Opinion No. 1486
CUSTOMS DUTY: IMPORTATION OF MATERIALS FOR ROMAN CATHOLIC CATHEDRAL, Perth: WHETHER MATERIALS ARE ‘works of art’ imported for public institution or purpose AND to be used for exhibition purposes: WHETHER ‘PUBLIC INSTITUTION’ INCLUDES CHURCH: WHETHER MATERIALS INTENDED FOR STRUCTURAL PURPOSES OR EXHIBITION
CUSTOMS TARIFF Items 426(A), 426(B) by-law No 91 : COPYRIGHT ACT 1905
12 March 1931
The Auditor-General has asked for my advice as to whether duty is payable on certain materials imported for the Roman Catholic Cathedral, Perth.
The recommendation of the Department of Trade and Customs in connexion with this matter was as follows:
The Roman Catholic Archbishop of Perth has approached Mr Needham who, in turn, has made representations to the Minister for Customs, the Prime Minister, the Treasurer and the Attorney-General, requesting admission free of duty of various materials for use in connection with the construction of the Roman Catholic Cathedral at Perth.
The goods are stated to be:
- an altar and altar rails made of golden onyx, price £997
- a dado of moulded Siena golden marble, price £400
- glass mosaic for walls )
- marble mosaic for the floor ) price £850
- an altar and altar rails made of Carrara marble, price £1,600.
The only By-law under which the goods in question can be considered reads as follows, viz:
Works of art framed or unframed imported for public institutions or purposes may be admitted free of duty under item 426(A) upon production to the Collector of a certificate from a responsible official of the public institution that the works of art are the property of the institution and are to be used therein for exhibition purposes’, vide Consolidated Bylaws, page 149.
The applicant claims that the goods in question could not be produced in the Commonwealth. It is therefore recommended that they be admitted under item 426(A).
(Sgd) M B Synan, A/Deputy Comptroller-General
The Minister for Trade and Customs approved of that recommendation.
The Auditor-General states that an Audit Query has been raised as to whether the goods referred to can legally be admitted free of duty having regard to the conditions prescribed in the by-law (No. 91) quoted. The following questions appear to him to be involved:
- Are the materials under notice works of art?
- Are they imported for a public institution or purpose?
- Are they to be used for exhibition purposes?
The Auditor-General asks to be advised on the questions raised and whether the statement that the goods in question could not be produced in the Commonwealth conveys any legal ground for the admission of the goods free of duty as works of art.
In connection with this matter the Auditor-General forwards a copy of the following circular issued to officers of the Customs Department by the Acting Comptroller-General of Customs, on 26 October 1929:
The Collector is informed that, generally speaking, the term ‘Public Institution’ is to be regarded, for Tariff purposes, as covering an institution which belongs to the public and does not include churches or other voluntary associations which, however large the membership, are essentially non-public.
Tariff item 426 is as follows:
- Works of art, framed or unframed, [Free Free Free]
imported for public institutions or purposes,
as prescribed by Departmental Bylaws.
- Stained glass windows for churches or [20% 25% 30%]
public institutions, as prescribed by
Departments Bylaws ad.val.
In my opinion the materials under notice are works of art. An ‘artistic work’ is defined in the Copyright Act as including architectural works of art. ‘Architectural work of art’ means any structure having an artistic character or design.
In view of the distinction in sub-item (B) between churches and public institutions, and the omission from sub-item (A) of the word ‘churches’, it appears doubtful whether the expression ‘public institutions’ includes churches. I note that the definition of the expression ‘public institution’ as laid down by the Customs Department excludes churches or other voluntary associations.
The materials are in my opinion intended for structural purposes and not for exhibition purposes within the meaning of Bylaw 91 made under Tariff Item 426A.
The fact that the goods could not be produced in Australia does not appear to be a ground for their admission under the particular item under which they are classified.
[Vol. 24, p. 963]