© Commonwealth of Australia 2015

Holc and Comptroller-General of Customs [2015] AATA 722 (17 September 2015)

Division: GENERAL DIVISION

File Number: 2014/6076 Re: DAVID RICHARD HOLC

APPLICANT

And: COMPTROLLER-GENERAL OF CUSTOMS

RESPONDENT

DECISION

Tribunal Deputy President S A Forgie

Date 17 September 2015

Place Melbourne The Tribunal decides to:

affirm the decision of the respondent dated 11 November 2014.

…………[sgd]…………. Deputy President

CATCHWORDS – CUSTOMS – customs broker’s licence – acquired experience – relevance of examination –National Customs Broker Licensing Advisory Committee’ report considered as part of evidentiary material – decision affirmed.

PRACTICE AND PROCEDURE – distinction between merits review and judicial review.

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LEGISLATION Customs Act 1901 (Cth): ss 4(1); 8(a); 30; 31; 33; 50; 50(1) and (2); 58(1) and (2); 68(1); 68(1)(d) and (g); 68(2) and (3); 68(3A) and (3B); 71A(2); 71C(1), (2), (3) and (4); 71DH(2); 132; 132AA(1); 159(1) and (2); 161(1) and (2); 161J(1); 161K(1), (2) and (3); 180; 180(1); 181(1) and (2); 183; 183(1); 183A(1); 183C(1); 183CA; 183CA(1)(e); 183CB; 183CB(1) and (2); 183CC; 183CC(1)(a)(i) and (ii); 183CC(2)-(4A); 183CC(3) and (5); 183CD; 183CD(b) and (c); 183D; 183D(2); 183DA; 183DA(1) and (5); 183E; 183F; 183G; 183K; 183L; 183N; 183S; 240(1); 240(1B)(b) and 240(5) Customs Tariff Act 1995 (Cth): ss 8; 9(1); 10; 15 and16-20 CASES Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24; 66 ALR 299 R v Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd [1979] HCA 62; (1979) 144 CLR 45; 27 ALR 321 Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634 Re Van An Lai and Chief Executive Officer of Customs [2000] AATA 1029 Re Zacharia and Collector of Customs [1994] AATA 96; (1994) 19 AAR 390 Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286; 248 ALR 390; 48 AAR 345; 103 ALD 467; 82 ALJR 1147 Water Conservation and Irrigation Commission (NSW) v Browning [1947] HCA 21; (1947) 74 CLR 492 OTHER MATERIAL

Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers (Chambers)

REASONS FOR DECISION

1. Mr David Holc applied for a nominee customs broker’s licence in an application lodged with

the Department of Immigration and Border Protection (DIBP) on 17 June 2014. His

application was refused by a delegate of the Comptroller-General of Customs (Comptroller-

General) on 11 November 2014 after receiving a recommendation to that effect from the

National Customs Broker Licensing Advisory Committee (Committee). I have also decided

that Mr Holc’s application should be refused and affirm the Comptroller-General’s decision.

BACKGROUND

2. In this section of my reasons, I set out the facts I have found on matters that are

uncontroversial but form the background to the matters that I must decide.

3. Mr Holc completed a Fitting and Turning Apprenticeship after leaving school. Some 20

years ago, he continued his formal education completing a Diploma of Engineering. He

worked in the manufacturing industry where he began as a Tradesman before becoming a

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Team Leader. This was followed by a senior management position as an Estimator. In that

position, Mr Holc was required to determine costs while liaising with customers, suppliers

and employees to achieve the desired outcome of the project.

4. With the downturn in the Australian manufacturing industry, Mr Holc decided to change his

career. He joined his sister’s firm as its compiler-operations manager. Her firm, Elite

Customs Forwarding Pty Ltd (Elite), is a small freight forwarder and customs brokerage. At

the time he made his application and currently, Elite employs five persons with three being

employed on a full-time basis and two part-time and one being a licensed customs broker.

5. Mr Holc completed a National Customs Brokers Course 0306BS1000 at the Kangan

Institute completing 11 subjects. Five subjects were completed in 2011,1 four in 20122 and

two in 2013.3 On 28 March 2014, Mr Holc completed what was described as a CBEA

Study Group with myfreightcareer. The pass mark was set at 70% and he achieved a mark

of 73%.4. A Training Certificate was granted by myfreightcareer to that effect.5 This was

followed by his completing a Customs Broker Experience Assessment and being granted a

certificate to that effect by myfreightcareer on 6 May 2014.6 In August 2014, Mr Holc

completed one unit of competency, Comply with biosecurity border clearance TLIX5054A,

from TLI50813 Diploma of Customs Broking.7 At some time during the 2014/2015 financial

year, Mr Holc attended a myfreightcareer/AFIF-CPD Briefing covering the topics of duty

drawbacks, efficient management of a customs brokerage, chain of responsibility and

Customs’ powers to enter, search and seize.8

6. The DIBP issued Notice 2013/21 entitled “Application for a Customs Broker Licence –

Integrity, Approved Course of Study and Acquired Experience” (Application for CBL

Notice).9 It is dated 23 April 2013 and provides guidance to applicants applying for a

1 Mr Holc achieved a High Distinction in each of the following four subjects: “Carry out border clearance functions”, “Apply specialist permit requirements as part of Customs broking activities”, “Apply GST legislation as part of Customs broking activities” and “Complete and check import/export documentation”. He was awarded a Distinction in “Carry out Customs Valuation”: T documents; T3 at 19 2 In 2012, Mr Holc achieved a High Distinction in each of “Classify Commodities for the Import and Export of Goods through Customs”, “Carry out Quarantine Procedures”, “Carry out complex Customs valuation” and a Distinction in “Carry out Customs clearance practices”: T documents; T3 at 19. 3 Mr Holc achieved competency in the subjects of “Classify complex commodities for the import and export of goods through Customs” and “Analyse, advise and carry on integrated border clearance transactions”: T documents; T3 at 19 4 T documents; T8 at 56 5 T documents; T3 at 18 6 T documents; T3 at 17 7 Exhibit H 8 Exhibit I 9 Exhibit 2; Attachment B

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customs broker licence as a natural person. Eleven subjects were listed as the approved

units in the course of study approved by the Comptroller-General. That course of study is

known as the Diploma of Customs Broking TL 150813.10 The Application for CBL Notice

lists five registered training organisations (RTOs) delivering that course of study and Mr

Skehill names a sixth in his statement. The RTOs are the Kangan Institute of TAFE (Vic),

the Customs Brokers and Forwarders Council of Australia Inc (CBFCA), myfreightcareer

Ltd, the Holmesglen Institute of TAFE (Vic), the Sydney Institute of TAFE (NSW) and

APC Logistics.11

7. In completing his application for a customs broker licence, Mr Holc was aware of the

guidelines that had been issued by the then Australian Customs and Border Protection

Service, now the DIBP, in March 2013. They are headed “Guidelines for Acquired

Experience for Nominee Customs Broker Licence Application” (AE Guidelines).12 The

document advises applicants that they should provide a detailed statement setting out the

names and addresses of each employer for whom they have performed duties relevant to

those of a customs broker, the periods of employment, the names and details of their

supervisors and a description of the range, period and extent of duties undertaken in that

employment. Applicants were asked to give examples of their experience giving particular

attention to their experience undertaking or assisting in the following matters:

“· taking instructions from, and giving advice to, importer clients;

· classifying goods in accordance with the Third Schedule of the Customs Tariff Act, noting in particular the main categories of goods they have classified;

· valuation of goods for Customs and related purposes;

· using the ICS either by direct access or through the industry specific proprietary software;

· utilizing software such as INBOUND or EDI Tariff;

· using industry specific proprietary software to register shipments and then prepare import declarations for lodgement by a licensed Customs Broker;

· making application for a Tariff Advice;

· application of Free Trade Agreements, Tariff Concessions, Bylaws etc;

· preparation of Duty Drawbacks and Refund Applications;

· DAFF Biosecurity compliance and procedures;

· dealing with shipping lines, airlines, freight forwarders, transport companies and depots;

10 Statement of Stephen Skehill; Exhibit 2 at [11] 11 Part of Exhibit E and Exhibit 2 at [11] 12 T documents; T4 at 34-35. A version dated January 2015 is Attachment E to Mr Skehill’s statement; Exhibit 2.

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· handling temporary importations; and

· interaction with the Australian Customs and Border Protection Service.

In detailing examples of the above, show the extent of your experience and the depth of responsibly involved.”13

8. As to an examination, the AE Guidelines advised applicants:

“A number of organisations may conduct an examination that assists applicants who have completed (or been exempted from) the approved course of study in demonstrating that they have the knowledge required of a customs broker. The CEO of Customs may take into account the successful completion of such an examination when assessing whether an applicant has acquired experience that fits them to be a customs broker. The weight afforded to successful completion of any particular examination from time to time will depend upon a number of factors, including:

· how well it is perceived to test practical experience and not simply academic knowledge;

· the breadth of the range of practical issues that it tests and the depth of experience that it requires to resolve this issues [sic]; and

· the rigour with which the examination is conducted.

The most important element of demonstrating acquired experience is nevertheless the applicant’s employment history, as detailed in the documentation supporting their application. While successfully completing an examination can be an additional element in demonstrating acquired experience, it is not a mandatory requirement nor is it sufficient by itself.”14

9. The AE Guidelines directed the attention of referees to their needing to address matters

relating to the nature, extent, depth and complexity of the duties the applicant had been

required to perform under their supervision. They were also asked to comment on the

standard at which the applicant had performed those duties and whether the applicant had

any further developmental needs.

10. The Comptroller-General referred Mr Holc’s application to the National Customs Brokers

Licensing Advisory Committee (Committee) under s 183CB of the Customs Act 1901

(Customs Act). The Chair of the Committee, Mr Stephen Skehill, wrote to the other

members of the Committee, Mr John Arndell and Mr Kent Heazlett, on 22 July 2014 that:

“The papers look good on the surface but provide little detail to substantiate the claims made, and the post-study result was achieved not through the CBFCA examination but via the myfreightcareer assessment which is still a bit of an unknown at this stage. Subject to your views, I would thus favour an interview as a matter of safety.”15

13 T documents; T4 at 34 14 T documents; T4 at 35 15 T documents; T8 at 56

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Both Mr Arndt and Mr Heazlett were happy to interview Mr Holc. Mr Heazlett noted that

they needed to do so as Mr Holc had achieved 73% in the myfreightcareer assessment and

the previous week the Committee had refused an applicant who had achieved 87.75%.16

11. An officer of DIBP wrote to Mr Holc advising the time and date on which the Committee

would hold an inquiry into his application. At the inquiry, the Committee would address the

question whether Mr Holc was qualified to be a customs broker under s 183CC(1)(a)(ii) i.e.

whether he had completed a course of study or instruction approved under s 183CC(5) and

acquired experience fitting him to be a customs broker. If Mr Holc attended the inquiry, he

was told in the letter, he would be given an opportunity to examine witnesses, give

evidence, call witnesses and address the Committee.17

12. In its report, the Committee noted that it had told Mr Holc that it would interview him “… to

ascertain his ‘acquired experience’ – that is, what experience he has had, relevant to the

duties of a customs broker, that would fit him to be a customs broker.”18 After summarising

Mr Holc’s description of his experience, to which I will return, the Committee asked him a

number of “… questions covering a wide range of issues that he may encounter in the day-

to-day activities of a customs broker. …”.19 The “… questions enabled the Committee to

ascertain whether Mr Holc could demonstrate that he has acquired experience that fits him

to be a customs broker.”20 It referred to a decision by Deputy President McMahon in

Re Zacharia and Collector of Customs21 observing that no customs broker would be called

upon to exercise skills in all desirable areas of experience on any particular day but that a

customs broker should be sufficiently experienced to be able to deal with all the required

areas of experience. Those areas may change from time to time as the legislation and

processes change.

13. In relation to its interview of Mr Holc:

“The Committee found that, when presented with questions that required him to reapply knowledge that he should have acquired in the course of his studies, or in respect of matters of which he had stated that he had experience, Mr Holc often required prompting and assistance from the Committee. Moreover, many of Mr Holc’s answers did not demonstrate that he has adequate experience of, or legislative understanding in relation to, the topics discussed.

16 T documents; T8 at 55 17 T documents; T9 at 58 18 T documents; T11 at 61 19 T documents; T11 at 61 20 T documents; T11 at 62 21 [1994] AATA 96; (1994) 19 AAR 390

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In providing the Committee with information about the following responsibilities of a customs broker, Mr Holc’s answers did not demonstrate to the Committee that he, as yet, has the necessary acquired experience:

· ACBPS penalty regime,

· regulated goods,

· Tariff Concession Orders,

· bylaws,

· duty drawbacks, and

· the Tradex Scheme.

While Mr Holc demonstrated that he has comprehensive experience in processes directly related to his own position’s responsibilities and that he is very likely to exhibit methodical and diligent work ethics, the Committee is nevertheless of the opinion that, in the inquiry, he was not able to demonstrate that he has, as yet, the breadth and depth of acquired experience that would enable him to apply his theoretical knowledge to the broader range of issues a customs broker may confront in the customs industry.

The Committee is thus not satisfied that Mr Holc, currently, has the acquired experience to be a licensed customs broker.

At the same time, the Committee does feel that Mr Holc has the potential to be a successful broker if he is able to gain more direct and practical exposure to a broader range of duties of a customs broker. The Committee thus encourages him to persist in his efforts to gain, and his employers to facilitate him in gaining broader experience in the industry and continue with developing his technical knowledge and conceptual understanding of customs legislation.

Accordingly, the Committee recommends that Mr Holc not be granted a customs broker licence at this time as, in its view, he needs to acquire some broader and deeper experience across the range of broker-like activities.”22

14. Since the Comptroller-General made his decision, the DIBP has issued a further notice: No.

2015/17 entitled “Customs Brokers Licensing – Acquired Experience” (2015 Acquired

Experience Notice). The notice was issued in response to queries that DIBP had been

receiving regarding the status of a pass in a national examination or assessment as one

element in establishing that an applicant has the acquired experience suiting him or her to

be a customs broker. After quoting extracts from the AE Guidelines, to which I have

referred, the DIBP noted that the CBFCA had decided that it would no longer offer its

national examination but that myfreightcareer continued to offer its Customs Broking

Experience Assessment. The DIBP advised that its position on acquired experience as

outlined in the AE Guidelines remains unchanged. It continued:

“Furthermore, the weighting given by the ACBPS and the National Customs Brokers Licensing Advisory Committee (NCBLAC) to the completion of a national examination or assessment has not changed in recent years.

22 T documents; T11 at 62-63

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The ACBPS and NCBLAC will continue to have regard to the completion of any national examination or assessment as one element in assessing whether or not an applicant has ‘acquired experience that fits them to be a Customs Broker’. Both the ACBPS and NCBLAC place greater importance, however, on the relevant work experience of the applicant.

The completion of a national examination or assessment is a relevant factor when assessing the acquired experience of an applicant for a customs broker licence, however, it is not a determinative factor.

Completion of a national examination or assessment is not mandatory and has, in fact, never been mandatory.”23

THE SUBMISSIONS

15. Mr Holc submitted that, in making its recommendation, the Committee had paid little regard

to his successful completion of the myfreightcareer examination. Mr Skehill had noted that

the Committee knew little of that examination and yet he had taken no steps to contact

myfreightcareer or those associated with it in order to find out about the examination.

When choosing whether to sit for the examination with myfreightcareer rather than with the

CBFCA, he had decided on myfreightcareer because he thought that it offered a means of

testing acquired experience directly in line with the customs literature. The examination

offered by CBFCA placed an emphasis on academic knowledge but that is an approach

outdated by modern software. Modern software undertakes the calculations for the broker

and, Mr Holc submitted, the Committee should have been aware of that. The CBFCA

examination has since been withdrawn and is no longer offered.

16. The AE Guidelines clearly state that weight is to be given to the successful completion of a

national examination. The Committee did not carry out its obligations under s 183CB(2),

Mr Holc submitted. Relying on the AE Guidelines, Mr Holc submitted that it had not done

so for four reasons. First, the Committee had not examined how myfreightcareer had

tested practical experience as opposed to academic knowledge alone. Second, it had not

had regard to the breadth of the range of practical issues that myfreightcareer had tested.

If myfreightcareer was not known to it, the Committee made no effort to contact that

organisation and ask it for information. Had it done so, it would have discovered from

Mr Tony Wenham, who is myfreightcareer’s General Manager, that only 44% of students

passed the CBEA Study Group and he was one of them. Under s 183CB(2) of the

Customs Act, the Committee had an obligation to investigate the matters that the

Comptroller-General was required to consider in relation to his application and report on

them. Third, the Committee had not had regard to the depth of experience that was

required to resolve the issues set by myfreightcareer and the rigour with which the

23 Exhibit G

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examination was conducted. Furthermore, the Committee had chosen a brief range of

matters on which to question him. Mr Holc also submitted that the Committee should have

contacted his referees but they did not. That was his fourth reason for submitting that the

Committee had not performed its duties under the Act.

17. Mr Holc also submitted that the conclusions drawn by the Committee were inaccurate. He

addressed each of the five subject areas it set out in its report as areas in which he had not

yet acquired the necessary experience. Mr Holc submitted that:

“… the following areas noted in NCBLAC committee report are inaccurate,

· The Tradex Scheme.

The Applicant contends that just because he does not currently service customers that use the Tradex Scheme, it does not mean that he has no experience with the subject.

As specified by the applicant during the NCBLAC interview, he has direct experience with the Tradex Scheme whilst working in the manufacturing industry (Production Parts PTY LTD) in the period when the company applied for and traded as a manufacturing exporter in accordance with the requirements of the Scheme. The Applicant contends that he explained the core criteria of the subject without prompting and possesses the real world experience of working within the requirements of this scheme, which is directly relevant to acquired experience.

The applicant contends that the Committee did not ask any further questions in regards to this subject.

The applicant submits that few practicing [sic] Customs Brokers could match the level of practical experience an exposure he has had in regards to this scheme.

· Regulated goods.

The applicant contends that the answers provided in response to the questions of this subject were in line with what an experienced practicing [sic] customs broker would also provide. The audio transcript of the NCBLAC interview confirm that three commodity related questions were asked in regards to regulated goods which were as follows:

…

The audio transcript confirms that suitable answers were provided for all three commodity questions. The Applicant submits that he spoke to no less than four experienced and practicing [sic] customs brokers with each stating that it is unrealistic that a practicing [sic] customs broker (or applicant) know by memory, the regulative requirements of the thousands of commodities listed in the tariff.

· Duty drawbacks.

The applicant submits that he promptly corrected himself once he realized the specifics of the question and contends that the core criteria and requirements of the subject were explained. The audio transcript of the

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interview confirms that the Chair, Mr Stephen Skehill agreed with the answer given.

· Tariff Concession Orders (TCO).

The applicant contests that the appropriate answers were provided and that the Committee member Mr John Arndell stated ‘You mentioned the core criteria’ (Transcript page 31) A current working copy of a TCO application for a customer has been included for reference. The applicant contests that with his enquiries to in [sic] the industry, it is not uncommon for an experienced customs broker to have never completed, or only complete one TCO application in their working career.

· ACBPS penalty Regime.

The Applicant submits that the scenarios and subsequent intent of the questions asked in regards to this subject were not clear. The Applicant contends that because of the confusion of the scenarios provided, the appropriate answer of referencing the Customs Regulations, Customs Act (transcript Page 12) and the infringement notice scheme (transcript Page 13) was provided.” 24

18. Mr Holc rejected the Committee’s conclusion that he had required prompting and

assistance in answering its questions. He said that the recording of the interview reveals

that the question and answer section of the interview lasted 90 minutes. During that time,

he continued, the Committee asked him 57 questions. That allowed 95 seconds per

question. It is not his nature to answer technical questions without consideration and he is

disappointed that his demeanour was unfairly judged by the Committee. Analysis of the

transcript reveals that approximately 80% of his answers were correct. Mr Holc contended

that there had not been “… sufficient clarity in the interview process, nor did a fair

application process take place.”25

19. On behalf of the Comptroller-General, Mr Northcote submitted that, although not binding,

the AE Guidelines include a range of subject areas in which acquired experience would be

useful. While Mr Holc has claimed that he has the relevant experience, his claims are not

supported by objective evidence. None of his referees has attested that he has experience

of that kind.

LEGISLATIVE FRAMEWORK

20. Subject to Part XI of the Customs Act, the Comptroller-General may grant a licence to a

person, be it an individual or a corporation, to act as a customs broker.26 That licence is a

24 Exhibit E at [13] 25 Exhibit E at [16] 26 Customs Act; s 183C(1)

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written licence. In this case, I am concerned only with a customs licence that may be

granted to an individual. I note that an individual is eligible to be a nominee of a customs

broker if he or she meets the criteria specified in s 183CD. Among those criteria is the

requirement that he or she be a customs broker but that he or she does not act in that

capacity in his or her own right.27 That means that I must look at the provisions of Part XI

relating to the grant of a licence as a customs broker under s 183CC. Section 183CD only

comes into play if licensed as a customs broker.

Application for a broker’s licence

21. Section 183CA sets out what an applicant for a broker’s licence must include in his or her

application. Mr Holc complied with its requirements. Among those requirements is the

requirement to:

“set out such particulars of the … matters that the Comptroller-General of Customs is required to consider for the purposes of subparagraph 183CC(1)(a)(ii) …as will enable him or her adequately to consider those matters; …”.28

22. When the Comptroller-General receives an application, he is required to refer it to the

National Customs Brokers Licensing Advisory Committee (Committee).29 The Committee is

required to investigate the matters that the Comptroller-General is required to consider in

relation to the application. After its investigation, it must report on those matters to the

Comptroller-General.30 The Comptroller-General must neither grant nor refuse an

application for a broker’s licence “… unless he or she has received and considered the

report.”31

27 Customs Act; ss 183CD(b) and (c) 28 Customs Act; s 183CA(1)(e) and see s 183CC(1)(a)(ii) at [23] below 29 Customs Act; s 183CB(1) 30 Customs Act; s 183CB(2) 31 Customs Act; s 183CB(1)

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Qualifications to be a customs broker 23. Before a person may be licensed as a nominee customs broker, he or she must be a

“customs broker” i.e. a person who holds a broker’s licence which is a licence granted by

the Comptroller-General under s 183C.32 In so far as it applies to an application by an

individual, s 183CC(1)(a) provides:

“Where an application is made, the Comptroller-General of Customs shall not grant a broker’s licence if, in his or her opinion:

(a) where the application is made by a natural person:

(i) the applicant is not a fit and proper person; or

(ii) the applicant is not qualified to be a customs broker; or

(iii) an employee of the applicant who would participate in the work of the applicant if he or she were a customs broker is not a fit and proper person; …”

24. The criteria specified in s 183CC(1)(a)(i) and (ii) are developed in s 183CC(2) to (4A).

Beginning with that of being a fit and proper person, s 183CC(4) provides:

“The Comptroller-General of Customs shall, in determining whether a person is a fit and proper person for the purposes of subsection (1), have regard to:

(a) any conviction of the person for a prescribed offence committed within the 10 years immediately preceding the making of the application; and

(aa) whether the person has been refused a transport security identification card, or has had such a card suspended or cancelled, within the 10 years immediately preceding the making of the application; and

(b) whether the person is an undischarged bankrupt; and

(c) any misleading statement made in the application by or in relation to the person; and

(d) where any statement by the person in the application was false – whether the person knew that the statement was false.”

25. For the purposes of s 183CC(1)(a)(ii):

“… an applicant shall be taken to be qualified to be a customs broker if, and only if:

(a) except where the applicant has been exempted under subsection (3), the applicant has completed a course of study or instruction approved under subsection (5); and

(b) the applicant has acquired experience that, in the opinion of the Comptroller-General of Customs, fits the applicant to be a customs broker.”33

Under s 183CC(5), the Comptroller-General may approve a course, or courses, of study or

instruction that fits or fit a person to be a customs broker. He or she does so after obtaining 32 Customs Act; s 180(1) 33 Customs Act; s 183CC(2)

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and considering the advice of the Committee. The Comptroller-General may exempt an

applicant from the requirements of s 183CC(2)(a) “… where, having regard to the

experience or training of the applicant, he or she considers that it is appropriate to do so.”34

The Committee

26. The Committee consists of the Chair, a member to represent customs brokers and a

member, who is a person holding an office in DIBP specified by the Comptroller-General,35

to represent the Commonwealth.36 The Chair is required by s 183DA(2) to be a person

who:

“(a) is or has been a Stipendiary, Police, Special or Resident Magistrate of a State or Territory; or

(b) in the opinion of the Comptroller-General of Customs, possesses special knowledge or skill in relation to matters that the Committee is to advise or report on.”

27. The functions of the Committee are:

“(a) to investigate and report on applications referred to it by the Comptroller-General of Customs under section 183CB;

(b) to investigate and report on questions referred to it by the Comptroller-General of Customs under section 183CQ;

(c) to advise the Comptroller-General of Customs in relation to the approval of courses of study under section 183CC; and

(d) where the Comptroller-General of Customs requests the Committee to advise him or her on the standards that customs brokers should meet in the performance of their duties and obligations as customs brokers – to advise the Comptroller-General of Customs accordingly.”37

28. Regulations made under the Customs Act may provide for the Committee’s procedure38 but

its proceedings must be held in private.39 As to the evidence to which the Committee may

have regard, s 183F provides:

“The Committee is not bound by legal rules of evidence but may inform itself on a matter referred to it under this Part in such manner as it thinks fit.”

The Committee is given the power to summons witnesses for the production of

documents40 as well as to examine any person on oath or affirmation.41 A customs broker

34 Customs Act; s 183CC(3) 35 Customs Act; s 183DA(5) 36 Customs Act; s 183DA(1) 37 Customs Act; s 183D(2) 38 Customs Act; s 183E 39 Customs Act; s 183G 40 Customs Act; ss 183K and 183L

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to whom an inquiry relates may be represented at that inquiry as may the Comptroller-

General. Representation may be by a barrister or solicitor or, with the approval of the

Committee, some other person.42

Role of customs brokers

29. Generally, an owner of goods may give written authority to a person to be his or her agent

for the purposes of the Customs Acts43 at a place or places he or she specifies.44 The

Comptroller-General may limit the range of persons who may be authorised to act as an

agent. He or she may do so by publishing a notice in the Gazette stating that, for the

purposes of the Customs Acts, an owner of goods shall not authorise a person to be his or

her agent at a place specified in the notice unless the person is either a natural person who

is an employee of the owner (and not of any other person) or a customs broker at that

place.45

Regulation of importation of goods: a broad outline

30. Goods, which encompass moveable property of any kind,46 are subject to customs control

from the time of their importation until the time specified in one or other of the

circumstances set out in s 30 of the Customs Act. Goods on board any ship or aircraft from

a place outside Australia are also subject to customs control while that ship or aircraft is

within the limits of any port or airport in Australia or is at a place where it has been taken for

a reason specified in ss 58(1) or (2).47 A person who moves, alters or interferes with goods

that are subject to customs control in circumstances in which the movement, alteration or

interference is not authorised by the Customs Act or directs another to do so, commits one

or other of the offences set out in s 33.

31. Section 50 permits the Governor-General, by regulation, to prohibit the importation of goods

into Australia. That prohibition may be absolute, or be a prohibition circumscribed by

specified circumstances or the place of origin of the goods or be a prohibition that does not

apply if specified conditions and restrictions are complied with.48

41 Customs Act; s 183N 42 Customs Act; s 183S 43 The “Customs Acts” include the Customs Act (and any instruments made under it) together with any other Act (and any instruments made under it) relating to customs in force within the Commonwealth or any part of the Commonwealth: Customs Act; s 4(1). 44 Customs Act; s 181(1) 45 Customs Act; s 181(2) 46 Customs Act; s 4(1) 47 Customs Act; s 31 48 Customs Act; ss 50(1) and (2) and s 50 generally

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32. In most instances, goods imported into Australia must either be entered for home

consumption or for warehousing.49 In most instances, the owner must do one or the other

when the ship or aircraft carrying the goods first arrives or after that ship or aircraft first

arrives at a port or airport in Australia at which the goods are to be discharged.50 An entry

for home consumption is made by communicating to the Department of Immigration and

Border Protection (DIBP) an import declaration in respect of the goods.51 An “import

declaration” is an import declaration communicated to DIBP in accordance with s 71A.52 An

import declaration can be communicated by document or electronically to the DIBP.53 An

entry for warehousing is made by communicating a warehouse declaration in respect of the

goods.54 A warehouse declaration is a communication to DIBP in accordance with s 71DH

of information about the goods to which s 68 applies and that are intended to be entered for

warehousing. A warehouse declaration may be communicated by document or

electronically.55

33. Considering only an import declaration, when it has been communicated to the DIBP,

s 71C(1) provides that a Collector must give an import declaration advice (IDA). An IDA

may be given either by document or electronically in accordance with s 71C. The reference

to the “Collector” includes a reference to the Comptroller-General.56 However the import

declaration was communicated to the DIBP, the IDA must contain a statement either to the

effect that the goods are cleared for home consumption or that the goods are to be held in

their current location or directed for further examination.57 In general terms, once an IDA

has been communicated under s 71C and payment is made of any duty, assessed GST,

assessed luxury car tax, assessed wine tax, import declaration processing charge or other

charge or fee payable at the time of entry of, or in respect of, the goods covered by the IDA,

the Collector must give the person to whom the IDA was given an authority to take the

goods into home consumption.58

49 Customs Act; s 68(2) Examples of the exceptions applying to the general proposition are: goods such as personal and household effects of a passenger, or a member of a crew, of a ship or aircraft (s 68(1)d)), low value items that are consigned through the post office (s 68(1)(e)) and containers that are the property of a person carrying on business in Australia and that are imported on a temporary basis to be re-exported whether empty or loaded (s 68(1)(g)). These exceptions are the subject of Subdivisions AA and AB of Division 4 of Part IV of the Customs Act. 50 Customs Act; ss 68(1) and (3). The owner of the goods may enter them for home consumption or for warehousing before the ship or aircraft arrives: Customs Act; s 68(2). 51 Customs Act; s 68(3A) 52 Customs Act; s 4(1) 53 Customs Act; s 71A(2) 54 Customs Act; s 68(3B) 55 Customs Act; s 71DH(2) 56 Customs Act; s 8(a) 57 Customs Act; ss 71C(2) and (3) 58 Customs Act; ss 71C(4)

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34. The reference to the “duty” that must be paid is a reference to “duty of Customs”.59 Import

duty, which is a “…duty imposed on goods imported into Australia,”60 must be paid at the

time of entry of the goods for home consumption.61 In most cases, the rate at which that

duty is paid is the rate of the duty in force when the goods are entered for home

consumption.62 Section 15 of the Customs Tariff Act 1995 (CT Act) provides:

“Duties of Customs are imposed by this Act on:

(a) goods imported into Australia on or after 1 July 1996; and

(b) goods:

(i) imported into Australia before 1 July 1996; and

(ii) entered, or again entered, for home consumption on or after that day.”

35. In general terms, the rate at which duty is payable is determined by reference to the rate

set out in the third column of the tariff classification under which the goods are classified.63

That rate is either “Free” or expressed in terms of a percentage in Schedules 3, 4, 5, 6, 7

and 8 of the CT Act.64 Where it is a percentage:

“(a) the reference is to that percentage of the value of the goods, or of that part, component or ingredient of the goods, as the case may be; and

(b) the percentage is a rate of duty.”65

36. The valuation of imported goods is the subject of Division 2 of Part VIII of the Customs Act.

The starting point is set out in s 159(1):

“Unless the contrary intention appears in this Act or in another Act, the value of imported goods for the purposes of an Act imposing duty is their customs value and the Collector shall determine that customs value in accordance with this section.”

The remaining provisions of s 159 go on to set out various scenarios by which customs

value may be determined.

37. Where, for example, the Collector can determine the transaction value of imported goods,

their customs value is their transaction value.66 The “transaction value of imported goods”

is an amount equal to the sum of their adjusted price in their import sales transaction and of

59 Customs Act; s 4(1) 60 Customs Act; s 4(1) 61 Customs Act; s 132AA(1), Item 1 62 Customs Act; s 132(1) 63 CT Act; ss 16-20 64 CT Act; s 10 65 CT Act; s 9(1) 66 Customs Act; s 159(2)

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their price related costs to the extent that those costs have not been taken into account in

determining the price of the goods.67 The expression “adjusted price” is the subject of

s 161(2), which provides:

“In this section:

adjusted price, in relation to imported goods, means the price of the goods determined by a Collector who deducts from the amount that, but for this subsection, would be the amount of that price, such amounts as the Collector considers necessary to take account of the following matters:

(a) deductible financing costs in relation to the goods;

(b) any costs that the Collector is satisfied:

(i) are payable for the assembly, erection, construction or maintenance of, the goods;

(ii) are incurred after importation of the goods into Australia;

(iii) are capable of being accurately quantified by reference to the import sales transaction relating to the goods;

(c) Australian inland freight and Australian inland insurance in relation to the goods;

(d) deductible administrative costs in relation to the goods;

(e) overseas freight and overseas insurance in relation to the goods.”

38. The value of imported goods is to be ascertained in Australian dollars.68 Where the

Comptroller-General or a Collector:

“… has determined the customs value of goods in accordance with this Division, the Comptroller-General of Customs or the Collector shall cause the value to be recorded on the entry in respect of them or otherwise advise their owner of the amount.”69

An estimate of the value of goods may appear on a document such as an import

declaration or a SAC provided in respect of those goods. If a Collector signifies his or her

acceptance of that estimate in a manner prescribed by regulations, he or she is taken to

have determined the customs value of the goods and to have advised the owner of that

amount.70 The owner of the goods may ask a Collector for details of the way in which their

value was assessed.71

Retention of documents

67 Customs Act; s 161(1) 68 Customs Act; s 161J(1) 69 Customs Act; s 161K(1) 70 Customs Act; s 161K(2) 71 Customs Act; s 161K(3)

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39. Section 240(1) of the Customs Act imposes obligations upon certain persons to keep “… all

the relevant commercial documents relating to the goods that came into that person’s

possession or control … that are necessary to enable a Collector to satisfy himself or

herself of …” certain matters at certain times. It imposes that obligation on the owner of the

goods at a time before, on or after entry of the goods for any purpose and until either they

are not entered for home consumption and cease to be subject to the control of Customs

or, if they are entered, for a period of five years after entry. The documents are those

necessary to enable the Collector to be satisfied of the particulars shown in the entry.

Section 240(1B)(b) is concerned with “A person who, in Australia … causes goods to be

imported into, or exported from, Australia; or … receives goods that have been imported

into, or are to exported from Australia …”. The documents to be retained are those:

“… that are necessary to enable a Collector to satisfy himself or herself:

(c) whether the person is complying with a Customs-related law; or

(d) as to the correctness of information communicated by, or on behalf of, the person to the Department (whether in documentary or other form);

for the period of 5 years from the time when the goods were imported into, or exported from, Australia.”

40. Section 240(5) provides:

“A person referred to in subsection (4) must:

(a) keep the document in such a manner as will enable a Collector readily to ascertain whether the goods have been properly described for the purpose of importation or exportation, as the case requires, and, in the case of goods entered for home consumption, properly valued or rated for duty; …”

Rights and liabilities of customs brokers

41. Division 2 of Part XI of the Customs Act sets out the rights and liabilities of agents. The

effect of s 183 is to ensure that both the owners of the goods and their customs broker

carry responsibility for the fulfilment of the obligations imposed by the Customs Act with

regard to those goods. Putting aside nominees of a customs broker, it does this by

deeming a person to be the owner of the goods where that:

“… person is, holds himself or herself out to be or acts as if he or she were the agent of an owner of goods for the purposes of the Customs Act, that person shall, for the purposes of the Customs Acts (including liability to penalty), be deemed to be the owner of those goods.”72

72 Customs Act; s 183(1)

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The owner of the goods is not, however, relieved from liability by this deeming provision. At

the same time, any declaration that an agent of the owner of goods makes in relation to

those goods and for the purposes of the Customs Act is deemed to be made with the

knowledge and consent of the owner.73

THE EVIDENCE

Myfreightcareer and the Customs Broking Experience Assessment

42. In a letter dated 5 March 2015, Mr Wenham set out details relating to myfreightcareer and

the training it had offered since 2005. In so far as Customs Broker Experience

Assessments are concerned, Mr Wenham wrote that they had been conducted in

November 2013, March 2014 and November 2014. He set out the areas of experience to

which those assessments were directed being: Interpretation of Commercial

Documentation; Assessment of possible prohibited imports; Compliance with DAFF

legislation; Free Trade Agreements; Application of Goods and Services Tax (GST);

Customs Amendment (Infringement Notices) Regulations 2013; Treatment of Pro Forma

Invoices; Advice to clients pertaining Customs Audits; Tariff Classification, including

applicability of Tariff Concession Orders; Valuation of Goods; and Calculation of Customs

Duty and GST.

43. At the end of his letter, Mr Wenham began by saying:

“In summary, I reiterate that we were surprised to learn that NCBLAC believes that myfreightcareer is an unknown quantity. …”.74

He went on to refer to the discussions it had previously had with DIBP and DIBP’s

acknowledgement that myfreightcareer had addressed all of its doubts about its ability to

present a national examination that was an appropriate test of acquired experience. Mr

Wenham referred also to the recognition that myfreightcareer had received from various

bodies and from participants.

73 Customs Act; s 183A(1) 74 Exhibit E

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Mr Holc’s experience 44. Mr Holc summarised his experience in his application for a licence dated 11 June 2014. He

described Elite as a small niche brokerage that permitted him to experience all aspects of

the business rather than being confined to a narrow role. This was a point he repeated in

his oral evidence. While at Elite, Mr Holc wrote in his “Summary of relevant experience”

accompanying his application:

“… I have been able to competently represent our customers and liaise with shipping lines, airlines and freight forwarders to ensure that all documentation and requirements are met and to deal with issues such as lost or damaged freight which has happened on occasions.

I am also competent in advising clients of duty rates, suitable Tariff Concession Orders, bylaws and Free Trade Agreements, also advise of prohibited or restricted commodities for potential imports and permit requirements prior to import when required.

I deal directly with DAFF [Department of Agriculture] on a regular basis to ensure compliance and also advise customers on requirements relating to packaging, new and used commodity cleanliness and commerce marking requirements to avoid issues upon arrival in Australia.

It is also my responsibility to register and process the majority of all jobs, confirm incoterms, all freight costs including any oversees freight and capture any other cost which should also be applied such as oversees [sic] inspection and fumigation costs. I also prepare all import declarations via our Expedient software. Part of this preparation also requires confirming the validity of all documents including packing declarations, fumigation certificates and any Free Trade Declarations that may be provided.

I am competent in classifying commodities which I should note was one of my strong points when completing the approved course of study at Kangan Tafe. One of my daily duties is the roll [sic] of compiler which has allowed me to gain experience with a large variety of commodities including my work with electrical goods of chapter 85 and specifically the goods of 85366990. I also classify the goods of chapter 87 and textiles of chapter 55, specifically 55094100. Elite Customs Forwarding has an established client base and also services new clients on a weekly basis which on average would account for at least 20% of total jobs processed.

Because of the variety of clients I classify a vast variety of commodites and therefore it would be unrealistic to list all goods that I classify on a daily/weekly basis. In summary Elite Forwarding services clients which import a wide variety of commodities including but not limited to a large range of automotive components, confectionary, float glass, alcohol, textiles, electrical components and packaging materials, which has contributed greatly to the breadth of my experience in classifying commodities

My job roll [sic] also requires me to contact and liaise directly with clients to seek clarification on goods where necessary and recording all details for future reference if required.

PAGE 21 OF 36

I have also gained experience in preparation of a TCO for a client which was successful.

My responsibilities also include contacting and advising clients of issues or shortcomings with their imports such as advising the reasons why goods marked as gifts on invoices is not acceptable and require accurate values to be proved for valuation purposes.

I am also competent in preparing refund applications via our Expedient software and directly through ICS [Integrated Cargo System] which I have recently completed a major review of goods specifications with a client which resulted in successful, and substantial application of duty refund.”75

Mr Holc asked the Committee to “Please read this summery [sic] in conjunction with my

CV.”76

45. Elite’s director, Ms Andrea Holc, said that she has been employed in the freight forwarding

and customs brokerage industry since 1992. During that period, she has been employed in

both smaller and larger organisations and moved from general runner to Operations

Manager in one of the larger firms before establishing Elite. In her experience, some

employees in the larger organisations:

“… face … difficulties of trying to gain experience in Customs broker type activities when they are stuck in a single job roll [sic] and have no varied experience or job rolls [sic].”77

46. In her reference accompanying her brother’s application for a licence, Ms Holc said that he

had learned all aspects of running a customs brokerage from everyday accounts to dealing

with customers, Australian Quarantine (DAFF) and compiling. He had been exposed to all

types of commercial products from automotive parts, tyres and vehicles to chocolate,

furniture and electrical goods.78

47. Mr Stephen James is a licensed customs broker and mentor to Mr Holc for the past four

years. He wrote in his reference accompanying Mr Holc’s application that Mr Holc had:

“… learnt all aspects of the business and has gained vast knowledge and experience in all areas of freight forwarding and customs brokerage and, has demonstrated a high level of understanding in all aspects such as:

· Classification and Valuation

· Data entry and compiling

· Duty Refunds

75 T documents; T3 at 13-14. Mr Holc submitted a letter dated 22 April 2015 advising that his application for a TCO had been accepted as a valid application (Exhibit C) and another dated 9 July 2015 advising it had been made (Exhibit D). 76 T documents; T3 at 13 77 Exhibit A 78 T documents; T3 at 20

PAGE 22 OF 36

· Seacargo reporting

· Underbond movements

· AQIS documentation checks and clearance.

In summery [sic] I believe that David’s work ethic, knowledge of the industry and personal morals make him suitable to work as a licensed customs broker.”79

48. Mr Stephen James said at the hearing that Mr Holc is a person who has the necessary

analytical skills to be a customs broker. Furthermore, he has a good moral character and a

desire to make sure that he gets it right. In response to a question by Mr Northcote,

Mr Stephen James said that he had written the reference for Mr Holc and his statement

himself. He acknowledged that the word “summary” had been misspelled as “summery”.

Mr Holc denied that he had written Mr Stephen James’ reference. Mr Holc said that he

would have given Mr Stephen James reference material when he asked him to write a

reference for him. Mr Stephen James might have cut and pasted material into his

reference. He was likely to do that because he knew him, Mr Holc said, and if doing so

would make it easier for Steve then that is what he would do.

49. In giving evidence, Mr Stephen James elaborated on the 37 years he had spent in the

customs brokering industry. He had his own brokering service for 21 years. Brokering is

an honourable profession, Mr Stephen James said in giving evidence, and he does not take

the licensing of customs brokers lightly. It is better to work in a smaller brokerage.

Analytical skills are required but it is not possible to know everything. What is needed is

analysis and investigation while keeping in mind the obligations to the DIBP. There are

over 30,000 headings in the tariff classification system and hundreds of thousands of

TCOs. What a customs broker needs to know are the areas of the Customs Act and the

Regulations. He or she does not need to be cognisant with every paragraph and cannot

know each one. Nearly all brokers use electronic tools such as the EDI Tariff research

tools and electronic versions of the customs legislation. Mr Stephen James said that a

customs broker could use printed versions of the legislation but it is not how the work is

done on a daily basis.

50. In cross-examination, Mr Stephen James said that Mr Holc’s brokering experience had

been at Elite alone. Although it would be some advantage were he to gain experience at

another firm, he reflected, we have to deal with the real world. Elite has a wide client base

and Mr Holc is involved in a wide range of areas. He is not pigeon holed into one job. His

experience would not be broadened by working in another firm because he has already had

experience in compilation, classification, quarantine and so on.

79 T documents; T3 at 21

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51. Mr Ronald James is a licensed customs broker who has run his own company, James

Customs Brokers Pty Ltd. He has mentored Mr Holc over the last three years.

Mr Ronald James has known Mr Holc for over 25 years but, writing of the last three years,

he noted in a letter dated 31 May 2014 that Mr Holc had applied himself with vigour and

with a very structured approach to gaining the required knowledge and experience to sit for

his examination. His diligence, attention to detail and people skills would enable him to

deal with various arms of government and members of the general public equally well.80

52. Mr Gennaro Bonaddio of Australia Wide Tyre Service Pty Ltd has done business with Mr

Holc through Elite for many years. He had found Mr Holc to be an excellent member of the

Elite team and it has been a pleasure doing business with him. Mr Holc has proved himself

able to process documents by classification and valuation in a professional and timely

manner paying special attention to detail, Mr Bonaddio wrote in his reference dated 16 May

2014. Besides having excellent communication skills, Mr Bonaddio wrote, Mr Holc is an

extremely organised and reliable person who has been able to ensure that his

documentation has been lodged correctly.81

53. Mr Robert Tierney gave a character reference for Mr Holc. They had previously worked

together at Production Parts where Mr Tierney had been the Sales Manager handling both

Defence and commercial customers. Mr Holc’s work ethic, skills and knowledge on the

factory floor in the machine shop were quickly identified and rewarded with a promotion to

the Sales and Engineering Team. Increasingly, Mr Tierney relied on Mr Holc:

“… I relied on David to provide me with up to date information on customers [sic] projects, cost analysis, quotation submissions and the list goes on.

During this time of approx. 5 years his work ethic, honesty and customer relationship was exemplary to the state where David was put in charge of some of the companies [sic] more prominent customers. BHP One Steel was one of the companies [sic] main account [sic] and David would be in charge of the day to day running of their products, these duties involved and were not limited to the internal shop floor scheduling, dealing and negotiating with external suppliers, timing of external sub contractors to facilitate a delivery on an often very short time frame.

David was also involved with several other customers such as Yarra Trams in the streamlining of design for components used on public transport, Thales Underwater Systems on several defence projects where he played a lead role in communication with the customer.”82

54. Ms Holc signed a witness statement setting out her own experience across a range of

positions culminating in a position as Operations Manager at DHL Global Forwarding 80 T documents; T3 at 23 81 T documents; T3 at 24 82 T documents; T3 at 25

PAGE 24 OF 36

followed by her establishing her own company, Elite. She wrote that she had experienced

all aspects of the industry and trained many fellow employees who now either operate their

own companies or are “… holding various positions and management rolls [sic]. …”.83 As a

smaller, niche brokerage servicing both importers and exporters, Elite offers, Ms Holc

wrote:

“… the perfect job for anyone wanting to be a Customs broker and attain ‘acquired experience’ IN ALL aspects of business from the time of cargo booking to clearance & delivery, consultancy and tariff/importing advise eliminating the need to speak to 10 different people before getting an answer.

David is required to undertake many job rolls [sic] which are not only of Customs Broker like activities, but as a niece [sic] organization also dealing with the issues & problems that may arise with customers, customs and quarantine to ensure that the jobs are finalized and completed to the highest of standards.

David unlike many other people within the organization has a greater depth of experience than most individuals that I have previously worked with and managed, even some already licenced [sic] Customs Brokers who have NO overall knowledge or experience of varied job task, rolls [sic] or positions within the organizations they are currently employed or have worked for.

David resently [sic] completed a TCO (Tariff Concession Order) application for one of our customers which was successful.

It should be noted that it is not unusual for a practicing [sic] customs Broker to have not ever applied for a TCO application, and those that have may have only completed a couple of applications over their whole working careers.”84

55. Ms Holc told Mr Northcote in cross-examination that she had written the statement herself.

Any spelling errors that she had made were probably the same as those made by her

brother because they worked on the same data base. Spellcheck would have worked in

the same way for each of them. Mr Holc also denied that he had written his sister’s

statement even though the same spelling errors appear in the summary of relevant

experience he attached to his application for a licence.85 He said that he and his sister use

the same software and it may be that the errors arose as an autocorrect issue. To spell the

word “summary” as “summery” is a mistake but not an unusual mistake, he said.

The Committee

56. In his statement dated 10 April 2015, Mr Skehill stated that it is rare that there is any issue

about whether a person is a fit and proper person to be granted a licence. Requests for

exemption from completion of a course of study are uncommon. Consequently, most

83 Exhibit A 84 Exhibit A 85 T documents; T3 at 13-14

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interviews focus on an applicant’s acquired experience. Mr Skehill explained the way in

which the Committee conducts interviews:

“Where interviews are held regarding an applicant’s acquired experience, as in this matter, the Committee is keen to ensure that the atmosphere is as non-threatening and non-intimidating as possible. The Committee recognises that many applicants are extremely nervous, and seeks to put them at their ease – often with some light-hearted conversation. Breaks during interview are offered where it is felt this may assist an applicant to re-compose themselves [sic]. Questions are re-phrased, if necessary, to ensure that the applicant understands the nature of the issue being raised with them and is not confused by terminology. Where a question is apparently well understood but an answer is not forthcoming, the Committee frequently provides some prompting in an endeavour to assist the applicant to reveal relevant information that they might otherwise not disclose.”86

57. The Committee reviews all of the material put forward by an applicant for a licence. That

material includes his or her application and supporting material including references. It also

includes an applicant’s elaboration on his or her work history and experience given at the

interview and, when sought by the Committee, any elaboration given by referees. That

work history, including its length and extent, is relevant as are an applicant’s achievements

in an approved course of study or other relevant course and the answers given to the

questions and hypothetical questions asked during the interview. At the end of its

assessment, the Committee reaches a view whether the applicant will be able to:

“… process the importation or exportation of goods on behalf of their client:

21.1 at no unacceptable risk to the Commonwealth revenue;

21.2 at no unacceptable risk to the Australian community in relation to the many restrictions on importation; and

21.3 without causing their client to unknowingly bear any avoidable cost of importation or exportation.”87

58. The Committee is looking for ability beyond the classification of goods to the correct item in

Schedule 3 to the Customs Tariff Act 1995. Mr Skehill gave examples of considerations to

which a licensed customs broker should be able to direct his or her attention in carrying out

the duties and responsibilities of that role:

“22.1 lawful valuation of the goods may require the inclusion of costs not shown on the commercial invoice provided to the broker, so the broker needs to be alert to that possibility;

22.2 an absence of local production of substitutable goods may entitle the importer to apply for a Tariff Concession Order which would render otherwise dutiable goods duty-free;

86 Exhibit 2 at [19] 87 Exhibit 2 at [21]

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22.3 obtaining a Tradex Order may enable an importer who re-exports goods to avoid the need to pay duty on importation;

22.4 lodging a drawback application within time may entitle an importer who paid duty on goods when they were imported to gain repayment of that duty when they are re-exported, even after being further manufactured in Australia;

22.5 lodging a refund application within shorter than usual time-limits may entitle an importer to a refund of duty paid on goods found to be damaged on arrival;

22.6 securing a telex release for goods covered by an Original Bill of Lading that is not in possession of the importer may enable goods to be delivered from the wharf after arrival without incurring expensive detention charges;

22.7 arranging an inspection, cleaning and fumigation of goods before they are shipped may avoid delay and cost in quarantine processes on their arrival in Australia;

22.8 securing all necessary permits for otherwise prohibited goods may avoid those goods being seized on arrival in Australia;

22.9 understanding the different documentary requirements under the various Free Trade Agreements to which Australia is a party may render free of duty goods that would otherwise be dutiable;

22.10 recognising the requirements of the various By-laws in Schedule 4 to the Customs Tariff Act 1995 may allow goods to be entered duty free or at lower rates;

22.11 understanding that clothing that does not bear ‘care instructions’ may be able to be legally imported into Australia but not legally sold in Australia may allow an importer to avoid significant cost in re-labelling goods post-importation.”88

59. It is not necessary, Mr Skehill stated, for an applicant for a licence to demonstrate actual

experience in every relevant consideration. What the Committee wants to ascertain is

whether:

“… the applicant has sufficient acquired experience that equips them with knowledge and intuition to recognise the potential for such considerations to arise and with the basic research and other skills to make proper inquiry and arrive at a correct conclusion even though they may not have had direct experience of that consideration before. In seeking to assess whether this is the case, the Committee asks direct questions and also poses hypothetical fact situations which it is satisfied that a licensed nominee broker could reasonably be required to confront when working as a broker. The Committee advises all applicants that it is ‘not fatal’ if they cannot claim direct experience or pre-existing knowledge on a particular issue but that, where this is the case, they should seek to advise the Committee about how they would do about arriving at a proper answer. In this regard the Committee is hoping to be advised of relatively definite lines of inquiry that would be followed, and not simple generalised statements that the applicant would ‘look at the Act and Regulations’ or ‘visit the Customs website’.”89

88 Exhibit 2 at [22] 89 Exhibit 2 at [26]

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60. During the 2014 calendar year, Mr Skehill stated, 53 applications for a nominee customs

broker licence were referred to the Committee. Of those, the Committee recommended to

the Comptroller-General that two be granted without the need for interview. Of the

remaining 51, three are yet to be interviewed. The Committee recommended that 26 of the

48 it has interviewed be granted a licence and that 22 not be granted a licence. The

Comptroller-General has accepted each of the Committee’s recommendations. In

Mr Skehill’s experience, those who are not recommended by the Committee on their first

application, re-apply and are generally successful on their second after they have acquired

additional experience in the areas it has identified as requiring further attention.90

61. Mr Stephen James wrote in a letter dated 6 August 2015 that it was unreasonable for the

Committee to have stated that Mr Holc’s papers looked good on the surface but provided

little detail while at the same time stating that it does not require applicants to demonstrate

that they have actual workplace experience. He was also surprised that the Committee had

not contacted Mr Holc’s referees. Mr Stephen James concluded his letter by writing:

“I have reviewed the transcript of the NCBLAC interview with David and would like to confirm that the report provided by the NCBLAC Committee to the CEO of Customs is not consistent with the answers provided.”91

62. Mr Stephen James said that Mr Holc had given him the transcript, which was about three

pages in length. His comments were directed to the questions and answers regarding the

specified goods about which the Committee asked Mr Holc questions. In his view, the

Committee’s decision had been unreasonable. It was his understanding that the

Committee had no apparent problems with the answers

Mr Holc had given at the interview. He repeated that the transcript that he had seen was

two or three pages.

The transcript

63. Although it advised him that it did not normally do so, DIBP provided an audio recording

and written transcript of the interview to Mr Holc. It did so after it had been requested by

Mr Holc on 27 November 2014 but on condition that:

“· it will be used only for the purposes of your personal development; and

· the topics and specific questions covered at the inquiry will not be discussed with others.”92

90 Exhibit 2 at [27]-[29] 91 Exhibit B 92 T documents; T15 at 73

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64. Mr Holc agreed not to “… disclose any of the specific topics or specific questions of the

inquiry with any third parties.”93 He noted that he might “… reference parts of the inquiry

transcript to insure [sic] that I present a factual argument during the review.”94

65. In cross-examination, Mr Holc agreed with Mr Northcote that he had prepared a summary

of the transcript he was given. I will come to its contents below. He also agreed that he

had given a copy of his summary to Mr Wenham and Mr James and he might have sent a

full copy of the transcript to Mr Wenham. When his attention was drawn to the undertaking

he had given DIBP, he said that he had apparently forgotten about it. He now recalls it and

he has made a mistake in giving it to a third party. It is an error but no malice was

intended. Later, Mr Holc said that there had obviously been a misunderstanding. He had

made it clear that he was using it as part of his evidence. He needed to show it to his legal

counsel. Mr Stephen James and Mr Wenham were not his legal counsel although Mr

Wenham had given him some advice about the examination.

The interview

66. Mr Holc prepared a “Transcript Summery [sic]”. I do not wish to reveal the precise nature of

the questions and so will omit their description from the passages of the summary to which

I refer. Mr Holc’s summary of the questions relating to one example of regulated goods is

as follows:

“Question – Any problems in importing … [specified goods]?

Answer – check commerce marking, trademark requirements, look at prohibited imports.

Question – What sort of proof would we need to satisfy the bureaucrats about the content of our … [specified goods]?

Answer – it depends on the criteria for that commodity, they might need a certificate of conformance, they may require a certificate of analysis, they might require samples or they might require 100% inspection upon import.”95

67. The transcript of the interview shows that the passage relating to the specified goods

extended over two pages in single spacing. The Committee’s first question on the topic

began at line 12 on page 16 of the transcript and conclude at line 22 on page 17. In the

exchange that followed that question, the Committee either asked a further question or

prompted Mr Holc on 11 occasions to obtain his answer. The answers were not given in

the succinct or ready fashion suggested by the summary. A similar comparison can be

93 T documents; T15 at 72 94 T documents; T15 at 72 95 Exhibit F at 1

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made between Mr Holc’s summary and the transcript in relation to two other types of

goods.

68. Mr Holc summarised one aspect of the questions and answers relating to TCOs. His

summary sets out five questions and five answers. The transcript of the interview on that

aspect extends from the middle of page 31 to the beginning of page 33. Not counting

asides or comments, there are ten questions or prompts to elicit the information set out in

the summary.

69. In giving evidence, Mr Holc acknowledged that he had not understood the question

regarding penalties. He said that he thought it unfair to be judged on that when customs

brokers would be able to refer to reference material to answer the question. For the most

part, the work of a customs broker is not undertaken orally but in writing. Some people do

well in written work and Mr Holc believed that he had shown that by passing his studies

without issue. Sometimes, however, he struggles to express himself orally and suffers from

non-fluent aphasia. That means that he may not be able to express himself in a stressful

situation. That is his downfall.

CONSIDERATION

Merits, not judicial, review

70. Mr Holc focused on what he saw as the unfairness of the process that had been followed

by the Committee. In his submission, the Committee had decided to interview him after

failing to attribute appropriate weight to the myfreightcareer qualifications he had obtained.

Mr Holc also focused on the flaws he identified in his report. As I said to him during the

hearing, his submissions might have been suited to any action he might have chosen to

institute in the Federal Court to challenge the Comptroller-General’s decision under the

Administrative Decision (Judicial Review) Act 1977 (ADJR Act). In essence, an action

under the ADJR Act will look at whether the decision was made according to law but will not

consider the merits of the decision and so will not look at whether another decision should

have been made. Mr Holc has chosen not to institute an action of that sort but to seek

review of the Comptroller-General’s decision. The Tribunal’s task is not to look for any

errors of law that the Comptroller-General or the Committee might have made but, subject

to any legislative provisions to the contrary, to consider the whole matter afresh. It must do

that subject to any legislative constraints imposed on it. If there are none, it must consider

Mr Holc’s application without reference to any findings made by the decision-maker and to

come to its own decision. Its own decision must be one that is correct in law and on the

evidence. It may be that more than one decision meets that description because the

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decision-maker has been given a discretion. If that is the case, it must find the parameters

within which the discretion must be exercised and it does that by analysing the enactment

in light of “... the subject matter, scope and purpose of the statute ...”.96 In some

circumstances, the executive will have formulated policy guidelines with regard to the

exercise of the discretion. 97 Provided they are consistent with the statute, the Tribunal will

generally apply them. Having carried out these steps, the Tribunal then selects from

among the correct decisions, that which is the preferable decision to make.

71. In the case of a customs broker’s licence, the Comptroller-General’s power is discretionary.

Subject to Part XI, the Comptroller-General “may grant a person a licence…”.98 Part XI

imposes obligations on both an applicant for a licence and the Comptroller-General. In so

far as the Comptroller-General is concerned, he must refer an application to the Committee.

He or she may not make a decision on the application unless he has both received and

considered the Committee’s report. The report made by the Committee must cover the

matters that the Comptroller-General is required to consider in relation to the application. In

the case of a natural person, the matters that must be considered are his or her being a fit

and proper person, his or her qualification to be a customs broker and whether any person

who is employed by that person and who would participate in the work if the licence were

granted was also a fit and proper person.

The rationale for an interview

72. Not every criteria needs to be the subject of investigation. As was clear from Mr Holc’s

application for a customs brokers licence, he was not intending to act as a customs broker

in his own right for owners of goods for the purposes of the Customs Act.99 Therefore, the

integrity of potential employees was irrelevant. On the face of the application and the

accompanying material, the Comptroller-General did not question that Mr Holc was a fit and

proper person to hold a customs broker licence and nor did the Committee. The

Committee questioned only whether he was qualified to be a customs broker.

73. Mr Holc has taken exception to Mr Skehill’s email dated 22 July 2014 to his fellow members

on the Committee that Mr Holc had completed his study through the myfreightcareer

96 Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24; 66 ALR 299 at 40; 309 per Mason J. See also R v Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd [1979] HCA 62; (1979) 144 CLR 45; 27 ALR 321 at 49; 325 per Stephen, Mason, Murphy, Aickin and Wilson JJ citing with approval Water Conservation and Irrigation Commission (NSW) v Browning [1947] HCA 21; (1947) 74 CLR 492 at 505 97 Re Drake and Minister for Immigration and Ethnic Affairs (No 2) 97 [1979] AATA 179; (1979) 2 ALD 634 at 638-645 per Brennan J as the then President of the Tribunal. 98 Customs Act; s 183(1) 99 T documents; T3 at 11

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assessment which he described as “still a bit of an unknown at this stage”. What Mr Holc

does not take into consideration is Mr Skehill’s conclusion that, for that reason, he would

“…favour an interview as a matter of safety”.100 Mr Skehill is not denigrating the

myfreightcareer course but simply stating that he is not aware of it and that an interview

would be a safe course to take to ensure that Mr Holc had the acquired experience required

by s 183CC(2)(b).

74. Mr Holc wished to call Mr Wenham, myfreightcareer’s General Manager, to give evidence

of the course he conducted. I have referred to Mr Wenham’s letter about myfreightcareer

and his courses. I have also referred to the Application for CBL Notice in which

myfreightcareer is among those listed by the Comptroller-General as one of the RTOs

approved to deliver the approved course being the Diploma of Customs Broking TL

150813. There was no point in his doing so. The issues that arise in reviewing the

Comptroller-General’s decision in this case do not focus on the approval of the course or

otherwise. The course completed by Mr Holc has been approved under a separate process

leading to approval under s 183CC(5). His completion of the course, however, does not

automatically lead to the conclusion that he has the acquired experience that fits him to be

a customs broker. Sections 183CC(2)(a) and (b) do not permit that conclusion to be drawn

as a matter of course. I will explain why I have reached that conclusion.

75. Completion of a course of study (or exemption from it) and having the acquired experience

fitting a person to be a customs broker are not expressed in the alternative. Both must be

satisfied. They are expressed as separate requirements in s 183CC(2)(a) and (b). Beyond

approving a course of study under s 183(5) and ensuring that the applicant for a licence

has completed that course, the Comptroller-General has no role in relation to it. He does

not, for example, enquire into the circumstances in which the course of study was

conducted on the day and so on. Having satisfied himself that the applicant for a licence

has completed that course, he must consider whether the applicant has, in his opinion,

“acquired experience that … fits the applicant to be a customs broker.” Completing a

course of study and the acquisition of experience are not the same thing. I will illustrate

that by reference to the overlap in meanings between “knowledge”, that a person could be

expected to gain by completing a course of study, and “experience” that comes from

practical application of that knowledge. The meanings are:

“knowledge … 1 the fact of knowing; awareness; understanding. 2 what one knows; the information one has acquired through learning or experience. 3 learning; the sciences □ a branch of knowledge. 4 a specific information about a

100 T documents; T8 at 50

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subject b (the knowledge) the detailed information about streets, routes, etc that London taxi drivers are tested on before they are licensed. …”101

“experience …1 practice in an activity. 2 knowledge or skill gained through practice. 3 wisdom gained through long and varied observation of life. …”102

76. Both Mr Holc and those who support him point out that, like a lawyer, a customs broker

cannot be expected to know every law but needs to know where to find it. He or she could

not, for example be expected to know every heading in Schedule 3 to the CT Act or every

penalty provision in the Customs Act. There can be no doubt that Mr Holc’s proposition is

true but experience may give an advantage that does not necessarily come from an

academic knowledge of a subject. Experience may assist in identifying a range of issues

that either are or may be relevant and that require exploration. They may not be all of the

issues but they will allow a lawyer to have an overview of the situation and then to carry out

the necessary research.

77. A customs broker is no different. He or she must be able to identify issues that are relevant

in any given situation. That does not mean that he or she must be able to identify the

answer to that issue at the outset but identification of the issue is essential so that the

customs broker may go to the correct area of the legislation. An ability to do that may come

from completing a course of study but it is more likely to be aided by experience married

with the knowledge that is acquired in the course of gaining that experience and knowledge

gained from formal study. If, as Mr Holc said, modern customs brokers rely heavily on

software in carrying out their day to day work, that fact does not take away the need to

have the knowledge that is gained from both experience and formal study. Without that

knowledge, a customs broker may well not be able to identify the occasions when the

software does not produce the right answer. Software is not infallible and, even if it is not at

fault, those who input data are not infallible.

The interview

78. It might be that an applicant’s statement of experience and the references given in support

of an application might show that he or she has acquired experience. In this case, I do not

accept that this is so in Mr Holc’s application. Mr Ronald James stated that he had been

Mr Holc’s mentor and that he had gained the required knowledge and experience to sit for

his examination. He went on to write about Mr Holc’s diligence and attention to detail and

people skills but did not give any detail of the work that Mr Holc had undertaken.

Mr Stephen James works with Mr Holc. He did give examples of the areas in which

101 Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers (Chambers) 102 Chambers

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Mr Holc had obtained experience but did not elaborate on the depth and extent of that

experience. The other referees were more directed to his integrity and so his fitness to be

a customs broker. In the absence of referees to support the extensive list of experience set

out in Mr Holc’s application and in light of Mr Holc’s obtaining only 73% in the

myfreightcareer assessment requiring 70% to pass, I consider that the Committee’s

decision to interview him cannot be questioned.

The Committee’s report

79. In Re Van An Lai and Chief Executive Officer of Customs,103 Senior Member Pascoe said:

“… It should be noted that this Tribunal is standing in the shoes of the respondent in this matter and in a position of having received the same advice from the NCALAC, a committee charged under the Act to investigate and report on applications for licences. Whilst it is an advisory opinion only, the Tribunal is unlikely to substitute its own opinion unless it is satisfied that the opinion or recommendation is incorrect, arrived at without proper consideration of the facts or that evidence not before that committee is before the Tribunal. …”104

80. I respectfully disagree with this passage. To follow it would be to give greater weight to the

Committee’s report than s 183CB(1) requires the Comptroller-General to give it. All that

provision requires is that the Comptroller-General receive and consider it. That does not

equate with the Comptroller-General’s being unlikely to substitute his or her own opinion

unless he or she considers its opinion or recommendation to be incorrect, arrived at without

proper consideration of the facts or arrived at without evidence subsequently given to the

Tribunal. When the Tribunal reviews the Comptroller-General’s decision, it is in no different

position from him or her. All that s 183CB(1) requires of either is that the Committee’s

report is considered. It will be considered as part of all the other relevant evidentiary

material available at the time.

Mr Holc’s experience

81. Whether I am bound to consider only the evidentiary material considered by the Committee

and by the Comptroller-General or whether I may consider other evidence depends on the

enactment. The general proposition was explained in the judgment of Kirby J in

Shi v Migration Agents Registration Authority105 (Shi):

“ When making a decision, administrative decision-makers are generally obliged to have regard to the best and most current information available. This rule of practice is no more than a feature of good public administration. When,

103 [2000] AATA 1029 104 [2000] AATA 1029 at [8] 105 [2008] HCA 31; (2008) 235 CLR 286; 248 ALR 390; 48 AAR 345; 103 ALD 467; 82 ALJR 1147; Kirby, Hayne, Heydon, Crennan and Kiefel JJ

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therefore, the Tribunal elects to make ‘a decision in substitution for the decision so set aside’, as the Act permits, it would be surprising in the extreme if the substituted decision did not have to conform to such a standard.”106

82. The terms of a particular enactment may lead to a different conclusion but Part XI of the

Customs Act does not do so. In so far as it provides for licensing of a person as a customs

broker, there is no reason to think that the most current information may not be taken into

account to determine qualification.

83. At the hearing, Mr Holc did not give any details of his experience beyond those he had

given in his application and the accompanying documents. That leaves me with that

material and the transcript of the interview by the Committee. It is apparent from the

passages of the AE Guidelines that I have set out at [7]-[8] above that the Comptroller-

General is looking for “hands on” experience leading to the ability to resolve practical

issues. That is consistent with the way in which s 183CC(2) of Part XI requires regard to be

had to both the completion of an approved course and acquired experience. It is also

consistent with the way in which the Committee conducted its interview. The members of

the Committee asked questions requiring Mr Holc to identify issues rather than precise

provisions of the customs legislation. That is apparent from the broad way in which the

Committee members framed their questions. Were there “Any problems in importing …”

specific named goods, they asked. It was broad and sought only identification of the issues

such as classification and prohibited imports. All of the Committee’s questions were framed

in that way.

84. Mr Holc’s summary of the questions and answers in the transcript is, I find, misleading. It

suggests that his answers were quickly and succinctly given. On my reading of the

transcript, the contrary is true. The answers were given by Mr Holc but only after subsidiary

questions, guidance and prompting. I have given an example above but it is indicative of

the whole of the interview. The whole of that interview indicated that Mr Holc does not yet

have the depth or breadth of experience to identify issues raised by what would appear to

be reasonably straightforward questions raising a range of issues. They are issues of the

sort referred to in the AE Guidelines and issues that a customs broker could expect to face

in practice or of which Mr Holc said he had experience. Having regard to all of these

matters, I am not satisfied that Mr Holc has acquired experience fitting him to be a customs

broker.

106 [2008] HCA 31; (2008) 235 CLR 286; 248 ALR 390; 48 AAR 345; 103 ALD 467; 82 ALJR 1147 at [41]; 299-300; 400; 356; 477; 1156

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85. A licensed customs broker has duties and responsibilities both to the Australian public and

to his or her clients. Those to the Australian public extend from protection of the revenue to

enforcement of its quarantine laws by way of enforcement of its laws relating to prohibited

imports. His or her responsibilities are reinforced by the fact that penalties are imposed on

him or her for failing to carry them out. At the same time, a customs broker has duties to

his or her clients to ensure that those clients pay and comply with their responsibilities

under the Customs laws while not paying more duty than they must.

86. Experience underlines these duties and responsibilities. It underlines their complementary

nature. Those duties and responsibilities can only be met by a person who is scrupulous

about stating facts as they are and keeping his word. Mr Holc has yet to demonstrate that

he has acquired experience in that regard. By showing the summary of the transcript, if not

the transcript itself, to Mr Wenham, he was in breach of the undertaking he had given to

DIBP not to do so. It did not matter whether he understood why he had been required to

give that undertaking.107 What matters is that he was required to give it as a condition of

being given a copy of the interview and he broke his undertaking. Not only did he breach

his undertaking when he gave Mr Stephen James a copy of the transcript, he misled Mr

Stephen James. He misled him because the summary of the transcript suggested a very

polished performance at the interview when the reality was to the contrary.

87. The matters I have discussed in the last two paragraphs are also matters that satisfy me to

conclude that Mr Holc has not acquired experience fitting him to be a customs broker.

They do so separately and apart from the decision I have already reached in [84] above on

the basis of other aspects of acquired experience. A customs broker must be accurate and

scrupulous in ensuring that the information which he or she conveys to DIBP and on which

he or she gives advice to clients is accurate, complete and not misleading. The integrity of

the system established by the Customs Act and the CT Act and regulations made under

them depend upon it. The Comptroller-General and the DIBP are not in a position to check

every entry and every export and owners rely on the expertise and integrity of their customs

brokers.

Fit and proper person

88. These are matters that might also reflect on whether Mr Holc is a fit and proper person at

this stage of his career. Mr Northcote referred also to spelling errors that were made

across the written work of Mr Holc, Ms Holc and Mr Stephen James. He submitted that

107 The reason lies in members of the public, or some of them, gaining an unfair advantage by having access to questions asked by the Committee and the manner in which they are asked.

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Mr Holc had written all of the material and that I should find that he is not a fit and proper

person. Mr Holc, Ms Holc and Mr Stephen James have said that the errors arose because

they use the same data base and it will have the same autocorrect. I note that the words

that are misspelled are words that are misspelled in their context. Words such as

“summery” and “roll” do exist and do not show as errors, at least in Microsoft Word, even

when, in context, the proper words should have been “summary” and “role”. That detracts

from the explanation given for the mistakes common to their written work. It may support

Mr Holc’s suggestion that material had been cut and pasted from his electronic material and

adopted by Mr Stephen James. These are matters that Mr Holc and his referees may wish

to consider to ensure that they are not repeated. I do not wish to take the matter further in

this matter for there is no need in view of the decision I have already made.

Decision

89. For the reasons I have given, I affirm the decision made by the Comptroller-General dated

11 November 2014.

I certify that the eighty nine preceding paragraphs are a true copy of the reasons for the decision herein of

Deputy President S A Forgie,

Signed: ……….....................[sgd].................................. Associate

Date of Hearing 14 August 2015

Date of Decision 17 September 2015

Applicant In person

Advocate for the Respondent Mr Roger Northcote