Turner v Owen

Case [1990] FCA 507


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".

Administrative Decisions (Judicial Review) Act 1977

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

Baxter v Ah Way (1909) 8 CLR 626

Poole v Wah Min Chan (1947) 75 CLR 218

R. v McLennan (1952) 86 CLR 46

R. v Bull (1973) 131 CLR 203

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.

  1. 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,…

Continue reading Turner v Owen

Sign in free to access the full text

Details
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

Turner v Owen involved the parties Turner, the appellant, and Owen, the respondent, in a matter concerning the importation of prohibited items under Australian customs regulations. The specific dispute centred around the validity of regulations that prohibit the importation of certain items based on a ministerial opinion and the alternative basis for forfeiture. The case was heard in the Federal Court of Australia.

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

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.