Archive for November, 2012

Interpretive Pedantry

Sun 25 Nov 2012 13:12:25 2 comments

My brain seems to be stuck in legal mode as a result of exams, and so a recent post by Sinclair Davidson at Catallaxy grabbed my interest. In the post he claims that its illegal to vote informally. In the post he uses the phrases “against the law” and “illegal” to describe informal voting but it’s not until I read his comments that it became clear that he believes informal voting constitutes a punishable offence against the act.section describe the process. The broader context of his opinion can be seen in this comment: “Compulsory voting is an abomination.” Davidson’s position on the legality of informal votes is at odds with what the AEC is reported as saying. It’s also different to my understanding that while the law obligated people to show up and fill out a ballot, it didn’t control how they do so.

Since it’s been a while since I’ve revised the principles of statutory interpretation, I figured now would be a good chance to do so. The practical barriers to enforcement make this something of a purely academic question, but one I found interesting enough. If anything, it should provide an illustration of the substantial complexity and uncertainty faced by those who draft and interpret legislation.I should probably prefix my analysis with the fact that I generally support compulsory voting and think everyone has at least a moral duty to society to participate in the democratic process. I also appreciate the desire to signal dissatisfaction with the options available, but I’m just not sure informal voting is the best way to resolve the issue. That said the merits of compulsory voting are beyond the scope of this post, so on to the legal pedantry.

The Sections of the Act

The obvious first step to determine the extent of the legal duty to vote is to examine the legislation. This analysis will be limited to elections for the house of representatives as there is no relevant differences in regards to the senate other than an increased complexity in the ballot and marking process. The duty to vote is established, as Davidson indicated, in section 245 of the Commonwealth Electoral Act 1918:

245 Compulsory voting

(1) It shall be the duty of every elector to vote at each election.

It’s clear that everyone enrolled to vote has a duty to vote. The content of this duty is not as clear. The act does not provide a specific definition for the word “vote”. In common use to “vote” can mean anything from filling out a secret ballot at an election, to raising a hand in a room, or simply calling out “aye” or “nay” at a gathering. I don’t think it’s possible to determinatively exclude informal votes from the meaning of “vote” solely based on how it is used in that section. So it is necessary to look further in order to establish the scope of the duty. Davidson makes the case that the section that covers how a person is to mark the ballot can be used to determine the content of the duty:

240 Marking of votes in House of Representatives election

(1) In a House of Representatives election a person shall mark his or her vote on the ballot paper by:

(a) writing the number 1 in the square opposite the name of the candidate for whom the person votes as his or her first preference; and

(b) writing the numbers 2, 3, 4 (and so on, as the case requires) in the squares opposite the names of all the remaining candidates so as to indicate the order of the person’s preference for them.

(2) The numbers referred to in paragraph (1)(b) are to be consecutive numbers, without the repetition of any number.

These two sections by themselves could be read to infer the duty extends to how an elector marks the ballot. There are some questions raised by the language used (or not used). Section 240 uses the phrase “shall mark his or her vote on the ballot paper”, not “shall vote by marking the ballot paper”. This suggests that the legislation might consider voting and marking as separate concepts, enabling the duty to be interpreted as excluding how the ballot is marked. Further section 245 refers to a duty “to vote” and not a duty “to vote as directed by section 240”. Conversely, the wording also includes a duty “to vote” not merely a duty “to attend” or “to submit a ballot”. While the wording creates some uncertainty about the extent of the duty, it doesn’t provide a clear enough indication so further investigation is necessary.

Process of Interpretation

There are two plausible and competing interpretations based on the wording in the act. The Catallaxy post and comment thread identify a number of factors that could be used to justify one interpretation over another.  The question is which factors are most relevant.


The Acts Interpretation Act 1901 instructs that the interpretation show follow the purposive approach:

15AA Interpretation best achieving Act’s purpose or object

In interpreting a provision of an Act, the interpretation that would best achieve the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act) is to be preferred to each other interpretation.

The Commonwealth Electoral Act doesn’t provide an express purpose. Despite this, it is clear the purpose of the act (in general) is to describe in detail the process of how people are to choose their representatives as required and enabled by the Australian Constitution:

24 Constitution of House of Representatives

The House of Representatives shall be composed of members directly chosen by the people of the Commonwealth …

31 Application of State laws

Until the Parliament otherwise provides, but subject to this Constitution, the laws in force in each State for the time being relating to elections for the more numerous House of the Parliament of the State shall, as nearly as practicable, apply to elections in the State of members of the House of Representatives.

In this context the provisions in section 240 can be see as the Commonwealth Parliament providing the legislative description of the legal process by which the people directly choose their representatives. It would be a step beyond this to impose a duty on people to follow that process. Still, the question remains as to whether attaching provisions in section 240 to the duty in section 245 best achieves this purpose.

Structure of the Statute

It’s important to not focus purely on the words themselves, but to look beyond the immediate sections in questions on consider the structure of the act. As the High Court explained in CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2

[T]he modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise…

The most immediate context is another part of section 245. The same section that establishes the duty also establishes the offence for failing to meet the duty, the associated penalty and a specific defence:

245 Compulsory voting

(15)  An elector is guilty of an offence if the elector fails to vote at an election.

Penalty:  $50.

(15A)  Strict liability applies to an offence against subsection (15).

Note:          For strict liability , see section 6.1 of the Criminal Code .

(15B)  Subsection (15) does not apply if the elector has a valid and sufficient reason for the failure.

The offence under s 245(15A) imposes strict liability. This means that intent (whether the failure was ‘deliberate’ or not) is not necessary for the conduct to be considered an offence. In practice this means someone can’t simply claim they intended to vote but forgot in order to avoid the charge. If this offence extends to cover informal voting, it means that someone who accidentally fills out their ballot incorrectly has also committed an offence (the mistake of fact defence is still available, but it would be a bit of a stretch to claim a mistake about the state of the ballot paper in most circumstances). That seems a little harsh to me, particular when considering the oversized senate ballot.

The surrounding provisions provide an indication of how the offence is intended to be enforced:

232 Voters to be recorded

(1)  Immediately after handing a ballot paper to a person whose name is on the certified list of voters, or an approved list of voters, available at a polling place, the presiding officer or a polling official at the place must:

(a)  place a mark against the person’s name on the certified list; or

(b)  record electronically against the approved list the fact that the person has been handed a ballot paper.

(2)  The presiding officer at a polling place shall make a record of the name of each elector who casts a declaration vote at the polling place and, in the case of an absent voter, of the Division for which the elector declares under subsection 222(1) or (1A) that he or she is enrolled, and shall, at the close of the poll, forward the record, duly certified by the presiding officer, in accordance with section 228.

245 Compulsory voting

(2) The Electoral Commissioner must, after polling day at each election, prepare for each Division a list of the names and addresses of the electors who appear to have failed to vote at the election.

(3) Subject to subsection (4), within the period of 3 months after the polling day at each election, each DRO must:

(a) send a penalty notice by post; or

(b) arrange for a penalty notice to be delivered by other means;

to the latest known address of each elector whose name appears on the list prepared under subsection (2).

There are clear measures to enforce the elements of the offence that include a requirement to show up, get a ballot and get your name marked off. The presiding officers and assistants would be able to witness and hence enforce that each elector go into a booth, fold the ballot and put it in the box.

However, one of the key policy decisions made within the act is that voting to take place in private. The surrounding sections limit the capacity the government has to enforce how people mark their ballot:

233 Vote to be marked in private

(1) Except as otherwise prescribed the voter upon receipt of the ballot paper shall without delay:

(a) retire alone to some unoccupied compartment of the booth, and there, in private, mark his or her vote on the ballot paper;

(b) fold the ballot paper so as to conceal his or her vote and:

(i) if the voter is not an absent voter–deposit it in the ballot-box; or

(ii) if the voter is an absent voter–return it to the presiding officer; and

(c) quit the booth.

271 Officers not to mark ballot papers so that voter can be identified

Except as authorized by this Act or the regulations, an officer shall not place upon any ballot paper any mark or writing which would enable any person to identify the voter by whom it is used.

These provisions make it clear that parliament considers the private nature of voting as an important part of the act’s purpose. It does not make sense to interpret an offence beyond the limits of enforcement provided elsewhere in the act. Further, it would be contrary to the purposive approach to interpret an offence in such a way that any enforcement action would conflict with another key policy objective established elsewhere in the act. This suggests in creating the offence parliament is only concerned with those who fail to turn up, get their names marked off the list and follow the observable instructions, not those who fail to mark their vote according to section 240.

The Mischief Rule & Extrinsic Material

The law allows us to look further than just the act itself. Firstly, the common law has long interpreted acts of parliament by considering what mischief or defect the act is intended to remedy. This was also noted in the CIC Insurance case:

[T]he modern approach to statutory interpretation… (b) uses “context” in its widest sense to include such things as the existing state of the law and the mischief which … one may discern the statute was intended to remedy.

In examining the history of the legislation, it can also be useful to consider extrinsic material (explanatory memoranda, speeches to parliament, etc) as provided for by Section 15AB of the Acts Interpretation Act. The obvious next step to consider then is the history of the act. There are two points to note about differences in the older version of section 245 (which was renumbered from 128A).

128A. Compulsory voting

(1) It shall be the duty of every elector to record his vote at each election.(12) Every elector who-

(a) fails to vote at an election without a valid and sufficient reason for such failure; or

shall be guilty of an offence.

The first is that the duty includes the obligation to not just “vote” but to “record [the] vote”. The second is that this requirement to record is missing from the offence related to the duty. This provides further argument that by removing the duty “to record”, parliament intended the duty in the current act to exclude that element. Although arguably the purpose of the amending act was to resolve language issues in the legislation and not change the extent of elector duties.

Section 119 (now repealed) also differs in two respects from its current equivalent (section 233).

119. Vote to be marked in private

Except as otherwise prescribed the voter upon receipt of the ballot-paper shall without delay-

(a) retire alone to some unoccupied compartment of the booth, and there, in private, mark his vote on the ballot-paper in the manner hereinafter described;

(b) fold the ballot-paper so as to conceal his vote and to show clearly the initials of the presiding officer, and exhibit it so folded to the presiding officer, and then forthwith openly, and without unfolding it, deposit it in the ballot-box; and

(c) quit the booth.

Firstly, it involved a partial inspection of the ballot before putting it in the box which is not particularly relevant to the issue at hand. Secondly, it included an express link between the process of handling the ballot and the manner in which it is marked. In this case the amending act was intended to “make the voting process simpler“. This change suggests an intention by parliament to remove the link between any public duty (and related offence) to attend and handle the ballot, and the private matter of how the ballot is marked.

This simplicity echoes the statements made back in 1924 with the introduction of compulsory voting legislation. The second reading speech of the act that introduced compulsory voting contained the explanation:

It is very simple, consisting of three clauses only, the principal one of which is clause 2. The bill provides that it shall be the duty of every elector to record his vote, and that after each election a list of those who did not vote shall be prepared by the returning officer.

Extending the content of the duty to include the detailed provisions of how the ballot is to be filled out conflicts with this intended simplicity. The natural limitation on enforcement was also acknowledged at the time:

Honorable members may say that we can take a horse to the water but we cannot make him drink. But by compelling people to vote, we are likely to arouse in them an intelligent interest, and to give them a political knowledge that they do not at present possess.

The interpretation I take from that is that parliament can take an elector to the booth, but cannot make them hold or express a preference. The overall purpose of the act is aided by the fact that being compelled to attend means people will often be induced to form a preference and express it.

The specific words in the sections don’t clearly indicate the extent of the duty and could arguably be interpreted as extending the duty to how a ballot is marked. However, when considered in their full context I think the better interpretation is that the duty is limited to attendance and simple handling of the ballot, and does not include the specific manner in which the ballot is marked.

Presumption of Last Resort

Any remaining uncertainty about the extent of the duty can be extinguished by reference to the common law assumption against creating a statutory offence. According to the High Court in R v Adams [1935] HCA 62:

 … when that language is capable of more than one meaning, or is vague or cloudy so that its denotation is uncertain and no sure conclusion can be reached by a consideration of the provisions and subject matter of the legislation, then it ought not to be construed as extending any penal category.

It is also reiterated by by Gibbs J in Beckwith v The Queen [1976] HCA 55:

The rule formerly accepted, that statutes creating offences are to be strictly construed, has lost much of its importance in modern times. In determining the meaning of a penal statute the ordinary rules of construction must be applied, but if the language of the statute remains ambiguous or doubtful the ambiguity or doubt may be resolved in favour of the subject by refusing to extend the category of criminal offences.

I think the structure and context of the act creates sufficient uncertainty about the link between the offence in section 245 and the provisions in section 240 to mean it is appropriate to assume there is none.

Case Law

It is prudent to consider the case law on this matter.  The cases have been about the constitution power of the Commonwealth to impose such a duty and the extent of the “valid and sufficient reason” defence. For the practical reasons discussed above there have been no cases requiring them to address the matter of whether it is an offence to mark the ballot contrary to section 240. This means the judicial commentary is obiter and somewhat inconsistent. The cases on constitutional power are of little assistance as I am not arguing on the basis the Commonwealth lacks the power to compel people to mark their ballot in a particular way.

The cases on valid and sufficient reasons are focused on the purpose and not the content of the duty. As explained in by Isaacs J in Judd v McKeon [1926] HCA 33, allowing a lack of preference to be a valid and sufficient reason would undermine the purpose of the duty:

When all opportunities are reduced to the actual candidatures and the time comes for each constituency to return its quota to the national Parliament, there is no force whatever in the contention that a valid and sufficient reason exists for non-compliance with the primary duty of voting, merely because no one of the ultimate candidates meets with the approval of the given elector. If that were admitted as a valid and  sufficient reason, compulsory voting would be practically impossible.

As explained in the second reading speech quoted above, the purpose of the duty goes beyond getting the elector to turn up and fill out a ballot. The purpose extents to inducing the elector to consider the election and form an opinion. Given the impossibility of imposing a duty to form an opinion, it is clear the purpose of the duty goes beyond its contents. Thus a reason to avoid the duty that conflicts with or undermines this purpose, as those found in the case law, can be considered not “valid and sufficient” even though there would be no direct effect resulting from the duty being fulfilled (i.e. turning up and voting informally). I’m not sure these cases can do much to clarify the matter about the content of the duty.

Perhaps the strongest authority in the case law comes from the High Court in a case where the older provisions were still in place, a case Davidson cited in his own article (Faderson v Bridger [1971] HCA 46 at [7], my emphasis):

Section 128A places a duty on every elector to record his vote. This is done by attending at a polling booth, accepting a ballot paper, and, as s. 119 provides, marking it and depositing it in the ballot box. A failure to vote therefore involves a failure to attend, accept the ballot paper and having marked it, to put it in the ballot box. Of course there is no offence committed by not marking the ballot paper in such a fashion that the elector’s vote is in law a valid vote.

The only other observation I’ll make from the case law, is that its amazing how many High Court challenges there have been to an offence that imposes such a small ($50) fine.


The fact the law might not extend the duty or offence to include the provisions of how the ballot is to be marked does not mean there are no consequences for doing so. It is unlikely that the effort would be made to draft a provision detailing how something should be done without there also being some indication of the consequences when those provisions are not followed.


Comparing section 240 to another one from the same act might help gain some perspective on the implications of failing to perform as the provision specifies. Consider the process for applying to vote via the post:

183 Grounds of application for postal vote

(1)  An elector may apply for a postal vote on any of the grounds set out in Schedule 2.

(2)  A person who is provisionally enrolled may apply for a postal vote.

184 Application for postal vote

(1)  An application must be in writing in the approved form and must contain a declaration by the applicant that he or she is an elector entitled to apply for a postal vote.

What happens if someone is eligible to apply for a postal vote under section 183, and attempts to apply for a postal vote:

  • over the phone;
  • not in an approved form; or
  • without including the required declaration?

Clearly they have applied contrary to the rules in section 184. The phrases Davidson used in his post could technically be used. One could say the person applied “against the law”, applied “illegally” or that the application was “unlawful”. Since such phrases are commonly used to describe crimes up to and including murder, they are perhaps not the best phrases to use outside a specific legal context. A better phrase would probably be that the application was “legally invalid”. Failing to apply for a postal vote in the prescribed manner hardly implies someone is a bad person or has harmed society in some meaningful way. There is a distinct difference between a provision that mandates how something must be done in order for it to have a certain legal affect, and a provision that mandates how something must be under threat of punishment (i.e. creates an offence).

The legal consequence of applying contrary to section 184 is that the application does not obligate a postal ballot be sent out, thus potentially preventing the person from voting via post:

188 Issue of certificate and ballot papers

(1)  A DRO or Assistant Returning Officer who receives an application for a postal vote that is in accordance with subsection 184(1) must (unless the application fails to meet the deadline as mentioned in subsection 184(5)) send, or arrange for the sending, to the applicant in accordance with whichever of subsections (2), (3) and (4) of this section applies:

(a)  a postal vote certificate printed on an envelope; and

Of course it is possible that failing to adhere to the statutory directions could cause indirect legal consequences. Failing to apply correctly for a postal vote may not be considered a valid and sufficient excuse for failing to show up on election day. It is also possible that failing to adhere to the statutory directions affects legal rights and obligations outside the immediate context. For example a police officer who fails to adhere to statutory limits on using force to arrest someone could be said to have used “unlawful force”. This might not just cause an evidence to be excluded in the criminal context, but they may also loose protection against civil liability for their actions. However, it is unlikely that any conduct with regarding the rights and duties of electors would extend beyond their electoral context.

This Case

There are two sections in the act that deal with the consequences of failing to mark a ballot in the way set out in section 240:

268 Informal ballot papers

(1)  A ballot paper shall (except as otherwise provided by section 239, and by the regulations relating to voting by post) be informal if:

(c)  in a House of Representatives election, it has no vote indicated on it, or it does not indicate the voter’s first preference for 1 candidate and an order of preference for all the remaining candidates:

Provided that, where the voter has indicated a first preference for 1 candidate and an order of preference for all the remaining candidates except 1 and the square opposite the name of that candidate has been left blank, it shall be deemed that the voter’s preference for that candidate is the voter’s last and that accordingly the voter has indicated an order of preference for all the candidates:

Provided further that, where there are 2 candidates only and the voter has indicated his or her vote by placing the figure 1 in the square opposite the name of 1 candidate and has left the other square blank or placed a figure other than 2 in it, the voter shall be deemed to have indicated an order of preference for all the candidates.

274 Scrutiny of votes in House of Representatives elections

(2)  Each Assistant Returning Officer shall, in the presence of a polling official, and of such authorized scrutineers as may attend:

(b)  reject all informal ballot papers…

The legislated (and rather obvious) consequence of not filling out the ballot paper correctly, is that it will likely be considered an informal ballot and rejected (i.e. not counted). Based on my conclusion that this does not constitute an offence, there do not appear to be any further legal consequences. That said, it is possible that in the hypothetical circumstance that someone confesses and is prosecuted that the court would end up ruling the way Davidson indicates and then they would face a $50 fine. However as far as I can see, the only way the law compels someone to actually mark their ballots correctly is by ‘threatening’ to do the very thing the complainants appear to want, that is to have their vote not count.

As for the immense imposition of turning up to fill out a ballot once every three years, the benefits as described back in 1924 would seem to me to be significantly beneficial enough to justify such a duty. That however is an argument for another post…

Categories: Uncategorized

A Fine Line

Sat 17 Nov 2012 03:15:38 9 comments

A couple of weeks ago, regular SkepticLawyer commenter kvd noted the interesting story about Melbourne City Council suing over the magistrates court ordering payments to charities. The topic was related to the criminal law and administration law subjects I studied this semester and for whatever reason the issue stuck with me throughout my exams. I figured I would break my blogging drought and have a crack at the issue with my freshly minted understanding, however given I’ve studied in a different jurisdiction (Queensland) and I’m yet to find out if I even passed this post might just be the ramblings of a failed law student. Also, since I’ve just spent the first day of post-exam freedom researching and writing this post, I’m also beginning to question my sanity…

Update: Added reference to the statistics Magistrates’ Court Annual Report. Added the historical perspective section. Enhanced the discussion on principles and added a more substantive conclusion. I think I’ve now learnt more about criminal through writing this post than I did throughout the semester…

Council Motivation

Reading the headlines this story is receiving, one might wonder what motivated a council to sue for money that was otherwise going to charity. The most likely reason is fiscal stress, possibly caused by reduced revenue in the current economic climate or poor fiscal management. I’m not up to speed with Melbourne politics to know the details, but it’s clear they’re motivated enough to ignore the bad look that comes with trying to take money from charities.

Regular fines provide hundreds of millions of dollars of revenue to the state government each year. The sentencing statistics indicate the alternative sentence type used in this case are used about 20% as often as standard fines. The Magistrates’ Court Annual Report indicates the payments to charity add up to about nine hundred thousand dollars, and Melbourne City Council wants its cut.

To understand why the council thinks it’s entitled to the money we need to look at the legislation that defines the offence committed. The Food Act (1984) contains a number of offences that have fines attached. The article doesn’t state the offence committed, so I’ll pick an offence from the act as an example:

14. Sale of food not complying with purchaser’s demand

(1) A person must not, in the course of carrying on a food business, supply food by way of sale if the food is not of the nature or substance demanded by the purchaser.

Penalty: $40 000 in the case of an individual and $200 000 in the case of a corporation.

As the legislation is a state law it would ordinarily be up to the state government to prosecuting the offenders. However this law grants the power to councils to bring prosecutions under the act:

45AC. Power to bring proceedings

The Secretary, a council, an authorised officer or a member of the police force may bring proceedings for an offence under this Act.

Any fines collected as punishment for state offences would also ordinarily be paid to the state government consolidated revenue.  Again, this law provides an exception by rewarding the prosecuting council with the money collected through fines.

57. Payment of penalties

(1) Where an offence against this Act has been prosecuted by the council, all penalties recovered in relation to the offence shall be paid into the municipal fund of that council.

So the state government has essentially recruited the councils into assisting with the enforcement of the Food Act by providing a revenue incentive in the form of fines. The Melbourne City Council has presumably spent the time and money to investigate and prosecute the offender on the understanding that, if they were successful, they would be compensated with any fine applied. However, having successfully prosecuted the offender they are left with the magistrate determining the offender should not be made to pay a fine (i.e. the council), but rather pay money to a charity. Given this context, I can understand why the council might be feeling a bit aggrieved by the situation and hence why chose to appeal the sentence.

The Court’s Power

Given the council appears to have a potentially legitimate claim to the money, it’s important to consider whether the court has the power to decide that the money should be paid to someone else. While the offences and maximum possible penalties are specified in the Food Act, the process for determining the sentence for each individual offender is set out in the Sentencing Act (1991). The sentencing options in the act fit into four basic categories: imprisonment, community correction orders, fines and “slaps on the wrist”. The last category includes formally recording a conviction and undertakings (“good behaviour bonds”) where the judges threatens to impose an actual penalty if you behave badly or break any imposed conditions.

Special Conditions

The payments to charity seem to be based on the undertaking provisions and not on the fines provisions. Section 75 provides (my emphasis):

75. Release on adjournment without conviction

(1) A court, on being satisfied that a person is guilty of an offence, may (without recording a conviction) adjourn the proceeding for a period of up to 60 months and release the offender on the offender giving an  undertaking with conditions attached.

(2) An undertaking under subsection (1) must have as conditions-

(a) that the offender attends before the court if called on to do so during the period of the adjournment and, if the court so specifies, at the time to which the further hearing is adjourned; and
(b) that the offender is of good behaviour during the period of the adjournment; and
(c) that the offender observes any special conditions imposed by the court.

I cannot find anything within the Sentencing Act that details the scope or contents specifically for these “special conditions”, so it’s not clear exactly what the parliament intended them to cover. This means there is a definite question of whether the conditions can include a payment to the court fund (or otherwise) for charitable conditions. The only directly relevant case law I can find involves the Supreme Court imposing a condition of continuing mental health treatment, and no discussion of other possibilities or limits. In other jurisdictions and legal contexts such conditions are usually used to ensure rehabilitation and reduce risk of further offences with examples including drug treatment or avoiding certain people and places.

One important limit on the conditions is the section detailing their possible purposes (my emphasis):

5. Sentencing guidelines

(1) The only purposes for which sentences may be imposed are-

(a) to punish the offender to an extent and in a manner which is just in all of the circumstances; or
(b) to deter the offender or other persons from committing offences of the same or a similar character; or
(c) to establish conditions within which it is considered by the court that the rehabilitation of the offender may be facilitated; or
(d) to manifest the denunciation by the court of the type of conduct in which the offender engaged; or
(e) to protect the community from the offender; or
(f) a combination of two or more of those purposes.

Interestingly, there are no principles of restorative justice listed despite the inclusion of restitution and compensation provisions elsewhere in the act. It’s easy to see how a treatment condition fits within the purpose of rehabilitation, and an avoidance condition can fit within the protection purpose. These conditions also appear consistent with the range of conditions that the court has express powers to attach to community correction orders:

48C. Unpaid community work condition
48D. Treatment and rehabilitation condition
48E. Supervision condition
48F. Non-association condition
48G. Residence restriction or exclusion condition
48H. Place or area exclusion condition
48I. Curfew condition
48J. Alcohol exclusion condition
48K. Judicial monitoring condition


Charitable payments could arguably fulfil the same purpose as fines, both punishing the offender and denouncing their offence. However, their nature appears to be at odds with the provisions that cover fines. Most important is the issue of who the money is paid to:

59. Application of fines etc.

The whole or any part of a fine, penalty or sum of money which by or under any Act is authorised or directed to be imposed on a person forms part of, and must be paid into, the Consolidated Fund if no other way of appropriating or applying it is prescribed by law.

Fines can only be paid to the government unless otherwise specific, which in this case means the council. Thus, payments to charity can only be valid if they are not a classified as a fine. Conveniently the Sentencing Act provides a definition of what a fine is:

fine means the sum of money payable by an offender under an order of a court made on the offender being convicted or found guilty of an offence and includes costs but does not include money payable by way of restitution or compensation or any costs of or incidental to an application for restitution or compensation payable by an offender under an order of a court;

I think it’s going to be an uphill battle to argue the payments are not fines. Under the act, restitution is about stolen property and compensation is about personal injury, so these terms can’t be used to avoid such payments being defined as fines. The undertakings are in some respects voluntary as the offender must effectively consent (“make the undertaking to do something”). However, given it’s an offence to breach the conditions I think it is hard to argue that a payment condition on an undertaking isn’t payable “under an order of a court”. Curiously on the magistrates court page it lists three forms of other (not fines) monetary penalties: “court fund”, restitution and compensation. These latter two terms are clearly provided for in the legislation but I can’t find any reference to “Court Fund”.

Conceptual Difficulties

There are also other provisions in the act that suggest that such payments aren’t intended to be within the scope of special conditions (my emphasis):

5. Sentencing guidelines

(7) A court must not impose a fine unless it considers that the purpose or
purposes for which the sentence is imposed cannot be achieved by a dismissal,
discharge or adjournment.

It’s hard to see how in the majority of cases, payments to charity wouldn’t be comparable to fines in punitive capacity. If charitable payments are available as a condition of adjournments, the logical conclusion from the above provision is that they should be used in preference to fines. This conclusion is at odds with the detailed provisions covering fines relative to the complete lack of provisions covering charitable payments. It’s also at odds with current sentencing practices which show a clear preference for fines over undertakings.

A quick look at other jurisdictions shows New South Wales legislation now expressly excludes payments from forming part of such conditions, while Queensland legislation leaves it as vague as “any additional conditions that [the court] considers appropriate“. A strong authority against allowing the payments comes from a statement by Gleeson CJ sitting on the NSW Court of Appeal, made prior to the express exclusion (R v Ingrassia (1997) 41 NSWLR 447). The Crimes Act 1900 (NSW) contained the (now repealed) s556A(1A), which allowed for orders discharge an offender conditioned on “such terms and conditions as the court shall order”. The statement reads (actually quoted in the Victorian Sentencing Manual):

There was some argument before this Court as to whether the word ‘fine’ was strictly applicable to a payment of the kind now in contemplation. What was involved, counsel said, was more in the nature of a donation to the revenue. That suggestion underlines the conceptual difficulty. If donations to the State Treasury can be made the subject of conditions under s556A then so, presumably, can donations to other equally worthy objects of bounty, such as charities or victims.

If the law does not permit the imposition of a fine when an offender is dealt with under s556A, and if the imposition of a punishment would be inconsistent with the hypothesis that the court is not proceeding to convict the offender, then it would represent a triumph of words over ideas to avoid that consequence by describing the payment as a donation to the revenue. In any event, s556A is not a provision to be used for the purpose of soliciting gifts, whether to the revenue, to charities, or to anyone else.

While there is a technical difference in the nature of that case (the Sentencing Act does allow for fine with no conviction), it wouldn’t surprise me if the Victorian Supreme court echoed the same sentiment in response to this case. Thus as the law currently stands, I don’t think the magistrates’ court has the legal authority to make such payments.

Historical Perspective

To understand why the magistrates might have developed a practice of ordering payments to charity, it is necessary to consider the history of punishment in trivial cases and engage in a bit of speculation. Blackstone’s Commentaries provides details about the state of the common law in the mid 18th century. While the basic structure of the law at that time remains recognisable to modern law students, both major and minor changes have occur as the law developed over the years. Most notable is the abolishment of execution and corporal punishments such as (even then described by Blackstone as “shocking” and “disgusting”):

mutilation or dismembering, by cutting off the hand or ears; others fix a lasting stigma on the offender, by slitting the nostrils, or branding in the hand or cheek … whipping, hard labour in the house of correction or otherwise, the pillory, the stocks, and the ducking-stool.

Two important elements that Blackstone noted within the common law include firstly that a finding a guilt meant by definition the person was convicted, and secondly that a person could not be punished unless they were convicted:

[U]pon such his acquittal, or discharge for want of prosecution, he shall be immediately set at large without payment of any fee to the gaoler. But if the jury find him guilty, he is then said to be convicted of the crime whereof he stands indicted; which conviction may accrue two ways,—either by his confessing the offence and pleading guilty, or by his being found so by the verdict of his country.

Further to that, is was clear that while the judge had discretion over the length of imprisonment or amount of fine, they lacked the authority to discharge a convicted person without penalty:

[I]t is moreover one of the glories of our English law that the species, though not always the quantity or degree, of punishment is ascertained for every offence; and that it is not left in the breast of any judge, nor even of a jury, to alter that judgment, which the law has beforehand ordained for every subject alike, without respect of persons. For, if judgments were to be the private opinions of the judge, men would then be slaves to their magistrates, and would live in society without knowing exactly the conditions and obligations which it lays them under.

That said, there was still the capacity to appeal to the crown for a pardon, :

[I]f it be a small felony, or any favourable circumstances appear in the criminal’s character, in order to give room to apply to the crown for either an absolute or conditional pardon.

It appears that in Victoria the principle of mandatory punishment was overridden at least a early as 1915 and the courts in certain circumstances were granted the power to suspend the sentence and discharge a convicted offender on their own recognisance. This included the ability to attach conditions to be of good behaviour, report to police, avoid people or places and “generally for securing that the offender shall lead an honest and industrious life”. In 1949 the courts were granted the power to suspend proceedings before a conviction was recorded and release the person on a bond of good behaviour.

The distinction between these two changes is important. The mere conviction can significantly affect the future of an offender in both directly in legal matters and indirectly through impacts on employment opportunities. This means the mere conviction itself can potentially have a far more punitive effect than are justified by the circumstances of the offence. The change allowed for the courts to avoid such negative impacts in cases of trivial offences. The case law indicates that the granting of power to suspend proceedings prior to conviction did not override the  (R v Ingrassia (1997) 41 NSWLR 447, Gleeson CJ):

common law principle that a person who has not been convicted of an offence should be punished by order of a court.

This meant that at this stage it was not within the discretion of the court to impose a fine unless a conviction was recorded. This left a gap in the sentencing discretion available to judges in cases where recording a conviction would be excessive but an unconditional discharge would be inadequate.  Presumably at some stage some creative legal minds realised that while they couldn’t apply a fine, they could use the power to impose conditions to include payments to charity. The fact such conditions could only be imposed with consent and could be said to be encourage an “industrious life”; a method of proving one’s good character rather than a punishment. This means the court could have believed the condition was not substantively a punishment and therefore not contrary to the common law principle against punishment without conviction. This enabled the courts to impose what was effectively a modest financial penalty on the offender in cases where a conviction would be considered excessive.

When the power to use common law bonds was abolished by the current legislation and replaced with the undertaking provisions detailed above, it’s likely the magistrates court looked at the “special conditions” (discussed above) and assumed they could use this power to order payments to charity in the same way they had used the common law bonds. However, the modern legislation removes the common law barrier to punishment without convictions and the courts now have the power to impose a fine without recording a conviction:

7. Sentences

(1) If a court finds a person guilty of an offence, it may, subject to any specific provision relating to the offence and subject to this Part-

(f) with or without recording a conviction, order the offender to pay a fine;

This undermines the justification for imposing payments to charity as a legal mechanism for avoiding the barrier to punishment.

Given these types of sentences would be imposed as a relatively lenient outcome for an offender and entered into voluntarily, there would be little incentive for the offender to appeal any sentence involving such payments. Appeals against sentence by the prosecution are both rare and more restricted than appeals by the offender. The minor nature of the offences involved means there would be little incentive for an ordinary prosecutor to bother appealing the sentence. As a consequence, the practice of the lower courts in imposing payments to charity has likely avoided much scrutiny by the higher courts until now (at least in Victoria, the issue has clearly been tacked in New South Wales).

Underlying Principles

While it appears that the courts may currently lack the authority to require payments to charity it’s also interesting to consider whether they should have that power. The two substantive differences between these payments and fines are the requirement for the consent of the offender and the beneficiary of the payment.

The Case For

I say consent is a factor because the offender must be accept the undertaking in order for it to be imposed. If they refuse then the courts can resort to the other sentencing options which would likely mean a fine. Although this means the consent is far from being free and unencumbered, the willingness to pay and benefit someone could be said to demonstrate a sense of remorse. This could make it meaningful in the same way a guilty plea at the end of a trial in the face of overwhelming evidence is still meaningful. This could mean such payments have a role, however minor, in fulfilling the rehabilitation purpose of the sentence.

The power to determine the benefactor of such payments could also assist in fulfilling sentencing purposes. Many times an offences will be against a community more so then against particular individual(s). Payments to appropriately related charities could be part of the compensation purpose in sentencing where there isn’t a case for more direct compensation. Additionally, having the offender see their money applied to restoring the harm done could play a rehabilitation role as well.

Outside the purposes of criminal punishment, the charities themselves are worthy beneficiaries. Particular charities could be seen to be more directly associated with rectifying harm caused by offences than the government in general. There seems something inherently wrong with halting the funding charities through a mechanism that seems to have had a long standing acceptance of the community.

The Case Against

There is an important principle that stands against allowing courts to making such decisions. Separation of powers is a fundamental aspect of all Australian governments and it places the powers to collect and appropriate money rest with the democratically elected parliaments. Currently the Victorian Parliament has granted their courts the power to collect money from offenders in the form of fines. The power for the courts to appropriate these same funds however appears to still be quite limited.

At sentencing, the courts will have completed a detailed review of the nature and circumstances of the offence and the offender. This places them in a good position to assess the appropriate amount of financial hardship to place on the offender. However, they won’t necessarily have the knowledge or expertise to know where the money would best be spent, and lack the democratic authority to make arbitrary determinations on behalf of society. Further there is a lack of any meaningful accountability in regards to deciding where the funds go. The courts are intentionally insulated from external influence in order to ensure their impartiality on judicial matters. The only practical review mechanism available is the appeals process, and as discussed above this would likely not be sufficient to regulate decisions regarding the recipient of the payments. Thus it’s not appropriate for the judiciary to take it upon themselves to assign payments to third parties unrelated to the matter at hand, particularly against the express will of parliament found in the legislation, regardless of the noble intent of the judge or charitable nature of the recipient.

It is the elected legislature that is best placed to determine the principles of how the money should be spent, and the executive that has the resources (army of bureaucrats) to best deal with the details of implementation. In this particular case they have already made that determination, in that any fines are assigned to the council in order to fund the enforcement of the Food Act. Enforcement of the act protects the community from being exposed to harmful food, preventing a significant medical costs and associated loss of productivity. Having the funding of enforcement at least partially linked to successful prosecutions could help the funding remain in proportion to the level of offences and insulate it from other pressures on general revenue sources.

Finally, there is nothing in the current law to prevent defendants pre-emptively making charitable payments. The sentencing act provides that offender’s character and mitigating circumstances must be considered, and that significant contributions made to the community can play a part of that consideration. It would none the less be a bit of a gamble, as the court would be under no obligation to accept the payments as significant enough to impact any sentence.

Alternative Solutions

Alternatively legislation could be passed to grant such powers to the courts. Such legislation should suitably restrict the determination of the beneficiaries in such a way to ensure sentences remain consistent their intended purposes. There appears to be a functioning model in Canada that is one of the diversion programs structured as a complete alternative to prosecution. Importantly these alternatives require a three way agreement between the accused, the prosecutor and the court, and are structured programs developed by the executive government. The significant involvement of the government of establishing and administrating the programs ensures any payments remain within political accountability. The requirement for the approval of the courts helps protect individuals from the imposition of unjust burdens by the prosecutors. Perhaps the only criticism I could make of this system, is that it is the prosecution and not the court that has the role of assessing the evidence which could leave that assessment open to questions about its independence.  This was most likely done to expedite the process and reduce costs.

I found some interesting articles on the ability of ASIC to accept restorative undertakings in matters under their jurisdiction. One of them looked favourably on the theory behind the the flexibility of undertakings, however found that while undertakings focused on compensating victims had worked well, undertakings that focused on benefiting the community in general were very rarely entered into. This perhaps indicates the difficulty of contemplating how to best benefit the community while trying to resolve a specific offence. Although clearly there is a strong demand for such mechanisms in the magistrates’ court, so these difficulties may be limited to the nature of offences or offenders ASIC deals with.


The idea of a governmental institution, particularly one within the judicial branch, taking it upon themselves to go beyond specific legislated powers to order payment of money to third parties is something that sits very uncomfortably with the rule of law. It is judicial officers who ought to be most concerned with not exceeding the powers granted to them by parliament, over and above any noble motive to assist charitable causes they might favour. I think this principle overrides any sympathy that can be held for the charities or the people that ultimately benefit from their service, that will otherwise be denied a source of funds. In this case in particular, the enforcement of the Food act is sufficiently worthy to justify the payment being made to the charity. Beyond this particular case, the impact on the charities from losing close to a million dollars of funding has the potential to be quite significant. If the law does close of this source of funding I hope the state government takes swift action to ensure at least some continuity of funding.

In a more general sense, I think there is room for payments to charity to play a role in the justice system. I would have a preference for any such mechanisms to require a three way agreement as in the Canadian system, although think there may be a case to have the court, rather than the prosecution make the judgment about the weight of evidence. I think requiring at least the consent of the prosecution would be favourable to the practice currently in place. Of course any legislative action brings us to the matter of political will and consequentially to the issue of fiscal stress I raised at the start of this post. In the present economic and political environment, I can’t see any progressive sentencing changes being made in the short term, particularly where that change involves less money going into government coffers.

Categories: law, university