Opinion Number. 269



Key Legislation

CUSTOMS ACT 1901, s. 122

The Prime Minister

The Premier of New South Wales has written to the Prime Minister stating that owing to a new interpretation of the Customs Act 1901 the Lord Antrim was recently granted a clearance by the Acting Collector of Customs at Sydney, against the advice of the Department of Navigation in consequence of the conditions of the vessel's life-saving appliances. He directs attention to section 122 of the Customs Act 1901, which provides that a clearance shall not be granted ' . . . unless all the other requirements of the law in regard to such ship and her inward and outward cargo have been duly complied with'-and to the following note in Dr Wollaston's Customs Law:

Collectors cannot refuse a Customs clearance to a vessel merely because the master has not complied with the provisions of some State Act

He states that the practice followed by the Customs at Sydney since the establishment of Federation has been to refuse a vessel clearance at the instance of the local Navigation Department, and contends that the maintenance of that practice is advisable, even if it is found not to be required by the strict letter of the law.

The Prime Minister asks for advice upon the contentions of the Premier of New South Wales.

It appears from the papers that the Premier of New South Wales is under a misapprehension as to the facts.

In the first place, the Customs point out that there has been no alteration of practice; that the Navigation Department were expressly informed in March 1905 that on their application the Customs would withhold a clearance on condition that the Navigation Department accepted the responsibility for the action; and that in this case, though the Customs asked the Navigation Department for an assurance on this point, no such assurance was given.

The Comptroller-General of Customs further points out that under the N.S.W. Navigation Act, any officer of police or of the Department of Navigation can detain a ship; and that there does not appear to be any reason for throwing the responsibility on the Customs--particularly as the Customs will allow their officers to be appointed as officers of the Navigation Department for the purpose.

The Comptroller-General also contends that it cannot be supposed that the Customs are bound to use their power of refusing clearance-say, to a mail steamer-whenever a State Department alleges that some breach of the requirements of State law, however trifling, has been committed-say, non-payment of a few shillings of wharfage rates.

It appears to me that the contention of the Customs is reasonable. It appears to me open to doubt whether section 122 of the Customs Act 1901 is intended to apply to the non-compliance with laws other than laws relating to the Customs; and I certainly do not think it imposes an obligation on the Customs to refuse a clearance for a breach of State law. Whilst the Commonwealth ought certainly to render all reasonable facilities to the State Governments for the enforcement of State laws, I agree with Dr Wollaston that it is better, where practicable, that the provisions of a State Navigation Act should be enforced by the exercise of the powers conferred by that Act; and that when the Customs are asked to supplement those powers by the refusal to grant clearance, it is at least reasonable that the Department requesting the action should give the desired assurance that it accepts the responsibility.

[Vol. 5, p. 448]