BELL v POLICE [2012] SASC 188 (17 OCTOBER 2012) SUPREME COURT OF SOUTH AUSTRALIA

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Last Updated: 6 December 2012

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)

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BELL v POLICE

[2012] SASC 188

Judgment of The Honourable Chief Justice Kourakis

17 October 2012

MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - ORDERS AND CONVICTIONS - SENTENCING - PROCEDURE ON SENTENCING - TYPES OF ORDER ON SENTENCE
TRAFFIC LAW - OFFENCES - PROCEDURE - SENTENCE AND PENALTY
Appeal against a forfeiture order imposed by a Magistrate – appellant convicted and sentenced by a Magistrate for the offence of driving with a prescribed concentration of alcohol (PCA) – the appellant’s vehicle was seized and impounded – the prosecution filed an application in the Magistrates Court for the forfeiture of the appellant’s vehicle – an order of forfeiture was made by the Magistrate pursuant to s 12(1)(a)(iii) of the Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Act 2007 (SA) (the Act) – the prosecution relied on two previous PCA offences, committed in 2002 and 2005, as the prescribed offences committed within the qualifying period stipulated by the Act – the issues on appeal were: (1) whether the previous PCA offences did not come within the scope of the Forfeiture Act because the Forfeiture Act was not yet enacted and therefore the offences were not prescribed at the time the offences were committed; and (2) whether the Forfeiture Act is invalid because it requires the Courts to exercise powers which are incompatible with, and repugnant to, judicial power under the Constitution.
Held: (1) appeal ground rejected – s 10 of the Act gives the statute retrospective effect – the provisions of the Act allow an application to be made if the offences are committed within the qualifying period and are prescribed at the time of the application; (2) on an application by the prosecution, the Act requires Courts to impose a substantial additional criminal penalty (forfeiture) after final sentencing orders have been made – the Act is inconsistent with the judicial integrity implication – appeal allowed – order of forfeiture set aside.
Road Traffic Act 1961 (SA) s 47B(1)(a); Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Act 2007 (SA) s 3, s 4, s 5, s 9, s 10, s 11, s 12, s 13, s 20, s 24, s 54, Pt 2, Pt 3; Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Regulations 2007 (SA) reg 4(b); Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) (Miscellaneous) Amendment Act 2009 (SA); Summary Offences Act 1953 (SA) Pt 14A; Statutes Amendment (Misuse of Motor Vehicles) Act 2004 (SA); Australian Courts Act 1828 (UK) s 5; Serious and Organised Crime (Control) Act 2008 (SA); Commonwealth of Australia Constitution Act 1900 (UK) s 75(v), Ch III, referred to.
Maroondah City Council v Fletcher [2009] VSCA 250; Maxwell v Murphy [1957] HCA 7; (1957) 96 CLR 261; Fisher v Hebburn Ltd [1960] HCA 80; (1960) 105 CLR 188; Barton v The Queen [1980] HCA 48; (1980) 147 CLR 75; Kable v Director of Public Prosecutions (NSW) [1996] HCA 24; (1996) 189 CLR 51; South Australia v Totani [2010] HCA 39; (2010) 242 CLR 1; Fardon v Attorney-General (Qld) [2004] HCA 46; (2004) 223 CLR 575, discussed.
Palgo Holdings Pty Ltd v Gowans [2005] HCA 28; (2005) 221 CLR 249; Geaghan v D’Aubert [2002] NSWCA 260; Robertson v City of Nunawading [1973] VicRp 81; [1973] VR 819; Coleman v Shell Co of Australia Ltd (1943) 45 SR (NSW) 27; Re A Solicitor’s Clerk [1957] 1 WLR 1219; La Macchia v Minister for Primary Industry (1986) 72 ALR 23; Al-Kateb v Godwin [2004] HCA 37; (2004) 219 CLR 562; Morrisey v Bright [1978] 2 NSWLR 1; Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509; Jago v District Court (NSW) [1989] HCA 46; (1989) 168 CLR 23; Police v Sherlock [2009] SASC 64; (2009) 103 SASR 147; Walton v Gardiner (1993) 177 CLR 378; Dowling v Colonial Mutual Life Assurance Society Ltd [1915] HCA 56; (1915) 20 CLR 509; Rozenbes v Kronhill [1956] HCA 65; (1956) 95 CLR 407; Thomas v Mowbray [2007] HCA 33; (2007) 233 CLR 307; Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1; Kirk v Industrial Relations Commission of New South Wales (2010) 239 CLR 531; Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223, considered.

BELL v POLICE
[2012] SASC 188

Magistrates Appeal: Criminal

1. KOURAKIS CJ: On 4 December 2010 the appellant, a resident of Port Pirie, drove his 1996 Commodore utility (the ute) on a road in that town with a prescribed concentration of alcohol, in contravention of s 47B(1)(a) of the Road Traffic Act 1961 (SA) (RTA). On his apprehension the ute was seized and impounded.
2. On 16 December 2010, the police filed an application in the Magistrates Court for the forfeiture of the ute and served a notice to that effect on the appellant. On 10 January 2011, the appellant was convicted of the offence, fined $500 and his licence was disqualified for six months from that date. He was ordered to pay impounding fees of $848.20 pursuant to s 9(1) of the Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Act 2007 (SA) (the Forfeiture Act). The forfeiture application was adjourned.
3. The prosecution’s application for forfeiture was heard and determined on 31 October 2011. The prescribed offences committed within the qualifying period stipulated by the Forfeiture Act on which the prosecution application relied were offences of driving with a prescribed concentration of alcohol (PCA offences), committed on 20 March 2005 and 10 March 2002. The appellant had been convicted of the PCA offences on 10 November 2005 and 3 June 2002 respectively. The Magistrate briefly considered the appellant’s challenge to the operation and validity of the Forfeiture Act but ultimately made an order for the forfeiture of the ute pursuant to s 12(1)(a)(iii) of the Forfeiture Act.
4. The Forfeiture Act commenced operation on 16 December 2007. The Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Regulations 2007 (the Forfeiture Regulations) commenced operation on the same day. PCA offences are, and always have been, prescribed by reg 4(b) of the Forfeiture Regulations. Some other offences which had been prescribed by the Forfeiture Regulations when first made were later removed on 31 October 2010, and other offences were prescribed in their place.
5. The appellant appeals against the forfeiture order on two grounds.
6. First, he contends that on a proper construction of s 12(1)(a)(iii) and s 11(c)(ii) of the Forfeiture Act, the PCA offences do not come within their scope because the Forfeiture Act had not yet been enacted and because, obviously enough, PCA offences were not yet prescribed offences for the purposes of the Forfeiture Act. I will refer to prescribed offences committed within the periods stipulated by those subparagraphs as qualifying offences, and the prescribed offence, which, on conviction, attracts a forfeiture application as the confiscation offence.
7. A “prescribed offence” is defined by s 3 of the Forfeiture Act to mean, relevantly to this appeal, an offence of a kind prescribed by regulation. The appellant contends that on a proper construction of that term he had not “been found guilty of or expiated at least two other prescribed offences within 10 years of the date of the offence in respect of which the application for forfeiture is made”. The appellant contends that to avoid any retrospective operation of the Forfeiture Act the term should be construed to mean “an offence, which was a prescribed offence prior to its commission”. The appellant contends that at the very least only offences of a kind prescribed after the commencement of the Forfeiture Act, and pursuant to its terms, can be relied on as qualifying offences.
8. The appellant submits that his construction of the term is also supported by the presumption that statutes are not intended to inflict double punishment. The appellant argues that if forfeiture were to be ordered after a defendant had been sentenced for the confiscation offence, either because of the subsequent prescription of offences of a kind which he had committed in the qualifying period, or on the basis of subsequently committed prescribed offences, the forfeiture would be an additional punishment imposed for both the confiscating offence and the qualifying offences.
9. I reject the appellant’s first ground. The provisions of the Forfeiture Act reveal an intention to allow an application for forfeiture to be made if the defendant has committed offences within the qualifying period which are, at the time of the application, of a prescribed kind. Section 10 of the Forfeiture Act is, on its face, directed to this very issue and gives the statute retrospective effect in clear and intractable terms. I reject the appellant’s construction of the term “prescribed offence”. I develop my reasons further below.
10. The appellant’s second ground of appeal is that s 12(1)(a)(iii) of the Forfeiture Act is invalid because it requires the courts of this State to exercise powers, on the application of the prosecution, which are incompatible with, and repugnant to, the exercise of judicial power under the Constitution. I uphold the appellant’s constitutional objection. The subsequent references in my reasons to the effect and invalidity of the scheme implemented by the Forfeiture Act are references to the effect given to that scheme through, and the invalidity of, s 12(1)(a)(iii) of the Forfeiture Act. The Forfeiture Act requires the courts of this State, on an application made by the prosecution, to impose, as a substantial additional criminal penalty, forfeiture of the motor vehicle specified in the prosecution’s application after they have finally sentenced a defendant convicted of a confiscation offence. The forfeiture order substantially increases the effective penalty above that fixed by the Court for the confiscation offence in the exercise of its sentencing discretion and after balancing the competing considerations applicable to that offence. In imposing that additional penalty the Court acts ministerially, in the sense that it acts as an instrument of the executive government, to make an order which is dictated by the very terms of the prosecution’s application. The application, which may be made many years after the offender has been finally sentenced for the confiscation offence in accordance with the ordinary criminal process, is made in the unfettered discretion of the prosecution. The motor vehicle selected for forfeiture may be either the vehicle used in the commission of the offence or any other vehicle of which the offender is the registered proprietor. The prosecution may make the application in circumstances in which the making of an order could only be regarded as capricious, yet the Court is impotent to restrain the use of its process to achieve that result. The forfeiture jurisdiction conferred on the courts of this State is incompatible with their constitutional status as courts which must be fit for investiture with federal judicial power. I develop my reasons for so concluding below.

Construction of the Forfeiture Act

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

The Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Act 2007

3—Interpretation
(1) In this Act, unless the contrary intention appears—
... "forfeiture offence" means an indictable offence of a kind prescribed by regulation for the purposes of this definition; "prescribed offence" means a forfeiture offence or an offence of a kind prescribed by regulation for the purposes of this definition; "registered owner" of a motor vehicle means a person recorded in a register kept under the Motor Vehicles Act 1959 or the law of another State or Territory of the Commonwealth as an owner of the motor vehicle; "relevant authority" means—
(a) in relation to the clamping or impounding of a motor vehicle under Part 2—a police officer or person authorised by the Commissioner to exercise the powers of a relevant authority; or 4—Powers under Act in addition to other penalties
(1) A power exercisable under this Act is exercisable in addition to any other penalty that may be imposed on a person in relation to a prescribed offence.
(2) However, a court must, in imposing another penalty on a person in relation to a prescribed offence, have regard to any exercise of powers under this Act. 5—Power to clamp or impound vehicle before proceedings finalised (1) If a person—
(a) is to be, or has been, reported for a prescribed offence and has been advised of that fact; or
(b) has been charged with, or arrested in relation to, a prescribed offence,
a relevant authority may clamp or impound either—

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

(d) any motor vehicle of which the person is a registered owner.
... 10—Interpretation
For the purposes of an application for an order under this Part, a person will be taken to have been found guilty of, or to have expiated, a prescribed offence if the person has been found guilty of, or has expiated, an offence that is, at the date of the application, a prescribed offence. 11—Application of Part
This Part applies to a conviction for a prescribed offence if—
(a) the offence was committed after the commencement of this Part; and
(b) either—
(i) the offence is a forfeiture offence; or
(ii) the convicted person has been found guilty of or expiated at least 1 other prescribed offence committed or allegedly committed within 10 years of the date of the offence; and (c) either—
(i) a motor vehicle was used by the convicted person in the commission of the offence and that motor vehicle was not, at the time of the offence, stolen or otherwise unlawfully in the possession of the person or being used by the person in circumstances (if any) prescribed by regulation; or
(ii) the convicted person is a registered owner of a motor vehicle. 12—Court order for impounding or forfeiture on conviction of prescribed offence (1) Subject to section 13, if this Part applies to a conviction for a prescribed offence, the court that records the conviction must, on the application of the prosecution— (a) order that the motor vehicle specified in the application is forfeited to the Crown if—
(i) the offence is a forfeiture offence; or
(ii) the convicted person has been found guilty of or expiated at least 1 other prescribed offence committed or allegedly committed within 12 months of the date of the offence; or
(iii) the convicted person has been found guilty of or expiated at least 2 other prescribed offences committed or allegedly committed within 10 years of the date of the offence; or
(b) order that the motor vehicle specified in the application be impounded by the relevant authority for a period not exceeding 6 months if—
(i) the convicted person has been found guilty of or expiated 1 other prescribed offence committed or allegedly committed within 10 years of the date of the offence; and
(ii) paragraph (a) does not apply.
(1a) If the court makes an order under subsection (1), it must also order that the convicted person pay to the relevant authority fees calculated in accordance with the regulations in relation to the forfeiture or impounding of the motor vehicle.
... 13—Court may decline to make order in certain circumstances (1) A court that records a conviction to which this Part applies may decline to make an order under this Part if satisfied that—
(a) the making of the order would cause severe financial or physical hardship to a person; or
(b) the offence occurred without the knowledge or consent of any person who was an owner of the motor vehicle at the time of the offence; or
(c) the making of the order would significantly prejudice the rights of a credit provider; or
(d) the motor vehicle the subject of the application is a motor vehicle referred to in section 11(c)(i) and has, since the date of the offence, been sold to a genuine purchaser or otherwise disposed of to a person who did not, at the time of the sale or disposal, know or have reason to suspect that the motor vehicle might be the subject of proceedings under this section.

12. The predecessor legislation of the Forfeiture Act was Pt 14A of the Summary Offences Act 1953 (SA) (SOA). That part was inserted in the SOA by the Statutes Amendment (Misuse of Motor Vehicles) Act 2004 (SA) which came into operation in 2005. It provided for a forfeiture or impounding order to be made on conviction of an impounding offence committed after the commencement of that Part if the offender had committed other prescribed offences in the period of five years preceding the date of the impounding offence. Particular kinds of offences were prescribed by Pt 14A itself and the Part therefore applied on conviction of an impounding offence even if the qualifying offences had been committed before its enactment.
13. The vehicle which is specified in a forfeiture application made pursuant to s 12 of the Forfeiture Act must be a vehicle to which the Part applies. It follows that only the vehicle used in the commission of an offence, or another vehicle owned by the offender, can be the subject of an application. Apart from delineating the scope of its operation in that way, Pt 3 of the Forfeiture Act does not expressly, or by implication, limit the prosecution’s discretion to select any one of a number of vehicles which Pt 3 may render vulnerable to forfeiture on conviction for a confiscation offence in a particular case. Moreover if Pt 3 applies, and the jurisdiction of the Court is enlivened, the only issue for the Court to determine is whether the defendant has expiated, or has been convicted, of more than one offence committed in the prescribed period, and when the offence or offences were committed.
14. On the natural and ordinary meaning of the words of Pt 3 of the Forfeiture Act, the scheme it enacts appears to be relatively straightforward. On conviction of a prescribed offence committed after the commencement of Pt 3 of the Forfeiture Act the offender is, subject to satisfaction of the conditions stipulated by ss 11(b) and 12(1)(a), liable to an order for forfeiture of the vehicle specified in the application brought by the prosecution.
15. The apparent simplicity of the scheme belies its underlying complexity. It is necessary first to draw attention to the period in which the qualifying offence must be committed and the consequences of the way in which the period is defined for the operation of the Forfeiture Act. The period in which the qualifying offence must be committed, or (for expiated offences) allegedly committed, to allow a forfeiture application to be made is the period of time “within 10 years of the date of the” confiscation offence. I will refer to this period as the qualifying period. The qualifying period stipulated in ss 11 and 12(1)(iii) of the Forfeiture Act, when it was first enacted, was 10 years preceding the commission of the confiscation offence. The current formulation was inserted by the Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) (Miscellaneous) Amendment Act 2009 (SA) (the Amendment Act). The natural meaning of the formulation of the qualifying period inserted by the Amendment Act is that it comprises the 10 years preceding the date of the commission of the confiscation offence and the ensuing 10 years. That is how the phrase was understood and explained in the second reading speech on the introduction of the Bill.[1]
16. The legislative history of a statutory provision is an important part of the context in which it is to be construed. In Geaghan v D’Aubert,[2] Stein JA (Handley JA and Foster AJA agreeing) affirmed the following quote from Pearce and Geddes Statutory Interpretation in Australia 5th Ed, p 73:

If one views the whole scheme of a legislation, it is possible to see the way in which the legislature is dealing with the subject matter: whether it is extending or contracting benefits; whether it is increasing penalties and so on. Such information must be of use to a court in its endeavour to understand the legislature’s wishes.

17. It is evident that the purpose of the Amendment Act was to strengthen and extend the operation of the Forfeiture Act. The change in language was plainly intended to extend the qualifying period by projecting it into the 10 years following the commission of the confiscation offence. I have attached as an appendix to these reasons a diagram to illustrate the possible sequences in which qualifying offences might be committed within the qualifying period and result in forfeiture on the commission of a confiscation offence. Line A shows a sequence falling within the scope of Pt 3 of the Forfeiture Act before the Amendment Act came into operation, and Line B a sequence which could result in forfeiture after the Amendment Act came into operation.
18. The Amendment Act also reduced the number of qualifying offences from three to two and changed the relevant date from which the period ran from the date of adjudication of guilt, or expiation, to the date of the offence.
19. By enacting a qualifying period which spans the confiscation offence prospectively and retrospectively, instead of extending the qualifying period from 10 to 20 years preceding the commission of the confiscation offence, the Amendment Act did more than expand the temporal application of the Forfeiture Act. It enabled the additional penalty of forfeiture to be imposed on an offence which was a first offence, in the sense that it was not preceded, nor aggravated by, a prior history of offending against prescribed offences (see Appendix, Line B). An application for an order for forfeiture might also be brought very many years after a court had convicted and sentenced an offender for the confiscation offence. A supervenient application for forfeiture might be based on a qualifying offence committed long after the final judicial disposition of the prosecution of the confiscation offence, but will nonetheless result in the imposition of what is, in effect, a substantial additional penalty for the commission of the confiscation offence. The subsequently committed qualifying offence may have been expiated, and may not itself be preceded or succeeded by qualifying offences committed within the qualifying period (see Appendix, Line C). The forfeiture cannot, in those circumstances, be characterised as a penalty imposed for the subsequently committed qualifying offence even though, but for its commission, no forfeiture application could have been made on the conviction for the earlier confiscation offence. A forfeiture order made long after the imposition of sentence on the confiscation offence is, in effect, a retrospective, executive initiated interference with, in the sense of a substantial addition to, the sentence imposed judicially by a court.
20. My conclusion that after the enactment of the Amendment Act a qualifying offence enlivening the power to make a forfeiture application might be committed close to a decade after the conviction on which the application is made, precludes, in turn, any implication that the prosecution must make an application for forfeiture in the course of, or immediately after, the disposition of the prosecution for the confiscation offence, even when the qualifying offences predate the commission of the confiscation offence. My construction of the Amendment Act therefore denies any implication which would avoid the imposition of double punishment for the confiscation offence by ensuring that courts were informed of the impending forfeiture application before sentencing for the confiscation offence.
21. Although the issue does not directly arise in this case,[3] it is reasonably clear that the “conviction for a prescribed offence” on which the forfeiture application is made, means a conviction for an offence which was of a prescribed kind at the time of its commission. The presumption against retrospectivity calls for that construction and there is no contrary statutory indication for confiscation offences as there is for the prescription of qualifying offences. Indeed s 11(a) of the Forfeiture Act expressly provides that a forfeiture application under Pt 3 can only be made on a conviction of an offence which was committed after its commencement.
22. However, there is a strong statutory indication that the prescription of an offence does operate retrospectively with respect to qualifying offences. Section 10 of the Forfeiture Act expressly deals with the question of when offences of the same kind as those relied on by the prosecution as qualifying offences for the purposes of s 12(1)(a)(ii) or (iii) must have been prescribed. It fixes that time as the date of the application for forfeiture. Section 10 of the Forfeiture Act is, on its own terms, directed to ss 11(b)(ii), 12(1)(a)(ii) and (iii), and 12(1)(b)(i) of the Forfeiture Act which condition the making of a forfeiture order on the existence of a certain number of qualifying offences. Section 10 of the Forfeiture Act does not speak to s 11(a) and does not stand in the way of the construction, consistent with the presumption against retrospectivity, to which I referred in the preceding paragraph.

Appellant’s construction of “prescribed offence” rejected

23. I now turn to consider more closely the appellant’s contention that on a proper construction Pt 3 operates prospectively so that only offences committed after offences of their kind have been prescribed can be qualifying offences which enliven the forfeiture power.
24. The liability to forfeiture on conviction for a confiscation offence is dependent, relevantly to this appeal, on the defendant having been found guilty, or having expiated, at least two other prescribed offences (the qualifying offences) which were, or were alleged to have been, committed within ten years of the date of the confiscation offence. The appellant contends that those qualifying offences must, like the confiscation offence, have been committed after Pt 3 came into operation and after the prescription of offences of their kind pursuant to the Forfeiture Act. The appellant relies on the presumption against retrospectivity to support his submission that to fall within s 12(1)(a)(ii) and (iii) an offence must be one committed after offences of its kind were prescribed.
25. A statute can be said to operate retrospectively, in what is perhaps a narrower sense of that expression, if it alters the legal effect of conduct or circumstances after they have occurred.
26. In Maxwell v Murphy, Dixon CJ explained: [4]

The general rule of the common law is that a statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law had defined by reference to the past events.

27. Similarly, Fullagar J explained in Fisher v Hebburn Ltd,[5] that legislation “is prima facie to be construed as not attaching new legal consequences to facts, or events which occurred before its commencement.”[6] The passages distinguish between legislation which alters rights or liabilities which have accrued by reason of antecedent facts and circumstances and a statute which takes those antecedent circumstances as “a basis for what it prescribes for the future.”[7] That is to say, legislation does not operate retrospectively if it imposes rights or obligations by reference to both antecedent and subsequent conduct or circumstances.
28. In this narrower sense a statute operates retrospectively if all of the conditions, facts and circumstances on which it operates occurred before its enactment.
29. The presumption against retrospectivity is said in itself to arise out of a presumption that “the legislature does not intend what is unjust.”[8] Both presumptions manifest what has been referred to as the principle of legality. If the courts acknowledge a social value to be one which is respected by the body politic, they will construe legislation consistently with that value unless Parliament legislatively declares that it has departed from it with irresistible clarity.[9] In deciding whether the operation of legislation is unjust “a broad view [must be] taken of all who are affected.”[10]
30. The injustice of retrospective legislation and its inconsistency with the general concept of the rule of law rests, fundamentally, in the denial of a person’s capacity to make an informed choice about how to conduct his or her affairs in a way which will either fall within, or outside of, the scope of the legislation.
31. Part 3 of the Forfeiture Act would not operate retrospectively, in the narrow sense I have just discussed, if only offences of a prescribed kind committed before the commission of the confiscation offence could operate as qualifying offences, even if offences of that kind were not prescribed at the time the qualifying offences were committed (see Appendix, Line A). That is so, at least if the offences of that kind are prescribed before the commission of the confiscation offence, because the commission of a qualifying offence does not, of itself, expose the person to forfeiture unless, and until, the confiscation offence is committed. If offences of a kind committed by an offender, and relied on as qualifying offences, are prescribed before the commission of the confiscation offence, the prospective offender is capable of knowing, immediately before commission of the confiscation offence, the consequences of his or her conduct. It is of course otherwise if offences of the kind relied on as qualifying offences are only prescribed after the commission of the confiscation offence (see Appendix, Line D). The construction proffered by the appellant is therefore wider than is necessary for the Forfeiture Act to conform with the presumption against retrospectivity, if only offences committed before the commission of the confiscation offence could be relied on as qualifying offences.
32. However, as I observed in [15], since the Amendment Act that is not so and offences committed after the commission of the confiscation offence can also be relied on (see Appendix, Line B). If, as I foreshadowed, those offences can be relied on, even though offences of their kind had not been prescribed when they were committed, then the Forfeiture Act would to that extent operate retrospectively in the narrow sense. In that operation it would result in forfeiture even though at the time that the qualifying offences on which the prosecution relies, and the confiscation offence, were committed the defendant was not vulnerable to a forfeiture application.
33. However, the presumption against retrospectivity appears to be expressly rebutted by s 10 of the Forfeiture Act which provides that the forfeiture power is enlivened if the qualifying offence is “at the date of the application a prescribed offence”. The appellant seeks to step around this obstacle by arguing that the definition of a prescribed offence in s 3 of the Act should, on the basis of the presumption against retrospectivity, be construed to mean “an offence prescribed prior to its commission” and that that definition must be incorporated into all of the other provisions of the Forfeiture Act in which the term appears, including s 10.
34. The difficulty with the modified construction of the definition proposed by the appellant appears most acutely when it is read into s 10 of the Forfeiture Act by using a hypothetical prescribed statutory offence (s Z). Section 10 of the Forfeiture Act would read, in its application to s Z, as follows:

For the purposes of an application for an order under this Part a person will be taken to have been found guilty of, or to have expiated [an offence against s Z committed after the prescription of s Z] if the person has been found guilty of, or has expiated an offence [against s Z] which is, at the date of the application, [an offence committed against s Z after its prescription].

35. If the offence against s Z was committed by the offender at a time when s Z was prescribed, it will of course continue to be an offence which was prescribed when it was committed even if the regulation prescribing s Z has been repealed by the time the application for forfeiture is made. On the appellant’s construction of s 10 of the Forfeiture Act, it is tautologous. The appellant’s construction therefore requires the term “prescribed offence” in s 10 of the Forfeiture Act to be replaced by its modified definition only when it first appears and for the term where it last appears to read “still a prescribed offence”. This confusion inheres in the appellant’s construction because the purpose of the definition in s 3 of the Forfeiture Act is to prescribe by regulation kinds of offences by reference to statutory provisions, but the words which the appellant would read in refer, instead, to particular offences actually committed at a point in time.[11] As I observed in [12] above, on its enactment Pt 14A SOA internally designated the kinds of offences which were prescribed. It did not leave the prescription of kinds of offences to be dealt with by regulation. The argument put by the appellant was not available with respect to the operation of Pt 14A SOA. It is unlikely that Parliament intended to radically restrict the reach of its scheme by adopting the expedient of allowing the prescribed offences to be added or removed by regulation.
36. There are more substantial objections to the appellant’s construction than the semantic difficulty I have just outlined. On a proper construction of the Forfeiture Act, the power to make a forfeiture order is enlivened by the commission of qualifying offences of a kind which are prescribed at the time of the application whether or not they were prescribed at the time of their commission. There are four major steps in that construction.
37. First, the provisions of the Forfeiture Act must be construed in the context of the transitional provision found in its first Schedule, which provide that the statutory scheme which had been enacted as Pt 14A SOA continues to apply in relation to offences committed, or allegedly committed, before the commencement of the Forfeiture Act. The transitional provisions continue the operation of Pt 14A SOA only with respect to confiscation offences committed before the repeal of Pt 14A SOA. The continuing operation of Pt 14A SOA on confiscation offences committed while it was extant explains the expressly enacted prospectivity of s 11(a) of the Forfeiture Act. The failure to enact an express provision having the same effect as s 11(a) of the Forfeiture Act for qualifying offences tells against the appellant’s construction.
38. Secondly, it is improbable that Parliament intended to wipe from the slates of drivers all traffic offences committed before the commencement of the Forfeiture Act including those offences which had been prescribed for the purpose of Pt 14A SOA. The manifest purpose of the Forfeiture Act was to impose a similar, but more severe, scheme than the one it replaced. The Forfeiture Act and its transitional provisions evince a scheme whereby offenders who had committed prescribed traffic offences under the operation of Pt 14A SOA (see Appendix, Line D) would remain liable to forfeiture if they committed, and expiated or were prosecuted for a prescribed offence committed after the commencement of the Forfeiture Act.
39. The qualifying offences committed before the enactment of Pt 3 of the Forfeiture Act could not, of course, have been prescribed under the provisions of the Forfeiture Act before they were committed. Once it is accepted that offences committed before the commencement of the Forfeiture Act can count as qualifying offences for the purposes of s 11(b)(ii) and ss 12(1)(a)(ii) and (iii) of the Forfeiture Act, it follows that those provisions are capable of picking up offences which were committed before offences of their kind were prescribed for the purposes of the Forfeiture Act.
40. Thirdly, the ordinary meaning of the text of s 10 of the Forfeiture Act stands squarely in the way of the appellant’s construction. The appellant puts a subtle argument arising from the use of the word “if” in that provision. I accept that in the ordinary course the word “if” should be construed as meaning “only if.”[12] That is so because where a statute confers a right or imposes an obligation if a particular circumstance exists, then it usually means that that the right or obligation only crystallises if that circumstance exists. However, the manifest purpose of s 10 of the Forfeiture Act is to deem a person “to have been found guilty of, or to have expiated”, an offence of a kind which is prescribed as at the date of the application.
41. The enactment of s 10 of the Forfeiture Act with its prima facie retrospective effect was necessary to ensure the transition from Pt 14A SOA, to which I referred in [37] above. In this respect Pt 3 of the Forfeiture Act stands in contrast to the clamping provisions of Pt 2 of the Forfeiture Act. Part 2 of the Forfeiture Act authorises the clamping or impounding of vehicles when a person has been reported, or charged with, or is to be arrested for, a prescribed offence. The power in Pt 2 of the Forfeiture Act is exercised soon after the commission of the offence and before the proceedings for the prescribed offence have been finalised. The context of Pt 2 of the Forfeiture Act, and the presumption against retrospectivity, limits the prescribed offences which enliven the power in Pt 2 to those contraventions committed after the prescription of offences of their kind. Parliament is unlikely to have intended that an unlawful seizure of a motor vehicle after reporting a motorist for an offence which was not, at that time, prescribed might be validated by the subsequent prescription of the offence. Moreover, the clamping provisions are to a large extent ancillary, and designed to facilitate the seizure of a vehicle which will ultimately be forfeited following conviction of a confiscation offence which, as I have observed, must have been of a prescribed kind before it was committed.
42. From this statutory context the purpose of s 10 of the Forfeiture Act emerges. It delineates the operation of Pt 3 of the Forfeiture Act from Pt 2 by declaring that the prescription of offences of a kind upon which the prosecution relies as qualifying offences may operate retrospectively.
43. Fourthly, if the qualifying offences for the purposes of Pt 3 of the Forfeiture Act are limited to those which, in accordance with the submission of the appellant, are committed after prescription of offences of their kind, then s 10 of the Forfeiture Act would have very little, and probably no, work to do. A very theoretical explanation for the enactment of s 10 of the Forfeiture Act, so construed, may be that it was intended to preclude any liability to forfeiture based on an offence which was of a prescribed kind when committed but which is no longer a prescribed offence when the application is made. However, the enactment of s 10 of the Forfeiture Act for that purpose alone would have been quite unnecessary. An application for an order for forfeiture founded on offences of a kind which had been, but were no longer, prescribed would fail in any event because the liability for forfeiture is only finally incurred when an application for forfeiture is made.[13] If the qualifying offences are not of a prescribed kind when an application is made, the circumstances stipulated by s 11 of the Forfeiture Act simply do not exist, Pt 3 does not apply, and the application is incompetent.
44. The appellant also called in aid of his construction the presumption against the statutory imposition of double punishment. I accept that the forfeiture of an offender’s motor vehicle pursuant to Pt 3 of the Forfeiture Act is a punishment. I acknowledge that in some cases a forfeiture order will have a preventative effect because, at least for some period of time after any period of licence disqualification has elapsed, the offender may not have access to another vehicle. However, prevention is a relatively minor consequence of a forfeiture order. In Australia motor vehicles are generally regarded as the second most valuable personal asset, after a home, but, for many, cars are their most valuable asset. The confiscation of an asset of such relative importance is undoubtedly a severe penalty. It is also a symbolic penalty. The primary effect of a forfeiture order is plainly punitive and for that reason it also operates as a general and personal deterrent.
45. The Forfeiture Act imposes the penalty of forfeiture on a conviction for the confiscation offence. It is not a penalty imposed on the qualifying offence. The preceding, or subsequent, commission of qualifying offences is a necessary condition for the making of the forfeiture order but it does not follow that the forfeiture is an additional punishment for the commission of the qualifying offences. The forfeiture order can only be made upon the offender’s conviction for the confiscation offence and it is with respect to that offence that forfeiture is imposed as a penalty. It is a well established sentencing principle that, all other things being equal, an offender with an antecedent criminal history, will receive a more severe penalty for a particular offence, than a first offender. The greater penalty is not an additional punishment for the other offences but reflects the heightened need for personal deterrence. So too for forfeiture imposed under the Forfeiture Act, the commission of the qualifying offences is a reason for making the forfeiture order, but it is made on conviction of the subsequently committed confiscation offence. The distinction is subtle, but is one of substance and not just semantics. Accordingly, insofar as the Forfeiture Act provides for a forfeiture order to be made on conviction of the confiscating offence by reason of the prior commission of qualifying offences, it does not impose a second punishment for commission of the latter. Indeed, the qualifying offences may have been merely expiated (see Appendix, Line A).
46. On the other hand, double punishment will often be imposed when a forfeiture order is made on the basis of offences committed in the ten years following the commission of the confiscation offence. An order for forfeiture made on a supervenient application brought by the prosecution some time after conviction and sentence for a prescribed offence is, in form and substance, double punishment. In the ordinary course, the sentence which is imposed by a court upon conviction of a prescribed offence will be framed in a way which satisfies the punitive and deterrent purposes of sentencing on the assumption that there will be no additional penalty by way of forfeiture. A supervenient application founded on the subsequent commission of a qualifying offence, or offences, or the subsequent prescription of offences of the kind previously committed, in form and in substance, requires the Court to impose an additional penalty.
47. However, the very projection of the qualifying period into the future clearly shows that Parliament intended to abrogate the rule against double punishment, because in the ordinary course a defendant will have been sentenced for the confiscation offence well before qualifying offences, committed up to a decade later, are expiated or prosecuted.
48. For the above reasons I hold that an offence will fall within the terms of s 11(a)(ii) and s 12(1)(a)(ii) and (iii) if an offence of that kind is prescribed at the time the application is made even if it was not a prescribed offence at the time it was committed.

Further observations on Pt 3

49. It is necessary to note some other features of the scheme enacted by Pt 3 of the Forfeiture Act before turning to the appellant’s constitutional ground.
50. As observed in [19] the operation of the Forfeiture Act which allows an application for forfeiture to be made on a confiscation offence after the commission of qualifying offences up to a decade later, precludes any implied obligation on the prosecution to make the application contemporaneously with the prosecution of the confiscating offence. It follows that even if the qualifying offences preceded the confiscation offence, the prosecution might, in its discretion, delay bringing an application for many years, and, as a result, subject a future acquired vehicle to forfeiture. The delay in bringing the application may lead to arbitrary results but, for reasons which are discussed below, the available legal mechanisms to control the prosecution discretion are likely to be largely ineffective.
51. There is a difficult question of construction as to the counting of qualifying offences which should be mentioned. The question is whether the same qualifying offence can be counted more than once. If, for example, a confiscation offence is committed, and a vehicle forfeited because of the earlier commission of the requisite qualifying offence or offences, is an offender who is subsequently prosecuted for another prescribed offence, liable to further forfeiture on that offence on the basis of the commission of qualifying offences which comprise only, or include, those qualifying offences which grounded the earlier forfeiture (see Appendix, Line E)? The plain words of ss 11 and 12 of the Forfeiture Act allow such a construction and it is arguable that the statutory policy evinced by the Forfeiture Act also favours forfeiture of a further vehicle on each occasion a person persists in offending after amassing the necessary qualifying offences. If that is so, the great discretionary power which the prosecution holds over a defendant’s property is emphasised. It is difficult to see how that construction can be resisted.
52. There is a related question which also exposes the power which inheres in the prosecutorial discretion. The projection of the qualifying period into the future which was effected by the Amendment Act means that an offender who is successfully prosecuted for three prescribed offences, A, B and C, (see Appendix, Line F) may be liable to forfeiture of three different vehicles as follows:

(1) Forfeiture of a vehicle on the conviction for offence A having previously committed offences B and C which operate as qualifying offences;
(2) Forfeiture on the conviction for offence B having previously committed offence C and, subsequently, having committed offence A which operate as qualifying offences;
(3) Forfeiture on the conviction for offence C having subsequently committed offences A and B which operate as qualifying offences.

53. Even if on a proper construction of the Forfeiture Act only one forfeiture can be ordered in the circumstances just postulated, the breadth of the discretion is obvious enough. If, for example, offence C was committed in another person’s car, with that person’s knowledge, that vehicle might be the object of the forfeiture application, if the prosecution saw fit, even though the offender had committed offences A and B in his own car. It is difficult to see any basis on which the Court could interfere with the prosecutional discretion to proceed in that way. On such an application the Court would be bound on the direction of the prosecution to exercise judicial power to impose a penalty on a person it had not convicted of an offence. The selection of C’s car, instead of the offender’s, may have some rational policy basis. The Court could not refuse the prosecution’s application if it took a different view. The extent to which a court can review the decision of the prosecution to bring an application for forfeiture is considered further below.
54. The effect of my construction of Pt 3 of the Forfeiture Act can be summarised as follows. Qualifying offences may be committed before or after the commission of the confiscation offence and need not have been offences of a prescribed kind at the time of their commission, or the commission of the confiscation offence. It follows that an offender may become liable to the forfeiture of his or her vehicle even though, immediately before the commission of the confiscation offence, he or she could not have known that forfeiture might become an additional consequence or penalty of the commission of the confiscation offence by reason of the subsequent prescription of the offence of a kind he or she had previously committed (see Appendix, Line D).
55. An offender may suffer a forfeiture order in respect of a conviction for a confiscation offence many years after proceedings for that offence have been disposed of, either because of the subsequent prescription of the offences of a kind already committed (see Appendix, Line D), or because of the subsequent commission of an offence of the prescribed kind (see Appendix, Line C).
56. The applications can be made at any time in the discretion of the prosecution and at times when vehicles other than the vehicle used in the commission of the offence, are owned by the offender. The prosecution may select as the object of the application any of a number of vehicles owned by the offender, or the vehicle of another person used in the commission of the offence.
57. Importantly, by reason of the foregoing, the application may result in the substantial addition to a penalty imposed by a court on the confiscation offence at a time when the court could not have contemplated, and therefore could not have allowed for,[14] the possible later forfeiture of the defendant’s vehicle. In this respect, the contrast between s 12 and s 9 of the Forfeiture Act’s is stark. Moreover, the additional penalty which is imposed by s 9 is fixed by statute and not widely variable depending on how and when the prosecution exercises its discretion.

Judicial control ineffective

58. In Barton v The Queen,[15] the High Court held that a decision of the Attorney-General to present an ex officio Information under s 5 of the Australian Courts Act 1828 (the ACA) was not examinable by the Courts. Gibbs ACJ and Mason J contrasted the power to lay an Information with “an ordinary administrative discretion conferred by statute.”[16] Section 5 of the ACA provided that all crimes shall be prosecuted before juries “by information in the name of his Majesty’s Attorney-General”.[17] The provision, by implication, conferred a bare power on the Attorney to lay an Information and prosecute it. Gibbs ACJ and Mason J noted that the provision did not limit or restrict the Attorney-General’s consideration of the particular case and for that reason made “his decision immune from judicial review”.[18] Of course the history of the Attorney-General’s power to lay an ex officio Information was an important consideration in Barton. However, so too was the consideration that it was undesirable that a court “should become too closely involved in the question whether a prosecution should be commenced”.[19]
59. Importantly the holding in Barton that the Attorney’s decision was not reviewable was balanced by the High Court’s recognition of the inherent judicial power to prevent an abuse of process by staying proceedings in cases in which it was necessary to ensure a fair trial.[20] A trial is unfair if it is brought for an improper purpose,[21] or if the Court’s capacity to evaluate the evidence has been seriously compromised.[22] Proceedings which are foredoomed to fail are also an abuse of process.[23]
60. Section 12 of the Forfeiture Act confers, by implication, a bare power to bring an application. It does not, in terms, cast any obligation on, or limit the discretion of, the prosecution to bring the application. Rather, it speaks in mandatory terms to the Court, requiring it to make an order for forfeiture “on the application of the prosecution”. The bare power impliedly granted to the prosecution to bring an application is not conditioned on the actual existence of any objective facts or on the formation of any opinion. The way in which the power is granted largely immunises it from review in a similar way to which the power considered in Barton was immune. The review by a court of the exercise of the very power to initiate judicial proceedings is problematic in a common law system. Moreover, and unlike the power to lay an ex officio Information in Barton, it is difficult to see how the power might be restrained or controlled by the Courts power to prevent the abuse of its procedures. The very purpose of Pt 3 of the Forfeiture Act is to secure orders for the forfeiture of vehicles used or owned by an offender, or of another person who knowingly allows an offender the use of his or her vehicle. Forfeiture will invariably be the purpose for which an application is made.
61. The Forfeiture Act gives no indication of any considerations which should govern the selection of the vehicle to be forfeited where there is a choice to be made between a vehicle used in the commission of the offence which may or may not be the offender’s vehicle, or a vehicle, which may be one of a number, owned by the offender. Moreover, the vehicles owned by an offender might change over time and, importantly, change in value over time. Even though delay in bringing an application may result in the forfeiture of a much more valuable car than the one used in the commission of the offence, it is difficult to imagine circumstances in which it would be an abuse of the process of the Court to bring it. True it is that an application brought for a collateral purpose will be an abuse of process but there is a distinction between the subjective motive of an applicant and the purpose of an application.[24]
62. The fundamental difficulty in applying abuse of process principles to applications for forfeiture is the very width of the power to bring a forfeiture application and the truly ministerial function of the Court before it is brought.
63. Judicial review of a decision to bring a forfeiture application on the Wednesbury[25] unreasonable ground would also face substantial obstacles. The policy considerations for bringing an application are not spelt out by the Forfeiture Act. So wide are the policy considerations which have been left at large that rarely could a particular application be characterised as irrational.
64. Indeed, so wide is the power given to the prosecution by Pt 3 of the Forfeiture Act that it may be doubted that it could be exercised judicially even if it were conferred on the Court itself. It may be asked rhetorically, on what basis, other than the subjective policy position of the presiding judicial officer, could a court decide that a motor vehicle used to commit the offence should be forfeited rather than another vehicle owned by the defendant? Nor is there any statutory guidance on how to choose between a cheap vehicle which might have been used to commit the confiscation offence and another expensive vehicle owned by the offender. The legislation is also silent on whether the owner who knowingly allows the vehicle to be used or the principal offender should primarily be liable to forfeiture. A body of principles could theoretically be formulated to govern the selection of the vehicle for forfeiture. The prosecution authorities who are empowered to bring applications under the Forfeiture Act may well do so. However, the choices to be made are essentially legislative and administrative in nature and not judicial. It is just not possible for the judicial branch to review the prosecutorial discretion, and condemn as an abuse, policy choices which have some rational basis merely because the judicial officer hearing the application disagrees with the policy.
65. Conversely, such is the limited adjudicative function of the Courts that it is difficult to envisage circumstances in which forensic unfairness would be caused to the defendant by the prosecution’s selection of one vehicle over another. It is unlikely that forfeiture applications could be stayed as an abuse of process on that ground.

The judicial integrity principle

66. It is a long accepted principle of Anglo Australian law that penalties for criminal offences should be judicially imposed. That principle is, at a Commonwealth level, constitutionally entrenched.[26] On the other hand the executive governments of the States probably retain a power, under appropriate legislative authority, to impose penalties.[27] However, it is quite another thing for a State legislature to empower a State executive agency to impose, in its discretion, and on an ad hoc basis, an additional penalty after a court has finally judicially disposed of a prosecution. It is also a very different matter to confer a power on the prosecution to order a court to apply and enforce a penalty in addition to the sentence it has previously imposed.
67. The Constitution protects the integrity of the courts of the States by what I will call the judicial integrity implication. The judicial integrity implication was first identified and applied in Kable v Director of Public Prosecutions (NSW).[28] The judicial integrity implication proscribes the legislative conscription of the machinery of the judicial branch of State governments to enforce, as a proxy for the executive, its decisions.
68. In South Australia v Totani[29] (Totani) the Serious and Organised Crime (Control) Act 2008 (SA) (SOCC Act) was held to be invalid because it imposed functions on the courts of this State which were incompatible with the judicial integrity implication. In that case, French CJ identified “independence, impartiality, fairness and adherence to the open-court principle”[30] as the defining characteristics of courts, which were assumed, and therefore required, by Ch III of the Constitution. French CJ gave the following five point explication of the Kable principle:[31]
    1. A State legislature cannot confer upon a court of a State a function which substantially impairs its institutional integrity and which is therefore incompatible with its role as a repository of federal jurisdiction.
    2. State legislation impairs the institutional integrity of a court if it confers upon it a function which is repugnant to or incompatible with the exercise of the judicial power of the Commonwealth.
    3. The institutional integrity of a court requires both the reality and appearance of independence and impartiality.
    4. The principles underlying the majority judgments in Kable and further expounded in the decisions of this Court which have followed after Kable do not constitute a codification of the limits of State legislative power with respect to State courts. Each case in which the Kable doctrine is invoked will require consideration of the impugned legislation because: “the critical notions of repugnancy and incompatibility are insusceptible of further definition in terms which necessarily dictate future outcomes.” For legislators this may require a prudential approach to the enactment of laws directing courts on how judicial power is to be exercised, particularly in areas central to the judicial function such as the provision of procedural fairness and the conduct of proceedings in open court. It may also require a prudential approach to the enactment of laws authorising the executive government or its authorities effectively to dictate the process or outcome of judicial proceedings.
    5. The risk of a finding that a law is inconsistent with the limitations imposed by Ch III, protective of the institutional integrity of the courts, is particularly significant where the law impairs the reality or appearance of the decisional independence of the court.

French CJ continued:[32]

... the true question is not whether a court of the State, subject to impugned legislation, can still be called a court of the State not whether it bears a sufficient relation to a court of the State. The question indicated by the use of the term “integrity” is whether the court is required or empowered by the impugned legislation to do something which is substantially inconsistent or incompatible with the continuing subsistence, in every aspect of its judicial role, of its defining characteristics as a court.

The reasons that the SOCC Act impermissibly corrupted the institutional integrity of the Magistrates Court are found in the concluding paragraphs of the reasons of French CJ.[33] In summary, they are:
(a) The Magistrates Court does not make, and is indeed unaware of, the factual findings leading to the making of the declaration which enliven its powers.[34]
(b) The orders which the Court makes are a serious imposition upon the personal liberties of the defendants.[35]

69. French CJ held that the requirement of the SOCC Act that the Magistrates Court make a factual finding that the defendant was a member of a validly declared organisation, and the Magistrates Court’s duty to consider, in its discretion, whether to impose any additional constraint on the controlled person, were not sufficient to make its function a genuinely adjudicative one.[36] In this respect, French CJ noted that findings of fact as to membership might be made on the basis of properly classified criminal intelligence which was not disclosed to a defendant.[37] French CJ also observed that the practical scope for challenging the Attorney’s declaration by judicial review was limited by the absence of reasons and because it was unlikely that the materials on which the declaration was based would be disclosed.[38]
70. French CJ concluded that the executive act of declaration, and the findings of fact behind it, were the dominant determinant “for all practical purposes” of the outcome of the control order application. In the premises, the SOCC Act was a recruitment of the Magistrates Court to serve an essentially executive process. His Honour held that it gave the neutral colour of a judicial decision to what was, for the most part, the result of executive action.[39] The Magistrates Court thereby lost the essential judicial characteristic of the appearance of independence and impartiality.[40]
71. In Totani, Gummow J recognised the difficulty in delineating, with any exactitude, the reach of the judicial integrity implication. Rather, it is necessary to make an evaluative judgment based on the “predominant characteristics” of the legislation. The pith and substance of the law, not just its form, must be considered.[41] The judgment calls for a comparison of the function conferred by the impugned legislation with the historical functions and processes of courts.
72. Gummow J acknowledged that the exercise of the power to impose a control order under the SOCC Act was subject to the Magistrates Court being satisfied that the defendant was a member of a declared organisation and that the Magistrates Court had a discretion to impose further restrictions. Nonetheless, Gummow J described the Attorney’s declaration as “the vital circumstance and essential foundation for the making by the Magistrates Court of the control order”.[42]
73. The essential reasoning of Crennan and Bell JJ in Totani appears in the following passages:[43]

Making the control order does not involve any finding of criminal guilt. The power to make a control order is not conditioned on any assessment by the Court of whether, by reason of the defendant’s status or by reason of past or threatened conduct of the defendant (whether criminal or in breach of the peace), the defendant poses a risk to public safety and order. The power to make a control order is also not conditioned on any satisfaction of the Court as to whether the defendant engages in or has engaged in serious criminal activity (cf s 14(2)) or whether the defendant’s past or threatened conduct poses a risk that the defendant will engage in serious criminal activity or whether, and to what extent, the making of a control order may substantially assist in preventing the defendant from engaging in serious criminal activity. In these respects the power to make a control order can be distinguished from the power to make a control order of the type considered in Thomas v Mowbray.

After referring to the provisions of the SOCC Act which allocated exclusive responsibility for declaring an organisation on the Attorney and which required the Magistrates Court to impose a control order on proof of membership without any finding as to the criminal activity of the members of the organisation, their Honours continued:[44]

These considerations show that, in conferring a power on the Court to make control orders under s 14(1), the State requires the Court to exercise judicial power to make a control order after undertaking an adjudicative process that is so confined, and so dependent on the Executive’s determination in the declaration, that it departs impermissibly from the ordinary judicial processes of an independent and impartial tribunal. Specifically, s 14(1) operates to draw the Court into the implementation of the legislative policy expressed in the objects of the Act. The conditions upon which the Court must make a control order require the Court to give effect to the determination of the Executive in the declaration (which implements the legislative policy), without undertaking any independent curial determination, or adjudication, of the claim or premise of an application for a control order by the Commissioner of Police, that a particular defendant poses risks in terms of the objects of the Act. This has the effect of rendering the Court an instrument of the Executive, which undermines its independence. Section 14(1) requires the Magistrates Court of South Australia to act in a way which is incompatible with its constitutional position and the proper discharge of federal judicial responsibilities, and with its institutional integrity.

74. Kiefel J distinguished the Queensland legislation in Fardon[45] and the Commonwealth legislation considered in Thomas v Mowbray[46] from the legislation challenged in Totani. Her Honour observed that the legislation in each of the earlier cases was compatible with the judicial integrity implication because it allowed the courts a wide and substantial adjudicative function. Kiefel J observed that, in contrast, under the SOCC Act the Magistrates Court had no real capacity to evaluate the controls which it was required to impose by reference to their effectiveness in achieving the SOCC Act’s purpose of suppressing organised crime:[47]

It is possible that a control order made against a member of a declared organisation might assist in the achievement of this purpose, but this does not mean that it is correct to characterise the Court’s role and the processes it undertakes by reference to that purpose. The Court’s determinations under s 14(1) have nothing to say about whether the purpose might be achieved in a particular case. No regard may be had by the Court to a defendant’s history or the prospect that he or she may have been, or might in the future be, involved in criminal activities. Its order is not explicable on this basis. It can only be understood to proceed upon some unstated assumption concerning all persons who are identified by the Attorney-General’s declaration and by reference to the obligation cast upon the Court to make an order with respect to a person so identified.

Kiefel J concluded:[48]

In Fardon v Attorney-General (Qld), Gummow J referred to a statement in Mistretta v United States as relevant to the principle in Kable. It is apposite to this case. It is that the reputation of the judicial branch may not be borrowed by the legislative and executive branches “to cloak their work in the neutral colors of judicial action”.
It is to be inferred from the Act that it is the aim of the Executive that all persons identified by the declaration made by the Attorney-General are to have their liberty to associate restricted. This is the end which the declaration serves but to which it cannot give effect. The Court is directed to bring this result about. Its action, in making the order, gives the appearance of its participation in the pursuit of the objects of the Act. Properly understood, however, the making of the order serves to disguise an unstated premise and the lack of any illegality attaching to membership of a declared organisation.
It follows that s 14(1) involves the enlistment of the Court to give effect to legislative and executive policy. It impinges upon the independence of the Court and thereby undermines its institutional integrity. Section 14(1) is invalid.

75. In my respectful opinion, the above cited passages show that at the core of the judicial integrity implication lies a requirement that there be a rational connection between the adjudicative function invested in the court and the powers it must, or may, exercise. Legislation conferring a jurisdiction or power on a court will only be compatible with the judicial integrity implication if the orders which the court must, or may, make have a rational connection to findings of fact, and judgments on those facts, which the court itself has made.
76. Considered objectively, legislation which requires courts to act in a particular way could never cause a reasonable person to doubt the integrity of the individual judicial officers who apply the legislation in accordance with their oath of fidelity to the law. The concern of the judicial integrity implication is institutional not personal. The exercise of judicial power is ultimately the foundation of, or sanction for, any valid exercise of the coercive force of the State. It is an inherent attribute of the judicial systems of democratic societies based on the rule of law, and the integrated system of State and Commonwealth courts established by the Constitution in particular, that judicial orders reflect the courts adjudications of the substantial merits of controversies. Authorising the executive arm of government to dictate to the judicial arm of government orders which the courts must make for the effective implementation of executive policy compromises the fundamental conception of the judicial function.
77. I acknowledge that from the perspective of a legal positivist the controversy before a court is defined by the legal rules it must apply, and that from that perspective, the Court adjudicates on the substantial merits of the controversy no matter how narrow, or practically inconsequential, the adjudication with which it is entrusted is in the scheme of the statute as a whole. However, the reasoning in Totani shows that the judicial integrity implication requires an examination of the broader statutory scheme and that a judgment must be made about the substance of the court’s function in that scheme.
78. Questions of incompatibility with the judicial integrity implication loom larger when the legislative scheme, instead of proscribing specified conduct and providing for penalties or other orders in the case of breach, authorises, in prescribed circumstances, executive and judicial action to derogate from the otherwise lawful freedom of action, or property rights, of individuals.[49] It is also one thing for Parliament to provide a statutorily prescribed mandatory penalty for criminal conduct and quite another for it to allow the executive to nominate in its application to the Court an additional penalty of its choosing which a court must impose to depend on the selection. In the former case, the acceptance of the sovereignty of Parliament and the universality of the proscription will usually not impinge on the institutional role of the courts under the Constitution. However, when judicial orders which impinge on accepted rights and liberties are made, for all practical purposes, at the dictate of the executive, an essential attribute of courts and the very function of the judicial branch of government is compromised.
79. It is a core function of the judicial branch to rule on the legality of executive action. That function is entrenched in s 75(v) of the Constitution at a Commonwealth level and by the constitutional entrenchment of the Supreme Courts of the States, and their judicial review jurisdiction. The blind implementation of executive action is not compatible with the judicial charter to ensure that the executive branch adheres to the Constitution and laws made under it.[50]
80. The following features of the Forfeiture Act bring into question its compatibility with the judicial integrity implication:
    1. The penalty of forfeiture must, and can only, be imposed by a court on the application of the prosecution.
    2. There is no, or at least only very limited, capacity for judicial control of the prosecution’s discretion to make an application.
    3. A penalty forfeiture order must be made even in circumstances in which it materially interferes with the penalty already imposed for the confiscating offence in the sense that the earlier penalty was fixed in ignorance of the possibility of a later forfeiture.
    4. The forfeiture order will often be the most substantial part of the penalty imposed for the confiscating offence.
    5. The severity of the penalty imposed by way of forfeiture lies exclusively within the control of the prosecution which may select the vehicle to be forfeited from a number of possible vehicles.
    6. The prosecution’s forfeiture application is, in effect, an executive order to vary a judicial sentencing order.
    7. The discretion allowed to the prosecution involves disputable policy determinations which are likely to embroil orders, over which the court has no control, in controversy of a broadly political kind.
    8. The forfeiture orders which the court must make may be founded on the wholly retrospective imposition of a liability to forfeiture by the executive government’s prescription of kinds of offences after the confiscation offence and the qualifying offences have been committed.
81. The scheme adopted by the Forfeiture Act has four core elements which together are incompatible with the judicial integrity implication. First, it disguises an executive decision to extract a forfeiture as an application to a court and by so doing largely immunises the decision from judicial review. Secondly, the Forfeiture Act denies that court any substantive judicial function with respect to that application by mandating the order it must make so as to ensure that the executive’s decision is given effect. Thirdly, it secures for an essentially executive order the immunity from collateral attack which only judicial orders enjoy. Fourthly, the object of the scheme is to require courts to impose a penalty selected by the prosecution in addition to the penalty they have already imposed in the exercise of the sentencing power.
82. In short, the judicial power to penalise contraventions of prescribed offences when the necessary qualifying offences have been committed, has, to a substantial extent, been placed under the control of the prosecution. The provisions of Pt 3 of the Forfeiture Act are inconsistent with the judicial integrity implication.
83. I acknowledge the dispensing power conferred by s 13 of the Forfeiture Act. However the scope of the power is limited, in the case of defendants, to cases of “severe financial or physical hardship”. The forfeiture of a motor vehicle would cause substantial financial hardship to most defendants. Something much more than the hardship which forfeiture would ordinarily cause must be shown. In the generality of cases no dispensation can be given. In any event the judicial power to exempt a defendant in a particular case on hardship grounds does not meet the constitutional objection to the nature of the primary power and the manner of its exercise.
84. I have considered whether the Forfeiture Act might be read down to bring it into conformity with the Constitution by limiting its application to the vehicle used in the commission of the offence. That limitation would reduce the width of the prosecution discretion and remove the risk of the capricious selection of one vehicle over another. However, it would not ameliorate the other objectionable features I have identified and in particular the power of the executive to dictate to a court a variation of a judicially imposed penalty. More importantly, it would substantially change the operation of the Forfeiture Act, particularly in those cases in which the confiscation offence is committed in a vehicle which is not owned by the defendant.
85. For the above reasons I hold that s 12(1)(a)(iii) of the Forfeiture Act is invalid.

Conclusion

86. I allow the appeal. I set aside the order of forfeiture.

Appendix

Schematic Operation of Forfeiture Act
Legend
SOA = Pt 14A Summary Offences Act

Forfeiture Act = Criminal Law (Clamping Impounding Forfeiture of Vehicles) Act 2007

P	=	Prescription of offences of a kind committed as qualifying offences
Q1 or Q2	=	First or second qualifying offence committed
C(Q1)(Q2)	=	Conviction for qualifying offence identified in parenthesis
E(Q1)	=	Expiation of qualifying offence identified in parenthesis
CO	=	Commission confiscation offence – assumes prior prescription of this offence
C(CO)	=	Conviction confiscation offence
A(CO)	=	Application for forfeiture on conviction of confiscation offence identified in parenthesis

Tables assume confiscation offence different from qualifying offences and prescribed prior to its commission.
2/5/00
Commence 5 year qualifying period Pt14A SOA
16/12/97 Commence 10 year qualifying period Forfeiture Act

16/12/07
Commencement
Forfeiture Act
2/5/05

2/5/05
Part 14A
SOA

End 10 year qualification period Forfeiture Act

A

	Q1	C(Q1)	Q 2 E(Q2)	P CO C(CO)
				A(CO)

B

				P CO C(CO) Q E(Q1) Q 2 E(Q2) A
				(CO)

C

	Q 1 C(Q1)			CO C(CO) P Q 2 E(Q2) A(CO)

D

		Q 1 C(Q1)	Q 2 C(Q2)	CO C(CO) P A(CO)

E

		Q 1 C(Q1)	Q 2 C(Q2)	P CO1 C(CO1) A CO2 C(CO2) A
				(CO1) (CO2)

F

				Q 1 C(Q1) Q 2 C(Q2) CO C A A A
				(CO) (CO) (Q1) (Q2)

---

[1] Legislative Counsel Debates, 28 October 2009, p 3811 (Hon. P Holloway).
[2] [2002] NSWCA 260 at [22]- [24]. See also Maroondah City Council v Fletcher [2009] VSCA 250; Palgo Holdings Pty Ltd v Gowans [2005] HCA 28; (2005) 221 CLR 249 at 255 – 260.
[3] The conviction on which the forfeiture application in this case was brought was for a PCA offence committed after the prescription of PCA offences pursuant to the Forfeiture Act.
[4] [1957] HCA 7; (1957) 96 CLR 261 at 267.
[5] [1960] HCA 80; (1960) 105 CLR 188.
[6] [1960] HCA 80; (1960) 105 CLR 188 at 194.
[7] Robertson v City of Nunawading [1973] VicRp 81; [1973] VR 819 at 824; Coleman v Shell Co of Australia Ltd (1943) 45 SR (NSW) 27 at 31; Re A Solicitor’s Clerk [1957] 1 WLR 1219; La Macchia v Minister for Primary Industry (1986) 72 ALR 23.
[8] Maxwell On the Interpretation of Statutes 6th Ed, 1920 p 381 referring to 2 Coke's Institutes p 292.
[9] Al-Kateb v Godwin [2004] HCA 37; (2004) 219 CLR 562 at 577 [20] per Gleeson CJ.
[10] George Hudson Ltd v Australian Timber Workers Union [1923] HCA 38; (1923) 32 CLR 413 at 434.
[11] Section 24(3) of the Forfeiture Act provides that the regulations may be of “general application or vary in their application according to prescribed factors.” Several sections of the Forfeiture Act contemplate a regulation of that nature (ss 9(3) and 20(8)). I doubt that it would be a valid exercise of the regulation making power to prescribe offences for the purposes of s 3 of the Forfeiture Act by including in the regulation a condition that the offence be committed only after it has been prescribed. Even though the appellant does not contend that the power to prescribe by regulation is limited to prescribing offences of a particular kind which are committed after the regulation is made, the appellant’s contention that the words “prior to its commission” should be read after the word “prescribed” in s 3 of the Forfeiture Act, has a similar effect.
[12] Morrisey v Bright [1978] 2 NSWLR 1 at 9-10 per Mahoney JA.
[13] Not until the application for forfeiture is made can it be known which vehicle, for example, will be subject to the order for forfeiture.
[14] Section 4(2) of the Forfeiture Act requires a court to “have regard to any exercise of powers under” the Forfeiture Act. The subsection on its terms refers to a past exercise of powers – the Court can not meaningfully have regard to a possible future exercise of power. The subsection is directed at the exercise of clamping and impounding powers under Pt 2.
[15] [1980] HCA 48; (1980) 147 CLR 75.
[16] [1980] HCA 48; (1980) 147 CLR 75 at 94.
[17] [1980] HCA 48; (1980) 147 CLR 75 at 88.
[18] [1980] HCA 48; (1980) 147 CLR 75 at 94.
[19] [1980] HCA 48; (1980) 147 CLR 75 at 95.
[20] Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509; Barton v The Queen [1980] HCA 48; (1980) 147 CLR 75 at 95 – 96.
[21] Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509 at 529, 648 – 649, 444.
[22] Undue delay may, unusually, so substantially compromise the defendant’s ability to test evidence that sound judicial evaluation is not possible in a stay for an abuse of process: Jago v District Court (NSW) [1989] HCA 46; (1989) 168 CLR 23. The loss or destruction of evidence will only rarely result in a stay: Police v Sherlock [2009] SASC 64; (2009) 103 SASR 147.
[23] Walton v Gardiner (1993) 177 CLR 378.
[24] Dowling v Colonial Mutual Life Assurance Society Ltd [1915] HCA 56; (1915) 20 CLR 509; Rozenbes v Kronhill [1956] HCA 65; (1956) 95 CLR 407; Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509.
[25] Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223.
[26] Fardon v Attorney-General (Qld) [2004] HCA 46; (2004) 223 CLR 575.
[27] Kable v Director of Public Prosecutions (NSW) [1996] HCA 24; (1996) 189 CLR 51; Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 per McHugh J.
[28] [1996] HCA 24; (1996) 189 CLR 51.
[29] [2010] HCA 39; (2010) 242 CLR 1.
[30] [2010] HCA 39; (2010) 242 CLR 1 at [62].
[31] [2010] HCA 39; (2010) 242 CLR 1 at [69].
[32] [2010] HCA 39; (2010) 242 CLR 1 at [70].
[33] [2010] HCA 39; (2010) 242 CLR 1 at [75]- [83].
[34] [2010] HCA 39; (2010) 242 CLR 1 at [75].
[35] [2010] HCA 39; (2010) 242 CLR 1 at [76].
[36] [2010] HCA 39; (2010) 242 CLR 1 at [77]- [78].
[37] [2010] HCA 39; (2010) 242 CLR 1 at [82].
[38] [2010] HCA 39; (2010) 242 CLR 1 at [27].
[39] [2010] HCA 39; (2010) 242 CLR 1 at [83].
[40] [2010] HCA 39; (2010) 242 CLR 1 at [83].
[41] [2010] HCA 39; (2010) 242 CLR 1 at [134].
[42] [2010] HCA 39; (2010) 242 CLR 1 at [142].
[43] [2010] HCA 39; (2010) 242 CLR 1 at [434].
[44] [2010] HCA 39; (2010) 242 CLR 1 at [436].
[45] Fardon v Attorney-General (Qld) [2004] HCA 46; (2004) 223 CLR 575.
[46] [2007] HCA 33; (2007) 233 CLR 307.
[47] South Australia v Totani [2010] HCA 39; (2010) 242 CLR 1 at [478].
[48] [2010] HCA 39; (2010) 242 CLR 1 at [479]- [481].
[49] South Australia v Totani [2010] HCA 39; (2010) 242 CLR 1 at [220]- [230] per Hayne J.
[50] Kirk v Industrial Relations Commission of New South Wales (2010) 239 CLR 531.

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