Outgunned
An article published in the Sydney Morning Herald on 26 November 2018 titled"Outgunned: Federal corruption agencies not up to the task" suggests ongoing internal conspiracies within the Australian Border Force (ABF) with unauthorised use and access to import cargo database records.
The allegations concerned an ABF officer checking on 472 occasions the status of a container of clothes he knew to contain drugs and alerting the importer once he became aware that the ABF had made a detection.
This follows similar accusations stemming back to 2013 which forced the ABF to introduce"integrity testing" of officers and tightened up controls and legislation on the use of systems by industry personnel.
The ABF uses the Integrated Cargo System (ICS) to risk assess cargo crossing the Australian border and intervene where necessary to protect the community and economy.
The ICS allows registered users in industry to legitimately track the movement of goods to ensure that efficient logistics processes can be managed. However, there is a risk that individuals may abuse access to cargo movement information to track illicit goods to determine whether law enforcement authorities are interested in certain containers and to pass that information to criminal groups.
During our Spring 2018 CPD & CBC – Border and Biosecurity Compliance Program,Freight & Trade Alliance (FTA), Department of Home Affairs (representing the ABF) andHunt & Hunt Lawyers explained the obligations, risks and ethics faced by individuals in industry with direct ICS access - to listen to the recording, please click HERE.
Also refer Targeted Consignments - Rights & Responsibilities (6 CPD Points - Stream B - FTA069)
Penalties for mis-use of information
It is imperative that ICS users do not share login access or digital certificates with another person. The Department of Home Affairs representative noted that users viewing cargo status via the ICS Cargo Interactive screens (yellow and blue screens online direct to the ICS) each have an individual Digital Certificate and that every action (including viewed screens) is logged for investigation purposes.
Penalties for the mis-use of ICS access are significant, punishable by a maximum penalty for two years, or 120 penalty units ($25,200), or both.
In general terms, we understand that the ABF will not consider that a disclosure of restricted information contravenes subsection 233BABAF(3) where the disclosure occurs in, and is necessary to, the ordinary course of business. Factors to be considered is whether the recipient of the disclosed information has a legitimate and direct commercial interest in the cargo to which the information relates, the information disclosed is relevant to the person's role in the cargo supply chain and the person disclosing restricted information has verified the credentials of the recipient of this information.
To assist ICS users in managing compliance, a guideline has been released today 3 January 2019 by the ABF outlining when they will consider the disclosure of information to contravene the above penalty provisions associated with subsection 233BABAF(3) – to view the guidelines please click HERE.
What about when extensive delays are experienced?
While the release of the guidelines will undoubtedly be of assistance to industry, a difficult predicament remains for licensed customs brokers and freight forwarders on how to advise importers of delays when cargo is held by the ABF for extensive periods of time.
The ABF has stated that approximately 90% of containers selected for examination are x-rayed at Cargo Examination Facilities (CEFs), released within 30 minutes and immediately returned to the stevedore. The remaining 10% may incur some further form of delay as they are selected for more detailed physical examination.
An ongoing issue faced by service providers in these circumstances is when to book a timeslot. Most service providers will take a conservative approach and book a timeslot for the third day of free storage offered by stevedores. In most instances this planning is adequate, unless the container is one of the 10% not immediately return from the CEF to the stevedore.
The dilemma is when an extended delay is experienced, when should service providers book the advanced transport slot at the stevedore, arrange cartage and delivery at the stevedore while having no idea when the ABF will release the cargo.
It is also questionable whether industry and the ABF currently adequately manage this scenario and the "covert" nature of the operation. Given that less than 3% of goods are actually held for screening, and then only 10% of those are not released within 30 minutes, any noticeable delay will be highly suggestive of ABF intervention.
The only way that the ABF can truly manage covert examinations in all scenarios would be to hold all import containers for 10 days, that way nobody will know what containers they have selected.
Trust is not an option
Realistically, we need a better way forward. FTA has suggested to the ABF that the Australian Trusted Trader program may supply the answer.
ATT service providers should have access to appropriate contacts within the ABF to ask the likely timeframe for release. It is possible that the cargo has prohibited imports. Perhaps this is when the ATT service provider can assist the ABF in managing a covert controlled delivery rather than being left scratching their head wondering what is going on and what to tell their importer client.
If this concept has legs, there would clearly need to be disciplines associated with the process. Contact would only be made in prescribed circumstances, perhaps with a trained and accredited representative(s) of the ATT service provider authorised to engage with the ABF.
Disappointingly the ABF has refused multiple requests for engagement on this proposal, justifying their position by:having improved processes in response to the recent Ombudsman's review; andstating that they have examined this proposal internally.
At the most recent bi-lateral meeting with FTA and the ABF, it was stated that at this stage the proposal will not receive any further consideration.
Let's hope that the fact that the ABF has identified internal conspiracies with their own ranks has not shattered the goal of achieving a genuine trusted partnership with industry.
|
|