DIRECTOR OF PUBLIC PROSECUTIONS FOR THE STATE OF SOUTH AUSTRALIA v MICHAEL ETHAN MURPHY [2025] SADC 142

Applicant: DIRECTOR OF PUBLIC PROSECUTIONS FOR THE STATE OF SOUTH AUSTRALIA Counsel: MR J SLOCOMBE - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) First Respondent: MICHAEL ETHAN MURPHY Counsel: MR W MICKAN - Solicitor: PATSOURIS AND ASSOCIATES Second Respondent: LIONEL GREGORY HAMDORF Counsel: MR W MICKAN - Solicitor: PATSOURIS AND ASSOCIATES First Interested Party: NARAN CHORN Counsel: MR W MICKAN - Solicitor: PATSOURIS AND ASSOCIATES Second Interested Party: ATTORNEY-GENERAL Counsel: MR B GARNAUT - Solicitor: CROWN SOLICITOR (SA) : Applicant: DIRECTOR OF PUBLIC PROSECUTIONS FOR THE STATE OF SOUTH AUSTRALIA Counsel: MR J SLOCOMBE - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Respondent: CHARALAMPOS KIOURTSIDIS Counsel: MR W MICKAN - Solicitor: PATSOURIS AND ASSOCIATES First Interested Party: WESTPAC BANKING CORPORATION No Attendance Second Interested Party: ATTORNEY-GENERAL Counsel: MR B GARNAUT - Solicitor: CROWN SOLICITOR (SA) Hearing Date/s: 31/07/2024 File No/s: CIV-20-000338, CIV-21-012180 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. DPP v MURPHY & ORS, KIOURTSIDIS [2025] SADC 142 Reasons of his Honour Judge Durrant 10 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 - FORFEITURE OR CONFISCATION HIGH COURT AND FEDERAL COURT - THE FEDERAL JUDICATURE - NATURE AND EXTENT OF JUDICIAL POWER - CONFERRAL ON STATE COURTS -- 1 of 26 -- The applicant obtained restraining orders against each respondent in respect of their property. The respondents were subsequently convicted of serious drug offences and consequently each became a prescribed drug offender. The Criminal Assets Confiscation Act 2005 (SA) provides for the confiscation of the proceeds and instruments of their crimes and of their property as an additional punishment. The respondents challenge the lawfulness of applications made by the applicant for declarations their property is forfeit as constitutionally invalid and incompatible with the principle identified in Kable v Director of Public Prosecutions NSW (1996) 189 CLR 51. The Kable principle concerns that the Commonwealth constitution established an integrated court system which contemplates the exercise of federal jurisdiction by state courts and makes invalid State legislation which purports to confer on such a court a power which substantially impairs that court's institutional integrity incompatibly with that courts role as a repository of federal jurisdiction. Held: (1) Section 56A of the Criminal Assets Confiscation Act 2005 (SA) is not to be construed on the basis there is a limitation in relation to the extent to which property is to be forfeited pursuant to an order deemed to have been made under subdivision 1 proportionate to the property which is the proceeds of the property to which is an instrument of the offence or offences which engage subdivision 1A, Division 1, Part 4 of that Act. (2) Subdivision 1A, Division 1, Part 4 of the Criminal Assets Confiscation Act 2005 (SA) is not invalid on the basis that it confers functions on a Chapter III Court which are incompatible with the proper discharge of the court's function as a repository of federal jurisdiction and with its institutional integrity. Criminal Assets Confiscation Act 2005 (SA) ss 3, 6, 7, 24, 27, 47, 55, 56, 58, 59, 74, 76, 95, 209; Misuse of Drugs Act 1990 (NT) s 36; Criminal Property Forfeiture Act 2002 (NT) ss 44, 94; District Court Act 1991 (SA) s 44; Legislation Interpretation Act 2021 (SA) s 14; Australian Constitution (Cth) s 77; Judiciary Act 1903 (Cth) s 39; Serious and Organised Crime (Control) Act 2008 (SA), referred to. Kable v Director of Public Prosecutions (NSW) [1996] 189 CLR 51; Director of Public Prosecutions for the State of South Australia v Soniard Mrishaj & Anr [2024] SADC 101; Attorney-General (NT) v Emmerson (2014) 253 CLR 393; Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs [1992] HCA 64; Polyukhovich v Cth (1991) 172 CLR 501; Haskins v Cth (2011) 244 CLR 22; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; CIC Insurance v Bankstown Football Club Ltd (1997) 187 CLR 384; SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; Forge v Australian Securities and Investments Commission (2006) 288 CLR 45; Attorney-General (NT) v Emmerson (2014) 253 CLR 393; Assistant Commissioner Condon v Pompano Pty Ltd (2013) 252 CLR 38; Fardon v A-G (Qld) (2004) 223 CLR 575; South Australia v Totani (2010) 242 CLR 1; Assistant Commissioner Condon v Pompano Pty Ltd (2013) 252 CLR 38; Gartlett v Western Australia (2022) 277 CLR 1; Western v Director of Public Prosecutions (SA) (2017) SASCFC 177; Kuczborski v Queensland (2014) 254 CLR 51; Durham Holdings Pty Ltd v New South Wales (2001) 205 CLR 399; Donnelly v Director of Public Prosecutions (SA) [2024] SASCA 45; Director of Public Prosecutions v Dalibor Drazetic; Director of Public Prosecutions v MJP [2022] SASC 35, considered. -- 2 of 26 -- DPP v MURPHY & ORS, KIOURTSIDIS [2025] SADC 142 Introduction, Background and Questions of Law 1 Upon separate applications of the Director of Public Prosecutions (the DPP), this Court granted restraining orders under the Criminal Assets Confiscation Act 2005 (SA) (the Act). 2 First, in respect of the interests of Charalampos Kiourtsidis in a property at Salisbury North, two motor vehicles, and cash,1 and second, in respect of the interests of Michael Murphy in a property situated in Richmond, cash, and money held in a Westpac account.2 3 Mr Kiourtsidis and Mr Murphy (the respondents) have since been convicted of ‘serious drug offence[s]’ and are accordingly each a ‘prescribed drug offender’.3 4 Mr Murphy was convicted of the offence of trafficking in a large commercial quantity of a controlled drug. His ‘conviction day’ is 5 April 2022.4 5 Mr Kiourtsidis was convicted of the offence of cultivating a commercial quantity of controlled plants for sale. His ‘conviction day’ is 1 June 2022.5 6 Given that status, the Act provides for the confiscation of the proceeds and instruments of their crimes, and of their property as an additional punishment.6 7 The Magistrates Court, this court and the Supreme Court have each been empowered to make such forfeiture orders.7 8 At issue is the lawfulness of those applications made by the DPP seeking declarations of this court that the property of each respondent is forfeit.8 9 The respondents contended the relevant provisions of the Act dealing with forfeiture are constitutionally invalid as they are incompatible with the principle identified by the High Court in Kable v Director of Public Prosecutions.9 10 The respondents submitted s 56A enlists this court to effect an impermissible intrusion into its functioning, by deeming it to have made forfeiture orders. 1 Action CIV-21-012180. 2 Action CIV-20-000338. 3 Criminal Assets Confiscation Act 2005 (SA), ss 3 and 6A. 4 Ibid, s 3. 5 Ibid. 6 Ibid, Long Title. 7 Ibid, s 3. 8 Ibid, s 56B. 9 Kable v Director of Public Prosecutions (1996) 189 CLR 51. -- 3 of 26 -- [2025] SADC 142 2 11 They submitted the function of this court has been impermissibly limited to making a declaration pursuant to s 56B of the Act that does not create nor alter any legal rights, nor transfer any interest in property to the Crown. 12 It follows, the respondents submitted, that this court will not, in making the declaration sought, perform an independent adjudication, including as to whether the relevant property is the proceeds of or an instrument of an offence or offences. 13 Further, the respondents submitted, such an order is impermissible as it would have the characteristics of a ‘bill of attainder’ or ‘of pains and penalties’. 14 On those bases, they submitted, the deemed forfeiture of the property as sought would be an impermissible imposition of punishment by the legislature. 15 The respondents further submitted the forfeiture provisions of the Act cannot be read down to be proportionate to the proceeds of, nor be an instrument of, the relevant serious drug offences, and thus that way be constitutionally valid. 16 They submitted that whether a deemed forfeiture order applies to all property, or only so much property as required to discharge the liability accrued because of the commission of the offence or offences, such a limitation is founded in the proportionality required by Subdivision 1 of Part 4 of the Act. 17 This court has recently considered the application of the Kable principle. First, in respect of the provisions of the Act dealing with ex parte restraining orders to prevent charged persons from disposing of or dealing with specified property.10 Second, in respect of an application to set aside a restraining order.11 18 Burnett DCJ rejected a challenge to those provisions and held different sections of the Act constitutionally valid and not incompatible with Kable. 19 The respondents formulated two questions of law for my consideration:12 (1) Is s 56A of the Act to be construed on the basis that there is a limitation of liability in relation to the extent to which property is to be forfeited pursuant to an order deemed to have been made under Subdivision 1, which limitation is proportionate to: (i) the property which is the proceeds of; (ii) the property to which is an instrument of; the offence or offences which engage Subdivision 1A, Division 1, Part 4. (2) Is Subdivision 1A, Division 1, Part 4 of the Act invalid on the basis that it confers functions on a Chapter III Court which are incompatible with the proper discharge 10 Director of Public Prosecutions for the State of South Australia v Soniard Mrishaj & Anr, [2024] SADC 101; Criminal Assets Confiscation Act 2005 (SA) ss 24(1)(a) and (c). 11 Director of Public Prosecutions (SA) v Cummings (No.2) 2025 SADC 140. 12 District Court Act 1991 (SA), s 44. -- 4 of 26 -- [2025] SADC 142 3 of the court’s function as a repository of federal jurisdiction, and with its institutional integrity. 20 The DPP, by application of Emmerson,13 submitted s 56A is valid as it involves an adjudicative step. 21 Further, the DPP submitted, forfeiture under s 56A is not required to be proportionate to the property which is the proceeds of or an instrument of the offence or offences. 22 In the event this court determined a different interpretation to that contended by the DPP, as to constitutional validity, the first interested party, the Attorney- General of South Australia, provided an alternative analysis of the relevant provisions by reference to Kable. 23 As to questions 1 and 2, I have answered both in the negative. 24 My reasons for answering question 1 and 2 in that way follow. Submissions of the respondents 25 The respondents premised their submissions on an implied limitation being recognised in Kable which, they correctly submitted, prevented a State Parliament from legislating to impair the ‘institutional integrity’ of state courts, as potential repositories of federal jurisdiction. 26 The practical operation of ss 56A and 56B, submitted the respondents, represents an impermissible Parliamentary imposition of a judicial function or adjudicative process on this court by directing or requiring it to implement government policy without having to follow its ordinary judicial process. 27 By doing so, submitted the respondents, the Parliament has deprived this court of its defining independence and institutional impartiality.14 28 Section 56A, it was submitted, so effected the functioning of this court because it does not require a consideration of whether the relevant property constitutes the proceeds of or an instrument of an offence or offences. 29 As the forfeiture occurs upon conviction, and without the convicting court exercising any power, it was submitted, it is s 56A, and not s 56B, which creates and alters the respondent’s legal rights by effecting a transfer of property. 30 Section 56A, it was submitted, in that way effects the forfeiture of all property owned by a prescribed drug offender and does so by impermissibly enlisting the State court to implement decisions of the legislature. 13 Attorney-General (NT) v Emmerson [2014] 253 CLR 393. 14 Ibid, at [44]. -- 5 of 26 -- [2025] SADC 142 4 31 Unlike the provisions considered in Emmerson, the respondents submitted, a declaration made under s 56B is not the ‘factum’ by reference to which the legislative scheme operates to effect forfeiture. 32 Further, submitted the respondents, nor does the relevant declaration of the court create or have a substantive legal status or effect. 33 Deemed forfeiture, it was submitted, is an anterior step to the declaration. That is because the second jurisdictional fact contained in s 56B, the courts satisfaction the property has been forfeited under Subdivision 1A, occurs without this court having to perform an independent adjudicative function. 34 The respondents in that respect drew a distinction between s 56B of the Act and the provision at issue in Emmerson.15 35 In Emmerson, the respondents submitted, the differing key defining features of the statutory regime were central to a conclusion of constitutional validity. 36 Emmerson is different to this case, it was submitted, because the DPP there had brought an application for a declaration as a procedural necessity before a court authorised to determine, if certain statutory criteria had been made out, whether to make the declaration sought under separate legislation.16 37 Emmerson, submitted the respondents, was an unremarkable example of conferring jurisdiction on a court to determine a controversy between parties which, in its determination, engaged stated statutory consequences. 38 That meant, it was submitted, the NT Court in Emmerson had been vested with an independent adjudicative function which when performed resulted in the making of a declaration which triggered certain legal consequences.17 39 Here, it was submitted, the Act creates an impression of a connection between the performance of the deemed order, but does so without the exercise of an independent adjudicative function. 40 It does so, it was submitted, in a way which directs the manner and outcome of the subsequent exercise of judicial power (to the extent a declaration pursuant to s 56B can be characterised as such). 41 That meant, submitted the respondents, the function of declaration impermissibly effects the perception of this court, to its detriment. 15 Misuse of Drugs Act 1990 (NT); s 36A. 16 Criminal Property Forfeiture Act 2002 (NT); s 94. 17 That declaration had substantive legal effect in that it engaged s 94 of the Criminal Property Forfeiture Act 2002 (NT), such that [i]f a person is declared to be a drug trafficker, all property … is forfeited to the Territory; Emmerson supra at [60]-[61]. -- 6 of 26 -- [2025] SADC 142 5 42 The corollary of that, the respondents submitted, was s 56A therefore purported to direct this court as to the manner and outcome of its judicial power. 43 Those characteristics of these provisions considered together, it was submitted, demonstrated ss 56A and 56B gave this court such a limited role, that properly understood, Parliament has enlisted the court in the implementation of legislative policy. 44 That functional role, it was submitted, is repugnant to the court’s independence and impartiality and incompatible with its institutional integrity. 45 Even further, it was submitted, the statutory scheme operates to forfeit property based on past criminal behaviour. 46 The scheme, therefore, it was submitted, was retributive, an exercise in deterrence, penal and constituted additional punishment. 47 That element of extra punishment, it was submitted, was imposed by the Act, rather than by the exercise of a judicial function. 48 It was therefore the Parliament through the Act, submitted the respondents, that had exercised judicial power- the power to punish. 49 Consistent with Chu Kheng Lim,18 submitted the respondents, the imposition of punishment by the legislature is prohibited by Ch III of the Constitution. 50 Thus, it was submitted, ss 56A and 56B had the effect of conscripting a State Court into undertaking a constitutionally invalid process which, at a federal level, was incompatible with the State Court’s role as a repository of federal jurisdiction. 51 Finally, there had previously existed, submitted the respondents, a legislative practice of enacting bills of ‘attainder’ or of ‘pains and penalties’, by force of which forfeiture of property might be inflicted on identified or identifiable individuals, for breaches of the criminal law, without judicial trial. 52 That, submitted the respondents, is also an impermissible effect of the forfeiture provisions. Chapter III, it was submitted, had repeatedly been held to stand in the way of the reintroduction of bills of ‘attainder’ or of ‘pains and penalties’ by Commonwealth legislation, under s 51 of the Constitution.19 53 That Ch III prohibition, the respondent submitted, had been founded in the separation of powers effected by the Constitution, which invalidated a bill of attainder on the ground it involved the usurpation of judicial power. 18 Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992), 176 CLR 1, [41]. 19 Emmerson supra at [103]; Polyukhovich v Cth (1991) 172 CLR 501, [535-536], [539], [607], [646-649], 704 and [719-721]; Chu Kheng Lim supra, [27] and [69-70]; Haskins v Cth (2011) 244 CLR 22 at [37]. -- 7 of 26 -- [2025] SADC 142 6 54 The Parliament, it was submitted, could not usurp judicial power by itself exercising judicial power in the form of legislation. 55 In resolving this challenge to the constitutional validity of ss 56A and 56B, the respondents submitted, this court must consider whether those provisions could be read down to render the scheme constitutionally valid. 56 Section 56A, submitted the respondent, operated to deem an ‘order … [would] be taken to have been made under Subdivision 1’, albeit recognising that s 56A is contained in Subdivision 1A. 57 It was therefore necessary, submitted the respondents, to consider s 56A in the context of that preceding subdivision, which was the provision which conferred the power to order forfeiture pursuant to s 47. 58 Section 24, it was submitted, is the provision concerned with restraining orders which required the court to determine whether a contingent liability had in fact arisen, or would arise, used to determine that the specified property was liable to forfeiture in the event the contingent liability created became absolute. 59 Section 47 required, it was submitted, the court to make an order for forfeiture upon the contingent liability becoming absolute (or at the very least, upon the vesting in the court of the power to make such an order). 60 The text of ss 24 and 47, submitted the respondents, demonstrated the statutory regime contemplated and demanded the existence of a nexus between the property sought to be forfeited and the commission of an offence. 61 That, it was submitted, was a necessary statutory precondition, as both required property be the proceeds of a criminal offence or instrument of an offence.20 62 Property, submitted the respondents, would be a proceed of an offence if it was either wholly or partly derived or realised, whether directly or indirectly, from the commission of the offence. 63 Property, it was submitted, would be an instrument of an offence if used in, or intended to be used in, or in connection with, the commission of an offence. 64 Section 47(1) was concerned, submitted the respondents, with the forfeiture of property which is the proceeds of one or more serious offences. 65 That power of forfeiture is not discretionary, submitted the respondents, as an order must be made if the court is satisfied of the enumerated statutory criteria.21 20 Ibid, s 7. 21 Ibid, s 47(1)(a)-(c). -- 8 of 26 -- [2025] SADC 142 7 66 Section 47(1)(a) requires, the respondents submitted, the court to order forfeiture of property if satisfied of a conviction of one or more serious offences and the property is the ‘proceeds of one or more of those serious offences’. 67 The forfeiture of property pursuant to s 47(1)(b) and (c), submitted the respondents, is therefore predicated on s 24 and can be utilised to restrain property. 68 Section 47(1)(b) of the Act, it was submitted, provides for forfeiture of property covered by restraining order under s 24(1)(b), if the court is satisfied the property is, the ‘proceeds of one or more serious offences committed by the person whose conduct (or suspected conduct) formed the basis for the restraining order’. 69 Similarly, submitted the respondents, s 24(1)(c) provides for the forfeiture of the property restrained and ss 24(1) and 47(1) operate conjunctively. 70 Similarly, submitted the respondents, s 47(3) is concerned with the forfeiture of property as an instrument of one or more offences committed by a person. 71 Unlike s 47(1), submitted the respondents, the power is discretionary as s 47(3)(a) vests a power in the court to order forfeiture if a person has been convicted of one or more serious offences and the court has been satisfied the ‘property is an instrument of one or more of the offences’. 72 Like s 47(1), submitted the respondents, s 47(3)(b) and (c) operate conjunctively with s 24(1)(b) and (c). 73 Section 47(3)(b) provides for the forfeiture of property specified in a restraining order made under s 24(1)(b) where the court is satisfied ‘the property [was] an instrument of one or more serious offences committed by the person whose conduct (or suspected conduct) formed the basis for the restraining order’. 74 Similarly, submitted the respondents, s 47(3)(c) provides for the forfeiture of property covered by a restraining order made under s 24(1)(c). 75 In addition to those conceptual and definitional differences between ‘proceeds’ and an ‘instrument’, the respondents submitted, the forfeiture regime treats the proceeds of and an instrument of crime differently.22 76 As to the former, the respondents submitted, forfeiture is mandatory, whereas in respect of the latter, the court retains a discretion. 77 In that case, submitted the respondents, the court was required to make a real determination of the question of whether the property was the ‘proceeds’ of or an ‘instrument’ of one or more serious offences, and that requirement reposed in the court an independent adjudicative function. 22 Criminal Asset Confiscation Act 2005 (SA) s 7. -- 9 of 26 -- [2025] SADC 142 8 78 The Act, submitted the respondents, imposes sanctions because of the conduct of the person, by confiscating property as an additional punishment. In operating that way, it was submitted, the focus is on the relationship between the unlawful conduct and the property. 79 It necessarily follows, it was submitted, that only so much of the property is liable to forfeiture as is necessary to discharge that contingent liability. 80 That means, submitted the respondents, the extent of forfeiture must be limited to that which is proportionate to the benefit derived from commission of an offence or offences. For example, if the property was wholly obtained from the proceeds of an offence, the entirety of that property is liable to forfeiture. 81 Division 1 of Part 5 of the Act, submitted the respondents, provides contextual support for that approach to construction of s 56A and 56B as it includes within it a limit of liability which is proportionate to the benefit derived from the commission of an offence. 82 Section 95, submitted the respondents, also consistently confers power to order a specified person pay an amount if the person has been convicted of or has committed a serious offence, and has derived benefits from that offence. 83 Section 56A, submitted the respondents, ought to be construed as not conferring a power to order the forfeiture of the whole property, irrespective of whether that property is the proceeds, or an instrument, of a criminal offence. 84 The consequence of that, submitted the respondents, is the court must be satisfied not only that the person has committed a criminal offence, but also that there is a nexus between the offence and the property sought to be forfeited. 85 In that respect, the respondents rely on the words in s 56A(2): ‘[a] deemed forfeiture order applies to all property’ and argue while s 56A(2) enables forfeiture of property not connected with the commission of an offence, it does not mean liability is unlimited (i.e. all the property is forfeited). 86 That is because, it was submitted, the language of s 56A(2) does not support an abrogation of the limit on liability contained in Division 1 of Part 5, as the ‘deemed’ order in s 56A is tethered to the power to create the liability conferred by Subdivision 1. 87 Section 56A, it was contended, deems the order to be of the kind created by Subdivision 1 and the Parliamentary intention is that any additional punishment (secured by forfeiture) be proportionate to the benefit obtained from the offence. 88 Thus, submitted the respondents, the express limitation on liability in Subdivision 1 is imported into Subdivision 1A, by the latter deeming an order to have been made under the former. -- 10 of 26 -- [2025] SADC 142 9 89 It that way, it was submitted, s 56A(1) necessarily picked up and applied those constituent components of such an order. 90 That, the respondents submitted, means s 56A(1) does not change the quality of the order made under Subdivision 1 but rather operates as the mechanism by which the order is made (with the order retaining its defining characteristics). 91 In practical terms, submitted the respondents, s 56A must be read in a way which picks up and engages the legal questions in s 47: an assessment of the relationship between the offence or offences and the relevant property. 92 Accordingly, submitted the respondents, s 56A ought to be construed on the basis that forfeiture pursuant to s 56A is proportionate to the benefit obtained from the offending (as is the case under Subdivision 1) and that the limit of liability under s 56A is the same as s 47. 93 Thus, submitted the respondents, when a court makes a declaration under s 56B, it must identify the property forfeited, proportionally to the contingent liability. Consideration Principles of statutory construction 94 The long title to the Act records its objects as ‘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’.23 95 In answering the questions formulated in this case, I must consider the text of both ss 56A and 56B and their function, in their proper context, and in accordance with the established principles of statutory interpretation.24 Relevant legislative provisions and scheme 96 Sections 24, 47, 56A and 56B of the Act are in the following terms: 24—Restraining orders (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 23 Ibid. 24 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [69] per McHugh, Gummow, Kirby and Hayne JJ; CIC Insurance v Bankstown Football Club Ltd (1997) 187 CLR 384 at [408] per Brennan CJ, Dawson, Toohey and Gummow JJ; SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362 at [14] per Kiefel CJ, Nettle and Gordon JJ; Legislative Interpretation Act 2021 (SA), s 14 whereby the interpretation which best achieves the purpose or object of the Act or the instrument (whether or not that purpose or object is expressly stated in the Act or instrument) is to be preferred to any other interpretation. -- 11 of 26 -- [2025] SADC 142 10 (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. (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. -- 12 of 26 -- [2025] SADC 142 11 (8) A restraining order may be made subject to conditions. ………….. 47—Forfeiture orders (1) A court must, on application by the DPP, make an order (a "forfeiture order") that property specified in the order is forfeited to the Crown if— (a) a person has been convicted of one or more serious offences and the court is satisfied that the property to be specified in the order is proceeds of one or more of those offences; or (b) the property to be specified in the order is covered by a restraining order made under section 24(1)(b) that has been in force for at least 6 months and the court is satisfied that the property is proceeds of one or more serious offences committed by the person whose conduct (or suspected conduct) formed the basis of the restraining order; or (c) the property to be specified in the order is covered by a restraining order made under section 24(1)(c) that has been in force for at least 6 months and the court is satisfied that— (i) the application for the order alleges that the property is proceeds of one or more serious offences; and (ii) no application has been made under Part 3 Division 3 for the property to be excluded from the restraining order, or that any such application has been withdrawn; and (iii) the DPP has taken reasonable steps to identify and notify persons with an interest in the property. (2) For the purposes of making an order under subsection (1)(b) or (c)— (a) a finding of the court under either of those paragraphs need not be based on a finding as to the commission of a particular serious offence; and (b) the fact that a person has been acquitted of a serious offence with which the person has been charged, or the raising of a doubt as to whether a person engaged in conduct constituting a serious offence, does not affect the court's power to make the order under either of those paragraphs in relation to the offence; and (c) in relation to an order under subsection (1)(c)—a finding of the court under that paragraph need not be based on a finding that a particular person committed any offence. (3) A court may, on application by the DPP, make an order (a "forfeiture order") that property specified in the order is forfeited to the Crown, if— (a) a person has been convicted of one or more serious offences the court is satisfied that the property is an instrument of one or more of the offences or is subject to an instrument substitution declaration under section 48; or -- 13 of 26 -- [2025] SADC 142 12 (b) the property to be specified in the order is covered by a restraining order made under section 24(1)(b) that has been in force for at least 6 months and the court is satisfied that the property is an instrument of one or more serious offences committed by the person whose conduct (or suspected conduct) formed the basis of the restraining order; or (c) the property to be specified in the order is covered by a restraining order made under section 24(1)(c) that has been in force for at least 6 months and the court is satisfied that— (i) the application for the order alleges that the property is an instrument of one or more serious offences; and (ii) no application has been made under Part 3 Division 3 for the property to be excluded from the restraining order, or that any such application has been withdrawn; and (iii) the DPP has taken reasonable steps to identify and notify persons with an interest in the property. (4) In considering whether it is appropriate to make a forfeiture order under subsection (3) in respect of particular property, the court may have regard to— (a) any hardship that may reasonably be expected to be caused to any person (other than the suspect) by the operation of the order; and (b) the use that is ordinarily made, or was intended to be made, of the property; and (c) the gravity of the offence or offences concerned; and (d) any other matter the court thinks fit. (5) If evidence is given, at the hearing of an application for a forfeiture order under subsection (3) that relates to a person's conviction for a serious offence, that property was in the possession of a person at the time at which, or immediately after, the person committed a serious offence to which the application relates— (a) if no evidence is given that tends to show that the property was not used in, or in connection with, the commission of the offence—the court must presume that the property was used in, or in connection with, the commission of the offence; or (b) in any other case—the court must not make a forfeiture order against the property unless it is satisfied that the property was used or intended to be used in, or in connection with, the commission of the offence. (6) An application for a forfeiture order under this section that relates to a person's conviction for a serious offence must be made before the end of the period of 6 months after the conviction day. (7) A court must not, if a person is taken under section 5(1)(d) to have been convicted of a serious offence, make a forfeiture order relating to the person's conviction unless— (a) the court is satisfied, on the balance of probabilities, that the person has absconded; and -- 14 of 26 -- [2025] SADC 142 13 (b) either— (i) the person has been committed for trial for the offence; or (iii) the court is satisfied, having regard to all the evidence before the court, that a reasonable jury, properly instructed, or the Magistrates Court (as the case requires) could lawfully find the person guilty of the offence. ………….. 56A—Prescribed drug offenders (1) Immediately on a person becoming a prescribed drug offender, a forfeiture order (a "deemed forfeiture order ) will be taken to have been made under Subdivision 1 by the convicting court. (2) A deemed forfeiture order applies to all property owned by, or subject to the effective control of, the prescribed drug offender on the conviction day for the conviction offence (including property that is subject to a restraining order) other than the following: (a) protected property of the prescribed drug offender; (b) property that has been excluded from a restraining order under Part 3 Division 3; (c) property that is otherwise forfeited to the Crown under this Act. (3) Except as provided in subsection (4), section 59A, section 59B and section 209A, this Act applies to a deemed forfeiture order in all respects as if it were a forfeiture order made under section 47(3)(a) in relation to conviction for the conviction offence, subject to such modifications as may be prescribed, or as may be necessary for the purpose. (4) Any power that may be exercised by a court that is hearing or that is to hear an application for a forfeiture order may be exercised, in relation to a deemed forfeiture order, by the convicting court at any time within the period of 6 months (or such longer period as may be allowed by the convicting court) after the conviction day for the conviction offence. (5) In this section— "convicting court", in relation to a prescribed drug offender, means the court that convicted the prescribed drug offender of the conviction offence. ……………... 56B—Court may declare that property has been forfeited under this Subdivision A court may declare that particular property has been forfeited under this Subdivision if— (a) the DPP applies to the court for the declaration; and (b) the court is satisfied that the property is forfeited under this Subdivision. -- 15 of 26 -- [2025] SADC 142 14 97 As can be seen, the Act provides initially for the making of a restraining order under s 24 to prevent property from being disposed of or otherwise dealt with. 98 The Act then provides three ways for there to be forfeiture of property after the conviction of a person. 99 First, pursuant to s 47 of the Act, the court must on application make an order for forfeiture in the circumstances described. 100 Those circumstances require the property specified in the order to be the proceeds of the offence or offences and either (i) the person has been convicted of a serious offence25 or (ii) the property is covered by a restraining order that has been in force for at least 6 months.26 101 Alternatively, forfeiture may be ordered where a restraining order has been made under s 24(1)(c) and has been in place for at least 6 months and the court is satisfied the application alleges 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.27 102 Second, pursuant to declaration under s 56A, whereby immediately upon a person becoming a prescribed drug offender, a forfeiture order has been deemed to have been made. 103 Third, pursuant to s 74, property is forfeited at the end of the relevant period 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. 104 In each of those three instances, the court may make an order excluding property from forfeiture.28 The principle in Kable 105 Kable establishes that, due to the integrated system of courts in Ch III of the Australian Constitution, State legislation which purports to confer upon a State Court a function which substantially impairs the institutional integrity of that court in its role as a repository of federal jurisdiction, is ‘repugnant to or incompatible with’ that role and therefore invalid.29 106 That relevant principle hinges upon the maintenance of the defining characteristics of a court and whether its institutional integrity is distorted if it no 25 Criminal Assets Confiscation Act 2005 (SA) s 47(1)(a). 26 Ibid, s 47(1)(b). 27 Ibid, s 47(1)(c). 28 Ibid ss 58, 59 or 76. 29 In Garlett supra at [7] the High Court noted the principle applies to State Supreme Courts but it also applies here because this court is a court of a State in which federal jurisdiction can and has been vested; Australian Constitution (Cth), s 77(iii), Judiciary Act 1903 (Cth), s 39(2). -- 16 of 26 -- [2025] SADC 142 15 longer exhibits in some relevant respect those defining characteristics which mark a court apart from other decision-making bodies.30 107 Independence and impartiality are hallmarks of State (and all) courts, setting them apart from other decision-making bodies.31 108 The Commonwealth Constitution therefore protects the independence and impartiality of State Courts by prohibiting State legislation that purports to confer a power or function on a State Court which substantially impairs the court’s institutional integrity in a way that it is incompatible with the court’s role as a repository of federal jurisdiction.32 109 Such an impermissible impairment of the independence and impartiality of a court may occur if the Parliament imposes a judicial function or an adjudicative process upon it which directs or requires the court to implement a political decision, or a government policy, without following ordinary judicial processes.33 110 The High Court has, in respect of the principles in Kable, made it clear that they will usually be of limited application.34 111 The principle in Kable must also be understood on the basis that legislation reflects political decisions and governmental policy, and that it is the role of the courts to enforce the law.35 112 These proceedings under the Act do not prosecute breaches of criminal law. Rather, the forfeiture regime concerns itself with how the State, in its capacity as a contingent creditor following the grant of a freezing order, enforces the liability of the respondents to pay or forfeit their property to the State. 113 In respect of that regime, this court has noted that the making of a restraining order is in aid of forfeiture, in that it ensures a forfeiture order will have utility.36 114 That forfeiture of property may occur in several ways. 30 Forge v Australian Securities and Investments Commission, (2006) 288 CLR 45 per Gummow, Hayne and Crennan JJ at [63]. 31 A-G (NT) v Emmerson (2014) 253 CLR 393 per French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ [44]; Assistant Commissioner Condon v Pompano Pty Ltd (2013) 252 CLR 38 per Hayne, Crennan, Kiefel and Bell JJ [125]. 32 Fardon v A-G (Qld) (2004) 223 CLR 575 at [101] per Gummow J and at [15], [23] per Gleeson CJ, [37] per McHugh J, Hayne J, [198] per Callinan and Heydon JJ, [219]; Also see South Australia v Totani (2010) 242 CLR 1 per Hayne J, [205]; Assistant Commissioner Condon v Pompano Pty Ltd (2013) 252 CLR 38 at [123] per Hayne, Crennan, Kiefel and Bell JJ. 33 A-G (NT) v Emmerson supra per French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ, [44]. 34 Fardon v Attorney- General (Qld) (2004) 223 CLR 575 per McHugh J, [41]. 35 Gartlett v Western Australia (2022) 277 CLR 1 per Kiefel CJ, Keane and Steward JJ, [60]. 36 Director of Public Prosecutions for the State of South Australia v Soniard Mrishaj & Anr, supra, [6]. -- 17 of 26 -- [2025] SADC 142 16 115 First, pursuant to s 47(1)(a), which requires the person to have been convicted of a serious offence and the satisfaction of the court that the property specified in the relevant application is the proceeds of an offence. 116 Second, pursuant to s 47(1)(b), where the property has been covered by a restraining order under s 24(1)(b) which has been in force for at least six months and the court is satisfied that the property specified in the relevant application is the proceeds of one or more serious offences committed by the person whose conduct (or suspected conduct) formed the basis of the restraining order. 117 Third, pursuant to s 47(1)(c), where a restraining has been made where the property has been covered by a restraining order under s 24(1)(c) which has been in force for at least six months and the court is satisfied that the application for the order alleges that the property is the proceeds of one or more serious offences and no application has been made for the property to be excluded from the restraint and the DPP has taken reasonable steps to identify and notify persons with an interest in the property. 118 Fourth, pursuant to s 47(3)(a), which requires the person to have been convicted of a serious offence and the satisfaction of the court that the property specified in the relevant application is an instrument of an offence. 119 Fifth, pursuant to s 47(3)(b), where the property has been covered by a restraining order under s 24(1)(b) which has been in force for at least six months and the court is satisfied that the property specified in the relevant application is an instrument of one or more serious offences committed by the person whose conduct (or suspected conduct) formed the basis of the restraining order. 120 Sixth, pursuant to s 47(3)(c) , where a restraining has been made where the property has been covered by a restraining order under s 27(1)(c) which has been in force for at least six months and the court is satisfied that the application for the order alleges that the property is an instrument of one or more serious offences and no application has been made for the property to be excluded from the restraint and the DPP has taken reasonable steps to identify and notify persons with an interest in the property. 121 Seventh, pursuant to s 56A, ‘immediately on a person becoming a prescribed drug offender. 122 Eighth, pursuant to s 74, at the expiry of the ‘relevant period’. 123 Section 47 is contained in Subdivision 1 of Part 4 of the Act and s 56A is contained in Subdivision 1A of Part 4 of the Act. -- 18 of 26 -- [2025] SADC 142 17 124 Forfeiture pursuant to s 56A applies to ‘all property owned by, or subject to the effective control of, the prescribed drug offender’ as at the date of conviction for the conviction offence.37 125 The respondents meet the definition of ‘prescribed drug offender’38 as they have both been convicted of a ‘serious drug offence’. 126 The legislation by s 56A requires that immediately upon becoming prescribed drug offenders, a ‘deemed forfeiture order’ is taken to have been made under subdivision 1 by the ‘convicting court’ in respect of ‘all’ property owned. 127 Section 56B then allows that the court ‘may declare’ that particular property forfeited under Subdivision 1A ‘is forfeited’. 128 The ‘deemed forfeiture order’ is said to be taken to have been made under Subdivision 1 but is referred to in s 56B as having been forfeited under Subdivision 1A. I understand that to mean it is forfeited under s 56A. 129 Two things therefore must occur before such an order is made (1) the DPP must apply for a such declaration and (2) ‘the court [must be] satisfied that the property is forfeited under’ that Subdivision. 130 In considering any repugnancy to or incompatibility with institutional integrity, I must evaluate the substantive effect of that impugned law, consisting of both ss 56A and 56B, upon the function of this court in accordance with the well-established principles of statutory construction.39 131 All parties contend Emmerson is relevant to this case, for different reasons. 132 Emmerson, the respondents said, is an unremarkable example of conferring jurisdiction on a court to determine a controversy between parties which, in its determination, engages stated statutory consequences. 133 The respondents sought to apply the principled approach of the High Court to demonstrate ss 56A and 56B in the case was different and constituted an impermissible impairment of the independence and impartiality of this court by imposition on its judicial function of a requirement which requires the court to implement a political decision, or a government policy, without following its ordinary judicial processes. 134 The DPP said Emmerson does not assist to support the contended invalidity of ss 56A and 56B of the Act, in the way the respondents seek to apply it. Rather, 37 See Western v Director of Public Prosecutions (SA) (2017) SASCFC 177; 271 A Crim R 102. 38 Criminal Assets Confiscation Act 2005 (SA) s 6A(3). 39 Kuczborski v Queensland (2014) 254 CLR 51 at [106] and per Hayne J at [231] (Crennan, Kiefel, Gageler and Keane JJ). -- 19 of 26 -- [2025] SADC 142 18 the DPP contended that the legislation considered in Emmerson was analogous and supports by analogy the validity of ss 56A and 56B. 135 For the reasons explained, I have accepted that submission. 136 Emmerson concerned the constitutionality of proceeds of crime legislation in the Northern Territory. Section 36A of the Misuse of Drugs Act 1990 required the NT Supreme Court to declare, upon the application of the NT DPP, a person was a ‘drug trafficker’ where they had been found guilty of: (1) a prescribed drug offence and (2) in the ten years prior to the date of that offence they had been found guilty on two or more occasions of a prescribed offence. 137 That declaration enlivened the courts power upon an application of the DPP under s 44(1) and (2) of the Criminal Property Forfeiture Act 2002 (NT): (1) The Supreme Court may, on application by the DPP, make a restraining order in relation to the property of a person named in the application if: (a) the person has been charged, or it is intended that within 21 days after the application the person will be charged, with an offence that, if the person is convicted of the offence, could lead to the person being declared to be a drug trafficker under section 36A of the Misuse of Drugs Act 1990 ; or ... (2) A restraining order under this section can apply to: (a) all or any property that is owned or effectively controlled by the person at the time of the application for the restraining order, whether or not any of the property is described or identified in the application; and (b) all property acquired: (i) by the person; or (ii) by another person at the request or direction of the person named in the application for the restraining order; after the restraining order is issued. 138 Analogous to ss 56A and 56B of the Act, that section provided for ‘all or any’ restrained property owned or effectively controlled by the declared drug trafficker, to be forfeited to the Territory. 139 In its consideration of the validity of those two separate provisions in the Misuse of Drugs Act 1990 (NT) and the Criminal Property Forfeiture Act 2002 (NT),40 the High Court held neither, separately or in combination, denied the NT Supreme Court such independence and impartiality as was incompatible with its constitutional role as a repository of federal jurisdiction. 40 Misuse of Drugs Act 1990 (NT) s 36A, Criminal Property Forfeiture Act 2002 (NT) s 94(1). -- 20 of 26 -- [2025] SADC 142 19 140 The majority observed that statutory scheme did not require the NT Supreme Court to act at the behest of the executive, in this case the NT DPP, in such a way that it gave effect to government policy, absent its ordinary judicial policy.41 141 Their Honours observed the NT scheme had features characteristic of the judicial process, including a requirement for evidence to the civil standard to establish the requisite number of qualifying convictions. 142 Further, they noted the absence of any provisions limiting or abrogating the usual processes of the court. Particularly, they remarked that the application was to be determined in open court and that the affected parties could have legal representation, could make submissions, and would receive reasons.42 143 Their Honours noted even further the usual rights of appeal were available in respect of the making of the drug trafficker declaration by the court.43 144 The majority held it to be well established that Australian legislatures can empower courts to make specified orders if certain conditions are satisfied, even if such satisfaction depends on a decision, or application, made by a member of the Executive branch of Government.44 145 I have accepted the submission of the DPP that the provisions sought to be impugned in this case should not be taken to trespass on the judicial function of this court or be taken to be impermissibly determinative of the outcome of an exercise of this court’s jurisdiction. 146 I have inferred the selection of this court by the Parliament as the repository of a power to determine a particular fact or status can, absent any express or implicit contrary intention, constitute an acceptance by the Parliament that the power it has granted will be exercised in accordance with standards characterising the ordinary judicial processes of this court.45 147 In this case, ss 6A and 56A(1) and (2) of the Act prescribe the circumstances in which the operative provisions of s 56B are enlivened and are to be exercised by the Court. 148 I do not consider there is or has been an executive determination of whether those circumstances exist; that is a matter for the relevant court. 149 Like in Emmerson, the controversy to be determined by the court is initiated by the DPP. That decision of the DPP under the Act is a ‘familiar procedural 41 Attorney-General (NT) v Emmerson (2014) 253 CLR 393 at [69] per French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ. 42 Ibid at [65]. 43 Ibid at [67]. 44 Ibid. 45 Ibid at [58]. -- 21 of 26 -- [2025] SADC 142 20 necessity’.46 That decision by the DPP does not form a component in the operative decision required by the Parliament of the court. 150 By way of contrast, that procedural decision for the DPP under the Act is different to that which had been made by the Attorney-General under the Serious and Organised Crime (Control) Act 2008 (SA) and which was at issue in South Australia v Totani.47 151 In Totani, it was the Attorney- General who made the declaration a person was a member of the prohibited organisation. The Magistrates Court was, upon the making of that declaration, held to be an effective rubber-stamp. 152 The application for a declaration pursuant to section 56B is like that contained in the valid statutory scheme considered in Emmerson. The relevant facts must be proven by application of the rules of evidence to a civil standard. For that reason the process invoked by an application for a declaration under 56B is properly characterised as a judicial or adjudicative function. 153 As I understand the respondents’ argument, they accept an adjudicative or judicial function arises under s 56B, but they say it is minimal. 154 Assessing that argument against what that adjudicative function is it is clear: • the determination by way of declaration of forfeiture as sought by application is made in open court; • the respondents and any affected party have the right to be heard and they may (and as in this case they do) have legal representation; • the respondents may test the evidence of the DPP and can call their own evidence and as is customary can make submissions about the evidence and the law; and • the parties may also receive reasons for the courts decisions. 155 These are all fundamental elements of the judicial function. 156 The requirement for validity in this case is the necessity under the relevant legislation for an adjudicative function. As the High Court noted in Emmerson:48 …an application by the DPP for a restraining order under the statutory scheme involves a judicial assessment of the merits of the application, an exercise of discretion, and the making of a judgment. Such an application is also subject to reconsideration under the objection procedures and to the usual rights of appeal. There were differences of views in the courts below as to the width of the discretion covered by the use of the word “may” in s 44 of the Forfeiture Act, governing the 46 Ibid at [61], [64] and [72] per French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ. 47 South Australia v Totani, (2010) 242 CLR 1. 48 Ibid at [67]-[68] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ). -- 22 of 26 -- [2025] SADC 142 21 making of a restraining order. The condition upon which the discretion is granted under s 44(1)(a) arguably makes it clear that the discretion is of the type which must be exercised upon proof of the particular case to which the power to make a restraining order is directed. In the Court of Appeal, the appellants never contended otherwise. There is no challenge in this court to the validity of s 44, or to the Court of Appeal's findings in respect of that provision. For the purposes of the first respondent's argument it may be assumed, without deciding, that the discretion given to the Supreme Court under s 44 is limited. Notwithstanding that circumstance, the Supreme Court is obliged to engage in orthodox adjudicative processes involving the hearing of evidence and the making of a determination which is subject to the usual processes of appeal. 157 Section 56A(2) includes an adjudicative function. It requires consideration of whether the specified property is protected,49 or whether property is excluded from a restraining order50 or property is otherwise forfeited. 158 Section 56A(3) provides further limitations to the operation of s 56A(1), which it may, depending on the case, be necessary for the court to determine. 159 Further, if an application is brought by the respondent or by the DPP pursuant to ss 59A and 59B, this court must be satisfied of the conditions of either limb under ss 59B(1)(b)(i) or 59B(1)(b)(ii) and ask whether certain circumstances- cooperation and public interest concerns - are enlivened for consideration.51 160 The respondents described a ‘bill of attainder’ or ‘of pains and penalties’, as a pre- colonial legislative practice of enacting bills by force of which forfeiture of property might be inflicted on identified or identifiable individuals, for breaches of the criminal law, without a judicial trial. 161 The respondents submitted Chapter III of the Australian Constitution stands in the way of such bills. I do not understand that proposition to be contested. 162 What is disputed by the DPP and the Attorney- General is the characterisation of the Act in those terms. 163 The distinctive characteristics of a bill of attainder, said the respondents, relevant to the question of constitutional invalidity here, is whether ss 56A and 56B are a legislative enactment imposing punishment on a specified person or persons or a class of persons, without the safeguards of a judicial trial. 164 The respondents rely on the well understood principle that there are some functions which are essentially and exclusively judicial in character.52 49 Criminal Asset Confiscation Act 2005 (SA) s 3 and s 56A(2)(a). 50 Ibid, Part 3, Division 3 and s 56A(2)(b). 51 Ibid, s 209A(4). 52 Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs [1992] HCA 64; 53 and 54. -- 23 of 26 -- [2025] SADC 142 22 165 The respondents contended s 56A effects the functioning of a State court as it is deemed to have made a forfeiture order under Subdivision 1A, despite not performing the independent adjudicative function conferred by that subdivision. 166 I have accepted the submission of the Attorney-General that characterising the Act as a bill of pains and penalties is misplaced. Sections 56A and 56B are not directed at a particular individual or even an identifiable group. Further, those sections do not operate independently of the judicial determination of criminal guilt, which is the identifying factor.53 167 There is no legislative conviction of a person of a crime. The deemed forfeiture in s 56A is by operation of law following a conviction. It does not depend upon the exercise of a power by a Court to give effect to that forfeiture. Limitation of Liability 168 As for the limitation of liability question raised by the respondents, the meaning and intent of the phrases ‘all property owned by’ or ‘subject of the effective control of” and the inclusion of s 56A within its own distinct subdivision, defeats the argument mounted by the respondents that the Parliament intended proportionality, as it had in s 47. 169 The respondent seeks to connect the provisions of Subdivision 1 and Subdivision 1A, such as to read down those words or limit the deemed forfeiture and declaratory power in ss 56A and 56B. 170 There is no textual support for the interpretation proffered by the respondents. The clear words contained in ss 56A and 56B apply to ‘all’ property of a convicted person and that reading is consistent with the objects of the Act. 171 Those specific words have work to do in the interpretation of ss 56A and 56B as found in Donnelly v Director of Public Prosecutions (SA):54 First, the manifest purpose of s 56A of the Act is to punish prescribed drug offenders severely by forfeiture of all of their property, howsoever acquired, and thereby to deter serious drug offending generally. As much is made clear by the passages of the Second Reading Speech extracted by Blue AJA at [48], and accordingly, it is incumbent upon this Court to bear that purpose in mind when approaching the task of interpreting s 56A, as well as s 6A, of the Act. Severe punishment by the deprivation of a prescribed drug offender’s property is the only evident purpose of the amendments identified. 172 Further, in DPP (SA) v Dalibor Drazetic; Director of Public Prosecutions v MJP, Parker J expressed the ‘firm view’ about s 56A(3) that: … the modifications that “may be necessary for the purpose” are modifications to the application of the provisions of s 47(3)(a) to a deemed forfeiture order made upon 53 Durham Holdings Pty Ltd v New South Wales (2001) 205 CLR 399, 408 [7] and 410 [14] (Gaudron, McHugh, Gummow and Hayne JJ). 54 Donnelly v DPP (SA) [2024] SASCA 45 at paragraph [13]. -- 24 of 26 -- [2025] SADC 142 23 a person becoming a prescribed drug offender. The Parliament has simply recognised that there may potentially be some circumstances where the treating of a deemed forfeiture order as if it was made in all respects under s 47(3)(a) may not be appropriate. It may sometimes be necessary to modify the application of s 47(3)(a) to a deemed forfeiture order. However, the important point is that the modification authorised by s 56A(3) is to the application to a deemed forfeiture order of the provisions that would ordinarily apply to a forfeiture order made under s 47(3)(a). Section 56A(3) does not authorise a modification to the application of s 24. To put the matter more simply, the power under s 56A(3) to make the necessary modifications to the application of the Act only arises upon a deemed forfeiture order being taken to have been made upon the person becoming a prescribed drug offender. The modification made by s 56A(3) is to the application of the Act to the deemed forfeiture order rather than to the application of the Act generally. Section 56A(3) does not authorise an antecedent modification to the powers otherwise exercisable by the Court to make a restraining order under s 24. As I have said, there is no requirement that there be a subsisting restraining order before a deemed forfeiture order comes into effect. A deemed forfeiture order comes into effect by force of s 56A(1) upon a person becoming a prescribed drug offender as defined in s 6A without any requirement that the property that is to be the subject of the order has been covered by a restraining order made under s 24. In contrast, the making of forfeiture orders under ss 47(3)(b) and 47(3)(c) is conditional upon a restraining order having been in force for at least six months. The fact that the prior making of a restraining order under s 24 is not a condition precedent to the coming into effect of a deemed forfeiture order is another indication that the words “subject to such modifications ... as may be necessary for the purpose” in s 56A(3) were not directed at effecting a modification to the scope of s 24. 173 Respectfully, adopting the view of Parker J, I consider the activation of s 56A is not contingent on a precondition of an existing restraining order. Alternative argument of the Attorney-General 174 I have accepted the interpretation of the provisions in dispute as contended by the DPP, consistent with what the High Court has said in Emmerson. 175 In that event, it is not necessary for me to consider the alternative argument made by the Attorney-General.55 55 The Attorney-General contended in respect of s 56A of the Act that: (1) in terms of the deeming effect of sub-sections (1)-(3), the provision provides for the forfeiture of property by operation of law and does not confer on a court of the State a power or function; (2) the provision permissibly uses the conviction by a court of a person for a serious drug offence, following the ordinary judicial process of adjudicating criminal guilt, as a trigger or factum by which sub-section (1) is enlivened in specified circumstances; (3) a statutory fiction is employed by the legislature as a shorthand means of providing for the statutory consequence of forfeiture of all property of the defendant (subject to certain exclusions) upon that conviction and it is beyond doubt that a State legislature has power to compulsorily acquire property by statute; (4) the power conferred on the convicting court by sub-section (4) is to be exercised judicially in a manner and with an outcome that is not otherwise dictated by the legislature; (5) a declaration under s 56B relates to the current legal interest in the property, which involves the exercise of a conventional judicial function by a court and the provision is an ordinary conferral of a statutory power to make a declaration upon the court being satisfied of the statutory criteria; (6) the statutory criteria includes satisfaction by the court that the particular property has been forfeited by operation of the applicable Subdivision and in being so satisfied, the court is not called upon to declare that a court in fact made the -- 25 of 26 -- [2025] SADC 142 24 Conclusion and answers to the questions 176 I have found the making of deemed forfeiture orders in accordance with ss 56A and 56B of the Act to be statutory powers exercisable by a Chapter III Court and that there is an adjudicative function within those provisions. They are not invalid as offending against the Kable principle. 177 I also consider there is no limitation in s 56A (contained in Subdivision 1A of Part 4) as to the extent to which the property taken to have been forfeited under Subdivision 1 must be proportionate to the property the proceeds of, or the property to which is an instrument of, the relevant offence or offences. 178 In my view, for the reasons explained, the clear words of those provisions express an intention, as found in Donnelly, to inflict severe punishment by the deprivation of a prescribed drug offenders’ property. 179 I have accordingly answered the two questions of law as follows:56 (1) Is s 56A of the Act to be construed on the basis that there is a limitation of liability in relation to the extent to which property is to be forfeited pursuant to an order deemed to have been made under Subdivision 1, which limitation is proportionate to: (i) the property which is the proceeds of; (ii) the property to which is an instrument of; the offence or offences which engage Subdivision 1A, Division 1, Part 4. 180 Answer: No. (2) Is Subdivision 1A, Division 1, Part 4 of the Act invalid on the basis that it confers functions on a Chapter III Court which are incompatible with the proper discharge of the Court’s function as a repository of federal jurisdiction, and with its institutional integrity. 181 Answer: No. 182 I will hear the parties as to any orders required. forfeiture order; (7) the provision does not alter nor impair in any way the usual judicial method and procedure for the making of a declaration as the ease by which the statutory criteria in sub-sections s 56B(a) and (b) may be proved in a particular case does not compromise the judicial process undertaken by the court; (8) even where satisfied of the statutory criteria, the court retains a discretion as to whether it makes a declaration and in those circumstances neither the powers or functions so conferred, nor their conferral in circumstances where the conviction of a person by a court enlivens the operation of s 56A(1) without further court order, impairs the independence or impartiality of the convicting court, a court hearing an application by the Director under s 56B, or any other aspect of a State court’s institutional integrity such that any court ceases to be a fit repository of federal judicial power; and (9) that the legislature has granted the courts a more limited role in the scheme erected by Subdivision 1A as compared to the scheme in Subdivision 1 does not lead to invalidity. 56 District Court Act 1991 (SA), s 44. -- 26 of 26 --