Opinion No. 5
WHETHER JUSTIFIABLE WHEN NATURALIZED : NATURE OF DISCRETION TO BE EXERCISED BY CUSTOMS IN BONDING CHINESE CARTERS IN SOUTH AUSTRALIA : POWER OF COMMONWEALTH IN NORTHERN TERRITORY
CONSTITUTION, covering cl. 6 : ALIENS ACT 1864 (S.A.): THE CUSTOMS ACT 1864 (S.A.), s. 17
31 July 1901
There is no provision in the South Australian Customs Acts or Regulations for the licensing of carriers (except in the case of lighters; see Act No. 19 of 1864(1), section 17). From information supplied by the Department, it appears that no licence is in fact issued, but that a general bond is taken, with approved security, from carriers, before they are allowed to cart goods in bond. In other words, the Department, in respect of the handling of goods in bond, takes security from the agent as well as from the principal. The Collector clearly has a discretion as to accepting any security, and even if the security is satisfactory he probably has a right to refuse any carrier to whom there is any personal objection.
In the absence of any law for licensing carriers, the owner of the goods is entitled to handle them either himself or by an authorized agent, subject to the necessary precautions and securities taken by the Collector to prevent evasion.
In the case of a naturalized British subject, the South Australian Aliens Act 1864, provides that a naturalized resident shall enjoy all the rights and capacities of a natural-born subject. The only definite objection to the Chinese carters disclosed in the correspondence is that they give the security of Chinese storekeepers, who may not be in a sound position; but this only goes to the sufficiency of the security. Whether a Chinese carter refused on account of his race, or the employer of such carter, would have any legal remedy, is open to doubt; but I think that, at least in the case of a naturalized British subject, discrimination on the ground of race alone is not justifiable.
As to the control of the Commonwealth over the Northern Territory, see covering clause 6 of the Constitution. The Northern Territory is part of the State of South Australia, and the Federal Government has the same power there as in any other part of the Commonwealth.
[Vol. 1, p. 25]
(1) The Customs Act 1864 (S.A.).