Ninnal v Minister for Racing Gaming & Licensing [2001] NTSC 68

[2] There has been correspondence directed by the solicitors for the plaintiff to the Chairperson and the Minister and replies from them which have given rise to disagreement as to the construction of s 101 going as to the respective roles of the Chairperson and Minister. It is not necessary to go into the detail of the correspondence.**

[3] For the purposes of these proceedings, s 101 may be conveniently broken up into its constituent parts in this way:

1. All things forfeited under Part VIII of the Act may be destroyed or otherwise disposed of

2. in such manner as the Chairperson thinks fit, including, with the approval of the Minister,

   • (a) where in a case of a vehicle, vessel or aircraft ("the vehicle")
   • (b) the Minister is of the opinion that the person was not
     • (i) knowingly involved in the act constituting the offence as a result of which it was forfeited, and
     • (ii) had no reason to suspect it might be used in connection with such an offence

3. by selling or otherwise returning it to a person who immediately before the forfeiture had a legal or equitable interest in the vehicle ("the owner")

[4] I consider that the construction of the section is reasonably clear, but just how a person claiming a qualifying interest in the thing forfeited is to go about enlivening s 101and how the Minister and Chairperson are to act in the discharge of their respective functions is not so clear. Issues related to those latter questions do not fall for decision here. The parties are agreed that whatever be the proper construction of s 101, rules of procedural fairness come into play. The contents of the rules in each case will depend upon the circumstances and nothing that I say in the course of these reasons should be taken as indicating any direction in that regard.

[5] The words following "as the Chairperson thinks fit" were added to the section by amendment in 1988 following upon the decision of Nader J in R v The Chairman of the Liquor Commission of the Northern Territory, Ex Parte Djana (1984) 73 FLR 180. His Honour held that given the scheme of the then legislation the parliament did not intend to create an obligation on the part of the Chairman to consider an application by the former owner of the vehicle to have the vehicle returned to him, given other statutory means by which that objective could be accomplished.

[6] At the time of the amendment of s 101 there was inserted after s 100 a new section, s 100A, which provided that the owner or other person who, but for a vehicle being seized would be entitled to its possession, may before trial of a person for the alleged offence in connection with which it was seized, apply to the Minister for its release to the owner or that other person. It was there enacted that the Minister may, in his absolute discretion, after considering the recommendations of the Chairperson and being satisfied that the applicant was not knowingly involved in the act constituting the alleged offence in connection with which it was seized and had no reason to suspect that the vehicle might be used in connection with the commission of the alleged offence, release it to the applicant on conditions relating to its production as evidence.

[7] The distinction in language between s 100A and s 101 is obvious, but the purpose lying behind it is not clear. It appears that before trial and statutory forfeiture, the Minister, after considering the recommendations of the Chairperson and being satisfied as required, had a discretion to release the vehicle to the applicant. On the other hand after forfeiture, the thing forfeited then being the property of the Territory, the power of selling or otherwise returning the vehicle to the pre-forfeiture owner vests in the Chairperson subject to that officer first obtaining the approval of the Minister.

[8] Section 100A expressly provides for application to be made to the Minister, whereas s 101 is silent on the point. However, I do not consider that any assistance is gained in the construction of s 101 by taking into account the provision of s 100A other than to note the differences. They each provide for a distinct decision making process and attendant power of disposal.

[9] Under s 101 it is only the Chairperson who has the power to destroy or otherwise dispose of a forfeited vehicle, and that, as he or she thinks fit. In my opinion it is plain that the decision to sell or otherwise return a forfeited vehicle to the owner after it has been forfeited falls within the discretion of the Chairperson and can only be made by the Chairperson. The implementation of the decision, however, is conditioned upon the Chairperson first obtaining the approval of the Minister. The Ministerial approval is conditioned upon the Minister forming the requisite opinions going to the state of mind of the owner.

[10] The defendants submit that in this context "approval" bears the meaning of "to confirm or sanction officially; ratify", Macquarie Dictionary 3rd Edition or as defined in Blacks Law Dictionary 6th Edition, "the act of confirming, ratifying, assenting, sanctioning, or consenting to some act or thing done by another". I accept that the word bears that meaning in the context in which it is used here.

[11] The plaintiff submits that the only person who can form the requisite opinion is the Minister. I agree, but not that the decision to sell or otherwise dispose of the vehicle to the owner falls to the Minister. That function belongs to the Chairperson.

[12] The Court has been provided with the Second Reading Speech of the Minister on the introduction of the amending legislation in 1988, but it does not take the matter any further, nor do any of the references to what was said by the then Minister in the course of debate upon the Bill.

[13] It is inherent in s 101 that the Chairperson had come to a decision that the vehicle should be sold or otherwise returned to the owner for it would only be in those circumstances that the approval of the Minister must be obtained. The opinion of the Chairperson on the question of the owner's state of mind is of no effect in the statutory scheme. In the ordinary course of public administration, however, it is not likely that the Chairperson would be precluded from gathering and presenting to the Minister material, including any representations from the owner, upon which the requisite opinion of the Minister could be formed. But the only opinion countenanced by the legislature is that of the Minister.

[14] Given the course which the argument before this Court followed and the agreement reached by the parties as to the questions to be resolved, I will hear counsel as to the orders which should be made in the light of these rulings.