Sunday, June 19, 2011

Amendment of Law Enforcement (Powers and Responsibilities) Act 2002 No 103

Hi readers,

This week we take a look at the recent amendment to s.198 of the Law Enforcement (Powers and Responsibilities) Amendment Bill 2011.  This short Act (it only has three sections) relates to 'move along directions' given by Police to intoxicated persons.  Previously, a person had to be in a group of at least 3 intoxicated persons for a move along direction to be given. The effect of the s.198 amendment is that the direction can now be given to an intoxicated person on his own.

Why the Police would request such a change to the legislation is bewildering to say the least. Section 197(1) of the Law Enforcement (Powers and Responsibilities) Act 2002 already provides a multitude of circumstances where Police can issue a move along direction to a person if that person is obstructing traffic or other persons, intimidating or harassing other persons or likely to cause fear to another person. Similarly, s206 of the same act authorises Police to detain intoxicated persons if they are behaving in a disorderly manner or in a manner likely to cause injury to the person or another person or damage to property. Are we to assume, as members of the public, that the Police were not in a position to effectively deal with a lone intoxicated person without changing the legislation?          

It will be interesting to see whether we start to see an increase in convictions (or penalty notices) for breaches of move along directions under s.198 in the next 6-12 months. As a lawyer, I am concerned with the increased potential for abuse of 'move along'  powers by some Police. There is no doubting that these laws provide a useful mechanism for Police when dealing with those in our society who are violent or who harass and intimidate others. However, previous failures by overzealous Police to use these powers objectively need to acknowledged and addressed by the Police heirarchy rather than simply sweeping the incidents under the carpet. In short, these laws should be monitored by the NSW Ombudsman to ensure that abuse is reduced through the implementation of appropriate checks and balances.

One can only feel sorry for the lonely or hapless drunk who fails to comply with the direction and ends up with a sizable fine.

David Sylvester
Solicitor Director

Tuesday, May 17, 2011

Denlay's Case - The use of illegally obtained material by the ATO.

The recent Federal Court case of Denlay v Commissioner of Taxation (see link below for full transcript) held that amended assessments by the Commissioner (ATO) based on illegally obtained information supplied by a third party, were valid assessments under the Income Tax Assessment Acts. The taxpayers (Kevin and Mirja Denlay) had argued that the amended assessments were tainted with jurisdictional error due to 'conscious maladministration' by the tax office.

In short, the case involved a situation whereby the Commissioner had issued an amended assessment to the taxpayers for the years 2002-2007. In preparing the amended assessment, the Commissioner utilised documents sourced from a third party who had illegally obtained the information from his employer. The taxpayers argued that the ATO had breached s400.9 of the Criminal Code 1995, and as a result, the amended assessments should be invalid pursuant to s175 of the ITAA 1936.

However, the full Federal Court found that the Commissioner had a duty to determine the taxpayer's taxable income from 'returns and from any other information in his posession or from any one or more of these sources'. As such, the Commissioner or any authorised officer was to have at all times full and free access to all buildings, places, books, documents and other papers for any of the purposes of the ITAA 1936 & ITAA 1997, pursuant to s166 & s263(1) of the ITAA. It was clear to the Federal Court that when the ATO officers obtained the documents, they were acting for the purposes of the ITAA 1936 & ITAA 1997 and for no other purpose. Similarly, their actions had not been in 'bad faith' and as such, did not amount to conscious maladministration.

This case clearly demonstrates the ATO's very broad powers under s.166 and s263(1) of the ITAA 1936 which effectively allows for the use of materials from various sources (both legal and illegal) to determine amended assessments.

David Sylvester
Solicitor Director

Thursday, March 10, 2011

Precinct Safety Assessments

Greetings one and all.

Welcome on board to those organisations in the Liquor & Gaming industry who have taken up our offer to provide 'Precinct Safety Assessments' in line with the recent Precinct Liquor Accord requirements. If you haven't attended to your assessment as yet and would like our assistance in developing your Hotel/Club safety strategy, feel free to give us a call at the office or on the mobile telephone.

Don't forget those fateful words of Winston Churchill who said, "He who fails to plan, plans to fail".

Best regards

Dave Sylvester
Solicitor Director

Thursday, February 3, 2011


Hi everyone and welcome to our Legal News and Issues blog. From time to time, we will be adding articles of interest regarding legal areas covered by our firm. We will also post some general legal information regarding your legal rights over the next few weeks.

Please feel free to add comments if a particular issue or topic interests you.

We will also be adding a Facebook page and Twitter account in the next few days, so keep an eye out for that.


David Sylvester
Solicitor Director