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—
Kourakis CJ [2012] SASC 188
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
[2012] SASC 188 Kourakis CJ
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.
Kourakis CJ [2012] SASC 188
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).
[2012] SASC 188 Kourakis CJ
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
Kourakis CJ [2012] SASC 188
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.
[2012] SASC 188 Kourakis CJ
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.
Kourakis CJ [2012] SASC 188
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
[2012] SASC 188 Kourakis CJ
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.
Kourakis CJ [2012] SASC 188
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.
[2012] SASC 188 Kourakis CJ
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.
Kourakis CJ [2012] SASC 188
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.
[2012] SASC 188 Kourakis CJ
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:
Kourakis CJ [2012] SASC 188
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
[2012] SASC 188 Kourakis CJ
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.
Kourakis CJ [2012] SASC 188
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.
[2012] SASC 188 Kourakis CJ
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.
Kourakis CJ [2012] SASC 188
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].
[2012] SASC 188 Kourakis CJ
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].
Kourakis CJ [2012] SASC 188
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].
[2012] SASC 188 Kourakis CJ
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].
Kourakis CJ [2012] SASC 188
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.
[2012] SASC 188 Kourakis CJ
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.
Kourakis CJ [2012] SASC 188
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.
[2012] SASC 188 Kourakis CJ
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.
Kourakis CJ [2012] SASC 188
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