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Entering Australia, Do You Feel Lucky?

TCP examines the background of the Customs regs and compares with other countries, US, Isreal, etc

The Manzari Appeal Hearing

A report from the court room in Bundaberg and the result.


The collection of articles and letters published by TCP

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 Jim and Dorothy and their boat "Oceanus" under "Harbour Arrest" in Bundaberg.

 Modern Day Wrecking in Australia
Jim and Dorothy Manzari
SV Oceanus
Bundaberg, Australia

Since ancient times all seafarers have feared shipwreck. Even today with modern charts and GPS the worst nightmare of a modern-day ocean cruiser is the possibility to be shipwrecked on a strange and unfriendly coast. In times past professional wreckers moved navigation markers or lights so ships would be lead on to a reef or spit of rocks. The wreckers would then loot the ship. Whole villages at various times in history thrived on this gruesome trade. Now the wreckers and looters move the law to set traps for the unsuspecting seafarer.

This is a a story of modern-day wrecking at its best. It is the story of how the Australian Customs Service and the Australian Consular Service bureaucracies recklessly mislead our boat on to the judicial reefs of Australia.

Our voyage began six years ago in Germany, when we purchased a small steel sailboat to use in our retirement. Our plan was to sail around the world. Dorothy is a citizen of Switzerland and Jim is an American. We had lived for nearly twenty years in Switzerland after returning from a previous stint of sailing in South America and the Caribbean. We have both been long-term sailors since before we met on a passage from Bermuda to the Chesapeake Bay back in the middle 1970s. We are both retired from many years working in the information technology field and were looking forward to fulfilling our dream of sailing around the world. Thirty years ago we purchased and sailed a small boat to South America from Great Britain. Those six years spent in some of the world's best cruising grounds convinced us that a voyage around the world would be a rewarding project for our retirement.

This story of ship wrecking begins with a visit to the Australian Consulate in Noumea the capital city of French New Caledonia. We had heard a few stories about how bureaucratically difficult Australia had become for visiting private yachts. Many cruising couples had warned us to stay away from Australia. An Austrian couple who have been cruising in the South Pacific region for fifteen years told us that they no longer visit Australia, because every time they had arrived they were treated like criminals by Customs and other officials. We heard a story of a sailor who was sailing directly from New Caledonia to Madagascar, more than 6000 nautical miles, without touching Australian waters and to avoid the intimidation experienced by other visitors.

In spite of the heavy-handed behavior by Customs we will go away from Australia with a very good impression of the people. Everyone we've met has been very friendly and supportive. Bundaberg is a wonderful town with its many shops, palm trees, and bird life. Sadly we've been essentially under boat arrest since arrival, so we have not been able to see other parts of the country.

In spite of what others had told us, we believed that if we were armed with proper information and instructions obtained from official Australian Government sources we could safely visit Australia to wait out the cyclone season before continuing our voyage to South Africa and beyond. How wrong we were!

On August 22 of last year we made the long hot walk across the city of Noumea to pay a visit to the Australian Consulate. We expected to receive up-to-date information from this source regarding visa and other regulations. We wanted to make sure we complied with Australia's requirements for a visiting private yacht. We found that the Consulate had only one copy of a undated document titled "Information for Yachts Travelling to Australia". This document was produced and published by the Australian Customs Service, the Quarantine Service, and Australian Immigration Department.

The Consular clerk was very reluctant to do the work necessary to make a copy of this 30-page document, but after some insistence on our part she agreed. This document was not dated. There was no way for us to determine if it was up-to-date. We rightfully assumed the Consulate would provide us with correct and timely information. This became a crucial issue in our subsequent legal battle with Australian Customs.

This document gave us four methods to report our impending arrival to Customs and Quarantine. We elected to use the first method listed. The first method given was to report at the port of intended arrival, Bundaberg, by calling a radio station call sign VMR 488 on VHF channel 81. The impending arrival report, according to this document, must be made at exactly 48 hours (this turned out to be wrong) prior to estimated time of arrival. This is similar in every aspect to the method we used the previous year when reporting impending arrival to Customs in New Zealand. The person or committee in the Australian Government who wrote this document must have known that VHF marine radio cannot be used beyond a point where line-of-sight communications can be established.

It should be noted according to International Law the Flag State dictates the type of radio (if any) that is required to be carried by ships under its flag. Our boat, Oceanus, is a US flag recreational vessel and is not required to carry any kind of radio whatsoever. With the exception of EPIRB, we have heard the same is true of recreational vessels flagged by Australia. The choice of radio type is completely optional for foreign-going recreational vessels in both countries. In more than twelve accumulated years of sailing throughout the world we have never found the need for more than a simple hand-held VHF radio.

We found after arriving in Bundaberg and being charged with violating the Custom Act that a new up-to-date "Information for Yachts Travelling to Australia" document has been published by Customs, Quarantine, and Immigration. This new document offers only three methods for reporting impending arrival. VHF radio is no longer an option. Had we seen the up-to-date document and its reporting instructions we would have reported prior to departure from Noumea, since we have none of the equipment needed to communicate by email, fax, or telephone from sea.

This new up-to-date document is dated October 2005. We're are still mystified why this up-to-date document was not handed to us in Noumea. The new document had been published by Customs nearly a year before we visited the Consulate. Our dispute with Customs concerns the timing and method of reporting our impending arrival and the different instructions given in these two conflicting documents.

It needs to be emphasized that Customs hadn't gotten off their collective backsides two months after we became enmeshed in this dispute. In spite of the fact that the front-line Customs officer stated on the day of our arrival that the old document had been subsided and was no longer valid. In spite of a lengthy submission given to Customs by our solicitor pointing out the mistaken information in the out-of-date document and the new reporting methods in the new document, no one in Customs had bothered to inform the Consulate in Noumea that they were still handing out the wrong document until at least November of 2006, two months after charging us. Canadian friends of ours visited the Consulate in early November 2006 and were given the same defective and out-of-date document that caused us so much trouble.

We discovered on the day after we arrived in Australia Customs and Quarantine published an authoritative Hydrographic Service Notice to Mariners amending the List of Radio Signals instructing ships without fax to report at the port of intended arrival just as we have done. Obviously ships were having the same difficulty reporting with the mandatory signature when they did not have a shore-side agent to do the work. This is the fundamental problem in the way that Customs attempts to bend the requirements of the Customs Act to apply to both commercial ships and private yachts.

The lack of distinction between ships with their shipping agents, ship service companies, and shore-based computer communication facilities, and pleasure craft without any of these capabilities is at the root of our difficulties with Customs. Add to this mix the abysmally poor information given to the public outside Australian, even by official sources such as the Consular Service, and one can easily understand why our situation arose. We are the experimental guinea pig to resolve this muddle in the implementation of the Customs law through the court system.

We have been prosecuted for reporting to no one prior to arrival in Bundaberg. This ignores the fact that we followed the Customs instructions to the letter and reported to VMR 488 on channel 81. We asked VMR to please report us to Customs and Immigration as is the standard practice throughout the world. VMR then asked us a series of questions which were obviously items of information that VMR intended to past to Customs and Quarantine announcing our arrival.

The prosecution convinced the magistrate that we had made no report to any official government agency! The prosecution argued successfully that VMR 488 is only a volunteer organization and not an official arm of the Australian government. This is in spite of long-standing agreements between Volunteer Marine Rescue Inc. and the local Customs and Quarantine officials. This is in spite of the fact that the government has shutdown all official radio stations along this coast.

As a result we have been convicted of a serious crime attracting a 9 month prison sentence or fine of $4,000 and prosecution costs of $15,000. Our personal legal costs are now approaching $40,000.

The Australian Customs Service made many mistakes in their rush to prosecute. We discovered, unfortunately too late to use in our defense at trial, that the offense we were charged with should not have been prosecuted at all!

In 2001 the Australian Parliament under pressure from shipping companies and import brokers amended the Customs Act to downgrade impending arrival reporting infractions to the level of Infringement Notice. The relevant section of the Customs Act is titled "Penalty in lieu of prosecution". This would have given us 28 days to write directly to the CEO of Customs giving exonerating evidence of why we were mislead into committing the infraction. In all likelihood the CEO would have agreed that we were mislead by the out-of-date document and would have withdrawn the infringement notice. That would have been the end of the matter.

Had the CEO disagreed with our reasoning, we would have paid a penalty of about $1300. And the right of Customs to prosecution would be extinguished. By law there would be no publicity or criminal stigma attached to the payment of this penalty.

As far as we can determine Queensland Customs is the only region in Australia that is prosecuting the weakest targets they can find. We have been told by many sailors that if we had arrived in Coffs Harbour this dispute would not have happened. The front-line Customs personnel would have used their discretion to understand the misleading instructions given in the out-of-date document. At most they might have issued an infringement notice.

It must be noted that we are not unfamiliar with procedures for entry into a foreign country by private pleasure craft. We have accumulated more than twelve years experience on two different boats in almost all the oceans of the world. Jim served honorably for four years in in the US Coast Guard and has several years of experience on a research vessel. We have in the past entered and cleared from more than 25 countries without any kind of problem.

Furthermore, we strongly believe all countries have a moral and legal right to protect their borders from illegal activities. Movement across the border into and out of a nation state has always been controlled, so far as possible. A core function of any state is to protect its own political authority and to protect the society under its authority. For most threats, that protection requires control of the border. Conceptually, this protection is integral to the notion of the political sovereign and political authority.

Powers that might not be justified as part of the normal citizen/state relationship within a society may well be justified at the border, because of this integral protective responsibility. This does not mean the power is without limits. All power is subject to the law and to general considerations such as human rights protection, reasonableness, the laws of natural justice and so forth.

Our dispute with Australian Customs arises where over-zealousness, inadequate or poor training, misunderstanding and misapplication of the Customs Act, mismanagement, incompetence, or malicious enforcement by a front-line Customs officers in Queensland creates a situation where the probability is very high that innocent persons will be prosecuted for something that is not their fault.

Once the legal system begins rolling down hill it is virtually impossible to stop. Its like an avalanche destroying everything in its path. Reason and logic, common sense and basic fair play all get plowed under by the legal rush to judgment. Our solicitor believes there are a number of substantial grounds for appeal and we have therefore filed an appeal.

Many readers will wonder why we didn't just plea guilty like the two or three other prosecutions here in Queensland and continued on our way. There are two reasons. First, we do not like being marked as a criminal. We have managed to live to be 65 years of age without breaking the law. In our 65 years of life we've grown accustomed to our good reputation. Our good name actually means something to us.

Secondly, we discovered within a day or two of arrival in Australia, Customs operates an international watch list for terrorists, drug smugglers, and other so-call "persons of interest". We had fear that our names and the name of our boat would be placed on this watch list if we were convicted of a border violation. That would have had serious long-term consequences with regard to continuing our voyage around the world. More than twenty-five countries have access to this database, including the USA.

In the interests of sound border security there are a large number of things wrong with prosecuting the wrong people, a prosecution that is founded on an issue of incorrect and misleading information handed out by government departments. Wasting time on the wrong people, persons who have been vetted and issued a visa as acceptable to enter Australia, is a failure, not a success, of the border security system. Wasting taxpayers money over what is essentially administrative infractions that should be dealt with by the Infringement Notice scheme is a failure of the border security system. We are still mystified as to what is the objective in prosecuting the weakest possible targets. Alienating the very people who could help Australia protect its borders is a very poor public policy.

TCP was keen to help so made the first donation for the legal fund.