Opinion No. 3
WHETHER VARIOUS MONEYS RECEIVED SHOULD BE PAID TO COMMONWEALTH OR STATE
CONSTITUTION, ss. 86, 92 : INTERPRETATION ACT 1889 (IMP.), s. 18 : MERCHANT SHIPPING ACT 1894 (IMP.), s. 699
27 June 1901
The rates collected under the Melbourne Harbor Trust Act, sections 110-19117, Marine Act 1890, sections 20-24, clearly belong to the State of Victoria. They are not taxes, or burdens on commerce, but charges for services rendered. See Quick & Garran, pp. 535-6, 853, and the cases there cited. This of course is subject to the qualification that if the rates were imposed or collected discriminatingly, or without any regard to the value of the service, or if they were excessive they might be challenged as unconstitutional.
These dues, levied under the Victorian Marine Act 1890, sections 88-89 and Marine Act 1900, section 3, are expressed to be a 'duty' payable on 'all ships' arriving at any port in Victoria. It is stated in the memorandum submitted that they are primarily intended to recoup the State for expenses. The State clearly has a right to charge harbour dues for services rendered; and it has been held in the United States that such dues may be based on the tonnage of the vessel: Quick & Garran, pp. 536, 850; Transportation Company v. Parkersburg 107 U.S. 691; Packet Company v. Keokuk 95 U.S. 80.
Owing however to the form in which these dues are imposed, as a duty on all ships arriving, a question may arise after the imposition of the uniform tariff as to their constitutionality. In the United States, the Constitution forbids the States, without the consent of Congress to 'laying duty on tonnage'; and it was laid down in the Packet Company v. Keokuk (above) that if the charge was clearly a duty, a tax or burden, which in its essence was a contribution claimed for the privilege of entering the port, or remaining in it, or departing from it, it was embraced by the constitutional prohibition; but if it was for services rendered or conveniences provided, it was in no sense a tax or a duty. Under this Constitution, if the charge is essentially a tax or duty on the arrival of a ship, as the words of the Act would seem to imply, it may after the imposition of the Federal tariff be infringed as a burden on trade; though if it really is a charge for the use of facilities provided by the State, it will be unobjectionable: Quick & Garran, p. 536.
These dues collected under the Victorian Marine Act 1890, sections 82-88, are clearly payments for services rendered, and belong to the State. See Quick & Garran, pp. 529, 541, 853 and the cases there cited.
License to manufacture tobacco: Registration sellers of tobacco
These fees, collected under sections 179, 180 and 184 of the Victorian Customs and Excise Duties Act 1890, are fees incidental to the enforcement of the excise duties(1), and are properly collected by and paid to the Commonwealth. They are part of the revenue of the excise department. The registration fee, seems, as submitted in the memorandum, to be strictly a registration fee and not a license for the business.
Carriers' licenses: Lighter and boat licenses
The fees for these licenses, collected under sections 29 and 30 of the Victorian Customs Act 1890, are incidental to the administration of the customs laws, and are properly collected by and paid to the Commonwealth.
Manufacturing still licenses: Vineyard and still licenses: Distillery licenses
The fees for these licenses, collected under the Victorian Customs and Excise Duties Act 1890, sections 34, 22-26 and 18 are incidental to the administration of the excise laws, and are properly collected by and paid to the Commonwealth.
Fees for the engagement and discharge of seamen
These fees are collected by State officers in connection with services rendered by the State, and ought to be credited to the State; though if the Commonwealth passes a Navigation Act and takes over the administration of these matters, the Commonwealth alone will be able to collect these fees.
This opinion does not however apply to fines imposed for breach of the provisions of this Act [Merchant Shipping Act 1894], which, under section 699, are, unless otherwise ordered, to be paid into the Treasury of the British possession in which they are recovered. Under the Interpretation Act [Imperial], this must be taken to mean the Treasury of the Commonwealth.
[Vol. 1, p. 12]
(1) In an opinion, not published, dated 21 February 1902 [Vol. l,p. 334] Mr Deakin said of this opinion:
'That opinion related to the period prior to 7 October 1901, when the Federal Excise Act became law.
I did not suggest that the fee in question was an "excise duty" within the meaning of section 90 of the Constitution; but it was clearly a fee incidental to the enforcement of the excise duties and the protection of the revenue arising therefrom, and was therefore a matter in respect of which the powers and functions of the State passed to the Commonwealth under section 70 of the Constitution'.