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High Court Judgments

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Cite as: July 2014 88 (07) LIJ, p.58

Constitutional law

Judicial power – orders by court for confiscation of property of drug trafficker

Legislative power – acquisition of property on just terms – orders for confiscation of property of drug traffickers

In Attorney-General (NT) v Emmerson [2014] HCA 13 (10 April 2014) the Misuse of Drugs Act (NT) and Criminal Property Forfeiture Act (NT) combined to authorise the Supreme Court NT to declare a person was a “drug trafficker” and for the DPP (NT) to apply to the Court for an order that the person’s property be forfeited to the NT. Between 2007 and 2011 E was convicted of drug related offences. E was charged with further drug related offences in 2011 and interim orders were made freezing property he owned. Following his conviction in September 2011 E was declared a drug trafficker by the Supreme Court in August 2012. These orders were set aside by the Court of Appeal (NT) on the ground the statutory scheme was incompatible with the independence required by the Court as a repository of federal jurisdiction. The appeal by the Attorney-General was allowed: French CJ, Hayne, Crennan, Kiefel, Bell, Keane JJ jointly; contra Gageler J. The majority reviewed history of “forfeiture” type provisions and decisions of the High Court applying Kable v DPP (NSW) [1996] HCA 24 and concluded that nothing in the statutory scheme required the Supreme Court to act at the behest of the Executive. The High Court also concluded that by acting on conviction the scheme did not effect an acquisition of property under s51(xxxi) of the Constitution. Appeal allowed; orders of Court of Appeal (NT) set aside.




THOMAS HURLEY is a Victorian barrister, ph 9225 7034, email tvhurley@vicbar.com.au. The full version of these judgments can be found at www.austlii.edu.au.

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