By NEIL HARTNELL
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.”