The Comptroller-General of Customs:

By Customs Order 209 instructions have been given that when security is taken for goods delivered by the Customs, the amount of security is to be the value at the port where the goods are delivered.

It has been suggested by the State Collector of New South Wales that this would involve adding freight and insurance to the invoice value, which does not seem to be contemplated by the Act.

The Comptroller-General minutes this Department as follows:

I would ask the favour of the Attorney-General's opinion on this point for the information of the Minister. The security is taken under section 206 of the Customs Act.

There is no reference to invoice value in that section and I do not think the latter is intended for this reason. The security is instead of the goods. If we prosecute and obtain a conviction the goods are forfeited and we sell them at auction. The price we obtain is their value at the place they are sold and not the value in market of country of export. If we did not therefore take security for the first named value we should lose, and had better have retained the goods and refused to take security.

The object of the latter is to enable the importer to have his goods if he wants them but not to place the Department in a worse position than it would have been had the goods been retained.

Moreover it is submitted the Department is under no compulsion to accept security and can in doing so impose its own terms to a certain extent.

Section 206 of the Customs Act \ 901 is as follows:

The Comptroller or a State Collector may authorise any ship boat or goods seized to be delivered to the claimant on his giving security to pay their value in case of their condemnation.

I recommend to advise that the Comptroller-General's interpretation of section 206 is correct, and that 'value' there means not invoice value, but actual value at the place of delivery. The section applies, not to ad valorem goods only, but to 'any ship boat or goods seized', and no reference to invoice value can be intended.

There does not seem however to be anything in the order expressly limiting it to goods which have been seized.

[Vol. 3, p. 401 ] ⁽¹⁾

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