The Comptroller-General of Customs:

The Explosives Department of the State of New South Wales has requested the Collector of Customs in that State to issue instructions to officers and publish a notice that explosive substances as defined by the Explosives Act 1902 (a State Act) are to be invariably detained unless notices under section 12 of the Act are duly lodged with the Landing Waiter.

The State Act mentioned is a consolidation of Acts 40 Vic. No. 1 and 48 Vic. No. 19, which it repeals. Section 12, sub-section (2) of the State Act provides as follows:

Every importer of the same (scil. any explosive or explosive substance) who wilfully neglects to report the importation of such explosive or explosive substance to the Collector of Customs within forty-eight hours after the entering of the said vessel shall be liable to a penalty not exceeding ten pounds.

The Comptroller-General asks for instructions as to how far the Department can act in the direction desired.

So far as the Customs Act 1901 is concerned, there appears to be no power for the Customs to detain these goods. The control of the Customs over goods only continues until delivery for home consumption, and if proper entry of the goods is made and the duty (if any) is paid or tendered, the Act confers no authority to refuse to pass the entry or deliver the goods.

The question remains whether any such authority is conferred by the State Act.

The Commonwealth Parliament has exclusive legislative power in respect of matters relating to transferred departments. It is clear that a State Parliament cannot impose any duty on a Customs officer in his official capacity. But it would seem that there is nothing to prevent a State Parliament from conferring an authority on a Customs officer, and that a Customs officer would then be justified in acting upon that authority.

The New South Wales Act, though it imposes a penalty for not giving the notice mentioned, does not expressly authorise the Collector to detain explosives in respect of which no notice has been presented, and the papers do not show that such detention is justified by any Regulation under the Act.

I therefore recommend to reply that, before complying with the request of the Explosives Department, the Collector should ask that Department to specify the precise legislative provision under which such detention would be justified, and to satisfy him that such provision justifies the action asked for.

[Vol. 3, p. 373]⁽¹⁾

(1) This opinion was initialled by Mr Deakin, Attorney-General.