Marine Board of Hobart v Commonwealth [1915] HCA 43; (1915) 20 CLR 15 (17 June 1915)

HIGH COURT OF AUSTRALIA

The Marine Board of Hobart Plaintiffs. and The Commonwealth and Another Defendants.

H C of A

17 June 1915

Griffith C.J., Isaacs and Rich JJ.

Mitchell K.C. (with him J. Macfarlan), for the plaintiffs.

Mann and Owen Dixon, for the defendants, were not called upon.

Griffith C.J.

This is an action brought by the plaintiffs, the Marine Board of Hobart, against the defendants, the Commonwealth and the Collector of Customs for Tasmania, for a declaration that the Commonwealth is not entitled to require from the plaintiffs a bond or other security for payment of Customs duties upon goods not belonging to or under the control of the plaintiffs and for an injunction.

The plaintiffs are a corporation established under the law of Tasmania charged with the management and control of the wharves in the port of Hobart, over which they have under various Statutes very full powers of maintenance and regulation, including everything necessary and incidental to the exercise of those powers, and also the power to charge for services rendered in order to raise revenue. They are an elective body, and although the duties which they perform are naturally in some respects different, they are substantially of the same kind as those of a municipal corporation. They are, therefore, in regard to the observance of the laws of the Commonwealth, in the same position as any other municipal body or private person.

Under the Customs Act 1901-1910 goods imported into the Commonwealth are only allowed to be landed at certain appointed places. The plaintiffs are the owners of wharves at Hobart which have been appointed as such places. Sec. 42 of the Act provides that the Customs authorities may require and take securities for compliance with the Act and generally for the protection of the revenue of the Customs. Amongst the regulations purporting to be made under that power is a regulation which requires the owner of any wharf, in respect of which security has not been furnished at the commencement of the regulation, to furnish security for the protection of the revenue, in accordance with Form 1A, and in such amount as the Collector of Customs for the State in which the wharf is situated deems necessary. As to wharves in actual use at the commencement of the regulation, the security must be furnished within sixty days from the commencement of the regulation. The penalty for a breach of the regulation is a fine not exceeding £50, and a possible cancellation of the appointment of the wharf as a place for landing. By the security the subscriber is bound to the Commonwealth in the sum named, subject to the conditions that if any goods which without payment of duty are discharged at the wharf are safely and securely kept free from all loss, deficiency, or damage, and if before removal of the goods from the wharf they are duly entered for home consumption and all duty due thereon is paid, or are duly entered for warehousing or for transhipment, and also if the goods are dealt with in accordance with the provisions of the Customs Act and the regulations thereunder, then the security shall be discharged. That is to say, as a condition of granting the privilege of landing goods at a private wharf the owner must give security that the Customs duty upon them shall be paid. The regulation, of course, only applies to dutiable goods.

The objection made is that the Commonwealth has no right to impose such a condition upon the use of a private wharf. I confess that I have difficulty in apprehending the objection. The Commonwealth is authorized to take the necessary steps to secure payment of duty. How can they better do that than by making the person on whose premises the goods are after landing and before payment of the duty responsible for the payment? That is all the Regulations profess to do. In my opinion the contention set up by the plaintiffs fails.

The motion is, by agreement, to be treated as the hearing of the action, which must be dismissed.

Isaacs J.

I quite agree. The plaintiffs have under the local Acts the charge, management and control of the port of Hobart and of all public wharves and docks therein, and under the same enactments they have power of regulating the shipping or landing of goods at or from any dock or wharf, the nature of goods which may be landed thereon, the mode and time of shipping and landing goods. It is therefore quite clear to me that they have the fullest control with regard to uncustomed goods; and, if they do in fact permit uncustomed goods to be landed at and to remain upon their wharves, having such control and power of regulation, it seems to follow that it is a necessary provision that they shall be held responsible to some extent for the protection of the Customs revenue.

What is fair and reasonable in each particular case is not for this Court to determine, but for the law-making authority, and as regulations have to be made by the Executive and to be submitted to Parliament nothing can be determined by this Court except the power to make the regulations. I therefore agree with what has been said by the learned Chief Justice.

Rich J.

I agree.

Motion dismissed with costs.

Solicitors, for the plaintiffs, Malleson, Stewart, Stawell & Nankivell for Roberts & Allport, Hobart.

Solicitor, for the defendants, Gordon H. Castle, Crown Solicitor for the Commonwealth.