I refer to your memorandum (48/2931) of 3rd May, 1949, in which advice is requested as to the liability of your Department to make payment for office and shed accommodation provided by wharf-owners under section 19 of the Customs Act 1901–1947. In particular, advice is sought whether section 51(xxxi) of the Constitution dealing with the acquisition of property on just terms is applicable to accommodation provided under section 19.

(2)  It will be convenient to set out first the provisions of section 19 of the Act:

19. Every wharf-owner and aerodrome owner shall provide to the satisfaction of the Collector suitable office accommodation on his wharf or at his aerodrome for the exclusive use of the officer employed at the wharf or aerodrome also such shed accommodation for the protection of goods as the Minister may in writing declare to be requisite.

Penalty: Twenty pounds.

(3)  The High Court has given to the phrase ‘acquisition of property’ in section 51(xxxi) of the Constitution a meaning much wider than the words ordinarily bear in popular usage. In this wider constitutional sense, I think the right secured to the Customs by section 19 of the Act—i.e. a right to the use, either exclusively or in common with others, of certain office or shed accommodation—probably does involve an ‘acquisition of property’. But the mere passing of some right of proprietary character does not of itself attract the operation of section 51(xxxi): for example, the passing of property to the Crown by way of a fine or a forfeiture. I think there is a reasonable likelihood that the High Court would treat section 19 as being in substance not a law ‘with respect to’ the acquisition of property but a law ‘with respect to’ the duties or liabilities of wharf owners, the acquisition of property being a mere incident in the course of dealing with a quite different subject-matter.