Opinion Number. 399



Key Legislation

CONSTITUTION, s.5I(x) : CUSTOMS TARIFF 1908-1910: FISHERIES ACT 1902 (N.S.W.), s. 23

The Comptroller-General of Customs

The following minute by the Director of Fisheries has been referred to me by the Comptroller-General of Customs for advice:

Commercial trawling is likely to be initiated in the near future and it is necessary to have established how such work might be affected by existing Commonwealth and State legislation. In the case of the former the question of duty may arise, if during a cruise a vessel should call at a foreign port and in the case of State legislation the local legal minimum size of the different kinds of fish may be applicable to a trawler's catch. This will necessarily be the case when the catch or part of it, has been obtained within the jurisdiction of a State; but possibly the application may extend also to fish obtained from the high seas. If the latter course is possible, it is likely enough to be enforced at the instigation of people adverse to the development of deep sea fisheries and much trouble and inconvenience will follow. This is particularly the case as the minimum size fixed for the same kind of fish is usually different in the different States. But before going further into these details, it is desirable to ascertain from the Attorney-General how the matter stands. It is submitted the following queries be submitted to the Attorney-General for consideration, namely:

  1. Provided an Australian fishing vessel does not in the course of her cruise call at any foreign port would fish obtained on the high seas be dutiable in the Commonwealth?
  2. If in the course of a voyage the vessel should enter and fish in the territorial waters of another country, e.g. New Zealand, but without landing, would part or the whole of her catch be dutiable?
  3. If in the course of her cruise, the vessel should call at a foreign port, would her catch even though obtained on the high seas be dutiable in the Commonwealth?
  4. The several States of the Commonwealth have by Acts and Regulations fixed a minimum legal size (or weight) for various kinds of fish. Can such Regulations be made applicable to fish imported from abroad; or captured in the territorial waters of another State; or captured on the high seas? (vide section 23, Act No. 119,1902, N.S.W.(1)).

I think that, generally speaking, the Customs Tariff should be regarded as only imposing duties on goods produced or manufactured outside Australian jurisdiction and brought within Australian jurisdiction for consumption.

I think also that the Australian jurisdiction should, as regards fisheries carried on by Australian vessels, be considered as extending to all Australian waters whether those waters are within the territorial limits of Australia or not.

I think also that, in relation to fisheries carried on by Australian vessels, all waters lying around Australia and which appertain more particularly to Australia than to any other country should be regarded as Australian waters.

I think also that the provisions of the State Acts relating (inter alia) to the sale of undersized fish could be framed so as to apply to fish taken outside the State as well as to fish taken inside the State. The provision of the New South Wales Act (section 23 of Act No. 119 of 1902) to which attention has been called undoubtedly applies to fish caught beyond the limits of the State as well as to those caught within such limits.

I am of opinion, therefore, that the questions submitted should be answered as follows:

  1. No, if the fish were caught in Australian waters. Yes, if the fish were not caught in Australian waters.
  2. Technically the fish caught in Australian waters would not be dutiable and those caught in New Zealand waters would be dutiable. If the fish could not be separated, the whole would be dutiable.
  3. The fish caught in Australian waters would not be dutiable provided nothing were done to them in the foreign port. The fish caught outside Australian waters, and those caught inside those waters and subjected, in a foreign port, to some process (e.g. freezing) which altered their tariff classification, would be dutiable.
  4. Yes. But the Act or Regulations would be invalid if it or they were inconsistent with a Commonwealth Act or infringed any provision of the Constitution.

[Vol. 8, p. 237]

(1) Fisheries Act 1902 (N.S.W.).

* See also Opinion No. 406.