Opinion Number. 1046

Subject

WAR PRECAUTIONS REQUIREMENT THAT INFORMATION IN RESPECT OF OVERSEAS COMPANIES BE FURNISHED TO COLLECTOR OF CUSTOMS BY AGENTS IN AUSTRALIA: WHETHER REQUIREMENT CAN BE SATISFIED BY COMPANIES SUPPLYING INFORMATION DIRECT TO COLLECTOR

Key Legislation

WAR PRECAUTIONS ACT REPEAL ACT 1920, s. 19 (I), (2), (5) (a)

Date
Client
The Comptroller-General of Customs

The Comptroller-General of Customs has submitted for advice the following questions raised by Messrs Brown and Dureau Ltd:

Whether it is permissible for us to advise principals to forward the particulars required direct to yourself, in lieu of to ourselves. We make this suggestion for the reason that it would naturally be objectionable to any company or firm to disclose to their agent or representatives their capital basis, and our fear is that any request on our part to forward to us will receive in many cases no response, whereas if principals are informed that it is for a Government department and therefore confidential, it will be readily forthcoming.

Companies and firms only being specified, we assume that individuals only do not come within the provisions of the Act.

Referring to sub-section (5) clause (a) we would like advice as to what officer is referred to in the reference to 'by the proper officer in that part'. We assume that this would be a Justice of the Peace, but would like assurance on the point.

The obligation of furnishing the returns is cast on the agent, and his duty in this connection is not discharged by requisition on his principals abroad. If the principals supply the required information direct to the Collector of Customs, I think the requirements of the Act may be regarded as having been complied with, and the agent's obligation in this connection may be considered as discharged.(1)

The question as to what constitutes a 'firm' is governed by the definition in sub-section (1). The matter is determined by ascertaining whether any firm is registered as such in any country outside the Commonwealth.

The 'proper officer' in paragraph (a) of sub-section (5) does not, in my opinion, include a Justice of the Peace. The certificate should be made by some person who, by reason of his official position, is in a position to state whether the particulars furnished are correct.

A public officer dealing with the registration of companies and firms is, in my opinion, a 'proper officer' within the meaning of the paragraph.

[Vol.17, p.252]

(1) Further representations to the same e?'ect as thge made by Brown and bureau Ltd were subsequently made to the Comptroller-General of Customs by another agent, S. Scott Young Ltd. In response to the Comptroller-General's request for a ruling Sir Robert Garran advised [4 March 1921; Vol.17, p. 259]

'The section casts a duty upon an agent to supply certain information regarding his principals abroad. Failure to comply with the section involves the agent in a breach of the law punishable by a penalty of £100 or imprisonment for six months or both. The section does not exempt an agent from his liability on the ground of impossibility of compliance. The matter appears to be one which the agent must settle with his principal. The opinion given on the questions raised by Messrs Brown and Bureau might assist Scott Young Ltd to devise a modus vivendi should the contemplated difficulty arise'.