Opinion Number. 105

Subject

CUSTOMS DUTY WHETHER PROVISION FOR REFUND OF DUTY DEPOSITED IN CASE OF DISPUTE CONSTITUTES SPECIAL APPROPRIATION

Author
Key Legislation

AUDIT ACT 1901, s. 60 : CUSTOMS ACT 1901, ss. 167,168

Date
Client
The Treasurer

The Treasurer

The question has arisen how the amounts deposited for duty with the Collectors of the several States-amounting in all to £54857.4.5- should be dealt with.

The Minister for Trade and Customs has written the following minute (dated 13 September 1902) to the Treasurer:

As to this £54857.4.5.1 do not think that sections 27 and 28 of the Audit Act apply, and so far as this Department is concerned I am prepared, if the Right Hon. the Treasurer so desires, to do anything necessary so that the amount may be paid into revenue in the ordinary way.

I take it of course that the Treasurer will afterwards arrange for any payments which may become necessary for excess or interest under section 167.

The Treasurer replied by minute dated 25 September 1902:

I do not think it would be wise to pay into revenue during the six months. There is a doubt of the power to pay out without vote by Parliament to cover such amounts. Moreover if the money were paid into revenue it would be paid over to the State, and it might be awkward months afterwards to repay amounts out of the sum payable to the State.

The Minister for Trade and Customs returned the papers to the Treasurer with the following minute (dated 15 October 1902):

Of course if Sir George Turner prefers not to have the money at present I am content. But I have no more fear about the necessity for a parliamentary vote for a refund under section 167 than I have under section 168 which we daily act on as to drawbacks.

The Treasurer asks to be advised upon the following question:

If the money on deposit is paid into revenue, will section 167 be sufficient to enable the money to be repaid to persons interested without a vote of Parliament?

Section 167 of the Customs Act 1901 provides that if any dispute arises as to duty 'the owner may deposit with the Collector the amount of duty demanded', and-

the deposit shall be deemed the proper duty unless by action commenced by the owner against the Collector within six months after making the deposit the contrary shall be determined, in which case any excess of the deposit over the proper duty shall be refunded by the Collector to the owner with Five pounds per centum per annum interest added.

This section imposes an obligation on the Collector, in a certain event, to refund money deposited with him; but it does not expressly authorise a payment from the Treasury. There is a distinction in this respect between this section and section 168, which distinctly authorises a repayment, from the Treasury, of revenue. See my opinion of 2 5 February 1902(1) as to special appropriations under the Constitution.

It is therefore a matter of much doubt whether section 167 constitutes a special appropriation which would authorise payment out of the Consolidated Revenue Fund if the money deposited with the Collector has been paid into the Fund. It would in my opinion be advisable to pay the deposits into the Trust Fund (see Audit Act, section 60) to abide the result of an action if brought, and if no action be brought then to be paid into revenue(2)

[Vol. 2, p. 3 81 ]

(1) Opinion No. 48.

(2) This opinion was published in Commonwealth of Australia, Pari. Papers 1904, Vol. II, p. 1177.