From TCP # 16 & 11 This is the article that changed everything
and proved we can make a difference!
This article was well read by boaties
and the various authorities as is evidenced by a marked change
in enforcement practices. Boaties being less inclined to cop
the abuse and the officers less inclined to risk law suit! Yes,
thats right, you can sue and even physicaly defend your home
from anyone who invades it without a warrent. CLICK
HERE FOR DETAILS.
is your home!
What to do when the
My name is Chris Ayres, I a retired lawyer
my areas of expertise are administrative law, taxation law and
human rights. Being retired I cannot appear in court for anyone,
nor can I give legal advice. Should you require legal advice
or representation you must seek the aid of a practising lawyer
either through a community legal service or private solicitor.
What I outline in this article is merely legal information. You
should seek legal advice from a practising lawyer and should
not rely on what I have written.
Under common law, your vessel is your place of residence if it
is as a judge once described it "The place of residence
of an individual is determined ... by reference to where he eats,
sleeps and has his settled or usual abode... he may also reside
where habitually lives, even if this is in hotels or on a yacht
or some other place of abode
" A houseboat is also
included in the definition of a 'premise' in Queensland under
the Residential Tenancies Act (Qld) 1994.
In taxation law, a vessel has long been
seen as a place not just of residence (capital gains tax legislation
is expansive and includes a vessel as a place of abode, goods
and services tax law specifically includes a floating home and
the Income Tax Assessment Act (1997) includes a "houseboat
or other mobile home" as a 'dwelling'. Under taxation law,
it is recently been decided that you can even have a 'home-office'
for which you can claim a taxation deduction on a vessel!
Finally, the Criminal Code of Queensland
also gives a lot of defence of a vessel:
278 Defense of possession of real property
or vessel with claim of right
When a person is in peaceable possession
of any land, structure, or vessel, with a claim of right, it
is lawful for the person, and for any person lawfully assisting
him or her or acting by his or her authority, to use such force
as is reasonably necessary in order to defend the person's possession,
even against a person who is entitled by law to the possession
of the property, provided that he or she does not do grievous
bodily harm to such person.
So your vessel is not a vehicle, it is
a place of residence. As such you may claim the legal protection
normally accorded a place or residence.
So what can we do?
1. Do not allow them right to board until the following steps
are followed. These do not amount to obstruction, merely reasonable
conditions to protect yourself (yes) and your place of residence
from unlawful intrusion.
2. Request identification of the officer(s) concerned. They must
3. Make a note of date, time, place, name(s) or persons concerned,
vessel used by the officers seeking to board and details of all
questions asked and of your responses. Perhaps you partner could
do this or you may choose to use a tape recorder. Remain calm.
The log is a legal record that you may need to produce in court.
4. Photograph the officer(s) concerned and their vessel. Digital
cameras are excellent for this. The photo is a legally admissible
record of the parties concerned and is usually time and date
stamped. It can be used to send through to Fisheries for confirmation
that the officers concerned are acting lawfully. The photo can
if you choose - be posted on a website or printed and displayed
in public places.
5. Request the officer(s) produce a lawful warrant to enter,
duly signed and prepared by a Magistrate or Justice of the Peace
(under Section 77 (4)) "Unless entry is authorised by warrant,
an authorised officer may only exercise the powers mentioned
in section 125 for a place if its occupier consents to the use
of the powers when consent for entry is given." A Harbour
Master requires a duly executed warrant and I suspect it would
be a brave magistrate indeed who would allow a mere Fisheries
inspector to board a vessel and seize property without a warrant.
6. Do not resist or obstruct any officer(s) who still persist,
but remind them that:
· They are civilly liable under Section 76 for acts or
damage caused through their negligence. Failure to obtain a warrant
may be seen as negligence. Explain you are simply trying to protect
· You are also entitled to compensation for damage under
Section 110. Nervous shock claims can be rather large!
· Any 'evidence' obtained without warrant may not be admissible
in court. The first thing a good criminal lawyer does is question
the validity of a warrant, ask any policeman!
· Once aboard, photograph and record anything and everything
· Offer them a good cup of tea and remain calm and polite
at all times.
Chris Ayres BA(Hons)MA Med
(Hons)LLB GradDipLegPracM. Tax
Solicitor of the Supreme Courts of
NSW and QLD Solicitor to the
High Court of Australia