Hilton and CEO of Customs

[2001] AATA 667

DECISION AND REASONS FOR DECISION [2001] AATA 667

ADMINISTRATIVE APPEALS TRIBUNAL      )

)     No  N2000/1804

GENERAL ADMINISTRATIVE DIVISION          )          

Re      MARCEL  HILTON

Applicant

And    CHIEF EXECUTIVE OFFICER OF CUSTOMS

Respondent

DECISION

Tribunal       Senior Member M D Allen

Date11 July 2001

PlaceSydney

ADMINISTRATIVE APPEALS TRIBUNAL  )         No   N2000/1804

)  
GENERAL ADMINISTRATIVE DIVISION     )

Re:       MARCEL HILTON
  Applicant

And:     CHIEF EXECUTIVE OFFICER - CUSTOMS

Respondent

DECISION

Tribunal              Senior Member M D Allen

Date  11 July 2001

Place                   Sydney

DecisionFOR the reasons given orally at the conclusion of the hearing in this matter, the decision under review is AFFIRMED.

(Sgd)  M.D. ALLEN

.............................

Senior Member
CATCHWORDS

CUSTOMS  -  Application for Customs Brokers Licence.  Whether Applicant had required experience.  Experience must encompass all the duties of a Customs Broker.  No power to grant a restricted or employee only licence.

Customs Act 1901 - subs183CC(2)

Re Zacharia and Collector of Customs 19 AAR 390
Davies v Australian Securities Commission and Another 131 ALR 295

REASONS FOR DECISION

Senior Member M D Allen

1. At the conclusion of the hearing of the above matter the terms of the decision intended to be made and the reasons therefor were stated orally. After service upon the Applicant of a copy of the decision that was in fact made, the Applicant pursuant to Sub-section 43(2A) of the Administrative Appeals Tribunal Act 1975 requested the Tribunal to furnish to the Applicant a statement in writing of the reasons of the Tribunal for its decision.

1. The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service.  Whereas those oral reasons may reflect the inelegance of an extempore decision, they are in fact the reasons for the said decision.

1. The said transcript is annexed hereunto and furnished to the Applicant and to the Respondent as it is the reasons for the Tribunal's decision.

I certify that this and the preceding page are a true copy of the decision and reasons for decision herein of:

Senior Member M D Allen

Signed:         
          ..................................................................................……………………………….

Associate

Date of Hearing  11 July 2001
Date of Decision  11 July 2001

Solicitor for Applicant                  Applicant was self-represented
Solicitor for Respondent            Ms V Masters, Australian Government Solicitor

DRAFT DECISION  

ADMINISTRATIVE APPEALS TRIBUNAL

Matter No N2000/1804
By M.D. ALLEN, Senior Member
HILTON and CHIEF EXECUTIVE
OFFICER OF CUSTOMS
SYDNEY WEDNESDAY, 11 JULY 2001

MR ALLEN: By application made the fourth day of December 2000 the applicant sought review of a decision by the respondent, the Chief Executive Officer of the Customs to refuse to grant to him a licence as a customs broker. The basis for that refusal was that the National Customs Brokers Licensing Advisory Committee had advised that the applicant should not be granted the said licence. The reasons are set out in some more particularity in document T8 of the documents prepared for the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975. In that letter it is said:

The Committee has reported to me that your responses to questions at interview and their assessment of your knowledge and appreciation of matters relating to the normal duties of Customs Brokers indicated that they could not be satisfied that you had acquired the necessary experience.

The interview referred to took place at Sydney on 30 August 2000 and the transcript of the said interview became exhibit R2 in these proceedings. The qualifications for the grant of a licence as a customs broker are set out in section 183CC of the Customs Act 1901 as amended. Subsection (2) of section 183CC reads:

For the purposes of subsection (1), an applicant shall be taken to be qualified to be a customs broker if, and only if:

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

(b)he has acquired experience that, in the opinion of the CEO, fits him to be a customs agent.

I would pause to say that the wording of the section is experience that in the opinion of the Chief Executive Officer fits him to be a customs agent.  It is not as submitted by the applicant experience at large but rather the specific experience adjudged by the Chief Executive Officer of Customs to fit him to be a customs broker.  As to other matters namely the applicant's qualifications and that the

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applicant is a person of integrity those were not in dispute.  The simple dispute was as to the level of the applicant's experience.

In passing I would refer to exhibit A3 which is a certificate granted to the applicant by the Customs Brokers and Forwarders Council of Australia Incorporated showing him to be a licentiate member of that particular body. In exhibit R1 the respondent's outline of submissions there are documents annexed thereto including a letter dated 7 February 2001 from the Customs Brokers and Forwarders Council of Australia Inc under the signature of its Executive Director a Mr Morris.  That letter says inter alia that Mr Hilton's status is now covered within the concept of a student member and that the licentiate membership category no longer existed.

I can only say that exhibit A3 gives the lie to that and it is unfortunate that such a body such as the Customs Brokers and Forwarders Council and its executive director cannot exercise more care in issuing documents which deal with people's qualifications and indeed livelihood.  The document also, I might mention makes reference to the applicant becoming an associate member whereas it is clear from the other documents which accompanied that letter that either under the rules for incorporation of the council which existed from 7 September 2000 or the earlier incorporation rules there is no such category as an associate member.

Either way I have proceeded to consider this application on the bases that the applicant is a licentiate member and as set out in the letter a licentiate member is a transitional process from student to associate which I undertake to really mean an affiliate member which carries a requirement that the applicant hold a customs brokers licence.  In other words it's an intermediate state and as said before it is clear that Mr Hilton has passed examinations at a technical and further education college which gives him an academic qualification as a customs broker.

However, that is not the only qualification because as pointed out in paragraph (b) of subsection (2) of section 183CC he must also acquire experience which fits him to be a customs agent. The acquiring of experience sufficient to fulfil the opinion of the CEO that a person is applicable and fit to be a customs agent was set out in the earlier Tribunal decision re Zacharia and Collector of Customs 19 AAR 390, at 392, there the Tribunal said, having taken evidence and I quote:

Up until 1986 applicants for an agent's licence were interviewed by the Committee to discern the level of the applicant's practical knowledge.  If the Committee found that

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an applicant, although academically qualified, displayed a lack of knowledge of what an agent actually does, the Committee invariably recommended that the person not be granted an agent's licence.

The Committee found this particular method of determining whether a person had the requisite experience to be time consuming and inefficient.  Accordingly it devised a form of national examination designed to elicit a fair measure of the practical knowledge of the person seeking to hold a Customs agent's licence.  This examination (as I have said) is now conducted by the Customs Brokers Council of Australia Inc.  Examination questions are set and marked by persons with wide experience in the industry.

Mr Stubbings made it clear, however, that passing the national examination was not the exclusive measure of practical experience.  Where a candidate has not passed the examination, the Committee will question an applicant so that it can be satisfied as to whether or not he possessed the requisite experience.

It seems clear of course that this is exactly what happened in Mr Hilton's case, he has the academic qualifications being the TAFE course, he has not sat for the examination and the transcript of his interview with the licensing advisory committee sets out reasons why he has not sat for that examination.  However, the committee in effect gave him a viva voca examination to ascertain whether he had the requisite experience and considered that he had not.

As stated above exhibit r2 is the transcript of the interview between the licensing advisory committee and the applicant.  The applicant does not agree that the transcript of that interview is totally correct but did concede passages as follows.  At page 2 he said:

… I'm prepared to put my cards down on the table.  I have never worked in a typical customs brokers office.  I have worked for 3 freight (forwarding?) holding companies and generally I've acquired what a customs broker does or doesn't do.

He then further said at page 32 of the transcript of the interview:

No look the only thing that I have to say is what I have said in the beginning.  I have no expertise as a customs broker and the reason, my motive for wanting to have a customs brokers licence is in order to secure employment in an area that has nothing to do with customs brokers.  And I don't want to create an impression that I'm as good as any customs broker I'm not.  I've no expertise as a customs broker I'm not claiming that …

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He then followed a sentence with which the applicant disagreed with the transcript and I ignore it for the purpose of these decisions.

At page 34 of the transcript, and I do accept this as a correct rendering, the applicant repeated again:

I'm not qualified to be a customs broker …

In evidence to the Tribunal today the applicant did state:

I certainly have the expertise of the average customs broker who does nothing but classifying and compiling.

He then stated to the effect that he had no intention of practising as a customs broker per se but the qualification of a customs broker would allow him to gain employment as an employee in a custom brokers office concentrating on where his expertise lies, namely in classifying and compiling.  It might be mentioned in passing that the applicant until he was retired was an experienced classifier in the Department of Customs.

However, as I understood his evidence today he again conceded he didn't have experience in all the elements and duties a customs broker may be required to perform.  Those particular duties, etcetera, were again set out re Zacharia supra at page 393 and I see no reason to recapitulate them here.  However, at page 393 Deputy President McMahon said:

It is true, as Mr Heazlett pointed out, that not all agents are called upon to take advantage of their experience in all of the above fields every day.  Nevertheless there is no restricted form of customs agent licence.  The grant of a licence is a recognition that the applicant should be able to perform satisfactorily in all the fields.  As Mr Heazlett said, he does not know from day to day what problems will arrive on his desk.

Although it is only by way of an analogy and the analogy should not be taken too far, I refer to the comments by Hill J in Davies v Australian Securities Commission and Another 131 ALR 295, at page 306. There his Honour said:

Thus the characteristics required to show fitness as a tax agent were expressed by Davies J in Re Su and Tax Agents' Board, South Australia 82 ATC 4284 at 4286 as requiring that person to be:

… a person of good reputation, has a proper knowledge of taxation laws, is able to prepare income tax returns competently

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and is able to deal competently with any queries which may be raised by officers of the Taxation Department.  He should be a person of such competence and integrity that others may entrust their taxation affairs to his care.  He should be a person of such reputation and ability that officers of the Taxation Department may proceed upon the footing that the taxation returns lodged by the agent have been prepared by him honestly and competently.

I note that the applicant has stated that he has no intention as practising as a customs broker on his own account.  As pointed out in re Zacharia supra however there is no subcategory of licence, that is to say that if the applicant were to be granted a customs brokers licence he is held out as against the world as fit to undertake all the duties of a customs broker.

It is clear that on his own admissions the applicant does not have experience to equip him to perform all of the duties required to be performed by a customs broker, there being no form of sublicence or licences of employee only.  I have no option but to affirm the decision under review.

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