Wayward broker shows the customary approach

BR Williams Customs and Freight Forwarding Pty Ltd and Chief Executive Officer of Customs
[2013] AATA 100 (27 February 2013)
 
BR Williams Customs and Freight Forwarding (Williams Customs) was a licenced customs broker that gained the attention of the Customs CEO when it: 

• moved and/or delivered 23 containers of goods (to 2 customers) without the appropriate authority between 4 November 2010 and 18 January 2011 and again on 20 May 2011; and 
• did not pay nearly $50,000 in duty to Customs until up to 6 months after it was received.

23 infringement notices to the value of $30,360 were issued in respect of those breaches and those were paid by Williams Customs.  

The National Customs Brokers Licensing Advisory Committee (NCBLAC) provided a report to the CEO Customs who then decided to cancel the licence of Williams Customs.  The licence was cancelled as from 23 October 2012.

Williams Customs immediately sought a stay of that cancellation decision.  That was initially opposed by the CEO but after Williams Customs paid a $20,000 bond to Customs, opened a trust account and agreed to an expedited hearing, the CEO agreed to the stay of the cancellation decision.  This quick response and cooperative negotiation meant that Williams Customs could continue to operate.

The matter was heard by the AAT within two months of the application for review and the decision made just over 4 months after the cancellation decision was to take effect.

Along the investigation and review process, the initial grounds in the referral to NCBLAC were reduced to one.  Initially the grounds were:

• whether Williams Customs had ceased to perform the duties of a customs broker in a satisfactory and responsible matter which included a concern that documents prepared by Williams Customs contained errors that were unreasonable having regard to the nature and frequency of those errors; and
• whether it was necessary for the protection of the revenue and in the public interest for action to be taken.

The impression that the AAT received of Williams Customs was that there was confusion, a lack of leadership and poor internal management and control. However, the Tribunal accepted that subsequent measures put in place by the company indicated that these problems would not be repeated.

In assessing the final remaining ground for the cancellation, the AAT was not satisfied that cancellation of the brokers licence was “necessary” for the protection of revenue or to ensure compliance in the circumstances of the case.  

The AAT set aside the cancellation decision and substituted a reprimand.

The key messages in this case are:

• Consult a legal adviser promptly and actively manage issues when faced with infringement notices or actions against licences.
• Respond quickly and positively when a decision by the Customs CEO is adverse to your business.
• Analyse the case against you and keep the issues appropriately narrow and focused.
• A pattern of (mis)behaviour by a customs broker without responsive remedial action would be likely to result in a different outcome.

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Important disclaimer: The material contained in this publication is of a general nature only and is based on the law as at 8 March 2013. It is not, nor is intended to be, legal advice. If you wish to take any action based on the content of this publication we recommend that you seek professional advice.