R v Bull
131 CLR 2033 ALR 171; 1974 - 0611A - HCA
(Judgment by: Stephen J)
Between: R
And: Bull
Judges:
Barwick CJ
McTiernan J
Menzies J
Gibbs J
Stephen JMason J
Subject References:
Trade and commerce
Customs offences
Prohibited imports
Whether goods imported into Australia
Courts and judicial system
Whether admiralty jurisdiction
Legislative References:
Customs Act 1901 (Cth) - s 231; s 233A; s 233B
Northern Territory Supreme Court Act 1961 (Cth) - The Act
Judiciary Act 1903 (Cth) - s 39(2)
Supreme Court Act 1856 (SA) - The Act
Judgment date: 11 June 1974
Melbourne
Judgment by:
Stephen J
The facts of this matter appear in other judgments; I shall accordingly confine myself to the three questions of law which arise for determination. Two of these involve matters of statutory interpretation and can be dealt with quite shortly; they concern the application to the particular facts of the present case of those sections of the Customs Act 1901-1971 relied upon by the prosecution.
The charges of which the accused were convicted included a charge of importing a prohibited import, a quantity of cannabis, contrary to s. 233B(1)(b) of the Customs Act; one accused was also convicted, as master of a ship, of knowingly suffering her to be used in the importation of goods contrary to s. 233A of the Act.
Critical to these offences is the concept of importation. These offences, like all the others of which the accused were convicted, arose out of acts of the accused while at sea within three miles of the coast of the Northern Territory and it is this geographical fact that has given rise to the questions of construction which concern all of the offences charged.
The charges involving importation raise the question whether importation as referred to in the Act may take place long before the goods have been brought within the limits of a port of discharge and as soon as the "territorial sea" is entered. If not, the convictions for offences under s. 233A and s. 233B(1)(b) of the Act cannot stand.
Neither "import" nor "importation", the words used in these sections, is defined in the Act so as to confer upon them any special meaning, but for the Crown it was submitted that to bring goods within three miles of the Australian coast is to import them into Australia. In my view "import" must be given its ordinary meaning and that meaning does not extend to the carrying of goods across any notional line separating the high seas from the "territorial sea". Whatever may be the status of waters immediately off the Australian coastline they do not, I think, form part of Australia in the sense intended by a reference to the importing of goods into the country, Australia.
In the judgment of my brother Gibbs is discussed a number of authorities on this matter and the statutory context of the relevant sections is there analysed and with all this I am in agreement. I would only add that in other common law jurisdictions a like view has been taken. Thus in Canada the Nova Scotia Supreme Court in R. v Jobes, [F53] after a detailed review of the Canadian and United States authorities, concluded, in circumstances strikingly similar to the present, that there was no smuggling, that is importation either in fraud of the revenue or of prohibited articles, when goods were thrown overboard to avoid seizure when the vessel carrying them was detected by Customs some two miles off-shore. In Cunard Steamship Co v Mellon, [F54] the United States Supreme Court, in a prohibition era case, held that importation into "the United States ... and all territory subject to the jurisdiction thereof" only arose when there was an actual bringing into the country from the outside, the reference to "territory subject to the jurisdiction" operating however to extend the relevant concept to include the territorial sea. In Canada Sugar Refining Co v The Queen [F55] the Judicial Committee held that "imported into Canada" meant imported at the port of discharge and at no earlier port of call. Perhaps as satisfactory a description as any of "importation" was that given by Story J. over a hundred and fifty years ago when, in The Schooner "Mary", [F56] he said than an importation is "a voluntary arrival within some port with intent to unlade the cargo".
I accordingly conclude that in the present case there was no relevant importation of cannabis and it follows that the convictions under ss. 233A and 233B(1)(b) must be set aside.
Each of the accused was also convicted, on one or more counts, of having in his possession on board a ship prohibited imports without any reasonable excuse, contrary to s. 233B(1)(a) of the Customs Act, and of having assembled with others for the purpose of preventing the seizure of prohibited imports, contrary to s. 231(1)(c) of that Act. As to these convictions the question arises whether these two provisions of the Customs Act apply to such off-shore possession and to such off-shore assembly as was here in issue.
Assuming for the moment that goods which have not yet been imported into Australia may nevertheless be a "prohibited import", there is nothing in either of these provisions which otherwise expressly restricts their operation to the land mass of Australia; there are, indeed, strong indications to the contrary. Whereas s. 233B(1)(c) makes it an offence to be in possession of prohibited imports "which have been imported into Australia", s. 233B(1)(a), while otherwise dealing with the identical situation, substitutes for these words its own reference to the locality of possession as being "on board any ship or aircraft". I conclude that par. (a) must be understood as dealing with a different situation but different only because the relevant time of possession is one which precedes the time of importation; par. (a) is concerned with possession before importation, precisely the situation in the present case, where the appellants were in possession of cannabis some miles off the Australian coast. Since their ship was then within three nautical miles of the coast it was liable to be stopped and boarded by customs - s. 59(1) - and the provisions of the Customs Act, which in those circumstances confer power upon customs officers over ships and their cargo, give meaning and effectiveness to a sub-section such as s. 233B(1)(a) and to the offence it creates of having possession of a prohibited import on board a ship prior to importation into Australia. My brother Gibbs has, in his reasons for judgment, referred to other provisions of the legislation, particularly applicable to s. 231(1)(c) but bearing also upon s. 233B(1)(a), all of which do, in my view, confirm the view that each of these provisions is here applicable.
These sections speak of "prohibited imports"; but the use of this phrase does not, I think, restrict their application to goods which have in fact been imported. By s. 50 of the Act the importation of goods may be prohibited absolutely, conditionally or by reference to their place of origin. Goods the importation of which is so prohibited are, by virtue of s. 51, prohibited imports and will, in my view, be so regardless of their location and whether or not they have already wrongfully been introduced into Australia. When a relevant regulation prohibits the importation of a particular description of goods, goods of that description thus becoming a prohibited import, it is inherent in their declaration as prohibited imports that it is goods located overseas that are in question; the purpose is to keep such goods out of the country, to prohibit their importation. Thus primarily the declaration must apply to goods which are abroad. Indeed it must be a characteristic of the goods that they are not of local origin, unless, having been produced in Australia and exported, they are later sought to be imported again into Australia. The very purpose of prohibiting importation is to prevent goods of that particular kind from ever entering Australia; only incidental to the enforcement of that prohibition are the penal provisions, some of which strike at offenders who, despite the prohibition, do in fact introduce such goods into the country while others strike at acts preliminary to importation. The sections here in question are of the latter kind.
The Customs Act does not however concern itself with the mere possession overseas of such goods but rather with matters more proximate to the evil against which it legislates; in s. 233B(1) it approaches the matter in sequential stages; in par. (a) it deals with possession on board any ship or aircraft; in par. (b) it deals with a later stage, the actual importation into Australia; in par. (c) with the final stage, possession in Australia after importation. Having regard to the control which the Act gives to customs officers of ships within three miles of the Australian coast it must, I think, be concluded that par. (a) deals, at the least, with possession on board ships within those waters which are within three miles of the coast; what its effect may be in the case of more distant ships and aircraft does not presently arise.
Accordingly I would conclude that both s. 231(1)(c) and s. 233B(1)(a) were here applicable to the appellants' possession of cannabis.
The third question relates to the jurisdiction of the Supreme Court of the Northern Territory to hear and determine the charges. Set out in other judgments are the relevant statutory provisions together with analyses of the history both of the origins and development of the Admiral's criminal jurisdiction and of colonial courts of Admiralty and of the origins of the present jurisdiction of the Supreme Court of the Northern Territory, which derives from that possessed by the Supreme Court of South Australia in 1911 including its then federal jurisdiction.
The thesis propounded on behalf of the accused is that the jurisdiction of the Supreme Court of South Australia in 1911 did not, and hence that the jurisdiction of the Supreme Court of the Northern Territory does not, include any criminal jurisdiction in respect of acts committed at sea unless those acts be offences according to English law.
It is said that before 1849 colonial courts had no criminal jurisdiction over acts committed at sea except in those instances, of which New South Wales and Van Diemen's Land provide examples, in which a specific grant of the Admiral's criminal jurisdiction had been specially conferred. In the case of South Australia there was no such grant, the jurisdiction which was committed to the Supreme Court of South Australia on its creation by the colonial Act of 1837 being confined, so far as presently relevant, to the jurisdiction exercised by the common law courts of England and not extending to that criminal jurisdiction of the Admiral which had been given to the Central Criminal Court in England three years earlier and which soon afterwards was also conferred upon assize judges in the counties of England. Then, when, in 1849, criminal jurisdiction in Admiralty was, by 12 & 13 Vict. c. 96, conferred upon colonial courts generally, it was confined to a jurisdiction to administer the criminal law of England as applicable to offences upon the high seas - Reg. v Mount. [F57] The later Imperial legislation, The Courts (Colonial) Jurisdiction Act of 1874, did not by its single positive provision, s. 3, alter this situation; it did no more than legislate concerning the sentences which might be imposed by colonial courts exercising that same jurisdiction.
With much of this I agree; I believe it to be correct to say that the Admiral's jurisdiction conferred by Imperial legislation upon colonial courts generally, including the Supreme Court of South Australia, was limited to acts committed at sea which were made unlawful by English law and that, for the reasons stated by my brother Mason, the Act of 1874 did not alter this position. Again I accept the submission concerning the nature of the jurisdiction conferred upon the Supreme Court of South Australia when it was created, that it did not carry with it the Admiral's jurisdiction over crimes on the high seas; I do so for the reasons stated in full in other judgments.
However, accepting so much of the submissions made on behalf of the accused, they do not appear to me to carry the matter to the length required on their behalf. Only if it were necessary in the present case to rely upon some jurisdiction derived from the criminal jurisdiction of the Admiral would it avail them. In my view that jurisdiction is irrelevant in the present case. Without it the Supreme Court of South Australia in 1911 possessed jurisdiction over offences of the nature here in question; that jurisdiction owed nothing to the peculiar criminal jurisdiction of the Admiral but was a product of the legislative powers of the legislatures of the Province, later the State, of South Australia and of the Commonwealth.
Early in its history the legislature of the Province of South Australia, having power to pass laws for the "peace, order and good government" of the Province, enacted customs legislation containing sections intended for the better protection of the customs revenue, some of which created offences involving conduct on the high seas off the South Australian coast. Such provisions are a commonplace of customs legislation without which its due administration would no doubt be much impeded and are characteristic of customs legislation throughout much of the common law world. In Croft v Dunphy [F58] their Lordships said that "from early times the customs legislation of the Imperial Parliament has contained anti-smuggling provisions authorizing the seizure of vessels having dutiable goods on board when found `hovering' off the coast within distances substantially in excess of the ordinary territorial limits"; the customs legislation of the Imperial Parliament has also from early times designated as offences other acts preliminary to smuggling, thereby providing a legislative model for other jurisdictions; the South Australian customs legislation paid regard to this Imperial model when it created offences which might be committed on the high seas within one nautical league seaward from highwater mark - see Customs Act 1864, s. 10 and the numerous penal provisions contained in the 3rd and 12th Divs. of that Act.
In doing so the legislature of the Province was exercising legislative powers over waters beyond its land boundaries and did so in common with other British possessions in Australasia and North America in a number of areas including those of customs, quarantine and fisheries. Sir Henry Jenkyns, for long Parliamentary Counsel to the Treasury, described such legislation as "rather a local extension of territorial jurisdiction than a true extra-territorial jurisdiction" - British Rule and Jurisdiction Beyond the Seas (1902), at p. 147 - and Professor O'Connell, in his article in The British Year Book of International Law 1958, refers, at p. 224, to "the whole stream of opinions and decisions on the subject of colonial extra-territorial legislative incompetence which assume that there is jurisdiction over territorial waters because these are `intra-territorial' ".
Whatever may be the position concerning ownership of submerged off-shore lands around Australia, a matter not arising for decision in the present case, it is well established that the colonies, and later the States and Commonwealth, were competent to legislate in respect of conduct occurring in those waters to the extent necessary to secure the "peace, order and good government" of their respective territories. We are presently concerned only with so-called territorial waters within a league off the coast. In Attorney-General (British Colombia) v Attorney-General (Canada), [F59] their Lordships acknowledged the existence of special powers over such waters "necessary for protective and police purposes", referring to Reg. v Keyn [F60] in which members both of the majority and of the minority recognized that within these waters lying up to a league off-shore jurisdiction existed so far as necessary "for the defence and security of the adjacent state"-per Sir Robert Phillimore [F61] and see per Kelly C.B. [F62] and per Cockburn L.C.J. [F63] In Croft v Dunphy [F64] their Lordships adopted what had earlier been said by Sir Barnes Peacock in Hodge v The Queen [F65] as to the plenary nature of the legislative power of a Canadian province, applying this a fortiori to the Dominion Parliament whose extraterritorial "hovering" legislation was accordingly held to be valid. In Trustees Executors & Agency Co Ltd v Federal Commissioner of Taxation, [F66] Evatt J. concluded that following Croft v Dunphy [F67] the supposed territorial restrictions upon the legislative powers of the seven Parliaments of Australia should thenceforth be confined "to a very small compass indeed". It suffices to refer, in conclusion, to two passages from the judgments in Bonser v La Macchia. [F68] There the Chief Justice said: [F69]
"Of course, the colonies were competent to make laws which operated extra-territorially - that it to say beyond their land margins and in and on the high seas, not limited to the three mile belt of the territorial sea. But this legislative power of the colonies was derived, in my opinion, from the plenary nature of the power to make laws for the peace, order and good government of the territory assigned to the colony."
Windeyer J. said that he did not question that State law might regulate off-shore fisheries not,
"because of any right either of sovereignty or property in the open seas or the bed of the sea. It is simply that the State legislature is empowered to make laws for the peace, order and good government of the State; and State here means not merely a territory, but a territory inhabited by people as a political community." [F70]
Thus the legislatures of Australia might validly legislate for the safeguarding of their customs revenues and might do so by attaching to conduct in their off-shore waters the element of criminality. With this legislative power necessarily went curial jurisdiction. The invested Admiralty jurisdiction would have been of no avail since it was concerned only with offences against English law and unless curial jurisdiction were to accompany the creation of the offences they would be sanctionless, a situation which in Reg. v Kent Justices; Ex parte Lye, [F71] one of the "pirate radio station" cases, Lord Parker has described as involving "merely a declaration of an offence and no possibility of any sanction". In fact the South Australian Act did not require of courts, as did the English legislation in that case, the recognition of any statutory implication of a grant of jurisdiction; express provisions in the South Australian Act conferred jurisdiction upon its courts. Accordingly, at the time of Federation the jurisdiction of the South Australian Supreme Court validly extended to offences committed within "territorial waters" and which were of a nature closely analogous to those of which the present accused have been convicted.
Upon the enactment of the Customs Act 1901 by the Parliament of the Commonwealth the South Australian customs legislation became inoperative - s. 109 of the Constitution - but this did not put an end to the jurisdiction of the Supreme Court of South Australia in customs matters. By virtue of s. 5 of the Commonwealth of Australia Constitution Act, the Customs Act 1901 became binding upon the South Australian Supreme Court and it expressly conferred jurisdiction upon that Court in respect of "customs prosecutions" - s. 245. Such prosecutions were defined by s. 244 of the Act so as to include proceedings for the recovery of penalties under the Act, and by some of its provisions penalties were imposed in respect of offences which might only be committed at sea, for example, ss. 185 and 228(2), (3) and (6) (each read in conjunction with the latter part of that section); some customs prosecutions carried as the only prescribed penalty a term of imprisonment - s. 231 and see s. 255(b).
Thus, without investigating the extent to which other State legislation also conferred jurisdiction upon the Supreme Court of South Australia in respect of offences committed offshore, it sufficiently emerges from customs legislation that both before and after Federation that Court had such jurisdiction. In 1903 s. 39(2) of the Judiciary Act conferred federal jurisdiction generally upon the several Courts of the States "within the limits of their several jurisdictions". By then the Supreme Court of South Australia had long possessed a criminal jurisdiction extending to offences against the customs revenue committed offshore and the invested federal jurisdiction flowing from s. 39(2) accordingly extended, in 1911, to include offences under the Commonwealth customs legislation committed offshore. It is unnecessary, in view of Adams v Cleeve, [F72] to go beyond s. 39(2) of the Judiciary Act and to consider the effect of s. 68(2) and the federal criminal jurisdiction with which it invests State Supreme Courts.
Accordingly in my view the Supreme Court of the Northern Territory derived from the terms of s. 15 of the Northern Territory Supreme Court Act jurisdiction to hear and determine the offences of which the accused were convicted. I would answer the questions asked as follows:
- 1.
- (a) - Yes. (b) - Unnecessary to answer.
- 2.
- It is within the ordinary jurisdiction of the Court.
- 3.
- Unnecessary to answer.
- 4.
- (a) Yes. (b) Unnecessary to answer.
- 5.
- No.