SUPREME COURT OF SOUTH AUSTRALIA - …resources.news.com.au/files/2012/10/18/1226498/626505-an...BELL v POLICE [2012] SASC 188 Magistrates Appeal: Criminal 1 KOURAKIS CJ: On 4 December

On Appeal from MAGISTRATES COURT OF SOUTH AUSTRALIA (MAGISTRATE KITCHIN)

MCPIR-10-2413

Appellant: GRAEME ANTHONY BELL Counsel: DR S CHURCHES WITH MR S MCDONALD -

Solicitor: BOYLAN LAWYERS

Respondent: POLICE Counsel: MR T GOLDING - Solicitor: THE CROWN SOLICITOR FOR THE

STATE OF SOUTH AUSTRALIA

Intervener: ATTORNEY-GENERAL FOR THE STATE OF SOUTH AUSTRALIA Counsel: MR T

GOLDING - Solicitor: THE CROWN SOLICITOR FOR THE STATE OF SOUTH AUSTRALIA

Hearing Date/s: 19/01/2012, 27/02/2012

File No/s: SCCIV-11-1749

A

SUPREME COURT OF SOUTH AUSTRALIA (Magistrates Appeals: Criminal)

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not

breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated.

BELL v POLICE

[2012] SASC 188

Judgment of The Honourable Chief Justice Kourakis

17 October 2012

MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA -

APPEAL TO SUPREME COURT

MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY -

PROCEDURE - ORDERS AND CONVICTIONS - SENTENCING -

PROCEDURE ON SENTENCING - TYPES OF ORDER ON SENTENCE

TRAFFIC LAW - OFFENCES - PROCEDURE - SENTENCE AND

PENALTY

Appeal against a forfeiture order imposed by a Magistrate – appellant convicted and

sentenced by a Magistrate for the offence of driving with a prescribed concentration of

alcohol (PCA) – the appellant’s vehicle was seized and impounded – the prosecution filed

an application in the Magistrates Court for the forfeiture of the appellant’s vehicle – an

order of forfeiture was made by the Magistrate pursuant to s 12(1)(a)(iii) of the Criminal

Law (Clamping, Impounding and Forfeiture of Vehicles) Act 2007 (SA) (the Act) – the

prosecution relied on two previous PCA offences, committed in 2002 and 2005, as the

prescribed offences committed within the qualifying period stipulated by the Act – the

issues on appeal were: (1) whether the previous PCA offences did not come within the

scope of the Forfeiture Act because the Forfeiture Act was not yet enacted and therefore the

offences were not prescribed at the time the offences were committed; and (2) whether the

Forfeiture Act is invalid because it requires the Courts to exercise powers which are

incompatible with, and repugnant to, judicial power under the Constitution.

Held: (1) appeal ground rejected – s 10 of the Act gives the statute retrospective effect – the

provisions of the Act allow an application to be made if the offences are committed within

the qualifying period and are prescribed at the time of the application; (2) on an application

2

by the prosecution, the Act requires Courts to impose a substantial additional criminal

penalty (forfeiture) after final sentencing orders have been made – the Act is inconsistent

with the judicial integrity implication – appeal allowed – order of forfeiture set aside.

Road Traffic Act 1961 (SA) s 47B(1)(a); Criminal Law (Clamping, Impounding and

Forfeiture of Vehicles) Act 2007 (SA) s 3, s 4, s 5, s 9, s 10, s 11, s 12, s 13, s 20, s 24, s 54,

Pt 2, Pt 3; Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Regulations

2007 (SA) reg 4(b); Criminal Law (Clamping, Impounding and Forfeiture of Vehicles)

(Miscellaneous) Amendment Act 2009 (SA); Summary Offences Act 1953 (SA) Pt 14A;

Statutes Amendment (Misuse of Motor Vehicles) Act 2004 (SA); Australian Courts Act

1828 (UK) s 5; Serious and Organised Crime (Control) Act 2008 (SA); Commonwealth of

Australia Constitution Act 1900 (UK) s 75(v), Ch III, referred to.

Maroondah City Council v Fletcher [2009] VSCA 250; Maxwell v Murphy (1957) 96 CLR

261; Fisher v Hebburn Ltd (1960) 105 CLR 188; Barton v The Queen (1980) 147 CLR 75;

Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51; South Australia v

Totani (2010) 242 CLR 1; Fardon v Attorney-General (Qld) (2004) 223 CLR 575,

discussed.

Palgo Holdings Pty Ltd v Gowans (2005) 221 CLR 249; Geaghan v D’Aubert [2002]

NSWCA 260; Robertson v City of Nunawading [1973] VR 819; Coleman v Shell Co of

Australia Ltd (1943) 45 SR (NSW) 27; Re A Solicitor’s Clerk [1957] 1 WLR 1219; La

Macchia v Minister for Primary Industry (1986) 72 ALR 23; Al-Kateb v Godwin (2004)

219 CLR 562; Morrisey v Bright [1978] 2 NSWLR 1; Williams v Spautz (1992) 174 CLR

509; Jago v District Court (NSW) (1989) 168 CLR 23; Police v Sherlock (2009) 103 SASR

147; Walton v Gardiner (1993) 177 CLR 378; Dowling v Colonial Mutual Life Assurance

Society Ltd (1915) 20 CLR 509; Rozenbes v Kronhill (1956) 95 CLR 407; Thomas v

Mowbray (2007) 233 CLR 307; Chu Kheng Lim v Minister for Immigration, Local

Government and Ethnic Affairs (1992) 176 CLR 1; Kirk v Industrial Relations Commission

of New South Wales (2010) 239 CLR 531; Associated Provincial Picture Houses Ltd v

Wednesbury Corporation [1948] 1 KB 223, considered.

BELL v POLICE

[2012] SASC 188

Magistrates Appeal: Criminal

1 KOURAKIS CJ: On 4 December 2010 the appellant, a resident of Port Pirie,

drove his 1996 Commodore utility (the ute) on a road in that town with a

prescribed concentration of alcohol, in contravention of s 47B(1)(a) of the Road

Traffic Act 1961 (SA) (RTA). On his apprehension the ute was seized and

impounded.

2 On 16 December 2010, the police filed an application in the Magistrates Court

for the forfeiture of the ute and served a notice to that effect on the appellant. On

10 January 2011, the appellant was convicted of the offence, fined $500 and his

licence was disqualified for six months from that date. He was ordered to pay

impounding fees of $848.20 pursuant to s 9(1) of the Criminal Law (Clamping,

Impounding and Forfeiture of Vehicles) Act 2007 (SA) (the Forfeiture Act). The

forfeiture application was adjourned.

3 The prosecution’s application for forfeiture was heard and determined on 31

October 2011. The prescribed offences committed within the qualifying period

stipulated by the Forfeiture Act on which the prosecution application relied were

offences of driving with a prescribed concentration of alcohol (PCA offences),

committed on 20 March 2005 and 10 March 2002. The appellant had been

convicted of the PCA offences on 10 November 2005 and 10 March 2002

respectively. The Magistrate briefly considered the appellant’s challenge to the

operation and validity of the Forfeiture Act but ultimately made an order for the

forfeiture of the ute pursuant to s 12(1)(a)(iii) of the Forfeiture Act.

4 The Forfeiture Act commenced operation on 16 December 2007. The Criminal

Law (Clamping, Impounding and Forfeiture of Vehicles) Regulations 2007 (the

Forfeiture Regulations) commenced operation on the same day. PCA offences

are, and always have been, prescribed by reg 4(b) of the Forfeiture Regulations.

Some other offences which had been prescribed by the Forfeiture Regulations

when first made were later removed on 31 October 2010, and other offences

were prescribed in their place.

5 The appellant appeals against the forfeiture order on two grounds.

6 First, he contends that on a proper construction of s 12(1)(a)(iii) and s 11(c)(ii) of

the Forfeiture Act, the PCA offences do not come within their scope because the

Forfeiture Act had not yet been enacted and because, obviously enough, PCA

offences were not yet prescribed offences for the purposes of the Forfeiture Act.

I will refer to prescribed offences committed within the periods stipulated by

those subparagraphs as qualifying offences, and the prescribed offence, which,

on conviction, attracts a forfeiture application as the confiscation offence.

Kourakis CJ [2012] SASC 188

2

7 A “prescribed offence” is defined by s 3 of the Forfeiture Act to mean, relevantly

to this appeal, an offence of a kind prescribed by regulation. The appellant

contends that on a proper construction of that term he had not “been found guilty

of or expiated at least two other prescribed offences within 10 years of the date of

the offence in respect of which the application for forfeiture is made”. The

appellant contends that to avoid any retrospective operation of the Forfeiture Act

the term should be construed to mean “an offence, which was a prescribed

offence prior to its commission”. The appellant contends that at the very least

only offences of a kind prescribed after the commencement of the Forfeiture Act,

and pursuant to its terms, can be relied on as qualifying offences.

8 The appellant submits that his construction of the term is also supported by the

presumption that statutes are not intended to inflict double punishment. The

appellant argues that if forfeiture were to be ordered after a defendant had been

sentenced for the confiscation offence, either because of the subsequent

prescription of offences of a kind which he had committed in the qualifying

period, or on the basis of subsequently committed prescribed offences, the

forfeiture would be an additional punishment imposed for both the confiscating

offence and the qualifying offences.

9 I reject the appellant’s first ground. The provisions of the Forfeiture Act reveal

an intention to allow an application for forfeiture to be made if the defendant has

committed offences within the qualifying period which are, at the time of the

application, of a prescribed kind. Section 10 of the Forfeiture Act is, on its face,

directed to this very issue and gives the statute retrospective effect in clear and

intractable terms. I reject the appellant’s construction of the term “prescribed

offence”. I develop my reasons further below.

10 The appellant’s second ground of appeal is that s 12(1)(a)(iii) of the Forfeiture

Act is invalid because it requires the courts of this State to exercise powers, on

the application of the prosecution, which are incompatible with, and repugnant

to, the exercise of judicial power under the Constitution. I uphold the appellant’s

constitutional objection. The subsequent references in my reasons to the effect

and invalidity of the scheme implemented by the Forfeiture Act are references to

the effect given to that scheme through, and the invalidity of, s 12(1)(a)(iii) of the

Forfeiture Act. The Forfeiture Act requires the courts of this State, on an

application made by the prosecution, to impose, as a substantial additional

criminal penalty, forfeiture of the motor vehicle specified in the prosecution’s

application after they have finally sentenced a defendant convicted of a

confiscation offence. The forfeiture order substantially increases the effective

penalty above that fixed by the Court for the confiscation offence in the exercise

of its sentencing discretion and after balancing the competing considerations

applicable to that offence. In imposing that additional penalty the Court acts

ministerially, in the sense that it acts as an instrument of the executive

government, to make an order which is dictated by the very terms of the

prosecution’s application. The application, which may be made many years after

[2012] SASC 188 Kourakis CJ

3

the offender has been finally sentenced for the confiscation offence in accordance

with the ordinary criminal process, is made in the unfettered discretion of the

prosecution. The motor vehicle selected for forfeiture may be either the vehicle

used in the commission of the offence or any other vehicle of which the offender

is the registered proprietor. The prosecution may make the application in

circumstances in which the making of an order could only be regarded as

capricious, yet the Court is impotent to restrain the use of its process to achieve

that result. The forfeiture jurisdiction conferred on the courts of this State is

incompatible with their constitutional status as courts which must be fit for

investiture with federal judicial power. I develop my reasons for so concluding

below.

Construction of the Forfeiture Act

11 I set out for convenience the more pertinent sections of the Forfeiture Act.

The Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Act

2007

3—Interpretation

(1) In this Act, unless the contrary intention appears—

…

"forfeiture offence" means an indictable offence of a kind prescribed by regulation

for the purposes of this definition;

"prescribed offence" means a forfeiture offence or an offence of a kind prescribed

by regulation for the purposes of this definition;

"registered owner" of a motor vehicle means a person recorded in a register kept

under the Motor Vehicles Act 1959 or the law of another State or Territory of the

Commonwealth as an owner of the motor vehicle;

"relevant authority" means—

(a) in relation to the clamping or impounding of a motor vehicle under Part 2—a

police officer or person authorised by the Commissioner to exercise the

powers of a relevant authority; or

4—Powers under Act in addition to other penalties

(1) A power exercisable under this Act is exercisable in addition to any other penalty

that may be imposed on a person in relation to a prescribed offence.

(2) However, a court must, in imposing another penalty on a person in relation to a

prescribed offence, have regard to any exercise of powers under this Act.

5—Power to clamp or impound vehicle before proceedings finalised

(1) If a person—


4

(a) is to be, or has been, reported for a prescribed offence and has been advised

of that fact; or

(b) has been charged with, or arrested in relation to, a prescribed offence,

a relevant authority may clamp or impound either—

(c) a motor vehicle allegedly used by the person in the commission of the

offence; or

(d) any motor vehicle of which the person is a registered owner.

…

10—Interpretation

For the purposes of an application for an order under this Part, a person will be taken to

have been found guilty of, or to have expiated, a prescribed offence if the person has been

found guilty of, or has expiated, an offence that is, at the date of the application, a

prescribed offence.

11—Application of Part

This Part applies to a conviction for a prescribed offence if—

(a) the offence was committed after the commencement of this Part; and

(b) either—

(i) the offence is a forfeiture offence; or

(ii) the convicted person has been found guilty of or expiated at least

1 other prescribed offence committed or allegedly committed within

10 years of the date of the offence; and

(c) either—

(i) a motor vehicle was used by the convicted person in the commission

of the offence and that motor vehicle was not, at the time of the

offence, stolen or otherwise unlawfully in the possession of the person

or being used by the person in circumstances (if any) prescribed by

regulation; or

(ii) the convicted person is a registered owner of a motor vehicle.

12—Court order for impounding or forfeiture on conviction of prescribed offence

(1) Subject to section 13, if this Part applies to a conviction for a prescribed offence,

the court that records the conviction must, on the application of the prosecution—

(a) order that the motor vehicle specified in the application is forfeited to the

Crown if—

(i) the offence is a forfeiture offence; or


5

(ii) the convicted person has been found guilty of or expiated at least

1 other prescribed offence committed or allegedly committed within

12 months of the date of the offence; or

(iii) the convicted person has been found guilty of or expiated at least

2 other prescribed offences committed or allegedly committed within

10 years of the date of the offence; or

(b) order that the motor vehicle specified in the application be impounded by the

relevant authority for a period not exceeding 6 months if—

(i) the convicted person has been found guilty of or expiated 1 other

prescribed offence committed or allegedly committed within 10 years

of the date of the offence; and

(ii) paragraph (a) does not apply.

(1a) If the court makes an order under subsection (1), it must also order that the

convicted person pay to the relevant authority fees calculated in accordance with

the regulations in relation to the forfeiture or impounding of the motor vehicle.

…

13—Court may decline to make order in certain circumstances

(1) A court that records a conviction to which this Part applies may decline to make an

order under this Part if satisfied that—

(a) the making of the order would cause severe financial or physical hardship to

a person; or

(b) the offence occurred without the knowledge or consent of any person who

was an owner of the motor vehicle at the time of the offence; or

(c) the making of the order would significantly prejudice the rights of a credit

provider; or

(d) the motor vehicle the subject of the application is a motor vehicle referred to

in section 11(c)(i) and has, since the date of the offence, been sold to a

genuine purchaser or otherwise disposed of to a person who did not, at the

time of the sale or disposal, know or have reason to suspect that the motor

vehicle might be the subject of proceedings under this section.

12 The predecessor legislation of the Forfeiture Act was Pt 14A of the Summary

Offences Act 1953 (SA) (SOA). That part was inserted in the SOA by the

Statutes Amendment (Misuse of Motor Vehicles) Act 2004 (SA) which came into

operation in 2005. It provided for a forfeiture or impounding order to be made

on conviction of an impounding offence committed after the commencement of

that Part if the offender had committed other prescribed offences in the period of

five years preceding the date of the impounding offence. Particular kinds of

offences were prescribed by Pt 14A itself and the Part therefore applied on

conviction of an impounding offence even if the qualifying offences had been

committed before its enactment.


6

13 The vehicle which is specified in a forfeiture application made pursuant to s 12

of the Forfeiture Act must be a vehicle to which the Part applies. It follows that

only the vehicle used in the commission of an offence, or another vehicle owned

by the offender, can be the subject of an application. Apart from delineating the

scope of its operation in that way, Pt 3 of the Forfeiture Act does not expressly,

or by implication, limit the prosecution’s discretion to select any one of a number

of vehicles which Pt 3 may render vulnerable to forfeiture on conviction for a

confiscation offence in a particular case. Moreover if Pt 3 applies, and the

jurisdiction of the Court is enlivened, the only issue for the Court to determine is

whether the defendant has expiated, or has been convicted, of more than one

offence committed in the prescribed period, and when the offence or offences

were committed.

14 On the natural and ordinary meaning of the words of Pt 3 of the Forfeiture Act,

the scheme it enacts appears to be relatively straight forward. On conviction of a

prescribed offence committed after the commencement of Pt 3 of the Forfeiture

Act the offender is, subject to satisfaction of the conditions stipulated by ss 11(b)

and 12(1)(a), liable to an order for forfeiture of the vehicle specified in the

application brought by the prosecution.

15 The apparent simplicity of the scheme belies its underlying complexity. It is

necessary first to draw attention to the period in which the qualifying offence

must be committed and the consequences of the way in which the period is

defined for the operation of the Forfeiture Act. The period in which the

qualifying offence must be committed, or (for expiated offences) allegedly

committed, to allow a forfeiture application to be made is the period of time

“within 10 years of the date of the” confiscation offence. I will refer to this

period as the qualifying period. The qualifying period stipulated in ss 11 and

12(1)(iii) of the Forfeiture Act, when it was first enacted, was 10 years preceding

the commission of the confiscation offence. The current formulation was

inserted by the Criminal Law (Clamping, Impounding and Forfeiture of Vehicles)

(Miscellaneous) Amendment Act 2009 (SA) (the Amendment Act). The natural

meaning of the formulation of the qualifying period inserted by the Amendment

Act is that it comprises the 10 years preceding the date of the commission of the

confiscation offence and the ensuing 10 years. That is how the phrase was

understood and explained in the second reading speech on the introduction of the

Bill.1

16 The legislative history of a statutory provision is an important part of the context

in which it is to be construed. In Maroondah City Council v Fletcher, the Court

of Appeal of New South Wales explained:2

1 Legislative Counsel Debates, 28 October 2009, P3 8 11 11 (Hon. P Holloway).

2 Maroondah City Council v Fletcher [2009] VSCA 250 at [71]; See also Palgo Holdings Pty Ltd v

Gowans (2005) 221 CLR 249 at 255 – 260.; Geaghan v D’Aubert [2002] NSWCA 260 at [22] – [24]

approving Pearce and Geddes Statutory Interpretation in Australia (5th

Ed).


7

If one views the whole scheme of a legislation, it is possible to see the way in which the

legislature is dealing with the subject matter: whether it is extending or contracting

benefits; whether it is increasing penalties and so on. Such information must be of use to

a court in its endeavour to understand the legislature’s wishes.

17 It is evident that the purpose of the Amendment Act was to strengthen and extend

the operation of the Forfeiture Act. The change in language was plainly intended

to extend the qualifying period by projecting it into the 10 years following the

commission of the confiscation offence. I have attached as an appendix to these

reasons a diagram to illustrate the possible sequences in which qualifying

offences might be committed within the qualifying period and result in forfeiture

on the commission of a confiscation offence. Line A shows a sequence falling

within the scope of Pt 3 of the Forfeiture Act before the Amendment Act came

into operation, and Line B a sequence which could result in forfeiture after the

Amendment Act came into operation.

18 The Amendment Act also reduced the number of qualifying offences from three

to two and changed the relevant date from which the period ran from the date of

adjudication of guilt, or expiation, to the date of the offence.

19 By enacting a qualifying period which spans the confiscation offence

prospectively and retrospectively, instead of extending the qualifying period

from 10 to 20 years preceding the commission of the confiscation offence, the

Amendment Act did more than expand the temporal application of the Forfeiture

Act. It enabled the additional penalty of forfeiture to be imposed on an offence

which was a first offence, in the sense that it was not preceded, nor aggravated

by, a prior history of offending against prescribed offences (see Appendix,

Line B). An application for an order for forfeiture might also be brought very

many years after a court had convicted and sentenced an offender for the

confiscation offence. A supervenient application for forfeiture might be based on

a qualifying offence committed long after the final judicial disposition of the

prosecution of the confiscation offence, but will nonetheless result in the

imposition of what is, in effect, a substantial additional penalty for the

commission of the confiscation offence. The subsequently committed qualifying

offence may have been expiated, and may not itself be preceded or succeeded by

qualifying offences committed within the qualifying period (see Appendix,

Line C). The forfeiture cannot, in those circumstances, be characterised as a

penalty imposed for the subsequently committed qualifying offence even though,

but for its commission, no forfeiture application could have been made on the

conviction for the earlier confiscation offence. A forfeiture order made long

after the imposition of sentence on the confiscation offence is, in effect, a

retrospective, executive initiated interference with, in the sense of a substantial

addition to, the sentence imposed judicially by a court.

20 My conclusion that after the enactment of the Amendment Act a qualifying

offence enlivening the power to make a forfeiture application might be

committed close to a decade after the conviction on which the application is


8

made, precludes, in turn, any implication that the prosecution must make an

application for forfeiture in the course of, or immediately after, the disposition of

the prosecution for the confiscation offence, even when the qualifying offences

predate the commission of the confiscation offence. My construction of the

Amendment Act therefore denies any implication which would avoid the

imposition of double punishment for the confiscation offence by ensuring that

courts were informed of the impending forfeiture application before sentencing

for the confiscation offence.

21 Although the issue does not directly arise in this case,3 it is reasonably clear that

the “conviction for a prescribed offence” on which the forfeiture application is

made, means a conviction for an offence which was of a prescribed kind at the

time of its commission. The presumption against retrospectivity calls for that

construction and there is no contrary statutory indication for confiscation

offences as there is for the prescription of qualifying offences. Indeed s 11(1)(a)

of the Forfeiture Act expressly provides that a forfeiture application under Pt 3

can only be made on a conviction of an offence which was committed after its

commencement.

22 However, there is a strong statutory indication that the prescription of an offence

does operate retrospectively with respect to qualifying offences. Section 10 of

the Forfeiture Act expressly deals with the question of when offences of the same

kind as those relied on by the prosecution as qualifying offences for the purposes

of s 12(1)(a)(ii) or (iii) must have been prescribed. It fixes that time as the date

of the application for forfeiture. Section 10 of the Forfeiture Act is, on its own

terms, directed to ss 11(b)(ii), 12(1)(a)(ii) and (iii), and 12(1)(b)(i) of the

Forfeiture Act which condition the making of a forfeiture order on the existence

of a certain number of qualifying offences. Section 10 of the Forfeiture Act does

not speak to s 11(a) and does not stand in the way of the construction, consistent

with the presumption against retrospectivity, to which I referred in the preceding

paragraph.

Appellant’s construction of “prescribed offence” rejected

23 I now turn to consider more closely the appellant’s contention that on a proper

construction Pt 3 operates prospectively so that only offences committed after

offences of their kind have been prescribed can be qualifying offences which

enliven the forfeiture power.

24 The liability to forfeiture on conviction for a confiscation offence is dependent,

relevantly to this appeal, on the defendant having been found guilty, or having

expiated, at least two other prescribed offences (the qualifying offences) which

were, or were alleged to have been, committed within ten years of the date of the

confiscation offence. The appellant contends that those qualifying offences

3 The conviction on which the forfeiture application in this case was brought was for a PCA offence

committed after the prescription of PCA offences pursuant to the Forfeiture Act.


9

must, like the confiscation offence, have been committed after Pt 3 came into

operation and after the prescription of offences of their kind pursuant to the

Forfeiture Act. The appellant relies on the presumption against retrospectivity to

support his submission that to fall within s 12(1)(a)(ii) and (iii) an offence must

be one committed after offences of its kind were prescribed.

25 A statute can be said to operate retrospectively, in what is perhaps a narrower

sense of that expression, if it alters the legal effect of conduct or circumstances

after they have occurred.

26 In Maxwell v Murphy, Dixon J explained: 4

The general rule of the common law is that a statute changing the law ought not, unless

the intention appears with reasonable certainty, to be understood as applying to facts or

events that have already occurred in such a way as to confer or impose or otherwise affect

rights or liabilities which the law had defined by reference to the past events.

27 Similarly, Fullagar J explained in Fisher v Hebburn Ltd,5 that legislation “is

prima facie to be construed as not attaching new legal consequences to facts, or

events which occurred before its commencement.”6 The passages distinguish

between legislation which alters rights or liabilities which have accrued by

reason of antecedent facts and circumstances and a statute which takes those

antecedent circumstances as “a basis for what it prescribes for the future.”7 That

is to say, legislation does not operate retrospectively if it imposes rights or

obligations by reference to both antecedent and subsequent conduct or

circumstances.

28 In this narrower sense a statute operates retrospectively if all of the conditions,

facts and circumstances on which it operates occurred before its enactment.

29 The presumption against retrospectivity is said in itself to arise out of a

presumption that “the legislature does not intend what is unjust.”8 Both

presumptions manifest what has been referred to as the principle of legality. If

the courts acknowledge a social value to be one which is respected by the body

politic, they will construe legislation consistently with that value unless

Parliament legislatively declares that it has departed from it with irresistible

clarity.9 In deciding whether the operation of legislation is unjust “a broad view

[must be] taken of all who are affected.”10

4 (1957) 96 CLR 261 at 267.

5 (1960) 105 CLR 188.

6 (1960) 105 CLR 188 at 194.

7 Robertson v City of Nunawading [1973] VR 819 at 824; Coleman v Shell Co of Australia Ltd (1943)

45 SR (NSW) 27 at 31; Re A Solicitor’s Clerk [1957] 1 WLR 1219; La Macchia v Minister for

Primary Industry (1986) 72 ALR 23. 8 Maxwell v Murphy (1957) 96 CLR 261.

9 Al-Kateb v Godwin (2004) 219 CLR 562 at 577 [20] per Gleeson CJ.

10 Maxwell v Murphy (1957) 96 CLR 261.


10

30 The injustice of retrospective legislation and its inconsistency with the general

concept of the rule of law rests, fundamentally, in the denial of a person’s

capacity to make an informed choice about how to conduct his or her affairs in a

way which will either fall within, or outside of, the scope of the legislation.

31 Part 3 of the Forfeiture Act would not operate retrospectively, in the narrow

sense I have just discussed, if only offences of a prescribed kind committed

before the commission of the confiscation offence could operate as qualifying

offences, even if offences of that kind were not prescribed at the time the

qualifying offences were committed (see Appendix, Line A). That is so, at least

if the offences of that kind are prescribed before the commission of the

confiscation offence, because the commission of a qualifying offence does not, of

itself, expose the person to forfeiture unless, and until, the confiscation offence is

committed. If offences of a kind committed by an offender, and relied on as

qualifying offences, are prescribed before the commission of the confiscation

offence, the prospective offender is capable of knowing, immediately before

commission of the confiscation offence, the consequences of his or her conduct.

It is of course otherwise if offences of the kind relied on as qualifying offences

are only prescribed after the commission of the confiscation offence (see

Appendix, Line D). The construction proffered by the appellant is therefore

wider than is necessary for the Forfeiture Act to conform with the presumption

against retrospectivity, if only offences committed before the commission of the

confiscation offence could be relied on as qualifying offences.

32 However, as I observed in [15], since the Amendment Act that is not so and

offences committed after the commission of the confiscation offence can also be

relied on (see Appendix, Line B). If, as I foreshadowed, those offences can be

relied on, even though offences of their kind had not been prescribed when they

were committed, then the Forfeiture Act would to that extent operate

retrospectively in the narrow sense. In that operation it would result in forfeiture

even though at the time that the qualifying offences on which the prosecution

relies, and the confiscation offence, were committed the defendant was not

vulnerable to a forfeiture application.

33 However, the presumption against retrospectivity appears to be expressly

rebutted by s 10 of the Forfeiture Act which provides that the forfeiture power is

enlivened if the qualifying offence is “at the date of the application a prescribed

offence”. The appellant seeks to step around this obstacle by arguing that the

definition of a prescribed offence in s 3 of the Act should, on the basis of the

presumption against retrospectivity, be construed to mean “an offence prescribed

prior to its commission” and that that definition must be incorporated into all of

the other provisions of the Forfeiture Act in which the term appears, including

s 10.

34 The difficulty with the modified construction of the definition proposed by the

appellant appears most acutely when it is read into s 10 of the Forfeiture Act by


11

using a hypothetical prescribed statutory offence (s Z). Section 10 of the

Forfeiture Act would read, in its application to s Z, as follows:

For the purposes of an application for an order under this Part a person will be taken to

have been found guilty of, or to have expiated [an offence against s Z committed after the

prescription of s Z] if the person has been found guilty of, or has expiated an offence

[against s Z] which is, at the date of the application, [an offence committed against s Z

after its prescription].

35 If the offence against s Z was committed by the offender at a time when s Z was

prescribed, it will of course continue to be an offence which was prescribed when

it was committed even if the regulation prescribing s Z has been repealed by the

time the application for forfeiture is made. On the appellant’s construction of

s 10 of the Forfeiture Act, it is tautologous. The appellant’s construction

therefore requires the term “prescribed offence” in s 10 of the Forfeiture Act to

be replaced by its modified definition only when it first appears and for the term

where it last appears to read “still a prescribed offence”. This confusion inheres

in the appellant’s construction because the purpose of the definition in s 3 of the

Forfeiture Act is to prescribe by regulation kinds of offences by reference to

statutory provisions, but the words which the appellant would read in refer,

instead, to particular offences actually committed at a point in time.11 As I

observed in [12] above, on its enactment Pt 14A SOA internally designated the

kinds of offences which were prescribed. It did not leave the prescription of

kinds of offences to be dealt with by regulation. The argument put by the

appellant was not available with respect to the operation of Pt 14A SOA. It is

unlikely that Parliament intended to radically restrict the reach of its scheme by

adopting the expedient of allowing the prescribed offences to be added or

removed by regulation.

36 There are more substantial objections to the appellant’s construction than the

semantic difficulty I have just outlined. On a proper construction of the

Forfeiture Act, the power to make a forfeiture order is enlivened by the

commission of qualifying offences of a kind which are prescribed at the time of

the application whether or not they were prescribed at the time of their

commission. There are four major steps in that construction.

37 First, the provisions of the Forfeiture Act must be construed in the context of the

transitional provision found in its first Schedule, which provide that the statutory

scheme which had been enacted as Pt 14A SOA continues to apply in relation to

11

Section 24(3) of the Forfeiture Act provides that the regulations may be of “general application or vary

in their application according to prescribed factors.” Several sections of the Forfeiture Act

contemplate a regulation of that nature (ss 9(3) and 20(8)). I doubt that it would be a valid exercise of

the regulation making power to prescribe offences for the purposes of s 3 of the Forfeiture Act by

including in the regulation a condition that the offence be committed only after it has been prescribed.

Even though the appellant does not contend that the power to prescribe by regulation is limited to

prescribing offences of a particular kind which are committed after the regulation is made, the

appellant’s contention that the words “prior to its commission” should be read after the word

“prescribed” in s 3 of the Forfeiture Act, has a similar effect.


12

offences committed, or allegedly committed, before the commencement of the

Forfeiture Act. The transitional provisions continue the operation of Pt 14A

SOA only with respect to confiscation offences committed before the repeal of

Pt 14A SOA. The continuing operation of Pt 14A SOA on confiscation offences

committed while it was extant explains the expressly enacted prospectivity of

s 11(a) of the Forfeiture Act. The failure to enact an express provision having

the same effect as s 11(a) of the Forfeiture Act for qualifying offences tells

against the appellant’s construction.

38 Secondly, it is improbable that Parliament intended to wipe from the slates of

drivers all traffic offences committed before the commencement of the Forfeiture

Act including those offences which had been prescribed for the purpose of

Pt 14A SOA. The manifest purpose of the Forfeiture Act was to impose a

similar, but more severe, scheme than the one it replaced. The Forfeiture Act and

its transitional provisions evince a scheme whereby offenders who had

committed prescribed traffic offences under the operation of Pt 14A SOA (see

Appendix, Line D) would remain liable to forfeiture if they committed, and

expiated or were prosecuted for a prescribed offence committed after the

commencement of the Forfeiture Act.

39 The qualifying offences committed before the enactment of Pt 3 of the Forfeiture

Act could not, of course, have been prescribed under the provisions of the

Forfeiture Act before they were committed. Once it is accepted that offences

committed before the commencement of the Forfeiture Act can count as

qualifying offences for the purposes of s 11(b)(ii) and ss 12(1)(a)(ii) and (iii) of

the Forfeiture Act, it follows that those provisions are capable of picking up

offences which were committed before offences of their kind were prescribed for

the purposes of the Forfeiture Act.

40 Thirdly, the ordinary meaning of the text of s 10 of the Forfeiture Act stands

squarely in the way of the appellant’s construction. The appellant puts a subtle

argument arising from the use of the word “if” in that provision. I accept that in

the ordinary course the word “if” should be construed as meaning “only if.”12

That is so because where a statute confers a right or imposes an obligation if a

particular circumstance exists, then it usually means that that the right or

obligation only crystallises if that circumstance exists. However, the manifest

purpose of s 10 of the Forfeiture Act is to deem a person “to have been found

guilty of, or to have expiated”, an offence of a kind which is prescribed as at the

date of the application.

41 The enactment of s 10 of the Forfeiture Act with its prima facie retrospective

effect was necessary to ensure the transition from Pt 14A SOA, to which I

referred in [37] above. In this respect Pt 3 of the Forfeiture Act stands in contrast

to the clamping provisions of Pt 2 of the Forfeiture Act. Part 2 of the Forfeiture

Act authorises the clamping or impounding of vehicles when a person has been

12

Morrisey v Bright [1978] 2 NSWLR 1 at 9-10 per Mahoney JA.


13

reported, or charged with, or is to be arrested for, a prescribed offence. The

power in Pt 2 of the Forfeiture Act is exercised soon after the commission of the

offence and before the proceedings for the prescribed offence have been

finalised. The context of Pt 2 of the Forfeiture Act, and the presumption against

retrospectivity, limits the prescribed offences which enliven the power in Pt 2 to

those contraventions committed after the prescription of offences of their kind.

Parliament is unlikely to have intended that an unlawful seizure of a motor

vehicle after reporting a motorist for an offence which was not, at that time,

prescribed might be validated by the subsequent prescription of the offence.

Moreover, the clamping provisions are to a large extent ancillary, and designed

to facilitate the seizure of a vehicle which will ultimately be forfeited following

conviction of a confiscation offence which, as I have observed, must have been

of a prescribed kind before it was committed.

42 From this statutory context the purpose of s 10 of the Forfeiture Act emerges. It

delineates the operation of Pt 3 of the Forfeiture Act from Pt 2 by declaring that

the prescription of offences of a kind upon which the prosecution relies as

qualifying offences may operate retrospectively.

43 Fourthly, if the qualifying offences for the purposes of Pt 3 of the Forfeiture Act

are limited to those which, in accordance with the submission of the appellant,

are committed after prescription of offences of their kind, then s 10 of the

Forfeiture Act would have very little, and probably no, work to do. A very

theoretical explanation for the enactment of s 10 of the Forfeiture Act, so

construed, may be that it was intended to preclude any liability to forfeiture

based on an offence which was of a prescribed kind when committed but which

is no longer a prescribed offence when the application is made. However, the

enactment of s 10 of the Forfeiture Act for that purpose alone would have been

quite unnecessary. An application for an order for forfeiture founded on offences

of a kind which had been, but were no longer, prescribed would fail in any event

because the liability for forfeiture is only finally incurred when an application for

forfeiture is made.13 If the qualifying offences are not of a prescribed kind when

an application is made, the circumstances stipulated by s 11 of the Forfeiture Act

simply do not exist, Pt 3 does not apply, and the application is incompetent.

44 The appellant also called in aid of his construction the presumption against the

statutory imposition of double punishment. I accept that the forfeiture of an

offender’s motor vehicle pursuant to Pt 3 of the Forfeiture Act is a punishment. I

acknowledge that in some cases a forfeiture order will have a preventative effect

because, at least for some period of time after any period of licence

disqualification has elapsed, the offender may not have access to another vehicle.

However, prevention is a relatively minor consequence of a forfeiture order. In

Australia motor vehicles are generally regarded as the second most valuable

personal asset, after a home, but, for many, cars are their most valuable asset.

13

Not until the application for forfeiture is made can it be known which vehicle, for example, will be

subject to the order for forfeiture.


14

The confiscation of an asset of such relative importance is undoubtedly a severe

penalty. It is also a symbolic penalty. The primary effect of a forfeiture order is

plainly punitive and for that reason it also operates as a general and personal

deterrent.

45 The Forfeiture Act imposes the penalty of forfeiture on a conviction for the

confiscation offence. It is not a penalty imposed on the qualifying offence. The

preceding, or subsequent, commission of qualifying offences is a necessary

condition for the making of the forfeiture order but it does not follow that the

forfeiture is an additional punishment for the commission of the qualifying

offences. The forfeiture order can only be made upon the offender’s conviction

for the confiscation offence and it is with respect to that offence that forfeiture is

imposed as a penalty. It is a well established sentencing principle that, all other

things being equal, an offender with an antecedent criminal history, will receive a

more severe penalty for a particular offence, than a first offender. The greater

penalty is not an additional punishment for the other offences but reflects the

heightened need for personal deterrence. So too for forfeiture imposed under the

Forfeiture Act, the commission of the qualifying offences is a reason for making

the forfeiture order, but it is made on conviction of the subsequently committed

confiscation offence. The distinction is subtle, but is one of substance and not

just semantics. Accordingly, insofar as the Forfeiture Act provides for a

forfeiture order to be made on conviction of the confiscating offence by reason of

the prior commission of qualifying offences, it does not impose a second

punishment for commission of the latter. Indeed, the qualifying offences may

have been merely expiated (see Appendix, Line A).

46 On the other hand, double punishment will often be imposed when a forfeiture

order is made on the basis of offences committed in the ten years following the

commission of the confiscation offence. An order for forfeiture made on a

supervenient application brought by the prosecution some time after conviction

and sentence for a prescribed offence is, in form and substance, double

punishment. In the ordinary course, the sentence which is imposed by a court

upon conviction of a prescribed offence will be framed in a way which satisfies

the punitive and deterrent purposes of sentencing on the assumption that there

will be no additional penalty by way of forfeiture. A supervenient application

founded on the subsequent commission of a qualifying offence, or offences, or

the subsequent prescription of offences of the kind previously committed, in

form and in substance, requires the Court to impose an additional penalty.

47 However, the very projection of the qualifying period into the future clearly

shows that Parliament intended to abrogate the rule against double punishment,

because in the ordinary course a defendant will have been sentenced for the

confiscation offence well before qualifying offences, committed up to a decade

later, are expiated or prosecuted.


15

48 For the above reasons I hold that an offence will fall within the terms of

s 11(a)(ii) and s 12(1)(a)(ii) and (iii) if an offence of that kind is prescribed at the

time the application is made even if it was not a prescribed offence at the time it

was committed.

Further observations on Pt 3

49 It is necessary to note some other features of the scheme enacted by Pt 3 of the

Forfeiture Act before turning to the appellant’s constitutional ground.

50 As observed in [19] the operation of the Forfeiture Act which allows an

application for forfeiture to be made on a confiscation offence after the

commission of qualifying offences up to a decade later, precludes any implied

obligation on the prosecution to make the application contemporaneously with

the prosecution of the confiscating offence. It follows that even if the qualifying

offences preceded the confiscation offence, the prosecution might, in its

discretion, delay bringing an application for many years, and, as a result, subject

a future acquired vehicle to forfeiture. The delay in bringing the application may

lead to arbitrary results but, for reasons which are discussed below, the available

legal mechanisms to control the prosecution discretion are likely to be largely

ineffective.

51 There is a difficult question of construction as to the counting of qualifying

offences which should be mentioned. The question is whether the same

qualifying offence can be counted more than once. If, for example, a

confiscation offence is committed, and a vehicle forfeited because of the earlier

commission of the requisite qualifying offence or offences, is an offender who is

subsequently prosecuted for another prescribed offence, liable to further

forfeiture on that offence on the basis of the commission of qualifying offences

which comprise only, or include, those qualifying offences which grounded the

earlier forfeiture (see Appendix, Line E). The plain words of ss 11 and 12 of the

Forfeiture Act allow such a construction and it is arguable that the statutory

policy evinced by the Forfeiture Act also favours forfeiture of a further vehicle

on each occasion a person persists in offending after amassing the necessary

qualifying offences. If that is so, the great discretionary power which the

prosecution holds over a defendant’s property is emphasised. It is difficult to see

how that construction can be resisted.

52 There is a related question which also exposes the power which inheres in the

prosecutorial discretion. The projection of the qualifying period into the future

which was effected by the Amendment Act means that an offender who is

successfully prosecuted for three prescribed offences, A, B and C, (see

Appendix, Line F) may be liable to forfeiture of three different vehicles as

follows:


16

(1) Forfeiture of a vehicle on the conviction for offence A having

previously committed offences B and C which operate as qualifying

offences;

(2) Forfeiture on the conviction for offence B having previously

committed offence C and, subsequently, having committed offence A

which operate as qualifying offences;

(3) Forfeiture on the conviction for offence C having subsequently

committed offences A and B which operate as qualifying offences.

53 Even if on a proper construction of the Forfeiture Act only one forfeiture can be

ordered in the circumstances just postulated, the breadth of the discretion is

obvious enough. If, for example, offence C was committed in another person’s

car, with that person’s knowledge, that vehicle might be the object of the

forfeiture application, if the prosecution saw fit, even though the offender had

committed offences A and B in his own car. It is difficult to see any basis on

which the Court could interfere with the prosecutional discretion to proceed in

that way. On such an application the Court would be bound on the direction of

the prosecution to exercise judicial power to impose a penalty on a person it had

not convicted of an offence. The selection of C’s car, instead of the offender’s,

may have some rational policy basis. The Court could not refuse the

prosecution’s application if it took a different view. The extent to which a court

can review the decision of the prosecution to bring an application for forfeiture is

considered further below.

54 The effect of my construction of Pt 3 of the Forfeiture Act can be summarised as

follows. Qualifying offences may be committed before or after the commission

of the confiscation offence and need not have been offences of a prescribed kind

at the time of their commission, or the commission of the confiscation offence. It

follows that an offender may become liable to the forfeiture of his or her vehicle

even though, immediately before the commission of the confiscation offence, he

or she could not have known that forfeiture might become an additional

consequence or penalty of the commission of the confiscation offence by reason

of the subsequent prescription of the offence of a kind he or she had previously

committed (see Appendix, Line D).

55 An offender may suffer a forfeiture order in respect of a conviction for a

confiscation offence many years after proceedings for that offence have been

disposed of, either because of the subsequent prescription of the offences of a

kind already committed (see Appendix, Line D), or because of the subsequent

commission of an offence of the prescribed kind (see Appendix, Line C).

56 The applications can be made at any time in the discretion of the prosecution and

at times when vehicles other than the vehicle used in the commission of the

offence, are owned by the offender. The prosecution may select as the object of


17

the application any number of vehicles owned by the offender, or the vehicle of

another person used in the commission of the offence.

57 Importantly, by reason of the foregoing, the application may result in the

substantial addition to a penalty imposed by a court on the confiscation offence at

a time when the court could not have contemplated, and therefore could not have

allowed for,14 the possible later forfeiture of the defendant’s vehicle. In this

respect, the contrast between s 12 and s 9 of the Forfeiture Act’s is stark.

Moreover, the additional penalty which is imposed by s 9 is fixed by statute and

not widely variable depending on how and when the prosecution exercises its

discretion.

Judicial control ineffective

58 In Barton v The Queen,15 the High Court held that a decision of the Attorney-

General to present an ex officio Information under s 5 of the Australian Courts

Act 1828 (the ACA) was not examinable by the Courts. Gibbs ACJ and Mason J

contrasted the power to lay an Information with “an ordinary administrative

discretion conferred by statute.”16 Section 5 of the ACA provided that all crimes

shall be prosecuted before juries “by information in the name of his Majesty’s

Attorney-General”.17 The provision, by implication, conferred a bare power on

the Attorney to lay an Information and prosecute it. Gibbs ACJ and Mason J

noted that the provision did not limit or restrict the Attorney-General’s

consideration of the particular case and for that reason made “his decision

immune from judicial review”.18 Of course the history of the Attorney-General’s

power to lay an ex officio Information was an important consideration in Barton.

However, so too was the consideration that it was undesirable that a court

“should become too closely involved in the question whether a prosecution

should be commenced”.19

59 Importantly the holding in Barton that the Attorney’s decision was not

reviewable was balanced by the High Court’s recognition of the inherent judicial

power to prevent an abuse of process by staying proceedings in cases in which it

was necessary to ensure a fair trial.20 A trial is unfair if it is brought for an

improper purpose,21 or if the Court’s capacity to evaluate the evidence has been

14

Section 42 of the Forfeiture Act requires a court to “have regard to any exercise of powers under” the

Forfeiture Act. The subsection on its terms refers to a past exercise of powers – the Court can not

meaningfully have regard to a possible future exercise of power. The subsection is direction at the

exercise of clamping and impounding powers under Pt 2. 15

(1980) 147 CLR 75. 16

(1980) 147 CLR 75 at 94. 17

(1980) 147 CLR 75 at 88. 18

(1980) 147 CLR 75 at 94. 19

(1980) 147 CLR 75 at 95. 20

Williams v Spautz (1992) 174 CLR 509; Barton v The Queen (1980) 147 CLR 75 at 95 – 96. 21

Williams v Spautz (1992) 174 CLR 509 at 529, 648 – 649, 444.


18

seriously compromised.22 Proceedings which are foredoomed to fail are also an

abuse of process.23

60 Section 12 of the Forfeiture Act confers, by implication, a bare power to bring an

application. It does not, in terms, cast any obligation on, or limit the discretion

of, the prosecution to bring the application. Rather, it speaks in mandatory terms

to the Court, requiring it to make an order for forfeiture “on the application of the

prosecution”. The bare power impliedly granted to the prosecution to bring an

application is not conditioned on the actual existence of any objective facts or on

the formation of any opinion. The way in which the power is granted largely

immunises it from review in a similar way to which the power considered in

Barton was immune. The review by a court of the exercise of the very power to

initiate judicial proceedings is problematic in a common law system. Moreover,

and unlike the power to lay an ex officio Information in Barton, it is difficult to

see how the power might be restrained or controlled by the Courts power to

prevent the abuse of its procedures. The very purpose of Pt 3 of the Forfeiture

Act is to secure orders for the forfeiture of vehicles used or owned by an

offender, or of another person who knowingly allows an offender the use of his

or her vehicle. Forfeiture will invariably be the purpose for which an application

is made.

61 The Forfeiture Act gives no indication of any considerations which should

govern the selection of the vehicle to be forfeited where there is a choice to be

made between a vehicle used in the commission of the offence which may or

may not be the offender’s vehicle, or a vehicle, which may be one of a number,

owned by the offender. Moreover, the vehicles owned by an offender might

change over time and, importantly, change in value over time. Even though

delay in bringing an application may result in the forfeiture of a much more

valuable car than the one used in the commission of the offence, it is difficult to

imagine circumstances in which it would be an abuse of the process of the Court

to bring it. True it is that an application brought for a collateral purpose will be

an abuse of process but there is a distinction between the subjective motive of an

applicant and the purpose of an application.24

62 The fundamental difficulty in applying abuse of process principles to

applications for forfeiture is the very width of the power to bring a forfeiture

application and the truly ministerial function of the Court before it is brought.

22

Undue delay may, unusually, so substantially compromise the defendant’s ability to test evidence that

sound judicial evaluation is not possible in a stay for an abuse of process: Jago v District Court (NSW)

(1989) 168 CLR 23. The loss or destruction of evidence will only rarely result in a stay: Police v

Sherlock (2009) 103 SASR 147. 23

Walton v Gardiner (1993) 177 CLR 378. 24

Dowling v Colonial Mutual Life Assurance Society Ltd (1915) 20 CLR 509; Rozenbes v Kronhill

(1956) 95 CLR 407; Williams v Spautz (1992) 174 CLR 509.


19

63 Judicial review of a decision to bring a forfeiture application on the Wednesbury25

unreasonable ground would also face substantial obstacles. The policy

considerations for bringing an application are not spelt out by the Forfeiture Act.

So wide are the policy considerations which have been left at large that rarely

could a particular application be characterised as irrational.

64 Indeed, so wide is the power given to the prosecution by Pt 3 of the Forfeiture

Act that it may be doubted that it could be exercised judicially even if it were

conferred on the Court itself. It may be asked rhetorically, on what basis, other

than the subjective policy position of the presiding judicial officer, could a court

decide that a motor vehicle used to commit the offence should be forfeited rather

than another vehicle owned by the defendant? Nor is there any statutory

guidance on how to choose between a cheap vehicle which might have been used

to commit the confiscation offence and another expensive vehicle owned by the

offender. The legislation is also silent on whether the owner who knowingly

allows the vehicle to be used or the principal offender should primarily be liable

to forfeiture. A body of principles could theoretically be formulated to govern

the selection of the vehicle for forfeiture. The prosecution authorities who are

empowered to bring applications under the Forfeiture Act may well do so.

However, the choices to be made are essentially legislative and administrative in

nature and not judicial. It is just not possible for the judicial branch to review the

prosecutorial discretion, and condemn as an abuse, policy choices which have

some rational basis merely because the judicial officer hearing the application

disagrees with the policy.

65 Conversely, such is the limited adjudicative function of the Courts that it is

difficult to envisage circumstances in which forensic unfairness would be caused

to the defendant by the prosecution’s selection of one vehicle over another. It is

unlikely that forfeiture applications could be stayed as an abuse of process on

that ground.

The judicial integrity principle

66 It is a long accepted principle of Anglo Australian law that penalties for criminal

offences should be judicially imposed. That principle is, at a Commonwealth

level, constitutionally entrenched.26 On the other hand the executive

governments of the States probably retain a power, under appropriate legislative

authority, to impose penalties.27 However, it is quite another thing for a State

legislature to empower a State executive agency to impose, in its discretion, and

on an ad hoc basis, an additional penalty after a court has finally judicially

disposed of a prosecution. It is also a very different matter to confer a power on

the prosecution to order a court to apply and enforce a penalty in addition to the

sentence it has previously imposed.

25

Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223. 26

Fardon v Attorney-General (Qld) (2004) 223 CLR 575. 27

Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51; Chu Kheng Lim v Minister for

Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 per McHugh J.


20

67 The Constitution protects the integrity of the courts of the States by what I will

call the judicial integrity implication. The judicial integrity implication was first

identified and applied in Kable v Director of Public Prosecutions (NSW).28 The

judicial integrity implication proscribes the legislative conscription of the

machinery of the judicial branch of State governments to enforce, as a proxy for

the executive, its decisions.

68 In South Australia v Totani29 (Totani) the Serious and Organised Crime (Control)

Act 2008 (SA) (SOCC Act) was held to be invalid because it imposed functions

on the courts of this State which were incompatible with the judicial integrity

implication. In that case, French CJ identified “independence, impartiality,

fairness and adherence to the open-court principle”30 as the defining

characteristics of courts, which were assumed, and therefore required, by Ch III

of the Constitution. French CJ gave the following five point explication of the

Kable principle:31

1. A State legislature cannot confer upon a court of a State a function which

substantially impairs its institutional integrity and which is therefore incompatible

with its role as a repository of federal jurisdiction.

2. State legislation impairs the institutional integrity of a court if it confers upon it a

function which is repugnant to or incompatible with the exercise of the judicial

power of the Commonwealth.

3. The institutional integrity of a court requires both the reality and appearance of

independence and impartiality.

4. The principles underlying the majority judgments in Kable and further expounded

in the decisions of this Court which have followed after Kable do not constitute a

codification of the limits of State legislative power with respect to State courts.

Each case in which the Kable doctrine is invoked will require consideration of the

impugned legislation because: “the critical notions of repugnancy and

incompatibility are insusceptible of further definition in terms which necessarily

dictate future outcomes.” For legislators this may require a prudential approach to

the enactment of laws directing courts on how judicial power is to be exercised,

particularly in areas central to the judicial function such as the provision of

procedural fairness and the conduct of proceedings in open court. It may also

require a prudential approach to the enactment of laws authorising the executive

government or its authorities effectively to dictate the process or outcome of

judicial proceedings.

5. The risk of a finding that a law is inconsistent with the limitations imposed by

Ch III, protective of the institutional integrity of the courts, is particularly

significant where the law impairs the reality or appearance of the decisional

independence of the court.

28

(1996) 189 CLR 51. 29

(2010) 242 CLR 1. 30

(2010) 242 CLR 1 at [62]. 31

(2010) 242 CLR 1 at [69].


21

French CJ continued:32

… the true question is not whether a court of the State, subject to impugned legislation,

can still be called a court of the State not whether it bears a sufficient relation to a court of

the State. The question indicated by the use of the term “integrity” is whether the court is

required or empowered by the impugned legislation to do something which is

substantially inconsistent or incompatible with the continuing subsistence, in every aspect

of its judicial role, of its defining characteristics as a court.

The reasons that the SOCC Act impermissibly corrupted the institutional

integrity of the Magistrates Court are found in the concluding paragraphs of the

reasons of French CJ.33 In summary, they are:

(a) The Magistrates Court does not make, and is indeed unaware of, the

factual findings leading to the making of the declaration which enliven

its powers.34

(b) The orders which the Court makes are a serious imposition upon the

personal liberties of the defendants.35

69 French CJ held that the requirement of the SOCC Act that the Magistrates Court

make a factual finding that the defendant was a member of a validly declared

organisation, and the Magistrates Court’s duty to consider, in its discretion,

whether to impose any additional constraint on the controlled person, were not

sufficient to make its function a genuinely adjudicative one.36 In this respect,

French CJ noted that findings of fact as to membership might be made on the

basis of properly classified criminal intelligence which was not disclosed to a

defendant.37 French CJ also observed that the practical scope for challenging the

Attorney’s declaration by judicial review was limited by the absence of reasons

and because it was unlikely that the materials on which the declaration was based

would be disclosed.38

70 French CJ concluded that the executive act of declaration, and the findings of

fact behind it, were the dominant determinant “for all practical purposes” of the

outcome of the control order application. In the premises, the SOCC Act was a

recruitment of the Magistrates Court to serve an essentially executive process.

His Honour held that it gave the neutral colour of a judicial decision to what was,

for the most part, the result of executive action.39 The Magistrates Court thereby

32

(2010) 242 CLR 1 at [70]. 33

(2010) 242 CLR 1 at [75]-[83]. 34

(2010) 242 CLR 1 at [75]. 35

(2010) 242 CLR 1 at [76]. 36

(2010) 242 CLR 1 at [77]-[78]. 37

(2010) 242 CLR 1 at [82]. 38

(2010) 242 CLR 1 at [27]. 39

(2010) 242 CLR 1 at [83].


22

lost the essential judicial characteristic of the appearance of independence and

impartiality.40

71 In Totani, Gummow J recognised the difficulty in delineating, with any

exactitude, the reach of the judicial integrity implication. Rather, it is necessary

to make an evaluative judgment based on the “predominant characteristics” of

the legislation. The pith and substance of the law, not just its form, must be

considered.41 The judgment calls for a comparison of the function conferred by

the impugned legislation with the historical functions and processes of courts.

72 Gummow J acknowledged that the exercise of the power to impose a control

order under the SOCC Act was subject to the Magistrates Court being satisfied

that the defendant was a member of a declared organisation and that the

Magistrates Court had a discretion to impose further restrictions. Nonetheless,

Gummow J described the Attorney’s declaration as “the vital circumstance and

essential foundation for the making by the Magistrates Court of the control

order”.42

73 The essential reasoning of Crennan and Bell JJ in Totani appears in the following

passages:43

Making the control order does not involve any finding of criminal guilt. The power to

make a control order is not conditioned on any assessment by the Court of whether, by

reason of the defendant’s status or by reason of past or threatened conduct of the

defendant (whether criminal or in breach of the peace), the defendant poses a risk to

public safety and order. The power to make a control order is also not conditioned on any

satisfaction of the Court as to whether the defendant engages in or has engaged in serious

criminal activity (cf s 14(2)) or whether the defendant’s past or threatened conduct poses

a risk that the defendant will engage in serious criminal activity or whether, and to what

extent, the making of a control order may substantially assist in preventing the defendant

from engaging in serious criminal activity. In these respects the power to make a control

order can be distinguished from the power to make a control order of the type considered

in Thomas v Mowbray.

After referring to the provisions of the SOCC Act which allocated exclusive

responsibility for declaring an organisation on the Attorney and which required

the Magistrates Court to impose a control order on proof of membership without

any finding as to the criminal activity of the members of the organisation, their

Honours continued:44

These considerations show that, in conferring a power on the Court to make control

orders under s 14(1), the State requires the Court to exercise judicial power to make a

control order after undertaking an adjudicative process that is so confined, and so

dependent on the Executive’s determination in the declaration, that it departs

impermissibly from the ordinary judicial processes of an independent and impartial

40

(2010) 242 CLR 1 at [83]. 41

(2010) 242 CLR 1 at [134]. 42

(2010) 242 CLR 1 at [142]. 43

(2010) 242 CLR 1 at [434]. 44

(2010) 242 CLR 1 at [436].


23

tribunal. Specifically, s 14(1) operates to draw the Court into the implementation of the

legislative policy expressed in the objects of the Act. The conditions upon which the

Court must make a control order require the Court to give effect to the determination of

the Executive in the declaration (which implements the legislative policy), without

undertaking any independent curial determination, or adjudication, of the claim or

premise of an application for a control order by the Commissioner of Police, that a

particular defendant poses risks in terms of the objects of the Act. This has the effect of

rendering the Court an instrument of the Executive, which undermines its independence.

Section 14(1) requires the Magistrates Court of South Australia to act in a way which is

incompatible with its constitutional position and the proper discharge of federal judicial

responsibilities, and with its institutional integrity.

74 Kiefel J distinguished the Queensland legislation in Fardon45 and the

Commonwealth legislation considered in Thomas v Mowbray46 from the

legislation challenged in Totani. Her Honour observed that the legislation in

each of the earlier cases was compatible with the judicial integrity implication

because it allowed the courts a wide and substantial adjudicative function.

Kiefel J observed that, in contrast, under the SOCC Act the Magistrates Court

had no real capacity to evaluate the controls which it was required to impose by

reference to their effectiveness in achieving the SOCC Act’s purpose of

suppressing organised crime:47

It is possible that a control order made against a member of a declared organisation might

assist in the achievement of this purpose, but this does not mean that it is correct to

characterise the Court’s role and the processes it undertakes by reference to that purpose.

The Court’s determinations under s 14(1) have nothing to say about whether the purpose

might be achieved in a particular case. No regard may be had by the Court to a

defendant’s history or the prospect that he or she may have been, or might in the future

be, involved in criminal activities. Its order is not explicable on this basis. It can only be

understood to proceed upon some unstated assumption concerning all persons who are

identified by the Attorney-General’s declaration and by reference to the obligation cast

upon the Court to make an order with respect to a person so identified.

Kiefel J concluded:48

In Fardon v Attorney-General (Qld), Gummow J referred to a statement in Mistretta v

United States as relevant to the principle in Kable. It is apposite to this case. It is that the

reputation of the judicial branch may not be borrowed by the legislative and executive

branches “to cloak their work in the neutral colors of judicial action”.

It is to be inferred from the Act that it is the aim of the Executive that all persons

identified by the declaration made by the Attorney-General are to have their liberty to

associate restricted. This is the end which the declaration serves but to which it cannot

give effect. The Court is directed to bring this result about. Its action, in making the order,

gives the appearance of its participation in the pursuit of the objects of the Act. Properly

understood, however, the making of the order serves to disguise an unstated premise and

the lack of any illegality attaching to membership of a declared organisation.

45

Fardon v Attorney-General (Qld) (2004) 223 CLR 575. 46

(2007) 233 CLR 307. 47

South Australia v Totani (2010) 242 CLR 1 at [478]. 48

(2010) 242 CLR 1 at [479]-[481].


24

It follows that s 14(1) involves the enlistment of the Court to give effect to legislative and

executive policy. It impinges upon the independence of the Court and thereby undermines

its institutional integrity. Section 14(1) is invalid.

75 In my respectful opinion, the above cited passages show that at the core of the

judicial integrity implication lies a requirement that there be a rational connection

between the adjudicative function invested in the court and the powers it must, or

may, exercise. Legislation conferring a jurisdiction or power on a court will only

be compatible with the judicial integrity implication if the orders which the court

must, or may, make have a rational connection to findings of fact, and judgments

on those facts, which the court itself has made.

76 Considered objectively, legislation which requires courts to act in a particular

way could never cause a reasonable person to doubt the integrity of the

individual judicial officers who apply the legislation in accordance with their

oath of fidelity to the law. The concern of the judicial integrity implication is

institutional not personal. The exercise of judicial power is ultimately the

foundation of, or sanction for, any valid exercise of the coercive force of the

State. It is an inherent attribute of the judicial systems of democratic societies

based on the rule of law, and the integrated system of State and Commonwealth

courts established by the Constitution in particular, that judicial orders reflect the

courts adjudications of the substantial merits of controversies. Authorising the

executive arm of government to dictate to the judicial arm of government orders

which the courts must make for the effective implementation of executive policy

compromises the fundamental conception of the judicial function.

77 I acknowledge that from the perspective of a legal positivist the controversy

before a court is defined by the legal rules it must apply, and that from that

perspective, the Court adjudicates on the substantial merits of the controversy no

matter how narrow, or practically inconsequential, the adjudication with which it

is entrusted is in the scheme of the statute as a whole. However, the reasoning in

Totani shows that the judicial integrity implication requires an examination of the

broader statutory scheme and that a judgment must be made about the substance

of the court’s function in that scheme.

78 Questions of incompatibility with the judicial integrity implication loom larger

when the legislative scheme, instead of proscribing specified conduct and

providing for penalties or other orders in the case of breach, authorises, in

prescribed circumstances, executive and judicial action to derogate from the

otherwise lawful freedom of action, or property rights, of individuals.49 It is also

one thing for Parliament to provide a statutorily prescribed mandatory penalty for

criminal conduct and quite another for it to allow the executive to nominate in its

application to the Court an additional penalty of its choosing which a court must

impose to depend on the selection. In the former case, the acceptance of the

sovereignty of Parliament and the universality of the proscription will usually not

49

South Australia v Totani (2010) 242 CLR 1 at [220]-[230] per Hayne J.


25

impinge on the institutional role of the courts under the Constitution. However,

when judicial orders which impinge on accepted rights and liberties are made, for

all practical purposes, at the dictate of the executive, an essential attribute of

courts and the very function of the judicial branch of government is

compromised.

79 It is a core function of the judicial branch to rule on the legality of executive

action. That function is entrenched in s 75(v) of the Constitution at a

Commonwealth level and by the constitutional entrenchment of the Supreme

Courts of the States, and their judicial review jurisdiction. The blind

implementation of executive action is not compatible with the judicial charter to

ensure that the executive branch adheres to the Constitution and laws made under

it.50

80 The following features of the Forfeiture Act bring into question its compatibility

with the judicial integrity implication:

1. The penalty of forfeiture must, and can only, be imposed by a court on

the application of the prosecution.

2. There is no, or at least only very limited, capacity for judicial control

of the prosecution’s discretion to make an application.

3. A penalty forfeiture order must be made even in circumstances in

which it materially interferes with the penalty already imposed for the

confiscating offence in the sense that the earlier penalty was fixed in

ignorance of the possibility of a later forfeiture.

4. The forfeiture order will often be the most substantial part of the

penalty imposed for the confiscating offence.

5. The severity of the penalty imposed by way of forfeiture lies

exclusively within the control of the prosecution which may select the

vehicle to be forfeited from a number of possible vehicles.

6. The prosecution’s forfeiture application is, in effect, an executive

order to vary a judicial sentencing order.

7. The discretion allowed to the prosecution involves disputable policy

determinations which are likely to embroil orders, over which the

court has no control, in controversy of a broadly political kind.

8. The forfeiture orders which the court must make may be founded on

the wholly retrospective imposition of a liability to forfeiture by the

executive government’s prescription of kinds of offences after the

50

Kirk v Industrial Relations Commission of New South Wales (2010) 239 CLR 531.


26

confiscation offence and the qualifying offences have been

committed.

81 The scheme adopted by the Forfeiture Act has four core elements which together

are incompatible with the judicial integrity implication. First, it disguises an

executive decision to extract a forfeiture as an application to a court and by so

doing largely immunises the decision from judicial review. Secondly, the

Forfeiture Act denies that court any substantive judicial function with respect to

that application by mandating the order it must make so as to ensure that the

executive’s decision is given effect. Thirdly, it secures for an essentially

executive order the immunity from collateral attack which only judicial orders

enjoy. Fourthly, the object of the scheme is to require courts to impose a penalty

selected by the prosecution in addition to the penalty they have already imposed

in the exercise of the sentencing power.

82 In short, the judicial power to penalise contraventions of prescribed offences

when the necessary qualifying offences have been committed, has, to a

substantial extent, been placed under the control of the prosecution. The

provisions of Pt 3 of the Forfeiture Act are inconsistent with the judicial integrity

implication.

83 I acknowledge the dispensing power conferred by s 13 of the Forfeiture Act.

However the scope of the power is limited, in the case of defendants, to cases of

“severe financial or physical hardship”. The forfeiture of a motor vehicle would

cause substantial financial hardship to most defendants. Something much more

than the hardship which forfeiture would ordinarily cause must be shown. In the

generality of cases no dispensation can be given. In any event the judicial power

to exempt a defendant in a particular case on hardship grounds does not meet the

constitutional objection to the nature of the primary power and the manner of its

exercise.

84 I have considered whether the Forfeiture Act might be read down to bring it into

conformity with the Constitution by limiting its application to the vehicle used in

the commission of the offence. That limitation would reduce the width of the

prosecution discretion and remove the risk of the capricious selection of one

vehicle over another. Moreover, it would not ameliorate the other objectionable

features I have identified and in particular the power of the executive to dictate to

a court a variation of a judicially imposed penalty. More importantly, it would

substantially change the operation of the Forfeiture Act, particularly in those

cases in which the confiscation offence is committed in a vehicle which is not

owned by the defendant.

85 For the above reasons I hold that s 12(1)(a)(iii) of the Forfeiture Act is invalid.

Conclusion

86 I allow the appeal. I set aside the order of forfeiture.


27

Appendix

Schematic Operation of Forfeiture Act

Legend

SOA = Pt 14A Summary Offences Act

Forfeiture Act = Criminal Law (Clamping Impounding Forfeiture of Vehicles)

Act 2007

P = Prescription of offences of a kind committed as qualifying offences

Q1 or Q2 = First or second qualifying offence committed

C(Q1)(Q2) = Conviction for qualifying offence identified in parenthesis

E(Q1) = Expiation of qualifying offence identified in parenthesis

CO = Commission confiscation offence – assumes prior prescription of this

offence

C(CO) = Conviction confiscation offence

A(CO) = Application for forfeiture on conviction of confiscation offence identified in

parenthesis

Tables assume confiscation offence different from qualifying offences and prescribed prior to its

commission.


28

16/12/97

Commence

10 year

qualifying

period

Forfeiture Act

2/5/00

Commence

5 year

qualifying

period Pt14A

SOA

2/5/05

Part 14A

SOA

16/12/07

Commencement

Forfeiture Act

2/5/05 End 10 year

qualification period

Forfeiture Act

Q1

C(Q1)

Q2 E(Q2)

P CO C(CO)

A(CO)

P CO C(CO) Q E(Q1) Q2 E(Q2) A

(CO)

Q1 C(Q1) CO C(CO) P Q2 E(Q2) A(CO)

Q1 C(Q1) Q2 C(Q2) CO C(CO) P A(CO)

Q1 C(Q1) Q2 C(Q2) P CO1 C(CO1) A CO2 C(CO2) A

(CO1) (CO2)

Q1 C(Q1) Q2 C(Q2) CO C A A A

(CO) (CO) (Q1) (Q2)

E

B

C

F

D

A

Documents

SUPREME COURT OF SOUTH AUSTRALIA - …resources.news.com.au/files/2012/10/18/1226498/626505-an...BELL v POLICE [2012] SASC 188 Magistrates Appeal: Criminal 1 KOURAKIS CJ: On 4 December