R v Smithers; Ex parte McMillan [1982] HCA 76

High Court of Australia Gibbs C.J. Mason, Murphy, Wilson, Brennan, Deane and Dawson JJ. R v Smithers; Ex parte McMillan [1982] HCA 76

ORDER The Queen v. Smithers; Ex parte McMillan. Order nisi for a writ of prohibition discharged with costs. Federal Commissioner of Police v. McMillan. No order on the Attorney-General's application.

Cur. adv. vult.

The Court delivered the following written judgment:—

Dec. 16 Gibbs C.J., Mason, Murphy, Wilson, Brennan, Deane and Dawson JJ.

Section 243B of the Customs Act 1901 Cth, as amended, (the Act), the validity of which is questioned in these proceedings, enables the Minister, the Commissioner of Police or the Comptroller to institute proceedings in the Federal Court of Australia on behalf of the Commonwealth for an order that a person pay a pecuniary penalty to the Commonwealth in respect of a particular prescribed narcotics dealing engaged in by him, or prescribed narcotics dealings engaged in by him during a particular period. The section goes on to provide that if the Court is satisfied that the person has engaged in such a dealing or such dealings, the Court shall assess, in accordance with s. 243C, the value of the benefits derived by the person by reason of his having engaged in that dealing, or in those dealings, and order the person to pay to the Commonwealth a pecuniary penalty equal to the value as so assessed.

Section 243E, the validity of which is also called in question, provides that where a proceeding has been instituted under s. 243B for an order for the payment of a pecuniary penalty, the Minister, the Commissioner of Police or the Comptroller may make application to the Court, ex parte, for an order directing the Official Trustee to take control of property specified in the application or of all the property of the defendant.