Around the nation with IFCBAA CPD forums

Trade law expert Andrew Hudson shares a roundup of matters discussed at recent CPD forums throughout Australia.

A version of this article was first published in the print edition of The DCN for August 2024.

The migration of certain birds is an annual event. In the same spirit, the International Forwarders & Customs Brokers Association of Australia (IFCBAA) and its predecessor member associations have been conducting continuing professional development (CPD) forums for licensed customs brokers (LCB) and others in the supply chain.

The CPD forums were introduced following the Australian Border Force (ABF) mandating CPD obligations for LCBs and succeeded other legal information sessions conducted over the past years in the industry.

This year the CPD forums have been conducted by IFCBAA alongside other industry events including the National Conference in Cairns, information sessions focused on the work of international freight forwarders and operators of premises licensed by the ABF, as well as events aimed at improving relationships between young professionals in industry.

Since their inception, the CPD forums have provided legal updates and commentary on related issues both in Australia and internationally. The updates contribute to the CPD points required by LCBs. Several sessions are provided online but there are also the annual CPD forums conducted in each state, which take place on a face-to-face basis.

The forums include presentations by IFCBAA members and employees together with presentations on current practical issues from border agencies such as the ABF, the Department of Agriculture, Fisheries and Forestry, the Anti-Dumping Commission, Crime Stoppers and the Department of Climate Change, Energy, the Environment and Water.

The face-to-face sessions also enable IFCBAA members in attendance to meet colleagues and government representatives in person. The ability to meet IFCBAA members and those government representatives in person and to conduct wide-ranging (and often entertaining) discussions is invaluable. Many issues that appear to be difficult can be advanced or resolved through these meetings.

This year’s CPD presentations continue to focus on current legal and international trade issues relevant to the business of IFCBAA members, both now and in the immediate future. The Victorian CPD forum has already been held with others taking place in Sydney, Brisbane and Perth through the rest of August and early September.

A summary of some of those issues could be useful for wider consideration.

Additional conditions and amendments to relevant legislation for LCB

In the previous edition of the DCN, the article ‘Further tightening of the regime for licensed customs brokers’ addressed the final drafts of the additional conditions (ACs) being added to the licence conditions of LCBs and the proposals for amendments to the legislative framework for LCBs under the Customs Act 1901 (Act). The ACs have now been finalised and the bills containing the amendments to the legislative framework have been introduced to the Federal Parliament. Those ACs are also described in the Australian Customs Notice 2024/21.

The industry had engaged in discussions on earlier drafts of the ACs and the concepts behind the bills at some length through the Compliance Advisory Group, an advisory body to the National Committee on Trade Facilitation.

Discussion on the final versions of the ACs and the content of the bills formed a large part of my session. While recognising the rationale for the changes, several issues were raised which will require close attention.

The first of those issues is the specific extension of some of the ACs to apply to those working offshore in the operation of an LCB, including those who have access to the ICS such as compilers, classifiers and those completing ‘community protection questions’.

Such persons are now being subjected to the same requirements as those doing similar jobs in Australia. This requires the provision of adequate identity information as required by the ABF, the application of the ‘fit and proper’ test and the removal of such offshore parties from the operations of an LCB who are convicted of the equivalent of a ‘prescribed offence’ in their jurisdiction. The theory is consistent with our requirements in Australia, but the practice may be more difficult.

The second matter requiring attention is the removal of the requirement that a nominee of an LCB must be an employee of an LCB. The Act currently requires nominees to be employees and many in the industry have complied with that requirement. However, a practice has evolved in the industry in which nominees are retained as contractors to the LCBs, which has not been the subject of the ABF compliance action. The amendment to the Act would remove the requirement for the nominee to be an employee and would allow nominees to be retained as employees or contractors.

There are concerns that those who had developed business practices with nominees as employees will be disadvantaged. There are also concerns that nominee contractors may receive fewer benefits compared to those who are appointed as employees and that the LCBs may try to press liabilities on contractors as being directly liable as opposed to the LCB being vicariously liable for an employee nominee.

Recent decisions

Several recent decisions were discussed, including the following interesting outcomes.

Firstly, a decision of the Australian Administrative Tribunal (AAT) as to whether certain imported pipes fell within the classification of ‘line pipe of a kind used for oil or gas’ making them entitled to duty-free entry. The decision was that the line pipe exclusively used for fire protection sprinklers did not fit the requirement for duty-free entry.

Secondly, some contrasting AAT decisions on whether goods are entitled to be the subject of Tariff Concession Orders (TCOs) which entailed review and discussion of whether locally produced goods were ‘substitutable goods’ to the goods subject of the actual or proposed TCOs. This included discussions on the generally accepted tests on where goods are, in fact, substitutable.

Thirdly, a recent decision in the Federal Court on the liability of the operator of premises licensed by the ABF to amounts equivalent to customs duty that would have been payable on goods unable to be accounted for to the ABF. In most cases, liability for that amount of equivalent duty is almost ‘absolute’. However, the Federal Court found that the ABF and the AAT had not afforded the operator of the premises procedural fairness by declining offers to enter and sight the premises and how the goods could be present or mitigating circumstances against liability. This has been returned to the AAT for a further decision.

There was also discussion regarding several decisions on the expanded ‘autonomous sanctions’ regime in Australia. In one decision, the Federal Court rejected an application by a Russian citizen to be removed from the Department of Foreign Affairs and Trade’s designated list of persons subject to sanctions. Other decisions included declarations that contracts could be voided as they would have required sanctioned actions.

And finally, a string of cases in the AAT and the Federal Court concerning the refusal to renew the regulated air cargo agent status of a member of the industry whose decisions included applications for ‘stay orders’ and ‘suppression of identity’ orders. These issues are also relevant to actions being taken by the ABF against some LCBs and operators of premises licensed by the ABF.

New legislation

There was a brief discussion of some relevant developments. This included the following legislation.

• The new AUKUS legislation previously covered in the June edition of the DCN.
• The passage of the Crimes Legislation Amendment (Combatting Foreign Bribery) Act 2024 to come into effect in September 2024, which would extend the current provisions prohibiting bribery so that parties need to implement adequate procedures to prevent foreign bribery. This will require the creation and maintenance of new internal policies.
• The legislation described above will change the regulatory framework for LCBs.
• The legislation to remove ‘nuisance tariffs’ and the associated Australian Customs Notice 2024/17.

CPD forums can be fun!

CPD for LCBs is compulsory (as it is for lawyers and other professionals) and often takes up what would otherwise be ‘free time’ for LCBs. However, the forums and other educational opportunities are a valuable contribution to LCBs and a great opportunity to meet industry colleagues and have direct discussions with regulators.

Contact us

If you are an individual or Australian business and would like to discuss how the recent decisions or new legislations could impact your business, please contact a member of our Customs and Trade team.