Opinion:
No. 74
Subject:
CUSTOMS DUTY
WHETHER CONTRACTOR TO COMMONWEALTH IMPORTING GOODS IS EXEMPT CUSTOMS TARIFF 1902
Author:
DEAKIN Alfred
Key Legislation:
Date:
30 June 1902
Client:
The Treasurer
Related Opinion:
Opinion text:

A question has arisen whether duty is to be paid on goods imported by contractors for the use of the Commonwealth Government.

A ruling of the Prime Minister was given on a case which arose some time ago and this ruling the Department of the Postmaster-General appear to have construed as deciding that all goods imported by contractors for the use of the Department were not subject to duty.

The Prime Minister's ruling is as follows:

  1. The facts seem to me to prove that the goods were imported by the Federal Government if they were ordered after 1 March 1901. The fact that they were ordered through a firm who were agents of the Government in that behalf would not deprive the Government of the right to forego duty in their own case.
  2. If the goods were ordered by the State Government before 1 March but through a firm who merely acted for the State Government to execute the order, I think the case will be the same.

The facts of the case on which this ruling was given are not before me further than as stated in the ruling.

The exemption in the Tariff is as follows: 'Articles imported by and for the use of the Commonwealth'.

The Treasurer asks for an opinion on the question.

While I agree with the ruling of the Prime Minister I think it must be confined to cases in which goods are imported by the Commonwealth through the medium of an agent.
I am of opinion that neither the ruling of the Prime Minister nor the exemption in the Tariff extend to the case of a contractor importing goods to enable him to carry out a contract with the Commonwealth Government. The contractor is clearly the importer of the goods, not the Government. The Government could not directly compel him to hand over the goods or any portion of them; all they could do in the event of his refusal to deliver would be to pursue their remedies for his breach of contract.

If the conditions of contract specify that the goods are to be free of duty then the Department concerned is bound to refund the contractor any duty paid on the goods.(1)

[Vol. 2, p. 46]

(1) This opinion was published in Commonwealth of Australia, Pari. Papers 1904, Vol. II, p. 1349.

(2)This opinion was concurred in by Sir Josiah Symon, Attorney-General, in an opinion, not published, dated 8 December 1904 [Vol. 4, p. 424].


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