The five fingers of the law

July 15, 2011 1:49 AM

I had a package misclassified by Australian Customs and seized on that basis. I can apply for its release but apparently they are forced to sue me if I do so. Wtf?

Laser pointers of >1mW are prohibited items in Australia so I made very sure to buy those that were <1mW; my Kelpie will accept nothing less for entertainment. I just got a letter saying they're seized as being suspected prohibited items, namely for being >1mW. I'm pretty sure they just went "laser pointers, yoink" regardless of the actual output power.

Applying for the release is easy but it means that they are "statutorily required" to being court proceedings against me to seize the goods again, and they are generally quite confident about winning most such cases and that I will end up wearing ~$400 court costs on top of the lost items (about $35 worth).

Does anyone have experience with dealing with Australian customs? Obviously I'm going to call next week and ask some pointed questions but if someone has dealt with this BS before, I'd like to hear your experiences. Specifically, has anyone had any success in getting them to more-carefully inspect goods?

posted by polyglot to law & government (8 answers total)

I have no personal experience but a bit of quick googling (and more than a few years spent working for Australian public service departments) has led me to say this:

Ring them on Monday to/and apply for release. Tell them that the wattage is of a legal level, and as you can buy 1mW keychain pointers from your nearest Dick Smith store (and they are in stock, in country towns near to me, so they're not exactly rare), you are not happy that your package has been seized.

I don't get the "statutorily required to bring court proceedings" bit - if you have applied for release and it has been granted, then Customs have agreed they are legal. Are you sure you read the letter correctly? And more importantly, is the wattage specified on the label?
posted by malibustacey9999 at 3:02 AM on July 15, 2011

This is probably a standard letter, rather than a specific threat to take action against you. Given that the goods are permitted by their own regulations, I would call them, state that the laser pointer is legally permissible as it is less than <1>
If you get any sort of runaround or bollocks, tell them you're going to send a letter and put the phone down. Then send a letter to:

National Manager
Trade Policy and Regulation Branch
C/- Firearms and Weapons Section
Australian Customs Service
5 Constitution Avenue
CANBERRA CITY ACT 2600

and also send a copy to:

Australian Customs & Border Protection,
Complaints and Compliments Management Unit,
Reply Paid 86251, MELBOURNE, Vic 8060

then sit back and wait. I have a theory that modern organisations are so used to doing everything by phone that they can't really deal with pointed letters anymore. They freak out and react really quickly when things are on paper, I've found.
posted by Happy Dave at 3:04 AM on July 15, 2011

They should be labelled but of course I can't tell because I've not seem them. I suspect that they merely do not believe the label or have a "seize all lasers" policy despite the actual regulations. I'll be doing some fishing on Monday regarding that.

Quoting from the letter:
"1. A claim for goods seized may be lodged ..."
"2. If a claim for goods is made, Customs and Border Protection are required to commence legal proceedings."
... and some other terms that indicate they're forfeited if no claim is made in 30 days.

And on the Explanatory Notes page, "Making a claim does not mean the goods will be automatically returned to you. Furthermore, if you do make a claim and are unable to obtain an import permit, you should be aware that the Australian Customs and Border Protection Service will be statutorily obliged to commence legal proceedings in order to obtain a condemnation order."

Later, it says "If you are confident that your goods have been incorrectly described on the Seizure Notice or you dispute the grounds for seizure then you may wish to lodge a Claim for Return of Goods Seized". Obviously, that's me, but the rest of the document implies that court proceedings are the only offered means of challenging the classification. My cost of going to court (just being there) is much greater than the cost of goods and that's not (so far as I understand) a recoverable cost under AU law even if I am successful.

So there are two forks to this:
- if they are normally prohibited, I can apply for an Import Permit and I don't think I have the necessary grounds to obtain one for >1mW lasers anyway
- Import Permits are not available (so far as I can tell) for items that are not prohibited.

On preview, Happy Dave I do like your answer very much, and thanks for posting the addresses. Yes, the letter I received is just notice of seizure and there are no proceedings threatened unless I make a claim.
posted by polyglot at 3:18 AM on July 15, 2011

This page discusses the importing of laser pointers and includes the address for the National Manager that Happy Dave gave above. It also has an application (pdf) for permission to import the pointers, which I think is required not just for prohibited goods but for all restricted items. It allows you to attach a copy of the seizure notice if you got one already, which it sounds like you did. You might fill it out and send it to that address or at least have it on hand for reference when you contact them.
posted by josyphine at 4:21 AM on July 15, 2011

"Legal proceedings" doesn't necessarily mean going to court. It sounds like there's a process -- basically, if you challenge, they review. This doesn't mean that they're bringing proceedings "against [you]."

If the lasers are allowed and were seized in error, they give them to you. If they were prohibited, they condemn them, which means you don't get them back.

I think you're reading a threat into this letter that isn't there. But, I'm not an Aussie lawyer.
posted by J. Wilson at 5:09 AM on July 15, 2011

To me, that reads that if you make a claim, and they are still deemed non-importable, they will begin the process of getting legal rights to destroy them.
posted by jferg at 8:01 AM on July 15, 2011

I got one of those letters when I tried to import some lasers that were above the 1mW threshold. I ended up having a phone conversation and exchanging a couple of emails with someone or other who was helpful and happy to discuss the edge cases of what the prohibition covers and doesn't cover - nobody seemed out to get me, they just wanted to make sure I didn't import a prohibited item without the correct clearances. Assuming your letter is the same as the one I got, there's a phone number and a contact email address somewhere in there. Give them a hoy, explain the situation, and unless you hit someone on a bad day I'd bet it can all get sorted out without too much hassle.

(fwiw, the 1mW restriction only applies to "laser pointers", which are defined as being hand held and battery powered. a laser that doesn't meet both of these criteria has no restrictions whatsoever, or at least that was the case a couple of years ago. so a hand held laser that's mains powered? knock yourself out!)
posted by russm at 6:58 PM on July 15, 2011

So I called Customs and they claim that they test all incoming laser pointers for output power and they're only confiscated if they fail the test. Apparently, I cannot request a copy of the test report (!) but I can ask for a re-test.
posted by polyglot at 8:50 PM on July 17, 2011