Pataki v Mukhin
[2024] NFSC 7
•19 December 2024
SUPREME COURT OF NORFOLK ISLAND
Pataki v Mukhin [2024] NFSC 7
File number: SC 2 of 2023 Judgment of: BROMWICH CJ Date of judgment: 19 December 2024 Catchwords: STATUTORY INTERPRETATION - Separate Question – whether or not plaintiffs’ goods subject to customs control on entering Norfolk Island Airport from aircraft travelling from Sydney – application of the Customs Act 1901 (NI) – HELD Customs Act 1901 (NI) operates to create a customs border between Norfolk Island and mainland Australia and Tasmania – Separate Question answered in the affirmative Legislation: Constitution s 80
Acts Interpretation Act 1901 (Cth) s 2B
Acts Interpretation Act 1901 (Cth) s 38(1)
Customs Act 1901 (Cth) ss 4 and 6
Judiciary Act 1903 (Cth) s 68
Norfolk Island Act 1979 (Cth) ss 4(1), 18
Norfolk Island Customs Ordinance 2016 (Cth) s 7(1), 7(1)(a), 7(2), 7(2)(a), 8(c), Schedule 1, items 3 and 8
Territories Legislation Amendment Act 2016 (Cth) ss 2 and 3, Schedule 5 items 1, 2 and 3
Court Procedure Rules 2006 (ACT) r 1521
Customs Act 1901 (NI) ss 6(1), 30 and 68
Customs Act 1913 (NI)
Customs Ordinance 1993 (CI)
Customs Ordinance 1993 (CKI)
Customs Regulation 2015 (NI) reg 4
Customs Regulations 1986 (NI)
Evidence Act 2004 (NI) s 191
Interpretation Act 1979 (NI)
Jury Act 1977 (NSW) s 55F
Public Service Act 1979 (NI)
Supreme Court Act 1960 (NI) s 19(4)
Explanatory Statement to Norfolk Island Customs Ordinance 2016
Cases cited: Director of Public Prosecutions (Cth) v Farmer (a pseudonym) [2017] VSCA 292; 54 VR 420 Number of paragraphs: 42 Date of hearing: 22 November 2024 Counsel for the Plaintiffs: Plaintiffs were self-represented Counsel for the Defendants: Mr N Oram Solicitor for the Defendants: Australian Government Solicitor ORDERS
SC 2 of 2023 BETWEEN: LASZLO STEVEN PATAKI
First Plaintiff
ANN MARIA PATAKI
Second Plaintiff
AND: ALEXY MUKHIN
First Defendant
JAMES GOODWIN
Second Defendant
GABRIELLE HENDERSON
Third Defendant
ORDER MADE BY:
BROMWICH CJ
DATE OF ORDER:
19 DECEMBER 2024
THE COURT ORDERS THAT:
1.The answer to the separate question ordered on 1 November 2024, pursuant to r 1521 of the Court Procedure Rules 2006 (ACT), applied by s 19(4) of the Supreme Court Act 1960 (NI):
“At any time on 11 June 2023, were the first plaintiff’s goods and the second plaintiff’s goods subject to customs control for the purposes of s 30 of the Customs Act 1901 (NI) by reason of those goods having been imported into Norfolk Island?”
is “Yes”.
2.The costs of the Separate Question be costs in the cause.
REASONS FOR JUDGMENT
BROMWICH CJ:
Introduction
The plaintiffs, Mr Lazlo Pataki (first plaintiff) and Mrs Ann Pataki (second plaintiff), are husband and wife and are not legally represented. The three defendants are two officers of the Norfolk Island Police Force, Senior Constables Alexey Mukhin and James Goodwin, and an officer of the Australian Border Force (ABF), District Commander Gabrielle Henderson. The defendants are represented by the Australian Government Solicitor (AGS) and by counsel instructed by AGS.
The plaintiffs sue the defendants arising out of what occurred at Norfolk Island airport on 11 June 2023 after they arrived on a flight from Sydney, and in particular what is alleged to have been the unlawful detention and questioning of Mr Pataki and the unlawful detention and searching of Mrs Pataki. The defendants deny any wrongdoing, including relying upon the lawful exercise of statutory powers. There is a live dispute between the parties as to the operation of customs laws on Norfolk Island, which goes to the availability of the statutory powers that the defendants rely upon. The plaintiffs, in asserting a different meaning to the legislation in dispute, do not allege that any legislative provision is invalid. That is, the dispute is as to what the operation of those laws are on their face, properly understood.
The trial of the case brought by the plaintiffs is listed to commence on Norfolk Island on Monday, 3 February 2025, with an estimate of four days.
Separate question ordered and agreed facts for that question
On 1 November 2024, I made the following order by consent under r 1521 of the Court Procedure Rules 2006 (ACT), applied by s 19(4) of the Supreme Court Act 1960 (NI):
The Court hear, separately from any other question in the proceeding, the following agreed question:
“At any time on 11 June 2023, were the first plaintiff’s goods and the second plaintiff’s goods subject to customs control for the purposes of s 30 of the Customs Act 1901 (NI) by reason of those goods having been imported into Norfolk Island?” (Separate Question)
The plaintiffs contend that the answer to the Separate Question should be “No”. The defendants contend that the answer should be “Yes”.
The above order for hearing of the Separate Question was made following the hearing of an application by the defendants for that to take place on 1 November 2024. That application was not only agreed to, but actively supported by the plaintiffs.
I was prepared to hear and decide the Separate Question prior to the forthcoming trial because of its importance to that trial and to the evidence to be adduced, and because the following facts had been agreed upon between the parties for that purpose, and signed by each of the plaintiffs on 12 September 2024 and by a solicitor for the defendants on 13 September 2024:
Statement of Agreed Facts
1.Under s 191 of the Evidence Act 2004 (NI) the plaintiffs and the defendants agree to the following facts for the purposes of this proceeding, that are not to be disputed.
a.at all material times, Norfolk Island Airport was appointed as an airport for the purposes of the Customs Act 1901 (NI);
b.at all material times, Norfolk Island Airport was not an 'international airport' within the meaning of reg 4 of the Customs Regulation 2015 (NI);
c. on 11 June 2023:
i.the first and second plaintiffs boarded an aircraft at Sydney Airport, in Sydney in the State of New South Wales, Australia (Aircraft);
ii.at about 1.05pm, the first and second plaintiffs arrived at Norfolk Island Airport, in Norfolk Island, aboard the Aircraft;
d.after getting out of the Aircraft, the first plaintiff entered the Norfolk Island Airport arrivals hall;
e.from the time of boarding the Aircraft to when in the Norfolk Island Airport arrivals hall, the first plaintiff had with him his mobile phone, his wallet, his backpack, and was wearing his clothes (the first plaintiff's goods);
f.after getting out of the Aircraft, the second plaintiff entered the Norfolk Island Airport arrivals hall and collected a number of bags from the luggage carousel that was located inside the Norfolk Island Airport arrivals hall;
g.the bags that were collected by the second plaintiff from the luggage carousel contained personal goods that were owned by the first or second plaintiffs including clothes and other personal effects (the second plaintiff's goods); and
h.the second plaintiff's goods had been checked-in as the luggage of both the first and second plaintiff at Sydney Airport and had been transported from Sydney Airport to Norfolk Island Airport aboard the Aircraft.
The balance of the orders made on 1 November 2024 were for written submissions, a bundle of authorities and to list the Separate Question for hearing on 22 November 2024.
The hearing of the Separate Question took place as scheduled on 22 November 2024. Written and oral submissions were made by the plaintiffs in person, and by the defendants via counsel. I do not propose to summarise all the competing arguments, but rather, after outlining their respective stances, proceed directly to my reasons for the answer to the separate question that I have arrived at. In the course of doing so, I will address some of the arguments in more detail.
Overview
Mrs Pataki said in the course of oral submissions that Norfolk Island was subject to its own Customs Act and Customs Regulation until 1 July 2016. That is, that there had been a separate customs regime, and therefore customs barrier, for Norfolk Island until 30 June 2016. Mrs Pataki’s stance, apparently agreed to by Mr Pataki, accords with the defendants’ written submissions at [38] (footnotes embedded), which I accept accurately describes the situation that existed as at 30 June 2016 (footnotes omitted):
Prior to 1 July 2016, the Customs Act 1913 (NI) regulated the importation of goods brought from overseas into Norfolk Island, including by making such goods subject to customs control, so as to secure the payment of duties of custom, and to prevent the importation of prohibited goods. The Customs Act 1913, was administered by the Collector of Customs, being a person appointed by the Administrator of Norfolk Island, and officers of Customs, being officers appointed under the Public Service Act 1979 (NI).
On 1 July 2016, the Customs Act 1913 (NI) and the Customs Regulations 1986 (NI) were repealed, and the NI Ordinance commenced. A live question to be determined in the course of answering the Separate Question is whether, by this change, a separate customs border between Norfolk Island and mainland Australia and Tasmania was dispensed with, or whether a differently constituted separate customs border was implemented to replace the prior regime.
The central proposition of the plaintiffs’ case on the Separate Question is that the long-standing arrangement of having a customs border regime between Norfolk Island and mainland Australia and Tasmania had come to an end on 30 June 2016, and was not successfully replaced. The plaintiffs contend that, from 1 July 2016, not only did Norfolk Island become integrated with mainland Australia and Tasmania, but that as a feature of this change the separate customs barrier ceased to operate.
The central proposition of the defendants’ case on the Separate Question is that, while Norfolk Island became integrated with the rest of Australia in many important respects, a different version of a separate customs barrier between mainland Australia and Tasmania was implemented with effect from 1 July 2016. That is, the defendants contend that the separate customs barrier that had existed on 30 June 2016 was replaced with another separate customs barrier, differently implemented, along with other changes to the legal relationship between Norfolk Island and mainland Australia and Tasmania. The changes the defendants contend took place from 1 July 2016 are summarised in their written submissions at [39] (footnotes embedded):
(1)the definition of ‘Australia’ and ‘Commonwealth’ within the Acts Interpretation Act 1901 (Cth), s 2B was amended to include Norfolk Island – so that subject to contrary intention Norfolk Island would be taken to be part of Australia in Commonwealth Acts [Territories Legislation Amendment Act 2016 (Cth), ss 2 and 3, Schedule 5 items 1 and 2];
(2)the Norfolk Island Act 1989 was amended so that Commonwealth Acts applied in Norfolk Island of their own force, except so far as the Act or another Act expressly provided otherwise [Territories Legislation Amendment Act 2016 (Cth), ss 2 and 3, Schedule 5 items 3];
(3)the Customs Act 1901 (Cth) definition of ‘Australia’ and s 6 were not amended so that Norfolk Island continued to be excluded from the operation of that Act [Customs Act 1901 (Cth), ss 4 ‘Australia’, and 6]; and
(4)the Customs Ordinance was made which applied the Customs Act 1901 (Cth) in the Territory as if it was a law of the Territory, except to the extent that it deals with duties of customs, with references in the Customs Act 1901 (NI) to Australia, when used in a geographical sense, taken to be references to Norfolk Island;
(5)Schedule 1 to the Customs Ordinance modified the Customs Act 1901 (Cth) so that an ‘officer of Customs’ remained an officer of Customs within the meaning of the Customs Act 1901 (Cth), so that Commonwealth officers took over the performance of the customs functions on Norfolk Island [Customs Ordinance, Schedule 1, item 3.].
The defendants contend in [40] of their written submissions that as a result of the changes that took place on 1 July 2016 (footnotes embedded):
(1)Norfolk Island was generally integrated with the Australian mainland in relation to such things as tax and social security systems;
(2)the Commonwealth Government delivered essential functions for Norfolk Island, such as immigration, biosecurity and customs;
(4)however, a customs border was maintained between mainland Australia and Norfolk Island (consistent with the operation of customs laws in the Indian Ocean Territories) [See Customs Ordinance 1993 (CI), and Customs Ordinance 1993 (CKI)] by continuing to exclude Norfolk Island from the operation of the Customs Act 1901 (Cth), however, enacting a parallel Act, being the Customs Act 1901 (NI), that applied in Norfolk lsland [Explanatory Statement, Norfolk Island Customs Ordinance 2016].
The balance of these reasons explain in more detail what the relevant aspects of the 1 July 2016 changes were, and resolve the conflicting positions of the parties by deciding what their legal effect is, so as to answer the Separate Question.
The resolution of the Separate Question
The issue that arises in relation to the Separate Question concerns the operation of the legislative arrangements that were brought into existence as a result of the Commonwealth Government taking over control of Norfolk Island on 1 July 2016. This gives rise to the question of whether the intention expressed in the Explanatory Statement for the Norfolk Island Customs Ordinance 2016 (Cth) (NI Ordinance), made under the Norfolk Island Act 1979 (Cth) was given effect to by the legislation that was enacted by the Commonwealth Parliament, insofar as this affects the Separate Question.
The definition of “Territory” and of “Norfolk Island” in s 4(1) of Norfolk Island Act means the Territory of Norfolk Island, and, when used in a geographical sense, means the area described in Sch 1. For completeness, Schedule 1 describes the area of Norfolk Island as “Norfolk Island and all the other islands and rocks lying within the area bounded by the parallels 28 degrees 59 minutes and 29 degrees 9 minutes south latitude and the meridians 167 degrees 54 minutes and 168 degrees east longitude.” In these reasons, it is convenient to refer just to Norfolk Island, even if a reference in the Norfolk Island Act is to the “Territory”.
The Explanatory Statement for the NI Ordinance states as follows (paragraph numbering added for ease of cross-referencing; and bold emphasis added to the definitions used for ease of identifying defined terms):
Overview
[1]Subsection 19A(1) of the Norfolk Island Act 1979 (the Norfolk Island Act) provides that subject to this Act, the Governor-General may make Ordinances for the peace, order and good government of the Territory of Norfolk Island.
[2]The effect of section 15 of the Norfolk Island Act is that after 18 June 2015, the laws in force in the Territory from time to time include section 19A Ordinances as in force from time to time.
[3]The purpose of the Norfolk Island Customs Ordinance 2016 (the NI Ordinance) is to apply the Customs Act 1901 (the Customs Act) the Customs Regulation 2015 (the Customs Regulation) and the Customs (International Obligations) Regulation 2015 (the Customs (International Obligations) Regulation) in Norfolk Island, as modified by the NI Ordinance.
[4]From 1 July 2016, the Australian Government will integrate Norfolk Island with mainland tax and social security systems, and will commence delivering essential national functions such as immigration, biosecurity and customs.
[5]To give effect to these reforms, section 2B of the Acts Interpretation Act 1901 will be amended to include Norfolk Island in the definition of ‘Australia’ and new section 18 of the Norfolk Island Act will provide that a Commonwealth Act is in force in Norfolk Island, unless the Act expressly provides otherwise. Both of these provisions commence on 1 July 2016.
[6]Section 6 of the Customs Act provides that this Act does not extend to the external Territories. As a consequence of this, and the operation of new section 18 of the Norfolk Island Act, the Customs Act does not extend to Norfolk Island.
[7]Instead, the NI Ordinance, made under section 19A of the Norfolk Island Act, applies a modified version of the Customs Act, the Customs Regulation and the Customs (International Obligations) Regulation to Norfolk Island except to the extent that they purport to deal with duties of customs. This is consistent with the operation of customs laws in the Indian Ocean Territories of Christmas Island and the Cocos (Keeling) Islands. Application of the Customs Act and associated regulations maintains a customs border that is required to give effect to the Australian Government reforms outlined above.
[8]The NI Ordinance is modelled on the Customs Ordinance 1993 for Christmas Island (the CI Ordinance) made under the Christmas Island Act 1958, with additional modifications.
[9]As a consequence, the Customs Act 1913 of Norfolk Island and the Customs Regulations 1986 of Norfolk Island will be repealed at the same time the NI Ordinance commences. This will be done in the Norfolk Island Continued Laws Amendment (2016 Measures No. 1) Ordinance 2016. These laws will be repealed because they are inconsistent with the Customs function being assumed by the Commonwealth.
[10]The CI Ordinance and the Customs Ordinance 1993 for the Cocos (Keeling) Islands establish a separate Indian Ocean Territories Customs Service (IOTCS). The Comptroller-General of Customs is the Comptroller of the IOTCS and all officers of Customs are customs officers of the IOTCS.
[11]However, a separate customs administration is not established under the NI Ordinance. Instead, the Comptroller-General of Customs and officers of Customs will exercise their powers directly under the applied Customs Act, as Australian Public Service employees of the Department of Immigration and Border Protection (the Department). This will simplify arrangements by not having to separately appoint a Comptroller of a Customs Service for Norfolk Island, or the Comptroller appointing customs officers. This will not affect the Department’s ability to undertake customs functions on Norfolk Island.
[12]In 2005, the Customs Act introduced mandatory electronic reporting requirements for mainland Australia. For example, all cargo reports under section 64AB of the Customs Act must be communicated electronically.
[13]Norfolk Island does not have the information technology infrastructure to meet the mandatory electronic reporting requirements in the Customs Act. The application of the Customs Act in Norfolk Island is therefore modified to allow communications to be provided either electronically or in documentary form. For example, cargo reporting under section 64AB allows for both electronic and documentary reporting on Norfolk Island. These modifications account for the operating environment on Norfolk Island.
[14]It is not expected that there will be licensed depots on Norfolk Island initially. The application of the Customs Act and associated regulations to Norfolk Island is therefore modified to account for this.
Human rights implications
[15]No separate consultations were undertaken on the NI Ordinance as it is part of the broader Norfolk Island reforms integrating Norfolk Island with mainland Australia.
[16]The NI Ordinance is a legislative instrument for the purpose of the Legislation Act 2003.
Conclusion
[17]The NI Ordinance commences on 1 July 2016.
Section 38(1) of the Acts Interpretation Act 1901 (Cth) provides that “An Act passed by the Parliament of the Commonwealth may be referred to by the word “Act” alone”. Consistently with [5] and [6] of the Explanatory Statement for the NI Ordinance reproduced above, the following legislative changes did take place on 1 July 2016 or were already in place by that date, were in force on 11 June 2023, and are still in force:
(a)section 2B of the Acts Interpretation Act 1901 (Cth) defines:
(i)“Australia” to include Norfolk Island;
(ii)“external Territory” to mean “a Territory, other than an internal Territory, where an Act makes provision for the government of the Territory as a Territory”; and
(iii)“internal Territory” as “the Australian Capital Territory, the Northern Territory or the Jervis Bay Territory”.
(b)section 18 of the Norfolk Island Act provides that an Act applies to Norfolk Island except so far as that Act or another Act expressly provides otherwise – that is, all Commonwealth Acts apply to Norfolk Island unless one of those Acts expressly provide otherwise.
(c)section 6 of Customs Act1901 (Cth) (Commonwealth Customs Act) expressly provides that it does not extend to the “external Territories”.
(d)as Norfolk Island is not included in the internal Territories defined in s 2B of the Acts Interpretation Act, it is an external Territory to which the Commonwealth Customs Act does not apply.
Paragraph 7 of the Explanatory Statement for the NI Ordinance reproduced above describes the way in which a version of the CCA was intended to apply to Norfolk Island:
… the NI Ordinance, made under section 19A of the Norfolk Island Act, applies a modified version of the Customs Act, the Customs Regulation and the Customs (International Obligations) Regulation to Norfolk Island except to the extent that they purport to deal with duties of customs …
The legislative device of picking up legislation created in one context, and applying it in another context, as a form of legislative shorthand, is unexceptional. For example, it is the means by which State and Territory laws are applied as surrogate federal law to federal proceedings conducted in State and Territory courts exercising federal jurisdiction by the operation of the Judiciary Act 1903 (Cth). This is sometimes done selectively and sometimes qualified by the limits of Commonwealth constitutional power. This means that those laws, as amended from time to time, apply to such proceedings, without the need for the amendment of any federal law. On occasion, the mechanisms for achieving this are imperfect, and a degree of statutory construction may be involved. But the technique is ordinarily effective and convenient.
To explain how this mechanism works in a different setting, in a jury trial for a federal offence in the District Court of New South Wales, the Jury Act 1977 (NSW) is picked up and applied by s 68 of the Judiciary Act as surrogate federal law. However, s 55F of the Jury Act, which makes provision for majority verdicts, is not picked up because s 80 of the Constitution has been interpreted by the High Court as requiring that the verdict of juries for federal offences must be unanimous. Thus, a modified version of the Jury Act applies to jury trials for federal offences in NSW.
The modified version of the Commonwealth Customs Act that applies to Norfolk Island as described in [7] of the Explanatory Statement for the NI Ordinance has been put into effect by subsections 7(1) and (2) of the NI Ordinance, which are as follows:
7 Application of Commonwealth Customs legislation
(1)Subject to this Ordinance, the following laws of the Commonwealth apply in the Territory as if they were laws of the Territory, except to the extent that they deal with duties of customs:
(a) the Customs Act 1901;
(b) the Customs Regulation 2015;
(c) the Customs (International Obligations) Regulation 2015;(d)other regulations as in force from time to time under the Customs Act 1901;
(e)subject to subsection (4), an instrument as in force from time to time under subsection 4A(1) or (1A) of the Customs Act 1901.
(2) For the purposes of this Ordinance:
(a) the Customs Act 1901 in its application to the Territory:
(i) is modified in accordance with Schedule 1; and
(ii) may be cited as the Customs Act 1901 (NI); and
(b)the Customs Regulation 2015 in its application to the Territory:
(i) is modified in accordance with Schedule 2; and
(ii)may be cited as the Customs Regulation 2015 (NI); and
(c)the Customs (International Obligations) Regulation 2015 in its application to the Territory:
(i) is modified in accordance with Schedule 3; and
(ii)may be cited as the Customs (International Obligations) Regulation 2015 (NI).
It is important to note that s 7(1)(a) and (2)(a) of the NI Ordinance do not amend the Commonwealth Customs Act itself, even though that is the language used in the process of picking it up and varying what is picked up. The Commonwealth Customs Act, as the source Act, is not changed at all by this process. Instead, those provisions operate to create a new Act, but one that, being constructed from the terms of the Commonwealth Customs Act, is able to change at its source as it is amended from time to time. When a provision of the Commonwealth Customs Act is changed, the corresponding provision in the modified version that has been picked up are also changed. In the case of this mechanism being provided by the Judiciary Act, this has been done for well over a century. It is using a form of legislative shorthand in place of laboriously creating separately and inflexibly an entirely new and separate legislative regime. There is no difference in principle or in effect between that mechanism and taking an electronic copy of the Commonwealth Customs Act, changing its name, and making all the changes to it, and then enacting that changed Act as a new Act.
The effect of s 7(1)(a) and (2)(a) of the NI Ordinance is that a modified version of the Commonwealth Customs Act applies to Norfolk Island, with the variations in Sch 1. However, dealing with duties of customs are not a part of what is applied, as is made express by the chapeau to s 7(1). Schedule 1 contains 59 modifications to the applied Commonwealth Customs Act which, as modified, and excluding dealing with duties of customs, constitutes a separate Act, the Customs Act 1901 (NI) (NI Customs Act).
This technique has produced a number of anomalies that have been identified by the plaintiffs. However, most of them do not apply to the provisions presently under consideration and therefore do not affect the answer to the Separate Question. It is neither necessary nor appropriate to consider how those anomalies will be resolved if and when they arise for consideration. The existence of those anomalies does not impact the applicability or validity of the sections of the NI Customs Act that are relevant to this Separate Question. Some of the changes that are relevant to the Separate Question are addressed below.
Not all of the changes made by Sch 1 of the NI Ordinance are models of clarity or consistency, and this may potentially create some problems in their legal or practical application from time to time. But none of those shortcomings ended up being material to the Separate Question. The key changes relevant to the Separate Question are as follows:
(a)The definition of “officer of Customs” was substituted with “an officer of Customs within the meaning of the Customs Act 1901 (Commonwealth)”, which allowed Commonwealth officers to perform customs functions on Norfolk Island despite the Commonwealth Customs Act not applying there: see item 8 in Sch 1 to the NI Ordinance; and
(b)all references to “Australia”, when used in a geographical sense in the Commonwealth Customs Act, are to be read in the NI Customs Act as being a reference to Norfolk Island in a geographical sense: see section 8(c) of the NI Ordinance.
Section 8 of the NI Ordinance provides as follows:
References to certain terms in applied customs law
In the Customs Act 1901 (NI), in regulations in force under that Act and in an instrument under subsection 4A(1) or (1A) of that Act:
(a) a reference to the Minister is a reference to the Customs Minister; and
(b) a reference to the Department is a reference to the Department administered by the Customs Minister; and
(c) a reference to Australia or the Commonwealth, if used in a geographical sense, is a reference to the Territory.
The plaintiffs contend that the word “reference” in s 8(c) of the NI Ordinance is insufficient to change references to “Australia” or “the Commonwealth” (in the geographical sense) as they appear in the Commonwealth Customs Act to mean references to “Norfolk Island” in the NI Customs Act, upon the basis that if that replacement had been intended, the word “replacement” would have been used. I am unable to accept that is so. The deployment of the word “reference” in this way does have the effect of replacement. It has no other apparent purpose.
This is not an unusual device deployed in either legislation, or delegated legislation such as an Ordinance. Just like the process of creating surrogate legislation, this is a shorthand, but well-understood, way of bringing about a global change, without needed to go to every instance in which change is intended to occur. It is a device that functions in much the same way as a definition or deeming provision. Provided it is clearly enough expressed – and it is sufficiently clear in s 8(c) of the NI Ordinance – it has the legal and practical effect of changing the word that is referred to so that it is read instead as though another word is present. Thus, wherever “Australia” appears in the Commonwealth Customs Act in a geographic sense, in the separate NI Customs Act that is to be read as “Norfolk Island”. It is a simple transposition. Nothing more was required.
The plaintiffs rely upon s 6(1) of the NI Customs Act providing that, apart from an exception in subsection (2) that does not arise, that Act does not apply to the “external Territories”. The plaintiffs seem to interpret this to mean that the NI Customs Act does not apply to Norfolk Island. There are two reasons why that cannot be accepted. First and foremost, s 7(1)(a) of the NI Ordinance reproduced at [24] above provides that the Commonwealth Customs Act applies in the Territory, meaning Norfolk Island, as if it were a law of that jurisdiction. S 6(1) of the NI Customs Act does not displace this.
Secondly, the term “external Territories” is not defined in the Interpretation Act 1979 (NI), and the definition of “external Territories” in the Acts Interpretation Act does not apply. Norfolk Island does not have any external Territories for which exclusion of its application is needed or even possible. The result is that s 6 in the NI Customs Act has no work to do. This is not ideal, but it is the legal and practical effect.
The plaintiffs also characterise the NI Customs Act as dealing with goods taken from Australia to Australia, but that is not correct. Norfolk Island is not part of Australia in a geographic sense for the purposes of the Commonwealth Customs Act, the NI Customs Act deals with customs (but not customs duties) in Norfolk Island. Accordingly, goods taken from mainland Australia to Norfolk Island are, for customs purposes, being brought from a geographic concept of Australia that does not include Norfolk Island, to Norfolk Island.
The effect of this modified application of the Commonwealth Customs Act to create the NI Customs Act was to replicate the customs regime, and thus customs border, that applied between Australia and the rest of the world (apart from Norfolk Island) to Norfolk Island, with the modifications in Sch 1 to the NI Ordinance, except as to duties of customs. This preserved in a different form the substance of the regime that had existed prior to the Commonwealth Government taking control of Norfolk Island. Goods that are imported into Norfolk Island are subject to customs control.
It is important to note at this juncture that the effect of having the Commonwealth Customs Act expressly not apply to Norfolk Island, and instead for the NI Customs Act to apply to Norfolk Island, being a modified version of the Commonwealth Customs Act, is that there are two Customs Acts that relevantly exist. There is a Customs Act for the mainland of Australia and Tasmania, and a separate Customs Act for Norfolk Island. For completeness, but noting it is otherwise irrelevant to the Separate Question, it should be noted that there is in parallel yet another customs regime for the Indian Ocean Territories of Christmas Island and the Cocos (Keeling) Islands, referred to at [7] of the Explanatory Statement for the NI Ordinance.
The breadth of the concept of “imported”, relevantly in the NI Customs Act, but also in the Commonwealth Customs Act that does not apply to Norfolk Island, is also important. The exclusion of duties of customs in the Norfolk Island Act means that these are not levied upon goods imported into Norfolk Island, but that the other important functions of customs control are maintained. This was an issue in Director of Public Prosecutions (Cth) v Farmer (a pseudonym) [2017] VSCA 292; 54 VR 420, a case about the Commonwealth Customs Act involving the question of whether mobile phones of a person charged with conspiracy to import tobacco products with intent to defraud were within the control of customs so as to be lawfully obtained by officers. Maxwell P and Beach JA, in rejecting an argument advanced that the movement of goods that was merely incidental to the movement of a passenger, namely the mobile phones intended for personal use, were not imported, said at [26] (omitting footnotes):
Contrary to the respondents’ submission, this construction is supported neither by the purposes of the Act nor by the statutory language itself. As to purpose, the respondents’ written submission contended that the purpose of making goods subject to the control of Customs under s 30 was “to secure the payment of customs duty”. That contention is directly contradicted by the provisions of the Act, which make unambiguously clear … that the legislature is equally concerned with preventing the import, and export, of prohibited goods. Import prohibitions on drugs, firearms and child pornography are familiar illustrations of this quite separate legislative concern.
Priest JA, who was otherwise in dissent in Farmer, made similar and further observations about the distinction between fiscal concerns (which are not a part of the regime under the NI Customs Act in the sense of liability for customs duties), and concerns about prohibited and restricted goods, including in particular those which may be harmful in a range of ways, albeit in the context of talking about exports: see [205]-[206]. Importantly, such goods do not evade customs control on the mainland simply by being imported into Norfolk Island.
The goods of anyone arriving in Norfolk Island from mainland Australia, or indeed anywhere else, are able to be treated the same way as the goods of anyone entering any other part of Australia from overseas. In particular:
(a)section 30 of the NI Customs Act dealing with Customs control of goods, which is not modified by Sch 1 to the NI Ordinance; and
(b)section 68 of the NI Customs Act dealing with entry of imported goods, which is also not modified by Sch 1 to the NI Ordinance,
apply to persons arriving by aircraft from mainland Australia.
The control of the importation of goods into Norfolk Island is maintained in substantially the same way as the control of goods into the rest of Australia in a geographical sense, apart from customs duties not applying in Norfolk Island. The apparent main reason for this is for the prevention and control of prohibited and restricted goods into the Australian mainland and perhaps Tasmania by evading customs control, as referred to in Farmer at [26], reproduced above. Without a regime such as this in place, the control of prohibited and restricted goods into the rest of Australia in a geographical sense would have been weakened. Norfolk Island would be a gap in the detection and prevention of that taking place. To make this functional, officers are given a range of powers, duties and responsibilities, to be exercised lawfully within that regime.
It follows that the answer to the Separate Question is “Yes”. That is, by reason of Mr and Ms Pataki’s goods having been imported into Norfolk Island on the aircraft in which they arrived on 11 June 2023, those goods were imported goods for the purposes of s 68 of the NI Customs Act and subject to customs control for the purposes of s 30 of the NI Customs Act. It is not appropriate at this stage to venture further into how that regime works in relation to what took place on 11 June 2023, having regard to the particular goods in question, that being a matter for the trial.
As the Separate Question would otherwise have needed to be determined in the course of the trial, or in the judgment following the trial, it is appropriate that the ultimately successful parties be paid their costs by the ultimately unsuccessful parties. The appropriate costs order is therefore that the costs of the Separate Question be costs in the cause.
Accordingly, the trial of this proceeding listed to commence on Norfolk Island on Monday, 3 February 2025, will proceed as scheduled upon the basis of the Separate Question having been answered in the affirmative.
I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Chief Justice Bromwich. Associate:
Dated: 19 December 2024
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