The Auditor-General has been in correspondence with the Treasury and the Customs with regard to the legality of paying to officers the amounts received from the public for overtime under section 29 of the Customs Act 1901.

The Auditor-General submitted that section 29 of the Customs Act provided for charges being made for the services of officers, but did not provide for the appropriation of the moneys paid; and that regulation 12 under the Customs Act fixed the overtime rates, but did not provide for the payment to the officers.

It is said that the Treasurer now proposes that the regulation be amended to allow payment to the officers.

The Auditor-General asks to be advised:

1. whether the Customs Act or Regulations permit of this payment to officers;
2. if not, whether it is competent to make such regulation under section 270 of the Customs Act.

Section 29 of the Customs Act is as follows: 'When working overtime is permitted overtime at prescribed rates shall be charged for the services of the officers'. Regulation 12 simply prescribes the rates for overtime.

It appears from the papers that the practice, of which the legality is questioned, is as follows: The overtime fees, at the prescribed rates, are collected from the public, and are not paid into revenue, but held in a separate account. At the end of each month the officers who worked overtime are paid out of this fund at Departmental rates, and the balance is paid into revenue.

I am of opinion:

1. That these overtime fees are revenue, and that the Customs Act and Regulations do not constitute an appropriation to enable them to be paid to officers.
2. That no regulation under the Customs Act can have the effect of an appropriation of these fees. If it is desired to legalise the practice, an Act will be necessary.⁽¹⁾

[Vol. 2, p. 237]

(1) This opinion was published in Commonwealth of Australia, Pari. Papers 1904, Vol. II, p. 1165. * See also Opinion No. 149.