Buresti v Beveridge

[1998] FCA 1336

FEDERAL COURT OF AUSTRALIA

STATUTORY INTERPRETATION – interpretation of the word “days” in s 203R Customs Act 1901 (Cth) (“the Act”) – whether the expression “60 days” as used in the section is inclusive or exclusive of weekends and public holidays – construction of the words “otherwise clearly intended” in the Act.

Customs Act 1901 (Cth) – ss 4(1), 28, 36(2), 64(a), 71, 72, 80, 81, 114, 116,198, 203R(1), 203S, 271

Crimes Act 1914 (Cth) – ss 3ZV, 3ZW

WORDS AND PHRASES – “days”;  “otherwise clearly intended”

In the Matter of The Fourth South Melbourne Building Society (1883) 9 VLR (Eq) 54 – referred to

Grain Elevators Board (Vic) v Dunmunkle Corporation (1946) 73 CLR 70 – referred to

AMOS DOMINIC BURESTI v
MALCOLM BEVERIDGE & ANOR

NG 724 of 1998

HILL J
SYDNEY
23 October 1998

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 724  of  1998

BETWEEN:

AMOS DOMINIC BURESTI
Applicant

AND:

MALCOLM BEVERIDGE
First Respondent

JOHN BLANCH
Second Respondent

JUDGE:

HILL J

DATE OF ORDER:

23 October 1998

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1. That the decision of the First Respondent, that the things seized as evidential material by officers of Customs under search warrants and referred to in the affidavit of John Blanch sworn 17 June 1998 be retained for a further period of three months; ie until 28 September 1998, be set aside.

1. The Second Respondent pay the costs of the Applicant of the application.

1. There be no order as to the costs of the First Respondent.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 724 of 1998

BETWEEN:

AMOS DOMINIC BURESTI
Applicant

AND:

MALCOLM BEVERIDGE
First Respondent

JOHN BLANCH
Second Respondent

JUDGE:	HILL J
DATE:	23 October 1998
PLACE:	SYDNEY

REASONS FOR JUDGMENT

The Applicant, Mr Amos Dominic Buresti, applies to the Court to review a decision of Mr Beveridge, sitting as a magistrate in the Sydney Local Court (“the First Respondent”).  The decision was given in proceedings in which Mr John Blanch, an officer of Customs and the Second Respondent to the present application, applied on 19 June 1998 for an order that various items seized by officers of Customs under search warrants be retained by Customs for a further period of three months, that is to say, until 28 September 1998.  That application was ultimately granted.

The facts which give rise to the application for judicial review are agreed between the parties.  They are as follows:

1. On 8 April 1998 search warrants issued to search various premises and authorising the seizure of things in those premises bearing the description in the search warrants.  The warrants in question are those referred to in paragraph 6 of an affidavit of Mr Blanch, sworn on 17 June 1998.

1. On 9 April 1998 the relevant warrants were executed and items seized under them.  It is not suggested that the items did not fall within the descriptions in the warrants or that the warrants themselves were invalid.

1. On 19 June 1998 Mr Blanch made the application to which reference has already been made.

1. On 24 June 1998 Mr Beveridge granted Mr Blanch’s application.

Section 203R(1) of the Customs Act 1901 (“the Act”) provides, so far as it is relevant:

“Subject to any law of the Commonwealth, a State or a Territory permitting the retention, destruction or disposal of a thing seized as evidential material by an officer of Customs under a search warrant … the officer or authorised person must return it if:

(a)…

(b)60 days after its seizure:

(i)proceedings in respect of which the thing may afford evidence have not been started; and

(ii)an order permitting the thing to be retained has not been made under section 203S; and

(iii)an order of a court of the Commonwealth or of a State or Territory permitting the retention, destruction or disposal of the thing has not been made;

whichever first occurs.”

It is not suggested that, within any period of 60 days, proceedings in respect of which the things seized might afford evidence were started or that s 203R(1)(b)(iii) was satisfied.

It will be observed that between the date of seizure, namely 9 April 1998, and the date on which the magistrate made an order for retention under s 203S, namely 24 June, fell 76 days in the ordinary sense of that word, namely periods of 24 hours.

However, s 4(1) of the Act relevantly provides:

“In this Act except where otherwise clearly intended:

…

‘Days’ does not include Sundays or holidays.”

It is common ground, largely because Easter intervened in the period, that if the definition of “days” (s 4(1) of the Act) applies, the order made on 24 June 1998 will have been made prior to the expiration of 60 days from the seizure so that no obligation would arise upon officers of Customs to return the items seized.

The short issue between the parties, therefore, is whether in s 203R(1)(b) the word “days” is to be given its normal English meaning of a period of 24 hours or whether the definition in s 4(1) of the word applies. Although a faint submission was made to the effect, if I understood it, that the introduction into the Act of s 203R as part of subdivision F by the Customs, Excise and Bounty Legislation Amendment Act 1995 operated impliedly in some way to repeal, presumably in part, the definition in s 4(1), it suffices to say now that the only real issue between the parties is whether s 203R(1)(b) shows a clear intention that the defined meaning of “days”  is not to govern the interpretation of that subsection.

The Customs Act 1901 was the sixth Act of Parliament passed after Federation. It was subsequent to the Acts Interpretation Act 1901 (the second Act) (“the Interpretation Act”) which, although it contained no definition of “days”, did define month as meaning “calendar month” and dealt in s 36 with the reckoning of time. Section 36(2) provided:

“Where the last day of any period prescribed or allowed by an Act for the doing of anything falls on a Sunday, or on any day which is a public or a bank holiday throughout the Commonwealth, or throughout the State or part of the Commonwealth in which the thing is to be or may be done, the thing may be done on the first day following which is not a Sunday or such public or bank holiday.”

It may first be noted that the Interpretation Act in giving definitions of defined expressions, does so “unless the contrary intention appears”.  The formula of those words is repeated in the great majority of statutes which contain definitions.  For reasons which are not apparent to me, the Customs Act in its definitional section adopted a different formulation of words, namely, “except where otherwise clearly intended”.  Although it is of no assistance, it can be noted that other Acts of the Commonwealth Parliament in the year 1901 adopted a formula in definition sections identical to that in the Customs Act:  eg. Beer Excise Act (No. 7) of 1901;  Distillation Act (No. 8) of 1901 and Excise Act (No. 9) of 1901, s 4.  It is probably, however, fair to say that the majority of the Acts in 1901 used the formula of contrary intention appearing:  see eg. Audit Act (No. 4) of 1901, s 2;  State Laws and Records Recognition Act (No. 5) of 1901, s 2 and Service and Execution of Process Act (No. 11) of 1901, s 3.

The researchers of counsel have been unable to find any case which suggested any particular difference in the formulation of words used in definition sections to signify that they are to apply subject to a contrary intention.  However it is clear enough that the words “otherwise clearly intended” require that the parliamentary intention to exclude the definition imported into the legislation by the definition section be such as to show a clear intention.  That intention, if not expressed, would need to be manifest by implication.  In saying this, I do not suggest that a different result would follow from the formulation of contrary intention as it appears in other contexts.  It may be mentioned that even if the words “unless the contrary intention appears” or similar qualification are omitted, they will be will be implied:  In the Matter of The Fourth South Melbourne Building Society (1883) 9 VLR (Eq) 54. Professor Pearce and Mr Geddes in their work “Statutory Interpretation in Australia” 4^th ed (1996) at 149 indicate that courts have been quite ready to find a “contrary intention”.

The word “days” was not abundantly used in the Customs Act as initially enacted. 

The word appeared in s 28 which provided:

“The working days and hours of the Customs shall be as prescribed and except when working overtime is permitted by the Collector cargo shall only be received loaded or worked on or discharged from any ship on working days and during working hours”.

Section 64(a) required the master of a ship arriving from overseas to make a report “within one day after arrival at any port”. Entry of goods was to occur under s 71 “within three days after the examination of the goods”. Licence fees were payable quarterly in advance (s 80) and in default of payment within 30 days licences could be cancelled: s 81. Section 114, dealing with entry of goods for export, refers to it being sufficient in the case of free goods if “they be entered not later than three days after shipment”. Section 116 required a report by an owner of goods not shipped according to the entry to be given not later than three days after clearance of the ship.

However, s 271 dealing with the coming into operation of regulations refers to those regulations being before both Houses of Parliament for “fifteen sitting days”.  The context is clearly different and showed a clear intention that the defined meaning had no application.

It is not hard to discern from the provisions to which I have referred why the statutory definition of “days” was adopted in preference to the ordinary English meaning of the word. Section 28 displays a parliamentary intention that Customs activities of loading, unloading or discharging cargo occur on working days and during working hours. Although there may even then have been exceptions, it may be assumed that Customs officers in 1901 did not generally work on Sundays or, for that matter, public holidays. So, where, for example, reports were required to be made to Customs (s 64) or there is an examination of goods by Customs prior to entry of goods (s 71) it may be thought that, where Customs may not be working, it would be unfair that the time be calculated by reference to periods of 24 hours where that period could extend over a public holiday or a Sunday. It is not necessary for present purposes to reach any view as to whether a clear intention to indicate a contrary interpretation might stem from s 72 which refers to goods being “placed in quarantine seven days at the least”.

One section of the original 1901 Act clearly expressed a contrary intention, that was s 260 which dealt with various gaol sentences for non-payment of penalties and prescribed, inter alia, periods of seven days and fourteen days depending upon the extent of the penalty unpaid.  Parliament clearly could not have intended gaol sentences to be increased where Easter intervened.

Section 203R was introduced, as I have already indicated, into the legislation in 1995 as part of subdivision F of Part XII of the Act dealing, as the heading to the subdivision indicates, with “things seized as evidential material under a search warrant or under subsection 203B(3) or 203C(3)”.  The subdivision and subdivision D, introduced at the same time, are part of sections concerned with search and seizure.  It is unnecessary to detail these provisions although many of them are modelled on provisions in the Crimes Act 1914 (“the Crimes Act”). Section 203R itself is modelled on s 3ZV of the Crimes Act which was inserted into that Act by the Crimes (Search Warrants and Powers of Arrest) Amendment Act 1994. The Crimes Act provides in s 3ZV as follows:

“(1)Subject to any contrary order of a court, if a constable seizes a thing under this Part, the constable must return it if:

(a)the reason for its seizure no longer exists or it is decided that it is not to be used in evidence; or

(b)if the thing was seized under section 3T:

(i)the reason for its seizure no longer exists or it is decided that it is not to be used in evidence; or

(ii)the period of 60 days after its seizure ends;

whichever first occurs.

unless the thing is forfeited or forfeitable to the Commonwealth or is the subject of a dispute as to ownership.”

Section 3ZW then provides:

“(1)     If a thing is seized under section 3T, and:

(a)before the end of 60 days after the seizure; or

(b)before the end of a period previously specified in an order of a magistrate  under this section;

proceedings in respect of which the thing may afford evidence have not commenced, the constable may apply to a magistrate [court] for an order that he or she may retain the thing for a further period.”

There is no definition of “days” to be found in the Crimes Act or any Act which amended it. This is hardly surprising.

Since ss 203R and 203S were modelled upon the Crimes Act, there is at least a strong inference that Parliament contemplated the word “days” to be used in its ordinary sense in both Acts.  There are other contextual features of the search and seizure provisions introduced in 1995 which reinforce that.  For example, s 198 concerned with judicial warrants provides that the period for which the warrant is to remain in force is not to be more than seven days.  This is subject to subsection (6) which refers to warrants made under s 203M where 48 hours is to be substituted for seven days.  It seems hardly likely that the legislature intended that the seven days might blow out to a much larger number of days because of Easter vacation, particularly as there is nothing that would prevent a warrant being executed on a public holiday.

The restriction that warrants not be issued for a period longer than seven days again suggests that “days” bore the normal meaning, especially as each seven days includes a Sunday so that seven days would ordinarily be eight days and sometimes more.

Regard must be had in interpreting legislation (see s 15AB of the Acts Interpretation Act 1901) to Parliament’s intention. Can it sensibly be said that Parliament intended that warrants might be issued not for seven days but potentially, if Easter fell in the middle, for ten days or, for that matter, that goods seized could be kept for periods as long as those suggested on behalf of counsel for the Customs rather than in accordance with the ordinary definition of “day” as being 24 hours? This is particularly cogent when it is recalled that similar time limits (but where a day has its ordinary meaning) apply in the Crimes Act upon which Subdivision F of Part XII of the Customs Act is modelled.

In my view, the Act in its amended form by reference to its context shows the necessary clear intention to exclude the defined meaning of the word “days” so that the word has its ordinary meaning.

The suggestion that the 1995 amendment operates in some way to repeal the earlier legislation as being inconsistent with it cannot be made good.  Nor can a submission based on the principle found in Grain Elevators Board (Vic) v Dunmunkle Corporation (1946) 73 CLR 70 that because the Customs legislation is to be interpreted by reference to subsequent amendments, the word “days” must bear its ordinary meaning. 

It follows that the Applicant should succeed and the decision of the First Respondent to extend the time for retention of the seized items be set aside.  The Second Respondent should pay the Applicant’s costs.

I certify that the preceding six (6) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Hill

Associate:

Dated:             23 October 1998

Counsel for the Applicant:	Mr D Fitzgibbon
Solicitor for the Applicant:	Woodgate Morgan
Counsel for the Second Respondent:	Mr R B Wilson
Solicitor for the Second Respondent:	Australian Government Solicitor
Date of Hearing:	15 October 1998
Date of Judgment:	23 October 1998