CEO Customs v Granite Arms Pty Ltd & Anor

[2005] HCATrans 440

[2005] HCATrans 440

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B77 of 2004

B e t w e e n -

THE CHIEF EXECUTIVE OFFICER OF CUSTOMS

Appellant

and

GRANITE ARMS PTY LTD

First Respondent

OMEO WAY PTY LTD

Second Respondent

GLEESON CJ
McHUGH J
GUMMOW J
CALLINAN J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON TUESDAY, 21 JUNE 2005, AT 11.29 AM

Copyright in the High Court of Australia

MR C.M. MAXWELL, QC:   May it please the Court, I appear with my learned friend, MR R.M. NIALL, for the appellant.  (instructed by Australian Government Solicitor)

MR B.W. WALKER, SC:   May it please the Court, I appear with my learned friends, MR M.B. EVANS and MR F.H. MARTIN, for the respondents.  (instructed by Roberts & Kuskie)

GLEESON CJ:   Yes, Mr Maxwell.

MR MAXWELL:   If the Court pleases.  Your Honours, this appeal concerns a question of statutory interpretation.  It concerns the ordinary meaning of the word “importer” in the relevant regulations, but to borrow a phrase from your Honour Justice Gummow from the hearing just concluded, when it boils down to the matter of substance, this case is fundamentally about the character at law of the conduct of an agent.

GLEESON CJ:   Is what appears on page 92 of the appeal book, in paragraph 15 of the affidavit, the whole of the evidence about the agreement between Omeo Way and Granite Arms?

MR MAXWELL:   No, your Honour, there is something in Mr Featherstone’s affidavit at 127, paragraph 10.  Your Honours will see that it refers to the letter from Inspector Brown on 24 February 2000 in which the police say that the authority which Omeo had was revoked.  It was not a threat, it was a revocation, though as our learned friends point out, that has not been ruled on in the proceeding:

when Mr Owen was relating the story of Inspector Brown’s letter to me –

says Mr Featherstone, who is Granite Arms, as your Honours will have noted –

I offered to apply for an Import Permit and Import them using my Customs Agents in Melbourne.  We discussed the issues that Omeo Way Pty Ltd would pay for all expenses and outgoing, with Freight on Board for Customs Clearance, Freight and such like and Mr Owen asked me if I wished to charge him a fee for being the Importer.  I said that as it would not cost me anything I would do it as a favour.

Your Honours, there are references in the judgments to the difficulty, as it is described, in which Omeo Way found itself upon receipt of the 24 February letter.

May I first, just so we can deal with the matter your Honour has raised, take your Honours to the letter of 24 February which is at appeal book 48, our footnote 6.  Your Honours will see there can be no mistake but that what the authorised officer said he was doing in paragraph 3 of this letter to the solicitors for Mr Owen was to have rescinded import permits bearing those numbers and those dates and that no further permits would be issued in relation to the subject category until certain undertaking had been given.  So this was not a threat to revoke, this was a notice of rescission or revocation.  Then if I might point out to your Honours that Justice Spender dealt with this at appeal book 154 in paragraph 27.

GUMMOW J:   Just a minute, before we leave page 48.

MR MAXWELL:   Yes, your Honour.

GUMMOW J:   Do we have this statute, the Weapons Act 1990?

MR MAXWELL:   Your Honours do not.

GUMMOW J:   That is a Queensland statute, is it?

MR MAXWELL:   Queensland Act.

GUMMOW J:   And the Weapons Regulation, that is the regulation under that Queensland Act, is it?

MR MAXWELL:   Likewise, and it appears, and this has not been investigated in the proceeding, there were concerns held by the Queensland Police in respect of Omeo Way and its performance under Queensland firearms legislation, but that matter has not been investigated.  The point is made by the respondents that this was a purported revocation; it was not necessary for the court to rule on it, but we want to make it clear to your Honours the context in which, what we have called a device, was used.

Your Honours, Justice Spender at 154 referred in paragraph 26 of his Honour’s reasons to the rescission and again your Honours will see there was not any doubt in the learned trial judge’s mind that there had been a rescission and it was that of which Customs was advised.  I beg your Honours’ pardon, the letter to Mr Owen is referred to in paragraph 25. 
Then Customs were advised in paragraph 26.  Paragraph 27, his Honour goes on:

As a consequence of the decision of the Queensland Police, Mr Owen deposed to the course of action that he undertook to overcome the difficulty of Omeo Way’s inability to meet the Police authorisation test.

Then there is a reference to the paragraph your Honour the Chief Justice drew attention to.

GUMMOW J:   Now, going over to page 156, paragraphs 32 and 33, there is a reference to the Victoria authorisation.

MR MAXWELL:   Yes, your Honour.

GUMMOW J:   What was the Victorian legislation that was engaged?  What is the source of the Victorian police to authorise anyone to do anything in this respect?  Are they delegates under some federal law, or are they ‑ ‑ ‑

MR MAXWELL:   No, again ‑ ‑ ‑

GUMMOW J:   They are acting under the State law, are they not?

MR MAXWELL:   They are, though the authorisation is of course contemplated by the federal regulation, but ‑ ‑ ‑

GUMMOW J:   Indeed, it is then picked up and given a further effect under federal law, but under State law, it has its source ‑ ‑ ‑

MR MAXWELL:   Yes, your Honour.

GUMMOW J:   What is the State law?

MR MAXWELL:   I cannot answer the question from memory ‑ ‑ ‑

GUMMOW J:   Yes, we will need to know.

MR MAXWELL:   At appeal book 62 is the application from Granite Arms.

GUMMOW J:   Yes, I know.

MR MAXWELL:   Which does not take it any further.

GUMMOW J:   No.

MR MAXWELL:   And then at 64, is the police confirmation and your Honours will see it is on a Customs form in which the then Chief Commissioner in Victoria, Mr Comrie, confirmed that for the purposes of regulation 4F and Schedule 6 of the regulations for the importer Granite Arms holds a licence or authorisation in accordance with the law of this State to possess the relevant items and there is elsewhere reproduced the gun dealer’s licence of Granite Arms.  But as your Honours will have appreciated there is required by the State police a statement that there is authorisation to possess the particular weapons and in Omeo’s case, as we would understand ‑ ‑ ‑

GUMMOW J:   That is what I am trying to get to.

MR MAXWELL:   There had not been a revocation of its State licence, but there had been a rescission of its import permits, so‑called. 

GUMMOW J:   Now, the federal law talks about “to possess”, does it not?

MR MAXWELL:   It does, your Honour, yes.

GUMMOW J:   And it does it by reference to the State law and the State law is looking to something happening after the completion of importation. 

MR MAXWELL:   Would your Honours go to 134, and your Honours will see that the licence which Granite Arms has is under the Firearms Act 1986 or 1996.  That is not, however, the statement of authorisation required for the purposes of the regulations.  The position is probably best characterised in this way, your Honour.  If your Honours would go to the police authorisation test where it appears in the judgment of Justice Kiefel, which is ‑ ‑ ‑

HEYDON J:   It starts at page 173.

MR MAXWELL:   I am indebted to your Honour, and at 177 to 178 I have noted it was – 177 to 178 appears the full text of the police authorisation test in Schedule 6, Part 1:

4.1      The importation of an article . . . complies with the test if:

(a)      the importer of the article has been given a statement, in an approved form, to the effect that the importer holds a licence or authorisation according to the law of the relevant State or Territory to possess the article ‑ ‑ ‑

GUMMOW J:   Yes, well that is what I am trying to engage you in.

MR MAXWELL:   I understand that, your Honour, and I am not able to ‑ ‑ ‑

GUMMOW J:   It may be that “possess” there, when yoked to “importer”, suggests possess in the State after the completion of a process of importation for the customs law.

MR MAXWELL:   Yes, well, your Honour ‑ ‑ ‑

GUMMOW J:   Which might help you.

MR MAXWELL:   Indeed, and there is ‑ ‑ ‑

GUMMOW J:   And we need to know what the Victorian law says.

MR MAXWELL:   Yes, your Honour, well I do not know.

GUMMOW J:   Well, someone had better tell us at some stage.

MR MAXWELL:   We will, your Honours.  Your Honours will have noticed from the outlines that the phrase “according to the law of the relevant State or Territory” is a phrase on which we rely in that we say that the relevant State is the State in which the importer will possess them, or from which the importer will control the possession of them.

GUMMOW J:   After release from bond.

MR MAXWELL:   Exactly so.  As we would understand the scheme of the regulations, that is precisely the policy.  Firearms regulation onshore is a matter for State law, and the regulation seeking to prohibit the importation of handguns provides what, we say, is quite a narrow exception where the importer is approved or, more relevantly, authorised by State police in the relevant State, in the importer’s State, or if there were more than one ‑ ‑ ‑

GUMMOW J:   To possess.

MR MAXWELL:   To possess, because thereafter, dealing with the guns will be a matter for State law.  If I might just, to conclude the references for your Honours on this point, there are two references in Justice Kiefel to what is called “the difficulty”.  At appeal book 181, paragraph 30 her Honour noted at the foot of that page:

I should also add that the question whether the Queensland Police Service was entitled to rescind the earlier statement it provided to Mr Owen is not in issue in these proceedings.

That was plainly right, there is no argument on the appeal about it, though a dispute was flagged by counsel for the respondents.  Earlier, at 175 in paragraph 7, her Honour used language similar to that used by Justice Spender when she said at line 18:

Mr Owen then took steps to overcome the difficulty with which he was faced.  He said in evidence –

as follows.  We have put in our summary of facts that Omeo Way was unable to comply with the police authorisation requirement because of the rescission, that it did not have the authorisation from the police in the relevant State to possess the guns.

Our learned friends say, well, you cannot assert that, that is not being ruled upon, which we naturally concede, and indeed, the issue that presents itself as a result does not depend on whether Omeo did or did not have the authorisation because the only question is, was the production by the agent of its authorisation in another State sufficient to bring this importation within the words of “exception”, and we say not possibly.

It is of importance in a case where, as we have presented it, the principal lacks the authorisation but the agent has it and the decision of the courts below is that is good enough, that is compliance, and we say, with great respect to their Honours, that could not be the law.

That this was a device is, in our respectful submission, emphasised by the fact that when the goods were entered for home consumption the sales tax exemption relied on was Omeo’s.  That is deposed to by Mr Dunne in paragraph 21 of his affidavit at appeal book 35.  The sales tax exemption certificate appears at appeal book 56 in the name of Omeo Way.  The entry is at appeal book 68, and your Honours will not be able to make much of that except that, as Mr Dunne deposes, the sales tax certificate number, which appears at about line 28 towards the left-hand margin on that page, with the initials “STX=R/7607280” is the number of the Omeo Way sales tax exemption certificate.

So this was not, even on the best view for the respondents, an importation by Granite otherwise Granite would have had to produce its own sales tax exemption certificate.  Granite Arms, we point out while your Honours are at appeal book 68, is named as the owner for the purposes of the entry for home consumption - your Honours will see that at about point 3 of the page towards the left-hand margin.

GLEESON CJ:   Mr Maxwell, on page 155 of the appeal book at line 15 there is a reference to two invoices.  Are they in evidence?

MR MAXWELL:   I believe so, your Honour, yes.  Would your Honour go to 66?

GLEESON CJ:   Thank you.

MR MAXWELL:   So the invoice is addressed to Granite Arms, and “Garnet Fetherstone” is named as the consignee.

GLEESON CJ:   But am I right in thinking that the payment had already been made before the goods were consigned?

MR MAXWELL:   Yes, your Honour.  Yes.  So this is a false invoice.  Nothing was payable by Granite Arms at all.  Indeed, we have referred in the facts – and these are not disputed – if your Honours would go to paragraph 13 of our outline at page 3, we say the key facts are as follows and, as I say, no issue was taken with the first two.  Omeo agreed with a Chinese supplier to purchase 3,000 handguns.  Omeo paid the total purchase price of something over $US144,000 before the handguns were imported and, your Honours, the contract of sale, as at appeal book 40 – appeal book 40 your Honours will see the sales contract, as you would expect, unambiguously between Wong Long Development as the seller and Omeo Way as the buyer, and your Honours will see without my reading it specification of the commodities and the price.

At appeal book 153 his Honour at the trial dealt with payment at paragraph 22.  Your Honours, there are set out the dates of payment.  It is useful to note that, as would typically occur in such a case, as paragraph 23 of the judgment records, shortly after the first instalment was paid Mr Owen, on behalf of Omeo Way, applied to the Queensland police for a so‑called import permit in respect of the importation of – it says “2000”, but in any event it is the same handguns. 

The statement of authorisation was in the first instance issued to Omeo on 10 February 2000, and that appears at appeal book 46.  Your Honours will see that, as with the Victorian example that we saw a moment ago, this is again on a Customs form completed by the authorised State police officer.  It was that to which the letter of recision of 24 February related.

GUMMOW J:   Looking at page 40, the sales contract, there are 3,000 items.  They were to go by air to Brisbane, but that has been crossed out and “Melbourne” has been written.  Is there any evidence about when that happened, or what the handwriting means?  “DEAR JAMES, THIS WAS THE DEAL”.  What is all of that?

MR MAXWELL:   I do not know, your Honour.

GUMMOW J:   Because the shift from Brisbane to Melbourne is consistent with getting the Victorian licence.

MR MAXWELL:   It is.  It is consistent with this being a device.  This was a way, so it was thought – and so far it has been regarded as successful – to circumvent the prohibition, the importer itself being unable to comply under Queensland law, being the relevant State, given that the goods were to be imported into Brisbane, as this contract indicates, by changing at the last minute to Melbourne.

Your Honours, we have set out in the outline – I will not delay the Court by repeating the arguments – four different ways in which the Court can arrive at what we say is the only conclusion open; that is to say, that compliance by an agent with a test of this kind could never be compliance by the importer.  We started in the Full Court, though not at first instance, and we have started in this Court in writing, with the basic rule of agency.  In our respectful submission, it provides the key to this case because the foundation is the assertion by the companies, which Customs conceded in argument, that Granite Arms at all times acted as agent for Omeo Way.

GUMMOW J:   Agent to bring about what Act in the law?

MR MAXWELL:   Well, agent ‑ ‑ ‑

GUMMOW J:   That is what agents do.

MR MAXWELL:   Yes, agent to perform acts in the course of and for the purpose of importation.  Relevantly, and we have set these out in our outline – quite limited steps.

GUMMOW J:   Well, the acts are the acts required by the Customs legislation to permit entry into Australia out of ‑ ‑ ‑

MR MAXWELL:   That is so, but if I might take it at its broadest.

GUMMOW J:   All I am putting to you is you cannot use this word “agency” as if it is a piece of cheese.

MR MAXWELL:   No, I accept that, but we distinguish ‑ ‑ ‑

GUMMOW J:   It has to be related to some particular consequences in law that the agent is to bring about.

MR MAXWELL:   That is so, but we draw a distinction, with respect, from the case where an importer engages a third party to provide services under contract.  This was an authorisation to Omeo Way to take delivery of the goods when they were, as it turned out, delivered to Melbourne.  Because this was said to be authorisation – that is to say expressly, in the company’s own language – the authorisation of Granite to act as agent for Omeo in respect of that part of the physical bringing in, then this is just like the signature cases to which we have referred, Christie, O’Reilly, where an official authorises another person to sign his or her name, and in so doing as agent the authorised person acts in law as the person giving the authority.

In our respectful submission, once it is appreciated, as it must necessarily be in this case, that everything Granite Arms did it did in its capacity as agent for Omeo Way, then everything else follows.  Granite Arms was Omeo Way in law.  That is what agents are.  It follows that Granite Arms did not possess the guns, as your Honour Justice Gummow said at special leave.  The agent’s possession is the principal’s possession, by definition.  As we have said in writing, it follows that any question of the authorisation of Granite Arms, in its own right to possess handguns, was completely irrelevant to the regulations because it would never possess them in its own right.

McHUGH J:   Well, it is a question of what you mean by “in their own right”.  If Granite had imported drugs, they would have a hard job denying that they possessed the drugs.

MR MAXWELL:   Your Honour, quite different considerations might arise if one ‑ ‑ ‑

McHUGH J:   I know you say that but, as the majority judgments say in the Full Court, there is no reason apparent in the express terms of paragraph 4.1 why the word “importer” should be approached with any different concept in mind than that that is found in other provisions of the Act.

MR MAXWELL:   With great respect, your Honour, there is all the reason in the world to conclude that no such extended meaning was intended because where Parliament ‑ ‑ ‑

McHUGH J:   It is not a question of extended meaning.  You want to change the meaning.

MR MAXWELL:   With great respect, we do not.

McHUGH J:   No, the importer.  Anybody looking at it would say that Granite has imported it.

MR MAXWELL:   With great respect, your Honour, we completely disagree about what anybody would say.  We assert in our submissions and again in this Court that no one would say that Granite Arms in this context was the importer.  Everyone would say ‑ ‑ ‑

McHUGH J:   Well, three judges have so far.

MR MAXWELL:   Everyone would say as a matter of ordinary language, in our respectful submission, Omeo Way bought the goods, arranged for them to be shipped to Brisbane and organised an airline and a customs agent and someone to receive them – as it turned out, in Melbourne.  Who was the importer?  In our respectful submission, as a matter of ordinary parlance there would be unanimity, consensus that it was Omeo Way.  Omeo Way created, controlled, directed the entire transaction from beginning to end.  Different questions might arise if we were dealing with criminal offences.

McHUGH J:   No, but ordinarily, for the purpose of the Customs Act, “importation” means no more than landing goods or bringing them within a port for the purpose of landing them in the country.  That is the primary meaning of “import”.  It runs through all the cases.

MR MAXWELL:   Your Honour, I fully appreciate that.  Indeed, we assert that that is the ordinary meaning of the word.

McHUGH J:   That is what Granite did.

MR MAXWELL:   With respect, that is why the agency argument is so important.  If I am acting as an agent for an importer, I am that other person.  I am not importing; my principal is.  That is the basal principle upon which this whole case turns, in our respectful submission.  On the argument for the companies, any person who plays any part in the physical bringing in is an importer.  The airline was an importer.  The customs agent who drew up the entry for home consumption was an importer.  Granite Arms as the consignee was an importer.  If it literally means anyone who is a part of the bringing in, then it is infinitely broad.  As the cases also say, importers habitually use a variety of agents to effectuate importation.  Indeed, very often importers themselves play no physical part at all. 

As I put in the Full Court, you imagine a large department store importing furniture from China.  That will all be done through agents, but no one would suggest that anyone was the importer other than Myer/Grace Bros, for example.  The purpose of this legislation is to say importation of goods of this kind is prohibited unless the importer has an authorisation in the relevant State, not unless anyone engaged as an agent by the importer has an authorisation in any other State, because that would be to subvert the whole policy.

McHUGH J:   Could Omeo have gone along and sought to take possession of the goods from the ship, notwithstanding that the bill of lading was made out in favour of Granite?

MR MAXWELL:   Unequivocally.

GUMMOW J:   It was aircraft, was it not?

McHUGH J:   Aircraft.

MR MAXWELL:   Unequivocally.  Granite would not have been heard to say anything other than that “We possessed them as agent for the purchaser, Omeo Way”, and there would have been no question about it.  I will come back later to an argument put against us in respect of a point we do not make, which is that the importer must be the beneficial owner.  We have never argued that and we do not argue it in this Court.  An importer might be a hirer, might be a lessee, might be a trustee, might have no beneficial ownership whatever, might be a bailee, so it has nothing to do with beneficial ownership at all. 

What it has to do with is who is the person bringing the goods in as a matter of law.  If Parliament had wanted to embrace within that conception all of those agents and instruments who play a part, whether as agents literally or under contracts for services in the bringing in of the goods, Parliament would have so provided.  But in public protection legislation like this, it is perfectly clear why the regulations did not go so far.  I will come back in a moment to the contrast with duty imposition provisions which do go wide, for obvious reasons.

What the regulations do is prohibit the importation of guns.  There is an exception in respect of an importer who satisfies the police authorisation test.  Public protection is maximised by construing that exception rigorously by asking the question:  who in truth or, we would say, in law is the importer?  No other person’s authorisation could satisfy the object of that regulation because public safety demands that the importer and the importer alone be the one in respect of whom the authorisation exists, otherwise the goods do not come in.  What policy objective could conceivably be served by the position which obtains to date by holding that Granite Arms, whose possession would be temporary and subject always to the overriding control of the purchaser, owner, importer, Omeo Way, that it having an authorisation to possess in Victoria could satisfy the policy requirement?

At the risk of repetition, if we are right about the rule qui facit per alium facit per se, then there is only one conclusion in respect of Granite Arms, that it was Omeo Way in everything it did.  That is what we meant, your Honour Justice McHugh, in saying “not acting in its own right”.  It was not acting as principal.

McHUGH J:   But supposing I had gone to the plane and taken hold of these guns.  In an action for trover, Granite would be the proper plaintiff, would it not?

MR MAXWELL:   With respect, no.

GLEESON CJ:   A possible point of view is that Granite had a right to possession of these goods but it was not a right to possession exclusive of Omeo Way.

MR MAXWELL:   Exactly so.  So in the first instance, with respect, your Honour would be right but the better right to possession and the one who, one would assume, would take the proceeding against the person who had wrongfully obtained possession would be Omeo Way, the principal, because ‑ ‑ ‑

McHUGH J:   But if a robber takes a letter addressed to me, The Winkfield holds, does it not, that the Postmaster‑General, or whatever the equivalent is these days, can bring the action of trover?  Maybe I have forgotten the law on that.

MR MAXWELL:   Your Honour, we can concede that and it, with great respect, does not answer the question in this case.  If a right to possession is sufficient to found a cause of action, Granite had that, as the learned Chief Justice says, against the world but not Omeo.  My learned friend says, “Quite”, but so did Singapore Airlines, or whoever brought the goods in from China.

GUMMOW J:   Korean Air, was it not?

MR MAXWELL:   Korean Air.  We would say, with respect, so what?  Because it had been arranged and cargo had no doubt been paid to Korean Air, Korean Air could say, “We have the right to possess these goods.  We have a contract to perform for Omeo Way and we’re going to perform it”.  None of that, with respect, answers the question of who is the importer for the purpose of the police authorisation test.  If it is right as a matter of law, as Justice Gummow said at the special leave, that Granite’s possession as agent is Omeo’s possession, then it is as if it were simply an extension of Omeo Way.  It does not hold as Granite Arms any more than the officer in O’Reilly’s Case signed as John Brown.  The officer signed as O’Reilly.

McHUGH J:   Granite had a right to possession good against the world except Omeo.  Why is that not sufficient possession for the purpose of this paragraph?

MR MAXWELL:   Because it was not the importer.  It did not act as Granite in any respect.  It did not import.  It acted as Omeo in its little part in the importation.  The airline was not an agent; it was a contracting party for services.

McHUGH J:   It was the consignee, the bill of lading was addressed to it.  All the indicia are there.  On any view of this case it seems to me there is a defect in these regulations, that it really does not give full protection to the public, no matter what construction you put onto it, because it does not deal with the question of different States.  Be that as it may, it seems to me that you are then forced to use this concept of common law agency to patch up what on one view is a defect in the legislation.

MR MAXWELL:   With great respect, we do not accept the notion of patching up at all.  We have pointed out, with respect to their Honours in the Full Court, that to say that agency is some foreign concept brought in to infect the orthodox statutory interpretation is to misapprehend what this Court has done since the turn of last century, which is to say where statutory requirements are imposed on people, unless the statute precludes the use of an agent, then an act of the person obliged to require to comply can be done by an agent but only as the person who must comply, not as themselves.

McHUGH J:   Yes, I know, but to protect the public requires joint co‑operation between the States and the Commonwealth.  The Commonwealth’s role is to ensure that when the guns are landed in the country, some person of responsibility takes control of them.  After that it is a matter for State legislation.  Why is that policy not met here when somebody who is an authorised person takes control of the guns the moment they are landed?  What happens afterwards then is a matter for State law.  If there is a defect in State law, that is outside the purview of the policy of the Customs Act.

MR MAXWELL:   Your Honour, we do not think we can do better on that than what Justice Kiefel said at appeal book 187, paragraph 53:

The satisfaction of the Police authorisation test by permitting an agent of the person who will ultimately hold the goods –

which is an accurate description of what occurred here –

to produce a statement in their capacity as importer would not appear to provide a tight control, as one might infer the tests were intended to do.

Your Honour affirms that objective, as we respectfully do.

Such an agent may only ‘possess’ the firearms temporarily in a physical sense or not at all.  They may simply be said to have a right to their possession to the extent that their contract of agency requires.

Just so with Granite Arms.

They may never be responsible for their physical custody, use and disposition.

Certainly Granite was not responsible for use or disposition; quite the contrary.  Omeo Way was, and it would expect to be, having paid $US144,000, Granite having paid not a penny for any aspect of this importation.

McHUGH J:   Yes, but the protection for the public lies in what the importer does.  If the importer gives the guns to somebody who is not entitled to have them, then the law falls on that person.  Assume in this particular case Granite was, even on any view of the case, the true importer and it then on‑sold the guns to Omeo.  What is the difference between these two cases?  If Omeo should not get the guns in Queensland, then there may be a breach of the law by both of them, Omeo and Granite.  If Omeo is entitled to have the guns in Queensland, what is it to the Customs Department?  Their role is finished when they ensure that the guns are landed in the possession of somebody of authority.

MR MAXWELL:   And Granite had none.

McHUGH J:   They had an authorisation.

MR MAXWELL:   It had no authority at all to dispose of the guns.  That, with great respect to your Honour, is the fundamental difference between the two cases your Honour has postulated.  If Granite was the true importer, having the power of control, use and disposition over the goods, your Honour would be right.  The policy would be effectuated by Granite producing its authorisation.  But it was not, and to regard the protection as satisfied by Granite ignores the fact that the control and disposition of the goods rests with Omeo as Granite’s principal and one would be allowing them to move into the control or remain in the control or disposition of Omeo without the test having been satisfied.  That would be, as we have argued, completely to subvert the policy.  That is why this is a device which should not be condoned by this Court.

GLEESON CJ:   Exhibit 15, it appears from the index on page 4, was the Korean Air air waybill/consignment note and it is not reproduced.  Is a copy of it available or is there anything in the papers that contains secondary evidence of its contents?  That, I presume, was the document of title to the goods?  That, I presume, was the document you had to produce to Korean Air to take ‑ ‑ ‑

MR MAXWELL:   To obtain release of them.

GLEESON CJ:   Yes.

MR MAXWELL:   Yes, your Honour.

GLEESON CJ:   Can we have a look at that?

MR MAXWELL:   We will have that turned up to the extent it is available.

GUMMOW J:   What is the distinction between – at page 188 Justice Kiefel refers to the Victorian Control of Weapons Act 1990, while at page 134 Granite’s current licence seems to be under the Firearms Act – is it 1996?

McHUGH J:   1986 or 1996.  It is hard to read.

MR MAXWELL:   Your Honour, I am as ignorant of that as I was of the relevant provision previously.  We are going to need to furnish your Honours with copies of those Acts.  Might I just finish reading from Justice Kiefel, because we respectfully submit her Honour has captured very precisely why allowing an agent to satisfy the principal’s authorisation requirement would be contrary to the policy of the regulation.  Her Honour went on at line 39:

The person who will be responsible is the person under whose State or Territory licence or authority they will be held for whatever uses.

In this case Omeo alone.  Granite was simply a point of receipt, the consignee.  It had no authority to deal with the goods and the dealing with the goods was wholly the responsibility of Omeo Way.  Her Honour goes on:

I appreciate the respondents’ arguments that dealers might be viewed in a different way, since they are subject to stringent controls, and that a dealer-agent’s dispossession –

“disposition”, I suppose –

of the goods would be recorded under the terms of State or Territory legislation.

Plainly so, but the fact was Granite, though it was a licensed dealer, could not deal with these goods.  They were not its to deal with.  Had it dealt with them, it would only have done so on Omeo’s instructions.

GLEESON CJ:   Was it to Granite and only to Granite that Korean Air would hand over the goods?

MR MAXWELL:   As I understand the position, your Honour, yes.

GLEESON CJ:   So if Omeo Way had turned up to Korean Air’s premises and said, “We’d like those guns”, Korean Air would have said, “We don’t know who you are”.

MR MAXWELL:   “We don’t know who you are”, that is so.  One would say as a principal, that is exactly how one would want the travel company to deal with one’s agent.  That is to say, the instruction is to deliver to Granite.  The arrangement pursuant to which the goods are received by Granite is a matter of no concern to Korean Air, but what matters to this Court and Australian law is that relationship.  Her Honour goes on, having referred to the legislation Justice Gummow mentioned a moment ago, at line 23 on appeal book 188 to say this:

And whilst it is correct to observe that the Customs Act does not express or imply a concern, by reference to the term ‘possess’, about what the person is actually licensed or authorised to do pursuant to the relevant State or Territory legislation, it is plain enough that it is contemplated that the weapons will have some purpose to the person.

Of course, they had no purpose to Granite at all.  Granite was helping out a business associate.  Her Honour goes on:

In that background it seems to me unlikely that the limited rights to possession that an importing agent would have could have been intended.  It is more likely that they were intended to refer to the person who was to possess them for a purpose even if that purpose does not extend beyond possession itself.

GUMMOW J:   Mr Maxwell, I am looking at page 81.  That was a proceeding instituted in the Magistrates Court in Melbourne.  It refers to goods seized from the premises of Secon Carriers on 7 September.  Do we know about that?

MR MAXWELL:   I do not, your Honour, no.

GUMMOW J:   Who were they?

MR MAXWELL:   As I am instructed, they were holders of the goods in bond for the purpose of repair.  Where that appears in the evidence I do not know and I will need to assist your Honour with it.

GUMMOW J:   We will need to know about that too.  Also on page 81 there is a reference to Form B709A issued on 12 April 2000 in Victoria.  Do we have that in evidence anywhere?

MR MAXWELL:   Yes, that is the one that we took your Honours to earlier.  I will just get the reference from our outline.  That should be at appeal book 64.

GUMMOW J:   That is the Australian Customs form.

MR MAXWELL:   It is certainly the correct date, 12 April 2000.  The form number appears at the top, B709A.  It is rather obscured, but does your Honour see it in large black print, “B709A – FIREARMS”?

GUMMOW J:   Yes.  That is a Customs form stamped by the Victorians.

MR MAXWELL:   Yes.  It is the form as the record appears to indicate which the respective State police forces use to record the statement of authorisation which the regulations contemplate.  Your Honours have seen that a like statement on the same form had been obtained by Omeo in Queensland in early February and that was at appeal book 46, 10 February – same form, different State police.

McHUGH J:   Mr Maxwell, to understand this regulation, I think it may well be necessary to understand its context.  Its principal context seems to me to be all the State legislation dealing with possession and use of weapons.  I do not think we have copies of it.

MR MAXWELL:   Your Honours do not have.

McHUGH J:   We need it all, I think.

GUMMOW J:   Looking at your statement of relevant facts which you took us to, we suddenly find ourselves at paragraph 16 before Justice Spender.  That was an AD(JR) application, was it not, in the Federal Court?  What is the connection between what happened in the Federal Court at page 2 and what had been going on in the Magistrates Court at page 81?  You do not need to tell us now but we need to know.  We have to write a judgment.

MR MAXWELL:   I understand, your Honour.

GUMMOW J:   I do not see why it has to be an exercise in reading hieroglyphics.

MR MAXWELL:   With great respect, I accept the force of what your Honour has put to me.

GUMMOW J:   We had the same problem in the El Hajje appeal a while ago, you might remember.

MR MAXWELL:   In order to elucidate better our primary submission, I want to come to what we say is really the argument for the respondents which is close to what your Honour Justice McHugh has been putting to me.  Before I come to that, we respectfully submit as follows, that the effective prohibition must apply to every importer of goods or guns and it must catch everyone who plays a part in the importation.  There are two important qualifications to that latter proposition.  First, that the prohibition applies to the importer and not separately to each other person who plays a part in the physical bringing in.  The importer of course will be liable for the acts of its agents.

The second qualification is this – and this is where we come to the respondents’ submission – a wide prohibition does not have as its corollary a wide class of persons who can satisfy the exception.  The opposite is the case, in our respectful submission.  An effective prohibition requires a narrow class of eligible persons to satisfy the exception.  If your Honours go to the respondent’s submissions at paragraph 8 and there it is said, at the foot of page 2 of the written outline:

That prohibition would apply to Granite if it brought the goods into Australia without producing the requisite certificate, regardless of whether Granite acted as agent for Omeo Way or any other party ‑ ‑ ‑

GUMMOW J:   What is the date of this regulation?

MR MAXWELL:   We have set the regulations out at some length in our appendix A.

GUMMOW J:   It is 2000, is it not, an amendment in statutory rule 234 of 2000?  Is not all this the sequel to Port Arthur?

MR MAXWELL:   Yes, your Honour. 

GUMMOW J:   Is that not part of the context?

MR MAXWELL:   Yes. 

McHUGH J:   Do we not need to know whether or not there were agreements between the Commonwealth and the States about these matters.  In the explanatory notes in the 1996 amendments of the regulations there is a reference to a committee.  Does it throw any light on the general problem here?

MR MAXWELL:   We say, with respect, no, because, as we have sought to submit in writing and again this morning, the answer to this question is one of fundamental legal principle.

McHUGH J:   But context, any question of statutory construction requires context which includes the background of the legislation.  Legislation is not enacted in a vacuum.

MR MAXWELL:   With great respect, we appreciate that, but the first context is the text of the relevant instrument itself and if that is clear, as we respectfully submit this is, unambiguously clear ‑ ‑ ‑

GUMMOW J:   Maybe you are wrong about that so therefore you have to descend into this question of context in order to win your case, presumably. 

MR MAXWELL:   In any event, your Honour, we do not have before the Court the committee report and it is becoming increasingly clear that your Honour is going to need quite a large folder of supplementary material.

GUMMOW J:   Yes, I was at a loss as to why it was not in the Federal Court.

MR MAXWELL:   The fault is no doubt ours.

McHUGH J:   This regulation just did not come out of the air.  It was the obvious product of Port Arthur, grievance between States and Territories.  One remembers the Prime Minister’s statements about this matter.  There must be a lot of material out there and it has to work in the context of a State regulation of the handling of handguns and other guns.

MR MAXWELL:   We do respectfully maintain that the points we advance provide a set of simple solutions to the question and none of them, we respectfully submit, is likely to be much affected by more detail of the context, that is to say the historical, political context ‑ ‑ ‑

McHUGH J:   Well, I suspect it may assist you and at the moment I think the literal meaning of the regulations is against you.

MR MAXWELL:   Your Honour, suffice it to say I am not for a moment meaning that we will not provide everything your Honours need.

GUMMOW J:   You see my recollection of it, which is uninformed, is that the Commonwealth was at least indicating that absent State co‑operation it would move itself directly into this field, go beyond the Customs situation, rely on the trade and commerce powers and so forth and that did not happen and it did not happen because what we now have is the result of compromise between the two political groups, the Commonwealth and the States, and they thought they were achieving some close interface and, if your opponents are right, there was a gap in the dyke.

MR MAXWELL:   Yes.  I am instructed that quite a lot of the material your Honours are referring to was presented to Justice Spender at trial and it certainly was not used in the Full Court and it can be readily assembled.

Your Honours, I think it is important to move now to what we say is an instructive contrast with the statutory definition of “owner” under the Customs Act.  We have drawn attention to this – it may be most convenient if I go to one of the cases our learned friends rely on in which the definition is addressed.  If your Honours go to No 8 on our learned friend’s list, this is Collector of Customs v Darch (1990) 98 ALR 225. Your Honours this was a case about two importers, each of which imported parts of bicycles which, put together, made a complete bicycle. If your Honours would go to 227, his Honour Justice Mahoney asks four questions, the second of which is:

who was the importer of them -

I will not trouble your Honours with the detail of the transactions at this stage, but if your Honours would then go to 230, his Honour deals with the second question very shortly by saying:

It follows from what I have said that, in fact, the importers of the bicycle parts were respectively -

the two parties there named who, in that case as in this, were those who had purchased the goods from abroad.  The next sentence is quite significant:

The agents who acted respectively for them acted upon that basis.

That is to say that the importers were the companies bringing in the goods, no question of the agents themselves being importers.  That, we would respectfully say, is the ordinary meaning of the word “importer”, that it excludes a person who acts as agent for an importer. 

Justice Meagher dealt with the matter.  At 233 his Honour refers to what was said in Wilson v Chambersand Co Pty Ltd (1926) 38 CLR 131 at 136 by Chief Justice Knox that:

goods are imported whenever they are brought into port for the purpose of being discharged there -

and there is no issue between the parties but that importation is the act of bringing in goods to Australia.

GUMMOW J:   That does not deal with bond, does it?  It does not deal with the way the Act actually works, his expression, “brought into port”.

MR MAXWELL:   No, some cases have turned on at what point has the importation occurred – that does not arise here. 

GUMMOW J:   Some cases have turned upon seizure at sea.

MR MAXWELL:   Indeed, they have. 

GUMMOW J:   Bull, for example.

MR MAXWELL:   Bull’s Case said no importation while they are still on the high seas.  Another case says, if they are brought into the port with the intention of discharging them there, they are imported even if there is a subsequent agreement to discharge them at another port.  Would your Honours then go to 235 where Justice Priestley agreed with both and it says, at the top of that page:

Some dispute took place as to whether this analysis was altered by reason of this extended statutory definition of the “owner” of goods in s 4.  The definition is in the following form:

“Owner in respect of goods includes 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 . . . the goods.”

It is a difficult definition.  In the first place, the use of the word “agent” is ambiguous.  Since many importers will in practice use a variety of different agents -

and we assert the same -

are all its agents encompassed by the definition or only some?  If the latter, on what criteria does one determine which ones are encompassed?

These are just some of the difficulties which would arise if the regulation had included “importer” or “importer’s agent”, as our learned friends contended should be read as if it provided.  His Honour goes on:

In the second place, how is the definition to be applied in circumstances involving both an owner and his agent?  It cannot be disputed in the present case that Centurion was the distribution agent of both [the importers] GMI and Sarima -

again, making what we say, with respect, is the ordinary language point which is that importers have agents who are not themselves importers –

and was also on the facts found by his Honour to be the ordering agent for both of them –

Again, no suggestion in this case that Centurion was an importer, it was an agent for importers -

but it is not easy to see -

et cetera and your Honours need not be concerned with what is said there.

We make a couple of points about that, as we have sought to do in writing.  The definition of “owner” is quite deliberately very broad and it quite deliberately includes a person in the capacity of agent.  We have sought to say, in our written submission, the explanation for that is self‑evident.  Under Australian law it is the owner who is liable to pay the duty.  For the protection of the revenue it makes obvious sense to have as many persons eligible to be within the definition of “owner” for duty payment purposes as possible.  The position under the present regulations is quite the opposite.  It makes no policy sense at all to have a wide range of persons who could qualify as importer in respect of one importation. 

McHUGH J:   But if the agent pays the duty, does not the agent then have a lien in the goods?

MR MAXWELL:   Yes, I believe so, but this enables Customs to seek or to enforce the duty payment obligation against anyone who falls within any of these categories or subcategories in the definition of “owner” and, as we say, for perfectly obvious reasons.  Your Honours will find – I am about to take you to it - in the UK and New Zealand, the definition of “importer” is, likewise, very broad because under those schemes it is the importer who must pay the duty.  Would your Honours go to our paragraph 38 where we have set out the current UK and New Zealand definitions of “importer”. 

In the UK and New Zealand, for example, the legislation contains a very wide definition of the term “importer” as follows.  In the UK “importer” includes:

any owner or other person for the time being possessed of . . .  the goods –

Granite Arms would be an importer under UK law because it was, for the time being, possessed of the goods.  In New Zealand “importer” means:

a person by or for whom goods are imported –

which is the primary meaning –

and includes the consignee –

Granite Arms –

and a person who is or becomes . . . entitled to the possession of [the] goods on or at any time after their importation –

which would include Granite Arms, and, as I say, the difference is that it is the importer who bears duty in those jurisdictions and the same policy explanation for a broad definition of “importer” applies as explains the broad definition of “owner” in Australia. 

Our submission is, in paragraph 37, immediately above what I have just read to your Honours, as follows.  Had it been intended that the regulations be capable of applying to the agents of an importer, in their own right and separately from the importer itself, this could – and would – have been done expressly, by the inclusion of a special definition of “importer”.  That is, with respect, where we say there is very powerful assistance provided by the legislative scheme itself, that where, for a different policy reason, you want to make an agent, notwithstanding its representative capacity, liable in its own right, you provide accordingly.

The converse must be if you want to provide that an agent, notwithstanding its representative capacity, can produce a police authorisation in respect of the importation, you could and would say so and these regulations are completely silent to that effect, completely silent and we make that point in 39.  Might I deal, just before your Honours break for lunch ‑ ‑ ‑

GLEESON CJ:   We will be breaking for lunch at 1.00 pm.

MR MAXWELL:    If your Honours please – with the point we make in paragraph 40 about the note to the regulation.  It may be convenient if your Honours go back to where we referred to it in Justice Kiefel’s judgment – this is at 178 – just before I make this point and then I will come back to the other point about extended definitions.  The note says, as your Honours can see, in respect of paragraph (c) of the police authorisation test, and this must be done in order for the test to be satisfied:

the importer produces to a Collector, at or before importation:

(i)       the statement in the approved form -

Note:  The importer can produce the statement…personally or by an agent, eg a firearm dealer

Our learned friends say, “Well, there you are”, but, with great respect, on the contrary, there we are.  Whose statement is it – it is the importer’s statement and it can be produced either by the importer personally or by its agent.  Far from licensing, as it were, the agent to produce its own authorisation, it contemplates only that the agent can produce the importer’s authorisation.

CALLINAN J:   Mr Maxwell, is it a possible view that they could both be importers?

MR MAXWELL:   With respect, no.

CALLINAN J:   Why not?

MR MAXWELL:   Because an agent is not acting except in the capacity of the principal.  In other words, there is only one importer, it acts by its agents, but Granite is Omeo so they cannot both be because Granite does not enter into the piece, as a matter of agency law, it is acting in law as Omeo ‑ ‑ ‑

CALLINAN J:   Would it hurt your case, though, if ‑ ‑ ‑

MR MAXWELL:   If they both were?

CALLINAN J:   Yes.

MR MAXWELL:   Assuming that Granite could say, “Victoria is the relevant state ‑ ‑ ‑

CALLINAN J:   No, but what about section 23 of the Acts Interpretation Act, where singular words may include the plural.  Why not?

MR MAXWELL:   Well, your Honour is, with great respect, right.

CALLINAN J:   They are both participating; at least they are both participating in the importations.

MR MAXWELL:   So they are but so is Korean Air and we say Korean Air is never going to be regarded as the importer, nor is the Customs agent who fills out the entry for home consumption.  They are all participating and, as the justice in the New South Wales Court of Appeal said, importers act by many agents and each of them plays a part and none of them, we submit, is the importer other than the person by and for whom the goods are imported.

GLEESON CJ:   Are you not heading for an order for forfeiture of these guns?

MR MAXWELL:   Yes.

GLEESON CJ:   If there were two importers, one of whom had the necessary authorisation and the other of whom did not have the necessary authorisation, where would that leave proceedings for forfeiture?

MR MAXWELL:   I see, with respect, the force of your Honour’s point.  If there were two importers then one would read the police authorisation test as requiring that the importers produce their respective statements of authorisation and they would still be forfeited goods because only one importer, on that analysis, produced a statement in respect of its authorisation. 

CALLINAN J:   The agent here was representing a position that was different, as you would say, from the real position.

MR MAXWELL:   Yes, it was.

CALLINAN J:   Might not, in those circumstances, the agent be regarded as an importer, as privy to an arrangement ‑ ‑ ‑

MR MAXWELL:   I understand what your Honour is putting to me – holding itself out as an importer, almost.

CALLINAN J:   Yes, it was, and to that extent it was a very close participation in the importation ‑ ‑ ‑

MR MAXWELL:   Yes, clearly.

CALLINAN J:   It was not purporting to act as an agent.  That is why I wonder whether there may not be an argument that they were both importers in the circumstances of this case.  Then you do have section 23 of the Acts Interpretation Act and there must be lots of circumstances in which there is more than importer, three or four people with an interest in goods.

MR MAXWELL:   Yes, that may or may not be so, your Honour, though we think in the typical case, and certainly our submission, that there will only be one.  There might be two, as in the Darch Case where you have two lots of bicycle parts, one imported ‑ ‑ ‑

CALLINAN J:   It might be a joint venture.

MR MAXWELL:   It might.  I accept that, with respect.  If joint venturers or partners were importing then there would be many, I accept that.  If you take the partnership example, if a law firm imports furniture from China then the partnership is the importer and, as a matter of law, each of the partners is an importer.  Nothing in our argument affects that conclusion at all and there would be many importers and, I suppose if they were handguns, then the partnership, which has no legal existence itself, would have to have an authorisation to possess and each partner would, accordingly, have to, in your Honour’s point about the Acts Interpretation Act.

CALLINAN J:   The goods were being imported into Melbourne for transmission to Queensland.  There was never any suggestion of anything different. 

MR MAXWELL:   No, and we would respectfully put it slightly differently.  Goods were being imported into Australia by Omeo Way which bought them from a Chinese vendor and wanted them brought to Australia – that is plainly the substance of what occurred – and it just arranged with a receiving post, Granite Arms, that they be delivered to Melbourne rather than Brisbane.

CALLINAN J:   With a recipient who was going to represent a false position.

MR MAXWELL:   As it turned out but, as we have also pointed out, producing its principal’s sales tax exemption which, we say, simply reinforces the agency character in which Granite was acting because the sales tax exemption – and we may need to produce these provisions for your Honours as well – applies to the importer.

CALLINAN J:   In any event you do not want to argue that ‑ ‑ ‑

MR MAXWELL:   We do not want to argue two importers.  The whole tenor of our argument is that if the regulation had contemplated that there might, leave aside the multiple importer joint venture partnership kind, in a case such as this where there is only one principal, let us say, if the delegated lawmaker had had in mind to have a number of potential importers in respect of that single importation, that would have had to be done expressly.

CALLINAN J:   If you do not want to argue it, do not trouble with it any further, from my point of view.

MR MAXWELL:   It is just not consistent with anything we have put nor, with great respect, with what we say is the conceptual framework of the argument that someone who is just a participant as an agent could, in its own right, qualify as an importer – that is the point we start with – an agent cannot do that.  Granite Arms was not doing anything here, it was Omeo.  If the basic agency principle means anything it must mean that, in our respective submission.  It had no legal capacity of its own.  It was the instrument pursuant to an authorisation of Omeo so anything it did which was an importation was Omeo’s importation.  Any possession which it had was Omeo’s possession.

McHUGH J:   Granite answered the description of an importer described by Justice Davies in Ace Custom Services that “importer” includes not only owners but consignees.  One view is that, as Justice Callinan has suggested to you, there may be several importers for the purpose of this legislation.  It is sufficient if one of them has the authorisation because the authorisation seems to act in rem, not in personam.  It attaches to the gun and not to the holder of the gun.

MR MAXWELL:   With great respect, we would submit to the contrary.  It is an in personam authorisation in respect of particular goods, that person being the importer must be authorised to possess.  It is not an in rem authorisation which can pass from hand to hand.  It must be an authorisation of that person and that is the whole genius of the regulation – is the person who is importing the goods someone who is authorised to possess them.

McHUGH J:   Yes, but the regulation commences by speaking about for a handgun, the importation must comply with one of the following things, and then it is set out 1 to 4 and one of them is the police authorisation test.  Then you go the police authorisation test and see what its content is and it does have this personal factor about the importer but the approval, so to speak, seems to attach to the handgun.  It is directed to the handgun because it is the handgun that may be forfeited, so you have to able to say, “Is this particular handgun forfeited?”

MR MAXWELL:   Yes, that is correct, but it will be forfeited unless this particular person is authorised to possess it.  The police are not commenting on the character of the guns, they are commenting on the character of the person.  It is not a safety certificate in respect of the guns – then it would be in rem.  It is a safety certificate in respect of the person and that is why we say, as a matter of clear policy, that can only be satisfied by having a certificate in respect of the person whose goods they are to deal with in whatever legal capacity, trustee, lessee, bailee – in this case, beneficial owner – purchaser, the person who has paid for them.  That is the only person with whom the regulations are concerned and to suggest that the concern is satisfied by Granite’s authorisation is to subvert the policy of the regulations.

McHUGH J:   Supposing this was a joint venture between Omeo and Granite and Granite got the goods, as it did.  What would your argument be then - that the goods can be forfeited unless both Omeo and Granite satisfy the authorisation test?

MR MAXWELL:   Yes, and, with respect, we understood that to be the way Justice Callinan was postulating it.  We understand that if this is a case where there is more than one importer, properly so described, then each of them must satisfy the test, otherwise it would defeat the purpose of the regulations again, but one could have the authorisation and the other not and yet as a joint venturer have power to dispose of the goods, then, again, the policy would be defeated.  So our answer would have to be, if there were more than one importer each of them would need the authorisation.

An analogy – and this is thrown up by another of our learned friend’s cases – comes from the days of the regulations requiring an import licence.  Import is prohibited unless a licence is held, and quite a close analogy to the present case.  It would never have been suggested that if Granite Arms, as the consignee, had a licence in respect of the importation of watch movements – as I am about to take your Honours to – that would have satisfied the regulation.  The importer there, as here, was the person who had paid for the watch movements and was going to deal with them in Australia.

Your Honours, that is the case of Election Importing Co Pty Ltd v Courtice (1949) 80 CLR 657, No 3 on our learned friend’s list. Your Honours will see at 658 in the judgment of Justice Williams at point 5 of the page, the start of that paragraph:

The plaintiff is primarily engaged in the importation of watches and watch movements . . . The licence in question was granted to the plaintiff –

the importer –

under the provisions of the Customs (Import Licensing) Regulations and authorized it to import into Australia 3,000 watch movements –

The case turned on the effect of the cancellation of the licence, and at 661 his Honour sets out the applicable provisions.  These were goods, the import of which was prohibited by regulation, and your Honours will see at point 4 of the page:

Regulation 3, so far as material, provides that the importation of goods into the Commonwealth is prohibited unless a licence to import the goods is in force – 

and then there was a question about the extent of the word “importation”.  I will come to what his Honour said about that.  At point 9 of the page, the line beginning:

limitation if any must be implied.  A licence authorizes the doing of an act which would otherwise be unlawful.

Then his Honour goes on at the foot of the page, and we respectfully agree with our learned friend’s reference to this:

I can find no justification for giving the word “import” in this regulation any other meaning than its ordinary natural grammatical meaning of bringing goods into Australia from another country.  The licence must therefore be in force when the goods are brought into Australia –

Probably, contrary to what I have just put, that is a case of an in rem licence, that is a licence in respect of the goods not a licence or a certificate, as we call it, in respect of the person bringing them in.

CALLINAN J:   Justice Kiefel deals with those sorts of licences at 184 and 185 where her Honour discusses what is required.  Under the whole of the regulation, she refers to the “Official purposes tests” and various other tests which also, I think, gives you an insight into the likely policy of the whole of the regulation.

MR MAXWELL:   Indeed.

CALLINAN J:   It clearly intended that handguns will not become generally publicly available.  It is easy to discern that.  You do not even have to know about Port Arthur.

MR MAXWELL:   Precisely so.

CALLINAN J:   And it has always been understood in Australia, anyway.  Australia has always been very very restrictive of the use of handguns.  Every State has had…..firearms legislation right from the beginning.

MR MAXWELL:   Indeed.  If your Honours will just turn to the top of 185 where her Honour deals in a way we have not in anything we have said with  “The Specified person test” which is yet another of the exceptions to the prohibitions that:

required the Attorney‑General to be satisfied that the importer was a person whose occupation –

was of a particular kind.

CALLINAN J:   We have seen some alarming cases in this Court about the use and apparent ready availability of firearms by criminals to criminals.

MR MAXWELL:   And we would argue in respect of the specified person test that that supports what we are saying about the police authorisation test which is likewise personal rather than in respect of the goods that it could hardly be thought that if Granite Arms:

was a person whose occupation was the control of vertebrate pest animals – 

but Omeo’s was not, that Granite could be the importer for that purpose.

GLEESON CJ:   Is that a convenient time, Mr Maxwell?

MR MAXWELL:   If the Court pleases, I should not be too much longer.

GLEESON CJ:   We will resume at 2.00 pm.

AT 1.02 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.02 PM:

GLEESON CJ:   Yes, Mr Maxwell.

MR MAXWELL:   If the Court pleases.  Your Honours Justice McHugh and Justice Gummow were asking about context.  We will supply a full set of materials within 14 days.  Having made that commitment, can I draw the Court’s attention to what Justice Kiefel said – there is no doubt where your Honour Justice Gummow recalled that there was a committee – I beg your Honour, it was Justice McHugh who mentioned the committee – at page 182 her Honour dealt at some length with both the history and the context, and in particular starting at paragraph 34 line 30:

Regulation 4F was inserted . . . 1996 -

there was an explanatory statement which, of course, will be in our bundle, identifying the Port Arthur tragedy as the catalyst for a revision of “effective national firearm controls”.

Now, I will not use the time to read any more of that, but your Honours will see there was a meeting of the Ministers, there was an explanatory statement from which a quote appears at the bottom of that page.  The next paragraph, one over the page, 36, talks about the position before the 1996 amendments which confirms what Justice Callinan said that there had always been a strict regime with respect to handguns, and there had always been a prohibition subject to a statement of authorisation from the police in the relevant State.  Then there was some discussion in the process of proceeding towards the form of the regulations and paragraph 38 makes that same point:

The Explanatory Statement to the 1996 amendments said that ‘the requirements of Police authorisation test are identical to the previous requirements for the importation of handguns and certain categories of “exempt firearm”’.

So that although this was a new look at gun importation, relevantly handguns were as stringently controlled before that disaster as after, and there is a note that a submission was made by us on the appeal that the relevant State should be read as referring to the State in which the goods would be used, in which event the statement should have been from the Queensland Commissioner.  That is, of course, the submission we have made here.

Her Honour notes that the explanatory statement is equivocal about that, referring as it does to both the State into which they are imported and the State in which they are to be used.  At all events, that is as far as the discussion of context goes, but it goes some way towards at least describing the context.

Her Honour also notes that there is not a definition of “importer” in the Act or in the regulations, and the word is used quite infrequently in the Customs Act, it would appear, because “owner” is the critical category with its very broad definition.

Might I, to complete the support for our submission on that count, take your Honours to ACE Customs (1991) 104 ALR 463, which Justice McHugh mentioned? It is No 9 on our learned friend’s list, and your Honours will see this was only about who was an owner for the purposes of the Act, but it is instructive for what it says about the different categories of agent. If your Honours would go to page 466, and there was a question of the power of the collector to demand documents. Your Honours will see there is a reference again, as there was in Darch, to the statutory definition of “owner”.  His Honour sets it out and then says:

This definition is not an easy one to apply.

It is certainly true that a licensed Customs agent may, for some purposes at least, be treated as if he were the owner of the imported goods –

and then there is a reference to 183 which is also mentioned in our submissions:

Nevertheless, the word “owner” is so strong a word indicating proprietary rights that I cannot accept that it is intended to impose the obligations of an own upon any person who with authority does any act in relation to imported goods.  As Mahoney JA . . . said in . . . Darch –

and then there is a reference to the passage that we have taken your Honours to.  The next paragraph is the important one:

The definition therefore encompasses importers of all types, whether they have the legal ownership of the goods or are merely the persons in Australia to whom by arrangement the goods are consigned or who otherwise have the control of the goods.  Like Mahoney JA, I do not read the word “owner” as defined as referring to every person with authority who has anything to do with the importation of goods, whether it be unloading the same from a ship or aircraft, transporting the goods to a warehouse or transporting the goods when released from customs control to the importer.

We make the same point as we made about Darch which is this.  Twice it has been said that there are complexities about a provision which expressly includes an agent, and that there are refinements as to which classes of agent, which persons having authority in relation to the importation would or would not be regarded as intended to be encompassed within the notion of “owner”.

That, we respectfully submit, supports the argument that to imply into the definition of “importer” a separate reference to the agent of an importer would create all those difficulties with no assistance from any express language.  In short, because there are so many agents who act in respect or can act in respect of an importation it is not a topic which would be embarked upon without clear definition, apart from the conceptual obstacle – I withdraw that, in just the same way as it has been seen to throw up quite difficult questions in the context of “owner”.

But on the argument for the companies in this case, the respondents, there can be no ground of distinction between the airline which brings the goods in and the Customs agent, which was called “FOB Customs (Vic) Pty Ltd”, and that appears on the entry at AB68, and Granite Arms.  Those three each played a part in the bringing in and each of them, if the argument for Granite is right, is an importer in respect of these goods.

Applying the Acts Interpretation rule, if there are then four importers, Omeo, Granite, the airline and the Customs agent, then each importer should have had an authority, and there is no ground of distinction between them, indeed, the airline has a much more significant role in the bringing in than does Granite, and if one had to choose one would choose the airline, and yet it cannot have been the intent of the regulation that Korean Air have an authorisation to possess the goods in Queensland.

GUMMOW J:   Any sight yet of the air documents?

MR MAXWELL:   Yes, your Honour, I am just coming to that.  That corollary of the argument, in our respectful submission, is significant.  If every importer must comply, then all of those four who would be importers on the respondent’s arguments must comply, which shows from quite the opposite end why it is an absurd construction to contend for.  Your Honours, I will hand up a copy of exhibit 15 which is the air waybill.

GLEESON CJ:   Thank you.

MR MAXWELL:   I am sorry, I have not provided enough copies, I do not think, have I?  Apologies.  Your Honours will see ‑ ‑ ‑

GLEESON CJ:   This, I presume, is the front of it.  I would guess there would be some printing on the back, is there?

MR MAXWELL:   Yes, your Honour.  This is exhibit 15, so this is in evidence, though not in the appeal book.

GUMMOW J:   Is it the whole of exhibit 15?

MR MAXWELL:   I do not think it is, your Honour, no, but it suffices for present purposes to answer the question your Honours were putting to me which is who does it identify as the consignee and, as one would expect, it identifies at point 2 to the left‑hand side, Granite Arms, and it is undisputed that Granite Arms was the consignee in respect of these goods.  As I am instructed, before Customs can release goods two things are required:  one is the production of the waybill, which is this, and the other is the production or the existence of an authority to deal. which is a separate concept dealt with in section 71B of the Act.

GLEESON CJ:   Is an air waybill a document of title to goods?

MR MAXWELL:   Yes.  Is your Honour saying it is a document which entitles the holder to possession ‑ ‑ ‑

GLEESON CJ:   Like a bill of lading?

MR MAXWELL:   Yes, I understand it to be the equivalent of a bill of lading, your Honour, and the answer I gave to your Honours before seems to be right that if Omeo turned up and said, “No, they are ours”, Korean Air would say, “Well, you do not have the waybill, and you are not Granite Arms, we will not deal with you.  We deal with the consignee.  That is our contractual obligation”, which would not affect anything in our argument.  That is exactly what you would expect to happen, but as between Omeo and Granite, Granite would be bound to deal with the goods as directed by Omeo.

GUMMOW J:   Section 71B ‑ ‑ ‑

MR MAXWELL:   Of the Customs Act which is headed “Authority to deal with goods entered under section 71A”, which deals with the entry for home consumption:

An import entry advice . . .

(a)      must be given to the owner of the goods –

which, as your Honours now know is a very broad term and would include an agent –

and

(b)      must contain:

(i)       a statement . . . that the goods are cleared for home consumption -

Your Honours, Secon Carriers is referred to and explained in paragraph 31 on appeal book 96.  It is the affidavit of Mr Owen of Omeo Way, exhibiting an email:

giving permission for the shipment to be moved to Secon Carriers of Altona, Melbourne.

It is merely a storage facility.  The goods were still under Customs control and they were moved to that storage facility for repairs.

If I might deal, in conclusion, with two matters arising from our learned friend’s submissions - do your Honours have the written submissions ‑ ‑ ‑

GUMMOW J:   We do not have exhibit 24 referred to at page 96, paragraph 31.

MR MAXWELL:   I think for safety we should give your Honours all the exhibits.  If your Honours would go to paragraph 9 of our learned friend’s submissions, and the assertion in the last sentence of that paragraph at line 9, the respondents say this:

The scheme of control established by the Customs Act and Regulations, in particular, with respect to prohibitions, could not operate sensibly if the importer was identified only as the one person whose commercial enterprise is the motivating reason for the goods entering the country.

In our respectful submission, that assertion is completely unsound.  There is no basis for saying that the scheme could not operate sensibly on the basis for which we contend.  On the contrary, we submit, with great respect, it can only operate sensibly if the importer is identified as the person by and for whom the goods are brought into Australia.

Next, if your Honours would look at paragraph 11, the respondents again establish a straw man in order to knock him down.  It is said that our case, or my client’s case:

must be based on the assumption that Granite, having received the goods after their arrival in Australia, would then dispose of them in some manner that was unlawful.

Our case makes no such assumption.  We impute no unlawful intent to Granite whatever.  All we say is that Granite was not the importer, and accordingly, a production of its own authorisation to possess was irrelevant to the regulations.

Finally – and I have mentioned this before but since your Honours are on the page – let me draw attention to 13 and 14 which is straw man number one.  This is the beneficial owner red herring.  It said quite incorrectly that our:

principal argument . . . is that the police authorisation test can be satisfied only if the ultimate beneficial owner of the goods provides the requisite police authorisation -

and 14 makes the same submission.  I have already submitted to your Honours that that is not the case at all, that an importer, that is to say, the person by or for whom the goods are brought in, can be in one of a number of relationships proprietary and otherwise to the goods, and in all the examples I gave there would be no beneficial ownership in the importer but that does not affect that person’s status as importer.  If the Court pleases.

GLEESON CJ:   Thank you, Mr Maxwell.  Yes, Mr Walker.

MR WALKER:    Your Honours, the appellant’s argument is one which says that the common law of agency and the relation of agent and principal and what might be compendiously described as the character of actions done as an agent will be decisively informative of how to interpret the particular words of a Commonwealth regulation.

It may be accepted, at least as either a starting point or staging place in the interpretation of those words, that commonly understood or commonly frequently used notions of the common law in relation to property in particular will be informative of statutory provisions which either affect or attach to questions of property.

In the course of doing so there will be a wide class of such common law or judge‑made rules to be attended to.  One of them is evoked by my learned friend’s repeated references to the capacity of Omeo to demand from Granite actual possession of these goods.  Of course, if possession by Omeo at the place where they demanded possession to be handed over were in breach of the criminal law of that place, then by a common law that is a judge‑made rule, there will be no such relief granted.  In short, there is no absolute right to possession against an agent if, for example, actual possession by the principal be illegal.

McHUGH J:   Omeo could not have taken possession in Victoria?

MR WALKER:    Your Honour has anticipated the point.  This is Commonwealth enactment by delegated legislation which has been construed.  As your Honours have seen the substantive provision of the Act is one which uses the abstract noun.  It talks about prohibited importation being a narrative in the history of goods existence which will bring about a status or character of those goods that leads them to being first prohibited, and second, thus forfeited.

The notion of importer is, of course, always in the abstract noun “importation”, but for the reasons that we have put in our written submissions by reference to the admittedly not directly analogous circumstances thrown up by the case law to which we have drawn attention, for those reasons it does not follow that it is only an ultimate beneficial owner, that is, for example, in a classic case a purchaser from an overseas vendor who might be called the exporter who will be an importer.

But for present purposes what is critical, in our submission, is that this is Commonwealth legislation, that is in the Act, authorising regulations which by delegated legislation happen to impose something by reference to State or Territory legislation as one of the negative conditions of being a prohibited import.  At the heart of this case is how a court ought to go about interpreting those words of Commonwealth delegated legislation in Item 4 of Part 1 of Schedule 6 of the Regulation, to which your Honours have been taken, when they refer to legal consequences brought about by a class of law making, and it is a class of law making which is State or Territory. 

There is another abstract noun.  You have to hold a licence or authorisation according to the law of the relevant State or Territory to possess the article.  In our submission, bearing in mind that this is delegated legislation in relation to international trade controlling, that is, conditional in prohibiting importation ‑ ‑ ‑

GUMMOW J:   No, the prohibition is absolute, and it may be lifted if certain criteria are satisfied.

MR WALKER:   I am sorry, your Honour, that is what I meant.

GUMMOW J:   That is how the Commonwealth Act worked, and the criterion for lifting the prohibition need have nothing to do with the reasons for its imposition in the first place, constitutionally.

MR WALKER:   Quite so.  The condition could be of a kind that could not possibly be directly regulated by the Commonwealth Parliament.  I entirely accept that, your Honour.  Indeed, I draw upon that because of the device – I should not use that word ambiguously – because of the legislative approach taken, including the political context to which Justice Gummow has already referred, was to shape one of the conditions by reference to State or Territory legislation, no doubt including delegated legislation.  They did that by words which remain words of Commonwealth enactment, which require to be interpreted against the context provided immediately by their own words, that they are picking up – not in a manner like section 79 of the Judiciary Act, but picking up by requiring there to be examined this genus of “the law of relevant State or Territory” with respect to licence or authorisation to possess the article.  Now, the first point we make of course is that those are words which are apt to include a variety of ways in which somebody may be licensed or authorised to possess an article.

GUMMOW J:   Well, the question is, what is the connection between “relevant” and “possession”.

MR WALKER:   Yes, that is exactly the question.  In our submission, there are two directions which converge at the same point which support our argument.  The first is the basically – I do not mean unqualified, I mean the basically territorial reach of the criminal law concerning conduct in each of the law districts in Australia.

GUMMOW J:   But you are looking at it at the time of entry, are you not?

MR WALKER:   Yes.

GUMMOW J:   And that will be in a State or Territory.

MR WALKER:   That will be by definition in just one of them.

GUMMOW J:   So is that not the relevant State or Territory?

MR WALKER:   Yes, it is.  That is the first point.

GUMMOW J:   So is it not here Victoria?

MR WALKER:   Yes.  The second one is then “possess”, and we say that also, seen in the context, both in the immediate textual context – what these words are referring to – plus the evident purposive nature of this delegated legislation, and of the referred to State or Territory legislation, the combination of the two, is to hold that “possess” will be something one does with a gun notwithstanding you have, for example, an employer or a principal.  Can I elaborate that second point first.

GUMMOW J:   But is not the theory that in the State or Territory in which there is the first entry into Australia, there will be attached State or Territory legislation, we know ‑ ‑ ‑

MR WALKER:   Yes.

GUMMOW J:    ‑ ‑ ‑ and that will require a licence for possession.

MR WALKER:   That is right.

GUMMOW J:   If the article is then taken elsewhere in Australia to another State or Territory, again as we know, some State or Territory legislation fixing upon possession will operate there.

MR WALKER:   Yes, and one can go further.  There will probably be two; namely, there will be the legislation of the place where you are licensed - and now we can descend to the facts of this case - to be a dealer, which will control to whom you can dispose of such objects.

GUMMOW J:   No.  The State legislation will prohibit possession, will it not, unless you are a dealer?

MR WALKER:   Yes.  I should take it a step at a time.  We start with possession being criminalised ‑ ‑ ‑

GUMMOW J:   That is right.

MR WALKER:   And a number of different classes of persons who are authorised to possess.

GUMMOW J:   That is right.

MR WALKER:   In order to deal you have to possess, but you do not have to deal if you possess.  So dealers are people who, like other people, need a licence to possess, and a licence to deal will include the requisite possession.  In this case, Victorian law could be expected by those who enacted this Commonwealth delegated legislation to have a set of controls, by prohibition and a conditional permission, in relation to possession, carriage, use, dealing – which will include both acquisition and disposition.  That law would continue to govern whoever was authorised under Victorian law to possess when they came, for example, to deal – by way of handing over, for example – to somebody else.

Subject to problems that do not arise in this case in relation to section 92 of the Constitution there will be, therefore, a patchwork – all the seams neatly abutting – of State controls, so long as they have spoken to each other, in relation to how goods of this kind may become articles of commerce and may be used for their intended purposes.

Certainly, for my client, Omeo, the Queensland law governs what they can do in relation to possession, being that which happens when there is a transfer to them, a handover to them, as well as subsequent dealing, including disposition of them.

Now, it has been suggested in argument that one of the defects of the position for which we argue is that it will exhibit a gap in a protective scheme across the country, federal scheme in the sense of regulation by States, Territories and the Commonwealth.  One difficulty with this notion of a gap of course is that whether there be any depends upon how one describes what the complete article should look like.

It is not obvious from anything in the materials in this case and, with respect, our researches, which are not complete I regret to say, do not suggest that the political context will provide any answer that favours the appellant’s position because, and this sufficiently appears from the extraneous material to which Justice Kiefel has referred, it is clear that there was a measure of consultation - it might be called co-operation - between representatives of the legislatures of the country following the Tasmanian disaster.

As my learned friend has pointed out, this was not moving from a position of no regulation – far from it – and as it happens in relation to handguns, I think it is since the 30s, there has been very thoroughgoing control of a kind that a number of your Honours have recalled.

The key, in our submission, is that from 1996, the state of affairs, to which the extraneous material that Justice Kiefel was drawn to attention, addressed, and thereafter in 2000, where the then extraneous material shows that there was intended exact similarity to be continued, something called the “Police authorisation test” was required as one of the prerequisites of the conditional permission to do that which would otherwise be prohibited by the Customs Act, namely to carry out an importation of these goods.

Now, it is only a linguistic coincidence, but of course the word “police” in that description brings to mind another use of the word “police”; for example, in American constitutional law with respect to domestic regulation of a thoroughgoing kind of ordinary social and community relationships.  The “Police authorisation test” has been inexactly in my learned friend’s argument, but even more clearly in at least the Victorian material, described as if there was an import permit being issued by the State.  Could I, for example, draw to your attention in the appeal book the Victorian form, which one finds at page 62.  Under the crest of the Victoria police that describes itself as an:

APPLICATION BY A LICENSED FIREARM DEALER FOR ISSUE OF CUSTOMS PERMIT TO IMPORT FIREARMS/PARTS/ACCESSORIES/AMMUNITION

Now, it is of no moment and does not affect any validity.  There is no ultra vires point being taken by us in this case.  If you turn to the next real page, which is page 64, here is the B709A, again grossly obscured; I regret to say, by the binding of an exhibit.  B709A is the designation of a Commonwealth form, a Customs form and that accurately, with respect, sets out the nature of what has to be produced in order to pass the “Police authorisation test”.  What it does – the operative word of that document is to be found following the strike-outs with reference to the Northern Territory and the Australian Capital Territory, namely the next line it says, “hereby confirm”.  That is what is done, but for the purposes of the relevant delegated legislation, “the importer” - one sees that immediately to the left of the name and address box - and then there is a name:

being a resident of Australia or overseas visitor holds a licence or authorisation in accordance with the law of this State or Territory to possess –

So that for the purposes of Customs, and procured by the misnomer of seeking a Customs import permit, Victorian police oblige somebody by filling out this form ‑ ‑ ‑

GUMMOW J:   Well, is the form of 64 a Commonwealth approved form, referred to in the regulation itself?

MR WALKER:   I cannot assure your Honour of that, but ‑ ‑ ‑

GUMMOW J:   It looks like it.

MR WALKER:   I am told that it is.  The case has been fought at both levels below on the basis that it is and, your Honour, I should not put it this way but if you look, for example, at the bottom right-hand corner when looking at that document directly, that is turning the page sideways, you will see one of those common printers’ marks suggesting that this was a form printed as at March 1996, or 8.

GUMMOW J:   Yes.

MR WALKER:   There are other B709As in the book, and everyone has proceeded on the basis that this is the approved form referred to in the regulation.  Certainly, Customs never took the point that there was something defective about any of these forms and it is known, for example, that for the first consignment, Granite Arms’ B709A did work.

McHUGH J:   I notice note 2 there in the right-hand corner refers to:

Enquiries in relation to the importation . . . to be directed . . . at the intended port of entry.

MR WALKER:   I am sorry, your Honour.

McHUGH J:   Page 60 ‑ ‑ ‑

MR WALKER:   Yes, thank you, yes.  In those notes there is no doubt, for good reason, what is nonetheless a supererogatory warning that this is not a statement that authorises the importation of a firearm.  This is, quite literally, a piece of paper with official marks on it which either does or does not comply with the description contained in 4.1, on which I have been addressing.

In order for an importation to comply with the “Police authorisation test” – and that is the expression, “importation”, the abstract noun is what 4.1 one starts with – for that importation to comply there must be a statement which has been given to the importer – that is the critical word at the heart of the disputes between the parties – “in an approved form”, the B709As appear by concession to be that, “by a relevant police” representative – there is that word “relevant” for the first time:

to the effect that the importer holds a licence or authorisation according to the law of the relevant State or Territory to possess the article, or that a licence or authorisation to possess the article . . . is not required under the law of the relevant State or Territory –

Now, the key to the thing thrown up by that last possibility is that Commonwealth law is explicitly recognising, as would follow constitutionally, we submit, that it will be for the law of the place, by which we mean the physical territory, in which the conduct, encompassed by the word “possess” the article is engaged in, to regulate or not that conduct, and if it is regulated by means which in substance amount to licence or authorisation being required, then what is necessary is for the importer to have been given a statement to the applicable effect by the local police, and by local I mean that literally - by the police of the place.

So that in our reading that we respectfully offer the Court, the word “relevant” has to be seen as an epithet used in a piece of law making by the Commonwealth which explicitly looks to the State or Territory laws of the place, and that relevance, in a federation where the States or Territories are basically territorial in their legislative competence – I do not mean without extraterritorial competence, I mean basically territorial – that the legislature which regulates possession of handguns in New South Wales is the New South Wales Parliament, in Queensland the Queensland Parliament, in Victoria the Victorian Parliament, et cetera, that that word “relevant” picks up the notion and puts beyond any doubt that it is the legislature and the legislation of the place where the relevant conduct is being committed.  Now, the conduct ‑ ‑ ‑

GUMMOW J:   What is the relevant conduct?

MR WALKER:   The conduct of course throws up, not least by reason of the circumstances my friend relies upon, but also by reason of other possibilities as well, the possibility of multiple locations, multiple simultaneous locations.  Thus, for example, if it be true to say that one possesses by an agent, if that be true as a general proposition and it may be granted for the purposes of argument, then it may well be that there is possession – for ease of argument I will use natural persons rather than corporations at the moment – possession by a natural person who has never left his native Queensland, by reason of the actions or conduct of his agent in Victoria for goods that never left Victoria.

McHUGH J:   Well, I have doubts as to whether notions of agency throw much light on it, but ‑ ‑ ‑

MR WALKER:   Your Honour, for the reason ‑ ‑ ‑

McHUGH J:   Does not item [4] – it proceeds on the basis that there has been an importation of an article, which seem to suggest that an article has landed in Australia.  That is the importation.  Then that importation is prohibited unless the importer of the article meets certain qualifications.  So is not the issue, when you look at all the facts and circumstances of the case, who can be characterised as the importer of the article?

MR WALKER:   Yes.  Yes.  The key is that this is a person of whom this law speaks as someone of whom it can be posited that they will have an authority – a licence or authorisation from the relevant local legislature to possess.

McHUGH J:   No, that is part of the conditions.  You proceed on the hypothesis that there is an importation of an article.  Somebody has imported it.  You have to say, “Who is the importer?”  It is prohibited unless that person, whoever it is, meets certain conditions.

MR WALKER:   Yes, your Honour.  There are a number of overlapping considerations.  The first is the one that I had not completed trying to develop in answer to Justice Gummow’s inquiry, another one is the one that your Honour Justice McHugh has raised.  The first is how do you characterise, how do you understand the nature of possessing the article for the purposes of interpreting these provisions in their requirement that there be a relevant licence or authorisation to do so, and I was halfway through trying to answer that.

The point your Honour Justice McHugh has raised involves the question of can more than one person be regarded as an importer, and if more than one person can be regarded as an importer of the same good, if more than one can be, what effect does that have on what is required for compliance with the “Police authorisation test”.  I accept that that is not exhaustive, but those are matters that I have to confront and I am trying to do so at the moment.

McHUGH J:   You seem to rely on what I call the conditions as substantive matters, when really are they not an adjectival description of the importer?

MR WALKER:   No.  At least only in the sense that even the word “importer” could be described as, at its heart, adjectival – that is, it describes somebody by a relevant form of conduct or status.  But that is not going to alter the way in which one reads these words.  I start with the proposition that the less immediate, but very apparent context - see Justice Kiefel’s reasons - includes the proposition that firearms in inappropriate hands, and I mean that both literally and figuratively, are dangerous, and one sees in objects provisions of local firearms legislation protestations to that effect, but your Honours would not need persuasion from the Parliament about that possibility, for the reasons Justice Callinan has already pointed out.

From that, one moves to the notion that there was enough cognisance taken by the Commonwealth of the fact and nature, admittedly changeable, of State and Territory regulation of the possession of firearms for them to have actually inserted it in part of their own law – Article 4.1.  Then one asks in the State and Territory legislation, where one is to find the need for and, if the need, the actual application of a licence or authorisation in favour of the so-called importer, to possess the article, in those pieces of legislation what will possession be?  Will it be only that which is enjoyed by what I will call the ultimate principal, or will it be that which is actually necessary as a form of control in order to beat the mischief, the mischief being guns in hands.

In our submission, almost just a glance at some of the local legislation will show that, for example, a common collocation is something along the lines of criminalising the possession without a licence or appropriate registration of the possession, carriage or use – the crime to possess, carry or use, for example.

When one looks at it in that fashion and drills down deeper into some of the local pieces of legislation and finds, for example, that corporations have to answer to the authorities in relation to designated officers, employees, some of the provisions even have fingerprint requirements, it is clear that there is, as you would expect, a physical – that is, a bodily aspect - to possession without which the police control, referred to as being required by 4.1 to be signified in relation to the importer, the police control is in relation to possession, meaning somebody has the guns in their physical control, within their physical capacity to pass it on to somebody else or to use it, because possession will very often be the initial step of dominion over a weapon on the way to then carrying it and then using it.

For those reasons, this notion of holding a licence or authorisation according to the law of the relevant place to possess the article is a notion which, in our submission, read in this protective scheme that the appellant relies upon, that will require, as a condition of importation being permitted, that Customs know that the person is going to actually have physical control of it, is entitled to have physical control of it, in the place where that physical control is taken.  The fact that simultaneously ‑ ‑ ‑

McHUGH J:   Well, that argument runs into this difficulty, does it not, that if these goods landed in Melbourne, as they did, but your client had an authorisation in Queensland but not in Victoria, the terms of 4.1 would not be satisfied.

MR WALKER:   It is not a problem, for this reason.  It is only a problem if there is only one importer.  What your Honour has raised is the possibility that on an appellant’s reading of this, Australia has, without actually having made it explicit, rendered it impossible to import firearms into the country except via a port in which you hold your – in the same place that you hold your licence.

McHUGH J:   Yes.

MR WALKER:   Now, that is a possible form of control, but it would lead to some rather arbitrary results - given the effect of weather, for example, on aeroplanes.  Diversions between Sydney and Canberra are not uncommon, but diversion between Sydney and Brisbane might not be impossible.  For those reasons, one would look for, when construing a forfeiture provision, or provisions which are informative of forfeiture provisions at the heart of them, one would certainly not lightly or by unexpressed implications find that we have a requirement that you cannot import goods except through a port in the same law district as issues your licence.

Now, I am not able to tell your Honours that as it happens the State and Territory patchwork of firearms regulation uniformly works at all or uniformly, for example, requires residential conditions for the issue of licences.  I do not say that.  But the mere possibility of that being so – and we know from the nature of the power of the respective Parliaments that that is so – shows that one would certainly not lightly reach the position that if you are a Queensland licensed dealer, for example, you are bound to import only through one port.  The nature of international trade in which Australia is a relevant entity, and the nature of interstate trade in which there are certain guarantees, would argue against such a reading, and the appellant does not seem to advance it.

GUMMOW J:   Who was William Henley in this drama?

MR WALKER:   He is a Customs ‑ ‑ ‑

GUMMOW J:   Customs officer.

MR WALKER:   Customs officer, with whom there were ongoing dealings of a kind that your Honour has drawn to attention.

GUMMOW J:   That is right.  And who was Coral Bevis?

MR WALKER:   She was an employee of FOB, Granite’s Customs agent.

GUMMOW J:   So these goods were seized ‑ ‑ ‑

MR WALKER:   The second consignment was seized, yes, your Honour.

GUMMOW J:   When they were in the hands of Secon Carriers.

MR WALKER:   Yes.  I have misheard your Honour.  I do not have those unreproduced items of correspondence.  I think that they are two – both officers of Customs, I am sorry, your Honour.

GUMMOW J:   Both of them?

MR WALKER:   And they are, as your Honour sees in those passages, they are dealing between themselves about what can be done by way of what I will call conditional release or transport of the goods.

GUMMOW J:   So these goods never reached the possession of anybody in Australia?

MR WALKER:   No.  That is why I am instructed as to the first consignment which were released, there are entries in ‑ ‑ ‑

GUMMOW J:   What does the evidence show as to the arrangements between the two parties on your side as to what was to happen?

MR WALKER:   Your Honour, that evidence is the two passages.  One drawn ‑ ‑ ‑

GUMMOW J:   It does not tell you.

MR WALKER:   I am sorry, your Honour?

GUMMOW J:   It does not tell one what was to happen.

MR WALKER:   No, that is so.  They are singularly uninformative.  We have the two sources, the second of which is Granite’s affidavit, and the fact is that in terms of place of delivery, time of delivery, transhipment, compliance if relevant with Victorian and Queensland firearms regulations, there are no contractual terms to which I can draw attention, apart from those generalised passages to which there has already been made reference.

GUMMOW J:   They do not tell them much at all really.

MR WALKER:   I am not suggesting they do, your Honour.  My learned friend draws to attention as one of those passages, at page 92 - and this with page 127 are the two uninformative passages to which Justice Gummow has been referring - at page 92 there was the reference to the intended wholesaling “to Licensed Dealers throughout all States of Australia” of these goods.  That really only rather points the matter that Justice Gummow has drawn to attention, namely that there is nothing in the record about the contractual arrangement or the understanding if there be not a contract, between my two clients as to how they would actually be physically handled, delivered and, for that matter, otherwise commercially dealt with.

CALLINAN J:   Mr Walker, at page 127 Granite seems to be disavowing any proprietary interest of any kind in them.  It does not say that expressly but that seems to be clear.

MR WALKER:   Your Honour is, with great respect, absolutely correct.  While I am on the point I should draw to attention what seems at 128 an inaccuracy in this affidavit at about line 32, and in answer to Justice Callinan, this of course is the end of a passage of repeated protestation of no trace of ownership.  The form in question is the one that one finds at 132.  Your Honours, I feel more than usually silly in pointing this out to you.  I have had shown to me a version of this document at 132, which again, as your Honours have seen, is physically slaughtered by the binding and the like, which suggests that in fact on the original the word “owner” – and your Honours will not pick up this at all – probably does ‑ ‑ ‑

GUMMOW J:   We saw another version, did we not?

MR WALKER:   Page 68 is another version which makes good what I have just said.  One sees at line 15, “OW” – obscure – “R”.  I am instructed - I concede that should read “owner”.  So I just draw to attention apropos Justice Callinan’s inquiry of me, yes, it is true there is a disavowal to be read from all of that material.  It goes a bit far in relation to what the documents actually show, but that really only backs up what is already to be interpreted from the exiguous evidence, namely that as between my two clients the first of them, Omeo, rather than the second of them, Granite, was at all times subject to the law entitled to dispose of these goods as owner, including for that purpose to take possession – again I stress subject to the law.

CALLINAN J:   Mr Walker, I am sorry, I missed it.  What happened to the first consignment?

MR WALKER:   It was imported, we say, by Granite, transported to Queensland to my other client, Omeo, including – and I am saying this from the Bar table – the requisite statutory registration steps required by Victorian law along the way, Victorian law having certain requirements in relation to notification to police.  They then had an obligation to enter into a register.  They then become registered firearms and then there must be further notification of dispositions, disposals, of those firearms by a dealer.

CALLINAN J:   That notification would be to the Victorian police?

MR WALKER:   Yes.

CALLINAN J:   Is that the evidence?  It is common ground anyway, I take it, that that is what happened.

MR WALKER:   I cannot say that is the evidence but that appears to be common ground.  The second consignment never got to be registered because they never got into the possession of Granite.  As one can see, they shifted location only at the behest of and pursuant to arrangements by Customs.

GUMMOW J:   But they were still under the control of Customs at the time they were seized.

MR WALKER:   Exactly.  It is for those reasons that we dispute that here there is a gap.  The very words in question in 4.1 bespeak a Commonwealth acceptance that there will be my word “local” for their word “relevant” regulation of what is called possession.  The first thing we would point out is that in order to avoid the oddity of possession which does not involve coming anywhere near someone’s hand, that is possession by a principal through an agent, particularly in a federal nation where the principal might be right outside the State whose law requires a licence for possession, particularly if the principal was in a State where you did not need a licence for possession, it would be even more odd, and then you add that the criminal offences in question locally naturally for purposive reasons use “possess” to describe that which is taken by an agent as well as by a principal, then the words in 4.1 are asking whether somebody who answers the description of “importer” is available who has a licence or authorisation under that place to possess it in that place.

GUMMOW J:   Mr Walker, I am probably being slow‑witted, but what do you say Granite did that made it an importer?

MR WALKER:   It was the consignee to whom the goods were consigned and who tried to receive it as consignee, full stop, your Honour.

McHUGH J:   Some of the difficulties of the section are overcome if you treat the term “importer” as meaning the causal agency of the landing of the goods in the country.

MR WALKER:   Your Honour, that would still, with respect, beg the question of whether there can be more than one such.  You need a consignee, we would submit.

McHUGH J:   That is so, but it may be the consignee is irrelevant.  If you say, “Who caused these goods to come?  Who was the person that imported them?”, in colloquial terms there is nothing unusual in talking about the owner as being the importer if somebody says to me, “Where did you get that car from?”, and you say, “I had it imported from South America or the United States”, even though it may have gone through various steps.

MR WALKER:   Your Honour, take that as an example, that would be perfectly good colloquial English, “I imported it”.  That is probably perfectly good colloquial English for an arrangement by which your car dealer was the consignee who happened to have before he took the risk of the purchase and shipment the guaranteed on‑sale to you.  Your money and your interest in purchasing it – indeed, your commitment by the contract of on‑purchase – was the reason why there was an importation.

Nothing, with respect, would suggest that the regulation of importing a motor car would be regulation to which your car dealer, your vendor, is immune.  It might be that you would both be subject to it but certainly the car dealer would be the person dealing as consignee, having bought it from the exporter, having been responsible for arranging the carriage, being the person on whose behalf clearance and any relevant statements upon clearance are made to Customs.  They wear the appearance of importer.

That does not say that the local language is to be deprecated.  It simply shows that when one is talking about a statutory context where it is “importation”, the abstract noun, which is at the heart of the matters being regulated, that one, not surprisingly, might find more than one person involved in a regulatory sense as an importer.  The notion that only the Mr Big in a prohibited drug import is the importer and not the middle echelon person taking a commission for the successful exercise who actually arranges the landing via the so‑called mules and that that person is immune from regulations on importing of drugs because, but for Mr Big’s interest and money nothing would have happened, is to be rejected, in our submission.

McHUGH J:   But 4.1 seems to assume there is only one importer.  It uses the definite article “the”.  It does not say “an importer”.  It does not say, “If an importer of the article has been given a statement”.

MR WALKER:   But we know that it has to deal with joint ventures, it has to deal with partnerships and it has to deal with whether or not ‑ ‑ ‑

GUMMOW J:   That is different.  That the one entity really.

MR WALKER:   That is a colloquial point though.  To treat a joint venture and a partnership as one entity ought not disguise the fact that it is more than one person.

GUMMOW J:   They are performing the same activities at the same stage in the chain.

MR WALKER:   Entirely so.

GUMMOW J:   That is not what is being put to you.

MR WALKER:   No, but the start point of my answer is that we know that this is an expression that will include more than one person if only for the somewhat special cases of joint ventures and partnerships.  The next step is whether there is anything in the context or the text to exclude the prima facie reading of it so as to embrace a plural.  In our submission, without assuming the conclusion about which we are arguing at the Bar table, one does not find any such indication.

GLEESON CJ:   Whether the argument against you is right or wrong, it must come down to an argument about form against substance, must it not?  Your opponent says Omeo was the “true” importer, whereas you say all the cards are on the table, Omeo said to Granite, “We don’t have the necessary authorisation to permit us lawfully to import these goods.  Will you kindly import them for us”, and Granite said, “By all means”.

GUMMOW J:   Think carefully about that.  Granite is shown as the consignee on the waybill we now have but we know they were not paying Korean Air.

MR WALKER:   Yes.  I have correctly agreed with the Chief Justice.  That is that the facts that the Chief Justice has summarised are, whether regrettable or not, they are the facts.

GUMMOW J:   No, …..arranged the importing.  That is not right.  You only import by paying Korean Air some money.

MR WALKER:   It depends what you mean by “arrange” but yes, your Honour, the facts are all there.  The facts are that - my learned friend says “At the last moment”.  There is no point in us resisting that.  When there was this so‑called rescission in Queensland, that is they ceased to confirm that Omeo held the licence or authorisation, Omeo did hold and continued to hold a licence or authorisation, it is the confirmation by the Queensland police which was withdrawn.  So that Omeo could not pass in Queensland the police authorisation test.  That did lead – how could I possibly resist this?  The Chief Justice, with respect, has put it correctly.  That did lead to the events, it is the entire explanation for why there was a change of the port from Brisbane to Melbourne because Melbourne was a place being in Victoria where Omeo’s friend, Granite, could pass the police authorisation test as consignee.  The question is does that mean that they were the importer being consignee?

GUMMOW J:   When you say the consignee, what does that in fact mean?  The party is shown as consignee on this waybill as a matter of contract between Korean Air and Granite, I suppose.

MR WALKER:   Yes.

GUMMOW J:   Are we able to look beyond that?

MR WALKER:   Your Honour, we would prefer not to.

GUMMOW J:   I am sure.

MR WALKER:   But we have all the facts and the facts are precisely ‑ ‑ ‑

GUMMOW J:   The facts are that Granite was lending its name on the waybill.  Someone else was paying for it.

MR WALKER:   That is a form of speech and that may not be in law very different from many consignees where there has already been an on‑sale and there is no commercial risk to the consignee.

McHUGH J:   I have just sent out for a case called Keith Henry at the end of the 1950s where certain organisations were given import quotas and they traded in them.  The case came up to this Court as to whether it was held on trust on Keech v Sandford‑type ‑ ‑ ‑

GUMMOW J:   LNC v BMW is in the later one.

MR WALKER:   Yes, I am familiar with that.  I do not think, however, your Honour, that will cast light on ‑ ‑ ‑

McHUGH J:   I was just going to have a look and see whether the Court had anything to say about who was the true importer for the purpose of the quota.

GUMMOW J:   Customs seemed to have acknowledged in those cases that these quotas could be held on trust.

MR WALKER:   Yes.  In one sense of course, though this has not been argued, there may have been a trust in this case in relation to our physical possession.

GUMMOW J:   It might be an illegal one, so I would be a bit careful.  What about page 68, “OWNER:  GRANITE ARMS”?

MR WALKER:   I am sorry, that is the one I drew to attention.

GUMMOW J:   Yes, I know. 

MR WALKER:   I drew attention to the word “owner”.

GUMMOW J:   I know you did, but someone has misadvised Customs, have they not?  That is a Customs‑generated document, is it not?

MR WALKER:   This is a computer-generated document for which our agent, that is Granite’s agent, is ultimately responsible.  That is the first thing.  The second thing is that “owner” under the Customs Act does include more than just what I will call the ultimate beneficial owner, but I accept entirely that there was an inaccuracy in the affidavit and without disclosure, somebody in Customs may have believed something which was not true.  It does not mean we uttered a misrepresentation and no point of it has been made below.  That is, as I say, why I draw it to attention.  The affidavit might have left your Honours with the impression ‑ ‑ ‑

GUMMOW J:   I am just trying to find out what it is you say made you the importer beyond this waybill.

MR WALKER:   Your Honour, we are the consignee on the waybill by reason of an arrangement to be so with my other client, Omeo.  That is the whole of the conduct which either does or does not ‑ ‑ ‑

GUMMOW J:   Make Granite the importer.

MR WALKER:   Yes, your Honour.

McHUGH J:   If you look at page 69, for example, right up in the top, there is only a few lines there.  It talks about “AGENT ON BEHALF OF IMPORTER”.

MR WALKER:   That is the outfit called FOB. 

GLEESON CJ:   Mr Maxwell rather hurtfully described the document on page 66 as a false invoice.  Do you accept that description?

MR WALKER:   No.  The fact that the payment had been made is actually, at least on 66, recorded.

GLEESON CJ:   Did that only cover the second consignment?

MR WALKER:   Yes, your Honour.

GLEESON CJ:   Where do we find the corresponding document in relation to the first consignment?

MR WALKER:   Your Honour, I do not think it is here.  I think that is the invoice which would more appropriately have been stigmatised by my learned friend, the one at 52.

GLEESON CJ:   And that is for the first consignment, is it?

MR WALKER:   Yes.  We would resist falsity.  It has not been an issue in the case at all.

McHUGH J:   But that invoice does throw up how you probably could have got around this problem.  For example, if your client had sold the goods to Granite with a term of the sale being that Granite would on‑sell it to you, there would be no problem.

MR WALKER:   No, which rather suggests that if you are the consignee, what matters is that you are the person taking responsibility for accepting it in Australia.  That puts you at the heart of, the forefront of, the queue of people who might be the importer.

CALLINAN J:   Mr Walker, we do not have the Victorian legislation under which the second respondent was obliged to notify the Victorian police and which presumably would have enabled the Victorian police to notify the Queensland police of the dispatch of the goods.  Why I am asking that is that it is a possible view that an understanding that there would be national or interstate co‑operation would take care of the sort of situation which Justice McHugh just referred to.

MR WALKER: If it is not left to understanding, there has to be – it may be left to an arrangement intergovernmentally as to the sharing of information, but a disposal under the provisions of Part 5 of the Firearms Act 1996 (Vic), in particular section 116, which is specifically for notice of removal from the State. There are provisions by which the register of Victoria receives such information. There are exceptions to that.

CALLINAN J:   Is there any further provision as to what that person is to do with the information on an interstate sale?

MR WALKER:   No, it just goes to the register, but there is an exception for somebody who has “an inter-State permit to acquire”.  On my instructions, these do not apply here but I am answering your Honours about the scheme, which would mean of course, because acquisition and disposal is of specific firearms with their identifying numbers, that would mean that the interstate authorities already knew of the particular firearm travelling to there.

CALLINAN J:   How would Queensland know about this?

MR WALKER:   An individual in Queensland would require a permit to acquire, which is sought and obtained ‑ ‑ ‑

CALLINAN J:   Even with an interstate transaction?

MR WALKER:   Yes, and a Queensland dealer has to keep a register of all acquisitions.

CALLINAN J:   Have you given us a reference to all of those provisions?

MR WALKER: Yes, your Honour. The particular ones to which I am referring then are in Part 5 which commences at section 113. I was then referring in particular to section 116.

GLEESON CJ:   Mr Walker, in relation to page 52, was that amount of $48,180 due?

MR WALKER:   Yes, your Honour.  What my friend calls falsity is the notion that that which is represented to be required must have come from our own funds but, in our submission, that is not true of any invoice.

GLEESON CJ:   How come the second consignment was – what about the date of that invoice?

MR WALKER:   Your Honour is referring to the 7 May 2000 shipping?

GLEESON CJ:   No, the date says - these invoices presumably were created, if I can use that expression, very late in the piece because ‑ ‑ ‑

MR WALKER:   Yes, your Honour.  They are after the revocation of the confirmation of authorisation, which is ‑ ‑ ‑

GLEESON CJ:   Were there earlier corresponding invoices addressed to Omeo Way?

MR WALKER:   Can I take that on notice, your Honour.  There was no finding about that.

CALLINAN J:   I thought the total purchase price for all of the guns was paid before any of them arrived in Australia.  Am I wrong about that?

MR WALKER:   Certainly the one at 52 stipulates that.  The one at 52 is to be “T/T one week before shipment”.

GLEESON CJ:   But the one at 52 only came into existence long after shipment, did it not?

MR WALKER:   Yes, your Honour.

GLEESON CJ:   That is why I was wondering whether there had been earlier invoices covering these two consignments addressed not to Garnet Featherstone or Granite Arms but to Omeo Way.

MR WALKER:   Understandably, with respect, your Honour.  I do not know why, but your Honours will find a chronology in the court below and at 136 you have 2 January 2000 receiving a sale contract for the purchase of 3,000 pistols, page 137 you have 19 January, the payment of $US43,000‑odd.  I do not have invoices referred to in that chronology.  Then there is a further sum on 8 March of $US33,000‑odd and then the first of the shipment arrives five days later.  Then there is a further sum sent by Owen Guns of $67,000‑odd on 19 April described as “in further part payment”.  On 7 May there is a shipment of 2,000 pistols.

GLEESON CJ:   Mr Maxwell describes your client as an agent.  I wonder whether another way of describing your client might not be nominee.

MR WALKER:   They are not of course mutually exclusive.  The arrangement could be described as one by which Granite was designated by arrangement between it and Omeo to be the consignee of goods because, as things then stood, Omeo could not be the consignee in Brisbane of those goods.  That is a description which might attract the summary term “nominee” but it does not exclude agency.

GLEESON CJ:   It was designated, as appears from pages 52 and 66, as the purchaser of the goods.

MR WALKER:   Yes.

GLEESON CJ:   We know that that designation was false.  Why was not the designation as consignee in the same condition?

MR WALKER:   Because a consignee carries with it no content other than being the person to whom goods are consigned for whatever reason or by whatever commercial arrangement the right to receive as consignee came about and regardless of the obligations binding that person upon receiving the consignment.

GLEESON CJ:   We know that it came about because Granite Arms was the entity to whom Omeo Way directed Wong Long Development to consign the goods.

MR WALKER:   Yes, your Honour, that is exactly the case.  There is no element whatever of voluntary commercial entrepreneurial conduct by Granite.

GUMMOW J:   But Granite is nevertheless an importer?

MR WALKER:   Because they were consignee and because of the importance of consignment for the entry of goods into Australia, they are the importer because the text which I have been addressing is text which supposes that whoever the importer be, that is whatever they have done in order to be the importer, they are somebody who may be in a position to be authorised to possess the goods there and then and possess within the meaning of State or Territory legislation designed as gun control, gun control being aimed at possession literally as well as figuratively in the hands of, from which it follows that we are talking about the person who is able to obtain physical control of the articles in the place where the importation ceases, that is Victoria, and this is not a text which supposes that one may import these goods only through ports which are in the State or Territory under whose legislation you hold a licence to possess.  I think, your Honours, subject to check, that completes what I wish to say.

GLEESON CJ:   Thank you, Mr Walker.

MR WALKER:   Would your Honours just forgive me one moment?  Your Honours, there are two parts only in answer to my learned friend.  He used this notion of our argument embracing a wide and unrealistic or counterintuitive class of people as importers.  They may or may not be so ultimately.  However, one example is, in our submission, enough to show that the point was overstated.  Airlines would not be, on the argument we are talking about, importers, because at the same level of common diction there is the expression “carrier” which, in our submission, will suffice to distinguish the role an airline plays in bringing goods in from those - which are played by people involved otherwise in the importation.  That is the first thing.

The second thing is that a number of phrases were used in order to elaborate my learned friend’s argument about the role of agency.  In our submission, ultimately the role of agency does not matter in this argument.  What matters is whether or not Granite can possibly be an importer.  But in the course of that argument he said the following things about their relationship, that Granite Arms was Omeo Way in law – in our submission, nothing, whether in Latin or English, justifies that expression – that Granite Arms could not possess it in its own right.  The expression “in its own right” seems to have content only as meaning shorn of all obligations to others but, in our submission, that is trivially true and does not affect the question; it is still possession.  Finally, that Granite was not doing anything.  It had no capacity in law on its own.  It was doing something.  It was certainly doing something, or attempting to do something, which would be controlled by the criminal law of Victoria, which would not apply to it – of

which it would not fall foul, I should say, because it had the licence or authorisation under the law of Victoria.

As to having no capacity in law on its own, that appears to be an overstatement for the position that emerges because Granite Arms owed obligations, either contractually or by way of the incapacity to assert legal title upon obtaining possession by reason of the preceding arrangement, to Omeo.  That does not mean it had no capacity.  Indeed, capacity in law was necessary for any of those matters to come about in the first place.  May it please your Honours.

GLEESON CJ:   Thank you, Mr Walker.  Yes, Mr Maxwell.

MR MAXWELL:   If the Court pleases.  Your Honours, might I take you to paragraph 34 of our submissions?  I want to deal with the point your Honour Justice McHugh raised about the concept of the causal agency, or what your Honour the Chief Justice characterised as the true importer.

GLEESON CJ:   No, I do not – I said you were appealing to concepts of truth ‑ ‑ ‑

MR MAXWELL:   I beg your Honour’s pardon.  The phrase you used to characterise what we have been submitting.  In 34 we set out ‑ ‑ ‑

GLEESON CJ:   Sometimes in legal argument that word would be an appropriate substitute for “fair dinkum”, and about as informative.

MR MAXWELL:   Yes, your Honour.  To borrow a famous phrase, we say the question here is “Who in law is the importer?”  According to early authority in the wonderfully named case The Matchless from 1822, the importer is the consignor ‑ ‑ ‑

GUMMOW J:   That is Lord Stowell, is it not?

MR MAXWELL:   I cannot recall, your Honour.

GUMMOW J:   Well, he is not a nobody.

MR MAXWELL:   No, well I was putting it as high as I could:

[the person] who sets the venture afloat –

literally in those days –

who directs the port to which, and the person to whom it is to be delivered –

to pick up your Honour’s point about directing who the consignee will be –

and who can stop the goods in transitu.

We discussed ‑ ‑ ‑

GUMMOW J:   He was construing a section of the Navigation Act, was he not?

MR MAXWELL:   That is so.  We have searched, but we draw that to your Honour’s attention, that seems to capture what we understood your Honour to be raising, only in argument, that is the person who is the driving force behind the importation - as your Honour put it, the causal agency - the person who brings it about, who causes it to happen.  We say that is what “the importer” means in the regulation.

We do, with respect, submit that the consignee is irrelevant for this purpose, and there is statutory support for that in the definition of “owner”.  Would your Honours go to page 150 of the appeal book, which sets out the definition of “owner”.  I have already taken your Honours to it but it is conveniently there in the judgment of the learned trial judge.  Parliament includes in the extended definition of “owner”, “importer, exporter, consignee, agent”.

So at least in the view of the Parliament, the time it enacted that definition, “importer” was a different conception from consignee.  It could be both, we accept that, but your Honour Justice Gummow has rightly focused on what was it that is said to have constituted Granite Arms the importer, and the answer properly given by my learned friend is that it was only being the consignee at the direction of the person who set in motion the importation and for whom the goods were brought in.

GUMMOW J:   On the waybill.

MR MAXWELL:   On the waybill, exactly so.

GUMMOW J:   It was named on the waybill as the consignee.

MR MAXWELL:   Exactly so, and on the invoices.  My learned friend says, “We have got an answer to Korean Airlines point.  There is a term ‘carrier’ which would be deemed to be carved out of ‘importer’”.  Well, that is not what their submissions say.  The submissions say that “importer” has its ordinary meaning, it means brings in the goods, as we say.  So anyone who brings in the goods is an importer, and anyone who plays any part in the bringing in of the goods is an importer.  That is the argument, and it must apply to Korean Air, much more so than it does to Granite Arms.

My learned friend virtually conceded that if Granite Arms relevantly possesses in Victoria, that is also the possession of Omeo, Granite being its agent.  If that is right there were two possessions relevantly, but only one of the possessors had authority to possess in Victoria.  So that argument would result in the importation being prohibited as well.

My learned friend says, “Our argument produces some uncontemplated restriction that you could only import the goods into the port in the State where you have an authority”.  That is not the corollary of our submission.  What we say is that the importer must produce to Customs, by itself or its agent, a statement of authorisation to possess in the relevant State.  The relevant State we have always argued is the State in which that importer will have control and disposition of the goods, will possess them.  That would enable you to bring them in at any port, provided the statement of authorisation to possess in the relevant State was produced.  So that is ‑ ‑ ‑

McHUGH J:   The problem with that is that it leaves a gap.  That is why I said earlier this morning that it does not matter which construction you take, it seems to me there are some gaps in the public protection, because suppose in this case Omeo had the relevant approval form but got Granite to act as its agent in Victoria, the policy of the legislation is defeated, is it not, because the goods are in Victoria ‑ ‑ ‑

MR MAXWELL:   In the possession of a person without authority.

McHUGH J:   Yes.

MR MAXWELL:   I understand your Honour’s point, with respect.

McHUGH J:   Yes.

MR MAXWELL:   To which there are two answers.  Our answer is that the policy is protected because they are in the possession of a person who is under the direction of a person having the relevant authorisation, namely Omeo.  Alternatively, the scheme would require both Granite as the immediate recipient and possessor to have an authority in Victoria and Omeo to have an authorisation in Queensland, which again was not the case.

We would say that the first answer is satisfactory; that is to say, since Granite cannot deal with the goods, cannot dispose of them, cannot sell them, it is possessing, it is true, physically possessing on any view.  We have said as a matter of legal characterisation possessing – it is Omeo’s possession, but the answer could only be to extend the requirement there be a possession – an authorisation at both ends, but we say it is sufficient that the possession is as agent for someone who has the authorisation in the relevant State.

GUMMOW J:   What is the relevant State again?

MR MAXWELL:   Queensland being the State ‑ ‑ ‑

GUMMOW J:   Why?

MR MAXWELL:   Well, that is the State ‑ ‑ ‑

GUMMOW J:   In terms of the text ‑ ‑ ‑

MR MAXWELL:   Yes, I understand your Honour’s point, and I understand the force of what my learned friend puts ‑ ‑ ‑

GUMMOW J:   Why is it other than Victoria?

MR MAXWELL:   Well, only that we would submit that the regulation fastens on the location of the importer, the State in which the importer resides, that being the State within which, and subject to whose laws, the further dealing with the goods will be done.  That is clearly Queensland and not Victoria.

GUMMOW J:   You have to get to Queensland.  You have to go through New South Wales if they go by surface.

MR MAXWELL:   That is so and I understand, with respect, the point.

GUMMOW J:   Does not this legislation, at the State level, mesh to secure that situation?

MR MAXWELL:   Yes and, with respect, we do not argue against the point that there would be a policy reason for insisting that they be at all times in the possession of somebody authorised to possess them in the State through which they are transiting.

McHUGH J:   Well, it may be that by necessary implication the onus is put on somebody like Omeo if they had the approved form in Queensland, to ensure that at all stages the goods were in the possession of somebody who was licensed to deal with it, first of all in Victoria and then New South Wales.

MR MAXWELL:   Indeed.

McHUGH J:   In other words, it would not be enough to just get an ordinary Customs agent to take possession of it in Victoria.

MR MAXWELL:   No.  With respect we would agree with that, and we think that is the way the scheme would be worked in practice.  But the one thing it would not permit is them ending up in Brisbane in the hands of the importer who was never authorised to hold them, which is the outcome arrived at in the Federal Court.

GUMMOW J:   Do we know what happened to the seizure and condemnation – the forfeiture procedure in the Magistrates Court?

MR MAXWELL:   No, we do not, your Honour.  It is pending.

GUMMOW J:   It is still there.

MR MAXWELL:   It has been put on hold pending these proceedings.  I do not know that much.

GUMMOW J:   It was held over pending the AD(JR) application, is that ‑ ‑ ‑

MR MAXWELL:   Yes, and it is still held over.

GUMMOW J:   I see.

MR MAXWELL:   What I cannot answer is – it is mentioned by Justice Spender in paragraph 13 at appeal book 151.

GUMMOW J:   Yes, I know.  It says it has started.  It does not say what happened though.

MR MAXWELL:   It has started.  No, and I think that is as far as it went.

GUMMOW J:   All right.

MR MAXWELL:   If, as your Honour put earlier to my learned friend, Victoria is the relevant State because that is the State of entry, as your Honour put it, and it is the State where first possession occurs, then Omeo did not have authority to possess in Victoria, clearly.

GUMMOW J:   I understand that.

McHUGH J:   What do you say about the principle that ordinarily you construe the legislative provision providing for the forfeiture of goods, directly or indirectly, very strictly and beneficially towards the owner of the goods?

MR MAXWELL:   Well, we accept that that is a recognised canon of construction.  It was referred to by Justice Gibbs as a principle of last resort, and we have adopted that and ‑ ‑ ‑

McHUGH J:   That was in Beckwith.

MR MAXWELL:   Yes, and it gives way always to the interpretation based on the intention of the regulation maker, or the legislature.  In our respectful submission, there being no ambiguity, for the reasons we have sought to argue today, the principle does not come into play at all.  That is what we have put in writing.  We accept that it would be there if there were ambiguity, but there is not, in our respectful submission.

My learned friend said there is no gap on their construction which the court so far has upheld.  In our respectful submission, there is a fundamental gap which is this.  The gap, if the court below is right, is that the importer, the person who had bought the guns and was bringing them in and would be wholesaling them to licensed dealers around Australia, did not have the authorisation which the regulation makes a condition of the import not being prohibited.  That is the gap.  That seems to us to be a yawning gap.  The reference I drew to my learned friend’s attention during his submissions to wholesaling in the affidavit of Mr Owen makes it perfectly plain, as has been conceded, the only person who would be doing the wholesaling was Omeo - Granite had nothing to sell.  Omeo would be selling the guns by wholesale which it had imported.

McHUGH J:   It is a bit unfortunate from Omeo’s point of view if your argument is right because by a simple contractual arrangement they could have got around this problem, I think; that is, if they had sold the goods to Granite with a contract of sale containing a condition that upon arrival they would at least have first right of purchase of the goods.  You would have some trouble then, I think.

MR MAXWELL:   I do not think that is right, with respect, your Honour, in that if one is only superimposing on the facts an on‑sale by Omeo to Granite ‑ ‑ ‑

McHUGH J:   No, no.  If Omeo had sold the goods ‑ ‑ ‑

MR MAXWELL:   Before importation?

McHUGH J:   Before importation, but the contract of sale had had a term that upon the goods arriving in Australia Granite would offer the goods to Omeo at a particular price.

MR MAXWELL:   Yes, I follow that, your Honour, yes.  I cannot think of a way around that.

McHUGH J:   No, I know.

MR MAXWELL:   Might I deal finally with the false invoice point?  We submitted that they were false because they falsely designate, or appear to designate, Granite Arms as the purchaser, and we take it no further than that.  My learned friend is absolutely right, this has not been a case run on any issue of falsity, and we do not rely on that.  I just sought to explain what I had said.

My instructions are that there is no suggestion that there were earlier invoices addressed to Omeo before the difficulty arose – or at least we are not aware, that is to say my client, the Chief Executive Officer, is not aware of any.  Mr Owen in paragraph 15 at appeal book 92 says, “As the goods had been paid for”, meaning by Omeo Way, and arranged with Granite Arms, and I have taken your Honours to the contract of sale which is between the Chinese vendor and Omeo Way.  It is that, together with the evidence and the finding by his Honour about the payment by Omeo of the purchase price which, in our respectful submission, is all that is required to make it clear – and I think again it has been ‑ ‑ ‑

GLEESON CJ:   Well, nobody has ever suggested, have they, that there was a novation of the contract?

MR MAXWELL:   No, indeed not.  Just so.

McHUGH J:   Sometimes legal advice is cheap.

GLEESON CJ:   Thank you, Mr Maxwell.

MR WALKER:   May it please the Court, by consent of my friend, I am reminded there was a supplementary written submission, for which I think we needed leave.

GLEESON CJ:   Yes.

MR WALKER:   Your Honours, I hope, have received it.  It concerns the note that you will find in the text of the regulation.

GLEESON CJ:   Do you oppose that leave?  You have that leave.

MR WALKER:   And the simple point was that the words, “eg a firearm dealer” made no sense, provided no useful information unless it contemplated the very position that occurred in this case.

GLEESON CJ:   This is the document that was filed on 20 June.

MR WALKER:   Yes, your Honour.

GLEESON CJ:   Yes, we have that.

MR WALKER:   Your Honours, I had not quite meant to sit down without saying unless your Honours have any further questions, those are the submissions for the appellant.

GLEESON CJ:   We will reserve our decision in this matter.  We will adjourn for a couple of minutes to reconstitute.

MR WALKER:   If the Court pleases.

AT 3.44 PM THE MATTER WAS ADJOURNED