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 Customs Issues

 Yachts entering Australia, TCP ask’s for facts..

 May 8th, 2007

To: Mr. Michael Carmody
Chief Executive Officer
and to: Ms Jenny Eutick
Queensland Regional Director
Australian Customs Service
From: Bob Norson
Editor, The Coastal Passage

Re: Yachts entering Australia


I am writing as a result of intense interest of my readers regarding the enforcement and prosecution of yachts entering Australia that have been found in violation of a newer notification requirement, AKA, the “96 hour rule”.

There are some questions that naturally arise from the circumstances we have had reports from that have not been addressed by the ACS in any material I have been able to source. If you or any representative of the ACS could bring about an understanding of these issues it may go a long way to restore the boating communities goodwill that I assure you, has suffered otherwise.

For example; why the rule applied to yachts in the first place? No other country in the world, as far as I have been able to determine, places such regulation on personal craft. The United States of America has a 96 hour rule but only applied to craft 300 tonne or over which seems reasonable but no notice requirement for yachts. New Zealand has a 48 hour rule but thus far has only issued warnings for infringement of them. I am not clear on how this rule benefits Australia?

Why was there no notice given of this important new policy? The ACS spends large sums of advertising dollars to persuade yachties to assist in observation of suspicious activities at sea but I don't recall one ad educating the fleet of this issue.

Why are yachts being singled out for prosecution? The shipping and freight industry have negotiated a compromise deal that allows for a reduced fine and no criminal record (the “infringement notice scheme”) whilst yachts bare the full burden of large fines, criminal convictions and the risks of future troubles with countries that may have record of a customs breach in Australia.

I would like to invite ACS response to discuss any errors of fact in reportage thus far. To that end I provide the following web site link that makes available, the two recent editions (in PDF) that cover the issue, TCP editions # 23 and 24. See; www.thecoastalpassage.com

I am looking forward to a meaningful interchange that I hope can explain and perhaps rectify policy matters that affect yachts. I can see from the record that the agency has quite a bit of flexibility in its enforcement and perhaps a less antagonistic approach can be organised from consultation. Readers have come up with a few very interesting suggestions that may address customs concerns whilst not alienating the yachting community. I believe a civil debate on these issues with some genuine consultation could resolve the problems. I will hold space for a response as long as I can. Hopefully we can talk within the week?

Bob Norson
Editor and Publisher
The Coastal Passage

 Customs Response to Questions From TCP

Notice! As is regularly stated in TCP and as is usually expected by readers, “all contributions that purport facts in a matter of contention should be ready to provide support for their assertions..” As statements in this letter were either unclear or in conflict with other sources a letter was sent to customs asking for additional information. This request (copy on next page) was flatly denied. Readers should consider this in perusal of this material and note that TCP does not endorse this information provided by Customs. I have decided to publish this anyway but along with the additional questions that were posed to Customs and other information. You decide.
This response was delivered to TCP by Mr Simon Latimer, “Director Customs Corporate Communication” on behalf of Ms Jenny Eutick via Email

 What we know... What we Know we Don’t Know... ..

Comment on the response from customs as published in TCP # 26

 Information for The Coastal Passage
Why is it important that yachts report their arrival in advance to Australian Customs?
Customs is responsible for clearing all goods, vessels, passengers and crew entering and leaving Australia. A primary reason for our presence at the border is community protection preventing prohibited, harmful or illegal goods or persons from entering Australia. While the vast majority of smallcraft are travelling legitimately, criminal syndicates have used them to tryand breach Australia's border security. There have been numerous detections and seizures of prohibited items imported by smallcraft in the past, including the seizure of over 1.2 tonnes of illicit drugs in the past decade. In the light of this and other evidence the Australian Government, through Customs, has decided that all vessels, regardless of their size or the purpose of their travel to Australia, must be fully risk assessed prior to their arrival and must therefore provide the pre-requisite information needed to make this assessment. Customs risk assesses every smallcraft and commercial vessel in advance of its arrival in Australia. The assessment takes into account available information and intelligence in relation to a range of border security issues, including: drugs, terrorism and people-smuggling. It is important that this assessment take place in a timely manner, which allows Customs to organise its resources to provide the required response to the threat identified.

What are the reporting requirements for yachts?
There are essentially three common elements that every vessel, whether a smallcraft (eg. yacht) or a commercial vessel must report to Customs in advance of their arrival into Australia.
1. Impending Arrival Report of the vessel;
2. Passenger Report for passengers on the vessel, and
3. Crew Report for crew on the vessel. These reports are detailed in government regulations. Customs recognises that these
prescribed forms are tailored for commercial vessels and have therefore made concessions for yachts travelling to Australia by only requiring the following information to be reported:
o Name of the yacht
o Intended first port of arrival
o Estimated arrival date/time
o Last four ports of call
o Details of all persons on board including name, date of birth, nationality and passport number
o Details of any illness or disease recently encountered
o Details of any animals on board
o Details of any firearms on board.
These reports are required under the Customs Act 1901 and must be communicated to Customs within prescribed time periods before the vessels estimated time of arrival at their first port in Australia as follows:
If the voyage exceeds 96 hours - not later than 96 hours, or
if the voyage is less than 96 hours - not later than 72 hours, or
if the voyage is less than 72 hours - not later than 48 hours, or
if the voyage is less than 48 hours - not later than 24 hours, or
if the voyage is less than 24 hours - not later than 12 hours.

While Customs notes that smallcraft differ from commercial vessels in the amount and type of communications equipment many of them carry, it is significant that the majority of the more than 700 yachts arriving in Australia from overseas each year are able to comply with these reporting requirements. These timeframes came into effect in October 2005 when, in a climate of heightened border security, the Government determined that advance notice of the arrival of vessels and people to Australia was an imperative. In the air environment, Customs obtains advance passenger information on all travellers prior to their arrival in Australia, enabling us to pre-screen and risk assess all travellers in order to ensure that they do not pose a threat to Australia's security. In the same way, the Government recognised that passengers, crew and vessels of all sizes (whether it be a yacht, commercial vessel or even an offshore drilling rig) should be assessed prior to their arrival in Australia. After careful consultation with border agencies, the Government determined that passengers and crew should report to Customs no later than 96 hours in advance of a vessel's arrival at the first Australian port. This rule applies to vessels of all sizes ranging from large cruise ships to small pleasure craft. The timeframe of 96 hours was considered appropriate in order to provide sufficient time for Australia's various law enforcement agencies to conduct a thorough risk assessment and to organise an appropriate response. Prior to October 2005 all vessels, including smallcraft and commercial vessels were subject to the following reporting timeframes:
If the voyage exceeded 48 hours - not later than 48 hours, or
if the voyage is less than 48 hours - not later than 24 hours
The pre-arrival reporting requirements for yachts did not first appear when reporting timeframes moved from the '48 hour' regime to the '96 hour' regime. Yachts were not excluded from the previous '48 hour' regime and have had to provide some form of pre-arrival notification for several years now.

Where can yachts find out about Customs reporting requirements?
Australian Customs Internet site details what yacht masters are required to know and do prior to their arrival in Australia. Given that the yachting community is international by nature and the impossibility of our making individual contact with all yachts, our Internet site is regarded as the best way we can communicate our requirements. Customs issued two Australian Customs Notices in 2005 (ACN 2005/31 and ACN 2005/47) to advise of the commencement of the new '96 hour' reporting regime. It should be noted that these notices did not specifically mention smallcraft.
The Customs Information Centre (1 300 363 263) also provides details of these requirements for those wishing to make contact by phone.

What action does Customs take when vessels fail to meet their reportingobligations?
Customs treats non-compliance seriously. The measures available to Customs are the same, regardless of whether it is a yacht or a commercial vessel. Action is determined on a case-by case basis, and can range from a warning letter through to prosecution. Factors that may influence Customs decision on what level of action to take in the event of a failure to meet
reporting obligations may include:
What attempt, if any, was made to obtain the correct information relating to Customs reporting requirements?
What attempts, if any were made to report to Customs prior to arrival?
Did the vessel actually arrive in Australia or the crew go ashore before it made a report of it's impending arrival to Customs?
What communication options did the vessel/master have available to facilitate the report of pre-arrival information, either from the vessel itself or at the last ports of call?
Were there any safety/emergency issues that contributed to the reporting issue?

Each decision to prosecute is only taken after careful consideration. This is reflected by the fact that during the past two years Customs have completed five prosecutions in relation to vessels who have failed to comply with the pre-arrival reporting requirements (vessel, crew or passengers). Yet during this same period we have seen more than 20,000 vessels (both commercial and smallcraft) report their arrival in Australia. Yachts have also not been “singled out.” For example, on 2 March this year in Tasmania, a shipping company was fined $2,500 with costs of $2,867 for failing to report to Customs the impending arrival of one of its vessels, a tug supply ship, and failing to provide a crew report.

Can Customs use the Infringement Notice Scheme (INS) to deal with noncompliance?
Within the Customs Act (and other legislative instruments) there are “strict liability” offences. A “strict liability” offence means that regardless of whether the person committing the offence acted intentionally, recklessly or otherwise, the fact the action occurred is sufficient to establish that the offence was committed. Under the provisions of the Customs Act some, but not all, of these '”strict liability” offences can be dealt with by what is known as the Infringement Notice Scheme (INS). The INS allows certain senior delegated Customs officers to serve an infringement notice in lieu of taking prosecution action in certain situations. In relation to the three common pre-arrival reports required for all vessels arriving in Australia (as described above) only one of these reports Impending Arrival Report - can be dealt with via the INS. The other two reports Crew Reports and Passenger Reports cannot be dealt with via the INS. This applies for ALL vessels - commercial vessels or yachts are NOT treated differently when it comes to the INS. Put simply, Customs options for dealing with vessels failing to report their crew or passengers does not include the INS.

Why should the yachting community continue to support Customs and its Hotline program?
Customs officers are at the forefront of efforts to stop drugs, people and weapon smuggling at our borders. This is a formidable task when you consider the vastness of our coastline and the sparseness of our population. For this reason Customs has always sought to work cooperatively with the Australian yachting community. As extra pairs of eyes and ears on the water, often in remote locations, they can help us better protect our borders by reporting any suspicious incidents to our Customs Hotline on 1800 06 1800. Border security is about everyone, not just Customs, but yachties too, playing their part in helping to keep our country safer and protecting the lifestyle that we enjoy.

 Contradictory Information?
The document received from customs was interesting in that some information seemed incomplete and/or contrary to information from other sources. Also contradictions within the document itself should be addressed such as; “What action does Customs take when vessels fail to meet their reporting obligations?... Action is determined on a case-by case basis, and can range from a warning letter through to prosecution... Put simply, Customs options for dealing with vessels failing to report their crew or passengers does not include the INS.” TCP research confirms the former but if this quote is meant to imply that all instances of failed crew report are prosecuted, strongly disputes the latter.

Misleading information?
For example, relating to the first question in the letter above, in international shipping language, small craft usually means any seagoing vessel under 300 tons. This customs document seems to intermingle the terms ‘smallcraft’ and ‘yacht’ in a way that may confuse.

Drug Issue a Red Herring?
The minister seems to state that the intent of the 96 hour rule is an anti terror measure. “In the climate of heightened border security and counter terrorism, the Government deemed that advance notice of the arrival of vessels and people to Australia was an imperative.” Could the smuggling focus in the Customs document at left be an attempt to justify after the fact? Perhaps, but to pursue it in any case, TCP couldn’t verify the amount of drugs that Customs say they found on “smallcraft”. TCP research has found two cases involving drug smuggling yachts, one with 505kg and another with 90kg. Both busts were over five years ago and the result of foreign sourced information like US Customs. Both didn’t add up to 1.2 tons and in that paragraph the term “smallcraft” is used. In the last 30 days (as of July 27) Customs have announced 9 major drug arrests and over a thousand seized mail drug shipping attempts, not an unusual amount. None from a yacht.

Airlines Get Concessions
TCP have received claims that the descending order of arrival requirements listed at left, “if voyage is less than...” etc, were a concession demanded and received by the airline industry and freight forwarders. This appears to be spelled out in ACN 2007/03.(see above right for explanation of the term and how to access the documents)

Shippers Get Concessions
Indeed, in ACN 2005/47 there is already mention of modifications of the rules to accommodate the shipping industry already angry with customs over the ICS (integrated Cargo System) that seriously tarnished Customs reputation in international shipping and in the press. Reports are that debacle has cost over $200 million in cost over-runs to tax payers and over $12 million has been paid out in damages to shippers hurt by Customs failed system so far. If it was true that the airlines are accommodated as well as ships, then it would seem reasonable to accommodate yachts in such a way as to avoid criminal prosecution except where criminal intent is established.

More Concessions for ships
The “INS” referred to (Infringement Notice Scheme) is a concession to the shipping industry that objected to the ‘96 hour’ rule as impossible to comply with. Under the INS, instead of a criminal prosecution, customs may substitute the smaller fine without criminal record that the shipping industry has negotiated as a concession.
Yachts 100 times more likely for Prosecution than ships
Only one out of the over 19,000 ships that Customs states enter per year has been prosecuted. This was a relatively recent case coming on the heels of TCP’s publicity of several yachts being charged. According to the Customs document, only about 700 of the 20,000 marine vessel arrivals last year were yachts. The Document states there have been 5 prosecutions. TCP research confirms, four for yachts and the one ship. According to information forwarded to TCP there have been “several” INS penalties for ships but none for a yacht.

What is Law and What is Whim?
TCP has reports of vessels that have not complied but not been prosecuted. All yachts prosecuted have been in Queensland. None elsewhere. All have been foreign flagged.
Perhaps the greatest concern for yachts is the uncertainty created by the lack of notification of the law and that the acceptable actions seem to be constantly changing. In last issue of TCP a media release published by Customs contained instruction to yachts to ignore the “statutory maximum 10 days (notice) prior to arrival”. That could be construed as inciting to commit crime. The word “statutory” implies law but goes on to say it is OK to ignore it. That release also stated you could now notify third parties to relay info when in other customs documents it states strict criterial for how you contact customs.
In this report (left) it states clearly that the final decision to prosecute is made by customs and they have included a list of criteria that is used to decide. This states then, that customs feels it has autonomy when it comes to prosecution, that it reserves the right to decide who might be prosecuted and under what criteria. It is interesting to note that the specific issues listed in this document as mitigating circumstances apply in large part to the cases of boats already prosecuted. In particular, the Manzari’s should not have been charged according to this document. They did diligently seek the correct information, carried it out to the letter with the best communication gear they had and were careful to not violate Quarantine upon arrival.(facts supplied by the Manzaris with court docs and personal statements for support)
Whilst Customs refers to their web site as the only venue for announcement and information to yachts on the ‘96 hour rule’, The notice document , makes no mention of yachts in it’s content so even in the rare event a yacht crew would access the notice, it’s relevance would likely be missed. Other information for arriving vessels on the web site has been changed often and in some cases, inaccurate. As reported in TCP # 23, well into this year customs still had the old ‘48 hour rule’ posted.
Especially as it strongly appears that Customs is acting independently in these matters, it is fair to ask why is Australia so far out of step with the rest of the world on the enforcement of these laws?
Except for cargo reporting, yachts entering Australia appear subject to more regulation than ships. Whilst yacht crew must be vetted and approved for a visa before arrival, ship crew are only now being asked to apply prior to arrival.

Ships crew not required to have a visa to enter Australia.
According to Emigration; “Special Purpose visa. This visa is for foreign crew (including supernumerary crew), plus accompanying spouse and dependent children, of non-military ships that are entering and departing Australia in the course of an international voyage. This visa is granted to crew by operation of law on arrival (editors emphasis) if crew members hold a valid national passport, and another individually-issued document establishing their employment on the vessel (a seafarer's identification document (SID) or valid employment contract).
Maritime Crew visa From 1 July 2007, this visa replaces the Special Purpose visa (above) for foreign crew of non-military ships but a transition period is allowed until 31st December. Foreign crew will be required to lodge a visa application outside Australia. For lawful arrival in Australia, foreign crew will need to hold a valid Maritime Crew visa, a valid national passport, and must be identified as crew on the vessel (eg. crew list, ship's articles, seafarer's ID).”

TCP reportage has been accurate
Despite invitation to do so, Customs could not contradict or fault any fact published by TCP on these subjects.