DIRECTOR OF PUBLIC PROSECUTIONS (SA) v CLINTON GRANT CUMMINGS [2025] SADC 140

Applicant: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Counsel: MR J SLOCOMBE WITH MR M O'NEILL Respondent: CLINTON GRANT CUMMINGS Counsel: MR O MORRIS - Solicitor: COATES LAWYERS Interested Party: ATTORNEY GENERAL Counsel: MR B GARNAUT - Solicitor: CROWN SOLICITOR'S OFFICE Hearing Date/s: 02/09/2025 File No/s: CIV-24-006735 B DISTRICT COURT OF SOUTH AUSTRALIA (Civil) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. DIRECTOR OF PUBLIC PROSECUTIONS (SA) v CUMMINGS (No 2) [2025] SADC 140 Judgment of his Honour Judge Burnett 9 December 2025 CONSTITUTIONAL LAW - THE NON-JUDICIAL ORGANS OF GOVERNMENT - THE LEGISLATURE - LEGISLATION AND LEGISLATIVE POWERS CRIMINAL LAW - PROCEDURE - CONFISCATION OF PROCEEDS OF CRIME AND RELATED MATTERS - RESTRAINING OR FREEZING ORDER HIGH COURT AND FEDERAL COURT - THE FEDERAL JUDICATURE - NATURE AND EXTENT OF JUDICIAL POWER - CONFERRAL ON STATE COURTS The applicant obtained an order against the respondent pursuant to s 24(1)(a) of the Criminal Assets Confiscation Act 2005 (SA)(the Confiscation Act) restraining the respondent from disposing of or dealing with specified property. The order was obtained on the basis that it was proposed that the respondent be charged with a serious offence. In fact, although there was no evidence before the Court, the respondent had been charged with such an offence at the time that the restraining order was made. The respondent brought an application to set aside the restraining order. The basis of that application was that s 24(1)(a) of the Confiscation Act, in its application to a person who is proposed to be charged but has not yet been charged with a serious offence, is not a valid law of South Australia. The respondent contended that s 24(1)(a), insofar as it applies to a person proposed to be charged, is invalid because it is incompatible with the principle identified by the High Court in Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 that legislation that purports to confer on the court a power or function which substantially impairs the court’s institutional integrity is incompatible with the court’s role as a repository of federal jurisdiction and is constitutionally invalid. -- 1 of 27 -- The respondent contends that the exercise of power by the court to make a restraining order based on a condition that it was proposed that the respondent be charged with a serious offence required the court to be satisfied of only one fact, which was based on the subjective intention of the charging authority, as an entity of the executive. The respondent further contended that the fact, namely that the charging authority proposed to charge the respondent, was the vital circumstance upon which the power of the court was conditioned, and which was, in all practical terms, unreviewable and required the court to affirm the view of the executive. There was no genuine adjudicative function conferred on the court and s 24(1)(a) therefore conscripted the court to act as an instrument of the executive. Held: (1) The application to set aside the restraining order is dismissed. Section 24(1)(a) of the Confiscation Act, in its application to a person who is proposed to be charged, is not constitutionally invalid. (2) The institutional integrity of a court is impaired if the court no longer exhibits in some relevant aspect the defining characteristics which makes a court apart from other decision making bodies. Those defining characteristics in broad terms impose minimum requirements of independence, impartiality, fairness and adherence to the open-court principle: South Australia v Totani (2014) 242 CLR 1 applied. The characteristic of decisional independence and impartiality is not met when the legislature directs or requires a political decision or government policy to be implemented without following ordinary judicial process: Attorney-General (NT) v Emmerson (2014) 252 CLR 93 applied. (3) It is a valid exercise of power to require the court to make an order upon satisfaction of certain conditions, even if satisfaction of those conditions depends on a decision of the executive or even the state of mind or opinion of the executive: Attorney-General (NT) v Emmerson (2014) 252 CLR 93, Palling v Corfield (1970) 123 CLR 52 applied. The legislature can select whatever factum it wishes as the trigger for the exercise of judicial power: South Australia v Totani (2014) 242 CLR 1 applied. The Court has done so in s 24(1)(a) of the Confiscation Act. (4) The Court undertakes a genuine adjudicative function when an application is made for the restraining order based on the condition that it is proposed that the respondent be charged with a serious offence. The Director of Public Prosecutions Act 1991 (SA) requires the Director or his or her delegate to make a decision to charge a defendant. The requirement that it is proposed to charge a respondent must be the subject of evidence which can be challenged: South Australia v Totani (2014) 242 CLR 1 distinguished. (5) A proposal to charge a respondent exists outside and independently of the Confiscation Act. It is not part of the legislative policy or scheme expressed in the Confiscation Act to make the court act at the behest of the executive. The making of the restraining order does not supplement the executive act and conscript the court to give efficacy to the objectives of the executive: South Australia v Totani (2014) 242 CLR 1 distinguished. (6) The power of the court in determining whether to grant a restraining order under the Confiscation Act is not as confined as the power to make a control order under the legislation that was considered in Totani. Under the Confiscation Act, the court must be satisfied of a number of matters before it makes a restraining order. That fact further indicates that the court is performing a genuine adjudicative process when granting a restraining order. (7) The applicant and the Attorney-General advanced an alternative contention for dismissing the setting aside application, namely that because the respondent had in fact been charged at the time that the restraining order was made, there was a proper basis for making the restraining order. That alternative basis does not arise. The alternative contention would not have provided a basis for dismissing the setting aside application. The question as to whether there had been an unjustified intrusion into the judicial function must be determined by reference to the events that existed at the time that the order was made: International Finance Trust Co Ltd v New South Wales Crime Commission (2009) 240 CLR 319 applied. -- 2 of 27 -- Australian Constitution Chapter 3, ss 71, 77; Controlled Substances Act 1984 (SA) s 32; Criminal Assets Confiscation Act ss 24, 26, 46, 47, 56A, 74, 218, 220 ; Director of Prosecutions Act 1991 (SA) ss 6A, 7; Judiciary Act 1903 (Cth) ss 78A, 78B; Uniform Civil Rules 2020 (SA) r 103.3; Serious and Organised Crime (Control) Act 2008 (SA) ss 10, 14; Australian Constitution Chapter 3, ss 71, 77; Controlled Substances Act 1984 (SA) s 32; Criminal Assets Confiscation Act ss 24, 26, 46, 47, 56A, 74, 218, 220; Director of Prosecutions Act 1991 (SA) ss 6A, 7; Judiciary Act 1903 (Cth) ss 78A, 78B; Uniform Civil Rules 2020 (SA) r 103.3; Serious and Organised Crime (Control) Act 2008 (SA) ss 10, 14, referred to. Assistant Commissioner Condon v Pompano Pty Ltd (2013) 252 CLR 38; Attorney-General (NT) v Emmerson (2014) 253 CLR 93; Baker v R (2004) 223 CLR 513; Cunliffe v Goodman [1950] 1 ALL ER 720; Director of Public Prosecutions for the State of South Australia v Soniard Mrishaj and Illyrian Investments Pty Ltd [2024] SADC 101; Director of Public Prosecutions v Cummings [2025] SADC 64; Fardon v Attorney-General (Qld) (2004) 223 CLR 575; Garlett v Western Australia (2022) 277 CLR 1; International Finance Trust Co Ltd v New South Wales Crime Commission [2009] HCA 49; Kable v Director of Public Prosecution (NSW) (1996) 189 CLR 51; Kuczborski v State of Queensland (2014) 254 CLR 51; K-Generation Pty Ltd v Liquor Licensing Court (2009) 237 CLR 501; LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321; New South Wales Crime Commission v Ollis (2006) 65 NSWLR 478; Nguyen v Director of Public Prosecutions (2019) 59 VR 27; Palling v Corfield (1970) 123 CLR 52; Ruzehaji v Commissioner of the Australian Federal Police (2015) 124 SASR 355; South Australia v Totani (2010) 242 CLR 1; Wainohu v New South Wales (2011) 243 CLR 181, applied. -- 3 of 27 -- -- 4 of 27 -- DIRECTOR OF PUBLIC PROSECUTIONS (SA) v CUMMINGS (No 2) [2025] SADC 140 Civil Introduction 1 This judgment concerns the constitutional validity of s 24(1) of the Criminal Assets Confiscation Act 2005 (SA) (the Act) in its application to a respondent who is proposed to be charged with a serious offence as defined in the Act. Specifically, the respondent has formulated the issue for determination in the following terms: In its application to a person who is proposed to be charged with a serious offence is s 24(1) of the Criminal Law Confiscation Act 2005 (SA) a valid law of South Australia? 2 The issue has arisen in the context of a restraining order that was made by the Court. The respondent has sought to set aside the restraining order on the basis that s 24(1) of the Act, insofar as it applies to person proposed to be charged, is invalid because it is incompatible with the principle identified by the High Court in Kable v Director of Public Prosecution (NSW) (Kable).1 In Attorney-General (NT) v Emmerson (Emmerson),2 French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ expressed that principle in the following terms: The principle for which Kable stands is that because the Constitution establishes an integrated court system and contemplates the exercise of federal jurisdiction by State Supreme Courts, State legislation which purports to confer upon such a court a power or function which substantially impairs the court's institutional integrity, and which is therefore incompatible with that court's role as a repository of federal jurisdiction, is constitutionally invalid. [citations omitted] 3 The respondent submits that s 24(1)(a) impermissibly purports to direct state courts as to the manner and outcome of the exercise of their jurisdiction such that it impairs the independence of the court. It is contended that s 24(1)(a) recruits the judicial function of the court to an executive process. It follows that if s 24(1)(a) is invalid, the restraining order should be set aside as it should not have been made. The relief that the respondent seeks is to set aside the restraining order because it is constitutionally invalid. For this purpose, the respondent does not seek, or require, a declaration of constitutional invalidity of s 24(1)(a), although that is the underlying basis of the application to set aside the restraining order. 4 The respondent has issued notices in compliance with s 78B of the Judiciary Act 1903 (Cth) (the Judiciary Act). The Attorney-General of South Australia (the Attorney-General) has intervened in these proceedings pursuant to s 78A of the Judiciary Act. The applicant, the Director of Public Prosecutions (the applicant, the DPP or the Director), and the Attorney-General both oppose the application of 1 (1996) 189 CLR 51; [1996] HCA 24. 2 (2014) 253 CLR 93 [40]; [2014] HCA 13. See also Fardon v Attorney-General (Qld) (Fardon) (2004) 223 CLR 575, [15]; [2004] HCA 46 where Gleeson CJ re-stated the Kable principle in virtually identical terms. See also Garlett v Western Australia (2022) 277 CLR1, [7]; [2022] HCA 30. -- 5 of 27 -- [2025] SADC 140 2 the respondent and propound the constitutional validity of s 24(1)(a) insofar as it applies to persons who are proposed to be charged. They therefore submit that there was no basis to set aside the restraining order. 5 This Court considered the constitutional validly of s 24(1)(a) of the Act, insofar as it applied to a person who had been charged with a serious offence, in Director of Public Prosecutions for the State of South Australia v Soniard Mrishaj and Illyrian Investments Pty Ltd (Mrishaj).3 There the Court concluded that s 24(1)(a) was not invalid and was not incompatible with the principle identified in Kable. While that decision is relevant for the purposes of this decision, it is not determinative. This case involves different issues from those under consideration in Mrishaj because it concerns an order made that was based on satisfaction of the condition imposed by s 24(1)(a) that a person is proposed to be charged. The respondent also does not necessarily accept the correctness of the decision in Mrishaj. Therefore, where necessary, I will repeat my analysis in Mrishaj in this judgment so that this judgment can be read without reference to the earlier judgment and the reasoning and analytical process undertaken by the Court in the present case is clear. 6 For the reasons that are set out below, the respondent’s application to set aside the restraining order is dismissed. I do not consider that s 24(1)(a) of the Act, insofar as it applies to persons proposed to be charged, is constitutionally invalid. Statutory Framework 7 The long title to the Act assists in the construction of the Act and ascertaining the objectives of the Act.4 The long title is “An Act to provide for the confiscation of proceeds and instruments of crime; to provide for the confiscation of property of certain drug offenders as an additional punishment for their offending and for other purposes”. That title suggests that the restraining order is in aid of forfeiture, that is, ensuring that a forfeiture order will have utility. The title further suggests that the forfeiture order is imposed as an additional punishment. 8 The statutory framework of the Act provides for the making of a restraining order under s 24 preventing the property specified in the order from being disposed of or otherwise dealt with by any person. The Act subsequently provides for forfeiture of the property after conviction or where the court is satisfied that the property to be forfeited was the proceeds of or an instrument of a serious offence. This structure and the circumstances in which forfeiture may be ordered demonstrate that a restraining order is granted in order to ensure the efficacy of the forfeiture provisions. In broad terms, forfeiture may occur in three different ways: (1) Pursuant to s 47 of the Act, the court must, on application by the DPP, make an order for forfeiture in the circumstances therein described. Those circumstances require either: (i) the person to have been 3 [2024] SADC 101. 4 See D.C. Pearce “Statutory Interpretation in Australia” (LexisNexis Butterworths, 9th ed., 2019), [4.60]. -- 6 of 27 -- [2025] SADC 140 3 convicted of a serious offence and the property specified in the order to be the proceeds of the offence, (s 47(1)(a)): or (ii) the property to be covered by a restraining order that has been in force for at least 6 months and the property specified in the order to be the proceeds of the offences committed by the person whose conduct formed the basis of the restraining order (s 47(1)(b)). Alternatively, forfeiture may be ordered pursuant to s 47(1)(c) where a restraining order has been made under s 24(1)(c) (which is made where the court is satisfied that there are reasonable grounds to suspect that the property is the proceeds of or instrument of a serious offence) which has been in place for at least 6 months and the court is satisfied that the application alleges that the property is the proceeds of serious offences, there has been no application to exclude property from the restraining order and the DPP has taken reasonable steps to identify and notify persons with an interest in the property; (2) Pursuant to s 56A, where immediately on a person becoming a prescribed drug offender (as defined), a forfeiture order is deemed to have been made; and (3) Pursuant to s 74, property is forfeited at the end of the relevant period (as defined) if a person is convicted of a serious offence and at the end of the relevant period, the property is covered by a restraining order that relates to the offence. 9 The power to make a restraining order is contained in s 24 of the Act which provides: (1) A court must, on application by the DPP, make an order (a restraining order) that specified property must not be disposed of or otherwise dealt with by any person (except in the manner and circumstances, if any, specified in the order) if satisfied that— (a) a person has been convicted of, or has been charged with, a serious offence, or it is proposed that the person be charged with a serious offence; or (b) a person is suspected on reasonable grounds of having committed a serious offence; or (c) there are reasonable grounds to suspect that the property is the proceeds of, or is an instrument of, a serious offence (whether or not the identity of the person who committed the offence is known); or (d) there are reasonable grounds to suspect that a person has committed a serious offence and has derived literary proceeds in relation to the offence. (2) An application for an order under this section must specify the property to which the application relates. (3) The DPP may submit evidence in support of the application in the form of an affidavit. -- 7 of 27 -- [2025] SADC 140 4 (4) Subject to subsections (5) and (5a) and Division 3, the court must specify in the restraining order all property specified in the application for the order. (5) The court may only specify property in a restraining order made under subsection (1)(a),(b) or (d) if satisfied that there are reasonable grounds to suspect that the property is— (a) in the case of a restraining order made under subsection (1)(a) or (b)— (i) property of the suspect; or (ii) property of another person (whether or not that other person's identity is known) that— (A) is subject to the effective control of the suspect; or (B) is proceeds of, or is an instrument of, the serious offence; or (b) in the case of a restraining order made under subsection (1)(d)— (i) property of the suspect; or (ii) property of another person (whether or not that other person's identity is known) that is subject to the effective control of the suspect. (5a) The court may not specify property in a restraining order that is protected property of a person unless subsection (1)(c) applies to the property. (6) The court must make a restraining order even if there is no risk of the property being disposed of or otherwise dealt with. (7) The court may specify that a restraining order covers property that is acquired by the suspect after the court makes the order. (8) A restraining order may be made subject to conditions. 10 Relevantly, for the purposes of this application, s 46(2) provides that a restraining order relating to property ceases to be in force if, not more than 28 days after the order was made, the suspect has not been convicted of, or charged with, the serious offence to which the restraining order relates, and no confiscation order or application for a confiscation order has been made. Section 218 of the Act provides that proceedings on an application for a restraining order or forfeiture order are civil proceedings. Pursuant to s 220, the DPP bears the onus of proving, on the balance of probabilities, the matters necessary to establish the grounds for making the restraining order. Procedural history 11 On 22 July 2024, the applicant filed an originating application in this Court in which it sought, inter alia, an order pursuant to s 24(1)(a) of the Act restraining the respondent from dealing with specified property. At that time, as the affidavits filed in support of the application made clear, the restraining order was sought on the basis that it was proposed that the respondent be charged with trafficking in a -- 8 of 27 -- [2025] SADC 140 5 large commercial quantity of a controlled drug contrary to s 32 (1) of the Controlled Substances Act 1984 (SA), which was a serious offence for the purposes of the Act. 12 That application came on for hearing on 5 August 2024. The respondent was represented by counsel. Counsel for the applicant informed the Court that he had received information that the respondent had been charged with the offence of trafficking in a commercial quantity of a controlled drug. There was no evidence of that fact before the Court. Counsel for the respondent advised the Court that the respondent did not consent to the orders but did not wish to make any submissions in opposition to the orders that were being sought by the applicant. Counsel for the respondent further advised that he had not received any instructions that charges had been laid. On 5 August 2024, the Court granted the restraining order based on the circumstance that it was proposed that the respondent was to be charged with a serious offence. In fact, the applicant filed an affidavit affirmed on 8 August 2024, three days after the hearing, confirming that the respondent had been charged on 19 July 2024 with the offence of trafficking in a large commercial quantity of a controlled drug. 13 On 5 August 2024, the respondent took out an interlocutory application seeking to exclude certain property from the restraining order and any forfeiture order that might be made. 14 On 6 August 2024, the respondent took out an interlocutory application in which he sought to refer to the Court of Appeal a question of law, namely the constitutional validity of s 24(1)(a) insofar as it applied to persons who were proposed to be charged. That application was refused. There arose, during the course of argument on that application, an issue as to whether that was the correct course where it was accepted by the parties, including the Attorney-General, that the restraining order was interlocutory.5 If that is the case, then the validity of s 24(1)(a) may not have been strictly in issue. To avoid any doubt about this issue, the respondent filed a further interlocutory application on 27 March 2025 in which he sought an order that the restraining order made on 5 August 2024 be set aside (on the basis that s 24(1) was invalid insofar as it related to persons proposed to be charged). The basis of the respondent’s contention that s 24(1)(a) (insofar as it applies to persons who are proposed to be charged) is constitutionally invalid 15 The respondent contended that s 24(1)(a), in its application to a person who was proposed to be charged, required the court, in determining the precondition to the exercise of its power to grant a restraining order, to be satisfied of one fact: based on the subjective intention of the charging authority, as an entity of the executive, did the charging authority propose to charge the respondent. It was 5 Authority suggests that the restraining order is an interlocutory order. See Director of Public Prosecutions v Cummings [2025] SADC 64, [12]; Ruzehaji v Commissioner of the Australian Federal Police (2015) 124 SASR 355, [65]; [2015] SASCFC 182. -- 9 of 27 -- [2025] SADC 140 6 submitted that the pre-condition was the vital circumstance upon which the power of the court was conditioned and was, in practical terms, the determinative pre- condition to the exercise of power by the court. The subjective intention of the executive (that it proposed to charge the respondent) was practically unreviewable and could not be questioned by the court (except possibly on the ground of mala fides) and therefore s 24(1)(a) required the court to affirm the view of the executive. Therefore, it was submitted, no genuine adjudicative function was conferred on the court and s 24(1)(a) required the court to act as an instrument of the executive. 16 It was submitted that the court was therefore required to make a decision which was pre-ordained by the executive and represented a substantial recruitment of the judicial function of the court to an essentially executive process.6 As such, the enlistment of the court to implement the decisions of the executive was incompatible with the court’s institutional integrity.7 The respondent placed reliance on the decision in South Australia v Totani (Totani)8 and contended that the reasoning and conclusion in Totani was directly applicable to the present case and mandated a conclusion that s 24(1)(a) was constitutionally invalid, at least in its application to persons who are proposed to be charged. 17 The respondent submitted that the present case was distinguishable from cases such as Emmerson9 where the High Court held that the court’s institutional integrity was not impaired even though the condition required for the exercise of power was easily satisfied. The respondent submitted that in Emmerson, the exercise of power that was under consideration was conditional on the finding of an objective fact (the existence of a conviction). However, in the present case it was contended that part of s 24(1)(a) under consideration was conditional only upon the subjective intention of a member of the executive to charge a person. 18 The respondent submitted that proposing to charge a person could not be said to be a normal part of the prosecutorial process and was not an act that had any legislative status. The basis of the contention of the applicant and the Attorney-General that s 24(1) in its application to persons who are proposed to be charged is constitutionally valid 19 The Attorney-General made a number of interrelated submissions in support of a submission that s 24(1)(a), in its application to persons who are proposed to be charged, is constitutionally valid. 20 First, the Attorney-General contended that the fact that the order made under s 24(1)(a) was pre-conditioned on the court being satisfied of a fact that concerned 6 South Australia v Totani (Totani) (2010) 242 CLR 1, [82]; [2010] HCA 39. 7 Ibid. 8 Ibid. 9 (2014) 253 CLR 393; [2014] HCA 13. -- 10 of 27 -- [2025] SADC 140 7 the subjective intention of a member of the executive did not abrogate the impartiality and independence of the court by conferring a substantial adjudicative function on the executive. The Attorney-General relied upon passages from Totani, Emmerson and Fardon v Attorney-General for the State of Queensland (Fardon)10 in support of that contention. The Attorney-General submitted that the requirement that there exist a subjective intention to charge the respondent before a restraining order was able to be made, was subject to challenge. In determining such a challenge, the court engaged in an orthodox adjudicative process. The pre- condition for the exercise of power under s 24(1)(a) was simply a circumstance of which the court was required to be satisfied. There needed to be sufficient evidence to establish that the respondent was a person who was proposed to be charged with a serious offence. The adjudicative process to determine that subjective intention could not be described as illusory. 21 Secondly, the Attorney-General contended that the legislative scheme established in s 24 of the Act is materially different in its structure from the scheme that was under consideration in Totani. It was contended that the subjective intention required under s 24(1)(a) exists independently of the Act and is required as part of the ordinary prosecutorial process. In contrast, in Totani, the subjective intention of the executive was a requirement that was introduced under the Act under consideration, the Serious and Organised Crime (Control) Act 2008 (SA) (the SOCC Act). In Totani, the declaration that was required as a pre-condition before the exercise of the power was a declaration of the executive made under the SOCC Act which existed only for the purpose of the court then exercising its power to make a control order. In those circumstances, the court was being directed by the executive in form and in substance. It was submitted that there was no such direction, in form or in substance, in the present case. Therefore, it was submitted the Court should not find that it had been conscripted into implementing a decision of the executive under the guise of a judicial decision. 22 Thirdly, the Attorney-General contended that the Act, when considered as a whole, imposed a number of other requirements which needed to be satisfied before a restraining order could be made that did not depend on the subjective intention of the executive. These included that the applicant must give an undertaking as to damages and that the court must specify only certain property (that meets the specified criteria) in the restraining order. The fact that these criteria may be easily satisfied does not alter the character of the judicial function. It was not sufficient that the exercise of power by the court was pre-conditioned upon a particular circumstance being established. 23 The fourth ground advanced by the Attorney-General was that the restraining order had a protective purpose, namely to ensure the efficacy of a forfeiture order that might be later made by the Court and therefore to ensure the financial position of the respondent did not deteriorate in the interim period. It was submitted that the restraining order had no permanent effect on the respondent’s property. It was 10 (2004) 223 CLR 575; [2004] HCA 46. -- 11 of 27 -- [2025] SADC 140 8 submitted that this protective and temporary purpose had the consequence that the exercise of judicial power for that purpose did not undermine the institutional integrity of the court and could be distinguished from cases such as Totani. In this regard, the critical and permanent exercise of power is the determination by the court of the forfeiture application that might be later pressed by the applicant. 24 In the alternative, the Attorney-General submitted that in the circumstances of the present case, the restraining order could have been made on 5 August 2024 because the respondent had in fact been charged with a serious offence on that date. Therefore it was contended that the restraining order should not be set aside because there was an alternate, and unimpeached, basis for making the order. 25 The applicant made submissions to similar effect. The applicant placed specific reliance upon the various requirements that the court must be satisfied of before making a restraining order (requirements which extended beyond the court merely being satisfied that the respondent was proposed to be charged). The applicant contended that in those circumstances, the exercise of the power to make a restraining order did not impair the institutional integrity of the court. The process by which the power may be exercised, including procedural matters such as the form and content of the affidavit material and the holding of the hearing in open court were clear indicators, it was submitted, of compliance with the principles set out in Chapter III of the Constitution of the Commonwealth of Australia (the Constitution). 26 Further, the applicant submitted that the charging decision is a routine part of the criminal investigatory process where a defendant might be arrested but not formally charged until the matter was brought back to court when the information was settled. In cases of major indictable offences, generally only the Director of Public Prosecutions, or their delegate, had the power to lay charges. These matters suggested that the requirement that it was proposed to charge the respondent with a serious offence did not undermine the institutional integrity of the court or require the court to act at the direction of the executive. 27 The applicant further contended that the application, if dealt with according to summary judgment or strike out principles, would necessarily fail as there was a proper and ongoing basis for the restraining order and a proposed forfeiture order (if the respondent was later convicted) being made. That basis was the fact that the respondent had been charged with the offence. Therefore, it could not be found that the applicant had no reasonable prospects of success of maintaining the restraining order. Legal principles 28 To put in context the contentions of the parties, it is helpful to set out the principles that govern the circumstances where state legislation might undermine -- 12 of 27 -- [2025] SADC 140 9 the institutional integrity of the court. I have extracted those principles from my judgment in Mrishay.11 29 At common law, judges and the court are required to adhere to certain characteristics when hearing proceedings. These characteristics include that the proceedings be held in public, and each party have a full opportunity to present their own case and meet the case against it.12 The common law may be abrogated by parliament. However, the Constitution may limit legislative power and the exercise of those powers. In this case, the limitation arises from Chapter 3 of the Constitution and in particular ss 71 and 77(iii) which establish an integrated court system and contemplate the exercise of federal jurisdiction by state courts.13 The limitation that was expressed in Kable was that the legislature could not act in a manner that undermined the institutional integrity of the court so as to be incompatible with the court’s role as a repository of federal jurisdiction. 30 The institutional integrity of a court is impaired if the court no longer exhibits in some relevant aspect the defining characteristics which makes a court apart from other decision making bodies.14 These defining characteristics in broad terms impose minimum requirements of independence, impartiality, fairness and adherence to the open-court principle,15 although the High Court has observed that it is not possible to make a single statement embracing all of the aspects of a court.16 Gordon J in Garlett v Western Australia (Garlett) said that it would be futile to attempt some all-embracing characterisation of the circumstances in which a state law might be repugnant or incompatible with the exercise of commonwealth judicial power.17 Edelman J in Garlett referred to the notions of repugnancy and incompatibility as not readily being susceptible of definitions in terms that would dictate future outcomes.18 French CJ in Totani held that the formulation was deliberately non-exhaustive.19 31 Edelman J in Garlett20 referred to the defining characteristics of a court as existing in two dimensions: first, the form in which the power is exercised (e.g. fair rules of evidence and procedure, independence and impartiality of decision making and open justice and the providing of reasons); and secondly, the substantive effect of the exercise of power.21 The institutional integrity of the court 11 [2024] SADC 101, [21]-[28]. 12 Assistant Commissioner Condon v Pompano Pty Ltd (Pompano) (2013) 252 CLR 38, [1]; [2013] HCA 7. 13 Ibid [4]; Attorney-General (NT) v Emmerson (Emmerson) (2014]) 253 CLR 393, [40]; [2014] HCA 13. 14 Pompano (2013) 252 CLR 38, [67]; [2013] HCA 7. 15 South Australia v Totani (Totani) (2010) 242 CLR 1, [62]; [2010] HCA 39. 16 Emmerson (above), [44]; [2010] HCA; Kuczborski v State of Queensland (2014) 254 CLR 51, [104]; [2014] HCA 46. 17 (2022) 277 CLR 1, [182]; [2022] HCA 30. 18 Ibid [242]. 19 Ibid. 20 (2022) 277 CLR 1, [243]; [2022] HCA 30. 21 Ibid [243] and [245]. -- 13 of 27 -- [2025] SADC 140 10 is compromised where the substantive effect of the exercise of judicial power, which is judicial in its formal dimensions, is exercised unjudicially.22 32 The characteristics that have been held to come within the defining characteristics of a court include:23 • The reality and appearance of decisional independence and impartiality; • The application of procedural fairness; • The adherence as a general rule to the open court principles; and • The provision of reasons for the court’s decisions. 33 As the plurality held in Emmerson,24 the characteristic of decisional independence and impartiality is not met when the legislature directs or requires a political decision or government policy to be implemented without following ordinary judicial process. The principle will be contravened where the legislature directs the court to implement decisions of the executive in a manner repugnant to or inconsistent with the court’s continued institutional integrity. Thus, Gummow J in Totani25 referred to the court being called upon to act at the behest of the Attorney-General to implement the legislative policy contained within the Act under consideration to an impermissible degree and therefore to act in a fashion incompatible with the proper discharge of federal judicial responsibilities and with its institutional integrity. 34 The High Court has consistently emphasised that the principles set out in Kable are usually of limited application. In Fardon,26 McHugh J held: In my opinion, Kable does not govern this case. Kable is a decision of very limited application. That is not surprising. One would not expect the States to legislate, whether by accident or design, in a manner that would compromise the institutional integrity of their courts. Kable was the result of legislation that was almost unique in the history of Australia.” 35 McHugh J also held that the same legislation even if it is repugnant to the traditional judicial process will seldom, if ever, compromise the institutional integrity of that court to the extent that it affects the court’s capacity to exercise federal jurisdiction impartially and according to federal law. 36 Kiefel CJ, Keane and Steward JJ stated in Garlett that the principle in Kable must be understood in the context that all legislation reflects political decisions and government policy as a source of laws and it is the essential role as a judiciary 22 Ibid. 23 Pompano (2013) 252 CLR 38, [67]; [2013] HCA 7. 24 Emmerson (2014]) 307 ALR 174, [44]; [2014] HCA. 25 (2010) 242 CLR 1, [149]; [2010] HCA 39. 26 (2004) 223 CLR 575, [41]; [2004] HCA 46. -- 14 of 27 -- [2025] SADC 140 11 to enforce those laws by the exercise of judicial powers.27 Edelman J in Gartlett held that the threshold for the impairment of such a vaguely stated constitutional presupposition must be very high.28 French CJ and Kiefel J in Wainohu v New South Wales (Wainohu)29 observed that the requirement of compatibility with the Kable doctrine which is functionalist rather than formalist in character must be approached with restraint. French CJ and Kiefel J approved the statement expressed by Professor Enid Campbell that the incompatibility doctrine had the potential of being applied by courts in ways that some might regard as being over- protective of those institutions and insufficiently attentive to the assessments of elected parliaments about what functions are appropriate for courts to perform.30 Kirby J in Fardon31 observed that the circumstances that would involve the principle of repugnancy in terms of the Kable principle must be extraordinary and that the courts are normally respectful of the separation of the judicial power and of the constitutional functions assigned to courts. Kirby J also observed that the law in Kable was directed at one person only.32 In K-Generation Pty Ltd v Liquor Licensing Court,33 Kirby J observed that in most cases where Kable has been invoked, the legislation under consideration involves unusual and atypical features and contains apparent departures from rules normally observed in legislation affecting Australian courts. 37 The High Court has recognised that it is well established that legislators can require a court to make an order provided certain conditions are satisfied. In Emmerson,34 French CJ, Hayne, Crennan, Kiefel, Bell, and Keane JJ held:35 It is well established that Australian legislatures can empower courts to make specified orders if certain conditions are satisfied, even if satisfaction of such conditions depends on a decision, or application, made by a member of the Executive. Such provisions are not, for that reason alone, taken to trespass on the judicial function or to be impermissibly determinative of the outcome of an exercise of jurisdiction. In selecting the Supreme Court as the repository of a power to determine a particular fact or status, in the absence of any express or implicit contrary legislative intention, it can be inferred that Parliament accepts that the power will be exercised in accordance with standards characterising ordinary judicial process. [citations omitted] 27 (2022) 277 CLR 1, [60]; [2022] HCA 30. 28 Ibid [242]. 29 (2011) 243 CLR 181, [52]; [2011] HCA 24. 30 Ibid. 31 (2004) 223 CLR 575, [144(1); [2004] HCA 46. 32 Ibid [144(2)]. See also Emmerson (above), [62] where the plurality referred to the ad hominem nature of the legislation in Kable. 33 (2009) 237 CLR 501, [255]; [2009] HCA 4. 34 (2014) 253 CLR 93; [2014] HCA 13. 35 Ibid, [57] and [58]. -- 15 of 27 -- [2025] SADC 140 12 The plurality in Emmerson quoted from the decision of McHugh J in Fardon36 where his Honour held: The exercise of judicial power often involves the making of orders upon determining a particular fact or status exists. It does so, for example, in the cases of matrimonial causes, bankruptcy, probate and the winding up of companies. 38 The plurality in Emmerson went on to hold that:37 That attack is based on a misconception of the Supreme Court’s powers and duties under the statutory scheme. The Supreme Court is authorised to determine whether the statutory criteria set out ae satisfied and, if they are, the Court must make the declaration sought. The Forfeiture Act provides the consequences which follow from the Supreme Court’s declaration. Together, these steps are an unremarkable example of conferring jurisdiction on a court to determine a controversy between parties which, when determined, will engage stated statutory consequences. 39 The same point was made by French CJ in Totani38 where he held, quoting from Baker v R,39 that “in general a legislature can select whatever factum it wishes as the trigger for a particular legislative consequence.” Determination 40 The court must determine whether the Kable principle has been infringed because the impartiality of the court has been abrogated and therefore the institutional integrity of the court undermined. The critical question is whether this impartiality has been abrogated because the court is merely implementing a decision of the executive and has therefore been recruited to perform an essentially executive process. That question requires the court to consider the asserted repugnancy or incompatibility that is posed by the Act and consider that in the context of any procedural or substantive requirements which might safeguard the institutional integrity of the court.40 41 The decision and reasoning in Totani is critical to the determination of the respondent’s application and therefore requires further consideration. 42 The legislation under consideration in Totani was the SOCC Act. Section 10 of the SOCC Act gave the Attorney-General the power to make a declaration in respect to an organisation if the Attorney-General was satisfied that: members of the organisation associated for the purpose of organising, planning, facilitating, supporting or engaging in serious criminal activity; and the organisation represents a risk to public safety and order in this State. 36 (2004) 223 CLR 375, [34]; [2004] HCA 46. 37 (2014) 253 CLR 93, [60]; [2014] HCA 13. 38 (2009) 237 CLR 501, [71]; [2009] HCA 4. 39 (2004) 223 CLR 513, [43]; [2004] HCA 45. 40 Nguyen v Director of Public Prosecutions (2019) 59 VR 27, [150], [2019] VSCA 20. -- 16 of 27 -- [2025] SADC 140 13 Section 14 of the SOCC Act then provided that: The Court must, in application by the Commissioner, make a control order against a person (the defendant) if the Court is satisfied that the defendant is a member of a declared organisation. 43 It was held by the High Court that s 14 of the SOCC Act was invalid as it authorised the executive to enlist the aid of the court to implement the decisions of the executive in a way that was repugnant or incompatible with the exercise of judicial power. By doing to, the legislation was incompatible with the institutional integrity of the court. 44 French CJ held that one of the assumptions that underlie the mechanism that is established under Chapter III of the Constitution is that courts of the states must bear the characteristics of courts including independence, impartiality, fairness and adherence to the open-court principle.41 That list is non-exhaustive.42 Relevantly, for present purposes, decisional independence is a necessary condition of impartiality.43 45 These principles led French CJ to hold that a law that in reality or appearance subjected a court to a direction from the executive as to the content of judicial decisions was invalid.44 French CJ observed that the power of the court under s 14 of the SOCC Act to make a control order against a person was based on that person’s membership of an organisation declared by the Attorney-General in circumstances where that declaration depended on findings made by the Attorney- General that members of that organisation, who need not be specified, have committed criminal offences for which they may never have been charged or convicted. The court may be unaware of and have no ability to question those findings.45 French CJ concluded:46 The submissions made on behalf of the State of South Australia did not, with respect, diminish the dominance of the executive act of declaration of an organisation and the findings of fact behind it in determining for all practical purposes the outcome of the control order application. While it is true that membership can be contested, the breadth of the definition of "member" is such that, given any evidential basis for the contention that the defendant is a member, the practical burden of disproof is likely to fall upon the defendant. Section 14(1) represents a substantial recruitment of the judicial function of the Magistrates Court to an essentially executive process. It gives the neutral colour of a judicial decision to what will be, for the most part in most cases, the result of executive action. That executive action involves findings about a number of factual matters including the commission of criminal offences. None of those matters is required by the SOCC Act to be disclosed to the Court, nor is the evidence upon which such findings were based. In some cases the evidence, if properly classified as "criminal intelligence", would not be 41 (2010) 242 CLR 1, [61]-[62], [2010] HCA 39. 42 Ibid, [62]. 43 Ibid. 44 Ibid, [71]. 45 Ibid, [75]. 46 Ibid, [81] and [82]. -- 17 of 27 -- [2025] SADC 140 14 disclosable. Section 14(1) impairs the decisional independence of the Magistrates Court from the executive in substance and in appearance in areas going to personal liberty and the liability to criminal sanctions which lie at the heart of the judicial function. 46 These principles can be summarised in the following terms. First, it is the substantial recruitment of the judicial function to an executive process that might impair the institutional integrity of the court. It does so because it gives the Court’s imprimatur to an executive process. The court is recruited if, in substance or in form or for all practical purposes, it is subject to a direction from the executive as to how it must act. Secondly, the fact that the court might retain some residual discretion (in Totani, that was determining whether or not the respondent was a member of a relevant organisation) was not necessarily sufficient to avoid the conclusion that the court has been recruited. Thirdly, the nature of the executive function is relevant. In Totani, the executive made findings about a number of factual matters, including the commission of criminal offences, which did not have to be disclosed to the court. The court was therefore unable to question or go behind the declaration. 47 Gummow J in Totani reached the same conclusion but placed greater emphasis on the structure of the SOCC Act and the relationship between the making of the declaration by the executive and the control order by the court. Gummow J held:47 The place of s 14(1) in the scheme of the Act is that it supplements the exercise by the Attorney-General of the politically accountable function conferred by Pt 2 with respect to the declaration of organisations. But that supplementation involves the conscription of the Magistrates Court to effectuate that political function. This is achieved by obliging the Magistrates Court to act upon the declaration by the executive, by making a control order in respect of the defendant selected by the Commissioner, subject only to the satisfaction of the Magistrates Court that the defendant is a member of the declared organisation. It is the declaration by the executive which provides the vital circumstance and essential foundation for the making by the Magistrates Court of the control order. 48 The basis of the decision of Gummow J was that the making of the control order by the court supplemented the exercise of political function by the executive to make a declaration. The two acts, the declaration and the control order, worked together to achieve the purposes of the SOCC Act. Gummow J also referred to the declaration by the executive as being the vital circumstance and essential foundation for the making of the control order by the court. 49 Hayne J in Totani also made his finding that s 14 of the SOCC Act was invalid because of the legislative plan under the SOCC Act to conscript the court to make the control order. Hayne J referred to the comments made by Gummow J in Fardon48 that it was the particular combination of factors in Kable that led to its 47 Ibid, [142]. 48 Fardon, [100]-[105]. -- 18 of 27 -- [2025] SADC 140 15 invalidity and that these factors included the apparent legislative plan to conscript the court to procure the imprisonment of the defendant.49 50 Crennan and Bell JJ observed that it was permissible that a court might be required to act on the factum determined by the executive and that, without more, that factor alone did not impermissibly impair the institutional integrity of the court.50 Their honours also found that it was accepted that the exercise of judicial power may involve the making of an order upon determining a particular status exists (e.g. bankruptcy, probate or matrimonial causes).51 However, the Kable principle may operate when the court’s adjudicative functions are confined to merely implementing the executive determination. Ultimately, Crennan and Bell JJ found that the court’s powers to make a control order were so confined and dependent on the executive’s determination in making the declaration that the court was drawn into implementing the legislative policy expressed in the objects of the SOCC Act. The court, because it did not undertake any independent adjudication or determination of the premise of the application for a control order by the Commissioner of Police that a particular defendant might pose risks in terms of the objects of the SOCC Act, acted an instrument of the executive. 51 The final member of the majority in Totani was Keifel J. Her Honour’s decision was based on a finding that the exercise of the power by the court to grant the control order was based in an unstated premise namely to give effect to an assumption or premise concerning the executive’s declaration and the characteristics of persons who are members of the organisation declared. Thus Kiefel J held:52 It [the court order making a control order] can only be understood to proceed upon some unstated assumption concerning all persons who are identified by the Attorney-General's declaration and by reference to the obligation cast upon the Court to make an order with respect to a person so identified. It is to be inferred from the Act that it is the aim of the Executive that all persons identified by the declaration made by the Attorney-General are to have their liberty to associate restricted. This is the end which the declaration serves but to which it cannot give effect. The Court is directed to bring this result about. Its action, in making the order, gives the appearance of its participation in the pursuit of the objects of the Act. Properly understood, however, the making of the order serves to disguise an unstated premise and the lack of any illegality attaching to membership of a declared organisation. 52 Returning to the question of whether the impartiality of the court has been abrogated because the court is allegedly implementing the decision of the executive and therefore has been recruited to perform an essentially executive process, it is necessary to examine the various aspects of the exercise of the power to make a restraining order under s 24(1)(a) of the Act on the basis that the respondent is proposed to be charged with a serious offence. No one aspect of the 49 (2010) 242 CLR 1, [204], [2010] HCA 39. 50 Ibid, [420]. 51 Ibid. 52 Ibid, [478], [480]. -- 19 of 27 -- [2025] SADC 140 16 exercise of the power is necessarily decisive. This accords with the statements made by Hayne J in Totani and Gummow J in Fardon that it is the particular combination of facts that might lead to invalidity. There are a number of matters that need to be considered in the present matter. 53 First, the respondent places significant weight on the fact that the court’s exercise of the power to grant a restraining order is conditional upon satisfaction of a subjective matter, namely the state of mind or intention of a member of the executive that the respondent is proposed to be charged with a serious offence. It is well established that the court may make an order if certain conditions are satisfied, “even if satisfaction of such conditions depends on a decision, or application, made by a member of the executive.”53 In making this statement in Emmerson, French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ relied upon a statement made by Barwick CJ in Palling v Corfield.54 Barwick CJ held: Also it is within the competence of the Parliament to determine and provide in the statute a contingency on the occurrence of which the court shall come under a duty to impose a particular penalty or punishment. The event or the happening on which a duty arises or for that matter a discretion becomes available to a court in relation to the imposition of penalties or punishments may be objective and necessary to have occurred in fact or it may be the formation of an opinion by the court or, in my opinion, by some specified or identifiable person not being a court. 54 French CJ also referred to Palling v Corfield55 and held that in general, a legislature can select whatever factum it wishes as the trigger of a particular legislative consequence (although the legislature cannot authorise a law which subjects a court in reality or appearance to a direction from the executive as to the content of judicial decisions). As stated by of Barwick CJ in Palling v Cornfield (and approved in Emmerson and French CJ in Totani), the factum that it selected by the legislature may be an opinion of a specified person. Crennan and Bell JJ in Totani also stated that the exercise of judicial power can be dependent on a particular status determined by the executive. 55 These authorities do not support a contention that if the exercise of power depends on a subjective state of mind of the member of the executive, the institutional integrity of the court is undermined because the court is being recruited to perform an executive process. In fact, these authorities support the contention that it is permissible to require the court to act on the basis of a particular status or state of affairs, including a state of mind. 56 Further, I do not consider that it is correct to characterise the words “it is proposed that the person be charged” in s 24(1)(a) as entirely subjective. In Cunliffe v Goodman,56 Asquith LJ held that the expression “proposes’ describes a 53 Emmerson (2014) 253 CLR 393, [57]; [2014] HCA 13. See also Fardon (2004) 223 CLR 575, [34]; [2004] HCA 46. 54 (1970) 123 CLR 52, 58-59; [1970] HCA 53. 55 (2010) 242 CLR 1. [71], fn 186; [2010] HCA 39. 56 [1950] 1 ALL ER 720, 725; [1950] 2 KB 237, 254. -- 20 of 27 -- [2025] SADC 140 17 state of mind somewhere between mere consideration of a possible course of action at one extreme and a fixed and irrevocable determination to pursue that course of action at the other. In the present case, under ss 6A and 7 of the Director of Prosecutions Act 1991 (SA) (the DPP Act), it is the Director or their delegate that has the power to lay charges. In this context, the expression “proposes to be charged” connotes consideration by the Director or their delegate and then some form of decision that the respondent is proposed to be charged. The decision or determination is not irrevocable and may be less than a formal charge but represents some form of decision or determination. That being the case, the decision of the Director or their delegate cannot be characterised as entirely subjective. 57 Secondly, the court is able to adjudicate upon the basis of the application by the executive. In Totani, the basis of the application by the executive for the control order was the declaration made about the organisation which the court could not challenge or go behind. That was an important part of the reasoning of French CJ, Crennan and Bell JJ and Kiefel J in Totani. 58 In the present case, the application for a restraining order relied upon the evidence before the court that it was proposed that the respondent would be charged with a serious offence. As with all evidence, that asserted fact could be challenged. The basis of that belief of the deponent could be the subject of cross- examination, the decision-making process of the prosecuting authority could be questioned and whether a decision had been made, or was intended to be made, and at what level. If the deponent of the affidavit was the investigating officer, it might be argued that his or her power consisted only of recommending that charges may be laid and that the decision-making power lay elsewhere. A bare assertion by the deponent that it was proposed that the respondent would be charged with a serious offence would not be sufficient. The deponent could be cross-examined that the DPP Act required the Director or their delegate to make the decision to lay charges. If the Director proposed to lay charges, there may be a note of that. The absence of any note might give rise to an inference that it could not be concluded that a particular respondent was proposed to be charged. 59 I therefore do not accept the submission of the respondent that the circumstances relied upon, namely that it was proposed to charge the respondent, was unreviewable except in very limited circumstances such as mala fides. I consider that there is a genuine adjudicative function to be undertaken by the court and the court cannot be said to be subject to a direction from the executive, in substance or in form, as to how it must act. The exercise of the power to order the restraining order by the court cannot be described as illusory. That position is very different from Totani where French CJ held that the declaration in that case depended on findings by the Attorney-General of which the court may be unaware of and have no ability to question. 60 Thirdly, the power to lay charges exists outside of the Act and under the DPP Act. Although there is no formal act of “proposing to charge” under the DPP Act, -- 21 of 27 -- [2025] SADC 140 18 I am satisfied that the requirement that it is proposed to charge a defendant requires an analysis of the prosecutorial process and the stage that the investigation has reached. Guidelines have been published which set out how the prosecutorial discretion is exercised. A decision or determination that it is proposed to charge a defendant is not a decision or determination that is made under the Act, but is made under the DPP Act. The decision or determination of the executive is part of the ordinary prosecutorial process. 61 In those circumstances, it cannot be said that the power of the court to grant a restraining order draws the court into implementing the legislative policy expressed in the Act and is made through the exercise of executive power. In contrast, the legislation in Totani exhibited a legislative scheme in which the executive would first make a declaration about a particular organisation and then use that declaration to make a finding that the respondent was a member of that organisation and then make a control order in relation to the respondent. The declaration was made for the sole purpose that a control order could then be made. In this way, it was found that the court had been recruited to effect the purpose of the executive as provided for in the SOCC Act. 62 In the present case, any proposal to charge the respondent exists outside and independently of the Act. The proposal to charge and the making of the restraining order is not part of the legislative policy expressed in the Act to make the court act at the behest of the executive. The proposal to charge is not a politically accountable function. The making of the restraining order by the court under the Act does not supplement the executive act of deciding that it intends to prosecute the respondent. Gummow J in Totani placed reliance on the scheme of the SOCC Act in the making of the control order to supplement the political act of determining what organisations should be targeted. Kiefel J in Totani held that the aim of the exercise of power by the executive was that all persons identified by the declaration made by the Attorney-General were to have their liberty to associate restricted. There is no such aim (or any collateral aim) in the present case that arises from the decision of the executive that it intends to prosecute the respondent. Therefore, the making of the restraining order cannot be said to be conscripting the courts into giving efficacy to that objective of the executive. 63 Fourthly, the power of the court to determine whether to grant a restraining order under the Act is not as confined as the power to make a control order under the SOCC Act that was considered in Totani. Under the Act, the court must be satisfied of a number of matters before it makes a restraining order. The property must be specified under s 24(2); the court must only specify property under s 24(5) which it has reasonable grounds to suspect is the property of the respondent, under effective control of the respondent or the proceeds or instrument of a serious offence; the property must not be protected property under s 24(5a) (except in the case of an application made under s 24(1)(c)); and the applicant must provide an undertaking as to damages pursuant to s 26(2). In Totani, the court needed to be satisfied of only one matter apart from the declaration, namely that the respondent was a member of the organisation. -- 22 of 27 -- [2025] SADC 140 19 64 The respondent argued that the circumstance that he was proposed to be charged was the vital circumstance that conditioned the exercise of the power by the court to make a restraining order. As in Totani (where it was necessary to establish that the respondent was a member of the declared organisation) that conclusion could be reached, it was argued, notwithstanding that there were other requirements, albeit limited, provided for under the Act. 65 Whether a particular requirement can be characterised as the vital circumstance required for the exercise of a power is a matter of degree. In Totani, the declaration was held to be the vital circumstance, notwithstanding the requirement that the respondent be found to be a member of the organisation. However, in Totani the declaration of the organisation was the vital circumstance because under the SOCC Act, the court was required to act on the assumption that membership of the organisation required the imposition of limits on the freedom of the respondent even though the respondent may not have been convicted of any unlawful activity and membership of the organisation was not in itself illegal. In the present case, the proposal to charge the respondent was not the basis for any assumption about the conduct of the respondent or the need for the making of a restraining order. In fact, under s 24(6) of the Act, a restraining order can be made if there is no risk of the property being disposed of or dealt with. 66 Fifthly, the applicant and the Attorney-General placed reliance on the temporary duration of the restraining order which is made in respect of a respondent who is proposed to be charged. It was contended that such a limited duration of any order militated against a conclusion that the Act impaired the institutional integrity of the court. 67 I do not accept that contention for three reasons. Section 46(2) of the Act does not lead to the conclusion that the restraining order ceases after 28 days. Section 46 imposes two requirements if a restraining order is to cease to have any effect after 28 days. They are: (1) the respondent has not been convicted or charged with the relevant serious offence; and (2) there is no confiscation order or application for a confiscation order (which is defined in s 3 to include a forfeiture order). In the present case, there is an application for a forfeiture order in the originating application. 68 Further, as a matter of principle, if the operation of the Act undermined the institutional integrity of the court by conscripting the court to perform the act of the executive, there is no reason why that conclusion should not be drawn because the order was to operate only for a short time. In such a case, the court has, in form and in substance, acted at the direction of the executive. 69 Still further, there is support for the position that the limited time period in which an order might operate does not alter a conclusion that the institutional integrity of the court has been undermined. In International Finance Trust Co Ltd -- 23 of 27 -- [2025] SADC 140 20 v New South Wales Crime Commission (International Finance),57 French CJ held that it was not to the point that the particular intrusion upon the judicial function is confined in scope and limited in time and by procedural matters. French CJ went on to hold that such a calculus does not accord sufficient significance to the quality of the intrusion upon the judicial function. 70 Counsel for the Attorney-General referred to the decision of the New South Wales Court of Appeal in New South Wales Crime Commission v Ollis (Ollis)58 (which was referred to in the judgment of Gummow and Bell JJ in International Finance).59 In Ollis, it was held that the scheme of the Act there under consideration was not consistent with permitting a further application to be made which involved the reconsideration of the reasonableness of the suspicion that was formed when the restraining order was granted. In reaching this conclusion, the Court in Ollis referred to the limited nature of the appeal from a decision of the judge that there were reasonable grounds for the suspicion. It was in this context that the comment was made by Gummow and Bell JJ in International Finance about the significance of the limited nature of the appeal. The comment is not applicable to the question whether an intrusion upon the judicial function that is limited in time can still undermine the institutional integrity of the court. 71 Counsel for the Attorney-General also referred to the judgment of Heydon J in International Finance where his Honour held that the failure of the legislation under consideration to give the court the power to determine whether the circumstances were sufficient to justify an ex parte order or make an order which lasted only for a short time did not create the repugnancy if an order that was wrongly made could be dissolved quickly.60 The repugnancy was created because there was no ability to apply to dissolve the order.61 That statement does not appear to directly contradict the conclusion reached by French CJ that it was not to the point that the intrusion into the judicial function was confined in time. Hedyon’s J finding that the legislation was repugnant was based on the fact that there was no ability to dissolve the ex parte restraining order. 72 Sixthly, the applicant submitted that the present case could be distinguished from Totani in relation to the subject matter of the order that was made. In Totani, the SOCC Act operated so as to restrict the personal liberties of a respondent including their freedom of movement. In the present case, the respondent’s ability to deal with their property interests is restricted although only for a limited period of time namely until they are either convicted, in which case a forfeiture ordered will be made, or acquitted, in which case the restraining order will cease. This period may exist for a number of years. 57 (2009) 240 CLR 319, [57]; [2009] HCA 49. 58 (2006) 65 NSWLR 478, [2006] NSWCA 76, [60]-[61]. 59 (2009) 240 CLR 319, [90]; [2009] HCA 49. 60 Ibid, [158]. 61 Ibid, [159]. -- 24 of 27 -- [2025] SADC 140 21 73 I do not consider that the difference in subject matter of the present case affects the way in which the principles are set out in Kable are applied. In each case, the exercise of important civil rights of the respondent are restricted. The inability to dispose of or deal with assets pending trial represents a significant restriction on the rights of the owner of property. Conclusion regarding the Kable principle 74 Section 24(1)(a) of the Act, in its application to persons who are proposed to be charged, does not infringe the Kable principle and does not operate so as to undermine the institutional integrity of the court and is not incompatible with the court’s role as a repository of federal jurisdiction. The requirements and procedures established under the Act for the exercise of judicial power to make a restraining order are substantially different in their nature and operation to those considered in Totani. 75 I have reached the conclusions set out in the preceding paragraph for the four principal reasons that were identified earlier in these reasons. 76 First, the exercise of power to make a restraining order is conditional upon the occurrence of a particular circumstance. That occurrence is that the respondent is proposed to be charged with a serious offence. An exercise of power based on the satisfaction of a condition has been held by the High Court in Emmerson and Fardon to be a valid exercise of power. The fact that the condition relates, or arguably relates, to the subjective state of mind of the executive does not alter that conclusion. 77 Secondly, the court is able to adjudicate on the issue of whether a respondent is proposed to be charged. The evidence that is put forward in support of the application can be challenged. In Totani, the court could not go behind the declaration. The court therefore undertakes a genuine adjudicative function. 78 Thirdly, the determination that it is proposed to charge a person is part of the ordinary prosecutorial process undertaken by the applicant and exists outside of the Act and as part of the DPP Act. In these circumstances, the power of the court to grant a restraining order does not draw the court into implementing the executive decision that is part of the scheme of the Act. Unlike the declaration in Totani, the proposal to charge a respondent has a function beyond that of merely implementing the scheme of the Act. 79 Fourthly, the court also must adjudicate on a number of other matters before granting a restraining order. The power of the court to determine whether or not to grant a restraining order under the Act is not unduly confined. Setting aside application 80 It follows that because I have found that the Act does not interfere with or undermine the institutional integrity of the court, there is no basis to allow the application of the respondent to set aside the restraining order. -- 25 of 27 -- [2025] SADC 140 22 81 The alternate basis for refusing the application, advanced by the applicant and the Attorney-General, therefore does not arise. That alternate contention was that the setting aside application should be refused because another basis for making the restraining order, namely that the respondent had in fact been charged, existed at the time that the restraining order was made. Therefore, it was contended that even if the Act was constitutionally invalid insofar as it related to a restraining order based on the fact that the respondent was proposed to be charged, the court would not grant the setting aside application. There existed, it was submitted, an alternate and unimpeached basis for making the restraining order. 82 In support of that argument, the applicant submitted that the court should consider the setting aside application at the time that the application was made. At that time, it was not the factual reality that the respondent was proposed to be charged but that he had in fact been charged. Therefore, it was submitted that there was a proper basis for the restraining order and the order should not be set aside. 83 I do not accept that argument for the following reasons. 84 First, I do not accept that the setting aside application should be determined according to the circumstances that exist at the time of that application. It would be a jurisdictional error to have made the decision to grant the restraining order relying on a provision that was constitutionally invalid. Counsel for the respondent referred to a number of authorities, which I accept, that in the case of jurisdictional error, the court looks to the circumstances that existed at the time that the order was made.62 It is not to the point that the order might be valid until set aside (which was the decision made in Kable). French CJ in International Finance63 approached the question as to whether there had been unjustified intrusion into the judicial function by reference to the events that existed at the time that the order was made.64 85 Secondly, under r 103.3 of the Uniform Civil Rules 2020 (SA)(UCR), the Court may make a later order varying or setting aside an earlier interlocutory order. The restraining order, as an interlocutory order, may be set aside if the interests of justice so require. The restraining order was made on the basis of the evidence before it at the time that the order was made. That evidence was that the respondent was proposed to be charged. There was no evidence that he had been charged. If the applicant wished to proceed on the latter basis, it could have sought to adjourn the proceedings to put on the necessary evidence. In fact, it could have put on that evidence prior to the hearing, but did not do so. 86 If it was the case that the exercise of the power was constitutionally invalid, it would follow that the order was made without power and was therefore invalid. It would be in the interests of justice that it be set aside. The invalidity cannot be 62 LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321, [10]-[11]; [ [2012] HCA 10. 63 (2009) 240 CLR 319; [2009] HCA 47. 64 Ibid, [48] and [57]. -- 26 of 27 -- [2025] SADC 140 23 saved by subsequent events. The applicant could choose to put on a new application, with further evidence, to support an application for a restraining order based on the fact that the respondent had been charged. The court may then decide to grant the restraining order from that date. Conclusion 87 For the reasons that I have expressed, I do not consider that s 24(1)(a) of the Act, in its application to persons who are proposed to be charged, operates so as to undermine the institutional integrity of the court and is incompatible with the court’s role as a repository of federal jurisdiction. This ground was the only basis advanced by the respondent for an order to be made setting aside the restraining order. It therefore follows that the application of the respondent to set aside the restraining order should be dismissed. 88 I will hear the parties as to costs. -- 27 of 27 --