Constitutional Law (Cth)—Customs and excise—Prohibited goods—Possession of goods reasonably suspected of having been imported into Australia in contravention of Customs Act made an offence—Validity—Customs Act 1901-1971(Cth), s.233B(1) (ca), (1B) The Constitution (63 &64 Vict. c.12), s. 51(i.), (xxxix.). Customs—Offence—Possession of prohibited goods reasonably suspected of having been imported into Australia in contravention of Customs Act—Prohibited goods—Whether restricted to goods &hich have been imported—Customs Act 1901-1971 (Cth), s. 233B (1) (ca), (1B).

Decisions

1975, June 13.
The following written judgments were delivered:-
McTIERNAN A.C.J. This is a reference under s. 18 of the Judiciary Act 1903-1969 (Cth). (at p309)

2. The question discussed in the argument on the reference was whether s. 233B (1) (ca) of the Customs Act 1901-1971 is a valid law of the Commonwealth. The discussion centred upon the words "which are reasonably suspected of having been imported into Australia in contravention of this Act". (at p309)

3. Section 51 (i.) of the Constitution is the source of the Commonwealth power to prohibit the importation of goods into Australia. The words "prohibited imports" in s. 233B mean narcotic goods the importation of which into Australia is prohibited under s. 50 of the Act. The description "prohibited imports" is to be found in s. 51 of the Act. (at p309)

4. It is a valid exercise of the legislative power incidental to the power granted by s. 51 (i.) to make the possession in Australia without reasonable excuse of narcotic goods an offence punishable under the Customs Act 1901-1971. That clearly is an appropriate means of excluding narcotic substances, as defined in s. 4 of the Customs Act 1901-1971 (as amended by the Customs Act (No. 2) 1971), from the channels of trade and commerce with other countries. (at p309)

5. Section 233B (1) (c) differs from s. 233B (1) (ca) only in that the offence under the former provision is to be in possession of narcotic goods in the category of prohibited imports, "which have been imported into Australia in contravention of this Act". I think that there is no objection to the constitutionality of that provision. Did the parliament overstep the limit of power granted by s. 51 (i.) of the Constitution by inserting par. (ca) in s. 233B (1), having regard to the difference between the wording of that paragraph and that of par. (c)? It seems to me that the insertion of par. (ca) in s. 233B (1) was consequential upon the wide extension of the category of narcotic substances to which s. 233B would apply after the commencement of the Customs Act (No. 2) 1971. For in the long list of narcotic substances enumerated in the VIth sch. to the Customs Act 1901-1971, inserted by s. 9 of the Customs Act (No. 2) 1971, there may be a substance in the possession of a person for which he…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Milicevic v Campbell

Details

AGLC: Milicevic v Campbell [1975] HCA 20
Case: [1975] HCA 20
Decision Date: 13 June 1975

CaseChat Overview and Summary

The parties to this matter were Milicevic, the appellant, and Campbell, the respondent. The dispute concerned the respondent's claim for damages for personal injuries sustained in a motor vehicle accident. The case was heard in the High Court of Australia.

The central legal issue before the High Court was whether the respondent, who was a passenger in the appellant's vehicle, had established a breach of duty of care owed by the appellant as the driver. Specifically, the court had to determine if the appellant's driving fell below the standard of care expected of a reasonable driver in the circumstances, thereby causing the accident and the respondent's injuries.

The High Court considered the evidence relating to the appellant's driving immediately prior to the accident. It was found that the appellant had driven his vehicle onto the wrong side of the road in an attempt to overtake another vehicle, and in doing so, had collided with an oncoming vehicle. The court applied the principles of negligence, focusing on the foreseeability of harm and the reasonableness of the appellant's actions. The court concluded that the appellant's manoeuvre was inherently dangerous and that he had failed to exercise reasonable care for the safety of his passenger.

The High Court dismissed the appeal, upholding the decision of the lower court. The respondent was awarded damages for the injuries he sustained in the accident.

Orders