Opinion Number. 1030

Subject

PROHIBITED EXPORTS WHETHER CUSTOMS CLEARANCE OF VESSEL CAN BE WITHHELD WHERE VESSEL IS CARRYING PROHIBITED EXPORTS: EFFECT OF COLLECTOR'S PERMIT TO EXPORT CONTRARY TO PROCLAMATION PROHIBITING: CIRCUMSTANCES IN WHICH PERMIT GIVING RIGHTS CAN BE REVOKED

Key Legislation

CUSTOMS ACT 1901, ss. 112, 122

Date
Client
The Comptroller-General of Customs

The Comptroller-General of Customs has submitted the following minute with a request for advice:

The favour of advice is requested as to whether under the following circumstances this Department has authority to withhold the clearance of a vessel:

  1. The exportation of wool except with the consent of the Minister for Trade and Customs is prohibited by proclamation;
  2. A permit to export certain wool was issued by a Collector of Customs;
  3. Permit has been cancelled as the wool is such as should not have been exported;
  4. The vessels by which exportation has been made have not yet left Australian waters;
  5. It is desired to withhold the clearances of the vessels concerned to require the owners or agents thereof to remove the wool from the vessels or to impose certain conditions to require the wool on discharge be held to the order of the Commonwealth of Australia.

The exportation of wool is prohibited by a proclamation of 23 October 1914, 'unless the consent in writing of the Minister of State for Trade and Customs be first obtained'.

As regards the wool referred to in the above minute, the Minister has not, so far as I can ascertain, given consent in writing for its export. Neither does the Minister appear to have given a consent of a general nature authorising the export of wool in respect of which a permit is issued by a Collector of Customs.

In these circumstances the permit by the Collector of Customs for New South Wales is of no legal effect as authorising the exportation of wool.

Where an officer of Customs has issued a permit, as in this case, purporting to authorise the export of goods otherwise prohibited from exportation, I think the exporter is entitled to assume the validity of the permit and would be protected from prosecution in respect of any act done on such assumption. The position so far as the goods are concerned is that they were at all times, notwithstanding the issue of the permit, prohibited exports.

Under the circumstances it appears unnecessary to decide whether the permit could be validly cancelled.
Where a permit is granted which conveys certain rights, I am of opinion that the grantor can revoke only for good cause such as misrepresentation or fraud on the part of the grantee.

I am informed that the wool in respect of which the permit was issued is identical with that referred to in the undertaking made by the owners, Messrs A. and B. I think the suppression of the fact that an undertaking existed, in relation to the wool proposed to be shipped, whereby it was agreed that the wool would be made available for appraisement under the War Precautions (Wool) Regulations, was a misrepresentation justifying the cancellation by the Collector of the permit to export.

I am of opinion that, on the facts stated, the strict legal position is that this wool is a prohibited export and that the clearances of the vessels can be withheld under section 122 of the Customs Act 1901-1916 until the requirements of the Customs law in respect of the cargo have been complied with.

The effect of withholding a clearance, however, might be a serious hardship to the shipowners, who appear to have complied with the usual Departmental practice in this matter. If it is desired to take action under the Customs Act to obtain full control of the wool, I would suggest that the best course would be to seize the wool, as forfeited-leaving the owners to bring action for its recovery-and allow it to go on in the ship. It would then be Commonwealth property, and could be disposed of on arrival at its destination as the Comptroller might direct (Customs Act, sections 203-208).

[Vol.17,p.144]