Comptroller-General of Customs v D'Aquino Bros Pty Limited S64/1996 [1996] HCATrans 381 (30 September 1996)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S64 of 1996

B e t w e e n -

COMPTROLLER-GENERAL OF CUSTOMS

Applicant

and

D'AQUINO BROS PTY LIMITED

Respondent

Application for special leave to appeal

BRENNAN CJ

DAWSON J

TOOHEY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 30 SEPTEMBER 1996, AT 10.01 AM

Copyright in the High Court of Australia

MR D.F. JACKSON, QC: If the Court pleases, I appear with my learned friend, MR D.B. McGOVERN, for the applicant. (instructed by the Australian Government Solicitor)

MR G.R. JAMES, QC: May it please the Court, I appear with my learned friend, MR J.M. ATKIN, for the respondent. (instructed by Cheney & Wilson)

BRENNAN CJ: Yes, Mr Jackson.

MR JACKSON: Thank you, your Honours. Your Honours, the two issues which it is submitted merit the grant of special leave relate respectively to, first, section 33 of the Customs Act 1901 and, secondly, section 248. The section 33 issue is whether proceedings under section 33(2) are, if I could use the words of section 244:

Proceedings by the Customs for the recovery of penalties.....under this Act -

if they are, your Honours, they are then Customs prosecutions, the consequence being that the proceedings are dealt with under Part XIV of the Customs Act. May I take your Honours in that regard to section 244. Your Honours will see that it refers to:

Proceedings by the Customs for the recovery of penalties.....under this Act -

and then it goes on to specify the other class of Customs prosecutions "for the condemnation of ships" et cetera. The consequence of the proceedings, your Honours, being Customs prosecutions is that they are dealt with in accordance with Part XIV and could I refer your Honours to, for example, section 247, which says that they:

may be commenced prosecuted and proceeded with in accordance with -

to put it shortly, the procedure for revenue matters or as in civil cases.

TOOHEY J: Mr Jackson, is there any particular reason why section 33(1) prescribes, and that, I use the language of the subsection, "Penalty: $50,000" and subsection (2) provides that on conviction for "a fine not exceeding $50,000"?

MR JACKSON: Your Honour, there is not, in our submission, any particular reason for the change in language and that the two are, in fact, pecuniary penalties for the purposes of section 244. There is no historical reason for it, your Honours, and in the parliamentary speeches leading to it there is nothing to indicate that any difference from section 33(1) was being adverted to. Your Honours, I should say section 33(1) was there first as section 33 and then section 33(2) and the succeeding provisions later added.

TOOHEY J: Does it follow then that wherever the Act uses the word "fine" that nevertheless it is a penalty for the purposes of the argument that we are dealing with this morning?

MR JACKSON: Yes, your Honour. I suppose I should not say that in relation to every possible case, but broadly speaking what your Honour puts to me is correct.

DAWSON J: Except that 244 speaks of "recovery of penalties", so that when you use the word "fine" in the same Act it would suggest it is not a penalty.

MR JACKSON: Your Honour, could I just say a couple of things about that, if I may, and that is what I was able to go to. Your Honours will note that the procedure used in Part XIV is civil rather than criminal, but the statute in that part obviously contemplates very clearly that the result of the proceedings will be conviction and the Customs prosecutions are proceedings which will result in conviction in the same sense as is used in section 33(2). May I indicate, your Honours, where that is to be found. Your Honours will see section 248 which speaks of the "State Court practice" and at about the fifth and sixth lines of it, it says:

and an appeal shall lie from any conviction order for condemnation or order of dismissal -

and, your Honours, that is speaking about Customs prosecutions. Secondly, in section 250 your Honours will see the reference to:

informations summonses other originating processes convictions condemnations and warrants shall suffice if the offence or forfeiture -

and that is referring back to the two classes of case dealt with in section 244. Then, thirdly, your Honours, in section 252 what your Honours will see is once again the reference in the opening words to "conviction", which clearly relates to the possible result of a Customs prosecution. Now, your Honours, if I could then - - -

DAWSON J: But it is equally clear that not every conviction is the result of a proceeding for the recovery of penalties. In other words, there are such things as convictions in the normal sense for a crime rather than recovery of a penalty.

MR JACKSON: It is possible, your Honour, but I have really dealt with half of what I wanted to say in that regard. I was going to say, your Honours, that the essence of the view that was adopted by the Court of Criminal Appeal was that the proceedings were not Customs prosecutions because section 244 refers to proceedings for a penalty and section 33(2) refers to a fine, not a penalty. Now, your Honours, what we submit is that no doubt the legislature has, in fact, used different words in the two provisions, which, as I said before, came in at different times. If your Honours look in section 33(2) at the way the word "offence" is used - it is used three times, in fact - it suggests, in our submission, that no difference was in fact intended between the two provisions and your Honours will see that 33(2) is in a sense not ancillary but related to section 33(1) and it says:

If a person who commits an offence against subsection (1) -

and your Honours will see, of course, the term "fine" is not used in 33(1) and nor is the word "conviction", but then it goes on to say in 33(2)

does the act that constitutes the offence -

and your Honours will see the two conditions that are applicable. It then goes to say:

that other person -

that is, the employer or the person directly -

commits an offence and is punishable -

et cetera. Your Honours will see in the provisions of Part IV to which I have referred that the term "conviction" is plainly used, in our submission, in circumstances which are apposite to refer to the result of a Customs prosecutions. The terms of section 33(2) do not treat section 33(1) as an offence and, your Honours, there is one other provision to which I will come in just a moment which is germane, but also your Honours will see that the provisions of section 33(1) and 33(2) relate to similar things and it is clear that 33(1) is a Customs prosecution. In our submission, it would be surprising if 33(2) were not also and I referred your Honours to - - -

DAWSON J: But it is explicable, is it not? You recover the penalty against the person who is primarily liable and then you fine the person such as the case on behalf of whom the offence was committed. You do not recover the penalty twice.

MR JACKSON: Your Honour, if I could just say this though in response to that, that the terms of section 33(1) and 33(2) are apposite to a significant number of circumstances in which the relative responsibility of the two parties involved - if one took the case of employer and employee, employer 33(2), employee 33(1). Your Honours, in many cases the degree of responsibility attracting, one would think, the penalty - and I use the term neutrally - would be that of 33(2) rather than 33(1) because very often the person who actually did the movement would be a person who is simply acting at the direction of an employer and that the employer should have the more serious penalty, if I can use the term neutrally, or vice versa sometimes. Your Honours, I was also going to say, if one looks at section 5 of the Act, what it says is that:

the penalty, pecuniary or other, set out:

(b) at the foot of a subsection.....

indicates that a contravention of the section.....whether by act or omission, is an offence against this Act, punishable upon conviction by a penalty not exceeding the penalty so set out.

Your Honours, undoubtedly there is the degree of looseness used in the Act in relation to the term "penalty" and, in our submission, also the term "fine", but what the opening words of section 5 indicate is that there is no very great distinction, in our submission, to be drawn between 33(1) and 33(2) and, in particular, that 33(1), which is clearly a case of a Customs prosecution, is no different relevantly, in our submission, from 33(2), which, again, is the case of a Customs prosecution, we would submit. Your Honours, it does have the rather potentially curious result that an offence under section 33(1), which is clearly an offence under the Act, is dealt with as a Customs prosecution, the proceedings under section 33(2) are a criminal prosecutions brought by the Director of Public Prosecutions.

TOOHEY J: What about the converse? I mean, on your approach to the Act, how would a defendant know, faced with I will use the word "prosecution" without begging the question, whether it was a Customs prosecution or an ordinary prosecution in a situation where no prison sentence attached to the conduct?

MR JACKSON: Your Honour, because it would, in the ordinary course of events, fall within section 244, being a proceeding by the Customs for recovery of penalties.

TOOHEY J: Do you mean because it was brought in the name of Customs?

MR JACKSON: Your Honour, because of two features really, one being the person bringing the proceedings, the second being the nature of the relief sought, proceedings for recovery of penalties.

TOOHEY J: But that tends to beg the question, does it not?

MR JACKSON: Your Honour, the thing about this, that, with respect, the question, in our submission, has only one answer. It is the giving of the two different answers to 33(1) and 33(2) that produces the difficulty.

DAWSON J: If you do not take the use of the word "penalty" as opposed to "fine" as being the criterion, what criterion do you have for deciding what is a recovery of a penalty as opposed to the imposition of a fine?

MR JACKSON: Your Honour, our submission is that the cases where there is provision for a penalty are cases that fall within section 244 and are Customs prosecutions.

DAWSON J: Well, this is a case where there is provision for a penalty.

MR JACKSON: Yes, your Honour. Is your Honour speaking about section 33(1) or (2)?

DAWSON J: Well, 33(1).

MR JACKSON: Indeed, your Honour.

DAWSON J: But in section 33(2) it is a fine.

MR JACKSON: The term "fine" is simply, in our submission, one method of expressing what is a pecuniary penalty.

DAWSON J: I realise that, but what is the criterion if one does not take the word "penalty" as indicating, at least prima facie, that where the word "penalty" is used and there is a proceeding under that section, it is for the recovery of a penalty? What other criterion could there be?

MR JACKSON: Your Honour, we would accept that as far as it goes, of course. If it says "penalty", and the penalty there expressed is one which is pecuniary, as in section 33(1), it falls within section 244. But, the question is whether, in a case where it expresses it as a fine, being - - -

DAWSON J: But it is not in section 33(1).

MR JACKSON: I am sorry. I appreciate that, your Honour. I was dealing with section 33(2).

DAWSON J: Yes, but I am dealing with section 33(1).

MR JACKSON: I am sorry, I thought I had dealt with that already.

DAWSON J: All I am saying is you must suggest some other criterion. If you reject the word "penalty" as indicating it is a recovery of penalty, what is it that indicates that it is a recovery of a penalty.

MR JACKSON: I am sorry, your Honour. I am really not rejecting that. What I am seeking to say is, first of all that cases where it uses the word "penalty" and then expresses a number of dollars, are clearly cases that where there are proceedings for pecuniary penalty under section 244. What I am saying - - -

TOOHEY J: But you are driven to saying something more than that, are you not?

MR JACKSON: I am about to, your Honour, with respect. May I, in a sort of halting, ineffective and broken way, try to express it. What I am seeking to say, with respect, is this: that in relation to section 33(2) it speaks of a fine. A fine is, in our submission, a pecuniary penalty. Your Honours, what we say is that the terms of section 244 do not require that the Act say, use the word "penalty" every time it speaks of a pecuniary penalty within its terms.

TOOHEY J: But it is clear from the language of section 5 that "penalty" may refer to something other than a pecuniary penalty.

MR JACKSON: Yes, your Honour.

TOOHEY J: I am not sure how far that argument takes you.

MR JACKSON: It takes us to this: what section 5 indicates is that where the term "penalty" is being used, it is not necessarily referring to something where the very word "penalty", as such, appears. Your Honour, all I am seeking to say is one does not have to use the word "penalty", as such, if the meaning of the provision is penalty.

BRENNAN CJ: That may be so. I must confess I am finding these sections extremely difficult to construe, Mr Jackson. You start with section 244 and you see that there is an exception there in relation to a pecuniary penalty referred to in 243B.

MR JACKSON: Yes, it is narcotics.

BRENNAN CJ: You can go back to section 243B and you see that what that is dealing with is a claim for money against an importer of narcotics, for example. If you go back to the main narcotics provisions such as section 235 and turn the page to section 239 you will see a provision which says:

All penalties shall be in addition to any forfeiture.

Those penalties obviously include prison sentences. So that one has a situation and it seems as though in one place penalties is referring to money claims; in other places it is referring to anything that might be imposed by way of punishment for a crime. The word "conviction" is used in terms of recovery for money claims as well as in respect of prosecutions for crime. My attention is drawn to the fact that section 244 refers to other than a pecuniary penalty, so that exception is limited to the pecuniary penalty which makes, to my mind, the problem even more difficult of construction.

MR JACKSON: I do not wish to create undue difficulty but could I just say if your Honour goes to section 235(1) your Honour sees the term "penalty" being used in perhaps a sense again:

applicable to the offence is a fine not exceeding $2,000 or imprisonment.

BRENNAN CJ: But you could recover that $2,000 by a claim for penalties, could you not, as a Customs prosecution?

MR JACKSON: Yes, your Honour.

BRENNAN CJ: Which did not involve the risk of a liability to imprisonment?

MR JACKSON: I think that is right. If your Honour goes to section 245, your Honour will see that there is a provision providing for the institution of Custom's prosecutions and then - it does not deal with the specific case your Honour is putting to me, but paragraphs (2) and (4) of that deal with the abandonment of amounts of pecuniary penalty above certain amounts if one proceeds in particular courts. I thought there was a provision, I must say, which dealt specifically with the provision that your Honour was referring to, and it may be that section 261 - I am sorry, it does not quite touch the point - - -

BRENNAN CJ: Does not all this seem to indicate that what is a Customs prosecution, or so-called as a Customs prosecution, is a claim by the CEO or appropriate officer for the recovery of money?

MR JACKSON: Your Honour, for the recovery of money which has a particular quality. The quality being that the money is recoverable - I am talking about section 244. It is recoverable as a penalty or falls into the condemnation category. Your Honour, one simply asks, in our submission, then, whether, in the context in which it appears section 33(2) does so provide, and what we submit is that if one looks at the way in which the two provisions, 33(1) and (2), are joined up, 33(2) makes it apparent that 33(1) is to be considered as an offence; the subject matter of the two provisions is related; and the provisions of Part XIV mean that in consequence of there being a liability under section 33(1), there is a conviction for an offence.

BRENNAN CJ: What would be the situation if somebody was convicted under section 33(2), fined $50,000 and failed to pay the fine? What would be the relief over? In default, levy in distress or, in default, imprisonment?

MR JACKSON: Your Honour, I am sorry, this is - Your Honours, 259.

BRENNAN CJ: The reason I ask is because if it is a civil penalty recovery it is one kind. If it is a liability to imprisonment then it seems to me it is not a Customs prosecution as presently advised.

MR JACKSON: Your Honour, one method provided for, is by section 259 allowing the collector to levy the amount of the penalty by sale of any goods.

BRENNAN CJ: Yes.

MR JACKSON: Section 264 speaks of penalties and forfeiters recovered under the Customs Act.

TOOHEY J: Look at section 261, Mr Jackson, which implies that it can be imprisonment for non-payment of a penalty.

MR JACKSON: Yes, thank you, your Honour. The fact that that is so - your Honours will see, of course, the references that I gave already in, I think, three provisions of the Act, of that part, to conviction and Customs prosecution - the description of it is "conviction" - and, Your Honours, may I perhaps finish the sentence, I see the light is on - militate against the view that the mere fact that the words "conviction" and "fine" are used in section 33(2) indicate that there is a difference in quality between the type of matter referred to under section 33(2) and that under section 33(1). We have submissions on the other issue, but your Honours will have seen those.

BRENNAN CJ: Yes, Mr James.

MR JAMES: May it please the Court. Dealing with the matter raised by his Honour Justice Toohey at the conclusion of my friend's argument, the Act appears to envisage that one can be prosecuted for a criminal offence and prosecuted by a Customs prosecution for a penalty. There is no exclusion expressed on the face of the Act of both being done to you. Section 261 provides that:

No person shall be twice imprisoned upon the same conviction but the suffering of imprisonment for non-payment of a penalty shall not release the penalty or affect the right of the Customs to collect the amount -

The argument my friend is putting appears to envisage that Customs may recover the fine as a penalty and you may also be prosecuted for the same amount again as a fine. That argument exposures the double meaning that my friend is seeking to attribute to the term "fine".

BRENNAN CJ: I do not know that his argument says that at all, but why do you say that he can be imprisoned?

MR JAMES: I am not saying he can be imprisoned, your Honour, at all. I am simply saying that one might be prosecuted criminally for a fine and prosecuted under the Customs prosecution for a fine if my friend's contention is correct. So there, in effect, would be a double recovery of a fine without looking at the mode of enforcement. What my friend is seeking to argue, it seems, is that the word "fine" is immaterial to the concept of the Custom prosecution. Yet if 244 were to express the term "fine" as being one of the matters for which there could be a prosecution, expressly, there would be no problem. What it refers to is recovery of penalties. Now, the Act sets out frequently, at the conclusion of the section, simply the word "penalty". All section 5 does is to do the mechanical work as deriving from that that the contravention may also be criminal. There is a real discrimination in the Act in language and in concept.

TOOHEY J: Rather, there is a lack of discrimination.

MR JAMES: Your Honour, I am not submitting that it is necessarily consistent but there does appear to be in the Act a concept of criminal prosecutions and in relation to those matters fines may be imposed. But one does not normally, when one is interpreting the concept, look at the language of section 244 which talks about "the recovery of penalties" rather than the imposition of a fine. Indeed, where the legislature has chosen to use the language of "fine" expressly, it has chosen to use that language apparently in exclusion to the concept of penalty. It does not use the language "fine" or "penalty". Section 33(2) might well have had that.

The conviction historically as a mode of securing the payment of a revenue debt due to the Crown is not the same, in our submission, as the modern conviction for a criminal offence, it is merely a mode of securing payment of the debt to the Crown.

TOOHEY J: The difficulty with that, I think - it is not a difficulty that is necessarily adverse to your argument but, Mr James, if you look at 261 it speaks of, "No person shall be twice imprisoned upon the same conviction", and 33(2) uses the language of conviction.

MR JAMES: There is no question that it uses the language of conviction but the conviction that is being spoken about there is the historical device that dated back to Exchequer.

TOOHEY J: If that is right, then what do you say about the words that follow, "the suffering of imprisonment for non-payment of a penalty"?

MR JAMES: Because that was, again, an historical device to ensure payment of the revenue debt to the Crown. The Customs Act utilises two concepts; the prosecution concept for criminal offences and the prosecution concept, a different prosecution concept in which the Comptroller has the benefit of averments, the benefit of informality, the benefit of civil procedure and, indeed, on one view of it, the benefit of the balance of probabilities standard.

TOOHEY J: Does it follow then that when section 261 uses the language of "conviction", it is not using it in the more general sense but only in the sense contemplated by Part XIV?

MR JAMES: Yes, if your Honour pleases, "but the suffering of imprisonment for non-payment of a penalty". Indeed, Customs may turn around and recover that penalty otherwise than by the conviction and imprisonment for a penalty under a revenue debt. Cooper, and, indeed, the old cases seem to draw the distinction between things that were criminal offences, mala in se, and things mala prohibita, where you could pay the money and obtain the release which did not touch your conscience.

The concept that you can be prosecuted twice for the one fine is one that, in our submission, would dispose the court to a careful interpretation of the word "penalty". If the legislature had meant "penalty" to include "fine" it would have been very easy to say so. Indeed, the contention my friend urges is one that would permit Customs or, more correctly, the Commonwealth to define the nature of the proceedings by the identity of the prosecutor.

TOOHEY J: Save that Mr Jackson's argument would not go so far as to include a matter where imprisonment was at stake.

MR JAMES: No, though logically, when one looks at the word "penalty" as set out in section 5, except for some other statutory exemption it would go that far. The point we are seeking to make, however, is that if it is Customs that prosecutes by a Part XIVB - and I should, your Honours, points out there is a typographical error in our statement of argument, page 12, where it should be Part XIV. If it is Customs that prosecutes under Part XIV, then Customs gets all the advantages by way of averments and by way of civil procedure and possibly by way of a civil onus and standard. If it is the Director who prosecutes, then we have true criminal proceedings. These are in respect of the very same offence, in respect of the very same conviction and in respect of the very same fine. Indeed, if the penalties are obtained by the Customs then they are applied under section 264.

In our submission, the submission that asserts that that can be done to one twice is a submission against which the Court would set its face. The far simpler proposition is that when the legislature utilised the language of "fine" in 33(2) without reference to penalty, then the legislature reflected a legislative intention to leave such matters to the domain of criminal prosecutions. Section 244, the construction of which is really at the centre of my friend's application, refers to the recovery of those things in the Act are, at the foot of each section, expressed to be a penalty in the sense of what appears at 5A. Your Honours will see that 5A(1) is a typical example of a penalty.

Indeed, at other portions of the Act it can be seen that penalties get fixed by the Comptroller or fixed by Customs and calculated by reference to a multiple of the value for duty or the multiple of the duty evaded. Now, it is hard to envisage those as having the same criteria applicable to them as a fine where the quantum of the fine would normally be expected to be defined by the everyday discretionary criteria applied within the law.

Your Honours, the provisions of the Act relating to narcotic goods and the reference to "pecuniary penalties" which are exempted from 244 are exempted, in our submission, by 244 because it is provided expressly as to what limited class of persons may make application for those penalties; not that those penalties are of a different nature to Customs penalties. The fine prescribed by 235 is an entirely different creature. "Penalty" has as one criterion for its definition that it is a thing that may be levied as well as a fine, as well as duty. It is not synonymous with "fine" and, in our submission, the construction of section 244, in the normal sense, according to normal principles, would be one in which the concept is limited to the things about which the Act speaks as a penalty.

The Act introduced statutory rights to the Comptroller and defined them in terms of recovery of a penalty. The Act itself expresses things to be penalties. Section 244, in our submission, is applicable to the things which the Act expresses as penalties and not to the things that the Act calls something else.

Your Honours, really, we have set out our argument in the outline that we have filed, including the paragraphs from Cooper simply by way of giving the Court some guidance as to the historical background of the common law concepts that were attached to Customs prosecutions. Many of these offences that are raised in this Act were not regarded at common law as criminal offences at all. This statute gives them the status of criminal offences. They are also offences against the revenue law in respect of which Customs was able to recover. The Act defines them by statute rather than leaving the matters to the common law concepts. Where it does so, it quite dramatically differs from the modes of procedure and recovery that are available either at civil law or at criminal law. Advantages of averments, for instance, are given even in respect of the civil proceeding.

In those circumstances, it would be our submission that according to the normal principles of interpretation, if there is an ambiguity then it would be construed in favour of the respondent. Your Honours, that is certainly how the matters were regarded historically as can be seen from Cooper at paragraph 2106, the last page of the extract that we have added to our written outline.

In our submission, in any event, this is not a matter that would warrant special leave. It is a highly confusing distillation which seems to be regarded as a matter of great importance by the revenue authorities but it comes in the context of a summary prosecution from the Orange Local Court and the difference between a 19B under the Commonwealth Crimes Act and a $10 fine. It places the respondent, of course, to such a matter in a quite invidious position and, in our submission, firstly, it is not a suitable vehicle and, secondly, if it were to be considered as such it should be treated as some of the revenue matters on occasion are and the question of costs should be the question to which the Court should have regard and, in particular, the respondent should not be placed under such an enormous burden in such a situation. Unless I can assist the Court further, they are our submissions.

BRENNAN CJ: Yes, Mr Jackson.

MR JACKSON: Your Honours, may I say four things in response to our learned friends. The first is that as your Honours will see from Part XIV, it provides a procedure and the procedure is really no more than that. If one is convicted under that, that is a conviction. If that is so, then the ordinary defences that apply where a person has been convicted of an offence would apply in all cases. So, there is no question, really, of there being two convictions involved.

BRENNAN CJ: So, it is not just a matter for the recovery of civil penalties?

MR JACKSON: No, your Honour. It is recovery of penalties but to describe them as "civil penalties" is to put a gloss on them, to take the civil nature of the proceedings that is provided for by Part XIV but then to put a gloss on the opening words.

The second thing, your Honours, is this, that your Honours can see the fact that the Act does not use "penalty" and "fine" in the defined and separate way to which our learned friends have referred. If one looks at the provisions - and I suspect your Honours may not have them - of sections 96A(11) and 96B(11), one refers to - 96B(11) is at page 74 of the copy that I have but your Honours may - and the other provision, your Honours, is in the preceding section. One relates to the failure of an outbound duty store operator to comply with certain conditions. That applies a penalty. The other applies to the inbound duty-free store operator not to comply with similar conditions and then imposes a fine for the same amount. To put it shortly, one says "fine" and one says "penalty". Each is the same amount. The two matters are similar.

BRENNAN CJ: Why is this not something that is in the hands of the Department, Mr Jackson?

MR JACKSON: Your Honour, it is in the hands of the legislature, with respect. But, of course, there are, as we have referred to, cases. It reflects not just on this Act but on a number of other Acts. Your Honour, that brings me to the next thing I was going to say. Our learned friends said the proceedings were confusing. I suppose in one sense they were but they are certainly not confusing now and such confusion as there may have been in relation to this point comes about only because it seems to have been taken after the conclusion of oral argument in the first place before the Court of Criminal Appeal.

The last thing I like to say is this, your Honours, that so far as our learned friend's reference to the $10 penalty is concerned, one has to bear in mind that one of the matters found by the Court of Criminal Appeal was that the judge in the District Court, in expressing that view, was operating on the basis of an error, namely, that one had to take into account the sad feelings of the company that was charged and the court thought that was the wrong thing to do.

If I can just come back to what your Honour said about the legislature, this does not just apply to this Act. Your Honours will see other Acts we have referred to in the outline of submissions and in the statement in support.

BRENNAN CJ: The Customs Act is so drawn in a number of sections as to make the concept of Customs Prosecutions for the purposes of Part XIV of the Act difficult, if not impossible, to define with any precision. Clearly the Act requires clarification by legislative amendment at least in this respect. This is an application for special leave by the Comptroller General of Customs (or as the office is now described, the Chief Executive of Customs) and thus the remedy lies in Departmental and Parliamentary hands. A grant of special leave to this Court would probably not remove the difficulties of construction flowing from the text of the statute. There is little advantage in granting special leave to appeal simply to construe provisions of inherently uncertain meaning. For these reasons, special leave will be refused.

MR JAMES: We seek costs, your Honour.

MR JACKSON: Nothing I can say, your Honours.

BRENNAN CJ: Special leave will be refused with costs.

AT 10.41 AM THE MATTER WAS CONCLUDED