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 Customs Issues

 The Art of Creating Law From Precedent

This article is a combination of fact and conjecture that seems reasonable given my experience and knowledge of Australian Customs. It is not represented as anything more.

 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 hasn’t 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, it’s 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 didn’t 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 can’t 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 surprised.

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. I’ve 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 Manzari’s. 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 weren’t 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 there?

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.