Archives For Miscellany

This morning, the Sydney Morning Herald reported a story about a Sydney based hire-car driver who, sick of Uber X drivers, ordered one himself and proceeded to “arrest” him (J. Saulwicjk and M. Power, “Taxi and hire car drivers plot fight back against uberX“, Sydney Morning Herald, 24 November 2014).

Holy disruptive industries, Batman!

Holy disruptive industries, Batman!

The arrest was obviously a manufactured spectacle, with the disgruntled hire-car driver inviting SMH’s reporters to the Star to witness the thing.

The article wasn’t quite clear about what the driver did when the poor Uber X driver arrived. The scant detailing seemed to suggest that:

  1. somehow the hire-car vigilante got the Uber X driver out of his car; and,
  2. somehow the hire-car vigilante got the Uber X driver to stay at the scene, not only until Casino Security arrived, but until the police arrived.

Since the text of the article suggested that this was more than a mere venting of the hire-car driver’s spleen, but an “arrest”, I will assume that the traditional definition of arrest applies, simply, that the Vigilante deprived the Uber X driver of his liberty.

Citizen’s arrest

The SMH stated that it is perfectly legal to undertake a “citizen’s arrest” where you see someone committing an offence.

I don’t think that we should take this statement at face value. Rather, let’s break this down step by step.

The SMH statement seems to be based on S100 of LEPRA, which states:

Section 100 –  Power of other persons to arrest without warrant

(1) A person (other than a police officer) may, without a warrant, arrest a person if:

(a) the person is in the act of committing an offence under any Act or statutory instrument, or

(b) the person has just committed any such offence, or


(2) A person who arrests another person under this section must, as soon as is reasonably practicable, take the person, and any property found on the person, before an authorised officer to be dealt with according to law.

Section 231 of LEPRA then provides that, in the course of the arrest, the vigilante “may use such force as is reasonably necessary to make the arrest or to prevent the escape of the person after arrest”.

So, there are a few elements that need be carried out for the vigilante arrest to be within the law:

  1. the arresting person must not be a police officer [✓]
  2. the arrested person must satisfy one of the conditions in sub-s (a)-(c) [?]
  3. the arresting person must take the arrested person to an authorised officer [x]

The first requirement, here is uncontroversial.

… an offence under an Act …

The second is a little more complex. First, it has to be shown that the arrested person was doing something that is an offence under an Act.

There is relevant legislation. There are, here, provisions about who may be a taxi-driver, and what constitutes a hire-car.

That the arrested person does not comply with these requirements is not enough to arrest him or her. The arresting person must show that driving an Uber X is not only breaching a provision of these laws, but that such a breach is an offence under that legislation. This is not plain, and the NSW Government’s jawboning on the issue (despite what the SMH may say) does not make it more of an offence.

Further, even if it is shown that driving in such a manner is an offence, the arresting person must show that a breach was occurring or just occurred. If the Uber X was electronically hailed, but no offence was yet committed (despite the likelihood of the offence occurring), then the arrest is in breach of these provisions of LEPRA.

… an authorised officer …

The third requirement burdens the arresting person with producing the arrested person before an “authorised officer” (see s 3 definition of “authorised officer”). This is not an open-ended category, but is strictly defined, including only a magistrate, registrar or certain Attorney General’s department employees.

This certainly does not include police officers, who were the only persons called after the “arrest,” depriving the arrested person from the right to be “dealt with according to the law”.

This failure brings the whole process outside of the provisions for a “citizen’s arrest” under LEPRA – leaving the hire-car batman (likely) outside of the protections of an arresting person under LEPRA.

… such force as is reasonably necessary …

Even if the arrest is carried out to the letter of the law, our hire-car Batman is still not in the clear. If any force was used in making the arrest, it must have been reasonably necessary.

Here, you can get in trouble even if the crime that the arrested person was detained for was serious. There is not much flexibility here, as vigilantism is discouraged.

Where the “offence” was one of a type that would be ordinarily dissuaded by the issuance of a fine or a court attendance notice, and where a reasonable cop would be very unlikely to arrest someone (e.g. most traffic and licensing offences, and most offences covered by the relevant legislation), then leniency would be even narrower. You are unlikely to get away with anything.

So what?

If our Batman arrests a person improperly, or with greater force than is reasonably necessary, he himself will have committed at least tortious assault and false imprisonment and possibly some crimes as well.

This is a dangerous game (which could lead to the absurd result where one party “citizens arrests” the person who originally tried to “citizens arrest” them for committing crimes in the attempt of an arrest, potentially ad infinitum), and should definitely not have been encouraged by the SMH.

Don’t try this at home, or anywhere – even if you are doing it right, you can get in trouble.

Joke's on you

Joke’s on you


Working as a Tipstaff in the Supreme Court, I often get called by barristers and their assistants if the Judge is robing for the day’s matter. To clear things up, I present to you the following cheat-sheet, although, remember, if you are ever unsure, feel free to call the chambers of the Judge you are before and the Tipstaff or Associate should be able to help you out. Also note, this is a general guide, some Judges have different robing habits.

M. A. Jinnah in barrister's robes

Warning: robing has the side-effect of making barristers look bad-ass. Public domain, via Wikimedia Commons

Rule of thumb:

For a hearing: robe.

This is the basic rule. From this, most other rules derive. For example, since judgment is an extension of a hearing, you robe for judgment as well.

Second rule of thumb:

Generally, do not robe for a Notice of Motion.

However, there are some exceptions to this second rule, especially when certain “court lists” are involved.

Exception one:

For an appearance before the Duty Judge, Robe.

I believe that this is because, in the Duty List, there may be a situation where, although the case is brought at short notice, the matter may be dealt with as if there was a hearing.

Exception two:

For an appearance in the Probate or Protective Lists, Robe.

This appears to be a matter of tradition.

There’s a summary list after the jump… Continue Reading…

C.f. the 8th Amendment of the United States Constitution with “Botched lethal injection takes nearly two hours to kill Arizona inmate.” Horrifying.

Text of 8th Amendment:

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

See also:


Bitcoin is Property

oatsandsugar —  July 22, 2014 — 2 Comments

Nicholas Mirzai and I recently wrote an article for the Australian Property Law Bulletin:

“The Bitcoin is Property” N Mirzai and J Ottensooser (2014) 29(5) APLB 94

The article discusses whether bitcoin is property, in both common law and following the economic indicia. Further, this article discussed the definition of bitcoin, a bit of international context and some policy ramifications of bitcoin being classified as property.

Bitcoin, bitcoin coin, physical bitcoin, bitcoin photo

Photo by Antana CC-By-NC-SA

Here’s a sneak peek:

Continue Reading…

This summer (in the northern hemisphere), the New Yorker has taken down its paywall! The archive is now free to read. This magazine has some of the best long-form writing I have ever had the pleasure to read.
Don’t squander this opportunity to read some amazing articles!
New Yorker New Website

Credit Illustration by Barry Blitt.

Some articles I recommend:

“Nature has very conveniently cast the action of our sight outwards.  […] Everyone says: ‘Look at the motions of the heavens, look at society, at this man’s quarrel, that man’s pulse, this other man’s will and testament’—in other words always look upwards or downwards or sideways, or before or behind you. Thus, the commandment given us in ancient times by the god at Delphi was contrary to all expectations: ‘Look back into your self; get to know your self; hold on to your self.’ . . . Can you not see that this world of ours keeps its gaze bent ever inwards and its eyes ever open to contemplate itself? It is always vanity in your case, within and without, but a vanity which is less, the less it extends. Except you alone, O Man, said that god, each creature first studies its own self, and, according to its needs, has limits to his labors and desires. Not one is as empty and needy as you, who embrace the universe: you are the seeker with no knowledge, the judge with no jurisdiction and, when all is done, the jester of the farce.”

Continue Reading…

An Indian motherA mother in a village served by the Eko/- finance system peeks past her house to look at the commotion we were causing. Once I began taking photos in the village, all of the children of the town rushed to us, this lady’s sons included.

UTS: BUiLD Profile

World Trade Organisation releases a video, featuring an interview of me, summarising the Model, which took place in St Gallen and Geneva, Switzerland, earlier this year.

I am currently exhibiting in the UTS Tower gallery, with BUiLD, and I have a spread in the latest issue of Vertigo (see pages 22-23).  These are all photos from my trips to India and Sri Lanka.  If you can, check it out, some of the prints in the UTS exhibition are massive (A0 size), so you can really experience them!  Let me know what you think.

My Vertigo spread "South Asia through the lens"

Click through for the PDF of the issue of Vertigo!

Access to my dropbox!