Australia: AAT decision a caution for those holding licences from Customs

Customs Trade and Transport Update
Last Updated: 10 March 2013
Article by Andrew Hudson

The very recent decision of the Administration Appeals Tribunal ("AAT") in B R Williams Customs and Freight Forwarding Pty Ltd v the CEO of Customs represents a rare example of consideration of the rights of the Australian Customs and Border Protection Service ("Customs") to cancel the licence of a customs broker following the recommendation of the National Customs Brokers Licensing Authority Committee ("NCBLAC").

As the legal adviser to the CBFCA I have been asked to provide some commentary on the decision and some potential consequences.


At the outset, even though the licence of the customs broker was reinstated by the AAT, all licensed customs brokers need to be careful not to consider this decision as evidence of any weakness in the rights of Customs to take action under Part XI of the Customs Act 1901 ("Act") or any vote of no-confidence in the role of NCBLAC. There were a number of factors at work in the decision which the AAT found mitigated against the cancellation of the licence in the first place and, as a consequence, the AAT ordered the licence to be reinstated and directed that a reprimand be issued against the customs broker.


In making the decision to recommend and cancel the licence of the customs broker, both NCBLAC and Customs pointed to a number of past errors and breaches of relevant regulations by the customs broker. These included movement of goods under customs control without authority (for which the customs broker had previously been issued Infringement Notices which had been paid), several errors in tariff classifications in import declarations, the failure to use funds provided by the client of the customs broker solely for the purposes for which it had been provided and making payments to Customs by the Customs EFT system which were subsequently dishonoured (and for which the customs broker's EFT entitlements were withdrawn). Some time after these events, Customs requested NCBLAC to provide a report which could be the precursor to the taking of action by Customs against the licence of the customs broker. NCBLAC came to the view that the licence should be cancelled in main part due to the issues associated with the movement of goods under Customs control without authority, the mishandling of client funds, the failure to honour payments attempted to be made by EFT and the view of NCBLAC that the cumulative effect of all of the errors and deficiencies in practice suggested that the customs broker would not comply in the future and action was necessary to protect the revenue and in the public interest.

During the period of the investigation by NCBLAC, Customs renewed the licence of the customs broker in July 2012.

Customs acted on the report and recommendation from NCBLAC and moved to cancel the licence of the customs broker. The customs broker then sought a stay in the cancellation of the licence pending an appeal to the AAT. Customs eventually conceded to such a stay and the matter proceeded to an urgent hearing before the AAT.

As mentioned above, the AAT ultimately decided that the grounds cited in the decision by NCBLAC and Customs did not support the cancellation of the licence.


Some relevant aspects of the AAT decision were as follows.

  • The AAT took the view that many of the events in question occurred some time ago, some had already been penalised by way of Infringement Notice or revocation of the EFT privileges of the customs broker. Further, the AAT noted that following the errors identified by Customs, there was no further evidence of breach or likelihood of breach notwithstanding close attention by Customs to the operations of the customs broker.
  • There were other mitigating factors relating to the conduct in question by the customs broker including the illness of various employees, the overwork of other employees and difficulties in the conduct of one client which caused many of the problems.
  • The customs broker had provided a bond to Customs to guarantee future payments by the customs broker.


  • Any decision of any Tribunal or Court should be treated with caution given that the overall majority of such decisions will depend upon the particular facts of the case before the Tribunal or Court. However on occasions, clear and binding statements of principle appear in judgments.
  • There is the probability that Customs may appeal the decision.
  • As mentioned earlier, the decision should not be seen as a fatal blow to the power of Customs to take action against customs brokers under Part XI of the Act or as in any way adverse to the findings or operations of NCBLAC. The AAT was at pains to endorse the qualifications and expertise of NCBLAC and its members. However, the AAT came to different views as to the consequences of the acts.
  • The customs broker was issued with a reprimand which is still a significant consequence. Clearly, if the customs broker does not improve its conduct in the future then the issue of the reprimand and circumstances may mitigate in favour of more serious action by Customs.
  • We now have a very different environment within which licensees (whether they be customs brokers or the operators of licensed premises) operate. Customs has imposed significant additional conditions on such licensees and Government has made it clear that it will be significantly tougher on those in the private supply chain. The long delay between identification of errors and cancellation may not be repeated.
  • Given the new environment within which licensees operate and their extensive new conditions I think it is fair to expect that Customs will act more quickly in taking action against those that are believed to be in breach of their licences or the conditions associated with those licences.
  • The decision does raise the interesting issue of the use by Customs of Infringement Notices which are subsequently paid. The relevant provisions of the Act state that if an Infringement Notice penalty is paid, the liability of the person to the offence specified in the notice taken to be discharged, further proceedings cannot be taken against the person for the offence and the person is not regarded as having been convicted of the offence (see section 243ZK of the Act). However, in these proceedings it appears that both NCBLAC and Customs had identified the movement of goods under Customs control without authority (for which Infringement Notices had been issued and paid) as some of the grounds for action against the customs broker. Although this matter was not specifically raised by the decision of the AAT it may not appear to be within the spirit and intent of the Act for such Infringement Notices to then be used as evidence against a licensee in these types of proceedings. This may certainly give licensees cause to think carefully about merely paying Infringement Notices if the relevant alleged offences could not be used against them in future. In those circumstances, we would seek clarification both from Customs and from NCBLAC as to their intended treatment of events which have led to the issue of Infringement Notices which have been paid and whether, in fact, both Customs and NCBLAC believe that such events can, in fact, be the subject of further proceedings under Part XI of the Act.


In the circumstances, we would continue to recommend that licensees (whether customs brokers or those operating licensed premises) should continue to exercise extreme caution in the way in which they conduct their businesses, continue to observe the terms of the Act, observe the terms of the conditions associated with their licences and respond with extreme caution to suggestions from Customs or NCBLAC that they are in breach of their obligations.

All licensees and others receiving Infringement Notices should also be exercising care in responding to those Infringement Notices, especially if they are now to be used against them by Customs for other purposes.

I will be presenting on this topic at State Conventions of the CBFCA, as part of the CBFCA CPD program and during later member forums throughout the year.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:
  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.
  • Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.
    If you do not want us to provide your name and email address you may opt out by clicking here
    If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

    Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

    Use of

    You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


    Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

    The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.

    By clicking Register you state you have read and agree to our Terms and Conditions