Opinion Number. 78




The Consul-General for the United States has called the attention of the Acting Prime Minister to the fact that a package of official consular supplies bearing the seal of the Department of State, Washington, and accompanied by an invoice from the Department, was not allowed to be taken possession of by the Consulate until it was opened, and the contents examined by a Customs official at Melbourne, and payment of 5s. duty. This occurred on 19 May last. Mr Bray considers that this action is a great breach of courtesy, as being foreign to the treatment given to consuls representing Great Britain in the United States. He refers to the United States consular regulations, paragraph 428, stating that it is customary for the United States Government to admit free of customs duties and charges all articles for the official use of foreign consuls, and requiring the consul to report any refusal to grant similar privileges.

The matter was referred to the Minister for Trade and Customs, who returned the papers with the following minute:

Forwarded to the Hon. the Prime Minister. I deeply regret that inconvenience appears to have been occasioned to the U.S. Consul at Newcastle. Had the matter been brought under my notice at the time I would not have failed to have given instructions to facilitate entry and delivery.

But as to the (main point?) of free delivery I invite an expression of the opinion of the Hon. the Attorney-General in view of the fact that the exemption as noted in the Consular Regulation paragraph 428 was originally contained in the Tariff but was struck out in the House of Representatives.

A short experience of its working had established the fact that it was not incapable of undue extension though this remark has I need hardly say no application to the United States.

The papers are now submitted to me for advice.

The Customs Tariff contains no express exemption of these articles, but should be read and administered in accordance with the rules of international law and comity.

It is settled that, although a consular officer has not the privileges of ambassadors, his official position commands some not well-defined amount of respect and protection; that he has the specific right of exemption from any personal tax; that he must be conceded whatever privileges are necessary to enable him to fulfil the duties of his office-it being understood to be implied in the consent of the Government to his appointment that all reasonable facilities for that purpose must be given; and that the muniments and papers of the consulate are inviolable, and under no pretext to be seized or examined by the local authorities: Hall, International Law, p. 334; Wheaton, International Law, p. 3 51.

In accordance with these principles, I think that official supplies forwarded to a consul by his government ought to be admitted free, and-when, as in this case, under the seal of his Government and accompanied by an invoice-without examination un┬Čless there are special circumstances to justify it; and that a refusal to grant this privilege would be a breach of international courtesy.

[Vol. 2, p. 76]