Victoria Police Toll Enforcement v Taha
[2013] VSCA 37
•4 March 2013
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2012 0004
| VICTORIA POLICE TOLL ENFORCEMENT and VICTORIA POLICE INFRINGEMENT and DEPARTMENT OF TRANSPORT v ZAKARIA TAHA and BROADMEADOWS MAGISTRATES’ COURT and VICTORIAN EQUAL OPPORTUNITY AND HUMAN RIGHTS COMMISSION | 1st Appellant |
| 2nd Appellant 3rd Appellant 1st Respondent 2nd Respondent Intervener | |
| and | |
| STATE OF VICTORIA v TARNI BROOKES and MAGISTRATES’ COURT OF VICTORIA | S APCI 2012 0005 Appellant 1st Respondent 2nd Respondent |
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| JUDGES | NETTLE, TATE and OSBORN JJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 13 November 2012 |
| DATE OF JUDGMENT | 4 March 2013 |
| MEDIUM NEUTRAL CITATION | [2013] VSCA 37 |
| JUDGMENT APPEALED FROM | Taha v Broadmeadows Magistrates’ Court; Brookes v Magistrates’ Court of Victoria [2011] VSC 642, Emerton J |
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ADMINISTRATIVE LAW – Statutory construction – Orders made under s 160 of the Infringements Act 2006 that respondents be imprisoned upon failure to pay fines – Whether Magistrate obliged to consider whether there were special circumstances before determining whether to make imprisonment order – ‘Special circumstances’ include mental illness or intellectual disability – Duty to inquire – Section 160 should be read as a unified whole – Jurisdiction to make an imprisonment order conditional upon consideration of special or exceptional circumstances – Court misconstrued its statutory function and committed jurisdictional error – Infringements Act 2006 (Vic), s 160 – Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355, applied; Whitehorn v The Queen (1983) 152 CLR 657, referred to; R v Langley (2008) 19 VR 90, distinguished.
CHARTER– Human rights – Unified construction supported by the principle of legality and the Charter of Human Rights and Responsibilities – Rights to equal protection of the law, liberty, and a fair hearing – Interpretative obligation to favour construction compatible with human rights – Direct obligation on Magistrate to give effect to the right to a fair hearing – Charter of Human Rights and Responsibilities, ss 6(2)(b), 7(2), 8(3), 21, 24(1), 32 – Hogan v Hinch (2011) 243 CLR 506, Momcilovic v R (2011) 245 CLR 1, Noone v Operation Smile (Australia) Inc [2012] VSCA 91, considered.
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| Appearances: | Counsel | Solicitors |
| S APCI 2012 0004 | ||
| For the Appellants | Dr S B McNicol | Director of Public Prosecutions |
| For the 1st Respondent | Mr S Holt with Mr C Horn | Victoria Legal Aid |
| For the 2nd Respondent | Ms R Orr | Victorian Government Solicitors’ Office |
| For the Intervener | Mr A D Pound | Victorian Equal Opportunity and Human Rights Commission |
| S APCI 2012 0005 | ||
| For the Appellant | Dr S B McNicol | Director of Public Prosecutions |
| For the 1st Respondent | Mr R J C Watters | Victoria Legal Aid |
| For the 2nd Respondent | Ms R Orr | Victorian Government Solicitors’ Office |
NETTLE JA:
These are appeals from judgments given in the Common Law Division. In each case, the judge made an order in the nature of certiorari to quash an order made in the Magistrates’ Court at Broadmeadows that the respondent be imprisoned pursuant to s 160(1) of the Infringements Act 2006 (Vic) (‘the Infringements Act’) for failure to make instalment order payments in respect of outstanding fines.
Section 160(1) of the Infringements Act provides that:
160. Powers of the Court
(1) The Court may order that the infringement offender be imprisoned for a period of one day in respect of each penalty unit, or part of a penalty unit, to which the amount of the outstanding fines under the infringement warrant or warrants is an equivalent amount.
(2) If the Court is satisfied-
(a) That an infringement offender has a mental or intellectual impairment, disorder, disease or illness; or
(b) Without limiting paragraph (a), that special circumstances apply to an infringement offender-
The Court may-
(c) Discharge the outstanding fines in full; or
(d) Discharge up to two thirds of the outstanding fines; or
(da) Discharge up to two thirds of the outstanding fines and order that the infringement offender be imprisoned for a period of one day in respect of each penalty unit, or part of a penalty unit, to which the remaining undischarged amount of the outstanding fines under the infringement warrant or warrants is an equivalent amount; or
(e) Adjourn the further hearing of the matter for a period of up to 6 months.
(3) If the Court is satisfied that, having regard to the infringement offender’s situation, imprisonment would be excessive, disproportionate and unduly harsh the Court may -
(a)Order the infringement offender to be imprisoned for a period that is up to two thirds less than one day in respect of each penalty unit, or part of a penalty unit, of the penalty units to which the amount of the outstanding fines is an equivalent amount; or
(b) Discharge the outstanding fines in full; or
(c) Discharge up to two thirds of the outstanding fines; or
(ca) Discharge up to two thirds of the outstanding fines and order that the infringement offender be imprisoned for a period that is up to two thirds less than one day in respect of each penalty unit, or part of a penalty unit, of the penalty units to which the undischarged amount of the outstanding fines is an equivalent amount; or
(d)Adjourn the further hearing of the matter for a period of up to 6 months; or
(e)Make a fine default unpaid community work order under Division 3 of Part 3B of the Sentencing Act 1991.
(4) If the Court has made an order under subsection (1), (2)(da), (3)(a) or (3)(ca) for imprisonment in default of payment of outstanding fines-
(a)A warrant to imprison may be issued under section 68 of the Magistrates’ Court Act 1989; and
(b)The Court may make an instalment order under the Sentencing Act 1991 in respect of the payment of the outstanding fines.
Each respondent is said to have an intellectual disability. The judge held that the Magistrate made a jurisdictional error by failing to make inquiries as to the respondent’s circumstances, and thus in failing to consider whether to make an alternative order under sub-s 160(2) or (3) on the basis of the respondent’s intellectual disability. Her Honour remitted the matter to the Magistrate for further consideration according to law.
In my view, the judge was correct. My reasons are as follows.
The facts – Taha
On numerous occasions in 2006, 2007 and 2008, the first respondent, Zachariah Tasha, was issued with infringement notices for minor offences. One was for riding a bicycle without a helmet and the remainder were for making a journey on public transport without a ticket and failing to provide information to authorized officers.
The fines were not paid and consequently an Infringements Registrar made Enforcement Orders pursuant to s 59 of the Infringements Act. The enforcement orders were not complied with and an Infringement Warrant issued, pursuant to s 59 of the Infringements Act, for Mr Taha’s arrest.
On 3 February 2009, Mr Taha was arrested pursuant to the warrant and bailed to appear before the Magistrates’ Court at Broadmeadows on 26 February 2009 for a hearing pursuant to s 160 of the Infringements Act.
As at 26 February 2009, Mr Taha was, and he remains, certified by the Secretary of the Department of Human Services as intellectually disabled. Prior to 26 February 2009, he had previously been placed on a Justice Plan in respect of his past offending. Although the Justice Plan was recorded in the Court Link system maintained by the Magistrates’ Court, the Magistrate was not aware of it.
Mr Taha was represented at the hearing of 26 February 2009 by Mr Alan Munro of Victoria Legal Aid, a duty solicitor at the Broadmeadows Magistrates’ Court. Mr Munro has only a limited recollection of the hearing but recalls that he was not aware that Mr Taha suffered from a psychiatric condition or disability. If he had known of that, he says, he would have applied for an adjournment in order to obtain appropriate evidence of Mr Taha’s condition and, on the basis of that material, made an application for a waiver or reduction of the fines pursuant to s 160(2) of the Infringements Act.
In the event, the Magistrate made orders that the total fines of $11,250.20 the subject of the 30 Infringement Warrants be paid by monthly instalments of $80.00 commencing on 1 April 2009 and that, in default, Mr Taha be imprisoned for 100 days. Mr Taha made payments totalling $1,280 but then stopped making payments.
In August 2010, police attended at Mr Taha’s parents’ home to arrest him. At that time, it was found that he was an inpatient at Orygen Youth Health, receiving treatment for a depressive condition. Consequently, he was not arrested.
Victoria Legal Aid instituted an appeal on his behalf to the County Court pursuant to s 254 of the Criminal Procedure Act 2009 (Vic) but the appeal was dismissed as incompetent. Then, on 16 November 2010, a judicial review proceeding was instituted in the Common Law Division. It resulted in the judgment the subject of this appeal.
The judge’s reasoning in Taha
In her reasons for judgment on Mr Taha’s application for judicial review, the judge identified the issues as follows:
(a) Did the Magistrate misconstrue s 160 of the Infringements Act in purporting to exercise jurisdiction under s 160(1) to make an imprisonment order without regard to sub-ss (2) and (3)?
(b) If so, was the Magistrate required to inquire as to Mr Taha’s particular circumstances before making an imprisonment order?
(c) In the alternative, did the rules of procedural fairness or s 24(1) of the Charter of Human Rights and Responsibilities Act 2006 (Vic) (‘the Charter’) impose on the Magistrate a duty to inquire as to Mr Taha’s particular circumstances before making an imprisonment order?
(d) In either case, did failure by the Magistrate to inquire into Mr Taha’s particular circumstances before making an imprisonment order constitute jurisdictional error?
(e) If the Magistrate thus committed a jurisdictional error, should an order in the nature of certiorari be made?
The judge held that the Magistrate had erred in failing to have regard to sub-ss 160(2) and (3), and thus in failing to inquire as to Mr Taha’s personal circumstances before making an order under s 160(1), for reasons which her Honour expressed as follows:
Having regard to the text of s 160, the Act read as a whole so as to expose its underlying objects and purposes, and the requirement that s 160 be interpreted, so far as it is possible to do so consistently with its purpose, in a way that is compatible with the rights to liberty, a fair hearing and to the equal protection of the law, s 160 must be construed in a unified fashion so as to require the court, before making an imprisonment order under subs (1) to consider the availability of the less draconian orders under sub-ss (2) or (3) and, for that purpose, to have regard to the individual circumstances of the infringement offender. Because of the nature of the conditions or circumstances that sub-ss (2) and (3) seek to cater for, the court may be required to actively elicit the relevant information from the infringement offender.
What steps must be taken will depend on the case before the Magistrate. A course of questioning will not be required in every case, least of all a standard course of questioning. In Mr Tasha’s case, however, there were ‘flags’ that should have prompted the court to ask questions directed to ascertaining whether he had an intellectual disability, a mental health problem or some other condition that prevented him from successfully negotiating both the public transport and infringement systems. Mr Taha presented as a young person who had accumulated a very large number of fines over a long period for repeated offences of the same kind. The amount of money involved was significant, particularly for a person on a pension. The court placed Mr Taha on an instalment plan, so it must have inquired about his ability to meet payments. It is likely the court was told that he received a pension or allowance of some kind. It would not have been a large step for the court to have asked what kind of pension Mr Taha received. This would have revealed his disability. Moreover, the court’s own records showed that Mr Taha was the subject of a Justice Plan, which told the court that Mr Taha had an intellectual disability. Although the Magistrate was not aware of the Justice Plan, and had no direct access to the relevant record while on the bench, it would not have been difficult for the court, through the Infringements Registrar or otherwise, to have made searches of its own records and to have informed the Magistrate of the results.
In my view, given the circumstances of Mr Taha’s offending and the level of fines outstanding, an inquiry as to whether Mr Taha qualified for orders under ss 160(2) or (3) was required by s 160 of the Act.[1]
[1]Reasons [66]–[68].
The judge further held that, by failing to consider the possibility of making orders under sub-s (2) or (3) in lieu of an imprisonment order under sub-s (1), the Magistrate had misapprehended or misconceived the nature of the court’s function under s 160, and thus the nature of the court’s jurisdiction to make an imprisonment order under sub-s (1). The result was to make an order which was beyond the court’s powers and, therefore, an order which was infected by jurisdictional error. Her Honour added that she considered the Magistrate had also erred in failing to accord Mr Taha procedural fairness and that the lack of procedural fairness was itself a jurisdictional error.
It followed, as her Honour concluded, that the Magistrates’ orders should be set aside and the matter should be remitted to the Magistrate for further consideration in accordance with s 160.
The appellant’s submissions
The appellant contends that the judge was in error in construing s 160, as her Honour put it: ‘in a unified fashion so as to require the Court, before making an imprisonment order under sub-s (1) to consider the availability of the less draconian orders under sub-ss (2) or (3) and, for that purpose, to have regard to the individual circumstances of the infringement offender’. Counsel for the appellant submitted that, upon its proper construction, s 160(1) confers a power to make an order subject only to the exceptions provided for in sub-ss (2) and (3) and that, because sub-ss (2) and (3) are truly exceptions, the burden or onus is upon the offender to invoke them. It follows, counsel argued that, until and unless an offender identifies one of those exceptions and persuades the Magistrate of its application, there is no duty on the Magistrate to take either exception into account, still less to make inquiries ex mero motu as to the offender’s personal circumstances.
The unified approach to s 160
In my view, the judge was right to construe s 160 as her Honour did. The considerations which lead me to that view are:
(1) First, according to ordinary principles of statutory interpretation, a section of an Act of Parliament is to be read as a whole and, therefore, s 160(1) is to be read in the context of ss 160(2) and (3).[2]
[2]K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309, 315 (Mason J); Pearce & Geddes, Statutory Interpretation in Australia, (7th Ed), [4.2].
(2) Secondly, although s 160(1) is cast in terms of discretion, it does not identify the criteria to which the Magistrate is to have regard in exercise of the discretion. It is improbable that Parliament intended the exercise of discretion to be unfettered and unguided. It is more likely that Parliament conceived of the discretion as being informed by the criteria prescribed by ss 160(2) and (3).
(3) Thirdly, ss 160(2) and (3) provide for persons whom Parliament evidently intended should not be imprisoned or at least should not be punished to the same extent as others. Given that such persons may not be legally represented at s 160 hearings or, if represented, may not be represented to any greater extent than by a duty solicitor on the basis of insufficient opportunity for conference and consideration of the person’s circumstances, to construe s 160(1) as requiring that the Magistrate give consideration of ss 160(2) and (3) would tend to give effect to Parliament’s intention whereas to construe it otherwise would tend to flout it.
Counsel for the appellant argued that, because the discretion is provided for in the first sub-section of s 160, and the exceptions are provided for separately in the second and third sub-sections, Parliament should be taken to have meant that the onus be upon an infringement offender to bring himself or herself within one or other of the exceptions. To that extent, it was said, s 160 is like a provision in which one sub-section prescribes an offence and then a following sub-section provides for a defence; in which case it is ordinarily taken that the onus is on the accused to bring himself or herself within the defence.
I do not accept the argument. Where a section is so structured with the intention of putting the onus on the accused, it is usual for it to be couched in terms of ‘if the accused satisfies the court’ of the application of the defence. Section 194(5) of the Crimes Act 1958 serves as an example. In contrast, there is no express statement within s 160 that the infringer must satisfy the court of the application of ss 160(2) or (3). Both sub-sections are drafted in terms of ‘if the court is satisfied’ thereby implying, as it seems to me, that the court may be satisfied howsoever, including by reason of the court’s own inquiries.
Counsel for the appellant submitted that s 160 is in some ways like sentencing provisions which identify considerations to which a judge is bound to have regard when fixing sentence and yet which are invariably understood as requiring the judge to take into account only such of the identified considerations as the prisoner invokes and establishes. Section 5(2)(g) of the Sentencing Act 1991 is an example. In terms, it requires a sentencing judge to have regard to the presence of any aggravating or mitigating factor concerning the offender and to any other relevant circumstance. Yet, in the way in which the provision has been interpreted, it certainly does not require the judge to have regard to every conceivable circumstance. So, while a prisoner’s psychological condition might well be relevant to a sentence to be imposed, s 5(2)(g) does not require a sentencing judge to take into account psychological considerations limiting the need for specific or general deterrence unless the prisoner identifies those considerations and adduces evidence of them.[3]
[3]R v Zander [2009] VSCA 10 [33] (Dodds-Streeton JA) and [36] (Nettle JA); R v White [2009] VSCA 177 [16]–[17] (Lasry AJA Buchanan and Dodds-Streeton JJA concurring); Vergados v R [2011] VSCA 438 [33] (Warren CJ).
I do not accept that submission either. A sentencing hearing is very different to a s 160 hearing in fundamental respects. The sentencing process is part of an adversarial contest in which the Crown is pitted against the subject but yet the Crown has an overriding obligation to put before the judge everything, subject to some exceptions, which is known to be relevant.[4] A s 160 hearing is more in the nature of an administrative or investigative inquiry. There is no prosecutor as such. The Infringements Registrar is a clerical officer, stationed in offices remote from the court, whose task is limited to placing basic information before the Magistrate about the non-payment of fines and the maximum term for which the infringement offender can be imprisoned. No doubt the community is entitled to expect that Infringement Registrars will act fairly, honestly and impartially with proper regard to the infringement legislation.[5] But, plainly, clerical officers cannot be expected to act like Crown prosecutors. Nor is there any other party with overall prosecutorial responsibility. It falls to the Magistrate to determine an appropriate order without the benefit of prosecutorial assistance. And so, in effect, the Magistrate is the subject’s only protection against the risk of inappropriate imprisonment.
[4]Whitehorn v The Queen (1983) 152 CLR 657, 663–4 (Deane J); Dyers v The Queen (2002) 210 CLR 285, 292-3 [11] (Gaudron and Hayne JJ).
[5]See and compare Bausch v Transport Accident Commission [1998] 4 VR 249, 259 (Tadgell JA).
I agree with the judge that those differences dictate that, in the case of a s 160 hearing, there is an obligation on a Magistrate to consider the application of ss 160(2) and (3) regardless of whether the possibility of their application has been raised by the infringement offender. In my view, her Honour’s analysis of the matter is in point and conclusive:
The s 160 hearing is thus conducted both like and unlike a criminal trial. The agency that has imposed the fine plays no role in the hearing. The Infringements Registrar appears in a quasi prosecutorial role in order to place before the court certain basic information about the payment or non-payment of fines and the amount of time the offender could be imprisoned for to expiate the fines. The court relies on any evidence about the offender’s circumstances being adduced by or on behalf of the infringement offender. Unless the s 160 hearing is adjourned, it is the first and last time the infringement offender comes before the court. There has been no prior determination in relation to the commission of the underlying offences or any other hearing in which the circumstances of the offender or the offending will have been exposed to the court.
The Act contemplates that imprisonment orders be made in the restricted context described.[6]
[6]Reasons [13]–[14].
Construction supported by Charter
The judge held that the unified construction of s 160 which she favoured was also supported by the principle of legality and the Charter of Human Rights and Responsibilities Act 2006 (‘the Charter’):
A ‘unified’ construction is also supported by the Charter, which requires s 160 to be interpreted compatibly with human rights, so far as it is possible to do so consistently with its purpose. Compliance with the interpretative obligation in s 32 means exploring all ‘possible interpretations of the provision(s) in question, and adopting that interpretation which least infringes Charter rights’. Where Charter rights are engaged, s 32(1) elevates the common law presumption against interference with rights to a statutory requirement in interpreting Victorian statutes.
…
The right to liberty (including the right not to be arbitrarily detained) and the right to a fair hearing are reflected in the objects and purposes of the Act that have been identified. In the context of s 160 and the scheme of the Act generally, they require consideration of whether imprisonment is reasonable in all the circumstances, and a hearing in which regard is had to the infringement offender’s particular circumstances. The right to equal protection of the law in s 8(3) of the Charter is important, having regard to Mr Taha’s intellectual disability and the recognition by the legislature that intellectually disabled people may be inappropriately caught up in the infringement system. The need for special treatment for persons with intellectual disabilities is reinforced by s 8(3) of the Charter, which provides:
Every person is equal before the law and is entitled to the equal protection of the law without discrimination and has the right to equal and effective protection against discrimination.
…
I accept that the interpretation of s 160 that least infringes the rights in sub-ss 21 and 24(1) of the Charter is one that requires the court to address the possibility that the alternative orders in sub-ss (2) or (3) may be available before making an imprisonment order under sub-s (1). This requires the court to consider the individual circumstances of the infringement offender.[7]
[7]Reasons [61]–[63], citations omitted.
With respect, I agree with the judge. As French CJ explained in Momcilovic v The Queen:[8]
The principle of legality has been applied on many occasions by [the High Court]. It is expressed as a presumption that parliament does not intend to interfere with common law rights and freedoms except by clear and unequivocal language for which parliament may be accountable to the electorate. It requires that statutes be construed, where constructional choices are open, to avoid or minimise their encroachment upon rights and freedoms at common law … [9]
…
Section 32(1) [of the Charter] … requires statutes to be construed against the background of human rights and freedoms set out in the Charter in the same way as the principle of legality requires the same statutes to be construed against the background of common law rights and freedoms. The human rights and freedoms set out in the Charter in significant measure incorporate or enhance rights and freedoms at common law. Section 32(1) applies to the interpretation of statutes in the same way as the principle of legality but with a wider field of application.[10]
[8](2011) 245 CLR 1 (‘Momcilovic’).
[9]Ibid 46 [43] (citations omitted).
[10]Ibid 50 [51].
Counsel for the appellant argued, as she did below, that Charter rights may only be taken into account under ss 160(2) and (3) when and if what counsel described as ‘the jurisdiction of the Magistrate to contemplate making a decision under ss 160(2) or (3)’ is enlivened by an infringement offender invoking the exceptions for which those sub-sections provide.
The judge rejected that submission, and so do I. As the Commission put it, it is clear from the terms of s 32)(1) of the Charter of Human Rights and Responsibilities Act 2006, as explained by French CJ in Momcilovic,[11] that relevant Charter rights must be taken into account as part of the interpretative process mandated by s 32(1) in determining the proper construction of any enactment and therefore in the interpretation of s 160 as a whole.
[11]Ibid.
The need to make inquiries
So to conclude does not necessarily mean that, whenever a Magistrate conducts a s 160 hearing he or she is bound to make inquiries of the infringements offender or his or her legal representative as to whether the infringement offender’s circumstances are such as to engage ss 160(2) or (3). Axiomatically, each case turns on its own facts and circumstances and to a considerable extent depends on the Magistrate’s reasonable assessment of what is required in those circumstances. It may be for example that, if an infringement offender were represented by Queen’s Counsel, the Magistrate might safely proceed upon the assumption that everything which could be said in favour of the operation of ss 160(2) and (3) would be said, and that the offender could be dealt with accordingly. On the other hand, if an infringement offender appeared unrepresented, the extent of inquiries required would be different, as if but even more so than where a prisoner appears unrepresented for sentencing.[12] And between those extremes lies a range of cases, including one like the present where, although an infringement offender is represented, the extent of the representation is manifestly limited. In such cases, the Magistrate’s duty to inquire will ordinarily be greater.
[12]MacPherson v The Queen (1981) 147 CLR 512, 546 (Brennan J); R v White and Piggin (2003) 7 VR 442, 454 (Chernov JA); R v Kerbatieh (2005) 155 A Crim R 367, 379-380 [52].
As was earlier noted, the judge in this case held that there were indicators, or ‘flags’ as her Honour called them, which should have put the Magistrate upon inquiry. She identified those as being the fact that Mr Taha presented as a young person who had accumulated a very large number of fines over a long period for repeated offences of the same kind; the significant amount of money involved; the fact that the court had previously placed Mr Taha on an instalment plan, and so at least as an institution would have known something of his ability to meet payments; and that it was likely that someone in Mr Taha’s position would be in receipt of a pension or allowance of some kind. Upon that basis, her Honour concluded that it was incumbent on the Magistrate to ask what kind of pension Mr Taha received (which would have disclosed the nature of his disability) and to have searches made through the Infringements Registrar or otherwise of the court’s records (which, had they been searched, would have revealed that Mr Taha was the subject of a Justice Plan).
Disposition of the Taha appeal
For the purposes of this appeal, I do not find it necessary to go as far as the judge. As I have said, the extent of inquires which may need to be made in a given case is largely a matter for the Magistrate based on the facts and circumstances of the case. As at present advised, I am not disposed to prescribe the extent of inquires which were warranted in this case. It is enough for the disposition of this appeal that, because of the ‘unified nature’ of s 160, a Magistrate must have regard to ss 160(2) and (3) when exercising the discretion under s 160(1); and so must at least make such inquiries as seem to the Magistrate to be reasonable in the circumstances of the case. Here, the Magistrate evidently failed to have any regard to ss 160(2) and (3) and, as a result, apparently failed to consider whether any and if so what inquiries were required.
As the judge concluded, that failure was a jurisdictional error because the exercise of the jurisdiction conferred by s 160(1) is conditioned upon consideration of the requirements of ss 160(2) and (3) and thus in effect the Magistrate misconceived the nature of the function which he was required to perform and the extent of his powers in the circumstances of the case.[13] In turn, as the judge rightly held, it was an error which warranted that the Magistrate’s order be set aside and the matter remitted to the Magistrate for reconsideration having regard to ss 160(2) and (3).
[13]Kirk v Industrial Court (NSW) (2010) 239 CLR 531, 573-4 [71]–[72].
Counsel for the appellant argued that it was impossible to say that the Magistrate did not have regard to ss 160(2) and (3); that the most that could be said on the evidence was that there was no material before the Magistrate sufficient to satisfy his Honour of the application of either provision.
I do not accept that submission. There is nothing which suggests that the Magistrate turned his mind to s 160(2) or (3), still less to what if any inquiries were required, and indeed the mainstay of the appellant’s case was that he was not required to make any inquiries. The logical inference is that the Magistrate never thought about either requirement at all.
Further, even if the Magistrate had turned his mind to the requirements of ss 160(2) and (3), and concluded that it was unnecessary to make any inquiries, the Magistrate conspicuously failed to explain the reasoning which led him to that conclusion, and I would regard the absence of reasoning of that kind as an error of law on the face of the record by reason of s 10 of the Administrative Law Act1978 and therefore sufficient to sustain an order in the nature of certiorari.[14]
[14]Kocak v Wingfoot [2012] VSCA 259 [72].
In the result, I would dismiss the appeal in the Taha matter.
The facts – Ms Brookes
The appeal in the Brookes matter raises a number of different considerations, not least because some reference was made to ss 160(2) and (3) during the course of the s 160 hearing.
On numerous occasions in 1999, 2000 and 2001, the first respondent, Ms Brookes, incurred fines associated with the driving of a motor vehicle. A large proportion of those were for driving on a toll road without CityLink registration. Ms Brookes says that many of those offences were committed by one Rick Dunstan with whom at relevant times she had a tempestuous an d violent relationship.
On 19 April 2001, Mr Gerry Egan, a psychologist, prepared a written report in support of Ms Brookes’ application to the Victims of Crime Assistance Tribunal. In his report, Mr Egan stated that he had diagnosed Ms Brookes as suffering from post-traumatic stress disorder (PTSD) arising from assaults on her by Dunstan.
On 2 September 2004, Ms Brookes was arrested on 68 warrants issued under the PERIN procedure applicable at that time. She was bailed to appear before the Magistrates’ Court at Broadmeadows on 13 October 2004. But she did not appear on that day. Consequently, on 10 May 2006, a warrant was issued for her imprisonment and some two years later, on the morning of 24 October 2008, she was arrested. A total of seventy-five charges were outstanding at that time.
While being held in the cells at Broadmeadows Police Station, Ms Brookes was seen by Mr Paul Houston of Victoria Legal Aid, a duty solicitor rostered to the police cells to provide advice to prisoners with court appearances that day. Ms Brookes has deposed that communication with Mr Houston was difficult inasmuch as she had to speak to him through a narrow opening in the cell door, and because she was extremely anxious to get out of the cells. Otherwise, she has little recollection of the conversation.
Mr Houston has deposed that he obtained instructions from Ms Brookes which he noted in his Duty Lawyer Record. They included the circumstances of the infringements, the fact that Ms Brookes was the victim of domestic violence over many years, that she had attempted suicide and the fact of her ongoing involvement with the mental health unit of the Northern Hospital. He advised her that he would submit to the court that her mental health and her circumstances generally attracted the operation of s 160(2) of the Infringements Act.
Mr Houston has also deposed that he related his instructions to the Magistrate as well as the fact that Ms Brookes believed that she was already paying the fines out of her Centrelink benefit at the rate of $40.00 per fortnight. The Magistrate responded to the effect that the only way the court could entertain a submission as to Ms Brooke’s special circumstances was upon the tender of appropriate written material.
Mr Houston advised Ms Brookes that they could seek an adjournment to obtain the materials the Magistrate believed were necessary to support an application under s 160(2) but that Ms Brookes instructed him to deal with the matter that day and not seek an adjournment. That led Mr Houston to advise Ms Brookes that, if the Magistrate would not entertain an application under s 160(2), the only other option was an instalment order with a further order for imprisonment in default. Ms Brookes instructed Mr Houston to proceed on that basis.
In accordance with those instruction, Mr Houston submitted to the Magistrate that an instalment order of $45.00 per month should be made. The Magistrate accepted that submission. He made orders that the total sum of $15,164.50 for fines for the Infringement Warrants before him be paid by monthly instalments of $45.00 commencing 1 December 2008 and that, in default of payment, Ms Brookes be imprisoned for 134 days.
In November 2009, having defaulted in the payment of the instalments, Ms Brookes approached Victoria Legal Aid for assistance. She was referred to Messrs Matthew White & Associates, solicitors, who commenced an appeal to the County Court pursuant to s 83 of the Magistrates Court Act 1989. On 13 October 2010, that appeal was dismissed as incompetent and, on 16 November 2010, the proceeding which culminated in the orders the subject of this appeal was instituted in the Common Law Division. As part of the preparation for the County Court appeal, Ms Brooke’s solicitors obtained a psychological report from Dr Kaylene Evers dated 9 August 2010, which confirmed Mr Egan’s diagnosis of PTSD, and the judge below had both of those reports before her.
Failure to consider the application of ss 160(2) and (3)
Given that Mr Houston specifically raised with the Magistrate the potential application to Ms Brookes’ circumstances of s 160(2), it cannot be said that the Magistrate failed to turn his mind to the possibility of its application. The difficulty here is that the Magistrate was not prepared to consider its application without evidence in written form.
Unlike Tate JA, whose reasons I have had the very considerable advantage of reading in draft, I do not accept that the Magistrate was in error in insisting upon written evidence. Within reason, it seems to me that it was up to the Magistrate to conduct the hearing in the manner which he considered appropriate. No doubt he might have heard oral evidence from Ms Brookes had he chosen to do so. But Mr Houston did not ask for that to be done. Like the Magistrate, he appears to have considered that, if evidence in support of the application of ss 160(2) or (3) were to be adduced, it should be put on affidavit or at least provided in some sort of documentary form.
It does not present to me as unreasonable for the Magistrate to have required that to be done, or surprising that Mr Houston did not demur. For, as best one can say, there were no recording or transcription services; and so, if evidence in support of the application of ss 160(2) or (3) had been given viva voce, any record would likely have been imperfect and very probably inadequate. More often that not in such circumstances, courts from the lowest to the highest level insist that evidence be adduced in written form.
It remains nonetheless that, although the Magistrate was on notice as to the possibility of facts which might engage the operation of s 160(2), he allowed the manner in which Ms Brookes chose to conduct her case to eschew consideration of those facts.
Possibly, if the proceeding had been an adversarial proceeding, the way in which Ms Brookes chose to conduct her case would have been a sufficient basis to refuse to disturb the orders which were made.[15] For present purposes, however, that need not be decided. As I have explained, I do not consider that it was an adversarial proceeding. It was rather in the nature of an administrative or investigative proceeding and, therefore, consistently with the body of law in which the obligations of administrative tribunals have been essayed, I take the view that the Magistrate was required to undertake his task regardless of the way in which Ms Brookes conducted her case.
[15]Perpetual Trustee Co (Canberra) Ltd v Commissioner for Australian Capital Territory Revenue (1994) 50 FCR 405, 418–9 (Wilcox J).
In Kuswardana v Minister for Immigration and Ethnic Affairs, Bowen CJ said that:[16]
… Rather, there was a clear statutory precondition upon which the [Commonwealth Administrative Appeals Tribunal] had to be satisfied and enough material and evidence before it to raise the issue independently of the parties’ submissions … it was an error of law not to consider and decide the issue…
In Transport Accident Commission v Bausch,[17] this Court applied the same approach to the Victorian Administrative Appeals Tribunal. Since the proceeding before the Magistrate in this case was in the nature of an administrative or investigative procedure, I consider that the same approach should have been followed here.[18]
[16]Transport Accident Commission v Bausch [1998] 4 VR 249, 263 (Tadgell JA) citing inter alia Kuswardana v Minister for Immigration and Ethnic Affairs (1981) 54 FLR 334, 343 (Bowen CJ), 348–9 (Fox J); (1981) 35 ALR 186, 193-4 (Bowen CJ) and 199 (Fox J).
[17][1998] 4 VR 249.
[18]See and compare NOM v DPP[2012] VSCA 198 [80]-[84].
As was earlier noted, the jurisdiction of the Magistrate to make an imprisonment order was conditioned on consideration of the requirements of sub-ss 160(2) and (3). Because of what Mr Houston told the Magistrate about the circumstances of Ms Brookes, there was sufficient before the Magistrate to raise the possible application of s 160(2). In view of the obligations which would apply to an administrative decision maker in such circumstances, I consider that it was incumbent on the Magistrate to be satisfied that the exemption in s 160(2) did not apply.
In the result, it seems to me that, even though Mr Houston did not seek an adjournment in which to prepare evidence of the facts in written form, the Magistrate was bound to make to make such pertinent inquiries of his own motion as were reasonably open to be made and, if necessary, to adjourn the proceeding to enable not only that to be done but also to afford Mr Houston the opportunity of obtaining evidence in appropriate written form.
I do not overlook the possibility that, even if the Magistrate had ordered such an adjournment, Ms Brookes might still have said that she wanted the matter dealt with instanter. But I do not think that would change the situation. As I have endeavoured to explain, the obligation was upon the Magistrate to undertake his task, regardless of Ms Brookes’ submissions, and to that end to satisfy himself as best he was reasonably able that s 160(2) did not apply. By ignoring the issue, the Magistrate made an error which went to the exercise of his jurisdiction.
Perhaps, views might differ about the extent to which the Magistrate would be bound to go in making his own inquiries. In my view, it would depend on the records and administrative assistance available to the Magistrate and thus upon what the Infringements Registrar would be likely to have turned up if directed by the Magistrate to make some routine inquires. Possibly, a question might also have arisen if the Magistrate had directed an adjournment for Mr Houston to assemble appropriate written evidence and, for whatever reason, Ms Brookes had decided that nothing should be done. But those questions do not arise here and they cannot be answered in a vacuum. It is sufficient to say for present purposes that the Magistrate did nothing to determine whether sub-s 160(2) applied in the manner which Mr Houston submitted it did and, therefore, that the Magistrate was in error.
Disposition of the Brookes appeal
It follows that I would also dismiss the appeal in the Brookes matter.
TATE JA:
Introduction………………………………………………………………………………………22
The Legislative Framework.……………………………………….…………………………….23
(1) The PERIN system…...…...…….……………….………………………………………..23
(2) The Magistrates’ Court (Infringements) Act 2000 amendments………………………...28
(3) The ‘new infringements model’ – the statutory scheme………....…………..……………31
The enforcement process relating to Mr Taha...………….……………………………………44
The enforcement process relating to Ms Brookes..………….……………………...................46
Judicial review..…………….……………….……………….…………………………………..49
The grounds of appeal….………….……………….……………….……………………………56
Construction of s 160 – grounds 1, 3, 4 and 5…………….…………………………………….58
(1) Unified construction..………….……………….……………………………………...…58
(2) Duty to inquire………….……………….……………….………………………………66
(i) Onus on applicant………...….……………….……………………....................67
(ii) Uncertainty: ‘flags’; procedures; obligee……..…………………...................69
(iii) Legal representation.………….……………….…………………....................72
(iv) Inquisitorial role……….….……………….…………………………………...75
(3) The Charter………….……………….……………….………………………………..…78
(i) The right to liberty – s 21……………….………………………………………84
(ii) The right to a fair hearing – s 24(1) ……………….………………………….87
(iii) The right to equal protection of the law – s 8(3) …………………………...90
(4) Conclusion on construction of s 160………….………………………………………….93
Did the Magistrate consider sub-s (2) and (3) of s 160? – ground 6…………………………93
Evidence of disability – Ms Brookes - ground 7…………...…………….……………………95
Procedural fairness – ground 2…………….……………….………………………...................97
Ms Brookes’ Notice of Contention - judicial or administrative power? ………….……….98
Commission’s Notice of Contention – s 6(2)(b) of the Charter…………….…………….....102
Conclusion..……….……………….……………….……………….……………………………105
Introduction
An offender who has received an infringement notice for a public transport offence and has refused to pay the fine may be imprisoned by an order of the Magistrates’ Court of Victoria (‘the Court’), or the fine may be discharged in whole or in part where the Court is satisfied either that the offender has a mental or intellectual impairment or that imprisonment would, in the offender’s situation, be excessive, disproportionate or unduly harsh. Zakaria Taha has an intellectual disability. Tarni Brookes suffers from a mental illness. They had each been issued with multiple infringement notices for public transport offences. They did not pay their fines. Was the Court obliged to consider whether Mr Taha or Ms Brookes was eligible to have the fines discharged before determining whether to make an order for imprisonment?
In my opinion, the Court was obliged to consider the eligibility of Mr Taha and Ms Brookes to a discharge of the whole or part of their fines by reason of their intellectual disability and mental illness respectively. In failing to do so, the Court misconstrued its functions under the statute that conferred the relevant power, s 160 of the Infringements Act 2006 (‘the Act’), thereby committing a jurisdictional error. In particular, the Court failed to understand that s 160 should be read as a unified whole so that the powers it confers, to imprison for non-payment of fines or to discharge the fines in certain circumstances, are to be understood as a set of options, each of which must be taken into account before any order is made.
The judge in the trial division of the Supreme Court was correct to conclude that the Charter of Human Rights and Responsibilities 2006 (‘the Charter’),[19] together with common law principles of interpretation, required s 160 of the Act to be construed so as to ensure that those conditions which permit relief from imprisonment are considered before an order for imprisonment is made.[20] The judge was also correct to conclude that, in these proceedings, the Court was obliged to inquire about the particular circumstances of Mr Taha and Ms Brookes to determine whether alternative orders to imprisonment should be made.[21]
[19]Section 1(1) of the Charter of Human Rights and Responsibilities provides: ‘This Act may be referred to as the Charter of Human Rights and Responsibilities and is so referred to in this Act’. The convention is to refer to an Act by its short title (as expressed in the Charter by s 1(1)) and there is thus no need to refer to the Charter as the ‘Charter of Human Rights and Responsibilities Act’: see Interpretation of Legislation Act, s 10(1)(e); Deming No 456 Pty Ltd v Brisbane United Development Corporation Pty Ltd (1983) 155 CLR 129, 162 (Wilson J).
[20]Zakaria Taha v Broadmeadows Magistrates’ Court; Brookes v Magistrates’ Court of Victoria [2011] VSC 642 (Emerton J) (‘Reasons’), [4]. Even if an order for imprisonment is to be made, the Court is also obliged to consider which particular formula is to be used for determining the length of the sentence, the most severe formula or one which is less severe. I discuss this below, [147]-[150].
[21]Reasons [4].
In my opinion, leave to appeal should be granted in each matter, if leave is necessary,[22] and the appeals should be dismissed. I set out my reasons.
[22]Vic Toll submitted that leave was required because the judge in the Supreme Court ordered that the matters be remitted to the Magistrates’ Court for determination according to law. An order for remittal is interlocutory in nature: Hall v Nominal Defendant (1966) 117 CLR 423, 443; Sher v DPP (2001) 120 A Crim R 585, 586 [7]. On 23 March 2012 the Court of Appeal (Mandie JA and Cavanough AJA) made orders that the applications for leave to appeal be referred to the Court listed to hear the appeals (if leave be granted). However, although the orders for remittal were interlocutory in nature, and leave is usually required to appeal to the Court of Appeal from the trial division of the Supreme Court, pursuant to s 17A(4)(b), there are exceptions to that requirement including the exception under s 17A(4)(b)(i), namely ‘when the liberty of the subject … is concerned’. The imprisonment orders against Mr Taha and Ms Brookes clearly concerned the liberty of the subject. In my view, leave to appeal was not required. In any event, the applications for leave to appeal were heard at the same time as the appeals and I would grant leave in both matters, if it was required.
The Legislative Framework
(1) The PERIN system
Infringement notices were first introduced in Victoria in the 1950’s for parking fines. They provided a means by which minor criminal offences, typically contraventions of road and traffic laws, could be dealt with in ‘a cost effective way … without the need for a costly court prosecution’.[23] A largely bureaucratic process for the enforcement of penalties via an infringements system functioned as ‘a diversionary mechanism in the justice system’[24] keeping the prosecution of minor driving and public transport offences out of the courts. Infringement notices served to impose fines on offenders unless the contraventions giving rise to the infringements were contested.
[23]Victoria, Parliamentary Debates, Legislative Assembly, 16 November 2005, 2186 (Mr Rob Hulls, Attorney-General) (‘Second reading speech’).
[24]Ibid 2186.
In 1986 a regime was introduced for the issuing and enforcement of infringement penalties known as the PERIN system; that is, ‘Penalty Enforcement by Registration of Infringement Notice’.[25] The PERIN procedures were later provided in Schedule 7 to the Magistrates’ Court Act 1989. The regime in Schedule 7 was the system that the Act replaced.
[25]The PERIN framework was originally introduced in Victoria in April 1986 by the Magistrates (Summary Proceedings) (Amendment) Act 1985 and the Magistrates’ Courts (Penalty Enforcement by Registration of Infringement Notices) Rules 1986.
The PERIN system was a highly automated enforcement process whereby, as observed by Beach J in Alpay v Hargreaves,[26] at that time, ‘in the State of Victoria a person can be imprisoned for non-payment of fines without such a penalty being imposed upon him or her by a court of law’.[27] In Alpay Beach J outlined the PERIN system by referring to the way in which Byrne J described its operation in Cameron v The Secretary to the Department of Justice.[28] Byrne J’s account of the background to the introduction of the PERIN system was paraphrased by Beach J in Alpay in this way:[29]
I quote [from Cameron]:
By 1985 it had become apparent to those concerned with the administration of justice in this State that a large proportion of proceedings in the Magistrates’ Court for parking offences and certain traffic infringements were dealt with as undefended cases and involved relatively modest fines; the cost of the collection was such that it represented an inefficient application of the resources of the Court and of the prosecuting authorities. An administrative procedure called ‘Procedure for Enforcement by Registration of Infringement Notices’ (PERIN) was devised for these less serious cases where, for the most part, only a modest pecuniary penalty was provided. This procedure was first enacted in the Magistrates’ (Summary Proceedings) (Amendment) Act 1985 which inserted a new Pt VIIA in the Magistrates (Summary Proceedings) Act 1975. In due course, following the enactment of the Magistrates’ Court Act 1989, the PERIN procedures are to be found in Schedule 7. Under the 1989 Act the PERIN procedure may be implemented as an alternative to the conventional summary criminal procedures of filing a charge under s 26 and proceeding by a trial before the Court in accordance with Schedule 2, or by alternative procedure in accordance with Schedule 3: s 99.
[26](Unreported, Supreme Court of Victoria, Beach J, 29 October 1998) (‘Alpay’).
[27]Ibid 1. In Alpay the infringer sought leave to issue a writ of habeas corpus against the Registrar of the PERIN Court, Mr Hargreaves, who was also the Secretary to the Department of Justice. Mr Alpay had outstanding PERIN court fines of $30,748 and was arrested and taken into custody to serve 336 days in lieu of paying the outstanding fines. The application was brought while Mr Alpay was an inmate in Melbourne Assessment Prison. The application was refused.
[28](Unreported, Supreme Court of Victoria, 28 October 1994) (‘Cameron’).
[29]See Alpay, 2. Beach J said (at 1-2): ‘I shall delete from the passage … any matters which were peculiar to the case before [Byrne J], and where they has been any relevant amendment to the legislation substitute the present legislative enactment for that referred to by his Honour. I shall also include any matter relevant to this case which would not have been relevant to the case of Cameron.’
The staged operation of the system, including the formal registration of the infringement penalty, which activated the production of an enforcement order permitting the arrest and imprisonment of the infringer, was described, in a manner that emphasises the automated nature of the process, as follows:[30]
[30]See Alpay, 2–5.
In the summary which follows I confine myself to the PERIN procedure applicable to parking infringements ... and in respect of which a Parking Infringement Notice has been given under the Road Safety Act 1986 s 81. I assume that the recipient of a Parking Infringement Notice has elected not to expiate the offence by payment of the penalty within the specified time: [he or] she has simply ignored that option.
The appropriate officer of the prosecuting authority at this stage has two courses available: to commence a proceeding by charge in the appropriate Magistrates’ Court pursuant to s 26; or to set in train the PERIN procedure pursuant to s 99. It is important to note that the PERIN procedure is not a ‘proceeding’, within the meaning of that term in the Magistrates Court Act 1989: s 3(1). Further, unlike a proceeding by charge, it does not result in a conviction: Schedule 7, cl 9(1)(a). Before the appropriate officer may seek to have the infringement penalty registered there must be sent to the infringer a ‘courtesy letter’ in the form described in cl 3. This letter must state that the infringer has a further 28 days to pay the penalty plus costs and advise the infringer that if these be not paid he or she may be dealt with under the PERIN provisions: cl 3(2). The letter must also contain advice in the prescribed form as to the steps which the recipient might take if he or she was not in charge of the motor vehicle at the time of the infringement: Magistrates’ Court General Regulations 1990, reg 1105(2). ... If the recipient of the courtesy letter elects to do nothing or ignores it, the process moves to the next stage.
After the period for response to the courtesy letter has expired, the enforcement agency ... may seek to have the penalty registered by the Registrar of the PERIN Court. Cl 4(1) directs that the enforcement agency which seeks registration provide to the Registrar a document in the prescribed form containing the prescribed particulars and a certificate in the prescribed form to the effect that the previous steps required by the PERIN process had been followed. The prescribed form for the certificate is Form 2 in Schedule 5 to the Magistrates’ Court General Regulations 1990. For present purposes, the prescribed form for the other document to be provided to the Registrar is of interest. It is Form 1 in Schedule 5 to the Regulations. It is there described not as a paper document but as a ‘Data Record Format on magnetic tape’ containing certain characteristics with specified fields and the description of the field position, nature, format and length of each field. The note to cl 4(1)(a) reminds the reader that such a record is intended to fall within the definition of ‘document’ in the Interpretation of Legislation Act 1984, s 38. Where the request to register is formally in order, the Registrar may register the penalty: cl 4(3). It does not appear on what basis the Registrar is to exercise this discretion. Upon registration the Registrar must make an enforcement order: cl 5. An enforcement order which is deemed to be an order of the Magistrates’ Court (cl 5(2)) is not discretionary in its issue or in its terms. It orders that the infringer pay to the Court the amount of the infringement penalty and the prescribed amount of costs and ‘that in default of payment the person be imprisoned for a period of one day in respect of each $100 or part of $100 of the amount then remaining unpaid’: cl 5(1)(a). At this stage, in the jargon of the PERIN Court, the matter is at ‘valid status’.
At this stage, too, the infringer receives a third communication, this time from the Registrar. This Notice of Enforcement Order must also be in a prescribed form, that is Form 4 in Schedule 5 to the Regulations. ... In it the infringer is required to pay the amount of the Enforcement Order within a further 28 days and is warned that if this be not done …
‘A warrant will be issued for your imprisonment for a period of (and the period is then to be inserted in the notice) a warrant to seize property will be issued.’
Where it is intended to issue a warrant of imprisonment the reference to a warrant to seize property will be deleted. The notice contains the following note:
‘You may apply to the registrar of the Magistrates’ Court at (the location of the court is then to be inserted in the notice) for any of the following:
(a) An order that the time within which the fine is to be paid be extended;
(b) An order that the fine be paid by instalments;
(c)The revocation of the enforcement order and the referral of the alleged offence to the Magistrates’ Court for hearing and determination.’
Then there are set out the infringement details in question.
Where the recipient takes no action in response to the Notice of Enforcement Order[31] or does not pay the fine the process moves to the next stage.
The Registrar must now issue a Penalty Enforcement Warrant ... : cl 8(1). The warrant may be directed to the Sheriff. ...
The Registrar of the PERIN Court is ... given no discretion with respect to the issue of a Penalty Enforcement warrant ... cl 8(1). In particular, there is no statutory provision requiring or permitting the Registrar to inquire into the reason for non-payment or, for any reason, to mitigate the period of imprisonment calculated under cl 5(1)(a). Compare Sentencing Act 1991 s 62. At this stage the matter is, in the jargon of the PERIN Court, at ‘enforced status’.
Before the final step of imprisonment is taken, the infringer receives a fourth communication advising him or her of one more chance to avoid this consequence of his or her default. A demand in the prescribed form must be made ‘setting out a summary of the provisions of this Part [Schedule 7 Pt II] with respect to the allowance of time to pay and payment by instalments and with respect to applications for revocation of Enforcement Orders’: cl 8(2). The form prescribed is Form 5 in Schedule 5 to the Regulations. If this notice is ignored for seven days the Penalty Enforcement Warrant ... may be executed: cl 8(3B).
Once the warrant has been duly executed, the person detained pursuant to the warrant loses any right he may have had to apply to the Registrar for the revocation of the enforcement order ... cl 10(1)(a). He or she then commences to serve the appropriate term of imprisonment.
[31]Action could include seeking revocation of the enforcement order from the Registrar. A refusal could be referred to the Magistrates’ Court. See Alpay, 12.
It is apparent that many of the critical steps in the staged process were non-discretionary, for example, the production of an enforcement order upon the registration of an infringement penalty, and the issuing of a penalty enforcement warrant for the arrest of the infringer if no action was taken by the infringer. In particular, there was no capacity for an investigation to be undertaken by the Registrar, before issuing a penalty enforcement warrant, for an explanation of why the infringer had defaulted, nor a power to reduce the period of imprisonment calculated according to an administrative formula. If an infringer chose not to pay the penalty, and did not respond to the ‘courtesy letter’ by declining to be dealt with under the PERIN system, preferring instead to be proceeded against by summons,[32] the PERIN process would begin. The system would ineluctably result in the infringer’s imprisonment unless he or she actively took steps to avoid imprisonment by, for example, seeking revocation of the enforcement order or seeking an instalment order or an extension of time in which to pay. Imprisonment could thus occur in the absence of any judicial determination of the pre-existing liability of the infringer. Describing the system of registration of infringement penalties as involving a court, the ‘PERIN court’, could not detract from the administrative nature of the process.
(2) The Magistrates’ Court (Infringements) Act 2000 amendments
[32]Magistrates’ Court Act, Schedule 7, clause 3(6). See Alpay, 11.
The Magistrates’ Court (Infringements) Act2000 (‘the Amending Act’)[33] introduced a requirement for persons to be brought before a Magistrate before imprisonment was authorised. The Amending Act inserted Part 4 into Schedule 7 of the Magistrates’ Court Act which applied whenever a person was arrested and delivered to the officer in charge of a prison or police gaol under a penalty enforcement warrant and was assessed as unsuitable for a custodial community permit,[34] or was not issued with such an order within 48 hours of being delivered to the officer in charge, or breached a condition that applied to the order and was arrested as a result of that breach.[35] In those circumstances, clause 22 applied. This provided:
[33]Act No 99/2000.
[34]These permits were issued under s 57 of the Corrections Act 1986.
[35]Clause 21 of Schedule 7.
(1) The person must be brought before the Court as soon as is practicable.
(2)If it is not practicable to bring the person before the Court within 48 hours of the person being delivered to the officer in charge of the prison or police gaol –
(a)a date for the person to appear before the Court must be fixed; and
(b)if the person is not being held in lawful custody for any other reason, the person must be released within 48 hours of being delivered to the officer in charge, and must be given a written notice requiring him or her to appear before the Court on that date.
(3)Sub-clause (2) does not apply to a person who was arrested for breaching the conditions of a custodial community permit.
(4)This clause ceases to apply if, while a person is held in custody, the penalty enforcement warrant is satisfied.
The Amending Act conferred powers upon the Court to discharge the fine, in whole or in part, or adjourn for up to six months, if it was satisfied that the offender had a mental disorder which was the main reason for the commission of an offence or the main reason for failing to pay the fine. Clause 23 provided:
(1)After giving a person brought before it under clause 22 an opportunity to be heard, the Court may –
(a) discharge the fine, either in whole or in part; or
(b)adjourn the further hearing of the matter for a period of up to 6 months.
(2)The Court may only act under sub-clause (1) if it is satisfied that the main reason the person committed the offence for which the infringement notice was issued, or the main reason why the person failed to pay the fine or comply with an instalment arrangement, is one or more of the following –
(a) a mental disorder which the person has; or
(b)an intellectual impairment, a brain injury or dementia which the person has.
(3)The Court may make the granting of an adjournment subject to any conditions that it considers appropriate.
(4)On resuming a hearing adjourned under sub-clause (1), the Court may discharge the fine, either in whole or in part, if it is satisfied that the person –
(a)has complied with any conditions imposed in adjourning the hearing; and
(b)has no means to pay the fine or has a reasonable excuse for paying the fine.
It was only if the Court was not satisfied that an offender had a mental disorder which was the main reason for the commission of the offence or for failing to pay the fine, or was so satisfied but discharged the fine in part only, or was not prepared to grant an adjournment, or granted an adjournment but on resumption was not prepared wholly to discharge the fine, that imprisonment could be ordered or, in exceptional circumstances, a community-based order made under the Sentencing Act1991. These alternatives were provided for under clause 24:[36]
[36]The heading to cl 24 was ‘Other powers of the Court’.
(1)This clause applies if the Court, after giving a person brought before it under clause 22 an opportunity to be heard –
(a) discharges a fine in part only under clause 23(1)(a); or
(b)is not prepared to grant an adjournment under clause 23(1)(b); or
(c)granted an adjournment under clause 23(1)(b), but is not prepared to wholly discharge the fine under clause 23(4).[37]
(2) The Court may –
(a)order that the person be imprisoned for a period of 1 day in respect of each penalty unit or part of a penalty unit of the amount of the fine then remaining unpaid or undischarged; or
(b)order that the person be imprisoned for a period that is up to two thirds less than the period that may be specified under paragraph (a); or
(c)if the Court is satisfied that there are exceptional circumstances, make a community-based order under the Sentencing Act 1991 in respect of the person.
[37]Section 8 of the Courts Legislation (Amendment) Act 2003 inserted an additional paragraph, paragraph (d), if the Court ‘is not satisfied that it can act under clause 23(1)’.
The Amending Act was thus intended to prevent offenders being automatically taken to prison once arrested and to provide some safeguards for those suffering from a mental disorder or intellectual impairment. It sought to alleviate some of the perceived unfairness resulting from an automated enforcement process for infringement penalties. However, it expressly imposed upon the applicant the burden of satisfying the Magistrate, by providing in cl 25 that:
A person brought before the Court under this Part bears the onus of satisfying the Court with respect to any matter before the Court.
Clause 25 was not reproduced in the Act.
In 2002 a pilot program was established at the Melbourne Magistrates’ Court, the Enforcement Review Program, to assist members of the community who were in special circumstances by reason of being diagnosed with mental illnesses, neurological disorders or severe physical disabilities and who were incurring multiple infringements that were registered at the ‘PERIN Court’.[38]
(3) The ‘new infringements model’ – the statutory scheme
[38]See Anne Condon and Annie Marinakis, ‘The Enforcement Review Program’, (2003) 12 Journal of Judicial Administration 225.
It was against this background that in 2006 the Act came into operation. It was described as ushering in a ‘new infringements model’,[39] a model which repealed the PERIN scheme;[40] enhanced ‘due process’[41] within the infringements system, maintained the requirement that there be a determination by a court of law before imprisonment was authorised, and which extended the protection for the vulnerable, including those with a mental or intellectual impairment, from becoming caught up in the system.
[39]Second reading speech, 2186. That the Act introduced a new model was reflected also in s 1 of the Act which identified the main purposes of the Act as: ‘(a) to provide for a new framework for the issuing and serving of infringement notices for offences and the enforcement of infringement notices; (b) to amend the Magistrates’ Court Act 1989, the Road Safety Act 1986 and the Subordinate Legislation Act 1994’. As the trial judge noted, the purposes section is of little assistance: Reasons, n 19.
[40]Section 176(2) of the Act, as originally enacted. Section 176(2) read: ‘Schedule 7 to the Magistrates’ Court Act 1989 is repealed’. The repeal was subject to various transitional and savings provisions in relation to the PERIN system. In particular, s 209 of the Act provides: ‘Despite the repeal of clauses 28 and 29 of Schedule 7 to the Magistrates’ Court Act 1989 by section 176(2), those clauses continue to have effect as if they had not been repealed.’ Clause 28 related to validation of actions taken under the Magistrates’ Court Act and clause 29 prohibited the bringing of any proceedings, including proceedings for habeas corpus, with respect to any action taken before validation.
[41]Second reading speech, 2186.
The objective of infringements systems generally, the Attorney-General said, was ‘to be able to regulate community behaviour to achieve public order, safety and amenity in a way that maintains fair and due process in dealing with breaches of those standards’.[42] He identified two purposes of the Act, the primary purpose being, within the context of an infringements system, the improvement of rights of the community and the protection of the vulnerable:[43]
Its primary purpose is to improve the community’s rights and options in the process and to better protect the vulnerable who are inappropriately caught up in the system. A second objective is to provide additional enforcement sanctions to motivate people to pay their fines in order to maintain the integrity of the system.
[42]Ibid.
[43]Ibid (emphasis added).
He emphasised three features of the Act; first, that the Act was intended to continue and reinforce the policy, introduced by the Amending Act in 2000, of reducing the automatic imprisonment of offenders who defaulted on their infringement fines by requiring that offenders be brought before Magistrates in open court; secondly, that the hearings in open court would consider whether imprisonment should be ordered and determine the existence of extenuating circumstances; and thirdly, that imprisonment was to remain a sanction of ‘last resort’ for those offenders who were ‘the most serious fine defaulters’.[44] He said:[45]
In 2000 the Parliament passed amendments to the Magistrates’ Court Act to prevent people being arrested on enforcement warrants and automatically taken to prison. Anyone arrested on a warrant must now appear before a Magistrate in open court. The policy of avoiding people being imprisoned for infringement fine defaults is continued in this bill and enhanced.
The bill gives broader options to Magistrates in open court hearings which occur after the execution of an enforcement warrant.
By this stage, other enforcement sanctions, instalment payment plans or community work will not have been successful in expiating the fines. These hearings consider whether a person should be imprisoned, and will determine whether there are extenuating circumstances.
Currently, Magistrates’ powers include being able to discharge the matter if the person has a mental or intellectual disability. If a person has exceptional circumstances, the court can place the person on community work. The term of imprisonment can also be reduced. The bill proposes that Magistrates also be able to approve instalment payment plans[46] and that where imprisonment would be ‘excessive, disproportionate or unduly harsh’ the Magistrate can discharge the fine in all or part, or reduce the imprisonment by two thirds.[47] These changes will ensure that imprisonment is, and will remain, a sanction of last resort for the most serious fine defaulters.
[44]Ibid 2189-90.
[45]Ibid 2190.
[46]This is reflected in s 160(4)(b) of the Act.
[47]This is reflected in s 160(3) of the Act.
In particular, the Attorney-General said:[48]
The proposed improvements to the infringements system will make the system fairer for the ordinary person and will protect the vulnerable, minimising the degree to which their matters flow on to enforcement.
[48]Second reading speech, 2188 (emphasis added).
These objectives were reinforced by the Guidelines made by the Attorney-General in relation to the administration of the Act.[49] Those Guidelines relevantly described the Act as:[50]
[49]Pursuant to s 5 of the Act.
[50]Attorney-General’s Guidelines to the Infringements Act 2006. There were other principles identified including ‘the balancing of fairness (Lower fine levels, convenience of payment, consistency of approach) with compliance and system efficiency (reduced administration costs, no need to appear in court, no conviction). ‘
[A]im[ing] to provide both a fairer system, particularly in addressing the needs of people in special circumstances and providing people with more information about infringements and more avenues by which to expiate (make amends without conviction) the matter. …
…
The principles on which the Act is based are:
…
·a requirement that individual circumstances be taken into account;
·a recognition of genuine special circumstances, both at the time the infringement notice issues and during the enforcement process…
Using these principles, the improved infringements system seeks to achieve:
·improved protection for all individuals, as well as for people in special circumstances (ie. mental or intellectual disability, homelessness, serious addictions, those in genuine financial difficulty).
The Act provides for the issuing of infringement notices by enforcement agencies.[51] The scope of the regime has extended considerably beyond the enforcement of parking fines. Enforcement agencies include the police force of Victoria; local councils; and government departments.[52] Infringement offences include certain contraventions of the Casino Control Act 1991;the City of Melbourne Act 2001; Conservation, Forests and Lands Act 1987; Control of Weapons Act 1990; Liquor Control Reform Act 1998; as well as the Road Management Act 2004 and the Road Safety Act 1986.[53] These offences are called ‘lodgeable infringement offences’.[54] Infringement penalties are ‘fines’.[55] ‘Fines’ is defined to include also prescribed costs and certain prescribed fees.[56]
[51]Through the use of ‘issuing officers’: s 3.
[52]Enforcement agencies also include the heads of department; Consumer Affairs Victoria; Victorian Commission for Gambling and Liquor Regulation; Universities and TAFE institutes; Port Corporations; Parks Victoria; Energy Safe Victoria; Roads Corporation; the House Committee within the meaning of the Parliamentary Committees Act 2003; Victorian Arts Centre Trust; Victorian College of the Arts; and Victorian WorkCover Authority: Infringements (General) Regulations 2006, regulation 6, Schedule 1.
[53]It also includes the contravention of Acts such as the Crimes Act 1958; Domestic Animals Act 1994; Estate Agents Act 1980; Firearms Act 1996; Food Act 1984; Graffiti Prevention Act 2007; Heritage Act 1995; Plant Biosecurity Act 2010; Second-Hand Dealers and Pawnbrokers Act 1989; Transport Compliance and Miscellaneous Act 1983; Water Act 1989. See s 7 of the Act; Infringements (General) Regulations 2006, regulations 12, 12A, Schedules 3 and 4.
[54]Section 3. A ‘lodgeable infringement offence’ is defined to mean an infringement offence that is prescribed to be enforceable under the Act. The term ‘lodgeable’ offence is presumably intended to reflect the fact that in the event of non-payment the enforcement agency may lodge details of any outstanding amount of an infringement penalty with the Court: s 54. See further below [80]. As all the offences the subject of these proceedings are lodgeable infringement offences, the general term ‘infringement offence’ will be used.
[55]Section 3.
[56]These are the prescribed fees incurred in relation to infringement warrants under s 81: s 3.
An infringement notice must specify, amongst other things, the particular infringement offence alleged to have been committed; the date and time of its commission; the infringement penalty; the manner in which the infringement penalty may be paid; that the infringement penalty must be paid by a specified due date; that failure to pay the infringement penalty by the specified due date may result in further enforcement action being taken; the name of the enforcement agency; the availability of internal review (where relevant); and the possible availability of a payment plan.[57] An infringement notice must also state that the person is entitled to elect to have the matter of the infringement offence heard and determined in the Court.[58]
[57]See Infringements (Reporting and Prescribed Details and Forms) Regulations 2006 (Vic), regulation 8(1).
[58]Section 13(b)(i) of the Act. For some offences, an enforcement agency can refer the matter to the Court: s 17.
A person served with an infringement notice by an enforcement agency must pay the infringement penalty by the due date specified in the notice, being a period not less than 28 days after the date of service of the infringement notice.[59] Payment serves to ‘expiate’ the offence,[60] the effect of which is that no further proceedings may be taken in respect of the offence and no conviction is taken to have been recorded against the person in respect of the offence.[61]
[59]Section 14.
[60]Section 32.
[61]Section 33.
Alternatively, the person may elect to have the infringement offence heard and determined in the Court[62] in which case the enforcement agency must lodge with the Court prescribed information in respect of the offender, the infringement offence and the enforcement agency,[63] that prescribed information being deemed to be a charge sheet charging the offence in respect of which the infringement notice was served.[64] The prescribed information includes the offender’s name and address and the approximate date and time of the infringement offence; the relevant provision of the Act that creates the infringement offence; and a brief description of the infringement offence and the name of the enforcement agency.[65]
[62]Section 16.
[63]Section 40(1)(a).
[64]Section 40(1)(b).
[65]Infringements (General) Regulations 2006, regulation 13.
A second alternative is for the person to apply to the relevant enforcement agency for review of the decision to serve the infringement notice on the belief that the decision was contrary to law, or involved a mistake of identity, or that ‘special circumstances’ apply to the offence or the conduct should be excused having regard to any ‘exceptional circumstances’ relating to the infringement offence.[66] ‘Special circumstances’ are defined to mean:[67]
[66]Section 22.
[67]Section 3.
(a)a mental or intellectual disability, disorder, disease or illness where the disability, disorder, disease or illness results in the person being unable -
(i) to understand that conduct constitutes an offence; or
(ii) to control conduct that constitutes an offence; or
(b)a serious addition to drugs, alcohol or a volatile substance … where the serious addiction results in the person being unable -
(i) to understand that conduct constitutes an offence; or
(ii) to control conduct that constitutes an offence; or
(c)homelessness determined in accordance with the prescribed criteria (if any) where the homelessness results in the person being unable to control conduct which constitutes an offence.
‘Exceptional circumstances’ are not defined.
If an enforcement agency receives a request for internal review it must review the decision to serve the infringement notice, suspend the procedures for enforcement and serve the applicant with a written notice advising of the outcome of the review.[68] On a review in response to an application based on special circumstances, the enforcement agency may confirm the decision; withdraw the infringement notice and serve an official warning in its place; or withdraw the infringement notice.[69]
[68]Section 24.
[69]Section 25(2).
The inclusion of special circumstances as a ground for internal review is consistent with the stated primary purpose of the Act, protecting vulnerable people who are inappropriately caught up in the system. The Attorney-General said of the ground of special circumstances:[70]
This is a critical change to filter the vulnerable in the community out of the infringements system. People with special circumstances are disproportionately, and often irrevocably, caught up in the system. In a just society, the response to people with special circumstances should not be to issue them with an infringement notice.
In particular, there is no requirement under the Act that documentary evidence is to preferred to the oral evidence of the infringement offender. In the circumstances before the Magistrate, Ms Brookes could have been called to give evidence, been sworn, and been asked questions from her lawyer of the type he had asked when receiving instructions. Ms Brookes could have given oral evidence about the history of domestic violence she had suffered, the fear she had experienced, the reasons for her changing her name and moving house regularly, her need for treatment by a psychiatrist, the type of condition her psychiatrist had diagnosed and the medication she was prescribed. No doubt she could also have given evidence about the type of symptoms she experienced, including the panic attacks and the fear. Whether the Magistrate was ‘satisfied’ as a result of that evidence would depend on precisely what evidence was given but, in my view, the Magistrate was in error in requiring documentary proof of a condition when the applicant who experienced that condition was available in the body of the Court.
Furthermore, there was no need for Ms Brookes to give sworn evidence at all. The Magistrate could have arrived at the relevant state of satisfaction without there being any sworn oral evidence or documentary proof. The hearings under s 160 are intended to be informal in nature. A Magistrate could well be ‘satisfied’ there were special or exceptional circumstances in a case where the satisfaction was founded upon the information given by an infringement offender from the body of the Court, or given by the offender’s legal representative from the bar table, or, as noted,[254] from its own inquiries.
[254]At [168] above.
Moreover, to impose a blanket obligation on offenders to provide written proof of mental illness as a precondition to a Magistrate considering whether to exercise the powers under sub-ss (2) or (3) has the potential to work a significant injustice. Ms Brookes had written proof that she suffered from post-traumatic stress disorder but it was not with her on the day of the hearing. However, on the morning of the hearing she was arrested without warning and placed in a cell until the hearing.[255] It is not suggested that she knew, or was told, at the time of her arrest that written evidence of her illness would be required or that she was given any opportunity to collect anything before being taken to the cells. For imprisonment orders to be made against offenders as a result of their not having a medical report on their person at the time of arrest is plainly unjust.
[255]See [115] above.
The circumstances here were aggravated by the failure of the Magistrate to adjourn the proceeding of his own motion.[256] If he was to insist upon documentary proof, which I consider he was wrong to do, he exacerbated his error by failing to make an order adjourning the hearing of his own motion so that Ms Brookes, about whose mental illness he had already been told, could gather the materials he (wrongly) considered were necessary. Having been put on notice from the duty lawyer that Ms Brookes might well be mentally ill and thus satisfy the conditions for a discharge of her fine, in whole or in part, and be eligible for a reduction in the period of imprisonment she might have to serve, the Magistrate should have allowed Ms Brookes the opportunity to obtain the evidence he required. I consider that he was wrong not to do so. The fact that Ms Brookes did not seek an adjournment does not detract from the errors committed by the Magistrate in wrongly inserting into the Act a requirement that does not exist, and in failing to provide an opportunity to Ms Brookes to satisfy him in the form of proof upon which he had wrongly insisted.
[256]In accordance with the general powers and procedures of the Court.
I consider that there is no merit in Ground 7 and I reject it.
Procedural fairness – ground 2
Vic Toll made no written or oral submissions expressly directed to its ground of appeal that the judge had erred in finding that the Magistrate had breached his duty to accord procedural fairness. This was not surprising given that the denial of procedural fairness flowed from the failure to adopt a unified construction of s 160. As the judge said, the Magistrate denied Mr Taha procedural fairness by:[257]
dissociating the powers in sub-ss (2) and (3) from the power to make an imprisonment order in sub-s (1) and by purporting to exercise the power in sub-s (1) without addressing the possibility that sub-ss (2) or (3) may be enlivened …
[257]Reasons, [74].
Accordingly, the question of the denial of procedural fairness has been dealt with in addressing the merits of adopting the unified construction of s 160.
I reject Ground 2.
Ms Brookes’ Notice of Contention - judicial or administrative power?
The question of whether the power being exercised by the Magistrate was judicial or administrative was raised in the context of a submission made by Vic Toll below, and repeated on appeal, that if the Court had made an error it was an error within its jurisdiction and it was therefore not reviewable.[258] As Hayne J said in Re Refugee Tribunal; Ex parte Aala:[259]
The difficulty of drawing a bright line between jurisdictional error and error in the exercise of jurisdiction should not be permitted, however, to obscure the difference that is illustrated by considering clear cases of each species of error. There is a jurisdictional error if the decision maker makes a decision outside the limits of the functions and powers conferred on him or her, or does something which he or she lacks power to do. By contrast, incorrectly deciding something which the decision maker is authorised to decide is an error within jurisdiction. (This is sometimes described as authority to go wrong, that is, to decide matters within jurisdiction incorrectly.) The former kind of error concerns departures from limits upon the exercise of power. The latter does not.
[258]A remedy in the nature of certiorari, quashing the Court’s decision, would therefore not be available under Order 56 of the Supreme Court Rules.
[259](2000) 204 CLR 82, 141 [163]. Kirk, 571-3 [66]-[70].
Vic Toll relied upon the distinction drawn between inferior courts and administrative tribunals in Craig v South Australia[260] where the High Court reaffirmed the view that the scope of jurisdictional error was narrower in the case of inferior courts as opposed to administrative tribunals.[261] The High Court said:[262]
In considering what constitutes ‘jurisdictional error’, it is necessary to distinguish between, on the one hand, the inferior courts which are amenable to certiorari and, on the other, those other tribunals exercising governmental powers which are also amenable to the writ.
[260](1995) 184 CLR 163 (‘Craig’).
[261]In doing so it rejected the approach adopted in the United Kingdom whereby the distinction between jurisdictional error and error within jurisdiction has effectively been abolished: see Craig, 178-179, Pearlman v Harrow School [1979] QB 56, 69; O’Reilly v Mackman [1983] 2 AC 237, 278; In Re Racal Communications Ltd [1981] AC 374; Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147.
[262]Craig, 176 (Brennan, Deane, Toohey, Gaudron and McHugh JJ).
In an oft-cited passage, the High Court went on to say:[263]
If … an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal’s exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.
In contrast, the ordinary jurisdiction of a court of law encompasses authority to decide questions of law, as well of fact, involved in matters which it has jurisdiction to determine. The identification of relevant issues, the formulation of relevant questions and the determination of what is and is not relevant evidence are all routine steps in the discharge of that ordinary jurisdiction. Demonstrable mistake … may, if an appeal is available … be corrected by an appellate court …. [but] a failure by an inferior court to take into account some matter which it was, as a matter of law, required to take into account in determining a question within jurisdiction or reliance by such a court upon some irrelevant matter upon which it was, as a matter of law, not entitled to rely in determining such a question will not ordinarily involve jurisdictional error.
[263]Ibid 179-180. See also Kirk, 572-3 [67]-[68]; Mark Leeming, Authority to Decide: The Law of Jurisdiction in Australia (Federation Press, 2012), 58-60.
On the basis of this distinction, Vic Toll submitted that if the Magistrate made an error of law in the case of Mr Taha or Ms Brookes, in failing to take into account sub-ss (2) and (3) of s 160, the error was one of ignoring relevant considerations. Such an error was immune from review because the Magistrate was an inferior court and not an administrative tribunal, and for an inferior court to ignore relevant considerations does not amount to jurisdictional error.
In response, Ms Brookes argued that the power exercised by a Magistrate under s 160 is properly classified as administrative and not judicial in nature on the ground that judicial involvement in the infringements process is minimal; there is no dispute inter partes; there is no finding of antecedent facts; and there is no binding determination of rights and liabilities.[264]
[264]Nicholas v R (1998) 193 CLR 173.
It has become unnecessary to decide this issue because Vic Toll’s submissions faced the fundamental difficulty that the error of law committed here by the Court was accurately characterised not as a failure to take into account relevant considerations but as a misconstruction of its statutory functions (as the judge correctly identified it) or as a failure to apply itself to the question which s 160 prescribed.[265] It misconceived its duty by adopting an erroneous construction of the statutory provision which conferred upon it jurisdiction to conduct hearings before making orders for imprisonment. It thus misunderstood its jurisdiction. These are jurisdictional errors that may be made by an inferior court and, if made, are reviewable by the Supreme Court.
[265]Kirk, 573-4 [72]. See also Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194, 208-9 [31]: ‘There would only have been jurisdictional error on the part of the Full Bench [of the Australian Industrial Relations Commission, the Presidential Members of which were Giudice and Munro JJ] if it had misconceived its role or if, in terms used by Jordan CJ in Ex parte Hebburn Ltd; Re Kearsley Shire Council [(1947) 47 SR (NSW) 416, 420], it ‘misunder[stood] the nature of [its] jurisdiction … or “misconceived its duty” or “[failed] to apply itself to the question which [s 45 of the Act] prescribes” … or “[misunderstood] the nature of the opinion which it [was] to form”‘. The Full Bench did none of those things.’
This understanding of the jurisdictional errors that can be made by an inferior court was confirmed by the High Court in Kirk:[266]
The Court in Craig explained the ambit of jurisdictional error in the case of an inferior court in reasoning that it is convenient to summarise as follows:
First, the Court stated, as a general description of what is jurisdictional error by an inferior court, that an inferior court falls into jurisdictional error ‘if it mistakenly asserts or denies the existence of jurisdiction or if it misapprehends or disregards the nature or limits of its functions or powers in a case where it correctly recognises that jurisdiction does exist’ (emphasis added). Secondly, the Court pointed out that jurisdictional error ‘is at its most obvious where the inferior court purports to act wholly or partly outside the general area of its jurisdiction in the sense of entertaining a matter or making a decision or order of a kind which wholly or partly lies outside the theoretical limits of its functions and powers’ (emphasis added) … Thirdly, the Court amplified what was said about an inferior court acting beyond jurisdiction by entertaining a matter outside the limits of the inferior court’s functions or powers by giving three examples: (a) the absence of a jurisdictional fact; (b) disregard of a matter that the relevant statute requires be taken to account as a condition of jurisdiction (or the converse case of taking account of a matter required to be ignored); and (c) misconstruction of the relevant statute thereby misconceiving the nature of the function which the inferior court is performing or the extent of its powers in the circumstances of the particular case. [267]
[266]Kirk, 573-4 [71]-[72] (original emphasis).
[267]The Court noted that in Craig this last example was seen to be one where it may be the most difficult to discern the line between jurisdictional error and error within jurisdiction (Ibid 574 [72]).
Against the background of those observations, the error committed here by the Magistrate would fall into either the first category, as a misapprehension of its functions or powers in a case where it correctly recognised that jurisdiction (under s 160) did exist. It may also fall into the third category, either as an instance of the second example (as Ms Brookes submitted)[268] of failing to consider a matter that was a pre-condition of its authority to decide,[269] or an instance of the third example, misconstruction of the relevant statute, acknowledging that the summary of the jurisdictional errors recognised in Craig as capable of being committed by an inferior court ‘is not to be seen as providing a rigid taxonomy of jurisdictional error’.[270]
[268]Ms Brookes submitted that even if the Magistrate’s failure to consider whether special circumstances existed in the case of Ms Brookes was viewed as a failure to take account of relevant considerations it was one of those instances where this would amount to a jurisdictional error for an inferior court because it would be a failing to take account of a matter which the statute makes a precondition of its jurisdiction. As the Court put it in Craig: ‘[J]urisdictional error will occur where an inferior court disregards or takes account of some matter in circumstances where the statute or other instrument establishing it and conferring its jurisdiction requires that that particular matter be taken into account or ignored as a pre-condition of the existence of any authority to make an order or decision in the circumstances of the particular case’ (177).
[269]As expressed earlier, [94], the unified construction can be understood as meaning that sub-s (1) of s 160 confers a power to order imprisonment on the basis of the formula of one day to one penalty unit unless special or exceptional circumstances apply.
[270]Kirk, 574 [73].
At the hearing of the appeal Vic Toll conceded, appropriately, that if the Court committed the error of law contended for by Mr Taha and Ms Brookes (which it contested) that error involved a misconstruction of its statutory functions which was reviewable. That being so, the distinction between administrative tribunals and inferior courts was of no avail to it. That distinction need not be further explored here save to say that a body entrusted with the power to make an order for imprisonment by reason of a failure to pay a penalty for an infringement offence consequent upon the offender’s arrest has many of the hallmarks of judicial power, even if the proceeding is summary in nature and the process leading up to it is largely administrative.
It is thus unnecessary to decide grounds 1 and 2 of Ms Brookes’ Notice of Contention.[271]
[271]It should be noted, as the Commission observed, if the Court was exercising administrative power on a s 160 hearing it would be acting as a ‘public authority’ for the purposes of the Charter and would therefore be bound by s 38 of the Charter to act compatibly with the Charter; that is, it would be unlawful for it to act in a way that is incompatible with a human right or, in making a decision, to fail to give proper consideration to a relevant human right. See Sabet v Medical Practitioners Board of Victoria (2008) 20 VR 414, 432-3 [119]-[127].
Commission’s Notice of Contention – s 6(2)(b) of the Charter
The Notice of Contention filed by the Commission was supported by Mr Taha and Ms Brookes. It turned upon the operation of s 6(2)(b) of the Charter. Section 6(2) provides as follows:
This Charter applies to –
(a) the Parliament …
(b) courts and tribunals, to the extent that they have functions under Part 2 and Division 3 of Part 3; and
(c) public authorities …
Part 2 sets out the human rights protected under the Charter.[272]
[272]It also includes s 7(2), the general proportionality requirement for any interference with the rights. However, as mentioned above, the role played by s 7(2) in the interpretative task is currently unclear.
Division 3 of Part 3 relates to the interpretation of laws.[273]
[273]It also includes the power conferred on the Supreme Court to issue a declaration of inconsistent interpretation (s 36(2)) if a statutory provision cannot be interpreted consistently with a human right.
The language of that limb of s 6(2)(b) which relates to ‘the extent [to which courts] have functions under Part 2’ renders it susceptible to three alternative
constructions:[274]
[274]See Caroline Evans and Simon Evans, Australian Bills of Rights (LexisNexis, 2008), 12-14 [1.41]-[1.44]. The Court heard submissions on these alternative constructions in RJE v Secretary to the Department of Justice (2008) 21 VR 526, but found it unnecessary to decide the issue. See also Timothy Lau, ‘Section 6(2)(b) of the Victorian Charter: A problematic provision’ (2012) 23 Public Law Review 181.
(1) the broad construction, whereby the function of courts is to enforce directly any and all of the rights enacted in Part 2;[275]
[275]The broad construction has the difficulty that it would in effect render courts public authorities and impose on them a direct obligation to act compatibly with the rights protected under the Charter, including in proceedings between private parties. This is not consistent with s 4(1)(j) which expressly excludes courts from the definition of ‘public authorities’ (except when acting in an administrative capacity, for example the issuing of warrants). It is also inconsistent with the words ‘to the extent’ in s 6(2)(b) which are words of limitation.
(2) the intermediate construction, whereby the function is to enforce directly only those rights enacted in Part 2 that relate to court proceedings;[276]
(3) the narrow construction, whereby the function of courts is to enforce directly only those rights that are explicitly and exclusively addressed to the courts.[277]
[276]Evans and Evans (op cit), 13 [1.42]. They see the rights falling under the intermediate construction as those rights under ss 21(5)(c), 21(6), 21(7), 21(8), 23(2), 23(3), 24-27 of the Charter.
[277]Evans and Evans (op cit), 13 [1.43]. They consider that the narrow construction may include only a handful of rights such as the right of someone deprived of his or her liberty to apply to a court for a declaration or order regarding the lawfulness of his or her detention (s 21(7)), along with the rights under s 21(5)(c), 21 (6)-(8), and 24(2)-(3) but may not include the right to a fair hearing (s 24(1)) because it is not ‘explicitly and exclusively’ directed at the court, nor include the criminal process rights in ss 25-27. They note that the attempt to restrict the rights directly enforceable by a court to those which are ‘exclusively and explicitly’ addressed to courts has no textual support in the Charter (at 14 [1.44]).
The Commission submitted that the right to a fair hearing under s 24(1) was one of the rights under Part 2 in respect of which the Court had functions. It was therefore directly bound, by reason s 6(2)(b), to act compatibly with it.[278] I accept that this is so. It has been so held by Neave JA and Williams AJA in De Simone v Bevnol Constructions[279] where they said:[280]
[Sections] 24 and 25 apply directly to courts and tribunals, when they exercise their [adjudicative] functions.
[278]See Secretary to the Department of Human Services v Sanding [2011] VSC 42 [166]-[167], [204] where Bell J concluded that the Children’s Court was under a direct obligation, by reason of s 6(2)(b), to comply with the right to a fair hearing under s 24(1) in its conduct of protection proceedings (that is, proceedings determining whether the child should be taken away from his or her parents, whether the child will be protected from physical and emotional harm; who will have custody of the child, and so on).
[279](2009) 25 VR 237 (‘De Simone’) as was noted in Slaveski v Smith [2012] VSCA 25, [54] n 27.
[280]De Simone, 247 [52]. The Court indicated that this involved a ‘reading down’ of s 4(1)(j) of the Charter so that Part 2 (or some of it) would directly apply to courts and tribunals. With respect, there is no need for a reading down as s 4(1)(j) is concerned with the way in which public authorities are bound to observe rights under the Charter. There are other alternative ways in which rights-compliant obligations are imposed under the Charter. One of those alternatives is the obligation to interpret legislation in a human rights-compatible way (s 32); another is the obligation on Parliament to prepare statements of compatibility in respect of legislation (s 30). A further alternative source of obligation is that which is imposed directly on courts (as courts), under s 6(2)(b), to give effect to certain rights. Indeed, a primary reason for rejecting the broad construction of s 6(2)(b) is that it would be tantamount to rendering the courts public authorities and this is clearly inconsistent with the intention of the Charter, read as a whole.
It is undeniable that the right to a fair hearing relates to the core functions courts perform and falls within the intermediate construction. I consider it otherwise unnecessary to determine if the intermediate construction is correct.[281]
[281]However, I note the comments of Crennan and Keifel JJ in Momcilovic which appear to implicitly support the intermediate approach: ‘Some of the rights identified and described in Pt 2 may require courts or tribunals to ensure that processes are complied with, for example to ensure a fair hearing [s 24], and that the matters guaranteed by the Charter with respect to a criminal trial are provided [s 25]’ (204 [525]). See Lau (op cit), 195.
The Commission also submitted that insofar as s 8(3) had procedural implications for the conduct of a court hearing, courts were also directly bound, by reason of s 6(2)(b), to act compatibly with it.[282] In my opinion, it is arguable that the Commission is correct in this submission but I consider this unnecessary to determine.
[282]Lifestyles, [142].
The Commission submitted that it was a consequence of accepting that the Charter imposed a direct obligation on the Magistrate to give effect to s 24(1), that in the conduct of the hearing under s 160 of the Act, he was obliged to consider the availability and appropriateness of the alternatives provided under the Act in sub-ss (2) and (3) of s 160, and was subject to a duty to inquire, before making an imprisonment order under sub-s (1). It submitted that the Magistrate, in failing to do so, acted incompatibly with his obligations under the Charter.[283]
[283]The Commission recognised that before concluding that the Magistrate had acted incompatibly it would be necessary to determine whether the interference with the rights could be demonstrably justified under s 7(2) of the Charter. It noted that the party invoking s 7(2) bears the onus of establishing that any limitation on rights is justified (Major Crimes Act Case (2009) 24 VR 415, 441-2 [115], [117]). Vic Toll made no attempt to demonstrate any justification for any intrusion upon the rights of Mr Taha (or similarly those of Ms Brookes).
At the hearing of the appeals, Vic Toll was somewhat hampered in its response to the Commission as it confined its submissions on the Charter to the argument that the rights had no part to play until the jurisdiction of a Magistrate to contemplate making a decision under sub-ss (2) or (3) was enlivened, and that jurisdiction was not enlivened here, the onus falling on those who were in special or exceptional circumstances to raise the issue.
In my opinion, accepting as I do that the Magistrate was under a direct obligation, by reason of s 6(2)(b) to give effect to the right to a fair hearing under s 24(1), I consider that he acted incompatibly with the Charter in failing to consider, before making an order for the imprisonment of Mr Taha and Ms Brookes, whether there were special or exceptional circumstances which would justify the making of orders of less severity. The direct nature of the obligation imposed by s 6(2)(b) reinforces the conclusion, reached above on other grounds, that the obligation did not fall upon Mr Taha or Ms Brookes to raise their circumstances in court before the Magistrate had a duty to consider whether alternative orders could be made.
I accept that grounds one and two of the Commission’s Notice of Contention have been made out with respect to the obligation on the Court under s 160 of the Act to act compatibly with the right to a fair hearing under s 24(1) of the Charter.
Conclusion
The judge was correct in the construction she adopted of s 160 of the Act. She was also correct in finding that the Magistrate had committed an error of law in misconstruing his statutory functions. She was correct to set aside the orders of the Magistrate in each case and to remit the matters to the Court for determination
according to law.
I would dismiss the appeal.
OSBORN JA:
I have had the considerable advantage of reading the judgment of Emerton J at first instance and the judgments in draft of Nettle and Tate JJA.
I respectfully agree with Nettle and Tate JJA and Emerton J that s 160 of the Infringements Act 2006 (‘the Infringements Act’) should be read as a unified whole and that it should be understood as conferring a set of optional powers, each of which must be taken into account before any order is made.
I further agree that the Magistrates’ Court was obliged to inquire into the particular circumstances of Mr Taha and Ms Brookes to determine whether orders alternative to imprisonment should be made in their cases.
I also agree with Tate JA for the reasons she gives as to the nature and incidents of the duty to inquire, subject only to the following observations.
Intellectual disability or mental illness may bear upon the Magistrate’s exercise of discretion pursuant to s 160 in at least one or more of three ways:
(a) it may affect the culpability of the penalty defaulter with respect to the original offences or the subsequent failure to pay fines;
(b) it may affect the penalty defaulter’s probable capacity to pay instalments in compliance with a self-enforcing order for imprisonment in default of payment of fines by way of instalment thereafter; and
(c) it may incidentally affect the penalty defaulter’s capacity to participate in the hearing before the Magistrate or respond satisfactorily to enquiry.
In the first category of cases, the assessment of the intellectual capacity and
mental fitness of the penalty defaulter and its consequences as a matter of history goes to an understanding of the underlying culpability of the penalty defaulter.
The second category is one where intellectual disability or mental fitness bears upon the practical consequences of any order the Court may make. It is illustrated by the case of Mr Taha. If a person suffers from a disability or illness which renders him subject to a real risk of institutionalisation (whether voluntary or involuntary) then that fact must count strongly against the making of a self-executing order for imprisonment in default of payment of instalments of fines.
The third category raises an incidental consideration which may be difficult to resolve procedurally. Nevertheless, if the Magistrate’s duty to inquire into relevant special circumstances does not extend to taking into account the potential effects of intellectual disability or mental illness upon the capacity of a penalty defaulter to participate in the enquiry, the purpose of the enquiry may be defeated by the very mental condition which affects the underlying merits of the case.
In the present cases it seems probable that Mr Taha’s ability to participate properly in his case must necessarily have been affected by his intellectual disability, and such disability would have to be taken into account upon a rehearing.
In the case of Brookes, a woman suffering from ongoing anxiety and depression, for which she was receiving medical treatment, was arrested, taken from her children, strip searched and placed in the cells. She was given the opportunity to speak to a Legal Aid solicitor through her cell door and deposes that she did so in a state of anxiety. Thereafter the details of her history of mental illness were placed before the Magistrate. She was told in effect that she could either have the matter finalised that day and go home to her children, or come back for a hearing on another day. It is inherently likely that in this situation her mental state may have affected her instructions.
In my view, once the issue of Ms Brookes’s mental health was squarely before the Magistrate, the Magistrate owed a duty to ensure that the implications of her mental fitness were fully resolved before him before making an order adverse to Ms Brookes. The Court could properly call for documentary evidence before resolving its conclusions relating to the mental health issue, but it could not properly leave it to the penalty defaulter to decide whether the issue should be taken further or not before a self-executing order for imprisonment was made.
This is because the facts necessarily raised an issue as to whether Ms Brookes was affected by an anxiety state at the time she was before the Magistrate. In consequence, the Magistrate faced an issue analogous to that which arises when an issue of mental fitness to stand trial arises in a conventional criminal trial in respect of an indictable offence.[284]
[284]Kesavarajah v The Queen (1994) 181 CLR 230, 244-5; Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic), ss 9(1), (2) and (3).
The same considerations which Tate JA elucidates as supporting a purposive construction of s 160 requiring the Magistrate to undertake an enquiry also require that that enquiry be independent and that once the issue of mental illness is properly raised before the Magistrate he or she must investigate it and assess its relevance to the exercise of the relevant discretion.
In the view I take:
(a) the Magistrate was bound to inquire as to the existence of special circumstances;
(b) once the real possibility of such circumstances by reason of mental illness was squarely identified, the Magistrate was bound to adopt a procedure which recognised the possibility that mental illness might also affect Ms Brookes’s capacity to give instructions to her representative in the normal manner; and
(c) once the issue of mental illness was properly raised then, whatever view Ms Brookes expressed, thereafter it was for the Magistrate to independently investigate the implications of this issue before the exercise of his overall discretion to impose a very substantial term of imprisonment.
I agree with Emerton J:
In this case, the Court was informed by the duty lawyer acting for Ms Brookes that sub-s (2) was - or might be - enlivened because Ms Brookes suffered from a mental illness. In those circumstances, the Court should have made inquiries to enable it to determine whether it was appropriate to make orders under sub-ss (2) or (3) before making an imprisonment order under sub-s (1). The requirement that the Court be ‘satisfied’ of one or more matters in sub-s (2)(a) and (b) or of the matter in sub-s (3) does not impose an obligation on the offender to provide proof in the conventional sense. The Court may satisfy itself through its own inquiries. If documentary evidence of Ms Brookes’ mental illness was required by the Court, the s 160 hearing should have been adjourned in order for that evidence to be obtained and put before the Court.[285]
[285]Reasons [97].
For the above reasons, I would dismiss the appeal.
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