A Barrister's Blog

The lighter side of law


The Virus


Posted on Feb 28, 2020

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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Cashless?


Posted on Jan 31, 2020

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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Black Economy


Posted on Dec 18, 2019

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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The Xmas Party No. 2


Posted on Nov 14, 2019

The Christmas party season is on us again and it’s time to trawl the industrial law cases for examples of model behaviour (or not) which occurs at these functions (see also my 2017 and 2018  posts).

The 2004 Christmas party for Aristocrat Technologies was held at Dockside at Cockle Bay (on the balcony level). The party (which I am not referring to as a “p*ss up” for reasons which will become obvious presently) was fully paid for by the company and the preparation for it included meetings with union delegates and employees about the company’s expectations around responsible drinking and behaviour. There was also a company code of conduct and an “alcohol, drugs and the workplace policy”.

Although the party started at 6pm, Mr Brown was one of the first to arrive at 5:45pm. He was also, some 12 (or perhaps 15) beers later one of the last to leave at 10:15pm (the music stopped at 10pm). His drinks may (or may not) have been spiked with vodka by another employee Mr Wheatley who bought his own spirits to the function (because he didn’t like wine or beer). Nevertheless at 10:15pm, Mr Brown was seen on the balcony urinating onto the diners in the restaurant below (cringe). He received (literally) a clip over the ear from Mr Wheatley who talked him into paying (using his personal credit card) for the meals of the affected (and understandably unhappy) guests on the lower level.

There were then two separate scuffles (near the Imax theatre) between Messrs Brown and Wheatley, the second of which involved the police being called. The police in turn called an ambulance and the next thing that Mr Brown remembered was waking in hospital with “a severe headache unlike any he had experienced before”.

Unfortunately, his behaviour also created a headache at work and his employment was ultimately terminated as a result of his behaviour that night. He unsuccessfully sought reinstatement.  The Australian Industrial Relations Commission found (perhaps not surprisingly) that his dismissal wasn’t harsh, unjust or unreasonable. Undoubtedly this type of case must be every HR department’s worst nightmare. You can read the whole fiasco of Brown v Aristocrat Technologies [2005] AIRC 656 if you are interested.

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Ceremonial Bows


Posted on Oct 22, 2019

The 2019 senior counsel appointments were recently announced. The tradition in England was that on the appointment of silk, the appointee would process in turn to each of the courts that are sitting, announces his or her appointment and make their bow. In NSW there are bow ceremonies in which the leader of the Bar announces to the Chief Justice the newly appointed silk.

When Jeffrey McLennan was appointed silk in 2014, he was unable to attend the main ceremony and took his ceremonial bows before Hamill J in the Supreme Court sitting in Grafton. A short congratulatory speech was delivered, which included the following:

You have shown excellent judgment, a deep and broad knowledge of the relevant legal principles, a quietly persuasive advocacy style, a deft touch with witnesses and a polite doggedness in the face of repeated judicial interruptions of your arguments. You may have felt that the fourth day of the pre-trial voir dire was a little like the tax case in the High Court that Justice Starke said was “argued over nine days by the Court with the occasional assistance of counsel”: Federal Commissioner of Taxation v Hoffnung Ltd (1928) 42 CLR 39 at 62.”

and….

“…I also note that your capacity to organize a brief and to colour code it confounds even the most anal retentive of those who instruct you.

I have had some experience of this in the current trial featuring as it does a number of plastic folders of photographs and diagrams. Exhibit A was a colour best described, I think, as Fuchsia. Exhibit F was a kind of lime green. Exhibit HH was burnt – or perhaps Tuscan – orange. You relented a little with Exhibit NN – it was red – and exhibit RR, which was blue.

When we came to exhibit XX I asked if you had run out of colours. I was delighted when you patiently explained ‘no your Honour, this is the rainbow region’.”

Shout out to Elleni Zacharia for giving me the idea for this post.

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The Other Side


Posted on Sep 17, 2019

It all started with the following innocuous facts….

It was Mardi Gras night (2 March) 2013 at around 11:30pm. The parade had finished, the floats had long passed. Apart from a street sweeper and a garbage truck there were no other vehicles on Oxford Street. However, the pedestrian barricades were still in place and there were still partygoers walking on the sidewalk and on the side of the road behind a number of uniformed police.

It was at this point that Mr Hutchinson, his partner, his sister and another friend decided to cross Oxford Street at the intersection with Crown Street. What happened next?  Well, Leeming JA says that: “He came into contact with police when attempting to do so. What precisely occurred in that three minute period was the subject of conflicting testimonial and CCTV evidence, and much of the substance of this appeal challenged the findings made at trial. Mr Hutchinson was arrested and charged with assaulting an officer in the execution of duty, contrary to Crimes Act 1900 (NSW), s 58. He was served with a Court Attendance Notice at 12.05am, and released”.

The criminal charges were dismissed by a Magistrate in November 2013 after a hearing which “occupied part or all of 4 days“.

Mr Hutchinson clearly reflected on why he didn’t listen when the police told him he couldn’t cross over the next 3 years. He commenced civil proceedings against the State of NSW on the last day of the limitation period in March 2016. He alleged that he had been: (a) battered by the police who prevented him crossing the street; (b) further assaulted because the handcuffs applied to him were too tight, amounting to an unreasonable use of force; and (c) falsely imprisoned for 35 minutes until he was released. Just for good measure he later claimed he was a victim of a malicious prosecution.

He was unsuccessful in his claims after an 8 day hearing in the District Court. He also didn’t fare any better in the Court of Appeal and his application for special leave was denied. Apart from being a lesson in how to ruin a night out and how to rack up astounding costs (including those of the State), the C of A judgment (Hutchinson v NSW [2019] NSWCA 91) is quite interesting if you want to know about police powers to control traffic and pedestrians. I now look differently at the uniformed officers who stand on the tram tracks (behind the orange flag “barrier”) outside Wynyard Station in the morning.

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