Re: ROBERT ALFRED TURNER and BARRY OWEN JONES
And: RONALD OWEN
No. G12 of 1990
FED No. 507
Customs and Excise - Statutory Interpretation - Administrative Law
96 ALR 119
21 ALD 115
26 FCR 366
COURT
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
Jenkinson(1), Pincus(2) and French(3) JJ.
CATCHWORDS
Customs and Excise - importation - prohibition of imports - regulations providing for prohibition - items prohibited - description by reference to ministerial opinion - validity - alternative basis for forfeiture - determination of classification of goods on judicial review application - source of jurisdiction - remedies - semi-automatic rifle - semi-automatic version of Chinese military rifle - spike bayonet affixed - whether "rifles of a military type".
Statutory Interpretation - delegated legislation - customs (Prohibited Imports) Regulations - definition of goods by reference to ministerial opinion - whether impermissible sub-delegation.
Administrative Law - judicual review - administrative decisions (Judicial Review) Act 1977 - jurisdiction and remedies - declaration of rights under s.16(1)(c) - questions of fact relevant to discretion to grant relief.
Words and Phrases - "goods which in the opinion of the minister are of a dangerous character and a menace to the community"; "rifles of a military type".
Customs Act 1901 s.203
Customs (Prohibited Imports) Regulations
Pearce - Delegated Legislation (1977) para.527
Radio Corporation Pty Ltd v The Commonwealth (1938) 59 CLR 170
Hawke's Bay Raw Milk Producers Co-Operative Co. Ltd v N.Z. Milk Board (1961) NZLR 218
Welsbach Light Co. of Australasia Ltd v Commonwealth (1916) 22 CLR 268
Racecourse Co-Operative Sugar Association Ltd v Attorney-General (Qld) (1979) 142 CLR 460
Giris Pty Ltd v Federal Commissioner of Taxation (1969) 119 CLR 365
HEARING
BRISBANE
#DATE 14:9:1990
Counsel for the Appellants: Mr G. Davies QC and Mr M. Boulton
Solicitors for the Appellants: Australian Government Solicitor
Counsel for the Respondent: Mr R.G. Bain and Mr A. Hart
Solicitors for the Respondent: Morris Fletcher and Cross
ORDER
The appeal be allowed.
The orders contained in paragraphs 1 and 4 of the order which is the subject of the appeal be set aside and in lieu thereof it be ordered that the application be dismissed.
Each party bear his own costs of the application and of the appeal.
NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
JUDGE1
The reasons for judgment of the other members of the Court, which I have had the advantage of reading, disclose the questions for decision in this appeal and the facts which evoke those questions.
In my opinion so much of the Customs (Prohibited Imports) Regulations as is contained in Regulation 4(1) and Item 18 of the Second Schedule is authorised by s.50 of the Customs Act 1901. As French J. explains,…
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- AGLC
- Turner, R.A. & Anor v. Owen, R. [1990] FCA 507 (96 ALR 119; 21 ALD 115; 26 FCR 366)
- Case
- [1990] FCA 507
- Decision Date
CaseChat Overview and Summary
The central legal issues revolved around the validity of customs regulations that described prohibited items by reference to a ministerial opinion and whether there was an alternative basis for the forfeiture of the goods in question. The court had to determine whether the description of the items in the regulations was sufficiently precise and whether the alternative basis for forfeiture was applicable under the circumstances. Furthermore, the court needed to decide on the jurisdiction to determine the classification of the goods in question and the appropriate remedies available in this context.
The court found that the regulations, which described the prohibited items by reference to a ministerial opinion, were not sufficiently precise to be valid. The court held that the alternative basis for forfeiture was available and applicable in this case. The court concluded that the importation of the semi-automatic rifle, which was a semi-automatic version of a Chinese military rifle with a spike bayonet affixed, did not fall under the category of "rifles of a military type" as defined in the regulations. As a result, the appeal was allowed, and the orders contained in paragraphs 1 and 4 of the original order were set aside. Instead, the application was dismissed, and each party was ordered to bear their own costs of the application and the appeal.
Orders
Orders of the court
The appeal be allowed.
The orders contained in paragraphs 1 and 4 of the order which is the subject of the appeal be set aside and in lieu thereof it be ordered that the application be dismissed.
Each party bear his own costs of the application and of the appeal.
NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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