Carmody v F C Lovelock Pty Ltd

[1970] HCA 35

HIGH COURT OF AUSTRALIA

Barwick C.J., McTiernan, Menzies, Windeyer, Owen, Walsh and Gibbs JJ.

CARMODY v. F.C. LOVELOCK PTY. LTD.

(1970) 123 CLR 1

9 October 1970

Customs—Constitutional Law (Cth)

Customs—Dumping Duty—Validity—Notice of Minister—Power of Commonwealth Parliament to impose duties of customs—Exclusive power of Commonwealth—The Constitution (63 &64 Vict. c. 12), ss. 55, 90—Customs Act 1901- 1960 (Cth)—Customs Tariff (Dumping and Subsidies) Act 1961 (Cth), ss. 7*, 16. Constitutional Law (Cth)—Proceedings in State Supreme Court—Removal to High Court—Question as to limits inter se of constitutional power of Commonwealth and States—Inter se question—Exclusive power of Commonwealth—Duties of customs—The Constitution (63 &64 Vict. c. 12), s. 90—Judiciary Act 1903- 1969 (Cth), s. 40A—Customs Tariff (Dumping and Subsidies) Act 1961 (Cth), ss. 7*, 16.

Decisions

October 9.
The following written judgments were delivered : -
BARWICK C.J. I have had the advantage of reading the reasons for judgment prepared in this action by my brother Gibbs. The circumstances of the case are there fully set out and need no amplification. With one exception I agree entirely with all the conclusions to which my brother has come, with the reasons which he gives for them and with the orders he proposes. The conclusion with which with great respect I do not agree is that expressed by his Honour in relation to the relationship between the inquiry and report of the Tariff Board and the Minister's satisfaction of the matters specified in pars. (a) and (b) of s. 7 (1) of the Customs Tariff (Dumping and Subsidies) Act 1961 (Cth). The conclusion is expressed in the following words in his Honour's reasons :

"As I have already said, a notice will only be valid if the Minister had the requisite satisfaction after inquiry and report by the Tariff Board. In its context in the section the word 'after' does not mean simply 'following in time' but must have the meaning of 'subsequent to and in consequence of'. The Minister's satisfaction must be casually connected with the inquiry and report of the Tariff Board."

Whilst I agree that the satisfaction of the Minister must be preceded by an inquiry and report of the Tariff Board and that that inquiry and report must be as to the subject matter of the two paragraphs of s. 7 (1) to which I have referred, the Minister's satisfaction need not, in my opinion, be founded exclusively upon that report. It may, in my opinion, be founded on information not derived from the report and indeed, in my opinion, the Minister's opinion as to any of the elements of his satisfaction may be formed despite the conclusions to which the Tariff Board may have come. It is sufficient in my opinion for the validity of the Minister's notice that he has received and considered the report of the Tariff Board on the subject matter of pars. (a) and (b) of s. 7 (1). (at p7)

2. For the rest, having expressed my agreement with the other conclusions, I content myself with saying firstly that, in my opinion, a question inter se as to the constitutional powers of the Commonwealth and of the States did arise in the action when the submission was made that the tax imposed by the said Act was not a duty of customs within the Constitution and that the action as well as the cross demurrers was rightly regarded as having been removed into this Court by the operation of s. 40A of the Judiciary Act 1903-1969 (Cth) ; and secondly, that the dumping duty imposed by s. 7 of the said Act is a duty of Customs within the meaning of s. 90 of the Constitution : it is a tax imposed upon the importation of goods into Australia whenever that event occurred. It is nonetheless so though when imposed the importation is complete, the goods have moved into consumption or for that matter consumed. It is a tax which no State may impose. (at p8)

MCTIERNAN J. This was an action under the Customs Tariff (Dumping and Subsidies) Act 1961, s. 7. The long title of the Act reads thus : "An Act relating to certain Special Duties of Customs." (at p8)

2. The amended declaration filed in this action by the Comptroller-General of Customs alleged that the Minister for the time being administering the Act published in the Commonwealth of Australia Gazette of 21st May 1964 a notice as follows :

"In pursuance of Section 7 of the Customs Tariff (Dumping and Subsidies) Act 1961 I Norman Henry Denham Henty, Minister of State for Customs and Excise, hereby notify that, after inquiry and report by the Tariff Board, I am satisfied that fluoro carbons have been or are being sold to an importer in Australia at an export price which is less than the normal value of the goods at the date of exportation and that the importation of such goods is causing or threatening injury to an Australian industry. This notice may be cited as 'Dumping and Subsidies Notice No. 21' and shall have effect for all such goods, entered for home consumption on and after the 30th day of April 1962." (at p8)

3. This notice was in accordance with s. 7 (1) (a) and (b) of the Act. Section 4 (1) of the Act defines "export price" in relation to goods that have been or are being exported to Australia as, inter alia, an amount equal to the price paid or payable to the exporter or to his Australian agent for the goods. (at p8)

4. Section 7 (2) of the Act provides as follows :

"Upon the publication of a notice under this section, there shall be charged, collected and paid to the use of the Queen for the purposes of the Commonwealth, on goods specified in the notice imported into Australia, a special duty (in this section referred to as 'the dumping duty')." (at p8)

5. After setting forth the notice the amended declaration continued:

"And the defendant on and after 30th April 1962 did import into Australia goods of the kind specified in the said Notice and caused the same to be entered for home consumption and the export price of the said goods within the meaning of the Customs Tariff (Dumping and Subsidies) Act 1961 was less than the normal value of the said goods within the meaning of the said Act at the date of exportation thereof and the plaintiff has demanded payment from the defendant of the difference between the said normal value of the said goods and the said export price thereof which the defendant has neglected and refused to pay AND the plaintiff who was and is at all material times the Comptroller-General of Customs brings this action to recover payment of the said amount as the said duty referred to in Section 7 (2) of the said Act." (at p9)

6. The amount claimed was $18,195.23. The defendant, F. C. Lovelock Pty. Ltd., demurred to the declaration saying that it was bad in substance. In support of the demurrer the contention was put forward in argument that the publication was of no legal effect because prior to the date of publication of the notice the fluoro carbons in question were goods which had been entered for home consumption. (at p9)

7. Taking the words of s. 7 (1) (a) and (b) and of s. 16 (e) and (f) it seems to me that this contention cannot possibly be maintained. (at p9)

8. However the substantial assertion put forward in argument for the defendant was based on s. 30 of the Customs Act 1901-1960 (Cth). First it was said that s. 30 is material because s. 5 of the present Act provides that : "The Customs Act 1901-1960 is incorporated and shall be read as one with this Act." Section 30 provides thus :

"Goods shall be subject to the control of the Customs as follows : - (a) as to all goods imported - from the time of importation until delivery for home consumption or until exportation to parts beyond the seas whichever shall first happen. . . . ." (at p9)

9. But I am of the opinion that s. 30 is not relevant to this particular case. It is clear from s. 7 (1) and (2) of the Customs Tariff (Dumping and Subsidies) Act 1961 and from the notice published under that section that it operated so as to levy a special and additional duty on the importation of the fluoro carbons in question, even though such operation was retrospective in its effect. (at p9)

10. In my judgment the duty levied is a "dumping duty" within the meaning of that expression in s. 7 (2) of the Act. Section 6 of that Act provides as follows : "Duties of customs are imposed in accordance with this Act". I am of the opinion that the dumping duty here falls within the term "duties of customs" in s. 6. (at p9)

11. Section 153 of the Customs Act 1901, as amended, which is of course incorporated in the present Act by s. 5, reads :

"All duties shall constitute Crown debts charged upon the goods in respect of which the same are payable and payable by the owner of the goods and recoverable at any time in any court of competent jurisdiction by proceedings in the name of the Collector." (at p9)

12. By s. 4 "Collector" includes the Comptroller and "Comptroller" means the Comptroller-General of Customs. This duty is therefore recoverable at law by the Comptroller-General. He is entitled to recover from the defendant since s. 4 of the Customs Act 1901-1960 includes "the importer" in the term "the owner" of the goods. (at p10)

13. It follows from my conclusion that the duty levied in this instance was a duty of customs that s. 55 of the Constitution is not material to this case. Section 165 of the Customs Act seems also to me to have no reference to the situation in question. (at p10)

14. The defendant's demurrer to the plaintiff's declaration should therefore be overruled and the plaintiff's cross-demurrer allowed. (at p10)

MENZIES J. In this action the Comptroller-General of Customs seeks to recover $18,195.23 as duty payable under s. 7 (2) of the Customs Tariff (Dumping and Subsidies) Act 1961, which I shall call "the Act". (at p10)

2. The action was commenced in the Supreme Court of New South Wales and has been removed to this Court on the footing that, before the Supreme Court of New South Wales, an inter se question had arisen. Having regard to the possibility that this Court might decide that such a question had not arisen, a conditional application was made by the defendant, under s. 40 of the Judiciary Act, that an order removing the proceedings from the Supreme Court to this Court be made. After consideration, I have reached the conclusion that one of the questions raised here, namely whether a particular tax is a duty of customs, or some different tax not being a duty of excise, is a question as to the limits of the constitutional power of the Commonwealth and thus of the States. A determination that the tax is a duty of customs would, of course, limit the powers of the States and so determine the line between State power and Commonwealth exclusive power : Dennis Hotels Pty. Ltd. v. Victoria(1961) 104 CLR 621 To decide that a matter is within the exclusive legislative power of the Commonwealth is also to decide that the States have no legislative power with respect to that matter. Such a decision is therefore of a question inter se and this matter is properly before this Court. (at p10)

3. The defendant has demurred to an amended declaration alleging : (1) that the Minister had duly caused to be published in the Government Gazette of 21st May 1964 a notice under s. 7 of the Act called the "Dumping and Subsidies Notice No. 21" to have effect in relation to fluoro carbons entered for home consumption on or after 30th April 1962 ; (2) that the defendant, on and after 30th April 1962, imported fluoro carbons into Australia and caused the same to be entered for home consumption ; and (3) that the export price of such goods, within the meaning of the Act, was less than the normal value of the said goods within the meaning of the said Act at the date of the exportation thereof. The defendant also pleaded, and to its pleas the plaintiff has demurred. As the case was argued in this Court it is possible to consider both demurrers together. (at p11)

4. The defendant's principal contention in support of its own demurrer, and to oppose the plaintiff's demurrer, was (1) that, by reason of the notice having been made to apply to goods entered for home consumption on and after a date more than two years before the notice was published - a period within which the goods imported had entered into home consumption and some at least had ceased to exist - the tax which the plaintiff is seeking to recover is not a duty of customs ; and (2), because the Act does impose other taxes which are duties of customs, there has been an infringement of s. 55 of the Constitution which requires that "laws imposing duties of customs shall deal with duties of customs only". Accordingly, it was claimed that the Act is invalid and the claim thereunder must fail. (at p11)

5. The question at issue really narrows down to this, "Is a tax upon the importation of goods, which have been delivered for home consumption and been consumed before liability to pay is imposed, a duty of customs ?" The phrase "delivered for home consumption" derives from s. 30 of the Customs Act 1901-1960, which I shall call "the Customs Act", which enacts, inter alia, that imported goods shall be subject to the control of customs "from the time of importation until delivery for home consumption" and the defendant's argument is, in substance, that any tax imposed after "delivery for home consumption", even if it be imposed by reference to the importation of the goods at an earlier date, falls outside the kind of tax which, in the Constitution, is referred to as "duties of customs". (at p11)

6. In the course of argument the provisions of the Customs Act were closely examined, but, in my opinion, these provisions cannot provide an answer to the question before the Court. This question is a constitutional question and cannot be determined by reference to laws made under constitutional power. It cannot be assumed that, by an Act subjecting particular goods only to the control of customs, Parliament has exhausted its constitutional power to impose duties of customs and that that power cannot be exercised with respect to imported goods which, according to the provisions of the Customs Act, are not subject to the control of customs. (at p12)

7. A duty of customs is essentially a tax upon the importation of goods. It may be that a customs duty can be imposed by reference to some dealing with the goods subsequently to their importation (vide the second paragraph of s. 92 of the Constitution) but the imposition of such a tax may, upon one view which has been expressed in relation to duties of excise, give rise to the question whether the tax so imposed is a duty of customs or a duty of excise, for the Constitution distinguishes sharply between duties of customs and duties of excise : s. 55. However this may be, it seems to me that a tax which is imposed upon the importation of goods, even if that importation occurred at a date before the imposition of the tax, falls squarely within the description "duties of customs" and it matters not what has happened to the goods in the time between their importation and the imposition of the tax. (at p12)

8. In my opinion the principal contention of the defendant fails. (at p12)

9. It was also contended on behalf of the defendant that, neither at the date of the publication of the notice nor at any time thereafter, was it the owner of goods within the meaning of the Customs Act. The point of this contention is that s. 153 of the Customs Act makes customs duties payable by the owner and that the Act does not, of itself, provide for the payment of the duties which it imposes ; it simply incorporates the Customs Act. However, the word "owner" in s. 153 includes "importer" and what is alleged is that the defendant imported the goods in question. Whether or not it was the owner, in the strict sense, is immaterial. (at p12)

10. The defendant also relied upon s. 165 of the Customs Act. This is not a case where the defendant was short levied when duty was paid upon the entry of the goods into Australia. At that time, as then imposed, it was paid in full. The duty now claimed, although claimed in respect of the ealier import of the goods, was not imposed until the notice was published. Section 165, therefore, affords the defendant no answer. (at p12)

11. I am prepared to assume that the Minister could not give a notice taking effect with respect to goods entered for home consumption before the pulication of the notice without express statutory authority so to do. That authority is, however, to be found in s. 16 of the Act, whereby it is provided, inter alia, that :

"The powers given by this Act to the Minister to cause notices to be published specifying goods extend to the publication of notices specifying - . . . . . . . (f) goods entered for home consumption before the date of publication of the notice as well as goods entered for home consumption on or after that date."

As an addition to their constitutional argument, counsel for the defendant sought to read s. 16 (f) down so that it would apply only to goods not delivered for home consumption at the time of the notice but I have found no basis for so restricting the application of the provision. There is nothing whatever in the Act to require such a limited construction of s. 16 (f) and, once it has been determined that a tax upon a previous importation of goods is within the customs power, there is no ground for reading down provisions in accordance with the Acts Interpretation Act. (at p13)

12. Finally, neither the other provisions of the Act nor the provisions of the Customs Act which are incorporated into the Act, require any limitation upon the ordinary construction of ss. 7 and 16 or either of those sections of the Act. (at p13)

13. Accordingly, in my opinion the demurrer of the plaintiff should be allowed and the demurrer of the defendant overruled. (at p13)

WINDEYER J. I have had the advantage of reading the judgment to be delivered by my brother Gibbs. I entirely agree in it and have nothing to add. (at p13)

OWEN J. I am in general agreement with the reasons given by my brother Gibbs for overruling the demurrer to the declaration and allowing the demurrer to the pleas. I prefer, however, to leave open the question with which he deals in the paragraph which is quoted in the judgment of the Chief Justice. (at p13)

WALSH J. In this action, which was instituted in the Supreme Court of New South Wales, the defendant demurred and pleaded to the plaintiff's declaration. The plaintiff demurred to each of the six pleas filed by the defendant. When the demurrers came before the Supreme Court (Court of Appeal) that Court took the view that the action was removed to this Court by force of s. 40A of the Judiciary Act. The case had previously come before this Court and it was at that time thought that no inter se question had arisen in it. But when it came again before the Supreme Court, the pleadings had been amended and counsel proposed to advance an argument which that Court regarded as different from any argument that had earlier been supposed to require consideration. In my opinion the conclusion of the Court of Appeal was correct and the action is properly before this Court. I do not wish to add to the reasons given by Menzies J. and by Gibbs J. for concluding that an inter se question had arisen. (at p14)

2. The declaration to which the defendant demurred alleged that the Minister of State for Customs and Excise caused to be published in the Commonwealth Gazette on 21st May 1964 a notice, the terms of which were then set forth. The declaration went on to make further allegations intended to show that the defendant had become liable for payment of duty imposed by s. 7 (2) of the Customs Tariff (Dumping and Subsidies) Act 1961 (herein called "the Act"). The declaration as it stood when the hearing of the demurrer began did not contain any allegation that the Minister was satisfied of the matters set out in pars. (a) and (b) of s. 7 (1) of the Act. It did not contain any allegation that there had been any inquiry and report by the Tariff Board. In my opinion the declaration in that form was demurrable for the reason that it failed to allege that the conditions had been fulfilled upon which depended the power of the Minister to cause to be published a notice the publication of which would be effective to impose the duty to which s. 7 (2) refers. (at p14)

3. Leave was given in the course of the hearing to amend the declaration in such a way that it would be taken in its amended form in include an averment that the conditions precedent to the exercise of the Minister's power had been fulfilled. As so amended the declaration is not open to the objection, which was taken in ground 7 of the defendant's demurrer, namely, that it was not alleged that after an inquiry and report by the Tariff Board the Minister was satisfied, in relation to fluoro carbons, of the matters mentioned in s. 7 (1) (a) and (b). But a plea which set up the non-fulfilment of some specified condition would be a good plea, provided that what the plea asserted to be an unsatisfied condition of the exercise of the Minister's power was truly a condition of it. (at p14)

4. The first plea of the defendant was to the effect that it never was indebted as alleged for the reason that prior to the publication of the notice in the declaration mentioned there was no report duly made by the Tariff Board under s. 7 (1) of the Act that all goods specified in the said notice were at the date thereof causing or threatening injury to any Australian industry or might hinder the establishment of any Australian industry. The plaintiff demurred to this plea as well as to the other pleas filed on behalf of the defendant. The validity of the first plea must depend upon the question whether or not the making of a report by the Tariff Board in the terms described in the plea was an essential condition of the validity of the notice to which the declaration refers. In my opinion the making of a report in those terms was not an essential condition of the exercise of the Minister's power to cause the notice to be published and the plea is therefore bad. In my opinion a sufficient reason for holding the plea to be bad is that the Act, by ss. 7 and 16, empowered the Minister to publish a notice specifying goods of a particular class or kind, that in this case the notice set out in the declaration referred to goods of a class, namely fluoro carbons, and that it was not necessary, in order to enable the Minister to specify goods of a class, that the Tariff Board should have reported that the importation of all the goods in that class was causing or threatening injury to an Australian industry or might hinder the establishment of an Australian industry. The reason just stated for upholding the demurrer to the first plea is that which is given by Gibbs J. in his judgment herein. (at p15)

5. But, in my opinion, there are other reasons for holding the first plea to be bad. Because of the arguments which were addressed to us concerning the relationship required by s. 7 of the Act between the inquiry and report by the Tariff Board and the satisfaction of the Minister, and because this is a matter which could be of importance if the defendant should put on further pleas to the declaration as now amended, I think it is desirable to indicate that there is in my opinion a more fundamental defect in the plea than its reference to all the goods specified in the notice. Before doing that I want to make two other observations concerning the language of the plea. The first is that it appears to suggest that there cannot be a valid notice under s. 7 of the Act unless prior to its publication a report has been made that all the goods specified in the notice were at the date thereof, that is, at the date of the notice, causing or threatening injury to an Australian industry or might hinder the establishment of an Australian industry. Thus it appears to be suggested that the report must assert a state of affairs existing at what is then a future time (the date of the notice), but must assert it as an existing fact. Secondly, the plea indicates the view that the report must have stated not that the importation of certain goods was causing or threatening injury but that the goods themselves were doing so, which is a view that does not appear to accord with the language of the section. (at p15)

6. But leaving aside those objections to the plea, I am of opinion that the first plea is based on a misconception of the meaning of the requirement laid down by s. 7 (1) that the Minister should be satisfied of certain matters after inquiry and report by the Tariff Board. Although pars. (a) and (b) of s. 7 (1) begin with the word "that" and follow immediately after the words "inquiry and report by the Tariff Board" the structure of the subsection requires, in my opinion, that those paragraphs must be taken to specify facts of which the Minister must be satisfied rather than facts which are to be reported by the Board. The Minister must be satisfied of those facts after there has been an inquiry and report by the Board. But in my opinion the subsection does not require that the Minister's conclusion (or "satisfaction") must be a mere endorsement of what is reported to him, coinciding in all respects with what has been asserted by the Board. In argument before this Court learned counsel for the defendant went so far as to contend that the satisfaction of the Minister must rest solely upon a report which states affirmatively the existence of a state of affairs and the Minister cannot form a view which departs in any respect from what is so stated. In my opinion this is not what the provision requires. No doubt the Minister must have a report, by means of which he is informed of relevant facts elicited by the Board's inquiry and by which he is assisted in reaching his decision upon the matters with which the section deals. But, in my opinion, the provision does not mean that he is bound to accept completely what has been reported and to act in accordance with it and with it alone. (at p16)

7. It is not necessary at present to determine whether the Minister, if he received a report of the Tariff Board which included a definite statement of an opinion that the importation of the goods in question was not causing or threatening injury to any Australian industry and would not hinder the establishment of any Australian industry could, nevertheless, be found to have been "satisfied" of the matters set out in the subsection. I need express no opinion on that question. But what does appear, in my opinion, from the terms of the section when it is read with the rest of the Act, and particularly with s. 16, is that it is not essential that in the notice the words which set forth the matters as to which the Minister is satisfied should copy exactly a statement contained in a report setting out conclusions reached by the Board. (at p16)

8. In relation to all other questions raised by the demurrer to the declaration or by the demurrers to the pleas I am in agreement with the reasons for judgment of Menzies J. and of Gibbs J. and do not wish to add to what they have said. (at p16)

9. In my opinion the demurrer to the declaration should be overruled and the demurrers to the pleas should be allowed. (at p16)

GIBBS J. In this action, which was commenced in the Supreme Court of New South Wales, the plaintiff, the Comptroller-General of Customs, claims to recover from the defendant the sum of $18,195.23 as the duty payable under s. 7 (2) of the Customs Tariff (Dumping and Subsidies) Act 1961 ("the Act"). That Act, which provides that the Customs Act 1901-1960 is incorporated and shall be read as one with it (s. 5), imposes duties, which, although described as duties of customs (s. 6), are special duties which are payable in addition to such other duties of customs (if any) as are payable under any other Act (s. 18). Section 7 of the Act, as in force at the material time, provided (inter alia) as follows :

"(1) If the Minister is satisfied, after inquiry and report by the Tariff Board - (a) that goods that are produced or manufactured outside Australia and have been or are being exported to Australia have been, are being or may be sold to a person in Australia at an export price that is less than the normal value of the goods at the date of exportation ; and

(b) that the importation of those goods is causing or threatening injury to an Australian industry producing or manufacturing like or directly competitive goods or may hinder the establishment of an Australian industry in connexion with the production or manufacture of like or directly competitive goods,

the Minister may cause a notice to be published in the Gazette specifying the goods as to which he is so satisfied. (2) Upon the publication of a notice under this section, there shall be charged, collected and paid to the use of the Queen for the purposes of the Commonwealth, on goods specified in the notice imported into Australia, a special duty (in this section referred to as 'the dumping duty'). (3) The amount of the dumping duty in respect of any goods is a sum equal to the amount by which the export price of the goods is less than the normal value of the goods at the date of exportation."

The expressions "export price" and "the normal value" are defined in s. 4 of the Act. Section 16 provides as follows :

"The powers given by this Act to the Minister to cause notices to be published specifying goods extend to the publication of notices specifying - (a) goods of a particular class or kind ; (b) goods exported from a particular country ; (c) goods contained in a particular shipment ; (d) goods exported by a particular exporter ; (e) goods specified in such other manner as the Minister thinks fit ; and

(f) goods entered for home consumption before the date of publication of the notice as well as goods entered for home consumption on or after that date." (at p18)

10. By his declaration the plaintiff alleges that "the then Minister of State for Customs and Excise caused to be published in the Commonwealth Gazette on 21st May 1964 a notice in the following terms" :

"In pursuance of Section 7 of the Customs Tariff (Dumping and Subsidies) Act 1961 I Norman Henry Denham Henty, Minister of State for Customs and Excise, hereby notify that, after inquiry and report by the Tariff Board, I am satisfied that fluoro carbons have been or are being sold to an importer in Australia at an export price which is less than the normal value of the goods at the date of exportation and that the importation of such goods is causing or threatening injury to an Australian industry. This notice may be cited as 'Dumping and Subsidies Notice No. 21' and shall have effect for all such goods, entered for home consumption on and after the 30th day of April 1962."

He further alleges that the defendant on and after 30th April 1962 did import into Australia goods of the kind specified in the said notice and caused the same to be entered for home consumption and the export price of the said goods within the meaning of the Act was less than the normal value of the said goods within the meaning of the Act at the date of exportation thereof and the plaintiff has demanded payment from the defendant of the difference between the said normal value of the said goods and the said export price thereof which the defendant has neglected and refused to pay. To this declaration the defendant has both pleaded and demurred and the plaintiff has entered a demurrer to the defendant's pleas. The cross-demurrers raise for decision the correctness of a number of submissions made by the defendant as to the interpretation of the Act and a further contention as to its constitutional validity, namely that if the Act on its proper construction authorized the Minister to publish a notice under s. 7 specifying goods which before the date of publication of the notice had passed out of customs' control, or had ceased to exist, the duty so imposed is not a duty of customs and that since the Act does impose other duties which are duties of customs it infringes the provisions of the second part of s. 55 of the Constitution and is invalid. (at p18)

11. When the cross demurrers came before the Court of Appeal of the Supreme Court of New South Wales that Court held that there arose in the cause a question as to the limits inter se of the constitutional powers of the Commonwealth and those of any State or States and that the cause was accordingly removed to this Court by virtue of s. 40A of the Judiciary Act. In this conclusion the Court of Appeal was, in my opinion, correct. The contention of the defendant, that on one construction the Act offended against s. 55 of the Constitution and was bad, involved the question whether the dumping duty imposed by s. 7 of the Act is a duty of customs within the meaning of the constitutional provisions. If that question is answered in the affirmative, s. 90 of the Constitution will have the effect that a State has no legislative power to impose a duty of that kind. The question therefore relates to the limits of the exclusive power of the Commonwealth and also to the limits of State power. It is an inter se question within the meaning of that expression as settled by Dennis Hotels Pty. Ltd. v. Victoria(1962) AC 25 ; (1961) 104 CLR 621 The decision of this question is necessary for the determination of the present dispute between the parties and the cause is, therefore, automatically removed into this Court, with the result that we have jurisdiction to dispose of all the matters in controversy and not only of the inter se question : O'Neill v. O'Connell(1946) 72 CLR 101, at pp 116, 124-125 (at p19)

12. It is first convenient to mention a question which was disposed of during argument when the Court gave leave to amend the declaration, in effect by replacing the words "the then Minister of State for Customs and Excise caused to be published in the Commonwealth Gazette on 21st May 1964 a notice in the following terms" by the words "the then Minister of State for Customs and Excise duly caused to be published in the Commonwealth Gazette on 21st May 1964 a notice under s. 7 of the Customs Tariff (Dumping and Subsidies) Act 1961 in the following terms". One ground of demurrer (ground 7) was that the declaration was bad because it was not alleged that after an inquiry and report by the Tariff Board the Minister was satisfied, in relation to fluoro carbons, of the matters mentioned in s. 7 (1) (a) and (b), or that there was, in fact, any such inquiry or report, or, in other words, because it did not aver the conditions precedent to the exercise of the Minister's power to cause a notice to be published. The Solicitor-General submitted that it was enough to allege the publication in the Gazette of a notice purporting to have been made in pursuance of s. 7, and relied on s. 10 of the Evidence Act 1905-1964, whose effect, he submitted, is that the production of the Gazette purporting to contain a copy of the notice would be evidence that the notice had been duly published. However, s. 10 deals only with the mode of proof ; it does not touch the question what has to be alleged and proved by a plaintiff who relies on a ministerial act done under statutory authorization. In disposing of the demurrer we are concerned to consider not in what manner the plaintiff may discharge his burden of proof, but what he must allege and prove to make out his cause of action. The existence of a cause of action under s. 7 (2) depends on the publication of "a notice under this section", and a notice only answers that description if it has been published by a Minister who has formed the requisite satisfaction after inquiry and report by the Tariff Board. A plaintiff to succeed in an action under s. 7 (2) must, therefore, establish that the Minister was satisfied after inquiry and report by the Tariff Board of the matters mentioned in the section. The failure to allege the existence of the conditions precedent to the exercise of the Minister's power rendered the declaration demurrable in its original form. However this defect is cured by the amendment which we have allowed and which was made on the understanding (assented to by the Solicitor-General) that as amended the declaration contains an averment of the conditions precedent under the statute. (at p20)

13. A further question as to the conditions precedent laid down by s. 7 (1) is raised by the demurrer to the first plea but it is convenient to postpone a discussion of that matter until the main submissions of the defendant as to the interpretation of the section have been considered. (at p20)

14. It was contended on behalf of the defendant (in support of grounds 1-3 of the demurrer to the declaration, and in opposition to the demurrer to the 2nd, 3rd and 4th pleas) that the Act, on its proper construction, does not authorize the Minister to publish a notice under s. 7 specifying goods if before the date of publication of the notice the goods have been delivered for home consumption and have thereby passed out of the control of the customs ; a fortiori, if the goods have in fact been consumed and are no longer in existence. Counsel for the defendant submitted that it appears from the provisions of the Customs Act, which are incorporated with the Act, that it is inherent in the concept of a customs duty (which the dumping duty is expressed to be) that it is exigible only in respect of goods under the control of the customs. They further submitted that it would not promote the apparent purpose of the section (namely the termination of a state of things in which the importation of goods is causing or threatening injury to an Australian industry or may hinder the establishment of an Australian industry) to give the Minister power to specify goods whose importation has already been completed and which have passed into home consumption, and said that if the Minister did have such power a liability to duty might be cast on an owner who had not been concerned with the importation of the goods but had bought and paid for them after they had been released from the control of the customs and had apparently been discharged from any liability to customs duty. Moreover, it was submitted that the Court would lean against a construction that would create a new obligation in respect of a transaction past and closed. (at p21)

15. The power conferred by s. 7 is not expressed to be confined to relate to goods subject to the control of the customs. If the section stood alone, there might be room for argument as to whether it empowered the publication of a notice specifying goods already imported, so as to impose a tax on the importation of the goods which was not exigible at the time of importation. Clear words would be necessary to bring about that result. The words of s. 7 (2) are prospective in form, although they may be regarded as doing no more than indicate that the duty is not exigible until the notice is published. On the other hand, the provisions of s. 7 (1) (b) suggest that the Minister may by his notice specify goods whose importation has been completed. Any doubt on this point is removed by s. 16 (f), which places it beyond argument that the power given by s. 7 is not confined to goods that have not yet been imported at the date of publication of the notice ; goods may be rendered liable to the duty notwithstanding that they have already been entered for home consumption and to that extent at least the notice may have a retrospective operation. However, the sections of the Customs Act to which I shall shortly refer show that the time of entry for home consumption, although subsequent to the time of importation, does not necessarily mark the end of the period of customs' control. Although in practice the delivery of goods for home consumption, and the consequent cessation of customs' control, would normally occur immediately after an entry was passed, an entry would not necessarily be passed forthwith after it had been made. Section 16 (f) therefore does not expressly declare that the power given to the Minister extends to goods which are no longer subject to the control of the customs, as it would if it had used the word "delivered" instead of "entered". Nevertheless, when the section provides that the notice may specify goods entered before, as well as goods entered on or after, a particular date, it in effect is saying that the notice may specify all goods. The plain and natural meaning of the words of s. 16 (f) is that the powers given by the Act extend to the publication of a notice specifying any goods, including goods previously entered. There is nothing in either s. 7 or s. 16 to suggest that the words "goods entered for home consumption before the date of publication of the notice" in s. 16 (f) should be read as though they contained a proviso excluding goods in respect of which an entry has been passed, and which have been delivered for home consumption. On behalf of the defendant it was said that s. 7 (1) (b), which requires the Minister, before he publishes a notice, to be satisfied that the importation of goods is causing or threatening injury to an Australian industry, or may hinder the establishment of an Australian industry, refers to an existing and continuing state of affairs, and that this supports the view that a notice to be valid must specify goods still in the course of importation or, at least, still in existence. However a completed importation may still be causing injury, even if the imported goods have been consumed. Moreover, by s. 16 (a) the notice may refer to goods of a class ; if the importation of goods of a class is causing injury the Minister may specify goods of that class, and s. 16 (f) enables him to include goods of the class already imported. Construed in this way the section serves to advance the evident purpose of the Act. The fact that the Minister may publish a notice in respect of goods which have already been dumped is calculated to operate as a deterrent against future dumping and to protect Australian industry threatened by unfair competition. (at p22)

16. It is then necessary to consider whether the incorporated provisions of the Customs Act reveal an intention that the dumping duty shall not be exigible in respect of goods that have ceased to be subject to customs' control. Although some of the provisions of the Customs Act have been materially amended since R. v. Lyon (1906) 3 CLR 770 was decided, it remains true to say, as O'Connor J. said in that case, that the policy of that Act is that "from the time of importation until the time of paying duty, the customs shall not lose control of the articles imported" (1906) 3 CLR, at p 784 . Section 30 (a) provides that imported goods are subject to the control of the customs from the time of importation until delivery for home consumption or exportation whichever shall first happen. "Delivery for home consumption" in this provision means lawful delivery by the customs authorities (Wing On &Co. Ltd. v. Collector of Customs (N.S.W.) (1938) 60 CLR 97, at p 104 ) and it appears from ss. 33, 36, 39, 40 and 68 that as a general rule goods entered for home consumption would be lawfully delivered for home consumption, and would pass out of customs' control, forthwith upon an entry being passed. Although the Customs Act does not expressly so provide, the duty would normally be paid at the time of passing the entry (see R. v. Lyon (1906) 3 CLR, at pp 777-778, 784) If the duty was short levied the person who should have paid it is liable to pay the amount short levied on demand made within twelve months from the date of the short levy (s. 165). As a general rule the rate of import duty payable is the rate in force when the goods were entered for home consumption (s. 132). The duty is charged upon the goods and is payable by the owner (s. 153). "Owner" in respect of any goods is defined by s. 4 to include "any person (other than an officer of Customs) being or holding himself out to be the owner, importer, exporter, consignee, agent, or person possessed of, or beneficially interested in, or having any control of, or power of disposition over the goods". Under these provisions an importer of goods is clearly liable to pay customs duty but an owner who is not the importer may in some circumstances also be liable. In Wing On &Co. Ltd. v. Collector of Customs (N.S.W.) (1938) 60 CLR 97 it was held that the liability to pay duty attached to a person who was not the owner at the time of importation, but the case does not decide that any person who becomes the owner of goods on which customs duty is payable is liable for the duty. The defendant in that case was aware that the goods had not been entered at the customs and that no duty had been paid on them and was indeed not unconnected with their importation, and the goods were, at all material times, subject to the control of the customs, as all the members of the Court were at pains to point out, and the judgments of Rich and Dixon JJ. (1938) 60 CLR, at pp 107, 109-110 particularly make clear the narrow limits of the decision. It is unnecessary now to consider the questions that were left open in that case. However, if the dumping duty is exigible in respect of goods that had ceased to be subject to the control of the customs before the publication of the notice, it does not necessarily follow that a person who was quite unconnected with the importation of the goods, but who in good faith became their owner after they had been lawfully delivered for home consumption, is liable to pay the dumping duty. (at p23)

17. The object of the policy of the Customs Act that goods must be kept under customs' control until duty is paid is, as O'Connor J. went on to point out in R. v. Lyon (1906) 3 CLR 770, obvious; it is to render the statute effective and to protect the revenue. The general provisions of the Customs Act provide no guide to the question whether the special provision which permits dumping duties to be imposed ought to be confined in its operation to goods which remain subject to customs' control. The argument for the defendant attempts to convert provisions designed to strengthen the hand of the collectors of the customs into provisions that limit and restrict the powers of the Minister. To accept this argument would be to give these sections an effect that was plainly not intended. (at p24)

18. Further, the provisions of the Customs Act do not make it necessary that the goods specified in a notice under s. 7 should be in existence at the time the notice is published. It is true that if the imported goods have ceased to exist when the notice is published, it will not be possible for the duties to be charged on the goods as contemplated by s. 153. This however means no more than that one less remedy for the recovery of the duty will be available. Also, if the goods had been consumed, there would be no owner in the ordinary sense of the word at the date of the imposition of the duty, but since the importer is the owner for the purposes of s. 153 he would become liable to pay the duty. (at p24)

19. For the reasons I have given I hold that the fact that the notice published by the Minister extended to goods that had previously been delivered for home consumption and had thereby ceased to be subject to customs' control or had been consumed and had ceased to exist did not render it beyond the powers given by the Act. (at p24)

20. By ground 6 of the demurrer to the declaration it is objected that it is not alleged that the defendant was the owner of the goods within the meaning of the Customs Act at the date on which the duty became payable or at any time thereafter. On examination this objection is obviously ill-founded. The declaration does allege that the defendant did import the goods or, in other words, was the importer of them. It alleges, in effect, therefore, that the defendant is the owner within the meaning of the Customs Act. If this ground of demurrer intends to suggest that if the defendant was not the owner of the goods in the ordinary sense at the date of the publication of the notice or at some time thereafter it is not liable to pay the duty it is clearly erroneous, for the importer is liable whether or not he was still the owner at or after the date of the notice. In substance, what I have said disposes also of the demurrer to the sixth plea by which the defendant says that neither at the date of the publication of the notice nor at any time thereafter was it the owner of the goods within the meaning of the Customs Act. A plea that the defendant was never the owner of the goods within the meaning of the Customs Act would have been good, as would a traverse of the allegation that the defendant was the importer of the goods. Literally, the allegation that the defendant was not the owner of the goods within the meaning of the Customs Act at the date of the publication of the notice does involve the assertion that the defendant was not the importer of the goods, because if it was the importer it was the owner within the statutory definition at all material dates. However, it seems to me that the sixth plea, when read in the light of the rest of the pleadings, is not intended as a denial of the allegation that the defendant was the importer, but as a denial that it was the owner in any other sense at the dates mentioned. The demurrer to this plea should be allowed but if the defendant disputes that it was the importer it may, by leave, amend its pleas to make its assertion plain. (at p25)

21. A further point, taken by ground 4 of the demurrer to the declaration and by the fifth plea, but not strenuously argued, was that if customs duty was levied on the goods in question when they were entered for home consumption more than twelve months before the date of publication of the notice, recovery of the additional dumping duty is barred by s. 165 of the Customs Act. Clearly s. 165, in referring to short levy, refers to the case where duty which was exigible at the date of payment was not paid in full. It does not have any application to the present case, where a special duty was imposed subsequent to the payment of the ordinary duty. (at p25)

22. A final question as to the construction of the Act is raised by the defendant's first plea, which says that prior to the publication of the notice in the declaration alleged there was no report duly made by the Tariff Board under s.7 (1) of the Customs Tariff (Dumping and Subsidies) Act 1961 that all the goods specified in the said notice were at the date thereof causing or threatening injury to any Australian industry or might hinder the establishment of any Australian industry. As I have already said, a notice will only be valid if the Minister had the requisite satisfaction after inquiry and report by the Tariff Board. In its context in the section the word "after" does not mean simply "following in time" but must have the meaning of "subsequent to and in consequence of". The Minister's satisfaction must be causally connected with the inquiry and report of the Tariff Board. However, the first plea does not allege the lack of any such causal connexion. The declaration makes it plain that the notice referred to goods of a class, namely fluoro carbons, and the first plea can only mean that the report of the Tariff Board did not deal with all the goods of that class. However, to enable the Minister to specify goods of a class, it is not necessary that the Board should have reported that the importation of all the goods of a class is causing or threatening injury to an Australian industry or may hinder the establishment of an Australian industry. If the Board reports that the dumping of some goods of a particular class is causing or threatening injury the Minister may, if he has the requisite satisfaction, specify the goods of that class. This view is supported by Nott Bros. &Co. Ltd. v. Barkley (1925) 36 CLR 20, in which this Court rejected a contention that under s. 8 of the Customs Tariff (Industries Preservation) Act 1921-1922 the Minister could not apply by notice the special duty to a whole class if certain varieties of such class were, in fact, being imported at a higher cost and sold in Australia at a higher price than the manufacturer's selling price of comparable Australian-made articles of the same varieties. (at p26)

23. There remains for consideration the question (raised by ground 5 of the demurrer to the declaration) whether the Act is invalid as infringing s. 55 of the Constitution. It was submitted on behalf of the defendant that the duty imposed, in so far as it had effect in relation to goods which before the date of the publication of the notice had been delivered for home consumption or had ceased to exist, was not a duty of customs and that since the Act provides for the imposition of other duties which are duties of customs it contravenes the requirement of s. 55 of the Constitution that laws imposing duty of customs shall deal with duties of customs only. It was conceded that if the notice had applied only to goods imported after the date of publication of the notice the duty would have been a duty of customs and that this concession is correct is established by Nott Bros. &Co. Ltd. v. Barkley (1925) 36 CLR 20 However, it was submitted that the duty now under consideration was a tax imposed on persons by reason of the fact that they had imported goods in the past and that such a tax is not a duty of customs. It was further said that a customs duty must be an indirect tax, which can be passed on to the ultimate consumer of the goods, and that it must, therefore, be imposed on goods while they are still in existence and before they have ceased to be the subject of importation, or in other words before they have passed into the hands of the ultimate consumer and have been consumed. (at p26)

24. These submissions of the defendant cannot be maintained. It is clear that a tax imposed on the importation of goods into Australia is a duty of customs within the ordinary meaning of that expression and within the meaning it bears in the constitutional provisions: see Nott Bros. &Co. Ltd. v. Barkley (1925) 36 CLR, at p 24; The Commonwealth and Commonwealth Oil Refineries Ltd. v. South Australia (1926) 38 CLR 408, at pp 435, 438; Vacuum Oil Co. Pty. Ltd. v. Queensland (1934) 51 CLR 108, at p 120; and Dennis Hotels Pty. Ltd. v. Victoria(1960) 104 CLR 529, at pp 554, 559 The impost in the present case answers that description. It purports to be a tax levied on goods imported into Australia. The evident object of the duty, the conditions in which it may be levied and the manner in which the amount of the duty is determined show that it is in reality what it purports to be - a tax imposed on the importation of goods. The fact that the tax might not become exigible until after the importation had been completed did not make it any the less a tax imposed in respect of the importation, or in other words the fact that the tax was retrospective in operation did not prevent it from being a duty of customs. (at p27)

25. Notwithstanding the many statements that duties of customs and duties of excise are indirect taxes, I do not find it necessary to consider whether the present impost, when exacted in relation to goods which are no longer in existence, can be said to be an indirect tax within the definition given by Mill and applied in cases arising under the Canadian constitution. To inquire whether a tax has a tendency to enter into the price of the goods, so as to be borne by the ultimate consumer, may assist in determining whether the tax is imposed in respect of the importation of the goods but will not be decisive of that question. The test to be applied is whether the tax is imposed on the importation of goods into Australia, and where it is clear that the tax is so imposed it is of no assistance to embark upon the consideration of what is only a subsidiary question (cf. Anderson's Pty. Ltd. v. Victoria (1964) 111 CLR 353, at p 365; and Dennis Hotels Pty. Ltd. v. Victoria (1960) 104 CLR, at pp 553-554, 590, 593-594) (at p27)

26. I hold therefore that the impost in question is a duty of customs, and that the argument that s. 55 of the Constitution has been infringed fails for that reason. It becomes unnecessary to consider the consequences of a failure to comply with s. 55 or the discussion of that question in Osborne v. The Commonwealth (1911) 12 CLR 321 (at p27)

27. In my opinion, therefore, the demurrer to the declaration should be overruled and the demurrer to the pleas should be allowed. (at p27)

Orders

Demurrer to the declaration, as amended, overruled. Demurrer to the defendant's first, second, third, fourth, fifth and sixth pleas allowed. Leave to amend generally. Defendant to pay one half of the plaintiff's costs of the demurrers.