Opinion Number. 1481


PROPOSED PROCLAMATION PROHIBITING EXPORT OF GOODS WHERE exporter does not undertake that SALE funds will be handed to prescribed authority upon payment by authority in Australia to exporter of value of proceeds plus rate of exchange: WHETHER MEASURE FOR PROTECTION OF REVENUE: OPINION OF GOVERNOR-GENERAL NON-JUSTICIABLE

Key Legislation

Customs Act 1901 s 112(1)(b), (e)

The Secretary to the Treasury

The Secretary to the Treasury has forwarded me the following minute for advice:

I am directed to request that an opinion be furnished as to whether the Commonwealth Government can by Proclamation in the terms of section 112 of the Customs Act 1901–1910, issue a regulation under which no export can be made from Australia without a licence, providing that an authority prescribed by the Minister should certify that the funds arising from the sale of such export are to be handed to the prescribed authority upon payment by that authority in Australia to the exporter the value of any proceeds, plus a rate of exchange to be determined by the prescribed authority from time to time.

The proposal contained in the above minute can only be supported, if at all, by paragraphs (b) or (e) of sub-section (1) of section 112 of the Customs Act 1901–1930.

I do not think that paragraph (e) can be safely regarded as authority for the action suggested, as the line of argument which would have to be taken to establish that the proposal is one for the protection of the revenue would be of an artificial nature, and it would, in my opinion, be highly probable that a Court would hold that the nature of protection contemplated by the paragraph was a protection more directly connected with the actual exportation of the goods than is the protection which would arise from securing to the Commonwealth funds overseas. Further, it is pointed out that the proposal is rather in the direction of limiting the expenditure of the Commonwealth than protecting its revenue.

There remains the consideration whether the proposal can be supported as being action taken by virtue of paragraph (b). The mere prohibition of the exportation of goods simpliciter would not effect the desired object, the object being not the prohibition of the exportation of all goods, but only of goods in relation to which the desired arrangements for payment have not been made.

It seems from the construction of the section that the Governor-General in Council must first satisfy his mind that as to certain classes of goods their exportation is harmful to the Commonwealth. I think it is legally possible for the class of goods which is to be prohibited to be defined as being all goods in respect of which the exporter does not undertake that the funds arising from sale will be handed to a prescribed authority upon payment by that authority in Australia to the exporter of the value of any proceeds, plus a rate of exchange to be determined by the prescribed authority from time to time. If this course were adopted it would obviate the necessity of attaching conditions subject to which the Proclamation should operate.

It is pointed out that practical difficulties of administration may arise in respect of export to countries in which there is no representative of the Commonwealth to whom the proceeds of sale can be paid by the importer. If it is proposed to limit the Proclamation to goods exported to England, the Proclamation may possibly be evaded by shipping the goods to some other country for transhipment to England.

The basis of a proclamation made by virtue of the authority conferred by paragraph (b) is the formation of an opinion by the Governor-General that the exportation of the goods would, if not prohibited, be harmful to the Commonwealth.

It was held by the High Court in Lloyd v. Wallach, 20 C.L.R. 299, that where a regulation authorised certain action to be taken consequent upon the Minister having reason to believe certain things, the belief of the Minister which was the foundation of the action taken under the regulation could not be questioned.

The High Court also held in Griffin v. State of South Australia, 36 C.L.R. 378, that where in an action in the High Court to which a State is a party, the State objects to produce for inspection documents which are in fact State papers, the rule is that a statement by the Attorney-General for that State that their production for inspection would be prejudicial to the public interest is conclusive and an answer to an application for an order for inspection. This decision followed Marconi Wireless Telephone Co. v. The Commonwealth (No. 2) 16 C.L.R. 178, on that point.

A further instance of judicial consideration of the question whether a belief or opinion of some statutory authority can be questioned is supplied by Moreau v. The Federal Commissioner of Taxation, 39 C.L.R. 65. By the Income Tax Assessment Act the Commissioner of Taxation is authorised to re-open assessments in certain cases where he has ‘reason to believe’ the taxpayer has defrauded or attempted to evade the revenue law. The Court decided that in forming an opinion in any such case the Commissioner was performing a statutory duty and his opinion could not be the subject of any appeal nor judged by a Court by the standard of what the ideal reasonable man would think.

On the authority of the cases above quoted I take the view that the opinion of the Governor-General under paragraph (b) of section 112 of the Customs Act could not be called in question or made judicially examinable.

I am therefore of opinion that it is possible to draft a valid proclamation under paragraph (b) of sub-section (1) of section 112 to carry out the desired object.

[Vol. 24, p. 894]