A Barrister's Blog

The lighter side of law

Coat of Arms

Posted on Aug 25, 2017

I’m not sure if anyone else has been watching Annabell Crabb’s documentary “The House“. I was surprised to learn that a number of designs for the large coat of arms above Parliament House were rejected because the kangaroo wasn’t “demonstrably male”. I set a couple of bemused law students loose on trying to verify this, but to no avail. I did, however, find some interesting facts about the coat of arms.

We all know that the kangaroo and emu were chosen for the coat of arms because neither can move backwards.  Another factor was that they were both large enough to be positioned in scale. I also discovered an interesting parliamentary debate about changing the original 1908 version of the coat of arms (pictured) to the version which we now know and which was adopted in late 1912.  House of Representatives hansard on 31 October 1912 records the following:

Fenton: Let us have a decent Australian coat-of-arms on our writing paper. The kangaroo depicted is most un- lifelike, and, as for the poor, unfortunate emu, with its leg tucked up against the Australian shield …
Atkinson: Could an emu stick up its leg in that way?
Fenton: I do not know; but I know that an emu can kick out well behind, and pretty well as hard as a horse can.
Kelly: The habits of heraldic animals however, are not altogether founded on established fact, and it is not the fault of the College of Heralds that the emu in this case is asked to do something which would in ordinary circumstances horrify it. It seems to me that the emu and the kangaroo are hardly symbolic of the best qualities of the Australian people. They have the smallest heads of any of the animal kingdom. Is that a mark of the Australian people?.….The emu and the kangaroo are so built that they hardly fit into the heraldic atmosphere, and I think we make ourselves ridiculous when we endeavour to carry on the traditions of the Old World with some of the wild creations of our Australian fauna.

Hmmm, the good old world!

If you want to read more of this debate it is on the APH website.

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The Straw Man

Posted on Jul 26, 2017

Leonard Casley (aka Prince Leonard of Hutt) was a wheat farmer.  In 1970 he was aggrieved by the wheat quotas allocated to his business.  He served a notice of secession on the Western Australian Premier, the Governor, the Prime Minister and the Governor General.  He also notified the Queen.  Since then he has taken other steps which he believes are the acts of an independent sovereign state (referred to by Wikipedia as a “micro-nation”) including declaring war on Australia. The Hutt River Province has its own passports and currency (probably one of the problems).

Since then Prince Leonard (and his son) have accumulated tax debts of over $3M. There were a number of interesting arguments advanced in the WA Supreme Court in defence of the ATO’s recovery action [2017] WASC 161:

  1. Firstly that the court has no jurisdiction over them or no jurisdiction to hear these claims.  In essence, they say that the land on which they reside is part of the Principality of Hutt River which seceded from Australia and is no longer part of Australia, that they are the sovereign or a citizen of Hutt River, a sovereign independent state, they are not residents of Australia, the laws of Australia and in particular the taxation laws do not apply to them and this court has no jurisdiction over them; and
  2. Secondly, the strange pseudo‑legal straw man theory.  The theory holds that an individual has two personas, one of himself as a real flesh and blood human being and the other, a separate legal personality who is the straw man.  The idea is that an individual’s debts, liabilities, taxes and legal responsibilities belong to the straw man rather than the physical individual who incurred those obligations, conveniently allowing one to escape their debts and responsibilities.  [if only it were that easy!]

The first argument failed in 2007 when the Prince tried to remove proceedings (also involving payment of tax) from the Geraldton Magistrate’s Court to the High Court (Heydon J said the argument was “fatuous, frivolous and vexatious”). The second didn’t fare much better with Justice Le Miere saying it was “all gobbledygook”.

Shout out to Alan Blank of my chambers for telling me about this decision.

Creative commons acknowledgment for the photograph.

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Complete Freedom

Posted on Jun 26, 2017

On 1 December 2016, Luke Moore’s appeal against his conviction for dishonestly obtaining a financial advantage by deception was allowed by the Court of Criminal Appeal. Aspects of Leeming JA’s leading judgment (yes, they let equity lawyers sit in criminal appeals) are mildly amusing:

  1. Mr Moore opened (with a zero initial balance) an account with St George Bank at a branch in Goulburn on 11 March 2010. “The account was styled, not inaptly, a “Complete Freedom” account“(at [4]);
  2. The account quickly ran into overdraft and kept going. When it was closed in August 2012 there was a negative balance of $2.1M;
  3. A police raid on Mr Moore’s home in December 2012, recovered inter alia signed pictures by Led Zeppelin, Bob Dylan, Guns N’ Roses, Foo Fighters and Usher, an Amy Whitehouse frisbee and the keys to an Aston Martin DB7 Vantage coupe. There was also a 2001 Maserati sedan, a 2006 Alfa Romeo 156 and a 6.1m boat. The list goes on (see [13]-[16]);
  4. His Honour observed (at [17]) that “It is perfectly plain that there was a mistake of some kind within the Bank. As a matter of civil law, a mistaken payment gives rise to a right to recovery. To be quite clear about it, the notion sourced in board games of a windfall “Bank error in your favour” is a very poor guide to the position at law. It has been the law for centuries that a party making a payment by mistake is entitled, subject to defences, to recover that payment.”; and
  5. Also that: “It is plain that Mr Moore behaved not only extremely foolishly but also dishonestly” (at [19]).

BUT  “…an element of the offence with which Mr Moore was charged is deception. The unusual aspect of Mr Moore’s conduct was that there was nothing covert about it. The statements issued by St George recorded each debit, and charged a fee and interest, and stated with complete accuracy Mr Moore’s growing indebtedness” (at [23]).

So, there you go, there was no deceit. …I doubt he’ll go very well in the inevitable civil proceedings.

Creative commons acknowledgment for the photograph.

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Hot Potato

Posted on May 26, 2017

I usually associate Western Australia with mining (and sharks) and not with agriculture and certainly not with potatoes. I was accordingly,  a bit surprised when I recently came across the Marketing of Potatoes Act 1946 (WA) which regulates the sale of ware potatoes. A ware potato is an unprocessed, WA grown potato for which there are reasonable grounds for believing is to be sold for human consumption (s 5).

Section 22 makes it an offence (yes, a crime) to purchase or take delivery of more than 50kg of ware potatoes without complying with the Act. The Act says you are only allowed to sell or deliver potatoes to the Potato Marketing Corporation of Western Australia and its agents or with the relevant permit.

In the prosecution for this heinous crime, failure to produce to an inspector, the sales docket, delivery note or relevant consignment advice from the grower which contains the “prescribed information” is prima facie evidence of a contravention of the provisions of the Act. The maximum fine is $2000 for a first offence and $5000 for a subsequent one. In making a request for documents, the inspector must have had “reasonable cause to believe the person charged was in possession or control of a quantity of potatoes at a material time“.

Lest it be thought all this is a joke, it appears that there has been a long running dispute between the Galati family and the Potato Marketing Corporation in the courts of WA, including an application for an interlocutory injunction.

Adds a whole new dimension to the Wiggles song “Hot Potato” doesn’t it?

Creative commons acknowledgement for the photograph.

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457 no more

Posted on Apr 26, 2017

You couldn’t escape the “storm in a teacup” immigration news about the axing of the 457 visa last week. Last time I looked at a DIBP annual report there were about 100,000 (yes, they’d all fit in the MCG) 457 visa holders in Australia. As was reported there are now 216 less occupations (on the new STSOL and MLTSSL) which are eligible for a temporary working visa and some of those are subject to “caveats”. For instance the occupations below, are subject to the dual caveat that they must be located in a regional area (a defined term by postcode) and positions can’t be unskilled farm hands. Consequently, there won’t be any bee-keeping or sugar cane growing in Martin Place.

 Apiarist 121311  Fruit or Nut Grower 121213  Mixed Livestock Farmer 121317
 Aquaculture Farmer 121111  Grain, Oilseed or Pasture Grower (Aus) / Field Crop Grower (NZ) 121214  Pig Farmer 121318
 Beef Cattle Farmer 121312  Grape Grower 121215  Poultry Farmer 121321
 Cotton Grower 121211  Horse Breeder 121316  Sheep Farmer 121322
 Crop Farmers nec 121299  Livestock Farmers nec 121399  Sugar Cane Grower 121217
 Dairy Cattle Farmer 121313  Mixed Crop and Livestock Farmer 121411  Vegetable Grower (Aus) / Market Gardener (NZ) 121221
 Flower Grower 121212  Mixed Crop Farmer 121216

If you’re wondering, the 6 digits is an ANZSCO code where you can look up the skills and qualifications necessary for just about any occupation including “sex worker” (see my previous post about Classification of occupations). Sex worker is not on the list of skilled occupations for the 457 visa.

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Struck off

Posted on Mar 28, 2017

Mr Singh practised as a lawyer in New Zealand, Fiji and Australia. He was admitted in Queensland in 2002 but the Queensland Law Society  refused to renew his practising certificate from 1 July 2008 when it discovered (i.e. wasn’t informed) that Mr Singh had been convicted in Fiji, on 25 October 2006, of the offence of attempting to pervert the course of justice.

Whether or not he was fit and proper for practice became an issue in disciplinary proceedings, where you can read the whole sorry story. However, the last few paragraphs of the Tribunal’s decision only affirms my view that it’s generally way better to “own up and deal with it” rather than have something like this published about you:

[49] As the recitation of the various proceedings in Fiji shows, however, he has taken every conceivable avenue of appeal in relation to his criminal conviction, and the disciplinary proceedings there. He also raised every conceivable argument to contest the proceedings before this Tribunal, all of which were without merit. He has, in earlier submissions to this Tribunal, maintained that he was entrapped by the Office of the Director of Public Prosecution, Fiji because of its jealousy at his success in courts there.

[50] Those submissions compel the conclusion that he does not, even now, fully perceive and have real insight into the seriousness of his offending, or the fact that its elements involved an attempt to gravely subvert the proper administration of justice. Remorse is an emotion which can readily be propounded, but its actual presence is not always easy to discern. Its presence, in Mr Singh’s case, would be more readily found if his conduct in the face of a serious charge in the past decade – beginning, as the passage from the sentencing remarks set out above shows, with an absolute denial, and continuing for some years through a welter of proceedings in which legal stratagems were relentlessly used to avoid sanction – did not belie it.

[51] The Tribunal is, for these reasons, left unpersuaded that Mr Singh has (despite the long period of time which has elapsed) appreciated the seriousness of his misconduct or that, by dint of time and a better appreciation of the nature of his offending, the continuing cloud it leaves over the question of his fitness to practise has been diminished, or expunged.

[52] The offending was, on any view, of a very serious kind: it involved dishonesty which goes to the heart of the justice system. Despite the fact that it occurred almost a decade ago, nothing that has happened since can be seen to reduce or allay its seriousness and it continues to raise a grave doubt about Mr Singh’s fitness to practise. While the passage of time is material, its effects must be weighed against the events discussed earlier and, in particular, Mr Singh’s own conduct.

[53] In light of the seriousness of the original offending, and in the circumstances attaching to this matter, the Tribunal is driven to conclude that Mr Singh’s name must be removed from the local roll.

Creative commons acknowledgement for the photograph.

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