Bell v Police – Motor Vehicle Forfeiture Legislation Invalid

Posted on November 17th, 2012.

The Supreme Court recently held that legislation requiring the forfeiture of motor vehicles is invalid. His Honour, Chief Justice Kourakis upheld the argument that:

…s 12(1)(a)(iii) of the Forfeiture Act (the Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Act 2007) is invalid because it requires the courts of this State to exercise powers, on the application of prosecution, which are incompatible with, and repugnant to, the exercise of judicial power under the Constitution.

It is understood that an appeal against the decision has now been lodged on behalf of Police. Currently some cases involving an application for forfeiture are being adjourned pending the outcome of the appeal to the Full Court of the Supreme Court.

Interestingly, prior to the judgment, it was reported in the SAPOL Annual Report for 2011-2012 that:

Police continued using powers under the Criminal Law(Clamping, Impounding and Forfeiture of Vehicles) Act 2007 to penalise hoon drivers. The Act allows police to seek the forfeiture of vehicles where the owner has been convicted of a forfeiture offence or other prescribed offences. Vehicles can be sold at auction, publicly crushed and disposed as scrap metal. For the reporting period, 7932 vehicles have been clamped or impounded, 26 vehicles sold by auction, 178 destroyed, and 6 vehicles publicly crushed.

>> BELL v POLICE [2012] SASC 188 (17 October 2012)

>> SAPOL Annual Report 2011-12

Addendum Note: It should be noted that since writing the above article, the South Australian Supreme Court (Full Court) overturned the decision of Chief Justice Kourakis. The Full Court decision can be viewed below:

 >> ATTORNEY-GENERAL FOR SA & ANOR v BELL [2013] SASCFC 88 (2 September 2013)

The information contained within this article is intended as a general overview and discussion of the subjects dealt with. The information provided here was accurate as of the day it was posted; however, the law may have changed since that date. This information is not intended to be, and should not be used as, a substitute for taking legal advice in any specific situation. Craig Fabbian and Fabbian Lawyers are not responsible for any actions taken or not taken on the basis of this information.