Opinion Number. 49



Key Legislation

CONSTITUTION, coveringcl. 5; ss. 69, 86 : CUSTOMS ACT 1901, ss. 30, 31, 36, 51, 68-75, 127, 163, 187, 190, 191, 192


Before the Supreme Court of Victoria(1) the argument turned mainly on sections 192 and 127 of the Customs Act; and the chief arguments for the defendant were:

  1. that on the proper construction of section 192 it applies only to breaking seals, etc. within the territorial limits of the Commonwealth; and
  2. that if it applies to breaking seals outside those limits, it is (to that extent) ultra vires.

It was contended that section 127 was also ultra vires.

  1. On the question of interpretation, Macleod v. Attorney-General for New South Wales [1891] A.C. 455 was relied on to show that the prohibition against breaking seals should be construed as applying only to the breaking of seals within territorial limits; and that seals broken outside those limits were not broken 'contrary to this section'. It was argued that the words 'penalty one hundred pounds' applied to both prohibitions.

    The argument for the plaintiff (upheld by the Court) was that the section should be construed as imposing a penalty only for the offence of entering a port with seals broken; that 'contrary to this section' meant 'without authority', and that the suggested limitation of the first part of the section was contrary to the clear intention of the section, and would make the provision futile. Macleod's Case was only an authority that where a colonial legislature made punishable an act, wherever committed, it must be construed as referring to acts committed within the jurisdiction. Here the breaking of seals is not made punishable (that is done by section 191); it is merely a prohibition, accompanied by a provision that entry into port, after disregarding the prohibition, is punishable. See The Annapolis Lush. 295; 30 L.J.Adm.201.

  2. As regards the question whether, upon this construction, the section was ultra vires, it was argued for the defendants that the real intention of the section was to impose taxation on goods consumed outside the jurisdiction; that the Commonwealth Parliament had no power to do this directly, and could not do indirectly what it could not do directly; that the territorial limits were 3 miles-or at most 10 miles-from the coast; and lastly that the Commonwealth Parliament had no power to levy import duties on goods brought into port, unless either landed or consumed on board.

    With regard to the question of ultra vires, the following observations may be made.

    It should be noted first that at the time of the offence there was not, and there is not yet, a Federal Act imposing duties of customs. At the establishment of the Commonwealth the control of the departments of customs and excise passed to the Commonwealth, and duties were at first collected by the Commonwealth under the State tariffs (including border duties). See sections 69 and 86 of the Constitution. The Customs Act 1901 (a machinery Act, not a taxing Act) was assented to on 3 October 1901, and came into force the following day (see Proclamation in Commonwealth Gazette, 3 October 1901). On 8 October the tariff proposals of the Government were introduced into the House of Representatives, and the uniform duties were collected from that date, in accordance with constitutional precedent. As a matter of law, the State tariffs are still in force; but as a matter of fact the Federal duties are being collected. Nothing in the case turns on this; the fact is merely stated to make the position clear.

    On the arrival of a ship at her first port of call in the Commonwealth, all dutiable stores, unless entered for home consumption, or unless security for payment of duty is given, are sealed up (Customs Act, sections 127, 187, 190).

    Goods are subject to Customs control from time of importation, and also whilst the ship is in any port: sections 30, 31.

    Goods are imported, and duties become payable, on arrival in port: see Attorney-General v. Ansted 12 M. & W. 525; and Customs Act, sections 36, 51 ('imported in any ship'), 68-75 ((1) importation (2) entry (3) landing or trans-shipment), section 163.

    The Act is clear (section 127) that ships' stores imported should be entered for home consumption, and pay duty, if used before the departure of the ship from the last port of departure in the Commonwealth. Section 192 provides the machinery for effecting this purpose. It is submitted that the power to pass such a law cannot be questioned. The Parliament might have gone further, and required entry and payment of duty in respect of all stores brought into a port of the Commonwealth. The fact that the goods may be, or are intended to be, consumed outside territorial limits does not affect the power of the Federal Parliament to impose an import duty.

    The argument as to the constitutionality of section 192 is fully dealt with in the judgment. It is submitted that no question of exterritorial legislation arises under the section. Compare Influx of Criminals Acts, passed in many colonies; and see The Annapolis, cited above.

    It is admitted in this case that the S.S. Oceana does not come within covering clause 5 of the Constitution.

    Although the Commonwealth does not in this case rely on any power to pass laws having exterritorial operation, it may be well to mention that it is not admitted that its laws can have no operation more than 3 or 10 miles from the coast. The three-mile limit is a rule of international law, and it is submitted that there is no satisfactory authority for its application to municipal law. The Imperial Parliament is of course under no such limitation; and it can clearly empower a colonial Parliament to give an exterritorial effect to its laws. It has empowered the Commonwealth Parliament, with respect to matters within its legislative power, to make laws 'for the peace, order, and good government of the Commonwealth'; and it is submitted that the sole test of constitutionality, as a matter of law, is whether a law comes reasonably within the scope of this provision. See Lefroy, Legislative Power in Canada, pp. 322-338; Ashburyv. Ellis [1893] A.C. 339.

[Vol. 1, p 344]

(1) Kingston v. Gadd 27 V.L.R. 417.