Commonwealth v SCI Operations Pty Ltd [1998] HCA 20

High Court of Australia Brennan CJ Gaudron, McHugh, Gummow and Kirby JJ Commonwealth v SCI Operations Pty Ltd (HCA 20/98) [1998] HCA 20

ORDER

1. Appeals allowed with costs.

2. Special leave for the respondents to cross-appeal granted and cross-appeals dismissed with costs.

3. Orders of the Full Court of the Federal Court of Australia set aside and in lieu thereof appeals to that Court dismissed with costs.

Cur adv vult

The following written judgments were delivered:—

26 March 1998 Brennan CJ.

1. Section 269C(1) of the Customs Act 1901 Cth (the Act) authorises [1] the Comptroller-General of Customs to make an order in respect of particular goods where the Comptroller is satisfied that —

(a) goods serving similar functions to the particular goods are not produced in Australia; and

(b) goods serving similar functions to the particular goods are not capable of being produced in Australia by any person in the normal course of business.

An order made under sub-s (1) is known as a Commercial Tariff Concession Order (s 269C(1C) of the Act) (a CTCO). It must be in writing and declare that "particular goods are goods to which a prescribed item specified in the order applies" (s 269C(1)). The term "prescribed item" is defined (s 269B(1)) to mean — an item in Schedule 4 to the Customs Tariff Act 1987 that is expressed to apply to goods that a Commercial Tariff Concession Order declares are goods to which the item applies. 1. I refer to the provisions in Pt XVA of the Customs Act as they stood in 1987, the year in which the respondents applied for a Commercial Tariff Concession Order, in the present tense. Although a new Pt XVA had been enacted before 3 June 1994 when the Order was made, the case has been conducted on the footing that the rights and obligations of the parties consequent upon the making of the Order are to be determined by reference, inter alia, to Pt XVA as it stood in 1987.