Attorney-General for the State of South Australia v Bell
[2013] SASCFC 88
•2 September 2013
SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
ATTORNEY-GENERAL FOR THE STATE OF SOUTH AUSTRALIA & ANOR v BELL
[2013] SASCFC 88
Judgment of The Full Court
(The Honourable Justice Kelly, The Honourable Justice Blue and The Honourable Justice Nicholson)
2 September 2013
STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - FUNCTION OF COURT
STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - CONSIDERATION OF EXTRINSIC MATTERS - EXPLANATORY MEMORANDA, PARLIAMENTARY DEBATES AND MATERIALS ETC
STATUTES - ACTS OF PARLIAMENT - VALIDITY OF LEGISLATION GENERALLY
HIGH COURT AND FEDERAL COURT - THE FEDERAL JUDICATURE - NATURE AND EXTENT OF JUDICIAL POWER - CONFERRAL ON STATE COURTS
CONSTITUTIONAL LAW - OPERATION AND EFFECT OF THE COMMONWEALTH CONSTITUTION - RESTRICTIONS ON COMMONWEALTH AND STATE LEGISLATION
Appeal against the judgment of a Judge of the Supreme Court. The Judge allowed the defendant’s appeal against an order made in the Magistrates Court for forfeiture of the defendant’s motor vehicle pursuant to the Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Act 2007 (SA) (“Forfeiture Act”). The Judge held that s 12(1)(a)(iii) of the Forfeiture Act is invalid.
(1) Whether s 12(1)(a)(iii) of the Forfeiture Act permits an application for forfeiture to be made after the finalisation of the conviction proceedings for the offence in respect of which the application for forfeiture is made.
(2) Whether s 12(1)(a)(iii) on its proper construction is invalid insofar as it requires the court to perform a function that is inconsistent or incompatible with its defining characteristics as a court.
(3) Whether on the proper construction of the Forfeiture Act, the defendant’s conviction in 2002 was properly to be regarded as one of the three prescribed offences for the purpose of s 12.
Held by the Court allowing the appeal:
(1) On the proper construction of s 12, a conviction or expiation of the other prescribed offences must predate the application for forfeiture (per Kelly J at [23], Blue J at [165] and Nicholson J agreeing).
(2) On the proper construction of s 12, an application for forfeiture must be made before finalisation of the proceedings relating to the offence in respect of which an application for forfeiture is made (per Kelly J at [43], Blue J at [138] and Nicholson J agreeing).
(3) Section 12 is constitutionally valid (per Kelly J at [75]-[78] and Nicholson J at [213]). Palling v Corfield is binding on this Court and determinative of the issue of validity. Section 12 is valid (per Blue J at [208]).
(4) On the proper construction of the Forfeiture Act, the defendant’s conviction in 2002 was properly regarded as one of the three prescribed offences for the purpose of s 12 (per Blue J at [122], Kelly J and Nicholson JJ agreeing).
(5) Appeal allowed.
Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Act 2007 (SA) s 3, s 4, s 9, s 10, s 11, s 12, s 12(1), s 12(1)(a)(iii), s 13, Pt 3; Road Traffic Act 1961 (SA) s 44B, s 45, s 45A, s 46, s 47, s 47B, s 47BA, s 47B(1)(a), s 47B(3)(a), s 47BA, s 168; Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Regulations 2007 (SA); Crown Proceedings Act 1992 (SA); Graffiti Control Act 2001 (SA) s 9; Criminal Law Consolidation Act 1935 (SA) s 19A, s 19AC, s 19AD, s 85 ; Summary Offences Act 1953 (SA) s 17AA, s 54, s 66D; Statutes Amendment Act (Misuse of Motor Vehicles) Act 2004 (SA) s 66D; Motor Vehicles Act 1959 (SA) s 9, s 74(2), s 74(2a), s 91(5), s 102; Acts Interpretation Act 1915 (SA) s 16; Expiation of Offences Act 1996 (SA); Criminal Law (Clamping, Impounding and Forfeiture of Vehicles)(Miscellaneous) Amendment Act 2009 (SA); Summary Procedure Act 1921 (SA) s 76A, s 189; Criminal Law (Sentencing) Act 1988 (SA) s 10, s 52, s 53; Firearms Act 1977 (SA) s 34A; Criminal Assets Confiscation Act 2005 (SA) s 47, s 95, s 218; Criminal Assets Recovery Act 1990 (NSW) s 10; Serious and Organised Crime (Control) Act 2008 (SA) s 10; Crimes (Criminal Organisations Control) Act 2009 (SA) s 9; National Service Act 1968 (Cth) s 49; Criminal Property Forfeiture Act 2002 (NT); Misuse of Drugs Act 1990 (NT), referred to.
Palling v Corfield (1970) 123 CLR 52, applied.
Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51; South Australia v Totani (2010) 242 CLR 1, discussed.
Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252; Owen v South Australia (1996) 66 SASR 251; CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384; Burch v South Australia (1998) 71 SASR 12; K-Generation Pty Ltd v Liquor Licensing Court (2009) 237 CLR 501; Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; Assistant Commissioner Michael James Condon v Pompano Pty Ltd (2013) 87 ALJR 458; Elias v The Queen; Issa v The Queen (2013) 87 ALJR 895; Director of Public Prosecutions v George (2008) 102 SASR 246; Jacob v Utah Construction and Engineering Pty Ltd (1966) 116 CLR 200; Dickfoss v Director of Public Prosecutions (2012) 31 NTLR 16; R v Ironside (2009) 104 SASR 54; Emmerson v Director of Public Prosecutions [2013] NTCA 4; Fardon v Attorney-General for the State of Queensland (2004) 223 CLR 575; Gypsy Jokers Motorcycle Club Inc v Commissioner of Police (2008) 234 CLR 532; International Finance Trust Co Ltd v New South Wales Crime Commission (2009) 240 CLR 319; Wainohu v New South Wales (2011) 243 CLR 181; John Fairfax Publications Pty Ltd v Gacic (2007) 230 CLR 291; Leach v R (2007) 230 CLR 1; Nicholas v The Queen (1998) 193 CLR 173; Harris v Cooke (1919) 88 LJKB 253; S v Recorder of Manchester [1971] AC 481; McNicholl v Tothill (1988) 47 SASR 134; Police v S [1997] SASC 6227; Waugh v Kippen (1986) 160 CLR 156; Forbes (Collector of Customs, NSW) v Tranders Finance Corporation Ltd [1972] ALR 653; Murphy v Farmer (1988) 165 CLR 19; Hoare v The Queen (1989) 167 CLR 348; Catlow v Accident Compensation Commission (1989) 167 CLR 543; Re Bolton; ex parte Beane (1987) 162 CLR 514; Assistant Commissioner Michael James Condon v Pompano Pty Ltd [2013] HCA 7; Mutual Life & Citizens Assurance Co Ltd v Evatt (1968) 122 CLR 556; Batistatos v Roads and Traffic Authority of NSW (2006) 226 CLR 256; HA Bachrach Pty Ltd v Queensland (1998) 195 CLR 547; Baker v The Queen (2004) 223 CLR 513; Western Export Services Inc v Jireh International Pty Ltd (2011) 86 ALJR 1; Public Service Association of SA Inc v Industrial Relations Commission of SA (2011) 109 SASR 223; Kirk v Industrial Relations Commission of New South Wales (2010) 239 CLR 531; Wynbyne v Marshall (1997) 7 NTLR 97; Police v Cadd (1997) 69 SASR 150; R v Place [2002] SASC 101; Lloyd v Snooks (1999) 9 Tas R 41, considered.
ATTORNEY-GENERAL FOR THE STATE OF SOUTH AUSTRALIA & ANOR v BELL
[2013] SASCFC 88Full Court: Kelly, Blue and Nicholson JJ
KELLY J.
This is an appeal against the judgment of a Judge of the Supreme Court.
On 17 October 2012, the Judge allowed the respondent’s appeal against an order made in the Magistrates Court for forfeiture of the respondent’s motor vehicle pursuant to the provisions of the Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Act 2007 (SA) (“Forfeiture Act”). The Judge held that s 12(1)(a)(iii) of the Forfeiture Act is invalid.
The respondent Graeme Anthony Bell was convicted on 3 June 2002 of the offence of driving on a road with a prescribed concentration of alcohol contrary to s 47B(1)(a) of the Road Traffic Act 1961 (SA) (“Road Traffic Act”) on 10 March 2002.
On 10 November 2005, the respondent was convicted of the offence of driving on a road with a prescribed concentration of alcohol contrary to s 47B(1)(a) of the Road Traffic Act on 20 March 2005.
On 4 December 2010, the respondent drove his 1996 Holden VS Commodore Utility on a road with a prescribed concentration of alcohol contrary to s 47B(1)(a) of the Road Traffic Act. On his apprehension the motor vehicle was seized and impounded.
On 16 December 2010, an application was made by the police under s 12(1)(a)(iii) of the Forfeiture Act for forfeiture of a motor vehicle owned by the respondent. The respondent opposed the application.
On 10 January 2011, the respondent was convicted of the offence of driving on a road with a prescribed concentration of alcohol under s 47B(1)(a) of the Road Traffic Act on 4 December 2010. He was sentenced on 10 January 2011 to a fine of $500.00 and his driver’s 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 Forfeiture Act.
The forfeiture application was determined on 31 October 2011. On that date, a Magistrate ordered that the vehicle the subject of the application be forfeited.
The respondent appealed against the forfeiture order to a single Judge of the Supreme Court. On 17 October 2012, the Judge held that s 12(1)(a)(iii) of the Forfeiture Act is invalid and ordered that the appeal from the Magistrates Court be allowed and the order for forfeiture set aside.[1]
[1] Bell v Police [2012] SASC 188.
Issues on Appeal
The appellants, the Attorney-General of South Australia and Police, appeal to this Court against the whole of the Judge’s judgment, and the orders allowing the appeal from the Magistrates Court and setting aside the order for forfeiture. The appellants contend that the Judge erred in holding s 12(1)(a)(iii) of the Forfeiture Act invalid.
Three issues arise on this appeal. One issue is whether on its proper construction s 12(1)(a)(iii) of the Forfeiture Act permits an application for forfeiture to be made subsequent to the finalisation of the conviction proceedings for the offence in respect of which the application for forfeiture is made. The next issue is whether s 12(1)(a)(iii) on its proper construction is invalid insofar as it requires the court to perform a function that is inconsistent or incompatible with its defining characteristics as a court. Finally, the respondent’s notice of contention raises the issue of whether on the proper construction of the Forfeiture Act, the respondent’s conviction in 2002 was properly to be regarded as one of the three prescribed offences for the purpose of s 12.
Section 12(1)(a)(iii) of the Forfeiture Act
It is convenient to commence with the submissions concerning the construction of s 12 of the Forfeiture Act before turning to what has been termed “the Kable argument”.
Section 12(1) of the Forfeiture Act provides:
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
(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.
The Judge construed the words “within 10 years of the date of the offence” contained in s 12(1)(a)(iii) to have the effect that “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 made”.[2]
[2] Bell v Police [2012] SASC 188 at [15], [20].
The question is whether, on its true construction, s 12(1)(a)(iii) does allow for the two other prescribed offences to be committed up to 10 years after the offence in respect of which an application for forfeiture is made. If the answer to that question is no, when can an application for forfeiture under s 12(1)(a)(iii) be made by the prosecution.
The Forfeiture Act was amended in 2010 by the Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) (Miscellaneous) Amendment Act 2009 (SA) (“Amendment Act”) with effect from 31 October 2010 in its current form.
Prior to those amendments, s 12(1) relevantly read as follows:
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—
…
(iii)if the convicted person has, during the period of 10 years immediately preceding the date of the offence, been found guilty of, or expiated, 3 or more other prescribed offences—that the motor vehicle specified in the application is forfeited to the Crown; and
(b) order that the convicted person pay to the relevant authority fees calculated in accordance with the regulations in relation to the impounding or forfeiture of the motor vehicle.
…
[Emphasis added]
The emboldened words reflect the basis upon which the respondent made contentions. Whereas previously s 12 of the Forfeiture Act stated the relevant period as “during the period of 10 years immediately preceding the date of the offence”, the 2010 amendments changed this wording to read “within 10 years of the date of the offence”.
The respondent contended that the legislative policy behind the 2010 amendments was to enable the prosecution to make an application for forfeiture under s 12(1)(a)(iii) in any case where a court had convicted a person of one prescribed offence and the person had also expiated two other prescribed offences, regardless of the order in which those three prescribed offences were committed or allegedly committed.
The respondent submitted that under the old regime, prior to the 2010 amendments, an application for forfeiture could only be made if the prescribed offence in respect of which the court imposed a conviction was the last of the three prescribed offences. The respondent contended that the use of the term “within” in the amendment to s 12(1) allowed a prescribed offence to be one of the “other prescribed offences” for the purpose of s 12(1)(a)(iii), whether committed before or after the offence in respect of which an application for forfeiture is made. It was said that allowing the offence in respect of which an application for forfeiture is made to come in time before the other expiated offences accorded with the wider purpose of the amendments, which was to create a tougher forfeiture regime.
In making this submission, the respondent pointed to the explanation of clauses which formed part of the second reading speech for the Bill which ultimately became the Amendment Act. It was said that the purpose of the new language in s 12(1)(a)(iii) was specifically directed to extending the relevant period for the other prescribed offences forwards as well as backwards in time. The explanation of clause 12 relevantly states:[3]
The amendments in this clause change the circumstances in which a court must order impounding or forfeiture of a motor vehicle on application by the prosecution. If a person is convicted of a single forfeiture offence, the order is to be for forfeiture. If a person has, within 12 months either before or after committing the offence of which he or she is convicted, committed or allegedly committed another prescribed offence of which he or she has been found guilty or paid an expiation fee, the order is to be for forfeiture. If a person has, within 10 years either before or after committing the offence of which he or she is convicted, committed or allegedly committed 2 or more other prescribed offences of which he or she has been found guilty or paid an expiation fee, the order is to be for forfeiture. If those circumstances do not apply but the person has, within 10 years either before or after committing the offence of which he or she is convicted, committed or allegedly committed 1 other prescribed offence of which he or she has been found guilty or paid an expiation fee, the order is to be for impounding. The period for which the vehicle can be impounded in this circumstance has been extended from 3 months to 6 months.
[Emphasis added]
[3] South Australia, Parliamentary Debates, Legislative Council, 28 October 2009, 3811 (Paul Holloway, Attorney-General).
The respondent submitted that the necessary consequence of accepting that interpretation of the amended section is that it is impossible to construe s 12(1)(a)(iii) as requiring that an application for forfeiture under that section be made prior to, or forthwith upon, conviction for the offence in respect of which an application for forfeiture is made.
Discussion
I cannot accept the respondent’s argument. In my view, on the proper construction of section 12(1)(a)(iii) of the Forfeiture Act, a conviction or an expiation of the other prescribed offences must predate the application for forfeiture. Further, an application for forfeiture must be made before the finalisation of the proceedings relating to the offence in respect of which an application for forfeiture is made.
An examination of the provisions of the Forfeiture Act as a whole leads to that conclusion.
Section 4 of the Forfeiture Act provides:
(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.
Section 4(2) is a direction to the sentencing court to have regard to any exercise of powers under the Forfeiture Act in imposing another penalty on a person in relation to a prescribed offence. Section 4(1) makes it clear that an order for forfeiture is an additional penalty which may be imposed on a person convicted of a prescribed offence. It is not easy to see how a court could ever give effect to the direction contained in s 4(2) if an application for forfeiture could be made up to 10 years after the offence in respect of which an application for forfeiture is made.
There is a further indication in both s 11 and s 12 that an application for forfeiture must be made at the time of the conviction for a relevant prescribed offence. Section 11 states:
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.
The chapeau to s 12 provides, “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 …”.
The wording in the chapeau of both s 11 and s 12(1) implies contemporaneity between the relevant conviction and the application for forfeiture.
The object and purpose of the Forfeiture Act is also a relevant matter to consider in this context. The Solicitor-General characterised the object and purpose of the Forfeiture Act in layman’s terms as “three strikes” and a vehicle is forfeited; that is to say, if a person commits three prescribed offences within a 10 year period, then liability for forfeiture upon the application of the prosecution will arise. It was submitted in this context that forfeiture of a vehicle after three episodes of offending is an added deterrent to the further commission of offences.
It is evident that the object of the legislation is to punish repeat offenders for certain offences prescribed by the Act and Regulations. The term “prescribed offence” is defined in s 3 of the Forfeiture Act as “a forfeiture offence or an offence of a kind prescribed by regulation for the purposes of this definition”. The Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Regulations 2007 (SA) prescribes the following offences:
(a)an aggravated offence against section 45 of the Road Traffic Act 1961;
(b)an offence against section 44B, 45A, 46, 47, 47B or 47BA of the Road Traffic Act 1961;
(c)an offence against section 17AA or 54 of the Summary Offences Act 1953;
(d)an offence against section 9 of the Graffiti Control Act 2001;
(e)an offence against section 85 of the Criminal Law Consolidation Act 1935 if the offence involves the marking of graffiti;
(f)an offence against section 9 or 102 of the Motor Vehicles Act 1959 (other than a first offence against either of those sections);
(g)an offence against section 74(2), 74(2a) or 91(5) of the Motor Vehicles Act 1959.
This group of offences can be broadly categorised as offences relating to the use or misuse of motor vehicles. While it is true that the offences prescribed under the s 9 of the Graffiti Control Act 2001 (SA) and under s 85 of the Criminal Law Consolidation Act 1935 (SA) are not, on their face, offences concerned with the misuse of motor vehicles, they may nevertheless be described as offences the common theme of which is concerned with damage caused by the use or misuse of property, including, in the main, the use of motor vehicles.
The object and purpose of the Forfeiture Act to punish repeat offenders is advanced by a construction of the Act which allows for an application for forfeiture to be made only in the context of a third prescribed offence. The Act is directed at punishing for past transgressions, not future ones. It follows that the offence in respect of which an application for forfeiture is made will be the third in time of the three prescribed offences.
It is true that the second reading speech for the 2010 amendments to s 12, might be thought to indicate that the drafters of the legislation were endeavouring to achieve a different result. However the observations of the High Court in Saeed v Minister for Immigration and Citizenship need to be borne in mind:[4]
… Statements as to legislative intention made in explanatory memoranda or by Ministers, however clear or emphatic, cannot overcome the need to carefully consider the words of the statute to ascertain its meaning.
[4] (2010) 241 CLR 252 at [31].
The Acts Interpretation Act 1915 (SA) does not provide for the use to be made of parliamentary materials in the process of statutory construction. This Court held in Owen v South Australia[5] that reference may be made to reports of parliamentary debates to ascertain the mischief of the legislation in question and to discern its underlying purpose.
[5] (1996) 66 SASR 251 at 255-7; see discussion in Dennis C Pearce and Robert S Geddes, Statutory Interpretation in Australia (LexisNexis Butterworths, 7th ed, 2011) [3.6].
The plurality of the High Court in CIC Insurance Ltd v Bankstown Football Club Ltd observed that:[6]
… the modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses "context" in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means such as those just mentioned, one may discern the statute was intended to remedy. Instances of general words in a statute being so constrained by their context are numerous. In particular, as McHugh JA pointed out in Isherwood v Butler Pollnow Pty Ltd, if the apparently plain words of a provision are read in the light of the mischief which the statute was designed to overcome and of the objects of the legislation, they may wear a very different appearance. Further, inconvenience or improbability of result may assist the court in preferring to the literal meaning an alternative construction which, by the steps identified above, is reasonably open and more closely conforms to the legislative intent.
[Footnotes omitted]
[6] (1997) 187 CLR 384 at 408.
This Court considered the use to be made of a Minister’s second reading speech when construing a statute in Burch v South Australia.[7] Citing the passage from CIC Insurance Ltd v Bankstown Football Club Ltd[8] extracted above, Bleby J made the following apposite observations:[9]
However, it is clear that the only purpose in looking at the Minister's Second Reading Speech is to ascertain the mischief that the Act was intended to cure. It does not mean that one can have regard to the second reading speech in order to ascertain what Parliament intended certain words to mean. Nor did it mean that once the mischief has been ascertained, the words must be strained in their meaning and context to give effect to the identified mischief. Reference to the Second Reading Speech provides no more than an indicator of what Parliament hoped to achieve. It does not follow that Parliament's hope has necessarily borne fruit.
[7] (1998) 71 SASR 12 at 38-9.
[8] (1997) 187 CLR 384.
[9] (1998) 71 SASR 12 at 39. Even though Bleby J was in dissent as to the disposition of the appeal, the general principle is uncontroversial.
French CJ in K-Generation Pty Ltd v Liquor Licensing Court commented on the issue:[10]
The question whether extrinsic materials may be considered in South Australia and in what circumstances they may be considered as an aid to statutory interpretation is to be answered by the common law. The answer at common law is that such materials can be considered to determine, inter alia, the mischief to which an Act is directed. This Court has referred to Hansard in aid of its interpretation of South Australian statutes. In 1996 the Full Court of the Supreme Court of South Australia referred to a minister's Second Reading Speech in order to identify the purpose of a statutory provision.
At common law it is not necessary before entering upon a consideration of such material to surmount a threshold of ambiguity, obscurity or possible absurdity. Statutory interpretation requires the court to have regard to the context in which the words to be interpreted arise and also their statutory purpose. Context includes "the existing state of the law and the mischief which, by legitimate means ... one may discern the statute was intended to remedy".
The relevant extrinsic material is the Attorney-General's Second Reading Speech introducing the amendments which led to the enactment of s 28A. This material may be considered to determine the purpose of the section as an aid to its construction. That does not mean that the words of the Attorney-General can be substituted for its text. That caution is apposite in the present case.
[Footnotes omitted]
[10] (2009) 237 CLR 501 at [51]-[53].
In Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue French CJ made the following observations:[11]
This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.
[Footnotes omitted, emphasis added]
[11] (2009) 239 CLR 27 at [47].
I consider that these statements make clear the High Court’s view that minimal weight is to be accorded to parliamentary materials where a construction of the text itself reveals a clear meaning. It follows that parliamentary materials will not displace the clear meaning of a provision.
I consider that the plain meaning of s 12(1)(a)(iii) is that the other prescribed offences must occur before the offence in respect of which an application for forfeiture is made.
Since preparing these reasons I have had the benefit of reading in draft the reasons of Blue J who reaches a similar conclusion on the proper construction of s 12(1)(a)(iii). I agree with the reasons of Blue J on this issue.
Accordingly, an application for forfeiture must be made before the finalisation of the proceedings relating to the offence in respect of which an application for forfeiture is made.
The Kable Argument
The argument for invalidity was based upon the reasoning first enunciated in Kable v Director of Public Prosecutions (NSW) (“Kable”).[12] Kable has been the subject of extensive discussion and analysis, both academic and judicial.[13]
[12] (1996) 189 CLR 51.
[13] See eg Fardon v Attorney-General for the State of Queensland (2004) 223 CLR 575; Gypsy Jokers Motorcycle Club Inc v Commissioner of Police (2008) 234 CLR 532; K-Generation Pty Ltd v Liquor Licensing Court (2009) 237 CLR 501; International Finance Trust Co Ltd v New South Wales Crime Commission (2009) 240 CLR 319; South Australia v Totani (2010) 242 CLR 1; Wainohu v New South Wales (2011) 243 CLR 181; Assistant Commissioner Michael James Condon v Pompano Pty Ltd (2013) 87 ALJR 458.
The principal argument put forward by the respondent in submitting that s 12(1)(a)(iii) is invalid was based on the construction of s 12 of the Forfeiture Act that the relevant period for the “other prescribed offences” extends forwards as well as backwards in time. This, in the respondent’s submission, empowers a court to make orders founded on a wholly retrospective imposition of liability long after the penalty for the earlier offence has been fixed and at a time when the court fixing that penalty was ignorant of the possibility of a later forfeiture penalty. As discussed above, I reject this construction. The respondent, however, identified a number of other features about the Forfeiture Act which he submits are offensive to the principle enunciated in Kable.
Some of the specific features identified by the respondent include the requirement that the court act only upon an application by the prosecution, and then, only in respect of a particular motor vehicle selected at the prosecution’s discretion from a number of other possible motor vehicles. This discretion, it was said, is not subject to any effective judicial review notwithstanding that the court has some genuine adjudicative functions to perform under the terms of s 12 of the Forfeiture Act. Given that the nature of the penalty of forfeiture is punitive, the respondent argued that the whole of Part 3 of the Forfeiture Act is apt to give rise to the appearance of a court imposing a judicial penalty when, in substance and in reality, that penalty imposed in each case has been effectively determined by the prior decision of the Executive as to the identification and selection of the vehicle to be forfeited.
The question is whether the provisions of Part 3 of the Forfeiture Act operate in such a way as to require a court to act in a manner inconsistent or incompatible with its defining characteristics as a court.
Discussion
The Judge, in his reasons for concluding that s 12(1)(a)(iii) of the Forfeiture Act was invalid, relied on the reasoning of the plurality in South Australia v Totani.[14] After analysing their reasoning, the Judge concluded at [75]:[15]
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.
[14] (2010) 242 CLR 1.
[15] Bell v Police [2012] SASC 188 at [75].
His Honour then went on at [80] to identify those features of the Forfeiture Act which led him to conclude that the section was invalid as follows:[16]
[16] Bell v Police [2012] SASC 188 at [80]-[81].
…
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 confiscation offence and the qualifying offences have been committed.
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.
The concern of the Judge about the lack of any rational connection between the adjudicative function and the powers which the court must exercise under s 12 of the Forfeiture Act appears to have largely informed the conclusion that he later reached in particular in [80] at points 1, 4, 5 and 7.
I respectfully disagree with the conclusion reached in [75] of his Honour’s reasons. Nor can I accept that the proposition enunciated in that paragraph accurately reflects the true import of the judgment in Totani as a whole. At this point it is pertinent to consider some cautionary remarks made by Kiefel J in Assistant Commissioner Michael James Condon v Pompano Pty Ltd:[17]
... it is readily possible to take statements made in previous cases in explaining why the legislation under consideration in each was invalid and, by joining them together in a logical sequence, argue that the relevant provisions of the CO Act are invalid. But the constitutional validity of one law cannot be decided simply by taking what has been said in earlier decisions of the Court about the validity of other laws and assuming, without examination, that what is said in the earlier decisions can be applied to the legislation now under consideration. The critical questions are whether and why what has been said can be applied. Judge Henry Friendly was surely right to warn against "the domino method of constitutional adjudication ... wherein every explanatory statement in a previous opinion is made the basis for extension to a wholly different situation". And as Judge Friendly pointed out more than once, by reference to the writings of Judge Cardozo, great care must be exercised in "pushing a principle to 'the limit of its logic'". Care must be exercised lest taking what has been said in explanation of the decisions in other cases about other legislation to its apparently logical end sever the applicable principle from its constitutional roots.
[Footnotes omitted]
[17] (2013) 87 ALJR 458 at [137].
In Totani,[18] the relevant provisions under the Serious and Organised Crime (Control) Act 2008 (SA) were held to be invalid because they required the court to make a decision largely preordained by executive declaration for which no reasons needed to be given, the merits of which could not be questioned and which was based on executive determinations of criminal conduct committed by persons not necessarily before the court. The critical point of distinction between that legislation and section 12(1)(a)(iii) of the Forfeiture Act is that a penalty of forfeiture only applies on an application by the prosecution IF the motor vehicle was used by the convicted person OR the convicted person is a registered owner of a motor vehicle AND if the convicted person has been convicted of or expiated at least two other prescribed offences within 10 years of the date of the offence. In other words, the penalty of forfeiture only applies if a person has been convicted of or expiated two other prescribed offences within 10 years of the offence in respect of which an application for forfeiture is made. It is not an executive determination but three judicial determinations which constitute the preconditions and therefore the trigger for the exercise of the power to order forfeiture in s 12(1)(a)(iii).[19]
[18] South Australia v Totani (2010) 242 CLR 1.
[19] I do not regard the fact that proof of expiation of one or more of the relevant offences will suffice to detract from the general proposition. That is because an expiation in accordance with the Expiation of Offences Act 1996 (SA) can only occur if the person forfeits his/her right to have a judicially determined hearing. A person may always put the prosecution to proof and elect to be tried in a court which must then determine guilt or innocence of the offence.
It is relevant at this point to note the distinction pointed out by Gummow J in Totani between a legislative grant of jurisdiction and a legislative direction to the courts as to the manner and outcome of the exercise of its jurisdiction:[20]
There is, however, a distinction between a legislative grant of jurisdiction and a legislative direction to the courts as to the manner and outcome of the exercise of the jurisdiction. This point was made by Brennan, Deane and Dawson JJ, with the concurrence of Gaudron J, in Chu Kheng Lim v Minister for Immigration. It is true also that a law such as s 14(1) of the Act, which confers upon a court a power with a duty to exercise it if the court decides that the conditions attached to the power are met, on that ground alone is not to be classified as a legislative attempt to direct the outcome of the exercise of jurisdiction.
[Footnotes omitted]
[20] South Australia v Totani (2010) 242 CLR 1 at [133]; see also International Finance Trust Co Ltd v New South Wales Crime Commission (2009) 240 CLR 319 at [77] per Gummow and Bell JJ; John Fairfax Publications Pty Ltd v Gacic (2007) 230 CLR 291 at [28] per Gummow and Hayne JJ; Leach v R (2007) 230 CLR 1 at [38]; Nicholas v The Queen (1998) 193 CLR 173 at [23] and [37] per Brennan CJ.
The respondent contended that the wide discretion granted to the prosecution as to whether to make an application for forfeiture and to choose the vehicle from a number of other possible vehicles to be forfeited is an important factor in assessing the validity of s 12. As I have earlier observed, this feature of the legislation was also highlighted in the reasons of the Judge and was an important factor in the conclusion he reached.
The fact that the court is only empowered to impose a penalty for forfeiture upon application of the prosecution, and in the exercise of the prosecution’s discretion as to which vehicle amongst a number of other possible vehicles to select, is nothing new.
In the first place, the point needs to be made that the prosecution discretion is in fact circumscribed by the terms of the statute itself in two important respects. The first is that the vehicle from which the prosecution must make a selection must have a connection with the offending either because it was used by the convicted person in the commission of the prescribed offence (not being a stolen vehicle) or it is owned by the convicted person.
The other point which needs to be made in this context is that whether or not a court will make an order for forfeiture is subject to the discretion given to the court under the terms of s 13 of the Forfeiture Act. Section 13 provides:
(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.
(2)If—
(a)a court declines to make an order under this Part; and
(b)the court is satisfied that it would be reasonably practicable for the convicted person to instead perform community service,
the court must order the convicted person to perform not more than 240 hours of community service.
(3)An order to perform community service under subsection (2) must be dealt with and enforced as if it were a sentence of community service (and in any enforcement proceedings the court may exercise any power that it could exercise in relation to a sentence of community service).
Contrary to the conclusion of the Judge,[21] I consider that the terms of s 13 afford the court a real discretion to avoid any arbitrary or harsh consequences of forfeiture. It was argued that the discretion of the court under s 13 was limited to circumstances which will have no practical application in most cases. I cannot agree that that is the effect of s 13 considered as a whole.
[21] See Bell v Police [2012] SASC 188 at [83].
The likely practical application of the criteria in section 13, in particular those of severe financial or physical hardship, is something that cannot be known in advance. It is not appropriate to make generalised statements about the perceived application of these criteria that can only be determined after assessment of the circumstances in each individual case. This is precisely the point of s 12 being made expressly subject to s 13.
One further matter to consider in this context is, as the High Court observed in the recent case of Elias v The Queen; Issa v The Queen,[22] the separation of functions between the Court and the prosecution. That is also an important factor to consider. Although the Court there was concerned with the exercise of the prosecutorial discretion to lay particular charges, the same observations apply in the context of the prosecutorial discretion to be exercised under the Forfeiture Act. The prosecution is subject to a duty of fairness in the exercise of this important public function. In the unlikely event that the discretion to forfeit a particular motor vehicle was exercised for some improper purpose, the Court retains the inherent power to relieve against the resulting abuse of its process.[23]
[22] (2013) 87 ALJR 895.
[23] Elias v The Queen; Issa v The Queen (2013) 87 ALJR 895 at [35].
The Court retains a real discretion to ensure that the property of innocent third parties will not be involved in a forfeiture and to ameliorate any risk of any unforseen financial and physical hardship of a severe nature being caused to a person whose vehicle is forfeited.
There is nothing new in a provision of a statute only empowering a court to impose a penalty upon application of the prosecution.
This was the very point raised in Palling v Corfield:[24]
Also it is within the competence of the Parliament to determine and provide in the statute a contingency on the occurrence of which the court shall come under a duty to impose a particular penalty or punishment. The event or the happening on which a duty arises or for that matter a discretion becomes available to a court in relation to the imposition of penalties or punishments may be objective and necessary to have occurred in fact or it may be the formation of an opinion by the court or, in my opinion, by some specified or identifiable person not being a court. The circumstance that on this happening or contingency, the court is given or is denied as the case may be any discretion as to the penalty or punishment to be exacted or imposed will not mean, in my opinion, that judicial power has been invalidly invaded or that judicial power is attempted to be made exercisable by some person other than a court within the Constitution. The fact that the happening of the event or the formation of the opinion is in reality determinative of the penalty or imprisonment to be ordered does not make the bringing about of the event or the formation or communication of the relevant opinion by some person or body other than a court an exercise of judicial power. There may be limits to the choice of the Parliament in respect of such contingencies but the nature of the contingency in this case does not require any examination or discussion as to the existence and, if they exist, the nature of such limits.
Further, the Parliament may leave it to the executive to choose one of two alternative procedures for the prosecution of an offence, the penalty or punishment being determined either absolutely or within prescribed limits by the process of prosecution. …
[24] (1970) 123 CLR 52 at 58-59 per Barwick CJ.
In Palling the court comprehensively dismissed the submission made that the Parliament could not validly make a law which would require a court to impose a particular penalty for an offence, leaving no discretion even in circumstances where that particular penalty was to be imposed only at the request of the prosecution.
The respondent submitted that the reasoning in Palling no longer applies. It was suggested that the High Court’s reasoning in Totani[25] has effectively overtaken the reasoning in Palling to the extent that Palling would now be decided differently.
[25] South Australia v Totani (2010) 242 CLR 1.
This very proposition was discussed in a different context by Barwick CJ in Jacob v Utah Construction and Engineering Pty Ltd:[26]
… It is not, in my opinion, for a Supreme Court of a State to decide that a decision of this Court precisely in point ought now to be decided differently because it appears to the Supreme Court to be inconsistent with reasoning of the Judicial Committee in a subsequent case. If the decision of this Court is to be overruled, it must be by the Judicial Committee, or by this Court itself. It cannot be treated by a Supreme Court as if it were overruled. The matter is, of course, different where this Court's decision is not precisely in point and comparison has to be made merely between two lines of reasoning: see in this connexion Rejfek v. McElroy.
[Footnotes omitted]
[26] (1966) 116 CLR 200 at 207 and at 217 (McTiernan, Taylor and Owen JJ).
The High Court’s comments in that case apply with equal force to the submission which was made here, with the consequence that the respondent’s submissions should be rejected. This is especially so in light of the comments of French CJ in Totani, citing with apparent approval Palling as authority for the proposition that:[27]
It has been accepted by this Court that the Parliament of the Commonwealth may pass a law which requires a court exercising federal jurisdiction to make specified orders if some conditions are met even if satisfaction of such conditions depends upon a decision or decisions of the executive government or one of its authorities[28].
[27] (2010) 242 CLR 1 at [71].
[28] Palling v Corfield (1970) 123 CLR 52 at 58-59 per Barwick CJ; at 62-63 per McTiernan J; at 64-65 per Menzies J; at 65 per Windeyer J; at 66-67 per Owen J; at 68-70 per Walsh J; at 70 per Gibbs J; International Finance Trust Co Ltd v New South Wales Crime Commission (2009) 240 CLR 319 at 352 [49] per French CJ.
There are numerous other examples of legislation which provide that if specified matters are established in proceedings before a court, a particular consequence will follow or a particular order must be made. The failure to interpose a judicial discretion or a judicial decision between the establishment of the criteria and the making of the order is not problematic.[29]
[29] Director of Public Prosecutions v George (2008) 102 SASR 246 at [112] per Vanstone J; R v Ironside (2009) 104 SASR 54 at [91]-[92] per Doyle CJ.
In Director of Public Prosecutions v George[30] the Court was concerned with the validity of s 95(1) of the Criminal Assets Confiscation Act 2005 (SA). Although the Court held, by majority, that the power to be exercised under s 95 of the Criminal Assets Confiscation Act was discretionary in nature, the Court held that even if the section was mandatory, it would nevertheless have been valid. Doyle CJ (with whom White J agreed) held that s 95(1) did not require the Court to act at the dictation of the prosecution. It was still for the prosecution to satisfy the requirements of s 95(1).[31] The Court’s decision whether those requirements were satisfied determined whether or not a pecuniary penalty order was to be made. The Court rejected any suggestion that the process to be undertaken was not a real judicial process involving the exercise of a real judicial discretion. Doyle CJ observed:[32]
Nor has Parliament "clothed" a forfeiture with the appearance of a judicial process. The judicial process is a reality. The court does not act at the dictation of the DPP. The DPP must satisfy the requirements of s 95(1). It is the decision of the court on those matters that determines whether or not a PPO is to be made. There is no merit in the suggestion that the process under s 95 is not a "real judicial process", involving the exercise of a "real judicial discretion". That submission merely treats the absence of a judicial decision or discretion as inconsistent with the exercise of a judicial power. There is no basis for doing so.
[30] Director of Public Prosecutions v George (2008) 102 SASR 246.
[31] Section 95(1) states:
A court must, on application by the DPP, make an order (a pecuniary penalty order) requiring a specified person to pay an amount determined under Subdivision 2 to the Crown if satisfied that the person has been convicted of, or has committed, a serious offence and—
(a)the person has derived benefits from the commission of the offence; or
(b)an instrument of the offence is owned by the person or is under his or her effective control.
[32] Director of Public Prosecutions v George (2008) 102 SASR 246 at [113].
In this context it is relevant to note that the reasoning in George[33] was approved and followed in Dickfoss v Director of Public Prosecutions.[34]
[33] Director of Public Prosecutions v George (2008) 102 SASR 246.
[34] (2012) 31 NTLR 16 at [73] per Riley CJ, Southwood and Kelly JJ agreeing. Special leave to appeal to the High Court was refused on 8 June 2012.
Another example is R v Ironside.[35]In that case the Court considered a challenge to sentencing legislation which imposed mandatory minimum non-parole periods for certain offences. In holding that the legislation did not impair the institutional integrity of the Court, Doyle CJ (Gray and Kourakis JJ agreeing) made the following relevant observations:[36]
I have considered these statements of the relevant principle. I have been mindful of the point made by Gummow J in Fardon v Attorney-General (Qld) (2004) 223 CLR 575; [2004] HCA 46 at [104] to the effect that the Kable principle is not one framed in terms that will dictate future outcomes. It is a broad principle that must be applied with care and with careful consideration of the circumstances to which it is applied.
As I have indicated earlier in my reasons, the 2007 Act does not confer on a court powers or functions that are repugnant to or incompatible with the exercise of judicial power. Nor, in my opinion, do the restraints imposed on a court by the 2007 Act in any way deny the reality or appearance of independence and impartiality on the part of any court called upon to apply the provisions of the 2007 Act. Subject to the question of discriminatory legislation, there is nothing in the provisions of the 2007 Act which, to my mind, impairs the institutional integrity of the courts of this State.
[35] (2009) 104 SASR 54.
[36] R v Ironside (2009) 104 SASR 54 at [91]-[92].
Nothing said by the plurality in Totani is inconsistent with the reasoning in any of those decisions.
After the hearing of this appeal, attention was drawn by the parties to the recent Northern Territory decision of Emmerson v Director of Public Prosecutions.[37] This was, however, a case concerning a complicated, interlocking legislative scheme which is different in material respects to the Forfeiture Act. Further, the reasoning contained in each of the majority judgments differs materially and the ratio is therefore difficult to discern. As a consequence, I consider that the reasoning of the majority is of very limited assistance in resolving the issues which arise before us.
[37] [2013] NTCA 4.
The respondent’s alternative contention
On the issue which arises on the respondent’s notice of contention, namely, that the conviction in 2002 was spent and could not therefore constitute a qualifying offence for the purpose of s 12 of the Forfeiture Act, I agree with the reasons and conclusion of Blue J.
Conclusion
Under the Forfeiture Act, once the prosecution has made an application regarding a particular vehicle, the trigger for the Court’s power to order forfeiture is the satisfaction of the preconditions in s 12(1)(a)(iii). However, it is clear that the matters in s 12(1)(a)(iii) which must be established, namely proof of a conviction or an expiation of at least two other prescribed offences within 10 years, are facts themselves which are proved in consequence of judicial determinations in a court. The trigger then for the exercise of the power in s 12 is largely dependent on proof of previous judicial determinations.
The discretion of the prosecution to bring an application is not unlimited. That discretion is circumscribed by the terms of the legislation and is to be exercised having regard to the object and purposes of the Act, which is to provide additional penalties to repeat offenders in respect of certain offences. Those offences are, in the main, offences involving the use or misuse of motor vehicles.
The application for forfeiture must be made contemporaneously with and prior to the finalisation of the conviction proceedings referred to in s 12. In these circumstances I would find that section 12(1)(a)(iii) of the Forfeiture Act is valid.
For these reasons, I would allow the appeal, set aside the orders made by the single Judge and restore the order made by the Magistrate.
BLUE J:
Over the course of nine years between March 2002 to December 2010, the respondent and defendant, Mr Bell, committed three offences of driving a motor vehicle while there was present in his blood the prescribed concentration of alcohol in contravention of section 47B of the Road Traffic Act 1961 (SA).
The penalty prescribed for the third offence was a fine of between $500 and $900 together with the disqualification from holding a drivers licence for at least six months.[38] In addition, pursuant to section 12 of the Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Act 2007 (SA) (“the Act”), an additional penalty was prescribed, if the prosecution applied for it, of forfeiture of any motor vehicle of which Mr Bell was the registered owner nominated by the prosecution. Upon Mr Bell’s conviction, the second appellant and complainant, the Police, applied for a forfeiture order in respect of Mr Bell’s motor vehicle. The Magistrate who convicted Mr Bell made a forfeiture order pursuant to section 12.
[38] Road Traffic Act 1961 (SA) ss 47B(1)(a)(i) and 47B(3)(a)(A).
Section 12 of the Act requires a court that convicts a defendant of a prescribed offence (“the confiscation offence”) where the defendant has committed two other such offences (“qualifying offences”) within 10 years to order, on the application of the prosecution, that a motor vehicle specified by the prosecution which was used in the offence or is registered in the defendant’s name is forfeited to the Crown unless satisfied that the order would cause severe financial or physical hardship[39] or an innocent third party has a defined proprietary interest in the vehicle.[40]
[39] Under s 13(1)(a).
[40] Under s 13(1)(b),(c) and (d).
Mr Bell appealed to this Court against the forfeiture order. The appeal raised an issue as to the Constitutional validity of section 12 of the Act. The first appellant, the Attorney-General, intervened on the appeal in support of the validity of section 12.[41] On the appeal, the Chief Justice held that section 12 is invalid because it confers on South Australian courts a function which is incompatible with and repugnant to the exercise of judicial power under the Constitution.[42] The Chief Justice set aside the forfeiture order.
[41] Under s 9 of the Crown Proceedings Act 1992 (SA).
[42] Kable v Director of Public Prosecutions (NSW) [1996] HCA 24; (1996) 189 CLR 51.
Mr Bell makes an alternative contention on appeal that, on its proper construction, the preconditions for making a forfeiture order under the Act had not been satisfied.
There are three questions raised on appeal:
1. On the proper construction of the Act, was the 2002 offence rendered nugatory as stale under the previous forfeiture regime with the consequence that Mr Bell is to be treated under the current regime as having committed only one of the requisite two qualifying offences?
2. On its proper construction, does the Act permit an application for forfeiture to be made up to 10 years after conviction and sentence for the confiscation offence and to rely upon qualifying offences committed after the confiscation offence and after conviction and sentence thereon?
3. Is section 12 invalid because it confers on South Australian courts a function which is incompatible with and repugnant to the exercise of judicial power under the Constitution?
Background
On 10 March 2002 and again on 20 March 2005, Mr Bell drove a motor vehicle in contravention of section 47B(1)(a) of the Road Traffic Act 1961 (SA). He was convicted of those offences on 3 June 2002 and 10 November 2005 respectively.
If section 12 otherwise offended the judicial integrity principle, I agree with the Chief Justice that the existence of the limited discretion under section 13 would not avoid a conclusion of invalidity.[153] If the matter were to be determined solely at the level of the judicial integrity principle expressed generally, I would not necessarily be persuaded that the conclusions reached by the Chief Justice quoted at [194] above were erroneous.
[153] See State of South Australia v Totani (2010) 242 CLR 1 at [77]-[80] per French CJ, [112] per Gummow J, [199]-[200] per Hayne J, [421] per Crennan and Bell JJ, [467] per Kiefel J
However, in Palling v Corfield, the High Court unanimously held that a Commonwealth law which gave a similar power to the prosecutor to dictate a major component of the overall penalty, namely seven days imprisonment as opposed to a relatively small fine, was valid. If a Commonwealth law to that effect is valid, a State law to similar effect would not offend the judicial integrity principle. For the reasons given at [185] – [189] above, it is not a matter for this Court to decide that Palling v Corfield has been superseded or overruled sub silentio by Kable and subsequent cases. That is a matter exclusively for the High Court. The decision in Palling v Corfield was not cited by the Chief Justice in his reasons for judgment and it appears that it was not cited by the parties or relied upon in submissions made to the Chief Justice.
I conclude that section 12 of the Act is not invalid on the grounds asserted by Mr Bell.
Conclusion
The appeal should be allowed. The orders of the Chief Justice should be set aside and the orders made by the Magistrate reinstated.
NICHOLSON J.
I agree the appeal should be allowed. I have had the benefit of reading in draft the reasons of Kelly J and Blue J. With respect to ground 1 (the construction issue) and with respect to the respondent’s notice of contention, I agree with the reasons and conclusions reached by both Kelly J and Blue J. On the question of the validity of s 12(1)(a)(iii) of the Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Act 2007 (SA) (“Forfeiture Act”) (as construed by this Court) as a consequence of the reasoning set out in Kable v Director of Public Prosecutions (NSW)[154] together with the subsequent authorities that have considered that reasoning, I agree with the reasons of Kelly J. I also agree, in substance, with the review of the authorities provided by Blue J. However, I wish to reserve the position I would take in the event that Palling v Corfield[155] were to be overruled in the High Court.
[154] (1996) 189 CLR 51.
[155] Palling v Corfield (1970) 123 CLR 52.
Arguably, the present case for validity is stronger than that in Palling v Corfield.[156]The exercise of the discretion as to whether to seek forfeiture at all and, if so, as to the selection of motor vehicle, is subject to a judicial determination according to the constraints imposed by s 13. Section 13 is capable, according to the circumstances, of imposing real and effective constraints on the discretions reposed in the applicant for forfeiture. In my view the situation is not one where Parliament has “clothed” a forfeiture with the appearance of a judicial process.[157] Nor does s 12 of the Forfeiture Act “represent a substantial recruitment of the judicial function of the Magistrates Court to an essentially executive process”.[158]
[156] (1970) 123 CLR 52.
[157] Cf; Director of Public Prosecutions v George (2008) 102 SASR 246 at [113] (Doyle CJ).
[158] State of South Australia v Totani (2010) 242 CLR 1 at [82] (French CJ).
I agree with Kelly J and Blue J that when regard is had to the binding authority of Palling v Corfield,[159] s 12(1)(a)(iii) is not invalid. However, even if Palling v Corfield were to be revisited by the High Court and either qualified or overruled I would want to see the basis for any such qualification or overruling before considering further, whether, in the absence of Palling v Corfield, s 12(1)(a)(iii) of the Forfeiture Act should be held to be invalid. As I have indicated, in my view, the case for validity in the present circumstances can be seen as stronger than was the case for validity in Palling v Corfield.
[159] (1970) 123 CLR 52.
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