Director of Public Prosecutions (Cwlth) v Quirino Mario Peter Pirone No. SCGRG 96/544 Judgment No. 6051 Number of Pages 10 Constitutional Law

[1997] SASC 6051

IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA

DOYLE CJ, BOLLEN AND DUGGAN JJ

Constitutional law - operation and effect of the Commonwealth Constitution - general matters - validity of laws of the Commonwealth - question of law - defendant a member of the Australian Federal Police - employed as finance officer - convicted of making untrue representations with a view to obtaining money - Commonwealth DPP application under s46 Part VA Federal Police Act for superannuation order to confiscate benefits accrued - section applies to corruption offences where offender sentenced to a term of imprisonment of over 12 months - defendant's conduct involved abuse of office for which he was sentenced to 18 months' imprisonment therefore Part VA applies - s46 affects superannuation benefits possessed by defendant at time application made by DPP regardless of when they accrued - operation of Part VA not retrospective - establishment of police force within scope of executive power of the Constitution - Part VA a law with respect to execution and maintenance of Commonwealth law within s51(xxxix) - sufficient connection between offender, conduct punished, punishment itself and head of power - provision valid. District Court Act 1991s44; Australian Federal Police Act 1979 (Cth) ss41, 46 and 47; Crimes Act 1914 (Cth) ss20A(5)(c), 20(1)(b), 21B and 29B; Superannuation Act 1979 (Cth) ; Superannuation Act 1990 (Cth) ; Constitution ss51(xxxi), 51(xxxix) and 61; Crimes (Superanuation Benefits) Act 1989 (Cth) , referred to. R v Willers (1995) 81 ACrR 219; Re Austin [1994] 1 QcR 225; Maxwell v Murphy (1957) 96 CLR 261; Coleman v Shell Co of Australia Ltd (1943) 54 SR(NSW) 27; Re Director of Public Prosections; Ex Parte Lawler (19914) 179 CLR 270; Fairfax v Federal Commissioner of Taxation (1965) 114 CLR 1; Leask v Commonwealth (1996) 70 ALJR 995; Re Dingjan; Ex Parte Wagner (1995) 183 CLR
323, applied. R v Dellapatrona (1995) 83 ACrR 208; Leeth v Commonwealth (1992) 174 CLR 455, considered.

ADELAIDE, 5 February 1997 (hearing), 14 March 1997 (decision)

#DATE 14:3:1997

#ADD 24:3:1997

Plaintiff DPP (Cwlth):

Counsel: Mr M Weinberg QC with Mr A Hicks

Solicitors: Dpp (Cwlth)

Defendant Quirino Mario Peter Pirone:

Counsel: Mr S Tilmouth QC with Mr S Kenney

Solicitors: Camatta Lempens

Intervener Commonwealth Attorney-General:

Counsel: Dr G Griffith QC, Solicitor-General (Cwlth), with Mr G Kennett

Solicitors: Australian Government Solicitor

DOYLE CJ

1. Some questions of law have been reserved for determination by the Full Court pursuant to s44 of the District Court Act, 1991 (SA). They are reserved in proceedings commenced in the District Court by summons in which the Director of Public Prosecutions (Commonwealth) ("the DPP") is plaintiff and Mr Pirone is defendant.

2. The facts upon which the questions arise are as follows.

3. Mr Pirone was a staff member, or a civilian member, of the Australian Federal Police ("AFP"), appointed to a position under s26B of the AustralianFederal Police Act, 1979 (Commonwealth) ("the AFP Act"). On 6 September 1993 Mr Pirone pleaded guilty in the District Court to 110 counts of imposing upon the Commonwealth by making untrue representations with a view to obtaining money, the offence being an offence contrary to s29B of the Crimes Act, 1914 (Commonwealth). By committing those offences he obtained an amount of $2,260 between 24 July 1990 and 7 February 1992.

4. At the time Mr Pirone committed the offences he was employed as a finance officer with the AFP in Adelaide. His duties included responsibility for the petty cash system. He had power to reimburse himself and others for the purchase of goods, or for expenditure incurred. He fabricated receipts or misdescribed goods purchased or falsely claimed to be reimbursing others members of the AFP, and under cover of that deception, took for his own purposes money over which he had control.

5. On 18 November 1993 Mr Pirone was sentenced in the District Court for these offences. The judge imposed a single sentence of 18 months' imprisonment. Exercising powers conferred by s20(1)(b) of the Crimes Act the judge ordered that Mr Pirone be released forthwith upon him giving security by recognisance in the sum of $500 to be of good behaviour for a period of two years. Pursuant to s21B of the Crimes Act the judge also ordered Mr Pirone to make reparation to the Commonwealth in the sum of $2,260. That amount has been repaid to the Commonwealth.

6. On 18 November 1993 Mr Pirone resigned from his appointment under the AFP Act.

7. At all material times, and indeed for many years before this, Mr Pirone had been a member of a superannuation scheme established under the Superannuation Act, 1976 (Commonwealth). The matter before us proceeded on the basis that he had for many years been a member of a "superannuation scheme" as defined in s41 of the AFP Act. That being so, contributions or benefits had been paid or payable by the Commonwealth in respect of him by virtue of his service as an employee of the Commonwealth (I use the term "employee" for convenience) over many years prior to the commission of the offences.

8. Following his resignation Mr Pirone applied for and received from the relevant superannuation scheme a refund of his "Member Component", a sum of $41,372.87. This represented his own contributions and interest thereon.

9. Later the DPP applied to the District Court for a superannuation order under s46 of the AFP Act in respect of Mr Pirone. If the Court makes the order it is required by s46(3) to specify the value of the Commonwealth contributions or benefits to which Mr Pirone would otherwise become entitled, plus interest on those contributions or benefits accrued before the day of the order, and then to order that the amount so specified be paid to the Commonwealth. The effect of such an order is spelt out by subsections (1) and (1A) of s47 of the AFP Act. They provide as follows: "47.(1) Where a Court makes a superannuation order in respect of a person: (a) all rights of, and benefits payable to or in respect of, the person or a dependant of the person (being rights or benefits arising out of the person's membership of any superannuation scheme) cease, or cease to be payable, on the day on which the order takes effect and the person ceases to be a member of the scheme on that day; and (aa) any entitlement of the person to an adjustment payable ceases on that day and an adjustment payment is not payable to the person on or after that day; and (b) any amount of the kind mentioned in subsection 46(3) that is vested in the person ceases to be so vested on that day; and (c) the Commonwealth or a Commonwealth organisation is not liable to pay any employer contribution or benefit under the scheme in respect of the person on or after that day.

(1A) An amount payable by a person to the Commonwealth or a Commonwealth organisation under a superannuation order is a debt due by the person to the Commonwealth or the Commonwealth organisation, as the case may be."

10. As at May 1996 Mr Pirone had entitlements under the relevant superannuation scheme amounting to $113,652.52. Nearly all of this is attributable to employer contributions. The matter proceeded on the basis that if a superannuation order is made, Mr Pirone's entitlements in respect of that money will cease and that that amount will become payable to the Commonwealth.

11. The matter proceeded on the basis that the relevant amount reflected employer contributions made over many years, including years of service before the enactment in 1989 of Part VA of the AFP Act, a part which provides for the making of superannuation orders.

Question (a)

12. The question is as follows: "(a) Are the offences described in paragraphs 8 and 9 above 'corruption offences' within the meaning of Part VA of the AFP Act?" (Paragraphs 8 and 9 relate to the offences already referred to by me.)A Court is empowered to make an order only if the relevant offence is a "corruption offence". Such an offence is defined as follows in s41 of the AFP Act:"'corruption offence' means an offence by a person who was a member or a staff member at the time when it was committed, being an offence:(a) whose commission involved an abuse by the person of his or her office as such a member or staff member, as the case may be;

(b) that, having regard to the powers and duties of such a member or staff member, as the case may be, was committed for a purpose that involved corruption; or

(c) that was committed for the purpose of perverting, or attempting to pervert, the course of justice"

13. Counsel for Mr Pirone argued that the offences in question were not corruption offences. He submitted that subparagraphs (a) and (b) of the definition were to be read cumulatively. He relied upon the absence of the disjunctive "or" at the end of subparagraph (a). He also argued that the reference in subparagraph (b) to "such a member or staff member" was a reference to subparagraph (a), supporting the cumulative nature of those provisions.

14. In my opinion there is no substance in that submission. There is a well established drafting convention pursuant to which the drafter does not repeat the conjunction "and" or "or", using whichever one is appropriate only at the end of the penultimate paragraph. The definition is to be approached in the light of that convention, and so on the basis that the subparagraphs are to be read disjunctively. The reference to "such a member or staff members" appears to be a reference to a "staff member" in the opening words of the definition. I am satisfied that each limb of the definition is to be read as an alternative.

15. It was argued that in any event the offences did not fall within subparagraph (a), the provision upon which the DPP relies in particular. It was argued that the relevant offences were simply larceny by a servant. There was no third person corrupted by Mr Pirone, nor was there any improper outside influence brought to bear upon Mr Pirone leading to the offences. The offences were said not to involve corruption in the usual sense of the word. It was argued that there was no abuse of office because Mr Pirone simply did the sort of thing he was authorised to do, although in the particular circumstances acting in a manner which was unauthorised.

16. I am satisfied that the offences are corruption offences within the meaning of subparagraph (a). Mr Pirone made use of his office as a staff member, and in particular his position as a person responsible for the operation of the petty cash system, to make a payment to himself in respect of claims which he knew were false and unjustified. He knew that the making of the payment was unauthorised. In my opinion nothing could more clearly be an abuse by Mr Pirone of his office, treating the office as embracing the particular position which he occupied, as in my opinion one should. It was an abuse of that office because he made use of his office, including his knowledge of the system and his authority to authorise payment, to facilitate the commission of the offences. Should it be necessary, one can add that the office was used for a dishonest purpose involving personal gain.

17. For those reasons I consider that the offence did involve an abuse of Mr Pirone's office. I also consider that such conduct can properly be described as corrupt, in the sense of an exercise of authority for an improper purpose: R v Willers (1995) 81 ACrR 219 at 225 Malcolm CJ and Re Austin [1994] 1 QdR 225.

Question (b)

18. This question is as follows: "(b) In determining the application pursuant to section 46 of the AFP Act, does the Court need to be satisfied that the defendant has been 'sentenced ...to imprisonment ... for a term longer than 12 months' within the meaning of section 45(1) of the AFP Act?"

19. Subsections (1) and (2) of s45 provide as follows: "(1) Where: (a) the DPP is authorised to apply for a superannuation order in respect of a person who is convicted of an offence; and (b) if the person has not absconded in connection with the offence - the person is sentenced in respect of the offence to imprisonment for life or for a term longer than 12 months; he DPP shall make that application to the appropriate court.

(2) The DPP must not make an application for a superannuation order otherwise than under subsection (1)"

20. It was conceded by the DPP that, in the case of a person who has not absconded, s45(1)(b) creates a jurisdictional requirement, but the DPP submitted that compliance with that requirement is to be presumed unless challenged by a defendant, and in that event compliance is to be proved on the balance of probabilities. I am prepared to proceed on that basis, without deciding the point, because it is unnecessary to decide the point. It is unnecessary to decide because of the conclusion which I have reached on the next question.

Question (c)

21. Question (c) is as follows: "(c) If yes to question (b) above, is the sentence imposed on 18 November 1993 a 'sentence' of 'imprisonment....for a term longer than 12 months' within the meaning of section 45(1) of the AFP Act?"

22. In my opinion this question should be answered in the affirmative.

23. Mr Pirone was convicted and sentenced. The words of the judge were: "The sentence of the Court is that you be imprisoned for eighteen months." Mr Pirone remains, for the term of his recognisance, liable to serve that sentence of imprisonment, even though it will be served only if a Court is satisfied that he has, without reasonable cause or excuse, failed to comply with a condition of the recognisance and if the Court orders that he be imprisoned. Such an order can be made under s20A(5)(c) of the Crimes Act. There are other orders that the Court can make not involving imprisonment, but in my opinion none of this alters the fact that Mr Pirone has been sentenced to imprisonment for a term longer than 12 months. He has been so sentenced although not required to serve that sentence immediately or at all, unless a further Court order is made.

24. Sentences of the type imposed are a common feature of the alternatives available to a sentencing judge these days. Although distinguished from sentences which take effect immediately, they are routinely described as sentences of imprisonment. I can think of no reason why s45(1)(b) should be read differently.

25. If I am wrong in that, then I would come to the same conclusion because "sentence" is defined to include "a suspended sentence". The sentence imposed in this case is of a kind routinely described as a suspended sentence, and once again I can think of no reason why that term in the Crimes Act should not be read as referring to a sentence of the sort imposed here.

Question (d)

26. This question is as follows: "(d) Noting that the said Part VA commenced on 4 December 1989, does the said Part according to its proper construction validly operate to enable a superannuation order or orders to be made under section 46 of the AFP Act with respect to any and if so which contributions or benefits made or payable under the Superannuation Act 1990, and/or the 1976 Act before the said 4 December 1989?"

27. This question refers to the benefits which accrued to the defendant under legislation before Part VA was enacted. That is, benefits or entitlements that had accrued before the forfeiture power was conferred upon the Court and before the offences were committed.

28. Counsel for Mr Pirone invoked the well-known presumption against the retrospective operation of legislation. It was argued that s46 was to be interpreted as applying only to entitlements which were earned or which accrued (no distinction was drawn between the two) after the offending began.

29. I would reject that submission. In my opinion the application of s46 and s47 to such entitlements as Mr Pirone possessed at the time of the application to the Court or at the time of the making of an order does not involve the retrospective operation of those sections in a manner in which Parliament is presumed not to intend.

30. The provisions operate on offences committed and conduct which occurred after their enactment. They empower a forfeiture of entitlements to benefits which the person has at the time of the making of an order. In my opinion the fact that that entitlement arises by virtue of employment at earlier times and contributions paid by the Commonwealth at earlier times does not mean that the legislation has retrospective operation.

31. The making of the order does not alter or affect the entitlements of Mr Pirone arising by virtue of or attributable to past events. It assumes the existence of those entitlements, but now terminates them and transfers them, or an entitlement to an amount equal to their value, to the Commonwealth. To Mr Pirone the difference may be a matter of words, but it is a difference of principle. In support of what I have said I refer to the well known words of Dixon CJ in Maxwell v Murphy (1957) 96 CLR 261 at 267 and to what Jordan CJ said in Coleman v Shell Co of Australia Ltd (1943) 54 SR(NSW) 27 at 31: "....as regards any matter or transaction, if events have occurred prior to the passing of the Act which have brought into existence particular rights or liabilities in respect of that matter or transaction, it would be giving a retrospective operation to the Act to treat it as intended to alter those rights or liabilities, but it would not be giving it a retrospective operation to treat it as governing the future operation of the matter or transaction as regards the creation of further particular rights or liabilities."

32. Although it is not necessary to decide it, even if the presumption were applicable I am inclined to the view that in the present case the terms of the AFP Act are sufficient to displace it. The provisions which deal with the calculation of the amount which is to be paid to the Commonwealth appear to me to proceed on the basis that it is the whole entitlement which is to be the subject of an order.

Question (e)

33. Question (e) is as follows: "(e) Is Part VA of the AFP Act as amended invalid in its application to the Inter Partes Summons dated 20 June 1994 brought by the plaintiff against the defendant?"

34. Counsel for Mr Pirone argued that Part VA of the AFP Act, or at least s46 and s47 are not supported by any legislative head of power. He argued in the alternative that these provisions were laws with respect to the acquisition of property within the meaning of s51(xxxi) of the Constitution, and were invalid because the acquisition of property was not on just terms.

35. There is a growing body of case law relating to s51(xxxi) of the Constitution, and no doubt that body of case law will grow further. But there is one principle that is clear. The principle is expressed as follows by Brennan J in Re Director of Public Prosecutions; Ex Parte Lawler (1994) 179 CLR 270 at 278: "A law which imposes a penalty or sanction for breach of a provision prescribing a rule of conduct and which, apart from its imposition of the penalty or sanction, is a law with respect to a head of power other than s.51(xxxi) cannot be classified as a law with respect to the acquisition of property within s.51(xxxi). To place it within the s.51(xxxi) category would be to annihilate the penalty or sanction and thus to weaken, if not destroy, the normative effect of the prescription of the rule of conduct. The irrelevance of s.51(xxxi) to the imposition of fines and forfeitures is trite law."

36. That statement is supported by two decisions of the High Court. They are Mutual Pools & Staff Pty Ltd v Commonwealth (1994) 179 CLR 155 at 171, 179-180, 186-188, 198-201 and 221-222; Re Director of Public Prosecutions; Ex Party Lawler (1994) 179 CLR 270 at 284-286, 290-291,292, 294-295.

37. It follows that if the relevant provisions of the AFP Act are able to be supported by a head of Commonwealth power other than s51(xxxi), those provisions are valid and no issue arises in relation to just terms. Of course, the characterisation of the law and the identification of the relevant head of power are to be approached mindful of the presence of s51(xxxi) and of its operation as identified in the judgments already referred to, but nevertheless the point made by Brennan J stands. It is therefore convenient to turn to the question of whether sections 46 and 47 can be supported by a head of power other than s51(xxxi).

38. It is convenient, if slightly illogical, to start with the submissions attacking validity.

39. It was submitted that the provisions go beyond the realm of penalty, and forfeiture or compensation to the Commonwealth. Heavy reliance was placed upon an absence of any connection between what is forfeited to the Commonwealth and the commission of the offence. The point was rightly made that forfeiture cases such as Lawler (supra) all involved the forfeiture of property used in some way in connection with the commission of the relevant offence. Indeed, the submission was put that this was the limit of the power to forfeit by way of penalty or punishment for an offence: but cf R v Dellapatrona (1995) 83 ACrR 208, which was not referred to in submissions before us. Counsel pointed to the harsh effect of the law. A superannuation order could result in the loss of benefits or entitlements earned over many years before the offending occurred. In support of the submission that this was not a law with respect to penalty or forfeiture or punishment, it was submitted that a superannuation order is made after sentence has been passed, and not necessarily by the Court that convicts and sentences: see s41 of the AFP Act and the definition of "appropriate court". In the present case sentence has already been passed and compensation has already been ordered and paid. Reference was made to s55 of the AFP Act which directs a Court, in sentencing, not to "take into account the possibility that a superannuation order may be made."

40. All of this was put in support of a submission that these provisions could not be characterised as a law for the penalising of offences or for punishing offenders, and so could not be supported as such a law drawing support from a substantive head of Commonwealth power.

41. It was further argued that the same matters, and in particular the potential harshness of the provisions, established that the law was disproportionate and so, even if there was a head of power to which the law might be linked, it travelled beyond the reach of that head of power.

42. It was also argued that this was a law with respect to the acquisition of property, and that that acquisition was not on just terms. The Solicitor-General for the Commonwealth, who intervened on behalf of the Attorney-General, conceded that if it were necessary to resort to s51(xxxi) to support the relevant acquisition of property, then what was involved was property and he conceded, as I understood him, that there were no just terms. I have already explained that, as it seems to me, if the initial submissions advanced for Mr Pirone are correct, then the law is not supported by any head of power, and there is no need to resort to the question of whether the law offends s51(xxxi). If on the other hand, the provision can be characterised as a law of the type to which Brennan J referred in Lawler (supra), then the argument based on x51(xxxi) falls away.

43. Having said that, I now turn to the question of power.

44. The characterisation of a Commonwealth law is to be determined by examining the operation and effect of the law, by reference to the rights, duties, powers and privileges that it creates or affects: Fairfax v Federal Commissioner of Taxation (1965) 114 CLR 1 at 7; Leask v Commonwealth (1996) 70 ALJR 995 at 998 Brennan CJ, 1005 Dawson J, 1016 Gummow J, 1021-1024 Kirby J. The Court is entitled to consider the circumstances in which the law operates, the practical as well as the legal operation of the law: Leask at 998 Brennan CJ, at 1023 Kirby J; Re Dingjan; Ex Parte Wagner (1995) 183 CLR 323 at 368-369 McHugh J.

45. It is not necessary to repeat the summary of the operation of sections 46 and 47 which emerges from the earlier parts of my judgment.

46. In my opinion these provisions can be described as laws imposing liabilities upon the members and staff of the AFP, the Commonwealth's police force, in respect of breaches of the law by them. The breaches of the law in respect of which the liabilities are imposed are breaches involving, relevantly, misuse of that person's office in the AFP.

47. There can be no doubt that the establishment of a police force to protect the Commonwealth as an organ of government and to enforce Commonwealth laws is within the scope of the executive power vested in the Commonwealth by s61 of the Constitution.

48. It is equally clear that acting under s51(xxxix) of the Constitution Parliament can legislate with respect to the establishment of such a force, and with respect to the powers, duties and obligations of its members. To do so is to legislate with respect to the execution and maintenance of the laws of the Commonwealth.

49. As I have said, the relevant provisions can be described as imposing obligations upon members of the AFP, or perhaps more accurately as imposing liabilities upon them, in respect of breaches by them of the law, which breaches involve a misuse of their position as members of the AFP. There is a clear link between the commission of the relevant corruption offence and the making of a superannuation order, and the making of such an order is apt to have a punitive and deterrent effect in relation to the misuse of office by a member of the AFP. Therefore, not only does the law impose a liability upon a member of the AFP in respect of misuse of the office held by that member, but it punishes such misuse should it occur.

50. At a higher level of generality, the provisions can be described as a law which imposes a liability upon those who hold an appointment under Commonwealth law and which imposes a punishment in respect of the misuse of that position. If it adds anything, the punishment is imposed in respect of misuse which would commonly be described as corruption. In that more general aspect the provisions can be described as a law which prevents conduct inimical to the exercise by the Commonwealth of its powers as an executive government, because the misuse of office by those who hold office on behalf of the Commonwealth, and corruption in the discharge of their duties, are damaging both to the Commonwealth as an executive government, to the effective exercise of its powers and to the effective discharge of its responsibilities.

51. In that respect the provisions can be regarded as laws punishing conduct inimical to the existence of the Commonwealth Government and to the exercise of its powers as an executive government.

52. In relation to both aspects of the law, it should not be overlooked that the law provides for the differential treatment of offenders. Only certain offenders, namely those who hold office in the AFP or an office which attracts a similar liability under the Crimes (Superannuation Benefits) Act, 1989 (Commonwealth), are liable to this further punishment. In certain circumstances the differential treatment of offenders under Commonwealth law might give rise to doubts about the validity of the law: see Leeth v Commonwealth (1992) 174 CLR 455. But in my opinion, in the present case, the imposition of an added punishment is clearly within Commonwealth power. The additional punishment is imposed upon a person who is appointed to an office in the service of the Commonwealth, and in respect of a misuse of that office. The punishment which is imposed is the loss of benefits conferred by the Commonwealth Government upon that person in respect of prior service to the Commonwealth. Punishment for the misuse of Commonwealth office by the forfeiture of benefits that would otherwise be gained from service in that office, is in my opinion clearly an aspect of the exercise of the executive power of the Commonwealth, and therefore something which supports the differential treatment of offenders who are Commonwealth office holders.

53. It follows that in my opinion the relevant provisions are laws with respect to the execution and maintenance of the laws of the Commonwealth, and with respect to the protection of the Commonwealth Government itself. As such they fall within s51(xxxix) of the Constitution. They are laws with respect to matters incidental to the execution of power vested in the Government of the Commonwealth, namely, the executive power vested by s61 of the Constitution.

54. In my opinion no more than that is required to conclude that the provisions challenged are valid.

55. The question for the Court is whether there is a sufficient connection between the law and a head of power. It is relevant to enquire whether the law achieves a purpose within power, but not whether the law is unduly harsh, whether it is desirable, whether the punishment is proportionate to the crime: Leask (supra) at 1000 Brennan CJ, at 1005 Dawson J.

56. In my opinion the submission based upon the proposition that the disproportionate nature of the law, apparently meaning its severity and the absence of any connection between the commission of the offence and what is forfeited, is misconceived. In certain circumstances proportionality can play a part in determining the validity of a Commonwealth law, but in my opinion not in the circumstances now before the Court. The last word may not have been spoken on the role of proportionality, but I can see no role for that concept in a case like this where the relevant power is not a purposive one and where a sufficient connection between the law and the power emerges when the practical operation of the law is examined. In support of what might seem an unduly brief consideration in this case of the notion of proportionality, I rely upon what has been said recently by the High Court in Leask (supra) at 1000 Brennan CJ, 1005 Dawson J, 1012 Toohey J, 1013 Gaudron and McHugh JJ, 1018 Gummow J.

57. In other words, having rejected the argument that these provisions cannot be regarded as punishing offenders, and having found a sufficient connection between the person punished, the conduct punished, the punishment and a relevant head of power, I need go no further. The wisdom and fairness of the law is a matter for Parliament.

58. In the light of what I have already said, in my opinion there is no need then to consider s51(xxxi) of the Constitution. Having characterised the law as I have, it is not a law with respect to the acquisition of property, and so the question of just terms does not arise.

Answers

59. In my opinion the questions reserved for the consideration of this Court should be answered as follows: (a) Yes.

(b) Not necessary to answer.

(c) Yes.

(d) Part VA enables a superannuation order to be made with respect to employer contributions or benefits made or payable at any time in the past provided that the person in respect of whom the order is made would become entitled to the benefit attributable to the employer contributions.

(e) Section 46 and s47 of the AFP Act are valid in their application to a corruption offence committed by a member or staff member of the AFP, and accordingly are valid in their application to the claim made by the DPP in the summons issued by the DPP against Mr Pirone.

BOLLEN J

60. I agree with the reasons of the Chief Justice. I agree with the answers which he proposes to questions (a), (c), (d) and (e). I agree that it is not necessary to answer question (b).

DUGGAN J

61. I would answer the questions in the manner proposed by the Chief Justice and for the reasons which he has advanced.