Milicevic v Campbell [1975] HCA 20

High Court of Australia McTiernan A.C.J. Gibbs, Mason and Jacobs JJ. Milicevic v Campbell [1975] HCA 20

Cur. adv. vult.

The following written judgments were delivered:—

June 13. 1975 McTiernan A.C.J.

This is a reference under s. 18 of the Judiciary Act 1903-1969 Cth.

The question discussed in the argument on the reference was whether s. 233B (1) (ca) of the Customs Act 1901-1971 is a valid law of the Commonwealth. The discussion centred upon the words "which are reasonably suspected of having been imported into Australia in contravention of this Act".

Section 51 (i.) of the Constitution is the source of the Commonwealth power to prohibit the importation of goods into Australia. The words "prohibited imports" in s. 233B mean narcotic goods the importation of which into Australia is prohibited under s. 50 of the Act. The description "prohibited imports" is to be found in s. 51 of the Act.

It is a valid exercise of the legislative power incidental to the power granted by s. 51 (i.) to make the possession in Australia without reasonable excuse of narcotic goods an offence punishable under the Customs Act 1901-1971. That clearly is an appropriate means of excluding narcotic substances, as defined in s. 4 of the Customs Act 1901-1971 (as amended by the Customs Act (No. 2) 1971), from the channels of trade and commerce with other countries.

Section 233B (1) (c) differs from s. 233B (1) (ca) only in that the offence under the former provision is to be in possession of narcotic goods in the category of prohibited imports, "which have been imported into Australia in contravention of this Act". I think that there is no objection to the constitutionality of that provision. Did the parliament overstep the limit of power granted by s. 51 (i.) of the Constitution by inserting par. (ca) in s. 233B (1), having regard to the difference between the wording of that paragraph and that of par. (c)? It seems to me that the insertion of par. (ca) in s. 233B (1) was consequential upon the wide extension of the category of narcotic substances to which s. 233B would apply after the commencement of the Customs Act (No. 2) 1971. For in the long list of narcotic substances enumerated in the VIth sch. to the Customs Act 1901-1971, inserted by s. 9 of the Customs Act (No. 2) 1971, there may be a substance in the possession of a person for which he has no reasonable excuse and which is reasonably suspected of having been imported into Australia. Paragraph (c) would not be applicable to such a person. Paragraph (ca) would be applicable to him. I do not think that the words "which are reasonably suspected of having been imported into Australia" cause s. 233B (1) (ca) to exceed the power of the Commonwealth under s. 51 (i.) of the Constitution. This power is plenary in its quality. It enables the parliament to make a law prohibiting the importation of goods and to enact a law imposing a penalty for any infringement of the law.