QC eyes Freeport class action over Customs 'intrusion'


Fred Smith


Tribune Business Editor


A well-known QC is studying whether Customs latest “intrusion” warrants a ‘class action lawsuit’ for breaching both the Hawksbill Creek Agreement and the constitutional rights of 3,500 Freeport businesses.

Fred Smith QC, the Callenders and Co attorney and partner, told Tribune Business he was examining “the legality” of Customs’ new 1 per cent administrative processing fee, its new document fee and the Government’s so-called ‘Environmental Levy’.

He said that if there were grounds for a lawsuit, rather than go it alone he would “try to persuade” the Grand Bahama Port Authority’s (GBPA) licensees to join in a class action lawsuit against both Customs and the Government.

And Mr Smith also called on the GBPA, as Freeport’s quasi-governmental authority, to “stand up” and protect its private sector licensees against the Government’s attempts to impose taxes on them.

“As a licensee of the Grand Bahama Port Authority, I am considering the legality of this new processing fee,” Mr Smith told Tribune Business.

“In addition, my companies are looking at the new [Customs] document fee and the Environmental Levy, given that Freeport is a tax-free zone.

“It appears to be yet another Customs intrusion into our tax-free status, as the Government tries to kill what is left of Freeport’s golden goose.”

And he added: “Customs hold such a lock on importation and exports, and they are able to suffocate a business effectively at the point of importation.

“This is also what Immigration, exchange control and the Investments Board do to stifle Freeport’s growth.”

Mr Smith said the Government appeared to be going out of its way to “studiously avoid the use of the word ‘tax’” in describing many of the Budget’s introductions, instead employing language such as ‘processing fee’, ‘document fee’ and ‘levy’.

Urging people not to be fooled, he told this newspaper: “If it quacks like a tax, if it looks like a tax, it is a tax. And, if they are in breach of the Hawksbill Creek Agreement, rest assured Customs will be sued.

“On this occasion, my companies will try to persuade the other 3,500 licensees of Freeport to participate in a general licensee class action suit, not only against Customs but the Government - who are in control of Customs - for their persistent and abusive treatment of licensees.”

Emphasising that any legal action would not be grounded solely on the Hawksbill Creek Agreement, Mr Smith added: “We have vested rights protected by the Constitution, and we will be looking at mounting another action under Article 27 for deprivation of our property and our property rights, and to seek general damages against the Government and Grand Bahama Port Authority for breaches of our rights under the Hawksbill Creek Agreement and our constitutional laws.”

Calling on the GBPA to disassociate itself from the Government’s taxation drive, the noted QC added: “It is about time that the Port Authority not only collects licence fees, but stands up for licensees against Customs and the Government’s terror taxation tactics.”


john33xyz 10 years, 4 months ago

You cannot sue the Government because the Attorney General has the Constitutional authority to "bring, dismiss, decide, etc" (not exact quote) ANY case before the Courts.

You can bring the case - and he can just dismiss it. Simple.

The only thing that comes to mind is a general "sick out". But of course that would require Bahamians to work together as brothers and sisters with a common cause - and that is very unlikely. Has not happened since Burma Road.

If the Port could meet with the management of all the important business (such as airlines, taxi persons and companies, gas stations, hotels/motels, tourist activity companies, travel agents, and yes even banks) and get them "on board" for an island-wide "sick out" every Friday that would devastate the whole island and cause lack of revenue to the Government - that might get their attention.

People would argue that it would cause a loss of business. Hello? What do you think the new policies are going to do? Face the music, or run like a coward. It's the people's choice.

When tourists can't get from the airport, or if they get to their hotels can't get checked in, or get clean sheets, etc - and when management chooses not to reprimand employees who are "sick" - every Friday - then the problem will get the attention it deserves.

Otherwise, we will all just sit around waiting for Mr. Smith to get a court date, and drown financially before it gets on the calendar.


mihai 9 years ago

I think if they get into this, the lawsuit will go on and on for years before they resolve anything. A lawsuit shuld be the last alternative. https://incaltamintedamamoderna.blogs...">:)


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