Opinion:
No. 230
Subject:
CUSTOMS
WHETHER COMMONWEALTH HAS POWER TO PROHIBIT SUNDAY WORKING OF VESSELS IN COASTING TRADE
Author:
ISAACS Isaac Alfred
Key Legislation:
CUSTOMS ACT 1901, ss. 28. 179, 270
Date:
30 January 1906
Client:
The Minister for Trade and Customs
Related Opinion:
Opinion text:

The Minister for Trade and Customs asks to be advised whether there is power (section 179 of the Customs Act 1901) to prevent or regulate Sunday working in any or all of the following cases:

  1. Between States - Vessels carrying dutiable cargo.
  2. do. - Vessels carrying free goods only.
  3. Within State - Vessels carrying free goods only.
  4. do. - Vessel carrying dutiable goods.

Section 179 of the Customs Act 1901 enacts:

The coasting trade generally as regards the Customs shall be regulated in manner prescribed and books shall be kept, documents produced, and entries made accordingly.

Section 28 of the Act enacts that the working days and hours of the Customs shall be as prescribed and that except when working overtime is permitted by the Collector cargo shall only be received loaded or worked on or discharged from any ship on working days and during working hours.

Secretary, Attorney-General's Department

The Customs Act is an Act relating to the Customs and under the Act 'the Customs' means the Department of Trade and Customs. Section 270 of the Act enacts that:

The Governor-General may make regulations not inconsistent with this Act prescribing all matters which by this Act are required or permitted to be prescribed or as may be necessary or convenient to be prescribed for giving effect to this Act or for the conduct of any business relating to the Customs.

I do not think that section 179 carries this matter any further than section 28.

The regulations may forbid the loading or unloading of cargo out of working hours, in any case where, for the purposes of the Department of Trade and Customs, it is necessary or desirable that the loading or unloading should be under Customs supervision. Section 28 appears to me to mean this: the Department may regulate the days and hours of working for its officers, and is not obliged to keep a staff perpetually on the watch to protect the revenue or safeguard other laws. But in order to do this, it is necessary that the Department should also have power to prevent the landing or shipment of goods except during the same days and hours. Consequently, for the purposes of proper supervision, it is necessary there should be, and there is, in my opinion, ample power to prevent or regulate Sunday working in all the cases mentioned.(1)

[Vol. 5, p. 152]

(1) In an opinion, not published, dated 27 October 1909 [Vol. 7, p. 260] Mr Glynn, Attomey-General, said:

'I think Mr Isaacs’ opinion was too wide in its terms. I agree that the Customs have a right to supervise loading and unloading of intrastate vessels in all cases; and that the regulations may forbid loading or unloading out of working hours in any case where that is reasonably necessary for the protection of the revenue. But I do not think that, in the case of intrastate steamers not having on board any goods subject to Customs control, such a prohibition is reasonably necessary. See dicta in Lyons v. Smart 6 C.L.R. 143'.


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