Chief Executive Officer of Customs v El Hajje [2005] HCA 35

HIGH COURT OF AUSTRALIA

McHUGH, GUMMOW, KIRBY, HAYNE AND HEYDON JJ

CHIEF EXECUTIVE OFFICER OF CUSTOMS APPELLANT

AND

NAZIH EL HAJJE RESPONDENT

Chief Executive Officer of Customs v El Hajje

[2005] HCA 35

3 August 2005

M171/2004

ORDER

1. Appeal allowed with costs.

2. Set aside the orders of the Court of Appeal of the Supreme Court of Victoria made on 17 December 2003 and remit the matter to that Court for its further hearing and determination.

On appeal from the Supreme Court of Victoria

Representation:

C M Maxwell QC with P D Nicholas for the appellant (instructed by the Australian Government Solicitor)

D B Baker with G J Herbert for the respondent (instructed by Michael J Gleeson & Associates Pty Ltd)

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Chief Executive Officer of Customs v El Hajje

Customs and excise – Averment provision – Whether ultimate fact in issue in an excise prosecution is not properly the subject-matter of an averment provision – Whether Excise Act 1901 (Cth), s 144(1) draws a distinction between an ultimate fact in issue and other facts – Whether primary judge erred in finding that the material in the respondent's possession, custody or control was manufactured or partly manufactured goods.

Constitutional law (Cth) – Whether the High Court should consider constitutional issues if not necessary to decide a case – Effect of absence of notice under Judiciary Act 1903 (Cth), s 78A.

Constitutional law (Cth) – Averment provisions – Compatibility of statutory averment provisions with the judicial power and functions provided for by Ch III of the Constitution.

Constitutional law (Cth) – Interpretation of Commonwealth statutes – Relevance of Constitution where not raised by parties – Whether High Court practice requires that constitutional questions not be considered in such cases – Whether any such consideration involves procedural unfairness to law officers entitled to notice of constitutional issues – Whether Constitution a necessary contextual consideration in interpretation of Commonwealth statutes.