§ 390. “Goods Imported before the Imposition of Uniform Duties of Customs.”

The object of the second paragraph of this section is to prevent merchants, before the imposition of the uniform tariff, from “loading up” imported goods in a Colony or State where there are no duties, or where the duties are light, in the expectation that as soon as the border customs are abolished such goods will be free of the whole Commonwealth. With the present free-trade tariff of New South Wales, importers in every colony would have been able, but for this provision, to evade customs duties on general merchandise altogether, for the first year or so of the uniform tariff, by

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warehousing everything at Sydney in advance of the tariff, and not distributing into the State of destination until the intercolonial customs barriers were down. This section checkmates any such device by retaining the intercolonial barriers for two years after the uniform tariff, so far as imported goods are concerned, to the extent to which those goods have not paid the Commonwealth tariff.

This section only prevents the “loading up,” in one State, of goods for distribution in another; it does not prevent, for instance, the importation into New South Wales, in the expectation of an increased tariff, of goods to supply the New South Wales market. That is an operation which is always possible when there is a prospect of increased customs taxation; and it can only be met by the recognized constitutional practice of collecting the new duties from the date on which the House of Representatives passes the preliminary resolution to impose the duties, and making the subsequent Customs Act take effect retrospectively from that day. As to this practice, see Exp. Wallace and Co., 13 N.S.W. L.R. 1, and the authorities there cited. In that case the applicants, before the passing of the Customs Act, applied for a writ of mandamus to compel the Collector of Customs to sign bills of entry for certain goods without payment of the new duties. The court, in the exercise of its discretion, refused the writ on the ground of established constitutional practice; though it was admitted that, pending the passing of the Customs Act, an action would lie against the Government. (See Stevenson v. The Queen, 2 W. W. and A'B., L. [Vic.] 143.)

IMPORTED.—After the establishment of the Commonwealth the Constitution does not speak of “imports” or “exports” from one State to another, but only of imports into, or exports from, the Commonwealth; and in the case of inter-state trade the phrases used are “goods passing into,” or “goods passing out of” a State. (See p. 845, supra; and secs. 93, 95, 104, 112.) In other words, the Constitution is careful to regard the Commonwealth, so far as imports and exports are concerned, as a single whole, and to regard the movement of trade within the Commonwealth as internal trade merely.

The word “imported” in this section is not confined to imports after the establishment of the Commonwealth, but includes all goods imported before the imposition of the uniform tariff. That it is intended to apply to goods imported before as well as after the establishment of the Commonwealth, is shown by the words “or into any colony which, whilst the goods remain therein, becomes a State.” This application of the section to imports made before the commencement of the Constitution is not really retrospective in character; it merely means that certain intercolonial duties previously chargeable continue to be chargeable on certain goods.

Questions may arise as to the meaning of the word “imported,” and as to the precise time when the importation of goods is to be deemed completed. On this point some assistance may be derived from the decision of the Privy Council in the case of the Canada Sugar Refinery Co. v. The Queen (1898), App. Ca. 735. By the Canadian Tariff Act, 1895, which came into force on 3rd May of that year, a duty of one-half cent per pound was imposed on raw sugar “imported into Canada.” On 29th April the Cynthiana, from Antwerp, carrying a cargo of sugar consigned to Montreal, put into the port of North Sydney, Cape Breton, Canada, in order to coal, and the master made his report inwards of his ship and cargo in compliance with the 25th sec. of the Customs Act. On the same day he made his report outwards and obtained the Customs certificate of clearance for Montreal. On 2nd May the importers of the sugar made an entry at the Montreal Customs House of the sugar, and a warrant was issued for its landing duty free. On 3rd May the new duty came into force. The Cynthiana reached the wharf in the port of Montreal on 4th May. The Collector of Customs then cancelled the free entry, and claimed that the goods were liable to duty. On his behalf it was contended that the goods were not imported into Canada until they were landed, or at any rate until they arrived within the port of Montreal; that the goods were not imported into Canada by the mere fact of the vessel entering a port of call within the

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Dominion on her way to her ultimate destination; that “imported” meant at least arrival in the port of discharge. This view was sustained by the Privy Council on appeal.