FEDERAL COURT OF AUSTRALIA Granite Arms v Chief Executive Officer of Customs [2003] FCA 506 TRADE AND COMMERCE – whether the word "importer" in clause 4.1 of Part 1 of Schedule 6 of the Customs (Prohibited Import) Regulations 1956 (Cth) should be construed to mean the owner at law – whether an agent of the beneficial owner of goods can be the importer of the goods for the purposes of that clause. Administrative Decisions (Judicial Review) Act 1977 (Cth) Customs Act 1901 (Cth) ss 4, 50, 51, 183UA, 203B, 205, 205B, 205C, 205D, 229 Customs (Tariff) Act 1982 (Cth) Trade Practices Act 1974 (Cth) s 47A Weapons Act 1990 (Qld) s 7 Customs (Prohibited Import) Regulations 1956 (Cth) Schedule 2 item 9, Schedule 6 Part 1 cl 4.1 Weapons Regulation 1996 (Qld) s 73 Project Blue Sky v ABA (1998) 194 CLR 355 cited R v Bull (1974) 131 CLR 203 followed Wilson v Chambers (1925-26) 38 CLR 131 followed Collector of Customs (NSW) v Darch (1990) 98 ALR 225 applied ACE Customs Services Pty Ltd v Collector of Customs (NSW) (1991) 104 ALR 463 applied Macquarie Dictionary, 3rd edition GRANITE ARMS PTY LIMITED (ACN 006 551 748) and OMEO WAY PTY LIMITED (ACN 050 415 355) v THE CHIEF EXECUTIVE OFFICER OF CUSTOMS No Q 66 of 2001 SPENDER J BRISBANE 23 MAY 2003 IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY Q 66 OF 2001 BETWEEN: GRANITE ARMS PTY LIMITED (ACN 006 551 748) FIRST APPLICANT/FIRST CROSS RESPONDENT OMEO WAY PTY LIMITED (ACN 050 415 355) SECOND APPLICANT/SECOND CROSS RESPONDENT AND: THE CHIEF EXECUTIVE OFFICER OF CUSTOMS RESPONDENT/CROSS CLAIMANT JUDGE: SPENDER J DATE OF ORDER: 23 MAY 2003 WHERE MADE: BRISBANE THE COURT ORDERS THAT: 1. The cross claim is dismissed. 2. The cross claimant pay the cross respondents their costs of and incidental to the cross claim, to be taxed if not agreed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY Q 66 OF 2001 BETWEEN: GRANITE ARMS PTY LIMITED (ACN 006 551 748) FIRST APPLICANT/FIRST CROSS RESPONDENT OMEO WAY PTY LIMITED (ACN 050 415 355) SECOND APPLICANT/SECOND CROSS RESPONDENT AND: THE CHIEF EXECUTIVE OFFICER OF CUSTOMS RESPONDENT/CROSS CLAIMANT JUDGE: SPENDER J DATE: 23 MAY 2003 PLACE: BRISBANE REASONS FOR JUDGMENT 1 These reasons for judgment are in relation to the cross claim by the Chief Executive Officer of Customs ("Customs") in proceedings brought by Granite Arms Pty Limited ("Granite Arms") and Omeo Way Pty Limited ("Omeo Way") concerning the importation of 2,000 Chinese handguns into Australia on or about 8 May 2000. By an amended application filed 24 September 2002, Granite Arms and Omeo Way seek relief pursuant to the Administrative Decisions (Judicial Review) Act 1977 (Cth) seeking, amongst other things, declarations that the seizure of the firearms was unlawful and orders that the firearms be returned to Granite Arms and/or Omeo Way, as well as damages for wrongful detinue or conversion. 2 On 14 October 2002, Customs filed a defence and cross claim to the amended application. By its cross claim, Customs seeks: (a) a declaration that the 2,000 M2123 Norinco pistols ("the handguns") that were imported into Australia from China on or about 3 May 2000 under cover of entry for home consumption numbered 2E.0129.0382E are "special forfeited goods"; and (b) an order that the handguns be condemned as forfeited to the Crown. 3 On 29 November 2002 the Court ordered, at the request and with the consent of the parties, that the respondent's cross claim be heard and determined before the applicants' application. 4 There are no doubt many people who believe that having 2,000 handguns for sale in Australia, albeit that there are restrictions on the persons to whom and by whom those weapons can be sold, are 2,000 handguns too many. On the other hand there are those who assert that, subject to proper controls, persons in Australia are entitled to own firearms, including handguns. Those people do not necessarily have to go as far as the National Rifle Association in the United States who, in reliance on the 2nd amendment to the American Constitution (which states 'A well-regulated militia, being necessary to the security of a free State, the right of the people to keep and bear arms, shall not be infringed'), seem to assert that it is the constitutional right of every American to own handguns, machine guns, weapons of every kind, including Kalishnikov assault rifles and bazookas. This case is not about resolving that polarisation of views, although it has to be said that the submissions on both sides have something of those philosophical differences. 5 The resolution of the cross claim depends on a short point of statutory construction dealing with the proper interpretation of "importer" in clause 4.1 of Part 1 of Schedule 6 of the Customs (Prohibited Import) Regulations 1956 (Cth) ("the Regulations"), as it then was. 6 I will deal first with the legislative framework against which the cross claim falls to be determined, then the factual background before considering the rival contentions. Legislative Framework 7 By s 50(1) of the Customs Act 1901 (Cth) ("the Act") 'the Governor-General may, by regulation, prohibit the importation of goods into Australia'. By s 50(2) the power to prohibit the importation of goods may be exercised: '(a) by prohibiting the importation of goods absolutely; (aa) by prohibiting the importation of goods in specified circumstances; (b) by prohibiting the importation of goods from a specified place; or (c) by prohibiting the importation of goods unless specified conditions or restrictions are complied with.' 8 By s 51(1), 'Goods, the importation of which is prohibited under section 50, are prohibited imports.' 9 "Special Forfeited Goods" are defined by s 183UA of the Act to mean forfeited goods that are referred to in paragraph 229(1)(b) or (n). Paragraph 229(1)(b) provides that prohibited imports are forfeited goods. It follows that all prohibited imports are special forfeited goods liable to be forfeited to the Crown. 10 Section 203B of the Act authorises an authorised officer to seize, without warrant, any goods that the person reasonably suspects are special forfeited goods. An officer acting under s 203B is required to serve a seizure notice under s 205. Pursuant to s 205B, if goods are seized under s 203B, the owner of the goods may make a claim to the appropriate person, being the Chief Executive Officer of Customs or a Regional Director for a State or Territory for the return of the goods. By s 4 of the Act, "owner" is given a very extended definition. Section 4 relevantly provides: 'Owner in respect of goods includes any person (other than an officer of Customs) being or holding himself out to be the owner, importer, exporter, consignee, agent, or person possessed of, or beneficially interested in, or having any control of, or power of disposition over the goods.' 11 If no claim is made, s 205C provides that thirty days after service of a seizure notice the goods are taken to be condemned as forfeited to the Crown. Section 205D(2) provides that if (as was the case in the present proceedings) a claim is made for the return of the goods by the owner, the person who seized the goods must, unless permitted by law to retain, destroy or dispose of the goods, return them to the owner unless one of pars 205D(2)(a), (b), (c), (d) or (e) apply. Paragraph (e) requires the return of the goods unless, if they are special forfeited goods, not later than 120 days after the claim for their return is made, proceedings before a court of summary jurisdiction for a declaration that the goods are special forfeited goods have been commenced and, on completion of the proceedings, a court has made an order for condemnation of the goods as forfeited to the Crown. 12 Under s 205D(5), subject to one exception, if on completion of proceedings under s 205D(2)(e) the court is satisfied that the goods are special forfeited goods, the court must declare the goods to be special forfeited goods and make an order for condemnation of the goods as forfeited to the Crown. The exception, found in s 205D(6), is that a court must not make an order under subs (5) if proceedings for an offence involving the goods have been commenced. 13 Customs made an application in the present case to the Magistrates Court of Victoria at Melbourne under s 205D(2)(e) seeking a declaration that the goods are special forfeited goods, and an order that they be condemned as forfeited to the Crown. Those proceedings are in abeyance pending the hearing and determination of the present application. 14 Pursuant to s 50 of the Act, the Regulations concerning firearms are of central importance to the present case. Regulation 4F of those Regulations had the heading "Importation of firearms, firearm accessories, firearm parts, firearm magazines, ammunition, components of ammunition and replicas". Regulation 4F(1) relevantly provided that, subject to exceptions not presently relevant, the importation of a firearm was prohibited unless the firearm was an article to which an item in Part 2 of Schedule 6 applied, and the importation was in accordance with the requirements set out in column 3 of the item. 15 The structure of the regulations is generally to prohibit the importation of firearms, subject to certain defined exceptions. There is no dispute that the 2,000 handguns the subject of the present application and cross claim are "firearms" as defined by Regulation 4F(4). Handguns are included in item 9 of Part 2 of Schedule 6. The manner of importation of handguns is prescribed in column 3 of item 9. Accordingly, handguns are prohibited imports (and therefore "special forfeited goods") unless their importation is in accordance with the requirements of column 3. 16 Column 3 prescribes three requirements for the importation of handguns: '(a) the importation must comply with at least 1 of the following tests: (i) the official purposes test; (ii) the specified purposes test; (iii) the specified person test (iv) the Police authorisation test; and (b) … the firearm must bear a unique serial number; and (c) … the firearm must comply with the safety requirements set out in [item1 of Part 3]'. 17 The Police authorisation test, being the test referred to in (a)(iv) of item 9 of Part 2 of Schedule 6 of the Regulations was, at the time relevant to this importation, prescribed in clause 4.1 of Part 1 of Schedule 6 in the following terms: '4.1 The importation of an article, being a firearm … complies with the test if: (a) the importer of the article has been given a statement, in an approved form, to the effect that the importer holds a licence or authorisation according to the law of the relevant State or Territory to possess the article, or that a licence or authorisation to possess the article is not required under the law of the relevant State or Territory, and the statement is given by (i) for a State - by the Commissioner or Chief Commissioner of the police force of the State; and (ii) for the Northern Territory – the Commissioner of Police of the police force of the Northern Territory; and (iii) for a Territory other than the Northern Territory – the Chief Police Officer of the Australian Capital Territory; and (b) …; and (c) the importer produces to a Collector, at or before importation: (i) the statement in the approved form; or (ii) the statement and the certificate in the approved forms.' 18 The central question on the cross claim is whether Granite Arms was "the importer" of the handguns for the purpose of the Police authorisation test. Neither the Act nor the Regulations defines "importer". Factual Background 19 Omeo Way is a company incorporated in Queensland. At all relevant times it was a licensed firearms dealer in Queensland, and traded under the name or style of "Owen Guns". Omeo Way is controlled by Ronald Owen. As a licensed firearms dealer in Queensland, Omeo Way is and was entitled to possess the handguns in Queensland. 20 On 3 January 2000 Omeo Way made an agreement with Wong Long Development Co Ltd ("Wong Long"), a Chinese company, for the purchase of 3,000 handguns. The contract provided for the goods to be delivered in two lots, one of 2,000 pieces, the other of 1,000 pieces. These proceedings are concerned only with the former lot. 21 The material terms of the agreement between Omeo Way and Wong Long were that: (a) The goods would be sent by air to Brisbane. (b) A deposit of 30% would be payable with the balance payable one week before shipment. (c) The goods would be embarked from China within 40 days of receipt of the deposit. (d) The total contract price was $US144,540.00 to be paid as follows: (i) $US 43,362 as a deposit. (ii) $US 33,726.00 being the balance of payment for the shipment of 1,000 guns payable one week before that shipment. (iii) $US 67,452.00 being the balance of payment for the shipment of 2,000 guns again payable one week before that shipment. 22 Omeo Way, by international money transfers from banks in Queensland, paid the total contract price in three instalments on the respective dates to either Wong Long or a person or entity associated with that company: (a) 19 January 2000: $US 43,362 (b) 8 March 2000: $US 33,726 (c) 19 April 2000: $US 67,452. 23 On 27 January 2000 Mr Owen applied to the Weapons Licensing Branch of the Queensland Police Service for an "Import Permit" in respect of the importation of 2000 handguns. The application said: 'Could you please supply an Import Permit to suit the Customs Service for Import into Australia, I think the name of the form is a B2709a or something similar to that. I am a licenced dealer No 5000130-04 for category H. The Pistols are Semi Automatic 9 mm, calibre, 8 shot capacity of a Tokorev design, Model 213, Manufactured in China by the China Xian Shi Dia Corporation, which is a state owned company. Please find below the attached 2000 Serial Numbers for the Model 213 pistols. If you have any problems or queries please contact us on the above numbers, we are expecting the goods to leave shortly by Air to Brisbane.' It is not in dispute that the 2,000 handguns referred to in that application were part of the purchase by Omeo Way from Wong Long. 24 On 10 February 2000 Inspector G. Brown of the Queensland Police Service issued an authorisation No 060596 in Form B709A to Mr Owen in respect of the 2,000 handguns. 25 On 24 February 2000 Inspector Brown wrote to Mr Owen's solicitors referring to a dispute between Mr Owen and the Queensland Police Service as to whether modifications carried out by Mr Owen in respect of "Category H weapons" was in breach of s 7(1) of the Weapons Act 1990 (Qld) and s 73(2) to (5) of the Weapons Regulation 1996 (Qld). The letter said in part: 'The assertion that your client will continue to modify category H weapons by a method that is considered to be in breach of Section 7(1) of the Weapons Act 1990 and Section 73(2) to (5) of the Weapons Regulation 1996 is of great concern to the Queensland Police Service. This is a serious matter of public interest and safety. Accordingly I have rescinded import permits number 061583 issued on 10 January 2000 and 060596 issued on 10 February 2000.' 26 Customs was advised of the rescission of authorisation number 060596 in an undated fax sent by Queensland Police on 23 February 2000. That fax relevantly said: 'These permits have been withdrawn due to Mr Owens refusal to cease his activity in modifying this type of firearm. There are serious public interest concerns should this activity continue. Could you please advise this office if the firearms have already entered the country or when they reach the customs barrier.' 27 As a consequence of the decision of the Queensland Police, Mr Owen deposed to the course of action that he undertook to overcome the difficulty of Omeo Way's inability to meet the Police authorisation test. Mr Owen deposed: '15. As the goods had been paid for and were ready to be shipped a decision had to be made by Omeo Way as to where they should be shipped to. As the goods were to be wholesaled to Licenced Dealers [throughout] all States of Australia, the decision was made to Consign the goods to a trusted business associate Garnet Featherstone of Granite Arms, a Licensed Dealers of Firearms in Victoria, who had agreed to import them. 16. Wong Long Developments was contacted and asked to consign the goods to Garnet Featherstone, Granite Arms. …' 28 Pursuant to the agreement referred to by Mr Owen, Wong Long consigned the 3,000 handguns to Granite Arms under two invoices, the first relating to the shipment of 1,000 guns and the second relating to the balance of 2,000 guns. Omeo Way paid the costs, expenses and outgoings in relation to the importation of the 2,000 handguns, and during the period between importation and their seizure in September 2001, it has paid the storage charges in respect of the handguns. 29 Granite Arms is a company incorporated in Victoria which operates the business of licensed gun dealer from premises in Kangaroo Flat. As a licensed gun dealer, it is and was entitled to possess the goods in Victoria. It is a regular importer of firearms and related goods. Granite Arms is controlled by a Mr Garnet Featherstone. 30 Customs, in the course of the hearing of the cross claim, made an important admission. Customs admits the allegations by the applicants in par 3 of their Statement of Claim: '3 On 8 May 2000 the First Applicant as the importer, as agent for the Second Applicant, imported into Australia, 2000 Norinco M213 pistols PARTICULARS (a) By an agreement by Ronald Owen on behalf of the Second Applicant and Garnet Featherstone on behalf of the First Applicant on or about 26 February 2000 the First Applicant agreed to import the said pistols on behalf of the Second Applicant on the basis that the Second Applicant would pay the costs, expenses and outgoings in relation to the import of the said pistols. (b) Pursuant to the said agreement the First Applicant applied for and obtained a permit from the Victorian Police for the import of the said pistols which licence or permit gave lawful authority to import and receive into its possession the said pistols. (c) Pursuant to the said agreement the First Applicant, dealing with Freight on Board Pty Ltd, the Customs Agent handling the transportation of the said pistols, instructed Freight on Board Limited to submit an "entry for home consumption" form so as to enable the First Applicant to take delivery of the said pistols.' 31 This admission is that Granite Arms was the importer of the 2,000 handguns, and that Granite Arms imported the goods as agent for Omeo Way. 32 On 11 April 2000 Granite Arms lodged with Victoria Police an application entitled "Application by a Licensed Firearm Dealer for Issue of Customs Permit to Import Firearms/Parts/Accessories/Ammunition". That application was in respect of the same handguns for which Omeo Way had received authorisation from Queensland Police on 10 February 2000, which authorisation was later rescinded. It is true that Granite Arms did not disclose the interest that Omeo Way had in the 2,000 handguns. However, there is in my opinion no requirement under the Act that Granite Arms make such disclosure. Both Granite Arms and Omeo Way were lawfully entitled to possess the handguns. Granite Arms was entitled to import the handguns, and it did so on behalf of Omeo Way. 33 On 12 April 2000 Victoria Police issued authorisation No. 058417 in Form B709A to Granite Arms in respect of the handguns. 34 On or about 8 May 2000, the handguns entered Australia by air and were disembarked at Tullamarine Airport Melbourne. The importation was supported by an entry (No 2E.0129.0382E) that was created by the customs broker of Granite Arms. On 8 May 2000 Customs required that a sample of the shipment of handguns be subjected to safety testing, but it was not until 7 September 2001 that the handguns were seized under s 203B of the Act. Two notices of seizure were served under s 205. On 12 September 2001 replacement seizure notices covering the guns were served on Omeo Way, and on 9 October 2001 Customs received two claims for the return of the goods signed by Mr Owen on behalf of Omeo Way. 35 In the sixteen months between the arrival of the handguns and the seizure on 7 September 2001, there were extensive discussions between Customs, the Customs agent retained by Granite Arms, and Omeo Way. Reference should be made particularly to a letter dated 6 December 2000 to the solicitor for Omeo Way by Jaclyne Fisher, the Regional Manager Victoria of the Australian Customs Service. That letter relevantly says: 'Thank you for your letter of 6th December 2000 to the Regional Director of Customs in Victoria on behalf of Mr Ronald Owens and Omeo Way Pty Ltd in relation to a shipment of handguns into Victoria. The handguns have been imported into Australia by Granite Arms, and the Police Authorisation, as required under the provisions of the Customs (Prohibited Imports) Regulations 1956, in relation to the importation is in that company's name. While it appears that your client may have a business arrangement with Granite Arms to obtain possession of the handguns after completion of Customs procedures, Customs is unable to discuss the terms of their release with anyone other than the importer.' (Emphasis added) 36 There were two bases asserted by Customs for the decision to seize. As to each of the handguns it was alleged that the importation did not comply with the Police authorisation test. In addition, as to some of the handguns, it was alleged they did not pass the applicable safety testing. It was made plain by Mr K.H. Bell QC, Senior Counsel for Customs, that it is only in respect of the contention that the handguns did not pass the Police authorisation test that Customs presses its cross claim. 37 If the importation of the handguns satisfies the Police authorisation test, the goods are not special prohibited goods. If the importation does not satisfy that test, the goods are special prohibited goods and therefore liable to forfeiture. 38 Customs contends that "the importer of the article" in clause 4.1 of Part 1 of Schedule 6 of the Regulations must be read down and refer solely to a principal, and not to an agent of the principal. It is said that the principal must give the statement referred to in the regulation, not the agent of the principal. The respondent contends that Granite Arms was the importer of the goods. 39 Customs acknowledges that 'the concept of an importer in Customs law may sometimes include a wide range of persons, including owners, hirers, customs agents and so on'. In support of its submission that "importer" in clause 4.1 does not have its ordinary meaning, but has to be read down, Customs refers to the observations of Justices McHugh, Gummow, Kirby and Hayne in Project Blue Sky v ABA (1998) 194 CLR 355 at 381 that: '… the process of construction must always begin by examining the context of the provision that is being construed.' It is said that one of the purposes of the Act of regulating the importation of goods into Australia, is to prevent entry into Australia of goods that may compromise the safety of the community. It is contended that the context and history of the relevant regulations support the conclusion that a purpose of the prohibition on the importation of firearms is a form of gun entry control designed to advance public safety by controlling the number and type of firearms that enter Australia. So much might be accepted. 40 It is then said that the nature of the importation control scheme points to the fact that it would be absurd to give "importer" its ordinary meaning and it must be read down narrowly to mean the beneficial owner of the goods or the hirer of the goods. Therefore, where a principal procures an agent to carry out an importation, it is the principal who must give the statement that it holds the licence or authority to possess the article in the relevant State or Territory. Similarly, where a principal procures a customs agent to carry out the importation, the principal and not the customs agent must give the statement. 41 In my opinion, when one has regard to the then terms of Regulation 4F(1), the concern about compromising the safety of the community is met by requiring the importer, whoever that person is, to satisfy the Police authorisation test. 42 The ordinary meaning of "import" is 'to bring in from a foreign country merchandise or commodities for sale, use, processing or re-export': Macquarie Dictionary, 3rd edition. As Senior Counsel for Customs acknowledges, in the ordinary meaning of the word an "importer" is someone who brings the goods into Australia. This meaning does not require that the importer be the owner at law of the goods, or even that the goods will be owned in Australia at all. 43 If the "importer" in Regulation 4(F) is given its ordinary and natural meaning, then Granite Arms satisfies the Police authorisation test. Barwick CJ in R v Bull (1974) 131 CLR 203 observed at 212: '… in general importation of goods, in my opinion, according to the natural meaning of the word, involves landing them, or bringing them within a port for the purpose of landing them in the country or place in relation to which importation is regulated.' 44 In Wilson v Chambers (1925-26) 38 CLR 131, Knox CJ said at 136: 'The Act contains no definition of the meaning of the word "imported" but I think Mr Mitchell was right in the view he put forward that goods are imported whenever they are brought into port for the purpose of being discharged there.' Higgins J at 146 said: 'There is no definition of the words "import" or "importation" in the Act. Several cases have been cited from the Courts of the United States as to the meaning in United States Acts; but it is for us to find the meaning from the language of our own Act. The appropriate definition found in the Oxford Dictionary for "import" is "to bring in or cause to be brought in (goods or merchandise) from a foreign country, in international commerce"; but is it an essential condition under our Act that the goods be landed before entry? Or that they be, at least, unshipped?' Higgins J concluded at 147 that the goods were ' "imported" within the meaning of sec. 68 [of the Customs Act]'. Finally, Starke J said at 150: "It cannot, in my opinion, be maintained that the mere act of bringing goods into port constitutes an importation; though unexplained it may be evidence of the fact. If goods, however, are brought into their port of destination for the purpose of being there discharged, the act of importation is complete. On the other hand, the act of importation is not complete if a ship enter some port of call with goods on board which is not the destined port of discharge for those goods. Actual landing is not necessary, as was argued, to constitute an importation for fiscal purposes.' Importantly, his Honour later said: 'It is clearly the duty of an "owner" who imports goods into Australia to enter them at the Customs, and that term "owner" includes the consignee of the goods (vide secs. 37 and 4, "Owner").' That observation clearly contemplates that the consignee of the goods may be the person who is the importer of them. 45 All of these observations are inconsistent with the meaning of "importer" being restricted to the person who has the beneficial title to the goods the subject of the importation. There is, in my opinion, no warrant either in the statutory scheme, or the history or the terms of the Regulations or any other consideration, which requires the words "the importer of an article" to be given other than its ordinary and natural meaning. Here, Granite Arms was the consignee of the goods and the party entitled to possess the goods at the point of importation. In my opinion it was the importer of the goods. There is, in my opinion, no warrant for reading down the word "importer", a term not expressly defined in the Act, so as to be construed as meaning only the owner at law, the person who has paid for the goods. 46 Collector of Customs (NSW) v Darch (1990) 98 ALR 225 is an illustration of a case where the importer of goods may be a person other than the person who ordered the goods and paid for the freight. In that case, bicycle parts were despatched by a Taiwanese exporter. Some of the goods were despatched to a company which traded as GMI, and some of them were despatched to a business Sarima, being the business name of a partnership of natural persons. Meagher JA at 231 described what occurred thereafter: 'Sarima transferred its goods to GMI, which paid sales tax on all the goods, whether imported by it or by Sarima. GMI then assembled the goods into bicycle kits, each kit comprising parts which when fitted together would amount to a bicycle. These kits were transferred to a company called Centurion Bicycles Pty Ltd.' His Honour continued: 'The principal issue debated before Yeldham J at first instance, and again before us on appeal, was the identity of the owners of the imported goods under the general law. The respondent plaintiffs argued on importation the owners were GMI and Sarima; the appellants argued that Centurion was the true owner.' 47 At the relevant time the duty payable on "bicycles"under the Customs (Tariff) Act 1982 (Cth) was higher than the duty payable on "bicycle parts". Mahoney JA concluded at 230: 'It follows from what I have said that, in fact, the importers of the bicycle parts were respectively GMI and Sarima.' 48 Of the broad definition of "owner" in the Act, Mahoney JA said at 230: 'The application of this definition in a context such as the present is, as the argument indicated, not without difficulty. Literally applied according merely to the terms of the definition, there would, in a case where an owner of goods engaged an agent to act for him on the importation of goods, be two owners, the true owner and the "agent". Where the goods were imported under a contract requiring them to be sent to a "consignee" or to a bailee having a beneficial interest in them, such persons would, in addition, be owners. It is, I think, clear that the definition is one to be applied according to the circumstances of particular cases.' Meagher JA said at 235 of the statutory definition of "owner": 'It is a difficult definition. In the first place, the use of the word "agent" is ambiguous. Since many importers will in practice use a variety of different agents, are all its agents encompassed by the definition or only some? If the latter, on what criteria does one determine which ones are encompassed? In the second place, how is the definition to be applied in circumstances involving both an owner and his agent? It cannot be disputed in the present case that Centurion was the distribution agent of both GMI and Sarima, and was also on the facts found by his Honour to be the ordering agent for both of them, but it is not easy to see how this circumstance can assist the argument of the appellants. It cannot falsify the classifications which his Honour found to be correct, and it cannot render the description of GMI and Sarima as "owner" false or wilfully misleading. It is therefore impossible to argue that the expanded definition of "owner" makes the goods "forfeited goods" if they could not be so described apart from the definition.' 49 There is nothing in the ordinary meaning of "importer" that requires that that person be the owner at law of the goods. Frequently, importers of goods act on behalf of others who are in fact the owners of the goods in importing the goods. Section 47A(7) of the Trade Practices Act 1974 (Cth) provides that a corporation on whose behalf goods are imported into Australia is deemed, for the purposes of a product liability claim, to be the importer. It seems to me that such a deeming provision would be otiose if the legal owner of the goods who asked another to import the goods on his behalf was the importer of the goods. 50 The test for a prohibited import does not depend on the identification of the owner at law of the imported goods. It depends on whether there is a Police statement that the "importer" is lawfully entitled to possess the article. The focus on a legal entitlement to possession, as opposed to ownership, is a strong indication, in my opinion, against the construction contended for by Customs. 51 Further, in my opinion, the concession by Customs referred to in par 32 above reflects a recognition that Granite Arms was, in the present circumstances, the importer of the handguns. 52 In ACE Custom Services Pty Ltd v Collector of Customs (NSW) (1991) 104 ALR 463, Davies J was concerned with the expanded definition of "owner" in s 4 of the Act. His Honour observed at 466: 'This definition is not an easy one to apply. It is certainly true that a licensed customs agent may, for some purposes at least, be treated as if he were the owner of the imported goods. Thus, s 183(1) of the Act provides: "Where a person is, holds himself out to be or acts as if he were the agent of an owner of goods for the purposes of the Customs Acts, that person shall, for the purposes of the Customs Acts (including liability to penalty), be deemed to be the owner of those goods".' And later: 'Leaving aside the effect of s 183(1), the definition in general appears to refer to persons who had the control of goods. The definition therefore encompasses importers of all types, whether they have the legal ownership of the goods or are merely the persons in Australia to whom by arrangement the goods are consigned or who otherwise have the control of the goods.' 53 This last sentence reflects a recognition that in its ordinary meaning, an importer can be not only persons who have the legal ownership of the goods, but also persons who are merely the persons in Australia 'to whom by arrangement the goods are consigned', or persons 'who otherwise have the control of the goods'. 54 Here, Granite Arms was unquestionably the consignee of the handguns; the bill of lading was in favour of Granite Arms as consignee; and the letter from Jaclyne Fisher dated 6 December 2000 referred to in par 32 above correctly, in my view, acknowledges that Granite Arms was the importer of the handguns. 55 For the above reasons, the cross claim is dismissed. The respondent/cross claimant is to pay the costs of and incidental to the cross claim of the cross respondents, the first and second applicants in the principal proceedings, to be taxed if not agreed. I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Spender. Associate: Dated: 23 May 2003 Counsel for the Applicant: Mr Michael Evans, with Mr Frank Martin Solicitor for the Applicant: Roberts & Kuskie Solicitors Counsel for the Respondent: Mr Kevin H. Bell, QC with Mr Richard M. Niall Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 30 April 2003 Date of Judgment: 23 May 2003