Opinion Number. 1073

Subject

CUSTOMS DUTY CHAMPAGNE IMPORTED DUTY FREE FOR OFFICIAL USE OF STATE GOVERNOR: SUBSEQUENTLY USED FOR STATE GOVERNMENT FUNCTIONS: WHETHER DUTY PAYABLE BY STATE GOVERNMENT

Key Legislation

CUSTOMS TARIFF 1921, Item 372

Date
Client
The Acting Deputy Comptroller-General of Customs

The Acting Deputy Comptroller-General of Customs has forwarded for advice the following memorandum:

In connection with State and civic functions held in honour of H.R.H. the Prince of Wales in West Australia difficulties were experienced in obtaining the necessary supplies of champagne and the Private Secretary to His Excellency the Governor informed the Collector of Customs, per phone, that His Excellency had consented to supply the requirements of the State Government and Mayor of Perth from stocks at Government House-delivered free of duty for official use, Tariff Item 372-upon payment of duty.

  1. The Private Secretary promised the Collector to furnish him with the quantities of champagne so supplied and that duty would be paid thereon after the festivities had been held and consequently the Collector raised no objection to delivery.
  2. After the civic reception the Mayor of Perth presented a certificate from the Private Secretary in respect of the champagne supplied to him and paid duty thereon.
  3. After some considerable delay in respect to champagne and whisky supplied to the State Government the Private Secretary to His Excellency stated that in respect to the State balls (2) and banquet held at Government House, although the State Government issued the invitations His Excellency the Governor was present as Head of the State and had not received payment for the champagne and whisky consumed, and it was not prepared to lodge claim therefor.
  4. In response to a further request for particulars of liquor supplied, and wherein the Collector added that the fact of His Excellency having contributed the champagne and whisky from stocks delivered free of duty for official use did not absolve the State Government from liability for duty, the Private Secretary replied on 27.10.20 stating that 12 dozen of champagne at 108s per doz. and 4 doz. of whisky at 65s per doz. duty free, were used and further added:
  5. It would appear that you are under a misapprehension in relation to this matter, as the stocks were not delivered to the State Government for use. It is true that they were used by His Excellency the Governor at functions at Government House at which he was present, that is, they were utilised for official use in the ordinary sense of the term, but they were never delivered to, nor purchased, nor even handled by the State Government in any way whatsoever.

  6. The Collector in submitting the matter to this office on 6.11.20 mentions that in his State the ballroom at Government House is made available for various public functions, and that the State balls (2) and banquet were accordingly held there during the Prince's visit, but, I submit that, upon these auspicious occasions, His Excellency the State Governor was necessarily required to attend in his official capacity, and as the State Government apparently incurred all the expenses in connection therewith, it is not absolved from liability for duty on the champagne and whisky consumed thereat, by reason of the fact that His Excellency the Governor graciously supplied such goods free of charge.
  7. The Comptroller-General decided on 2.12.20 that there was no power to remit the duty.
  8. The Secretary to the Premier was requested by the Collector of Customs, W.A. on 25.1.21 that the duty due, viz. £46.1.4 be paid.
  9. The Secretary to the Premier replied on 19.4.21 and stated that:
  10. . . . the State Crown Law authorities have ruled that duty is not payable in this case.

    As you have evidently acted under instructions from Melbourne in this matter, the Hon. the Premier has referred the case to Melbourne for the consideration of the Right Hon. the Prime Minister.

  11. Under date 16.4.21 the Hon. the Premier of W.A. stated inter alia:
  12. ... a State banquet and two State balls were arranged in his honour. These were held at the expense of the State Government but as His Excellency the Governor desired to contribute something to the entertainment of His Royal Highness, it was arranged that he should present free of charge the champagne and whisky which were used at these particular functions held at Government House.
    These liquors had been imported by His Excellency the Governor, duty free, under the exemptions contained in Item 372 of the Customs Tariff 1921. They were not purchased from His Excellency by the Government, neither was any allowance made to him in respect thereof . . . It is considered that the position in this case differs in no material particular from liquors consumed by the private guests of His Excellency the Governor, and as liquors for the official use of His Excellency are specifically exempted, it is difficult to see upon what basis the claim is now made . . .

  13. The main points are:
    1. The goods were entered and admitted under Tariff Item 372 which reads: 'Articles imported, or purchased in bond, for the official use of the State Governors and declared as being for such official use. Free'.
    2. [The goods] were presented by His Excellency the Governor to the State Government for use at functions carried out at the expense and on the invitation of the State Government.
  14. It is therefore submitted for favour of advice as to whether the duty involved, viz. £46.1.4 is legally chargeable against the Government of W.A.

In my opinion, in view of the wording of Item 372 of the Customs Tariff 1921, the duty is not payable if the liquor was in fact imported or purchased in bond for the official use of the Governor of Western Australia, and was declared as being for such use. In the absence of any provision to the contrary in the Tariff or the Customs Act, the fact that, subsequently, the liquor was used for another purpose does not, in my opinion, make it dutiable.

[Vol.17,p.325]