Is it possible to create legislation
out of court action?
It maybe so. In TCP # 26 The notice from Customs that was used
by that organisation to justify the 96 hour rule
as applied to yachts was published. Strangely, no mention was
made in the notice regarding private craft. All references were
consistent with a discussion of commercial shipping however.
If there is specific mention in any legislation regarding a 96
hour rule clearly directed at yachts, TCP hasnt yet
uncovered it. Australia has some unusual and possibly very unfair
legal practises. In the US for example, one cannot be charged
with the prosecutions legal fees if convicted. In Australia that
is the common practise, even for something as minor as a traffic
infringement. Should an individual dare to plea not guilty, they
may face in court, the most expensive legal muscle in the land
financed by a government department with unlimited resource (your
taxes). Typically in this kind of situation, the legal fees imposed
on the victim could be in the tens of thousands where the fine
may not have been more than a hundred or two. This situation
intimidates all but the few and the prosecution knows it. A factor
that is common to most court systems is that they hate to contradict
themselves. A precedent is a difficult thing to overcome. So..
using those two points, if one in a position of power chooses
to abuse it by virtue of their access to resource, its
an easy thing. First, choose you initial victim carefully. The
first boat charged with the 96hour rule was the American vessel
Sohcahtoa. This vessel was towed into port and customs
interview made much of asking about the crews income which otherwise
would not be relevant to an entry. "So after having
all of our cupboards emptied and the dog run through all of our
stuff, we had to explain that YES we could afford the boat and
NO I don't have any business card to PROVE that I used to work
at this obviously fictitious company Cypress MicroSystems.
" They happened to be American men on a fast circumnavigation,
short on visa time and with plenty of money. They didnt
give a toss, they just wanted to be let go so plead guilty and
slammed it on their plastic, remarking that they even got points
on their card for the transaction. First pawn out of the way.
Next, a retired Dutch couple with limited English, no understanding
of Australian courts and not enough money to risk losing. (Old
gamblers proverb; never gamble what you cant afford to
lose) They were lured into port after contacting customs by radio
12 hours out. (link to Brutal Customs
from TCP # 23) Second pawn wrapped up and tidy. The third
try turned out to be a problem. A Kiwi boat was threatened with
prosecution but it turned out that even though they were in technical
violation they had made best effort to contact customs after
hearing of the brutal enforcement through the anchorage grapevine
and the Sheila net, the only source of the information available
to them at that time. Better not to risk it, Karma Winds
was treated savagely for every other item they could find (pest
inspection, import duties etc..) but not charged with the 96
hour rule. Another Kiwi boat charged, they apparently copped
it and disappeared. A deal? Gagged and shifted on? Wouldn't be
A quote from Salute Skipper, Bram Goehardts
report of his day in court.... "The judge came to
his decision on basis of a similar case that happened before
and made the fine $500 less than it was for wealthy Americans
some months before." Precedent... a powerful thing.
One more important thing. If you want to
create legislation from court action it may be well to choose
your venue carefully. Ive seen regional Queensland courts
in action and they can be appalling. It is not an exaggeration
I believe, to say that many magistrates in Queensland are little
more than rubber stamps for the prosecution. Though yachts entering
other states did so in the same manner and proportion as the
fleet that arrived in Queensland, none have ever been charged.
Only in Queensland!
And then the Manzaris. According
to Jim and Dorothy Manzari the customs agent that did them made
a point of mentioning they were eager for another precedent.
Such interest in legal matters from a dock jockey!
What would motivate someone to initiate
an abuse of the system like this? Political aspirations?
The only thing that went wrong was they
werent able to control ALL the media. Whilst the Australian
cruising magazine that in past had been the most important voice
supposedly representing the cruising community, actually blamed
the American sailors for their own plight (ridiculously blaming
them for a lack of HF radio with which to provide notice ignoring
the fact that customs does not acknowledge monitoring HF), in
editorial whilst accepting and maintaining a run of regular half
page ads from customs... Hmmm. No conflict of interest here is
Because of coverage from TCP the world
media has been alerted and the repercussions as a result have
created enough discomfort within customs to modify their enforcement
and admit to looking at reforming the rules to distinguish between
ships and yachts.
Australian people are guilty of apathy
but also are endowed with a sense of fairness. When media acts
responsibly to report an injustice, Australian people can become
a powerful force still.