Opinion Number. 401



Key Legislation

CUSTOMS ACT 1901-1910 : THE VICTORIA CONSTITUTION ACT 1855 (IMP.). Schedule 1. s. 47 : MERCHANT SHIPPING ACT 1894 (IMP.), s. 523

The Comptroller-General of Customs

Mr A.B.C. has discovered an ancient wreck between Warrnambool and Port Fairy* and has reported his discovery to the Customs. He claims the wreck as discoverer.

His solicitors write saying that he proposes to begin work on the wreck at once and, in order to salve it, to build a sand bag ring around it. To do this, he would have to occupy a portion of the foreshore. His solicitors wish to know if there is any objection to his proposals.

A minute has been prepared as a basis for a reply, and is as follows:

Section 523, Merchant Shipping Act 1894, gives the Crown the right to unclaimed wreck.

Presumably, at present, the Crown representative is the State Governor.

We are concerned only from the point of view of securing Customs duties, and would accept security to supply list of all articles recovered, to produce the goods on demand, and to pay duty on same, if dutiable. The assistance of the local police might be invoked.

There is no record of appointment of Receiver of Wreck under the Merchant Shipping Act.

Any required permission for use of the foreshore would have to be given by the State authorities, if foreshore has not been alienated; otherwise by the owner.

The Comptroller-General of Customs has forwarded the papers to me for advice on the statements in the minute.

Section 523 of the Merchant Shipping Act 1894 does not in my opinion apply to wreck in Victoria because, under the Constitution of Victoria, wreck has been surrendered to the Victorian Government. See 18 & 19 Vic. c. 55(1), section 47 of Constitution in Schedule, and opinion of 14 July 1909(2) re proceeds of wrecks.

Except to the extent to which the matter is governed by the Customs Act 1901-1910, the Commonwealth has no interest or property in the wreck, and has no

power to authorise any person to do anything in relation to it, and has no power to give any licence to occupy the foreshore.

I am of opinion, therefore, that, in its reply to the solicitors' letter, the Department should specify the conditions which it thinks necessary to require to secure the payment of any duty which may be payable on any things which are salved, and might also inform the solicitors that the Crown rights (if any) in relation to the wreck and the foreshore belong to the State of Victoria, and that any application for permission to salve the wreck or occupy the foreshore should be made to the Government of that State.

[Vol. 8, p. 251]

(1) The Victoria Constitution Act 1855 (Imp.).

(2) Opinion No. 340.