CBFCA ‘still waiting for the ACBP to respond’ to Authority to Act questions
Cargo Archive Stories #231
Thursday, 26 June 2014
The Custom Brokers and Forwarders Council of Australia (CBFCA) has expressed ‘frustration and concern’ following the release of documents through the Australian Customs and Border Protection Service (ACBP) Freedom Of Information (FOI) Disclosure Log that reveal an apparent reluctance for action by the ACBP on the issue of authority to act. CBFCA says examination of the documents show a change in practice as to the requirements on the authority to act as set out in ACBPN 2013/064.
The documents provide an interesting insight into the ACBP change in practice as to requirements on authority to act as set out in ACBPN 2013/064, said CBFCA executive director Steve Morris.
“The released information is probably more of interest to industry for what is not said rather than what is.
“The disclosure has been heavily redacted.
“The ACBP policy position on the requirements of service providers to importers of record to have and maintain an authority to act was first noted as a policy position in Australian Customs Notice 89/9 and over the intervening period, up until the change in practice in 2014, the ACBP position on the authority to act remained constant in numerous public policy statements.
“The ACBP position on the change in practice on authority to act was ostensibly on the basis of a request by the ACBP to the Attorney General for clarification of an issue which, in the main, did not relate to an authority to act but related more to the activities of certain service providers in the express carrier environment.
“That legal advice is set out in the released documents,” Morris added.
“If, as stated by the ACBP, this advice was the driver for change then it is open to question why the ACBP waited some five years to implement what was seen as a legal requirement in 2009.
“The CBFCA has, over an extended period, discussed with the ACBP the need for persons to hold an authority to act in relation to the making of an import declaration as this was one of the aspects noted by the ACBP in compliance audits of licensed corporate customs brokerages. There was the requirement that an authority to act, in an appropriate written form by letter or e-mail, be held by the licensed Customs broker.
“If such was not available or able to be demonstrated, then that was noted as a compliance deficiency. “However, in other places the ACBP did not enforce such a requirement where parties undertook customs clearance on behalf of third parties. In fact, as will be noted in the FOI documents and the undermentioned link, the ACBP took the position that a service provider’s Terms and Conditions were in fact able to be construed as an appropriate authority to act.” (Those documents can be downloaded from www.customs.gov.au/webdata/resources/files/2013-041776_NoticeofDecisionDL.pdf) The CBFCA contends that such a position was not correct at law.
“The CBFCA put forward its position to the ACBP on authority to act in a comprehensive submission in 2008 and 2009. To date the key issues on the submission have yet to be responded to, or even addressed, by the ACBP.
“Of additional concern to the CBFCA is the position adopted by the ACBP in its determination of owner as regards the Infringement Notice Scheme (INS) and the inclusion of service providers, such as licensed Customs brokers, within that ‘definition of owner’ aspect. This remains an issue of concern to the CBFCA.
“What is clear is that the ACBPN 2013/064 remains the policy (as bad as that may be until challenged) position on the ACBP on authority to act. CBFCA advised its members to note those requirements accordingly.
“The CBFCA will continue to pursue resolution of these aspects with the ACBP so as to ensure CBFCA members’ interests on these INS aspects are appropriately addressed and resolved,” said Morris.
CBFCA ‘still waiting for the ACBP to respond’ to Authority to Act questions
Cargo Archive Stories #231
Thursday, 26 June 2014
The Custom Brokers and Forwarders Council of Australia (CBFCA) has expressed ‘frustration and concern’ following the release of documents through the Australian Customs and Border Protection Service (ACBP) Freedom Of Information (FOI) Disclosure Log that reveal an apparent reluctance for action by the ACBP on the issue of authority to act. CBFCA says examination of the documents show a change in practice as to the requirements on the authority to act as set out in ACBPN 2013/064.
The documents provide an interesting insight into the ACBP change in practice as to requirements on authority to act as set out in ACBPN 2013/064, said CBFCA executive director Steve Morris.
“The released information is probably more of interest to industry for what is not said rather than what is.
“The disclosure has been heavily redacted.
“The ACBP policy position on the requirements of service providers to importers of record to have and maintain an authority to act was first noted as a policy position in Australian Customs Notice 89/9 and over the intervening period, up until the change in practice in 2014, the ACBP position on the authority to act remained constant in numerous public policy statements.
“The ACBP position on the change in practice on authority to act was ostensibly on the basis of a request by the ACBP to the Attorney General for clarification of an issue which, in the main, did not relate to an authority to act but related more to the activities of certain service providers in the express carrier environment.
“That legal advice is set out in the released documents,” Morris added.
“If, as stated by the ACBP, this advice was the driver for change then it is open to question why the ACBP waited some five years to implement what was seen as a legal requirement in 2009.
“The CBFCA has, over an extended period, discussed with the ACBP the need for persons to hold an authority to act in relation to the making of an import declaration as this was one of the aspects noted by the ACBP in compliance audits of licensed corporate customs brokerages. There was the requirement that an authority to act, in an appropriate written form by letter or e-mail, be held by the licensed Customs broker.
“If such was not available or able to be demonstrated, then that was noted as a compliance deficiency. “However, in other places the ACBP did not enforce such a requirement where parties undertook customs clearance on behalf of third parties. In fact, as will be noted in the FOI documents and the undermentioned link, the ACBP took the position that a service provider’s Terms and Conditions were in fact able to be construed as an appropriate authority to act.” (Those documents can be downloaded from www.customs.gov.au/webdata/resources/files/2013-041776_NoticeofDecisionDL.pdf) The CBFCA contends that such a position was not correct at law.
“The CBFCA put forward its position to the ACBP on authority to act in a comprehensive submission in 2008 and 2009. To date the key issues on the submission have yet to be responded to, or even addressed, by the ACBP.
“Of additional concern to the CBFCA is the position adopted by the ACBP in its determination of owner as regards the Infringement Notice Scheme (INS) and the inclusion of service providers, such as licensed Customs brokers, within that ‘definition of owner’ aspect. This remains an issue of concern to the CBFCA.
“What is clear is that the ACBPN 2013/064 remains the policy (as bad as that may be until challenged) position on the ACBP on authority to act. CBFCA advised its members to note those requirements accordingly.
“The CBFCA will continue to pursue resolution of these aspects with the ACBP so as to ensure CBFCA members’ interests on these INS aspects are appropriately addressed and resolved,” said Morris.
