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CEO OF CUSTOMS v GRANITE ARMS PTY LTD
WHO IS THE REAL IMPORTER?

This case concerned the importation of a shipment of hand guns and the question as to who was the real importer for the purposes of having the required statutory permit.

A Queensland company called Omeo Way purchased the guns from China and arranged for the relevant payments. Subsequent to the order, but before the guns arrived, the relevant permit held by Omeo Way was rescinded by the Police. Omeo Way then made the decision to arrange for the guns to be consigned to a Victorian company, Granite Arms. Omeo Way was to pay for all expenses and outgoings, including the freight, customs clearance and the like.

A key point was that Granite Arms did hold a relevant permit.

The relevant shipping documents included an invoice and an airway bill which both identified Granite Arms as the consignee. Upon the arrival of the goods in Melbourne, Granite Arms then arranged to have them entered in its name. Customs, however, took the view that the real ‘owner' was Omeo Way and, since that company did not have the relevant permit, Customs proceeded to seize the goods.

The matter went to the Federal Court and Granite Arms was initially successful, both at a single Judge level and at the Full Court level. The matter proceeded to the High Court which ruled in favour of Customs. The High Court rejected the argument that Granite Arms was the importer and, because it held a permit, the importation was valid.

The High Court noted that it was not simply looking at the Customs Act but, rather, the relevant parts of the Customs (Prohibited Imports) Regulations . It noted that the words ‘imported' and ‘import' in s233B(1)(b) and s68 of the Customs Act are used in context which differ from that of Regulation 4F and Schedule 6 to the Regulations. It was noted that in the context of those Regulations, the notion of importation and the term ‘the importer' looked to the issue of who is to have possession of the firearms after release from home consumption.

The court took a practical view that it was Omeo Way which had caused the goods to be consigned to Australia by the particular means adopted. It noted that the Regulations had to be construed with regard to more than physical considerations which have applied in other cases.

Thus, the attempt to utilise a third party with a relevant permit to act, in effect, as a front for who the court realised was the real importer failed.

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