the rules of evidence to be dispensed with for proof of matters not "bona fide in dispute" or where compliance with the rules would cause "unnecessary or unreasonable expense or delay". The seizure and forfeiture of the cars was unsuccessfully challenged before the Federal Court (Pearce v Button (1985) 60 ALR 537 above). On appeal to the Full Court of the Federal Court, only Customs' right to retain the cars was challenged. The Full Court held that once it was accepted that seizure was lawful, Customs had a statutory right to possession until the goods were dealt with in accordance with the Act, and that right to possession was not susceptible to challenge under the Administrative Decisions (Judicial Review) Act. S.16(1)(c) of that Act was not available to declare property rights as between the parties or to declare whether the goods were forfeited, as it was not a source of additional jurisdiction. The Court should be slow to invoke Order 33, rule 3 in relation to matters which were central to a major issue in dispute and the evidence from Hong Kong should not have been admitted. The Full Court set aside the trial judge's finding as to forfeiture but otherwise dismissed the appeal.

?Re Pilkington ACI Ltd and Collector of Customs (1985) 3 AAR 279

An importer purported to pay under protest an amount of duty on goods which was lower than the duty which the importer considered applicable then sought review of the duty before the AAT under ss.167 and 273GA of the Customs Act. The AAT held that in order for there to be a dispute under s.167 which was reviewable by the AAT under s.273GA, there must be a demand by the Collector for an amount of duty in excess of the amount considered by the owner to be properly payable. In the absence of such a dispute the application failed for want of jurisdiction.

Powers v Maher (1959) 103 CLR 478

Customs seized an imported car as forfeited goods under s.229(i) of the Customs Act on the basis of a false statement made "in respect" of the car. Customs relied on three statements made prior to the importation of the car. The owner commenced proceedings for the return of the car. S.229(i) as it then was, declared as forfeited "All goods in respect of which any entry invoice declaration answer statement or representation which is false or wilfully misleading in any particular has been delivered made or produced." The High Court held that a false statement was not excluded from the operation of s.229(i) simply because it was made before the importation of the goods. Further, it was not necessary for the purposes of s.229(i) that at the time the false statement was made, the goods be in Australia. Furthermore, where a person made a statement to Customs in the course of and as relevant to their dealing with one another on the subject of the importation, the statement was made "in respect" of the goods to be imported notwithstanding that as yet those goods were unascertained and might not even be in existence. The Court concluded that the seizure and detention of the car was justified under s.229(i). The Court also commented, without having to decide, that the notice served pursuant to s.205 of the Customs Act might have been ineffectual as a notice as neither the statement nor the false particulars had been identified.

Proudman v Dayman (1941) 67 CLR 536

Proudman was convicted of permitting an unlicensed person to drive on a road contrary to s.30 of the Road Traffic Act 1934 (S.A.). The issue before the High Court was whether the defendant's knowledge of the driver's failure to hold a licence or her belief on reasonable grounds was relevant to the offence charged. The High Court held that it was not necessary for the purposes of the offence, that the prosecution affirmatively prove that the defendant knew that the driver did not hold a licence. Further, even if honest and reasonable mistake as to the existence of a licence was available as a defence, the facts did not support such a defence. Special leave to appeal was refused.

R v Abbrederis (1981) 36 ALR 110

Abbrederis was convicted pursuant to s.233B(1)(ca) of the Customs Act of having in his possession 1026 grams of heroin which was reasonably suspected of having been imported. Some of this heroin was discovered in his baggage only after he had been placed on remand. The defendant initially asserted that he had been acting on behalf of some other person - an assertion he later denied having made. On appeal, the Court of Criminal Appeal held that it was not necessary that the possession and the reasonable suspicion be contemporaneous. Reasonable suspicion of importation was part of the description of the goods which the prosecution was required to establish in the mind of the tribunal of fact as it was required to establish possession of them. They were both objective facts which did not depend upon the view of any individual at any given time. Further, that the ordinary process of investigation by way of interrogation did not offend against a consular officer's right to communicate with a foreign national in accordance with the Consular Privileges and Immunities Act 1972. As to the sentence, the trial judge was justified in forming the view that the defendant was acting as a principal as the only contrary evidence was his own assertion, later denied, which could not be substantiated by subsequent investigation. Given that possession and reasonable suspicion need not be contemporaneous, the trial judge was justified in sentencing on the basis of the total of the heroin found including the amount found following his remand. In the circumstances, a sentence of 15 years with a non-parol period of 6 years nine months was within the legitimate range of the discretion of the sentencing judge. Accordingly, the appeal against conviction and sentence was dismissed.

? The King and the Minister for Customs v Australasian Films Limited and Another (1921) 29 CLR 195

The issue before the High Court was whether a company could be convicted of an offence against the Customs Act with intent to defraud the revenue. In relation to one set of offences, the evidence showed that information had been provided to Customs from an incorrect record and that the officer with knowledge of the true position was not involved in the provision of the information. The Court considered that the principle to be applied was that a principal was presumed not to be criminally responsible for the acts of his servants unless the legislation in question indicated otherwise. This was to be judged by an examination of the object of the legislation, the words used, the nature of the duty imposed, the person on whom it was imposed, the person required to perform it, and the person on whom the penalty was imposed. The Court concluded from an examination of the Act in the light of the Acts Interpretation Act 1901 (Cth) that the offence was such that a principal could be liable for the default of his servant or agent committed by that servant or agent with the necessary intention. As no guilty mind was required of the principal, a company was in exactly the same position as a principal who was not a company. A company as principal was both liable for the fraud of an agent actually committing the offence and the fraud of a superior servant or agent by whose direction the offence was committed but was not responsible for the state of mind or knowledge of another servant or agent not concerned in the doing of the act. Accordingly, in relation to one set of offences where no servant or agent knew that the revenue was being defrauded, or that a false statement had been made or had any intent to defraud the revenue, the company could not be convicted of intent to defraud the revenue notwithstanding that one officer was aware of the correct information. In relation to another set of offences where the company's officer had the necessary intention, acted in furtherance of that intention and Customs duty was evaded, the company was liable to be convicted of intent to defraud the revenue.

R v Brown (1985) 59 ALR 763

Justice White of the Supreme Court of South Australia gave a number of rulings during the course of a prosecution for the offence of being in possession of cannabis resin reasonably suspected of having been imported contrary to s.233B(1)(ca) of the Customs Act. His Honour ruled that the accused could not elect, pursuant to s.7(1) of the Juries Act 1927 (SA), to be tried by a judge without a jury as the offence concerned was an indictable Commonwealth offence and by virtue of s.80 of the Constitution, indictable offences against the laws of the Commonwealth must be tried by jury. His Honour ruled, secondly, that the definitions of "cannabis" and "cannabis resin" in s.4 of the Customs Act were not irreconcilable as the former definition specifically excluded cannabis resin from its ambit. Once a substance was characterised as cannabis resin, it could not then be characterised as cannabis. Thirdly, his Honour ruled that the statutory defence of "reasonable excuse (proof whereof shall lie upon him)" provided in s.233B(1)(ca) required the accused to discharge the onus of proof of the defence of duress on the balance of probabilities. Fourthly, his Honour ruled that where the accused elected to make an unsworn statement, the contents of that statement were to be considered by them side by side with other evidence in the case and were a possible version of the facts provided they were not inconsistent with other sworn and accepted evidence. It was for the jury to weigh the statement against competing explanations for his conduct in deciding whether the accused had discharged the onus of proof of reasonable excuse on the balance of probabilities. Finally, Justice White ruled that the reasonable suspicion that the goods had been imported as required by s.233B(1)(ca), was not a suspicion held by the arresting officer but a conclusion to be reached by the jury based on facts proved by the prosecution beyond reasonable doubt.

?The Queen v Bull and Others (1974) 131 CLR 203

A case was stated for the consideration of the High Court following the conviction of persons for various offences involving a cargo of cannabis jettisoned at sea within three miles of the coast of the Northern Territory. The High Court was required to consider whether the facts disclosed offences against s.231(1)(c), s.233B(1)(a), s.233B(1)(b), and s.233A of the Customs Act and whether the Supreme Court of the Northern Territory had jurisdiction to try the accused for the relevant offences. The Court held that the cannabis was a prohibited import within the meaning of the Act notwithstanding that it had not been imported and thus the offence under s.231(1)(c) of assembling to prevent the seizure of prohibited imports and under s.233B(1)(a) of possessing prohibited imports on board a ship, could be committed within three miles of the coast. Further, in order for goods to be imported within the meaning of the Act, it was necessary that they be landed or brought within the limits of a port with the intention of landing them and thus the offence under s.233A of knowingly allowing a ship to be used in importing goods in contravention of the Act and under s.233B(1)(b) of importing prohibited imports, could not be committed within three miles of the coast. Finally the Court held that the Supreme Court of the Northern Territory had jurisdiction to try the charges and this jurisdiction was within the ordinary not the Admiralty jurisdiction of the Court.

R v Chin (1985) 59 ALR 1

Chin was convicted of being knowingly concerned in the importation of heroin. He was jointly tried with Choo who was found not guilty of having the heroin in his possession. It was part of the prosecution case that there had been an arrangement between the two. The only material linking the two before they came to Australia was Choo's application for a visa which contained a telephone number located at Chin's father's business premises and used by Chin in his own business. The prosecution tendered this document during its case in reply after Chin and Choo had given evidence and after Choo had been cros-examined on it. It was admitted into evidence against Choo only. Chin was, with leave, then recalled to give evidence about the telephone number and in subsequent cross-examination the prosecution put to him that he was aware that the number had been used by Choo. Chin successfully appealed to the Court of Criminal Appeal and the Crown sought leave to appeal to the High Court. The High Court held that the document should not have been tendered by way of reply as this amounted to the prosecution splitting its case in circumstances which were not exceptional. The prosecution must call all the evidence available to it in support of its case during the presentation of that case. It it failed to do so, it could not remedy the situation by calling evidence in reply except in exceptional circumstances. Exceptional circumstances did not embrace a situation which ought reasonably to have been foreseen by the prosecution or which would have been covered if the prosecution case had been fully and strictly proved. Their Honours differed in their criticism of the cross-examination which elicited information which could have been adduced during the presentation of the prosecution case. Gibbs CJ and Wilson J considered that such cross-examination would have been in order if notice had been given while Mason and Dawson JJ emphasised the trial judge's discretion to disallow such evidence although notice gave less force to any suggestion of unfair surprise. The appeal was dismissed.

? The King v The Collector of Customs for Victoria; Ex parte Berliner and Another (1935) 53 CLR 322

The importers and the Collector were engaged in a long-running dispute on the question of whether certain buying commissions and inspection charges which the importers claimed to have paid to overseas agents should be included in the value of their imports for the purposes of assessing duty. The Collector was not satisfied on information provided by the importers that such charges were genuine. Customs adopted the practice of requiring, before release of the goods, a cash security in the amount of the charges which would only be repaid on the provision of satisfactory information within six months. At the same time, Customs refused the tender of the disputed duty as a payment under protest. The High Court granted a writ of mandamus commanding the Collector to determine the value of the goods for duty, to demand that duty and to accept payment of such duty under protest and thereby pass an entry in respect of the goods. The Collector had resorted to the cash security in order to avoid determining the appropriate duty and by doing so had deprived the importers of their remedy under s.167 of the Customs Act. Such a writ could not be issued commanding the return of the security as the security in those terms was not authorised under the Act and no public duty had been incurred which was enforceable by mandamus. R v Comptroller-General of Customs; Ex parte Woolworths Ltd (1935) 53 CLR 308 applied.

R v The Comptroller-General of Customs and Another; Ex parte Woolworths Limited and Another (1935) 53 CLR 308

In a long-running dispute with Customs, Woolworths claimed that buying commissions paid to an overseas agent in respect of imported goods, should be excluded from the value of those goods for the purposes of Customs duty. In support of this claim Woolworths provided certain information to Customs but this information failed to satisfy Customs that the commissions were genuine. Customs released the goods only on payment of a security in the amount of the extra duty which was repayable on receipt of satisfactory information within a period of six months or such longer period as the Collector allowed. Woolworths finally refused to pay the cash security and sought to tender the higher duty as a payment under protest pursuant to s.167 of the Customs Act. Customs rejected the entry and retained the goods. The High Court held that Customs could not use the s.216 power to retain goods pending satisfactory proof of their details or the s.42 power to require securities, as a means of deferring indefinitely the levying of duty and thereby depriving the importer of its statutory right to make a payment under protest in accordance with s.167 of the Act. The Court granted a writ of mandamus commanding Customs to assess duty, demand duty, and if tendered, accept payment of such duty under protest and duly pass entry of the goods.

R v Drake-Brockman and Others; Ex parte National Oil Pty Ltd (1943) 68 CLR 51

National Oil Pty Ltd sought a writ of prohibition prohibiting the continuation of proceedings before the Coal Mining Industry Central Reference Board in which a union sought to vary the Miners' Award to include the company's employees engaged in the carbonization of shale for the production of crude oil and further processing of the crude oil for petrol. The relevant regulations provided that the "coal mining industry" included the "shale mining industry" unless otherwise indicated and that the proceedings concerned were not subject to challenge or review. The High Court held that by virtue of s.75(v) of the Constitution which confers jurisdiction on the High Court in respect of all matters in which, amongst other things, a writ of prohibition is sought against an officer of the Commonwealth, the Court had jurisdiction to grant prohibition against the Board notwithstanding the regulations. Further, that the company was engaged in two distinct industries: one the mining or extraction of the shale and the other the manufacture or treatment of that shale to produce petrol as the primary product. Those employees involved in the carbonization and other processes were engaged in the manufacture of the shale and were not engaged in the shale mining industry. The writ of prohibition issued accordingly.

R v Ernst and Others (1983) 54 ALR 751

Justice McGarvie of the Supreme Court of Victoria gave certain rulings during the course of a trial in respect of the offence of conspiring to import prohibited imports contrary to s.233B(1)(cb) of the Customs Act. His Honour ruled first that s.55(2) of the Evidence Act 1958 (Vic), which provides for the proving and tendering of business documents, applied not only to documents made or business carried on within Victoria but also within Australia and overseas. His Honour also considered the range of sentences which were available when the indictment failed to specify a narcotic substance. S.235(2)(d) provides penalties in relation to "a quantity of narcotic substance that is not less than the trafficable quantity" and s.235(8) provides that the narcotic substance is that specified in the indictment. S.21A of the Crimes Act 1914 (Cth) enables an indictment to be amended "at the hearing of any indictment". His Honour ruled that s.21A enabled the indictment to be amended to support liability to a particular range of sentence and such amendment could be made up to the time of sentence. The question of the composition of the narcotic substance had not been raised on the issue of guilt. Nevertheless, the defence was free to call such evidence on the issue of sentence. Accordingly the convicted men had suffered no prejudice and the amendment would enable justice to be achieved. His Honour also discussed the evidentiary principles to be applied in a conspiracy trial.

R v Gardiner (1979) 27 ALR 140

Gardiner was convicted of importing heroin contrary to s.233(1)(b) and of possessing imported heroin without reasonable excuse contrary to s.233(1)(c) of the Customs Act. Gardiner appealed to the Queensland Court of Criminal Appeal on the grounds that s.235 of the Customs Act contravened s.80 of the Constitution, that the trial judge erred in his direction to the jury concerning the onus of proof, and that the trial judge participated in the questioning of the defendant to an unfair and prejudicial extent. S.80 of the Constitution provides that the trial of indictable offences against any law of the Commonwealth shall be by jury. S.235 provides a range of penalties dependent on the type and quantity of narcotic substance involved as found to the satisfaction of the Court. The Court of Criminal Appeal held on the first ground that s.235 merely provided for particular sentences depending upon the facts as ultimately determined by the court and a trial on indictment did not thereby cease to be a trial by jury. On the second ground, with respect to the offence of importation, the Court held that given the subject matter of the legislation, namely narcotic goods, and the virtual impossibility of proving the state of mind of an importer in the absence of admissions, the prohibition in s.233(1)(b) was absolute, requiring proof of the actual importing without requiring proof of the importer's state of mind or proof sufficient to exclude the operation of the defence of mistake of fact. With respect to the offence of possession without reasonable excuse, the Court held that if a person was proved to have been in possession of the prohibited imports, then the onus was cast on him to prove on the balance of probabilities a reasonable excuse for the possession. The inclusion of such onus of proof was appropriate to s.233(1)(c) where possession might fairly be excused, for example where goods might be contained in a large receptacle yet still be in a person's possession. On the third ground, the Court held that a trial judge was entitled to question a witness to clear up ambiguities and to test his evidence and, on an application of these tests, there had been no miscarriage of justice. The appeal was accordingly dismissed.

?The King v Hush; Ex parte Devanny (1932) 48 CLR 487

This was an appeal from a conviction under s.30D of the Crimes Act 1914-1932 on a charge of soliciting contributions of money for an unlawful association, namely, the Communist Party of Australia. By s.30R of that Act, "averments of the prosecutor contained in the information or indictment shall be prima facie evidence of the matter or matters averred." The High Court held that the averments and evidence were insufficient to sustain the offence charged and quashed the conviction. Justice Evatt observed that s.30R stated the legal consequences which would flow from the contents of an information but the section assumed that the information would be in proper form. His Honour criticised certain averments which alleged matters of a purely evidentiary character, including the alleged contents of written documents. Justice Evatt added that the section did not allow the prosecutor's ex parte statement of what a document meant to outweigh the Court's own construction of that document. Chief Justice Gavan Duffy and Justice Starke observed that provisions such as s.30R did not alter the rules of pleading or the rules regulating the statement of the offence charged. It was not right to set out evidence supporting the allegation of the offence, to state irrelevant facts merely giving colour to the prosecution or to state evidence from which the result or fact necessary to sustain the offence charged might be inferred without any allegation of the fact or result itself. The facts and circumstances constituting the offence were required to be stated fully and with precision and be sufficient in law to constitute the offence charged.

?The Queen v Kirby and Others; Ex parte Boilermakers' Society of Australia (1956) 94 CLR 254

This application to the High Court called in question an order of the Court of Conciliation and Arbitration which required compliance with certain provisions of an award and an order of that Court which found the Boilermakers' Society guilty of contempt of the Court. The High Court held that Chapter III of the Constitution did not allow the exercise of a jurisdiction which of its very nature belonged to the judicial power of the Commonwealth by a body established for purposes foreign to the judicial power notwithstanding that such body was organised as a court. Further, Chapter III did not allow a combination with judicial power of functions which were not ancillary or incidental to its exercise but were foreign to it. As the legislative provisions by which the Court of Conciliation and Arbitration had made the orders in question, were not arbitral in character but conferred powers of enforcement, that is, judicial powers, they were invalid.

?The King v Albert C Lyon (1906) 3 CLR 770

A case was reserved for the consideration of the Full Court of the High Court which primarily concerned the construction of s.144 of the Customs Act 1901 as it then was. S.144 provided that medicinal preparations not completely manufactured were to be valued "at the ordinary market value in the country whence imported of the completed preparation when put up and labelled ... less the actual cost of labour and material used or expended in Australia in completing the manufacture thereof or of putting up or labelling the same." The High Court held that "actual cost of labour and material meant an estimate of what the actual cost of labour and material used or expended in putting up and manufacturing the goods would be. It could not be construed as disbursements already made as duty on the goods, being entered for home consumption, was payable immediately and the cost of labour and material in completing the process of manufacture was yet to be incurred.

R v Meaton (1986) 65 ALR 65

Meaton was convicted of the offence of being knowingly concerned in the importation of prohibited imports to which s.233B of the Customs Act applied "to wit, narcotic goods consisting of a quantity of cannabis resin". The indictment did not allege that the offence involved a trafficable quantity of cannabis resin. S.235(2) of the Customs Act provides for, increased penalties based, in part, on the type and quantity of narcotic substance involved. On appeal from a decision of the NSW Court of Criminal Appeal, a majority of the High Court affirmed the conclusion reached by three members of the High Court in Kingswell v R (1985) 62 ALR 161 that, as a matter of practice, when the circumstances of aggravation described in s.235(2) were relied on, they should be charged in the indictment (except in the case of prior convictions where special considerations applied). Charging them in the indictment informed the accused of a very important feature of the case made against him and enabled the jury (in the event of a trial by jury) to decide questions of fact which might very materially affect the maximum punishment to which the accused was exposed. A failure to observe the practice did not necessarily mean that the conviction should be set aside. Where that failure resulted in a miscarriage of justice, however, then the conviction should be set aside.

R v Moore and Others; Ex parte Co-operative Bulk Handling Ltd (1982) 41 ALR 221

The High Court considered an application for prohibition in relation to proceedings before the Conciliation and Arbitration Commission. In refusing the application, the Court observed that the weight to be given to a relevant consideration was a matter for the Commission in the exercise of its discretion. It could only amount to a want or excess of jurisdiction if the conclusion reached was so unreasonable that no reasonable tribunal could have reached it.

R v Parsons (1983) 53 ALR 568

This was an appeal against a conviction for importing heroin in shoes contained in a suitcase. Parsons admitted owning the contents of the suitcase but denied owning the shoes or having seen them before. The issue was whether the prosecution had to prove that Parsons had a guilty state of mind for the purposes of the offence in s.233B(1)(b) of the Customs Act. By a majority decision, the Full Court of the Supreme Court of Victoria held that the decision of the Full Court of Queensland in R v Gardiner (1979) 27 ALR 140 was directly in point and while not technically bound by a decision of the Full Court of another State, it was desirable that State Courts give a consistent meaning to a Commonwealth statute, and to this end adopt Full Court decisions of other States as their own. The Full Court of Victoria accordingly followed R v Gardiner and held that the prosecution was not obliged to prove a mental element or to exclude the operation of the defence of mistake of fact. A new trial was ordered.

?The King and Minister of State for the Commonwealth administering the Customs v Edwin Frederick Sutton (1908) 5 CLR 789

This was a special case stated for the opinion of the High Court. Wire netting which had been imported was removed from storage by an agent of the NSW Government without entry being made or passed by Customs. The issue was whether the Customs Act bound the Government of NSW. The High Court held that the principle that legislation did not bind the Crown except by express provision or by necessary implication, applied only in respect of the Executive Government whose law it was, being in this case the Crown in right of the Commonwealth and not the Crown in right of the State. The Commonwealth in enacting the Customs Act was exercising exclusive power which took no account of the States and the Act bound those Governments and private persons alike. Accordingly the wire netting was at the time of removal subject to the control of Customs and its removal contravened the Act.

R v Tannous (1988) 81 ALR 403

This was an appeal against a conviction for being knowingly concerned in the importation of a commercial quantity of cannabis resin. Tannous was led to believe that money owed to him had been used to finance the importation. Tannous thereupon agreed to become a partner and share in the profits. The NSW Court of Criminal Appeal held that it was necessary to show an act or conduct which implicated, involved or practically connected the defendant to the offence. A person could not become criminally involved in an unlawful act by mere knowledge or inaction on his part. By agreeing that his money be used and that he become a partner and share in the profits, Tannous had by his conduct become involved and thus knowingly concerned in the importation. That he had been deceived about the use of his money and that he did not physically do anything to further the importation did not diminish his involvement. The Court quashed the conviction, however, on the basis of the trial judge's misdirection that mere personal concern would, with knowledge of the importation, be sufficient to establish the offence.

?The King v Tarrant and Others (1912) 15 CLR 172

The High Court considered the penalties which should apply in respect of offences of making false Customs entries with intent to defraud the revenue which offences were admitted by the defendants. The Court found that the evidence disclosed further frauds not admitted by the defendants and a general manner of conducting business in relation to clearing goods through Customs which was reprehensible and accordingly imposed the maximum penalties.

Radio Corporation Pty Ltd v The Commonwealth and Others (1938) 59 CLR 170

S.52(g) of the then Customs Act provided for the prohibition of the importation of goods by regulation. S.56 of the then Act provided that the power of prohibiting the importation of goods authorised prohibition subject to conditions or restrictions. By regulation, the importation of certain goods without the Minister's consent was prohibited. The validity of the regulation was challenged in the High Court on a number of grounds. The Court held that ss.52(g) and 56 did not require the regulations to specify goods by reference to their physical characteristics or their quality. Matters such as quantity, proposed use, effect on local industries, and the place of origin of goods were not extraneous to considerations of trade and commerce and were legitimate criteria to be adopted by regulation for determining the prohibition of goods. Prohibition based on the denial of the consent of the Minister constituted a conditional prohibition and such Ministerial discretion was appropriate in relation to the day-to-day regulation of trade. Goods included in the tariff as subject to duty could nevertheless be prohibited by Ministerial discretion as such inclusion did not confer a right to import those goods. The Court upheld the validity of the regulations.

Reid v Nairn (1985) 60 ALR 209

This was an application under s.13 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) for review of a decision of the South Australia Director of Public Prosecutions that the prosecution of Reid for possession of a trafficable quantity of cocaine contrary to s.233B of the Customs Act would not be heard and determined in a Court of Summary Jurisdiction. Reid had provided information to the police on the basis that the police would recommend to the prosecutor that the matter be dealt with summarily. S.235(6) of the Customs Act provides in relation to the proceedings in question that a Court of Summary Jurisdiction may commit for trial or if "satisfied that it is proper to do so and the defendant and the prosecutor consent to it doing so, may determine the proceedings summarily." The Federal Court held that the prosecutor's decision not to consent derived from the inherent right of a litigant or from the provisions of the Justices Act of South Australia, not from s.235(6) which merely indicated the consequence of the exercise of such a power. Accordingly, the decision was not made under a Commonwealth Act and was not susceptible to review under the ADJR Act. The Court also commented that there was no evidence to show that at the time promises were made by the police to Reid, that the Director of Public Prosecutions had taken over the prosecution. Moreover, the most Reid could expect was a police recommendation to the prosecutor and on failure to make such a recommendation his remedy was against the police. In any case there had been no denial of natural justice as the decision-maker was aware of and took into account all the matters upon which Reid wished to make representations.

Research and Development Engineers Pty Ltd (trading as Kubpower Earthmoving & Construction Equipment Co) and Another v Lanham (1983) 49 ALR 351

Research and Development Engineers Pty Ltd and a director of that company were convicted of producing a false statement with intent to defraud and making a false entry with intent to fraud in connection with the invoicing and entry of a tractor base as an agricultural tractor base. They appealed to the Supreme Court of South Australia on a number of grounds. The Supreme Court held that when a director had been shown to have been active in the prosecution of a transaction, it might, depending on the circumstances, be a sound finding that his acts were the acts of the company bearing in mind that the company had it in its power to offer evidence about the matter. Further, that by virtue of the definition of "agricultural tractor" in Chapter 87(7) a tractor base to be classified as an agricultural tractor base under item 84.23.110, must be the base of a tractor designed and used solely or principally in agriculture, horticulture or viticulture. Some use in agriculture or the ability to be adapted for such use was insufficient. Further, an averment of the correct classification of an item under the tariff was a matter solely of law and was, in effect, a nullity. Further, that an averment properly made, in the absence of acceptable evidence tending to disprove the fact and therefore capable of inspiring a reasonable doubt, was a sufficient basis for proof of the fact beyond reasonable doubt. Finally the Court held that s.241 of the Customs Act contemplated the charging of a factual breach and the intent to defraud in the one count and, in those circumtances, the Magistrate was entitled to find the defendants guilty of the factual breach and not guilty of intent to defraud. The appeal was dismissed.

?Re Sapphire and Opal Centre Pty Ltd and Department of Business and Consumer Affairs (1977) 1 ALD 15

The Sapphire and Opal Centre purchased opals from Australian miners, cut and polished them and then forwarded them to Hong Kong for setting in jewellery and subsequent return to Australia. The value shown for duty was the charge made by the Hong Kong company for making the jewellery. The AAT held that concessional entries were available for the produce or manufacture of Australia and for goods re-imported in certain circumstances, but these concessions had no application when the goods imported were different from the goods exported. In this case, opals had been exported and jewellery imported, and continued ownership of the opals did not exempt them from duty on import. Further, by virtue of s.154 of the Customs Act and Note 5 of the Interpretative Notes, the value for duty was the price the jewellery would fetch at a sale of the jewellery at the port of import between an unrelated buyer and seller on the date when duty was payable. In determining the correct value for duty, the AAT took into account the cost of the opals, the Hong Kong costs, certain transport and packing costs and a profit assessed at 30 per cent of the cost of the opals.

Schenker & Co (Aust) Pty Ltd v Sheen (Collector of Customs) (1983) 48 ALR 693

Schenker & Co carried on business as a Customs agent and employed persons licensed for the purpose. Schenker & Co was convicted of making false entries contrary to s.234(d) of the Customs Act. In respect of one conviction, a client company was also prosecuted and pleaded guilty. The Magistrate who had convicted Schenker & Co stated a case for the consideration of the NSW Supreme Court. The Supreme Court held that the amendment provision s.251 and the averment provision s.255 placed Customs prosecutions in a different category from other prosecutions. In summary proceedings brought under the Customs Act where averments played such an essential part and where the relevant facts were likely to be known only to the defence, s.251 enabled the magistrate to amend the information by inserting new averments notwithstanding that the prosecution had closed its case, the defence had completed its address on a no case to answer and fresh evidence would then be led. Further, the scheme of the Act, s.182 in particular, made agents liable as principals without relieving the principals of liablility. The magistrate was thus entitled to find Schenker & Co liable notwithstanding the plea of guilty by the client company and regardless of the fact that its employee had not been prosecuted. Finally, proof of the existence of a guilty mind was not essential to the establishment of an offence under s.234(d) and Schenker & Co was vicariously liable for the act of its employee done in the course of his employment. All grounds of appeal failed.

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Last Updated 15 November 2001