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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.
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