A Barrister's Blog

Breath testing laws have been with us in all states in territories for a long time. In the ACT it is an offence if someone who has been the driver of a motor vehicle on a road or a road related area refuses to provide a sample of breath for analysis (s22 Road Transport (Alcohol and Drugs) Act 1977).

So, what was controversial about Mr Gonyley’s  conviction for refusing a breath test as he got out of the driver’s side of his car in the carpark of Jerilderie Court and why did he appeal to the ACT Supreme Court? On reading the judgment, it was clear that one of the issues was whether the car park as a “road related area”. There is a definition of “road related area” in the Road transport Act. Relevantly it includes “an area that is not a road and that is open to or used by the public for driving, riding or parking vehicles”. There is caselaw on the meaning of that phrase and ones similar to it. There is also a statutory definition of “public place”. The judgment traverses all these issues and also the usual cases on statutory construction.

All the while, I was still puzzled about how the carpark at Jerilderie Court couldn’t possibly be a public place and road related area. Then the penny dropped (doh!) that Jerilderie Court is a public housing apartment building in the ACT suburb of Reid (not the Local Court at Jerilderie). The building is apparently notorious (google is my friend) for being the residential address of several local drug dealers.

Ultimately Mr Gonyley won his appeal,  but not on the “high brow” basis of statutory construction or consideration of the meaning of the various phrases. The Supreme Court found that the Magistrate had fallen into error because there was insufficient evidence to prove beyond reasonable doubt that the Jerilderie Court carpark was a road related area.

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There have been a few things happen during the current Covid19 outbreak which have made me ponder the underlying legal issues. As a result, I was very interested when I read Professor Natalie Klein’s (UNSW academic) article in the Conversation about international law obligations in respect of cruise ships. That article has inspired this post.

Like many issues, the Ruby Princess saga is more complicated that it might first appear. On one hand, Australia has (through the Navigation Act and Marine Order 11) implemented the Maritime Labour Convention. That means that seafarers (on all ships in our territorial waters) who are in need of immediate medical care are to be given access to onshore medical facilities. This explains the enthusiasm of the authorities to get the ship out of our territorial waters.

That seems clear enough, but there’s more. Australia as a sovereign state can generally control which vessels enter its ports. There is an exception to this rule which allows vessels in distress to dock. There is apparently an exception to the exception if a ship poses “a serious and unacceptable safety, environmental, health or security threat” (like in a pandemic for instance?). It’s also not clear to me how the Biosecurity Act might affect that obligation.

But what does distress mean? There is some early nineteenth century common law that it means imminent danger of a kind that would produce “on the mind of a skilful mariner, a well-grounded apprehension of the loss of vessel and cargo, or of the lives of the crew”. Traditionally this meant things such as a broken mast, or damaged sails or engine problems. So, what about on a cruise ship with a crew of about 1000? Some of those crew are on board to run the ship and others are there to serve the passengers. Professor Klein says distress would be easier to make out if those running the ship were unable to do so because they were sick.

Most (in)famously, in 2001, distress was invoked by Arne Rhinnan (the captain of the Tampa) to defy Australia’s threats of fines and imprisonment when he sailed into Australian waters and set anchor a few km off Christmas Island (because there were no facilities on the island to cope with a ship of that size). The distress he relied on was that he had insufficient food, water and medical facilities for his 438 newly acquired asylum seeker passengers (which he had taken on board under a duty to rescue and at Australia’s request). Apart from the diplomatic incident, the end result of his actions were that Captain Rhinnan received Norway’s highest civil honour for his handling of the situation and Australia ended up with a harsh “turn back the boats” border protection policy.

All that makes wish that I had taken “law of the sea” as an elective after all!

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My dark sense of humour found the facts of Ex parte Musgrove; Re Howard (1961) 78 W.N Feb 15 at 88 amusing….

At 9:15pm on 26 January 1960, Sergeant Howard from Kandos police came across Mr Musgrove standing beside his upside down car off the road on the eastern side of Davies Road. Mr Musgrove couldn’t offer any explanation for how he got off the bitumen and on to the gravel on the right hand side (which I assume is the “wrong” side) of the road.

Mr Musgrove was charged with driving a motor vehicle negligently on a public street. Although I have some sympathy for the magistrate who applied (in the absence of an explanation) res ipsa loquitor  and convicted him.  The problem is that he ignored the golden thread of english criminal law that it is the duty of the prosecution to prove the prisoner’s guilt….no matter what the charge or where the trial (Woolmington v DPP). The conviction was overturned (like the car) on appeal and the case is now authority for the proposition that res ipsa loquitor doesn’t apply in criminal law.

Another interesting anecdote about this case is that Mr Musgrove was represented by W. P. Deane. That would be William Patrick Deane, who started practice at the Sydney bar in 1957, en route to his appointments to the High Court and subsequently as Governor General.

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Many of you would have seen (as I have) some of the video clips of deserted streets and highways in what would otherwise be bustling Chinese cities that are now in shut down. More worryingly, you may also have seen videos of people being forcibly removed from their apartments and being bundled into white vans by security people in hazmat suits. My first reaction to some of those measures was surprise at how heavy handed these were. Surely it was a Chinese over-reaction?

Unfortunately, it appears that it’s not. In 2015, the antiquated 1908 Quarantine Act was replaced by the Bio-Security Act. Large parts of that act fall under the agriculture portfolio. I get it, we live on an island, agriculture is important and pests and diseases need to be kept out. However, as well as various “bio-security measures” the act also provides for human bio-security control measures which could come into effect if a human bio-security emergency is declared. There are accompanying human bio-security emergency powers which can be then be exercised by the Minister for Health.

If you end up becoming subject to a human bio-security control order you can: be required to provided information (s 85); be restricted in your movements (or confined to home)(s 87); be required to undergo decontamination (s 89); be required to submit to an examination (s 90) or provide body samples (s 91); or be required to receive a vaccine or medication (ss 92 and 93). However, you will be pleased to know that the use of force in administering this provisions is not allowed (s 95), but you can be detained if you don’t comply. If you are detained the amount of force used should not subject you to “greater indignity, than is necessary and reasonable to detain the detainee or prevent the detainee from escaping” (see ss103-104).

We might be a little way off being forcibly detained by people in hazmat suits, but it is a (lawful) possibility. Interesting, the health department has already issued an emergency response plan. Let’s hope that Australia manages to manage the spread of the corona virus.

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Last month’s post about heading towards a cashless society made me think about two things. Firstly, had the guys from the coffee shop in Spice Alley at Chippendale read it and that’s why they refused to accept my cash a couple of weeks ago? Secondly, what are our laws about cash?

I hadn’t realised that we have the Currency Act (for coins) and the Reserve Bank of Australia Act which governs our bank notes. The Currency Act sets out a schedule (pursuant to s13) of metallurgical and weight requirements for coins as well as providing (in s 16) some limits on legal tender (which don’t apply to bank notes). It is apparently not a legal tender to pay $5 or more with 5, 10, 20 and 50 cent coins (or a combination of two of them). When we still had 1 and 2 cent coins it wasn’t legal tender to pay 20 cents or more with them.

I was also a little bemused to find that both Acts have tables which set the value of coins (or notes) when decimal currency was introduced. For example a crown is 50 cents, a florin is 20 cents, 10 shillings is one dollar and 1 pound is two dollars etc.

Also just in case you have any non-statute barred debts from before 14 February 1966 (if you are Gen X or younger click here if you don’t understand the date) that are yet to be paid, you can convert them according to the formula in section 8(4):

“The equivalent in the currency provided for by this Act of One sovereign or pound in the currency provided for by the repealed Acts is Two dollars, the like equivalent of One shilling is Ten cents and the like equivalent of One penny is five‑sixths of a cent.”…. plus interest (I assume).

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Apologies for ending the year with a post on the serious side, but I have recently been involved in several “proceeds of crime” matters. In that context, I came to know about a fresh round of legislative initiatives designed to curb the cash economy.

Up until then, I hadn’t heard of the Black Economy Taskforce, but it didn’t really surprise me that there was one. In its final report in October 2017, one of the high level strategies to be deployed was to move people out of cash and into the banking system. This strategy was apparent from some of the report’s recommendations which included:

1. reform of the ABN system (i.e putting some form of renewal system in place);
2. the introduction of a “digital credential biometrically secured” (an Australia card on steroids?);
3. making payment of wages to bank accounts compulsory;
4. removing tax deductibility for undocumented payments; and
5. moving to a near cash free economy.

Most of those sound fairly reasonable to me.

However, in relation to that last one, I was taken aback, when I “discovered” the exposure draft of the Currency (Restrictions on the use of Cash) Bill 2019. It appears that the reporting of cash transactions (AUSTRAC) system is about to be dumped and it is about to become a crime (in some cases attracting strict liability) to enter into a cash transaction of $10,000 or more. There are exceptions.

This legislation appears to have bipartisan support and is likely to come into effect in January 2020. The public consultation period (I didn’t realise there was one) closed on 12 August. I’m really a bit puzzled about why everyone thinks this is a good idea or how this managed to escape closer scrutiny. The only time I remember seeing this in the media was Sean Micalleff poking fun at it on “Mad as Hell” and pointing out that it wouldn’t be possible to pay your $12,600 fine in cash because that would also be a crime!!

I suggest you click on the links above if you want some more details.

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