Opinion Number. 340

Subject

WRECKS EXTENT OF COMMONWEALTH POWER OVER PROCEEDS : POSITION OF HEREDITARY REVENUES OF CROWN IN AUSTRALIA

Key Legislation

NAVIGATION ACT 1912, s. 308 : THE CIVIL LIST ACT 1837 (IMP.) : THE CROWN REVENUES (COLONIES) ACT 1852 (IMP.), s.2 : THE NEW SOUTH WALES CONSTITUTION ACT 1855 (IMP.), Schedule I, ss. 47, 50 : THE VICTORIA CONSTITUTION ACT 1855 (IMP.), Schedule I, ss. 44, 47 : THE AUSTRALIAN COLONIES ACT 1861 (IMP.) : MERCHANT SHIPPING ACT 1894 (IMP.), s. 523 : THE CIVIL LIST ACT 1901 (IMP.) . THE SHIPPING AND SEAMEN ACT 1903 (N.Z.)

Date
Client
The Comptroller-General of Customs

The Comptroller-General of Customs asks to be advised whether, under section 523 of the Merchant Shipping Act 1894, the proceeds of wrecks should be paid to the Federal or the State Treasury.

There is some difficulty, in view of Imperial legislation, in answering this question.

The Civil List Acts (1 & 2 Vic. c. 2(1); 1 Edw. VII c. 4(2)) provide that the produce of the hereditary revenues arising from droits of Admiralty or droits of the Crown, and from all other casual revenues arising either in His Majesty's foreign possessions or in the United Kingdom, shall be paid into the Consolidated Revenue Fund of the United Kingdom.

The Act 15 & 16 Vic. c. 39(3), section 2, provides that the Civil List Acts do not apply to prevent the appropriation of casual revenues (other than droits of the Crown and droits of Admiralty) to any public purpose in the colony; provided that the surplus not so applied shall be paid to the Consolidated Revenue of the United Kingdom.

It appears clear that the latter Act does not cover the proceeds of wreck.

In New South Wales, Victoria, and Queensland, the Imperial Government seems to have surrendered the right to casual revenues of every kind (which would include proceeds of wrecks); see N.S.W. Constitution(4), sections 47, 50; Vic. Constitution(5), sections 44, 47; and (as to Queensland) Order in Council of 6 June 1859 establishing the colony, and confirmed by 24 & 25 Vic. c. 44.(6))

But in the other States, by some oversight, no such surrender seems to have been made; though it appears that the Imperial Government does not as a matter of fact receive any of these revenues (see article by Mr A. B. Keith in the Journal of the Society of Comparative Legislation, Vol. 9, p. 219).

As between the States and the Commonwealth, I do not think that the Commonwealth can claim this revenue in the absence of any Federal legislation to that end.

Clause 304 of the Navigation Bill(7), if passed, will have the required effect. Mr Keith, in the article above mentioned regards that clause as technically ultra vires-presumably for inconsistency with the Civil List Acts; but it has been enacted by New Zealand [in an] Act of 1903(8), and no exception is likely to be taken to it.

[Vol. 7, p. 168]

(1) The Civil List Act 1837 (Imp.).

(2) The Civil List Act 1901 (Imp.).

(3) The Crown Revenues {Colonies) Act 1852 (Imp.).

(4) The NewSouth Wales Constitution Act 1855 (Imp.), Schedule 1.

(5) The Victoria Constitution Act 1855 (Imp.), Schedule 1.

(6) The Australian Colonies Act 1861 (Imp.).

(7) Enacted as the Navigation Act 1912, section 308.

(8) The Shipping and Seamen Act 1903 (N.Z.).

* See also Opinion No. 401.