Innocent third parties who get caught up in Australia with illegal drug logistics, such as employers and transport operators, do not appear to fear the threat of having their property seized by the authorities.
Seizure by the authorities of property belonging to third parties who were unwittingly caught-up in drugs logistics came to the fore recently when William McSwain, United States Attorney for the Eastern District of Pennsylvania, said agents from U.S. Customs and Border Protection executed the seizure warrant for the container ship MSC Gayane. The ship was the scene of a June 18 bust at the Port of Philadelphia where officers found nearly 20 U.S. tons of cocaine with a street value of nearly $1 billion.
Upsurge in illegal drug crime
Australia, and southeast Asia, are currently experiencing an upsurge in seizures of illegal drugs, particularly methamphetamine in all its forms. As previously reported, an increase in the frequency and volume of meth seized by the authorities is an indicator that more meth is being produced or smuggled into Australia.
Australia has state and federal property forfeiture laws relating to assets used to smuggle drugs, although they tend to be directed at people who have committed criminal activity. For instance, Australia’s Proceeds of Crime Act 2002 (as updated) has several official objectives. One of those objectives, under section five of the Act, is to deprive persons of the instruments of offences. An instrument in this context is, under s329(2), property “used in, or in connection with” an offence. It’s also property that is intended to be used in connection with an offence and it even covers situations where no one has actually been convicted.
According to the Australian Institute of Criminology, Australia’s unexplained wealth regime has “not been greatly successful” and has only recovered relatively small amounts.
FreightWaves spoke to several executives in different sectors of national and international trade to find out how they view the possibility of having their assets seized as a result of crimes by other people.
They were, generally, more annoyed about the cost and inconvenience of disruption, rather than being worried about the possibility of having assets seized.
FreightWaves first spoke to an ocean shipping executive.
“Shipping lines don’t open the container. We carry based on what is declared for the container. In the event of a drug bust, the master and the crew are questioned. They’ll check the seals to see if they are damaged. Then there’s a criminal investigation. If it’s one container, they’ll just unload the container and release the ship. All the ship does is accept a box and make sure that the stowage and stability is right,” the ocean shipping executive said.
Customs brokers potentially have a lot to lose as they are the people who clear a consignment for entry into a given in country. In Australia, they are licensed by the Australian Border Force (ABF) and there are a variety of conditions attached to that license. Breach the license conditions too seriously, or too many times, and a customs broker will lose his or her licence and therefore his or her livelihood.
But customs brokers don’t seem to be too worried that they will suffer as a consequence of action by the authorities. Rather, it is the lack of certainty, cost, payment prospects, delay and the pressure from customers, that worries them.
“It’s possible the ABF will ask for documentation. They might come onto your premises. The ABF has the right to ask for information and to carry out a s77(G)”, said one customs broking executive referring to the ABF’s right to carry out an inspection of a customs-controlled warehouse.
“It’s the lack of clarity when the cargo will be delivered. The client pushes us for delivery, but it’s in the licence obligations. You cannot say. You have to advise your clients that its on ‘border hold.’ Once it’s gone into border hold it’s like a black hole,” he says.
“But the client expects you to have all the answers,” he sighed.
FreightWaves also had a chat with a lawyer, well-known for representing customs brokers. He gave some insight into the general law.
“There are laws that can make customs brokers liable for giving false information. The defence is if the false statement was reasonably made. But I’ve never seen any action taken against a service provider who unwittingly helped with an illegal drug importation,” the lawyer said.
The lawyer added that, potentially, customs brokers might have to give evidence at trial. They may also be asked by the ABF to cooperate prior to an illegal drug importation to give the impression that all is well.
Finally, FreightWaves also spoke to Peter Anderson of the Victorian Transport Association (VTA). The association represents trucking companies in the Australian state of Victoria.
“There are no trucking consequences,” he explained, “and I can tell you that from first-hand experience.”
“I’ve had people, drivers, dealing in drugs. The ABF came in and arrested a driver and his associates. What they [the ABF, local police] want is their employment records. All they want from us is the employment records. They also check us out but that’s it,” Anderson told FreightWaves.
“The cops are always looking for organised crime. They have good intel and they do their work before they strike. There’s no consequence for the company that’s employed the person.”