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Imported Cars and Asbestos

Discussion in 'Australia' started by au-yt, Apr 16, 2017.

  1. au-yt

    au-yt F1 Rookie
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    #1 au-yt, Apr 16, 2017
    Last edited: Apr 16, 2017
    Asbestos is dangerous and there is no argument there.
    As I posted the beginning of this story I thought as this going to blow up into a major issue its worth telling the story of a friend so far and its nogotten completely out of hand.
    He Imported a mustang gt350 very low mileage original untouched condition.
    He elected to have the car inspected by an independent Asbestos inspection agency rather than let the Border protection guys touch the car.

    Good Idea he though, The inspector confessed to not being a car person and he thought the job was below pay grade. He was only meant to do a initial scrap not a forensic dig. and spent 10 hours on the initial inspection not including Lad costs

    The inspector found 2% asbestos in the dust under the guards ?(off the Warf In the US methinks)
    The car had all the brake pads removed and confiscated and this including the hard to get new spare set of pads,

    The inspector then cut through the main wiring loom checking the wrap!, he wants the gearbox out to check the clutch and the guards removed for further inspection.
    The cost of the inspection has been many thousands of dollars on top of the taxes.

    Another person the owner has spoken to has had the windscreen removed because the sealant "may contain asbestos" WTF

    The owner has stopped all work and is planning to sue the Inspection company.
    The owner is planning to make a big deal out of this as its completely out of hand.

    Asbestos
     
  2. SPEEDCORE

    SPEEDCORE Three Time F1 World Champ

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  3. moretti

    moretti Four Time F1 World Champ
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  4. SPEEDCORE

    SPEEDCORE Three Time F1 World Champ

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    I dual screen :p
     
  5. au-yt

    au-yt F1 Rookie
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    Please keep all Discussions about F1 int it's dedicated thread. Sorry I was hoping to raise the issue of the misinformed Xenophon introduced nanny state issue.
     
  6. Aircon

    Aircon Seven Time F1 World Champ

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    Yes boss
     
  7. greg246

    greg246 F1 World Champ
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    Lol, you still haven't worked out the Aussie section of Fchat
     
  8. simon klein

    simon klein F1 World Champ
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    ....or humour on aforementioned section.
     
  9. moretti

    moretti Four Time F1 World Champ
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    We're just "well-informed" rabble :p
     
  10. moretti

    moretti Four Time F1 World Champ
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    ..... with the attention span of a gnat :D
     
  11. greg246

    greg246 F1 World Champ
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    I got your joke!
     
  12. simon klein

    simon klein F1 World Champ
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    Difficult wasn't it?.,!
     
  13. Autoart

    Autoart Karting

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    #13 Autoart, Apr 16, 2017
    Last edited: Apr 16, 2017
    Graeme

    THE LEGISLATION

    A quick read of the Act and Regulations suggests to me that Customs have misinterpreted the legislation by having failed to consider the legality of retrospective application of the asbestos legislation to goods manufactured prior to the enactment of the said legislation

    Whilst the legislation seems to operate to include all imports containing asbestos there are some express exclusions and there will be IMPLIED EXCLUSIONS as well.

    Under the Commonwealth legislation Motor Vehicles manufactured prior to 1 Jan 1988 MUST BE APPROVED by the Department of Infrastructure for importation into Australia,

    The essence of that specific legislation is based on the satisfaction of the precondition being the date of manufacture of the car.

    Given legislation concerning Asbestos was introduced in or around 2003 and in the absence of any express provision of retrospective application to goods manufactured prior to 2003 - it is my view that the overall affect of the legislation implies Motor Vehicles deemed to have been manufactured prior to 1 Jan 1988 are not caught by the asbestos legislation.

    It should be noted, that it is my understanding that goods are generally deemed to be " "manufactured" on importation or subsequently.

    In such circumstances the asbestos legislation in my view could be applied to any goods on importation subject to express exclusions.

    However the key difference is that motor vehicles are approved for importation according to their date of manufacture. Accordingly it would follow that if the legislation acknowledges the date of manufacture for certain goods (such as motor vehicles) on Importation then the legislation applicable at the date of manufacture is deemed applicable in the absence of any express provision.

    In my view, the introduction of asbestos legislation subsequent to the date of manufacture should generally not apply retrospectively in the absence of an express provision.

    CHALLENGE TO ADMINISTRATIVE ACTION

    Administrative officers (Customs Officers) have no power to determine the law they must simply follow and apply the law.

    What should occur here is that your friend should write to the Customs Officer responsible for his clearance and request that he or she articulate the grounds for his or her decision to apply the asbestos legislation given he has an import approval for a vehicle manufactured prior to 1 Jan 1988 which precedes the introduction of the asbestos legislation.

    The request should put Customs on notice that should he/she fail to articulate the reasons and the basis for the law relied upon to impose the asbestos legislation to motor vehicles manufactured prior to 1 Jan 1988 that the Officer's act may constitute contumelious disregard for the rights of the importer and a breach of the Customs Officer's obligations pursuant to the law.

    It is also important to include in the request:

    1. Injury has been sustained by the importer to date and that further damages will accrue if the asbestos law has been applied to the importation of motor vehicles manufactured prior to 1988 erroneously.

    2. Given Customs officers in their administrative capacity are not entitled to determine the law as to the retrospective application of the asbestos legislation to motor vehicles manufactured prior to 1988 it is requested that the department seek cogent legal advice from a legal practitioner and on the basis of that advice to articulate the basis for Customs' application of the asbestos legislation according to the law in reply.

    3. That all rights are reserved.


    This approach will shift the onus back to Customs and a failure by the officer or his /her superiors to seek proper legal advice in respect to the importer's specific issue ( Motor Vehicle manufactured prior 1 Jan 1988 ) may expose the department to liability and or an action in Misfeasance in Public Office.

    The role of a Customs Officer is as a conduit for the application of the law and a Customs Officer or any Public Officer ( administrative role) is not in a position to dictate the law on an arbitrary basis . Where a contention is raised by a member of the public to the application of the law, an administrative officer has an obligation to satisfy him/ her self as to the proper (lawful) basis of his /her actions and that includes seeking proper legal advice.

    A failure to take appropriate steps or a disregard of the contention raised could expose a public officer to an action in Misfeasance in Public Office.

    Therefore it is important to corner the public officer by articulating in any request the following that he /she:

    1. acts in an administrative capacity
    2. is required to give reasons and articulate the basis for his/her decision making according to law
    3. That the department seek legal advice on matters raised in contention regarding the adminstrative application of the law
    4. the application of the law on an arbitrary basis may expose an officer or department to liability


    My PRELIMINARY VIEW is Customs have exceeded their powers by failing to consider the date of manufacture of motor vehicles underpins their approval for importation (mandatory precondition) and accordingly disables the application of the asbestos legislation retrospectively to motor vehicles on importation.
     
  14. au-yt

    au-yt F1 Rookie
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    Mike that's exactly the comments I was looking for.
    As I said the situation is out of hand.
     
  15. Autoart

    Autoart Karting

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    Graeme

    If i can be of assistance to you or your friend in this matter please do not hesitate to contact me.

    Your friend needs to raise the question with Customs in a subtle way at least to begin with.

    If that doesn't work and its unlikely it will - then a more confronting tactic must be engaged where the department or the individual officers may feel exposed to consequences either professionally or punitive - but needless to say the approach undertaken must be sensitive.

    In my view the art of negotiation is based on how much fear you can impose on your opponent. Generally Public Officer's have no fear because they are quarantined from adverse consequences or liability

    However, I found from experience you can reverse the role of power somewhat if you make the Officer aware that he/she is no less subject to the rules (but in fact is more so) than you are and that all decision making must be rational and underpinned by logic and probative facts and that speculation has no basis in the application of the relevant statute in decision making in accordance with law.

    If Customs have got it wrong, and it is allowed to continue - the subsequent cost and liability arising from a class action in negligence could be immense for the department.


    Mike
     
  16. au-yt

    au-yt F1 Rookie
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    Mike I will call later to day thank you very much for you insight.
     
  17. SPEEDCORE

    SPEEDCORE Three Time F1 World Champ

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  18. au-yt

    au-yt F1 Rookie
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    The Guy involved is reading my update to ensure its factual but Ive not heard back.Ill chase him up again.
     
  19. au-yt

    au-yt F1 Rookie
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    I have spoken at length with the person involved in this debacle and the saga is nearly over, so in the next few days and he will be sending me a report of what happened to post.
     
  20. gtamerica

    gtamerica Karting

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    For those interested in Imported Cars & Asbestos, the import of cars and parts into Australia has very serious issues to contend with & it has tremendous ramifications for the importation of classic cars into this country. Graeme is referring to my case and I thank him and Michael for their comments.
    The situation is nothing like Graeme has described, it is simply put a legislation that has been in place since 2003 but not enforced. The Australian Border Force conducted Asbestos inspection trials for motor cars in Victoria in October of 2016. I have been in touch with the recipients of those trials and they went badly and very expensively.
    On March 6 the legislation was enforced Australia-wide, this whilst my three cars were en-route to Australia. I had two cars, a 65 Mustang & a 66 Shelby in one container going to Sydney and a 63 Ferrari going to Brisbane. Both containers were redlined one from the US was redlined for Asbestos the other ultimately for quarantine as it arrived from New Caledonia.
    As I had shipped these before the enforcement of this legislation I had few choices offered to me as I was the first to experience this in Brisbane and few others had done so in Sydney. I could find few Customs agents able to offer any advice based on personal experiences. Without going into chapter & verse on this forum I was instructed by my broker that Customs instructions were for an inspection for Asbestos in particular "brakes, gaskets, exhaust and any other hazardous or suspicious materials"
    The Australian Border Force does not carry out any inspections whatsoever, they advise Customs agents that the importer must engage an Asbestos Assessor from a list provided by the ABF on their web site of NATA approved Asbestos specialists. I was not able to conduct a search of these specialists due to a health issue & my customs agents rang 5 specialists, 4 of whom did not want the job as they did not do cars the 5th took the job. Since he was hired by my agent he was working for them & ABF do not become involved until a report indicates a positive asbestos result. My inspection was carried out on April 4. The Bond store where the cars were located disallowed my presence due to Custom’s regulations which I might add has been changed since. I was instructed by my agents to provide two mechanics, tools, trolley jack, axle stands, safety clothing & masks. In addition to the asbestos inspector there were the two mechanics, a representative from Customs/Australian Border Force and a representative from the Bond store.

    My Asbestos inspector I believe had never inspected a motor car prior to his inspection of my two cars. During his 8 hour inspection of my cars he took 18 samples from both cars. Professional asbestos inspectors use a number of sampling methods, two examples are the destructive sample method & the swab method. He chose the destructive sample method despite the pleas of my mechanics not to damage the cars.


    From 18 samples 8 returned positive and went beyond the expected brakes, clutch & exhausts.
    The result of this inspection dated April 5, 2017 I believe goes far beyond the intent of the legislation relating to asbestos in motor vehicles. My rights to care & responsibility for my cars as an owner were not protected by either the ABF/ Customs official, the Bond store nor the Asbestos inspector whose destructive sampling methods vandalized my Shelby in particular despite the pleas of my mechanics.

    I then applied via a Section 71E of the 1901 Customs Act for movement to a properly equipped workshop for further asbestos removal via a newly appointed professional licenced assessor, removalist and hygienists whom I engaged!

    This inspection was carried per custom’s instructions using the positive results gleaned from the first inspection and material removed returned to the Bond store as per customs instructions. There are no processes or procedures in place & each ABF or customs official has a different view of what samples ought to be taken from cars and where or how the asbestos waste once removed should be disposed of.

    I finally received ABF clearance on Thursday May 4 one month after arrival having endured two Asbestos inspections, one with the addition of a licenced asbestos removalist and hygienists, storage, transport and mechanics, etc at a cost of some $14,000 plus substantial damage to the 1966 Shelby GT 350 of some $12,000.

    As the ABF’s instructions were entirely open ended I had good legal advice during this ordeal and also had conversations with the ABF which though helpful did not change matters. I have now lodged a complaint with head office of the ABF and am including various members of Parliament and the Senate in that though I hold little hope there as those same members have shown little interest in the past in the matter of the LCT now protecting no car industry in this country.




    For those thinking of importing cars particularly restored cars let alone highly original cars like my Shelby GT 350 there is much to be fearful of. The Asbestos content of these cars is very high & in places most enthusiasts would not guess. For those interested in Italian cars I would not suggest shipping a car unless it were checked thoroughly. For early Italian cars such as those beginning with an F or M the content is extremely high & the remedy to remove it would be an economic impossibility unless a restoration was contemplated & then I do not know if the ABF would countenance that.


    Terry Healy
     
  21. Horse

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    TLDR




    (Actually, I did, and what a nightmare!!!)
     
  22. au-yt

    au-yt F1 Rookie
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    Terry thanks for the clarification and let us all hope that the lack of procedures gets sorted and no one else on here at least doesn't have to suffer the pain and cost you have endured.

    Graeme
     
  23. SPEEDCORE

    SPEEDCORE Three Time F1 World Champ

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    Thanks for the update. I wish you luck with the compliant.
     
  24. Aircon

    Aircon Seven Time F1 World Champ

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    Bloody hell!
     
  25. IanB

    IanB F1 World Champ
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    Nick Xenophon - what a piece of work. I bet Sarah Hanson-Young helped him too.

    Something else we can all thank SA for - minority zealots who misuse the senate and are ruining our country.
     

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