R v McLennan; Carr, Ex p [1952] HCA 39

High Court of Australia Dixon C.J. Williams, Webb, Fullagar and Kitto JJ. R v McLennan; Carr, Ex p [1952] HCA 39

ORDER Appeal dismissed and Order Nisi discharged with costs.

Cur. adv. vult.

The following written judgments were delivered:—

July 31 Dixon C.J., Williams, Fullagar and Kitto JJ.

This is an appeal pursuant to s. 39 (2) (b) of the Judiciary Act 1903-1950 and s. IV. of the Appeal Rules from a conviction by a Court of Petty Sessions exercising Federal jurisdiction. The conviction was for an offence under s. 233 (1) (c) of the Customs Act 1901-1949 which provides that no person shall export any prohibited exports. Section 111 also provides that no prohibited exports shall be exported. The defendant, who is the appellant, was convicted for that on or about 19th August 1949, he did export by the S.S. Tomar prohibited exports to wit certain specified quantities of scrap non-ferrous metal and he was adjudged to pay a penalty of £500; see ss. 240 and 245.

The Customs (Prohibited Exports) Regulations purport to bring scrap non-ferrous metal under the category of prohibited exports. The ground upon which the appeal of the defendants is supported is that in so far as they relate to scrap non-ferrous metal the regulations are invalid. Regulation 6 provides that the exportation of goods specified in the Third Schedule of the regulations shall be prohibited, unless the conditions and restrictions respectively specified in that schedule opposite to the name or description of those goods are complied with. The sixty-fifth item on the Third Schedule give the name or description of "metals, non-ferrous, scrap" and opposite specifies a condition or restriction which, at the date of the offence stood thus—"The intending exporter shall produce to the Collector of Customs a covering approval issued by the Department of Supply and Development", see S.R. 1946 No. 138 as amended by S.R. 1948 No. 105. The general power to make regulations under the Customs Act is contained in s. 270 but the authority for the regulations in question must be found in s. 112. Since the conviction, which took place on 22nd June 1951, a new s. 112 has been substituted by the Customs Act 1951 (No. 56 of 1951) which came into operation on 11th December 1951 before the hearing of this appeal. But at the time when the regulations were made so much of s. 112 as is relied upon to support it was as follows:—"112 (1) The Governor-General may, by regulation, prohibit the exportation of any goods—(b) the exportation of which would, in his opinion, be harmful to the Commonwealth (2) The power contained in sub-s. (1) shall extend to authorize the prohibition of the exportation of goods generally, or to any specified place, and either absolutely or so as to allow of the exportation of the goods subject to any condition or restriction. (3) All goods the exportation of which is prohibited shall be prohibited exports to the extent to which the prohibition extends."