A majority of the High Court has allowed an appeal against the decision of the Northern Territory Court of Appeal in Attorney-General (NT) v Emmerson. Following a string of convictions for drug-related offences, the Director of Public Prosecutions successfully applied to have Emmerson declared a ‘drug trafficker’ under s 36A(3) of the Misuse of Drugs Act (NT). This declaration meant that, in addition to the proceeds of the most recent offence ($70,050), the remainder of his property would also be forfeited, pursuant to s 94(1) of the Criminal Property Forfeiture Act (NT). That property was valued at more than $850,000, and it was acknowledged that it was not connected to criminal offences and had been acquired legitimately. Emmerson challenged both statutes on the basis of the Kable principle, which was articulated, for example, by Gleeson CJ in Baker v The Queen  HCA 45:
[S]ince the Constitution established an integrated Australian court system, and contemplates the exercise of federal jurisdiction by State Supreme Courts, State legislation which purports to confer upon such a court a function which substantially impairs its institutional integrity, and which is therefore incompatible with its role as a repository of federal jurisdiction, is invalid.
By majority, the NTCA held the legislative scheme invalid: Kelly J on the basis that the scheme made the Court an instrument of the executive government by requiring it to impose a substantial additional penalty on the application of the DPP; Barr J on the basis that s 36A required the Court to make the declaration (and hence provide the justification for the forfeiture) regardless of whether the evidence supported that assessment. Riley CJ dissented.
The majority (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ) held that the provisions did not contravene the Kable principle and were within the legislative power of the NT Legislative Assembly. The provisions do not require the NTSC to give effect to an executive decision (here, the DPP’s decision to apply for a declaration), but instead allows it to make a declaration after receiving evidence satisfying the statutory criteria to the civil standard of proof. Further, and in contrast to Kable, the scheme was neither directed ad hominem against Emmerson nor required the Court to order further detention. The majority also rejected the argument that the forfeiture amounted to an acquisition of property on otherwise than just terms, on the basis that it is imposed as a punishment for crime. Justice Gageler, in dissent, held that the scheme did amount to an acquisition of property on otherwise than just terms; while the objective of imposing a penalty for breaching a norm of conduct will ordinarily be within this legislative power, this scheme was not appropriate and adapted to achieve that purpose because the decision to apply (or not apply) to forfeit any or all of the person’s property remained at the discretion of the DPP.
|High Court Judgment|| HCA 13||10 April 2014|
|High Court Documents||Emmerson|
|Full Court Hearings|| HCATrans 8||5 February 2014|
| HCATrans 6||4 February 2014|
|Special Leave Hearing|| HCATrans 244||11 October 2013|
|Appeal from CA|| NTCA 4||28 March 2013|
|Trial Judgment, NTSC
|| NTSC 60||15 August 2012|