O Christmas tree, O Christmas tree ... what are my rights this season, legally?

If you were, just for example, a slightly portly, older gent in a red and white suit who soon plans to travel around the globe delivering presents, assisted only by reindeer and a touch of magic, what legal issues might you encounter?

While Santa may not need to lawyer up ahead of his big night, his journey does raise several interesting legal issues that have implications beyond the Christmas season – and there’s some lessons for the rest of us, too.

Can Santa fly freely around the world in his sleigh?

The Convention on International Civil Aviation^[1] sets out the standards required for global air travel. Santa is not bound by these rules because he’s not a sovereign state, but he faces problems anyway.

For starters, he travels at an estimated 10,703,437 km/h^[2] – significantly faster than the average 860 km/h^[3] of commercial flights.

This speed is contrary to the convention, which directs “safe and orderly” civil aviation. It also requires Santa to seek permission to fly over the territory of another state, unless it’s an emergency. It is unlikely Santa falls within the emergency exception, however, as his flight is always scheduled for December 24.

Finally, Santa must submit his sleigh and cargo for inspection when landing if requested by the authorities. Alas! Santa does not allow peremptory peeking into his sack of gifts.

Read more: Avoid a bum steer this summer: here's what Australian law says about public nudity^[4]

Santa has a camera on his sleigh to assist with landings. Does this raise legal problems?

The law says that you own your land and sky only to a depth and height for your reasonable enjoyment.

If Santa, hovering above your house with a camera, is disturbing your right to enjoy your property, the law may give you a remedy in what is known as the tort of nuisance or the tort of breach of confidence.

However, the intrusion has to be persistent and annoying, and if it’s only occurring on Christmas Eve, and if Santa is welcomed, it’s unlikely a magistrate would order him to stop.

If Santa is filming, you cannot, generally speaking, complain about any breach of privacy. True, there are some legislative remedies against such filming found in the NSW Crimes Act^[5], the Qld Criminal Code^[6], and the SA Summary Offences Act^[7], but usually only if he’s filming for what might be considered voyeuristic purposes, and not for simply guiding the sleigh onto your roof.

A Christmas dinner guest has a few drinks and starts to espouse views you find offensive. Can you eject them from your home?

Laws protecting people from offensive, humiliating or vilifying speech generally only apply to public spaces, such as workplaces^[8].

But if you are hosting a party in your own home, you have the right to ask a guest to leave at any time, including if you don’t like their jokes. If they stay without your consent, then they are trespassing, and you can call the police to help you remove them^[9].

Unwanted guests who use offensive language or refuse to obey directions from police can then face criminal penalties^[10]. And while calling the police definitely sounds like a party stopper, you should remember that, as a host, you owe a duty of care^[11] to the other guests to take reasonable steps to ensure they are not exposed to foreseeable risks of harm.

As Santa leaves your property, he is injured by a tripwire designed to deter trespassers that you installed. Can he sue?

Occupiers of land owe a duty of care to any person entering their land to ensure they will not be injured by virtue of the state of the premises^[12].

At common law, Santa can sue you and seek compensation. The court hearing the case would consider factors such as the circumstances in which Santa became exposed to the danger, his ability to appreciate the danger, the extent to which you ought to have been aware that Santa was arriving, and whether it was appropriate to eliminate or warn Santa against the danger.

But in some jurisdictions, for example in South Australia, an occupier does not owe a duty of care to a trespasser. There is an exception: a duty is owed if the presence of that trespasser was reasonably foreseeable^[13]. Santa is trespassing, yes, but you are expecting him, so his arrival is reasonably foreseeable. That being the case, you are likely to be liable for his injuries.

Wealthy Uncle Harry is choking on his Christmas pudding, and near death. Knowing he has left you a large inheritance, can you refrain from assisting him?

The answer depends on the relationship between you and Uncle Harry. Under the criminal law of Australia, there is no general duty to assist a choking person, unlike in some other countries^[14].

But a duty may arise if you are Harry’s carer, or if you are a medical practitioner. You may also attract a duty of care if you ushered the other guests out of the room, saying you would look after Harry^[15].

If Harry chokes to death and you did have a duty to intervene, you may be found guilty of manslaughter. On conviction, you can wave goodbye to the inheritance. The forfeiture rule ^[16]states that you cannot inherit from a person whom you have unlawfully killed.

Read more: You can say you wish King Charles would die, but you can't urinate on your back tyre: 8 common myths about Australian law^[17]

Your beloved dumps you after Christmas. Can you get those expensive gifts back?

No. In law, effective transfer of goods occurs when the giver delivers possession of an item with the intention to give away^[18] that item. So handing over a wrapped gift with the words, “this is for you” would be sufficient to transfer ownership.

In a marriage or de facto relationship, the news might be slightly better for the giver. The Family Law Act allows a court to divide all property of the parties when a relationship breaks down, and little regard is paid to who actually owns what. Instead, the court will consider the contributions each has made to the relationship, and each party’s future needs^[19]. It is possible that, in a “just and equitable” settlement, you’d end up with the gifted items back in your hands. But don’t hold your breath.

References

1. ^{^} Convention on International Civil Aviation (www.icao.int)
2. ^{^} 10,703,437 km/h (www.labmate-online.com)
3. ^{^} average 860 km/h (epicflightacademy.com)
4. ^{^} Avoid a bum steer this summer: here's what Australian law says about public nudity (theconversation.com)
5. ^{^} NSW Crimes Act (legislation.nsw.gov.au)
6. ^{^} Qld Criminal Code (www5.austlii.edu.au)
7. ^{^} SA Summary Offences Act (www5.austlii.edu.au)
8. ^{^} such as workplaces (humanrights.gov.au)
9. ^{^} remove them (lawhandbook.sa.gov.au)
10. ^{^} criminal penalties (www.austlii.edu.au)
11. ^{^} a duty of care (research.bond.edu.au)
12. ^{^} state of the premises (www.austlii.edu.au)
13. ^{^} reasonably foreseeable (www.austlii.edu.au)
14. ^{^} unlike in some other countries (en.wikipedia.org)
15. ^{^} you would look after Harry (www.nswlr.com.au)
16. ^{^} The forfeiture rule (lr.law.qut.edu.au)
17. ^{^} You can say you wish King Charles would die, but you can't urinate on your back tyre: 8 common myths about Australian law (theconversation.com)
18. ^{^} intention to give away (www.austlii.edu.au)
19. ^{^} each party’s future needs (classic.austlii.edu.au)