A Barrister's Blog

The lighter side of law

In Australia

Posted on Sep 29, 2020

You might think the phrase “interesting surcharge purchaser duty case” is oxymoronic. However, that’s only because I haven’t told you the story about Mr Gao, who claimed he was entitled to a refund of that duty on the basis that he was no longer a foreign person. For him not to be a foreign person he must have “actually been in Australia during 200 or more days in the 12 months...” prior to the transaction. The parties were in dispute about whether he had been in Australia for 199 or 201 days because, as the Tribunal put it:

[28] The narrow question here is whether a person sitting in a commercial aircraft cruising at an altitude of several kilometres above either (a) Australian land or (b) Australian territorial sea, is ‘in Australia’ for the purposes of s 5(1)(a) of the [Foreign Acquisitions and Takeovers] Act.”

Argument traversed all sorts of issues under the Migration Act, the Civil Aviation Act, the Chicago Convention, the Acts Interpretation Act and even the Macquarie dictionary. However, very pragmatically the Member ultimately found:

[56] Now, for what it is worth, I agree with Mr Gao’s submission that ‘Australia’, when used in s 5(1)(a), is used in a geographical sense. But how the resultant statutory definition bears on his case is unclear,…. and then….

[59] In my view, ‘actually … in Australia’ captures land-based presence in Australia, and also presumably sea-based (in territorial waters) presence in Australia, but it does not capture presence in Australian airspace. Therefore, if, on a particular day, you are in Australian airspace but you do not land in Australia or set down in Australian territorial waters on that day, then you cannot be said to have been ‘actually in Australia’ on that day. Otherwise, it would be the case that the passengers on a hypothetical flight from Jakarta to Auckland, and flying hypothetically over the Australian land mass, would be ‘actually in Australia’ for all the time the aircraft is in Australian airspace. That does not accord with the ordinary meaning of the words ‘actually … in Australia’ in s 5(1)(a) of the FAT Act.

This case, Gao v Chief Commissioner of State Revenue [2020] NSWCATAD 216, pushed some of my more serious buttons about reckoning of statutory time limits. If an Act provides for, and you have calculated a date for the last (or first) day for doing something, allow yourself a few days margin for error. The issue of time miscalculation triggers so many unnecessary jurisdictional problems.  Undoubtedly a couple of nights stay even in a 5 star hotel would have cost Mr Gao substantially less than this case!

Shout out to David Wang of Hyde Park Legal for bringing the case to my attention.

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The risotto mishearing

Posted on Aug 28, 2020

Although the “risotto mishearing” could be the title of a masterchef themed spy thriller, it was actually the first ground of appeal in Gill v Minister for Immigration and Border Protection [2017] FCAFC 51. The issue was whether the applicant had provided a bogus letter about his work experience as a cook. He was quizzed at length in the tribunal and on appeal the issue became whether the tribunal’s fact finding was “illogical” (one of the limited bases on which fact finding can be a jurisdictional error).

It’s pretty clear from the court’s judgment what went wrong in the tribunal:

  1. The primary judge found that the appellant used the word “rizolos” on several occasions and that the Tribunal misunderstood this as a reference to “risotto”…
  2. Rissoles were included among the non-exhaustive list of dishes mentioned in the work experience letter, but risotto was not.  The Tribunal’s misunderstanding that the appellant was referring to “risotto” was an important part of the Tribunal’s reasoning for concluding that the work experience letter was not genuine and the appellant was not a credible witness.  The Tribunal’s incredulity on this matter related to the appellant’s evidence that he prepared risotto using rice and flour.  When the Tribunal member repeatedly asked the appellant to say what kind of “risottos” were on the menu, on three separate occasions he said “Italian”.  There was a total breakdown in communication between the appellant and the Tribunal on this subject matter in that the appellant was evidently referring to Italian rissoles, while the Tribunal member was talking about Italian risottos.  The miscommunication was perhaps exacerbated by the repeated reference to the dish being “Italian”.

You can read more about “bangers and mash” and the crumbing of chicken schnitzel in the judgment….and yes this was a jurisdictional error.

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Posted on Aug 3, 2020

Justice Leeming from the NSW Court of Appeal is a well known and highly regarded equity lawyer and one of the current authors of Meagher, Gummow and Lehane’s equity textbook. His honour also has a PhD in pure maths. When he brings his intellect to bear on matters in the Court of Criminal Appeal there are sometimes some very interesting judgments, of which Ghamrawi v R [2017] NSWCCA 195 is one. Leeming JA traced the development of the common law of “breaking” (as in ‘break and enter’) from the 17th century through to today. I didn’t know (at least until recently) that:

  • An actual breaking requires, broadly, that [the accused] interfere with the building’s physical security, in a recognised way;
  • Or as Blackstone put it: “There must be an actual breaking; not a mere legal clausum fregit, (by leaping over invisible ideal boundaries, which may constitute a civil trespass) but a substantial and forcible irruption. … if a person leaves his doors or windows open, it is his own folly and negligence; and if a man enters therein, it is no burglary“;
  • It follows that: “To enter or depart through an open door or window is not a breaking. To open a closed though unlocked door or window is a breaking. Where a door, window, or other point of entry is partly open it is not a breaking to widen the opening for purposes of entry. However, it is a breaking if to do so involves tampering with some fastening device.”; and
  • There is also a species of “constructive breaking” where permission to enter is granted but as a result of some “artifice, trick or threat”. An example is given of the 1952 UK case in which Mr Boyle pretended to be from the BBC and entered the house to “inspect” the radio (the good old days of radio licences).

There are other complicating issues about express or implied consent and the overlap with the law of trespass. If you do like a bit of legal history this case should be near the top of your self isolation reading list.

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Posted on Jun 30, 2020

What use would a 30 June post be if it wasn’t about tax? Many of us probably remember the deals that were done

between the Commonwealth and the States when the GST was introduced (20 years ago tomorrow). A number of state imposts (remember FID on deposits?) were abolished in exchange for a share of GST revenue.

I had forgotten that the Commonwealth hasn’t always been in charge of income tax. After federation and up until WW2 the states levied income tax at different rates under different administrative regimes and each with under their own legislation. It also created some interesting jurisdictional issues. For instance: was Alfred Deakin’s salary as a minister of the Commonwealth, so far as it was earned in Victoria (where he was resident) subject to Victorian income tax? The High Court applied D’Emden v. Pedder (i.e. a state law can’t interfere with the executive power of the Commonwealth) and answered “no” (see Deakin v Webb (1904) 1 CLR 585).

If that wasn’t bad enough, imagine the negotiations that went on in 1942 when the Commonwealth needed war finance and suggested that the states vacate the income tax field for 2 years and allow the Commonwealth to be the sole income tax collector. Compensation was to be paid. Perhaps not surprisingly, the states were suspicious and rejected the proposal. That was to no avail when the Commonwealth passed four acts which imposed a uniform tax scheme (exercising “might of way”). Constitutional issues over which power was being used as a basis for the scheme (was it the taxation power or the defence power?) arose…. you can read the High Court’s decision in the  First (yes, there was a second one) Uniform Tax Case for yourself (1942) 65 CLR 373.

Who would have thought that tax history could be interesting ….. happy new financial year.

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Jerilderie Court

Posted on May 29, 2020

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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In distress

Posted on Apr 28, 2020

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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