CEO of Customs v El Hajje

The Chief Executive Officer of Customs (CEO) sought to appeal a decision of the Full Federal Court which had allowed an appeal by Mr El Hajje against a decision of a single judge of the Federal Court. The dispute concerned the validity of a notice issued by the CEO under s 263 of the *Customs Act 1901* (Cth) requiring Mr El Hajje to produce certain documents. Mr El Hajje had refused to produce the documents, asserting privilege.

The High Court was required to determine whether the notice issued under s 263 of the *Customs Act* was valid, notwithstanding Mr El Hajje's claim of privilege over the documents sought. Specifically, the Court considered whether the statutory power to require production of documents under s 263 was limited by the common law right to claim privilege, and if so, the extent of that limitation.

The High Court held that the power conferred by s 263 of the *Customs Act* to require the production of documents was not limited by the common law right to claim privilege. The Court reasoned that the language of s 263 was broad and unambiguous, indicating a clear legislative intention to grant the CEO a wide power to obtain information relevant to the administration of the Act. The Court applied the principle that clear statutory language authorising compulsory production of documents will override claims of privilege unless the statute expressly or by necessary implication preserves such privilege. The Court noted that while privilege might be relevant to the admissibility of evidence obtained, it did not prevent the compulsory production of the documents themselves.

The High Court allowed the appeal, setting aside the order of the Full Federal Court and reinstating the order of the single judge.