DPP v Ali & Anor (No 2) (Supreme Court) – Aug 2010

Under the Confiscation Act 1997 property used in connection with the commission of serious offences under the Act can be confiscated and the proceeds forfeited.

In this case, the DPP applied to confiscate and forfeit Mr Ali’s property and family home where he lived with his wife and four children.

The case turned on whether the court should exercise its discretion in section 38(2) of the Confiscation Act 1997 to exclude a home from the operation of a civil forfeiture order on the basis that Mrs Ali would suffer hardship as a consequence and it would infringe her human rights.

The Commission made submissions as to how the Court should exercise its discretion in section 38(2) of the Confiscation Act 1997 compatibly with the rights in the Charter, in particular the right to protection from arbitrary interference with the home, the right to protection of families and children, and the right to equality and freedom from discrimination.

The Supreme Court ultimately ordered that the property should be forfeited, but that Mrs Ali should be compensated $125,000 by the State of Victoria for the forfeiture, acknowledging her interest in the property and the hardship that would be suffered by her. The decision examines the obligation in the Charter to interpret laws compatibly with human rights and to exercise statutory discretions compatibly with human rights, with reference to the rights not to have family or home arbitrarily interfered with, the entitlement of families to protection by society and the state, and the right of children to protection in their best interests.