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American boat SV Oceanus Fights australian customs
Brutal Customs or..."Like old communist Russia?"
Update as of Oct 07 In obvious reaction to TCP coverage, Australian Customs has been in a panic to mend some of the public relations damage accrued as a result of their persecution of entering yachts. Some of the most onerous provisions of the rules are no longer being enforced, as if they no longer exist? Their web site has been reconstructed to answer some of the criticism of it's lack of usefulness to a cruising yacht. Many of the numerous errors in the web site, pointed out below, have been fixed, deleted or disguised.
I have taken the unusual step of posting this story to an HTML page prior to print as a service to the cruising community. This can be seen in context in the paper soon, see recent editions and look for the PDF of TCP # 23. I want all cruisers entering Australia to have an idea of what recption they may recieve and what precautions should be taken. Whilst I have added some information at the end, these are the words of the sailors involved.
John Hayward at left and Bram on the right with Saluut. Yachtsman Ashamed to be Australian. By John Hayward, SY “Interlude”
On Friday (November 10th) I sat through a court case and came out of it ashamed to be Australian. In the past I've always felt proud to be an Aussie. I've cheered on the Aussies all my life and was honoured to represent Australia in my sport of sailing on several occasions. However on Friday I felt helpless.
Bram and his wife Magda, an elderly Dutch couple had been enjoying the same hospitality as we had whilst sailing on their retirement cruise around the world….until they reached Australia. They made the usual radio contact with the officials as they approached the Port of Brisbane, after a rough, thirteen day voyage from New Zealand. Customs officials took their details and directed them to the quarantine dock for yachts. Everything seemed to be routine. On arrival at the dock, they passed Quarantine inspection and had their passports and visas ready for the Customs. However the Customs officers 'greeted' them on board by reading Bram his rights! Bram was confused. 'What have I done?' he asked. He was then told that Australia had recently (June 2006) introduced new laws making it compulsory that aircraft and shipping entering Australia must give between four and ten days notice of their impeding arrival.
Perhaps this Law was drawn up with commercial ships and airlines in mind where crew and passenger lists can be forwarded as matter of course, to give Customs and immigration time to do preliminary anti-terrorist checks on the vast number of tourists etc traveling into Australia. However for this time frame to apply to private vessels such as cruising yachts, with two or maybe three persons on board, is ludicrous. In all thirty countries we had visited on our recent circumnavigation, we had not had to give more than the usual VHF radio contact with the officials as we approached a recognized Port of Entry. Even if a yacht skipper was aware of this unusual Australian requirement in most cases the skipper would not be able give notice as required 'by fax, telephone or email' between four and ten days before arrival because, a) The voyage takes an indeterminate time due to the weather conditions and from most countries this would be more than ten days, and b) most cruising yachts do not have fax, telephone or email facilities on board, in fact many yachts have nothing more than line-of-sight VHF radio communications which is quite adequate in nearly all countries.
Fortunately for me I had heard of this new law by word of mouth from other Aussie cruisers in New Caledonia and had been able to comply, as it took us only six days to sail from New Caledonia, otherwise our welcome home after five years would not have been so joyous.
However Bram had been in New Zealand and had heard nothing of this new law. He had on board a recognized world cruising guide book which he had purchased before he had left the Netherlands and had read the relevant Procedures on Arrival in Australia. He logically believed that VHF radio contact would be sufficient to give the required 'three hours' notice which his guide stated. In fact he announced his arrival twelve hours before sailing across Moreton Bay to tie up at the Quarantine dock. It is interesting that the Customs official who Bram and his crew had spoken on two occasions, twelve hours before did not come back after checking. He could have been warned of the new requirement and so given the choice of returning to sea. In fact when I questioned a Customs official about this unusual requirement on our arrival, I was told that 'offending yachts usually get a warning'.
However, Bram was treated like a criminal. He was asked to go to the Customs office for a recorded interview by two customs officers and told that charges may or may not be made. He later received notice that he had to appear in court to face not one but two charges: one that he had failed to give notice of the arrival of his yacht, and the other that he had failed to give notice of the arrival of his crew. The maximum penalty for each breach was $6 600! Bram and his wife now had to hire the services of a barrister and spend the next three weeks agonizing over the prospects of facing criminal charges in a foreign country and as an elderly retired couple having their savings decimated. I could well imagine how an Australian couple, spending their retirement cruising the world would feel in the same predicament in some foreign country and not having a good grasp of the language in that country. We had visited only two English speaking countries.
In court, the Magistrate listened to both sides of the case. Bram's young barrister had convinced Bram to plead Guilty of the charges and hope for a warning or a small fine. The magistrate and the two lawyers debated the outcomes of only two other cases tried under this new law and whether the defendant should have a criminal record added to his name.
I believe the Magistrate was still ignorant of many facts when he told Bram to rise and told him that he found him guilty of the charges laid, and he would now have a criminal record, but due to his age and the fact that English was not his first language he was being very lenient in imposing a fine of just $2000!, plus court costs of almost $1000, (plus barristers fees of $?).
Many people see yachtsmen as extremely rich people, sipping champagne on the aft deck. However Bram and his wife are typical of most 'yachties'. After retirement they decided to embark on a lifetime dream. In reality it is a lifestyle of hardships, frustrations and pleasures. A lifestyle often fraught with danger and a project which takes most of their savings. They have been five years away from home but still try to fly home once a year to visit their children and grandchildren. Will they see their grandchildren this year?
It is not surprising that more and more cruising yachts are giving Australia a wide berth as they cruise around the world. We of course proudly told the many yachtie friends we made of our wonderful beaches, the wonders of the Great Barrier Reef, the Red Centre and the hospitality of our people. Many are not convinced, they fear regulations applying to yachts are becoming unreasonably strict. Is Australia gaining a reputation like old communist Russia?
Yachties also point to the dangers of crocodiles in our northern cruising waters, and many of the most poisonous and dangerous creatures of anywhere on earth. One wonders if our two legged officials will be soon added to this list!
Bram and Magda of Saluut. The following is an account by Bram himself.
TRAPPED BY CUSTOMS
The Dutch sailing yacht Saluut came from New Zealand to Brisbane.
At arrival on the quarantine dock, customs boarded it and without introducing them selves started to read the rights to the skipper. The skipper was demanded to go to court. According to the law, on the complaints against him a total fine of maximum $ 13200 was an option.What did the skipper do wrong? Did he smuggle drugs or people into Australia or did he pollute the Australia waters? No he unintentionally did not report his arrival between 10 days and 96 hour in advance of arrival. Before leaving New Zealand the skipper checked his cruising handbook, but according to Customs he should have checked internet instead of a Handbook that is not up date.
On two occasions before arrival (12 and 10 hours) the skipper had contact with the Australian Customs. According to the Cruising Handbook at least 3 hours is required. On both occasions, the Customs did not inform him that, should he proceed, he was breaking the rules instead he was directed to the quarantine dock.At court the lawyer brought up that the very law passed the parliament with the remark that it was specially made for fining shipping and air companies. He also brought in that the skipper had limited knowledge of English and not too much experience with internet. But, while sitting with his head on his hand, the judge announced these arguments not of relevance. Only the fact that the skipper does live on a retirement pension did hold. 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.
Bob’s note: The above letter from John of “Interlude” with notes from Bram, surprised me and I wondered what was going on here! It seemed odd enough in fact to require verification or corroboration. I didn't have to dig to get it. The first mention of the incident on a marina pontoon got an immediate referral to one and a brief mention on a web forum, another. Though there are differences in the three (so far) reports, the common points are important to note.
In the case of American vessel SY Sohcahtoa, (AKA “the rich Americans”)this is their largely unedited report. To insure accuracy, course language and slang has been left in place.The Harbor Control advised us to stand off until morning when we could get the Coast Guard to tow us in, so we floated around until 7am or so and then began the cluster fuck. There was still the 20 knots of wind with a pretty good wind wave and we wrangled and jostled around with the big yellow coast guard cutter until they could heave a line over to us and we got it attached to our burly anchor cleat. The channel to Cairns goes straight up a river delta, so is about 200 feet wide and 15 feet deep with mud on both sides. And the wind comes right down the middle, so we would have had to tack about a hundred times to get up there, if we could make any progress in the current. EVEN with those considerations it is still a bit of a blow to the pride of a sailor to be towed in by the Coast Guard when it is windy. “Hey. . why don't you use those big flappy sail thingys?” We were towed to an anchorage where the friendly customs Nazis showed up with 5 people and a drug sniffing dog. We had unknowingly violated Australian customs law by not notifying customs of our arrival 96 hours in advance. So in turn we won the full “crawl up your butt with a magnifying glass” customs treatment. This included a taped interview with two customs agents regarding why I was such a negligent ship's master. Our World Cruising Guide said that we needed to give customs 3 hours notice (which we did). 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”. We are currently under Customs Control and can't leave the Harbor. . .which is easy since we can't leave the anchorage due to the fact that we still have no engine. That and we have no battery power left, so in the evening, we have romantic candlelight to see by. All in all, we could be fined about $8000 Australian dollars if they chose to prosecute us AND all of our new Fijian injectors for our diesel are right now being rebuilt for the second time in a month.”
And then there was the trial…
“So, here is the detailed story about our little trip to court in Australia.
Matt and I headed up to meet with the customs agent and the prosecuting attorney (solicitor) at about 9am on the morning of September 7th. I didn't really think about it, but I realized in the morning that I should wear nice clothes, since this is court. I rummaged around the boat for a bit and finally found my "never use" duffel bag that had a pair of "wrinkle free" khaki pants in it. These pants had been crammed in a ball for over a year and looked more like crumpled up news paper than business casual wear. I tried to rub a wet towel on them to take some wrinkles out (since we left the iron at home), but that didn't really work, plus it kind of made it look like I hauled off and whizzed all over myself. Then I also realized that my footwear selection left a bit to be desired. I had a pair of well worn sandals and a pair of ratty old Nikes that had last been worn hiking to a waterfall in the Marquesas. I threw on the sandals and put the Nikes in my backpack. . .just in case. Matt meanwhile was going through ALL of his t-shirts trying to find one that didn't have a stain. This proved to be an impossible task and he chose one that was dark, and that had a stain on the side that could be easily concealed by his arm.
We met Gary the customs guy (actually a very nice guy despite the whole "pressing charges" thing) at the courthouse. Matt couldn't bring his camera into the courthouse (we tried for the website's sake), and had to check it at the front desk. We had a quick meeting with the solicitor who presented the case and recommended that we opt for the "plead guilty" so that we can get it over with, instead of the "plead not-guilty" and have to go to a real trial that would take lots and lots of time. Matt and I talked it over, and decided that. . .well, we WERE guilty, and let's just get this fucking thing over with. I also asked the prosecutor if my footwear selection was acceptable, and he just said that it was up to me. The sandals looked much better than the dirty old Nikes, so I went with option A.
We were instructed to bow slightly to the Judge when we entered the courtroom and then headed up to the Defendant side of the big long table in front of the Judge's bench. After a bunch of formalities and paper signing, we began our trial. The judge had to order all the reporters out of the courtroom, because she was going to be DAMNED if this turned into a media circus. Anyways, we were quite surprised when right out of the gate the solicitor started talking about 'terrorists' and 'living in a post-911 world'. . really driving the point home about the need for strict customs enforcement. We were hoping that this wasn't going to end up with us in the Australian version of Gitmo. He then spoke about the 'book', and showed the judge the paragraph in the Cruising Guide that said that the information was 5 years old and that everyone should get the updates and not take anything in the book seriously. I obviously did NOT pay much attention to that warning prior to our entry into Australia. He also made a VERY big deal about pointing out that all the up to date information was on the customs website and that we ourselves had a website detailing our trip, so we were Internet savvy and should have been able to find this out ourselves. All of this I agreed with.
He did however kind of omit a few things when describing our entry into Australia to make it seem to the judge that we were amazingly and grossly negligent assholes. We even noticed that the customs guy had a bunch of evidence bags (the big ones like on C.S.I.) that had our immigration cards and our original entry forms, as if somehow the whole thing was going to come down to DNA evidence.”The solicitor had advised us previously that it would be best to not speak in our own defense, but after some of the omissions, I thought that we needed to be heard. We had copies of all the documents that were given to the judge, and they were all spread out before us just like the solicitor had his. The judge asked if I had anything to say, and I stood up and said yes. I had been jotting down notes during the whole thing and tried to address some of the things that I thought were either left out or exaggerated. Pretty much I tried to show the judge that everything was a cascade down from the original bad judgment of believing the Cruising Guide (which I fully admitted to and said was a mistake). The judge was very friendly and was also very forgiving of my ignorance of the formalities and customs of Australian court. She asked some good questions, and even stopped the solicitor a few times when he started comparing us to other cases that really weren't the same. In the end, even though the maximum could have been around $13000, the prosecution asked for a $4000 fine plus about $1500 in court costs. The judge decided that the law did need to be enforced and that we were good people, so she fined us $2500 plus $900 in court costs. We were able to pay the fine on the way out and I think Matt even got R.E.I. points on his credit card. The solicitor and the customs guy wouldn't pose for a picture outside of the 'ourtHouse' even though Matt asked. After that, we had lunch, changed out of the life draining khakis and had a beer or five. So now, any boats that violate the 96 hour reporting law will have the case of "Customs vs. Sohcahtoa" referenced.
Leaving Australia
Nov 21st. I've been a captive of the boat for the last few days in Cocos Keeling. My visa ran out on the way here. I thought we all had 1 year visas to match our cruising permit, but apparently that was not the case. Jeff and Casey's visas didn't expire since they flew back to the States and their 3 months started anew when they came back. So when we arrived at Cocos Keeling we were informed by radio that I was not allowed to go ashore and that we'd only be given enough time to provision and then we had to leave. So Australia struck again. Next stop is Rodriguez Island, about 2037 miles west.Here is an Ayn Rand quote from Atlas Shrugged that describes how I sometimes feel about our experience in Australia: "Did you really think that we want those laws to be observed?... We want them broken... We're after power and we mean it... There's no way to rule innocent men. The only power any government has is the power to crack down on criminals. Well, when there aren't enough criminals, one makes them. One declares so many things to be a crime that it becomes impossible for men to live without breaking laws. Who wants a nation of law-abiding citizens? What's there in that for anyone? But just pass the kind of laws that can neither be observed nor enforced nor objectively interpreted - and you create a nation of law-breakers - and then you cash in on guilt."
Bob’s note: Our thanks to Matt, Jeff and Casey for the use of their web text. For more information on this subject or just to have a visit, they do have a fine web site. See… http://svsohcahtoa.com/
To see what the Port Vila Presse newspaper had to say about this case, click here. (this link since removed )
Our next contributor is;
Sean Small is the skipper of “Karma Winds” that currently lives in Cairns. I was alerted to his struggle with customs from Brian Wilson of Schionning cat “Hybreasail”. When asked Sean wrote a rather lengthy article for me that I just could not fit in here in entirety. Next up is an edited version of his statement.“Customs officials arrived, stepped aboard and stated that MY boat was now under their jurisdiction and anything we say and do could be used against us in a court of law. It was as if we were under arrest. What was this about I wondered. We were instantly forbidden to leave the Cairns area, a line drawn between Yorkeys Knob and Cape Grafton. This is an area of approximately 20 square kilometers. We were basically under house arrest.
The customs officials went on to question me as to why I hadn't emailed them of our impending arrival within the 96hour time line. “Well firstly I don't have sail mail and Secondly no one told me it was necessary to do this until one of the cruising yachts passed a message to us on the Dim Dim net. The only yacht in my vicinity that had sail mail was a German yacht named Baumi who said they would. Outside communications from Samarai were simply not possible. Thirdly, everywhere else on the planet the customs agency's communicate to each other, as was the case when I left Nelson New Zealand to cross the Tasman, the official himself told me they contact Australia and inform them of our destination and expected time of arrival.”Bob’s note:
Sean goes on to explain the difficulties in transmitting anything out of Samarai due to non-existent internet access and third world phone service. An option was to sail to Port Moresby where facilities would be available but that would leave the craft in a situation where they either had to sail to weather or make for Torres strait where he believed the customs issues would be even worse.“So I took the obvious choice with safety in mind and hoped Baumi's email went through. It did, Rainer had the confirmation on board. It was sent on the 21st, 6 days prior to our arrival and well within the required time limit. The customs officials were using anything they could to discredit and harass us. They stamped us in with the provision that we did not leave.
The quarantine officers arrived with a black Labrador and made sure he could get into every corner of the boat for a good sniff. There was of course nothing to find. As he left Joli asked if she could film the dog. I was not surprising that the answer was no. They could gather evidence against us but we couldn't gather any against them. Then another officer proceeded to go through every locker. Most countries take fresh vegetables, eggs, honey and meat. And he did, he also took flour, rice, dried milk, peas and beans, bags of sugar and most surprisingly of all, our supply of canned food. After he had thoroughly gone through the boat he made me sign a declaration that there was nothing else to declare that I had not declared on the list of declaration.
Bio fouling was to be there next target on yachts entering Australia. Incoming yachts will be checked for any growth at a cost to the yachty. If there was any fouling they would have to be hauled out and decontaminated. Understandable that they want no foreign water borne creatures introduced but the truth is that there is little in the Louisiades that isn't here already. Eventually it will become to expensive for the average yacht to come here, it will virtually eliminate the cruising lifestyle as an option for any but the rich, not to mention the fact that if you slip up they have the power to confiscate your home. The yacht was cleared from his perspective, the bill SO FAR was more than $300. They hadn't finished with me yet though. The following day customs called and wanted to come over to speak to me. My guess was they wanted to reprimand me for not sending this ridiculous email, how very wrong I was. On face value these officials are all very nice, friendly, happy, easy going, in a sense a pleasure to be involved with. However, and all to often there is a however, Australia is a land of rules, for every rule there's a few clauses and these have to be chased down with a dash of protocol. The authorities on the sea have more power than even the police, they'll take control of the boat on a whim, they can board at their leisure and search the vessel, impose fines for an entire book of reasons without even a good reason. On land the police need a search warrant to enter a premises even of a known criminal, not so on the sea and you need not do anything wrong.
The ultimatum was this. The boat had to be imported within a week, no ifs or buts. This they said was generous they could ask for it to be done within a day. I guess we weren't on PNG time anymore, there is NO time now. Duty and GST added up to 15%.Our hopes to sail around the world on Karma Winds were annihilated in one fell swoop.
Day 3 and customs wanted to speak to me again. This time it was about the email. I was served with a section 64. I was made to sign it with no option. This meant if I left the country and returned without sending an email in the 96 hour time limit I would get an instant fine of up to $6600 without a trial. At this stage I hadn't been able to contact Baumi and get the confirmation for the email but they later emailed it to me. The customs either didn't have it together or more likely they were harassing me.”
Bob’s note:
Because Sean had been to Australia before, customs made him import the boat immediately. Paying GST and duties and all costs involved in valuation and documentation and stamp duties. He was also required to have the boat inspected for pests as his was a timber boat. This was done well after entry by an official he says came from Brisbane to do the inspection.“Finally all the paperwork had gone through so I paid the inevitable visit to the customs office to pay the inevitable stamp duty. While I waited for the transaction to be processed a senior official came forth with a rule book. Once again he mentioned the lack of email notification. So I pulled out the laptop and showed him the verification.
He was immediately on the offensive. “This could have been forged; you could have put in the dates yourself and altered another email.”
“Why would I do that, then you'd bust me for fraud” I was amazed he couldn't just see they'd made a mistake. “Surely you can just check the numbers on the email.”
He went through picking holes in the document on screen, “why don't you have the original, what are all these other numbers and text”
“Its just part of the hotmail forwarding details, you should put a confirmation number in the email so you can back check on your data base, and why don't you make it a read only document as well.” Once again I explained that it had been sent on our behalf by another yacht as we didn't have sail mail.
“This wouldn't stand up in court” he stated
“You people are impossible, what more do you want, why would I bullshit something like this I have nothing to gain I'm just trying to help you sort out the glitches in the system” I was starting to lose my cool.
There was no convincing him though, “Swear again and I'll have you thrown out of the building.”
We were back to his doubts about the email. He told me I was lucky he didn't fine me for non compliance and it was only because they chose to enforce the importation that they let it go, and then he added that they had some doubts about whether it had been sent or not, or whether I'd been informed of the requirement. As of last week any yacht that didn't give 96 hours notice was immediately charged. Last week an offender was fined $3500 for failing to send the email. In the end he said he'd follow it up and that's all I could expect I guess. My own costs had now already exceeded $3500 anyway but at least I had the freedom to move around again, still the government would get more from the registration and the tax received from the gas alterations, but they'd have to wait as I was ticking up the credit on the plastic card.
The tax had been paid and I'd never get it back but the truth is they punished me for not sending an email that I had sent. A few months later I heard from them about their checks with Canberra. They agreed the email was sent but as we hadn't included our passport numbers the section 64 notice still stood.Bob’s note:
I must state here that there are many assertions and claims in this material that I cannot substantiate at this time. It seems unlikely though that all of these parties would be fabricating their experiences. A retired Dutch couple having been half way around the world. A high tech team of US sailors and finally a Kiwi with a small boat purchased in the Caribbean and sailed to Australia. All of these vessels have entered numerous other ports.
On dealing with officials of Australian Customs it is well to keep in mind that it now is apparently a very adversarial situation and everything you say should be assumed to be used against you. Criminal interrogation may be disguised as casual conversation as made example by the manner in which SY Sahcahtoa’s web site was used against them in court.Whilst the only info that Customs regards as ‘bona fide’ is sourced from their web site, caution should be exercised in that web sites can be easily changed from day to day. Also if that info is accurate it proves that Australian customs is singling out yachts. See www.customs.gov.au/site/page.cfm?u=4224 On this page are a long row of buttons, one of which is arrival info on “yachts” and another is a button for arrival “Information for Ships Masters.” I have in my wallet a "Recreational Ships Masters Licence." In normal jargon acknowledged by the government a yacht does fall into that catagory but if a skipper happened upon that info he/she would be in trouble. It seems “ships” have a far less burdensome regime to follow than a private “Yacht.” Below is a quote from the customs web site pertaining to arriving “ships.”
This just in, march 9th 07... Customs have removed the button for "Information for ships Masters" from their web page mentioned above. Below is the text that was on their site in Febuary and prior. “Non-military ships and persons on board
First-port arrivals
The master or owner of a ship arriving in Australia is required to provide Customs with a notice of the ship's impending arrival. An impending arrival report can be made by document or sent electronically. The impending arrival report must include the estimated date of arrival of the ship at the first Australian port or any subsequent port that the ship intends to visit.(editors emphasis) The report is required 48 hours before the nominated date of arrival indicated by the impending arrival report. If the journey from the last port is likely to take less than 48 hours, the report is required 24 hours before the estimated date of arrival.
Ships carrying cargo must communicate the impending arrival report, actual arrival report and cargo reports to Customs electronically. All goods intended to be unloaded from the ship or remaining on board must be reported.
Ships not carrying cargo may report information manually or electronically to Customs.
Shipping representatives or agents in Australia can also assist on how to meet electronic reporting obligations determined by Customs legislation.
Ships will be required to produce the following reports on arrival:
Ship's Report of Arrival
Passenger and Crew Report
Report of Ships Stores
Crew Effects declaration”
There you have it. According to Customs own web site shipping is treated with far greater ease than a private craft. This was verified Febuary 4, 2007. But what does customs say of this?
Customs Acting District manager at Cairns Matt Townsend said;
""The obligations for yacht owners and masters to report their movements are no different to those for larger vessel and aircraft," Mr Townsend said."
The above quote is sourced from the Port Vila Presse. (this link since removed) As you can see, providing the quote is accurate, this puts customs into a situation where they either must admit their web site information is unreliable or they are lying to the public, to the media and it seems to the courts.
Just as in the Quarantine “Bio-Fouling” protocol (See TCP # 16 or the web site "issues" page) there is an inexplicable emphasis on private vessels whilst shipping has it far easier even though shipping is a recognised bio-transfer risk. Ostensively, this Customs protocol is an anti terrorist device yet a large ship that would provide the better opportunity is let off with little regulation by comparison.
