CUSTOMS DUTY WHETHER, WHERE WESTERN AUSTRALIAN DUTY IS HIGHER THAN UNIFORM DUTY, IT IS PERMISSIBLE NOT TO COLLECT HIGHER DUTY IF LIKE GOODS ARE NOT PRODUCED IN AUSTRALIA . WHETHER DATE OF IMPOSITION OF UNIFORM DUTIES IS DATE OF IMPOSITION BY LAW OR OF EARLIER COLLECTION UNDER EXECUTIVE AUTHORITY : WHETHER RECEIPTS FROM WESTERN AUSTRALIAN STATE TARIFF ARE PART OF NET REVENUE OF COMMONWEALTH : RETROSPECTIVE LEGISLATION
CONSTITUTION, ss. 70, 81, 86, 87, 89, 95 : CUSTOMS ACT 1901 : CUSTOMS CONSOLIDATION ACT 1892 (W.A.),s. 115
On 14 February I gave an opinion(1) that under section 95 of the Constitution where the West Australian duty was higher than the uniform duty imposed by the Federal Parliament, the higher duty is charged on the importation into Western Australia, whether the like article is produced in Australia or not. Duty is now being collected in accordance with this opinion.
The Premier of Western Australia does not favour the collection of the higher duty on impotts in cases where 'the like goods' are not produced in Australia-or, as he puts it in some of his letters, are not 'capable of production in Australia'-and has corresponded with the Prime Minister on the subject of the best method of obtaining an alteration of the practice or the law.
On 7 August Mr James telegraphed to the Acting Prime Minister as follows:
Your letter 23 July to hand. Could we get over difficulty by availing ourselves of section 115 our Customs Consolidated Act 1892? As you are our collecting agents could you not accept exemption under that section as being sufficient?
Section 115 of the W.A. Customs Consolidation A ct 1892 is as follows:
The Governor may, by special order in each case, exempt from the payment of duty, or any proportion thereof, under circumstances of an exceptional nature, to be stated in such order, any goods on which duties of Customs may be leviable: Provided that any such order as aforesaid shall be published in the Government Gazette.
The Minister for External Affairs asks to be advised on the matter.
The collection and control of duties of customs having passed to the Commonwealth, the Governor of Western Australia has no further power to make any order under the section. Up to the commencement of the Customs Act 1901, the power to make orders under the section was, by section 70 of the Constitution, vested in the Governor-General.
The Customs Act 1901 must be taken to apply to duties collected on foreign imports under section 95, and to supersede, to the extent of its scope, the West Australian Act. The Customs Act makes no provision for the exemption of any goods from duties leviable upon them; and I am of opinion that no such power now exists, and that section 115 of the W.A. Act is superseded.
Even had this not been so, I do not think that that section, which provides for exemption under exceptional circumstances, by a special order in each case stating the circumstances, could have been made available for the purpose of a general reduction of duties.
The Minister for External Affairs also asks to be advised on the following questions, raised by a letter from Mr James dated 31 July:
- Whether the date of the 'imposition of uniform duties' is the date of the imposition by law, or that of the collection under executive authority.
- Whether the receipts from the State tariff of Western Australia come within section 87 as being part of the net revenue of the Commonwealth.
Mr James suggests that the duties under section 95 are merely 'collected' by the Commonwealth, and are not part of its revenue.
My opinion on these points is as follows:
- 'Imposition' means imposition by law; but the Parliament can, by the law imposing customs duties, date back the imposition to the day of first collection; and the Customs Tariff Bill1(2) now before Parliament is framed to do this.
- The duties collected under section 95 of the Constitution in common with all other duties, collected by the Commonwealth, are revenue of the Commonwealth. See sections 81,86, 89. The revenue collected under all the State tariffs prior to 8 October last was revenue of the Commonwealth, and the revenue now collected under section 95 is in no different position. It comes within section 89, and it is equally clear that it comes within section 87.
[Vol. 2, p. 15 7]