DIRECTOR OF PUBLIC PROSECUTIONS FOR THE STATE OF SOUTH AUSTRALIA v SONIARD MRISHAJ [2024] SADC 101

First Applicant: DIRECTOR OF PUBLIC PROSECUTIONS FOR THE STATE OF SOUTH AUSTRALIA Counsel: MS H UPTON - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) First Respondent: SONIARD MRISHAJ Counsel: MR W MICKAN - Solicitor: MR H PATSOURIS Second Respondent: ILLYRIAN INVESTMENTS PTY LTD Counsel: MR W MICKAN - Solicitor: MR H PATSOURIS First Interested Party: AGE DOSHI No Attendance Second Interested Party: COMMONWEALTH BANK OF AUSTRALIA No Attendance Third Interested Party: THE ATTORNEY GENERAL OF SOUTH AUSTRALIA Counsel: MR M BOISSEAU - Solicitor: CROWN SOLICITOR'S OFFICE Hearing Date/s: 14/11/2023 File No/s: CIV-22-003884 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 FOR THE STATE OF SOUTH AUSTRALIA v SONIARD MRISHAJ AND ILLYRIAN INVESTMENTS PTY LTD [2024] SADC 101 Judgment of his Honour Judge Burnett 3 September 2024 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 ex parte orders from this Court pursuant to ss 24(1)(a) and 24(1)(c) of the Criminal Assets Confiscation Act 2005 (SA)(the Act) restraining the respondents from disposing of or dealing with specified property. The respondents have challenged the validity of ss 24(1)(a) and 24(1)(c) and the orders that were made. They do so on one basis only, namely that those sections are constitutionally invalid. The respondents contend that ss 24(1)(a) and 24(1)(c) are incompatible with the principle identified in the High Court in Kable v Director of Public Prosecutions (Kable) (1996) 189 CLR 51 namely that -- 1 of 19 -- because the Constitution establishes an integrated court system which contemplates the exercise of federal jurisdiction by State courts, State legislation which purports to confer on such a court a power 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. Held: (1) Sections 24(1)(a) and 24(1)(c) of the Act are not invalid. (2) The institutional integrity of a court is impaired if the court does not exhibit in some relevant aspect the defining characteristics of a court which sets it apart from other decision making bodies. The defining characteristics, although not capable of an all-embracing characterisation, include minimum requirements of independence, impartiality, fairness and adherence to the open-court principle: Assistant Commissioner Condon v Popmano Pty Ltd (2013) 252 CLR 38, South Australia v Totani (2010) 242 CLR 1, Garlett v Western Australia (2022) 277 CLR 1 applied. (3) The fact that the Court must make an order under s 24 if certain conditions are satisfied does not, in the context of the Act, take away from the court proper consideration as to whether an order should be made and impair the institutional integrity of the court. It is well established that legislators can require a court to make an order provided certain conditions are satisfied: Attorney-General (NT) v Emmerson (2014) 252 CLR 93 applied. In such circumstances, the court is not an instrument of the legislative. (4) The fact that the application for the order is made by the DPP does not deprive the court of its independence: Attorney-General (NT) v Emmerson (2014) 252 CLR 93 applied. (5) The fact that the application may be heard ex parte does not impair the institutional integrity of the court. The court retains a discretion as to whether to accede to a request to hear the matter ex parte. The respondents, if the hearing is heard ex parte, may apply under s 43 of the Act to discharge the order: International Finance Trust Co Ltd v NSW Crime Commission (2009) 240 CLR 319 distinguished. Criminal Assets Confiscation Act 2005 (SA) ss 24, 25, 26, 34, 36, 40, 43, 47, 75, 76 and 220; Judiciary Act 1903 (Cth) ss 78A and 78B; Controlled Substances Act 1984 (SA) s 32; Criminal Property Forfeiture Act 2002 (NT) ss 44 and 94; Misuse of Drugs Act 1990 (NT) s 36(A); Serious and Organised Crime (Control) Act 2008 (SA) ss 10, 14(1); Criminal Assets Recovery Act 1990 (NSW) s 10, referred to. Kable v Director of Public Prosecution (NSW) (1996) 189 CLR 51; Attorney-General (NT) v Emmerson (2014) 253 CLR 393; Fardon v Attorney-General (Qld) (2004) 223 CLR 575; Garlett v Western Australia (2022) 277 CLR1; Kuczborski v The State of Queensland (2014) 254 CLR 51; Assistant Commissioner Condon v Pompano Pty Ltd (2013) 252 CLR 38; South Australia v Totani (2010) 242 CLR 1; Wainohu v New South Wales (2011) 243 CLR 181; K-Generation Pty Ltd v Liquor Licensing Court (2009) 237 CLR 501; Magaming v The Queen (2013) 252 CLR 381; International Finance Trust Co Ltd v New South Wales Crime Commission (2009) 240 CLR 319, considered. -- 2 of 19 -- DIRECTOR OF PUBLIC PROSECUTIONS FOR THE STATE OF SOUTH AUSTRALIA v SONIARD MRISHAJ AND ILLYRIAN INVESTMENTS PTY LTD [2024] SADC 101 1 These proceedings concern the validity of ss 24(1)(a) and 24(1)(c) of the Criminal Assets Confiscation Act 2005 (SA) (the Act). This Court made ex parte orders pursuant to ss 24(1)(a) and 24(1)(c) of the Act restraining the respondents from disposing of or dealing with specified property. The Court was satisfied for the purposes of the application for the restraining order that there were reasonable grounds to suspect that the property was owned by or under the effective control of the first respondent. 2 The respondents seek an order that ss 24(1)(a) and 24(1)(c) are invalid because they contend that those sections are 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 It follows that Australian parliaments cannot impair the institutional integrity of courts by requiring them to act in a manner that is repugnant to their institutional integrity.3 4 The respondents submit that ss 24(1)(a) and 24(1)(c) impermissibly purport to direct State courts as to the manner and outcome of the exercise of their jurisdiction such that they impair the independence of the court. 5 The respondents have issued notices in compliance with s 78B (of the Judiciary Act 1903 (Cth) (the Judiciary Act). The Attorney-General of South Australia has intervened in these proceedings pursuant to s 78A of the Judiciary Act in support of the submissions of the applicant asserting the validity of s 24 of the Act. 1 (1996) 189 CLR 51; [1996] HCA 24. 2 (2014) 253 CLR 393 [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. 3 Garlett v Western Australia (above), [242]; [2022] HCA 30; Kuczborski v The State of Queensland (2014) 254 CLR 51, [102]; [2014] HCA 46. -- 3 of 19 -- [2024] SADC 101 2 Statutory Framework 6 The long title to the Act assists in the construction of the Act and ascertaining the objectives of the Act.4 The long tile 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. 7 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. 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 the property specified in the order to be the proceeds of the offences and either (i) the person to have been convicted of a serious 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 (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. 8 In each of the three instances, the court may make an order excluding property from forfeiture pursuant to s 58, s 59 or s 76. 9 The power to make a restraining order is contained in s 24 of the Act which provides: 4 See D.C. Pearce “Statutory Interpretation in Australia” (LexisNexis Butterworths, 9th ed., 2019), [4.60]. -- 4 of 19 -- [2024] SADC 101 3 (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. (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. -- 5 of 19 -- [2024] SADC 101 4 (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 Section 24 imposes the following requirements: (1) The court must be satisfied that the person has been convicted or charged with or it is proposed that they be charged with, a serious offence or the person is suspected on reasonable grounds of having committed a serious offence (s 24(1)(a) and (b)). Section 24(1)(c) requires the court to be satisfied that there are reasonable grounds to suspect the property is the proceed of, or an instrument of, a serious offence. Different requirements are imposed in relation to s 24(1)(d); (2) The application must specify the property; (3) The court must be satisfied before making an order under ss 24(1)(a) or (b) that there are reasonable grounds to suspect that the property is the property of the suspect or property of another person that is subject to the effective control of the suspect or is the proceeds or instrument of the serious offence. Similar requirements are imposed in relation to an application under s 24(1)(d); and (4) The property must not be protected property. 11 Also relevant to the application of the respondents is s 25 of the Act which provides for notice to be given of the application. Section 25(1) provides that, subject to subsection (4), the DPP must give written notice of the application for a restraining order to the owner of the property and any other person the DPP reasonably believes may have an interest in the property. Section 25(3) provides that subject to subsection (4), a court must not hear an application unless it is satisfied that the owner of the property to which the application relates has received reasonable notice of the application. Section 25(4) provides that a court, may, if the DPP requests, consider the application without notice having been given under subsection (1). 12 Section 26 of the Act provides that the court may refuse to make a restraining order if the Crown, through the DPP, does not provide an undertaking as to damages. 13 Under s 34, the court may exclude property from the restraining order and under s 38 the respondent may apply to the court to exclude property on the basis that the respondent provides security that is satisfactory to the court to meet any liability that may be imposed under the Act. Under s 40, the court may make ancillary orders. -- 6 of 19 -- [2024] SADC 101 5 14 Pursuant to s 43(1) a person who was not notified of the application for a restraining order may apply to the court that the order be revoked. Section 43(3) provides that the court may revoke the restraining order if satisfied that there were no grounds on which to make the restraining order at the time of considering that application under s 43(1). 15 Pursuant to s 220 of the Act, 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 16 On 11 and 29 March 2022, the first respondent was charged with a number of serious offences including trafficking in a large commercial quantity of a controlled drug contrary to s 32(1) of the Controlled Substances Act 1984 (SA)(the Controlled Substances Act), trafficking in a commercial quantity of a controlled drug contrary to s 32(2) of the Controlled Substances Act and four counts of money laundering. Each of those offences is a serious offence for the purposes of the Act. The second respondent is a company of which the first respondent is the sole director and shareholder and the owner of some of the property in respect of which the restraining order was granted. 17 On 8 April 2022, the applicant filed an originating application in which it sought ex parte orders restraining the respondents from disposing or dealing with specified property. The grounds upon which the applicant sought the application to be dealt with on an ex parte basis were set out in an accompanying affidavit. On 14 April 2022, the Court, at an ex parte hearing, made the restraining order that was sought. The order was expressed to be made pursuant to ss 24(1)(a) and 24(1)(c) but, as the respondents submit, the order was in fact made under s 24(1)(a). 18 On 3 May 2022, the applicant filed an amended application in which it sought ex parte orders that the restraining order extend over some further property. That order was granted on 17 May 2022 at an ex parte hearing. 19 The respondents filed an application on 21 June 2022 pursuant to ss 34, 36, 75 and 76 of the Act seeking to exclude the property from the restraining order and forfeiture. 20 On 17 February 2023, the respondents filed an application reserving to a judge of this Court the following question of law: “Is section 24 of the Criminal Assets Confiscation Act 2005 (SA) valid”. The respondents do not challenge the making of the restraining order on any ground other than the asserted invalidity of s 24. Legal Principles 21 At common law, judges and the court are required to adhere to certain characteristics when hearing proceedings. These characteristics include that the -- 7 of 19 -- [2024] SADC 101 6 proceedings be held in public and each party have a full opportunity to present their own case and meet the case against it.5 The common law may be abrogated by parliament. However, the Constitution of the Commonwealth of Australia (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 establishes an integrated court system and contemplates the exercise of federal jurisdiction by State courts.6 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 to as to be incompatible with the court’s role as a repository of federal jurisdiction. 22 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.7 The High Court has observed that it is not possible to make a single statement embracing all of the aspects of a court.8 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.9 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.10 Edelman J11 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.12 The institutional integrity of the court is compromised where the substantive effect of the exercise of judicial power, which is judicial in its formal dimensions, is exercised unjudicially.13 23 The characteristics that have been held to come within the defining characteristics of a court include:14 • The reality and appearance of decisional independence and impartiality; • The application of procedural fairness; 5 Assistant Commissioner Michael James Condon v Pompano Pty Ltd (Pompano) (2013) 252 CLR 38, [1]; [2013] HCA 7. 6 Ibid, [4]; Attorney-General (NT) v Emmerson (Emmerson) (2014) 253 CLR 393, [40]; [2014] HCA 13. 7 Pompano (2013) 252 CLR 38, [67]; [2013] HCA 7. 8 Emmerson (above), [44]; [2010] HCA; Kuczborski v The State of Queensland (2014) 254 CLR 51, [104]; [2014] HCA 46. 9 (2022) 277 CLR 1, [182]; [2022] HCA 30. 10 Ibid, [242]. 11 Ibid, [243]. 12 Ibid, [243] and [245]. 13 Ibid. 14 Pompano (2013) 252 CLR 38, [67]; [2013] HCA 7. -- 8 of 19 -- [2024] SADC 101 7 • The adherence as a general rule to the open court principles; and • The provision of reasons for the court’s decisions. 24 As the plurality held in Emmerson,15 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 South Australia v Totani (Totani)16 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. 25 As to procedural fairness, the authorities have emphasised that there is no fixed content and that what constitutes procedural fairness is defined by practical judgments about it content and application which may vary according to the circumstances.17 The plurality in Pompano held that as a general rule, procedural fairness could be described in the following way:18 But if an adversarial system is followed, that system assumes, as a general rule, that opposing parties will know what case an opposite party seeks to make and how that party seeks to make it. As the trade secrets cases show, however, the general rule is not absolute. There are circumstances in which competing interests compel some qualification to its application. And, if legislation provides for novel procedures which depart from the general rule described, the question is whether, taken as a whole, the court’s procedures for resolving the dispute accord both parties procedural fairness and avoid ‘practical injustice’. 26 The High Court has consistently emphasised that principles set out in Kable are usually of limited application. In Fardon v Attorney-General (Qld) (Fardon),19 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.” 27 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 15 Emmerson (2014) 253 CLR 393, [44]; [2014] HCA. 16 (2010) 242 CLR 1, [149]; [2010] HCA 39. 17 Pompano (2013) 252 CLR 38, [68]; [2013] HCA 7. 18 Ibid, [157]. 19 (2004) 223 CLR 575, [41]; [2004] HCA 46. -- 9 of 19 -- [2024] SADC 101 8 integrity of that court to the extend that it affects the court’s capacity to exercise federal jurisdiction impartially and according to federal law. 28 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 to enforce those laws by the exercise of judicial powers.20 Edelman J in Gartlett held that the threshold for the impairment of such a vaguely stated constitutional presupposition must be very high.21 French CJ and Kiefel J in Wainohu v New South Wales (Wainohu)22 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.23 Kirby J in Fardon24 referred to 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.25 In K-Generation Pty Ltd v Liquor Licensing Court,26 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. Determination 29 The validity of s 24 must be considered in the context of the Act as a whole. The respondents seek to impugn s 24 on three interrelated bases: (1) Section 24 requires the court (by the use of the word must) to make an order restraining the respondent from disposing of or dealing with the property if the conditions set out in that section are satisfied. This, it is contended, in the circumstances in which s 24 operates and the criteria which it applies, takes away from the court proper consideration as to whether it is appropriate to make an order and whether in all the circumstances an order should be made and therefore impermissibly impairs the institutional integrity of the court; 20 (2022) 277 CLR 1, [60]; [2022] HCA 30. 21 Ibid, [242]. 22 (2011) 243 CLR 181, [52]; [2011] HCA 24. 23 Ibid. 24 (2004) 223 CLR 575, [144(1); [2004] HCA 46. 25 Ibid, [144(2)]. See also Emmerson (above), [62] where the plurality referred to the ad hominem nature of the legislation in Kable. 26 (2009) 237 CLR 501, [255]; [2009] HCA 4. -- 10 of 19 -- [2024] SADC 101 9 (2) Section 24 is dependent on an executive determination; that is, a decision by the DPP to bring an application for a restraining order; and (3) The court is able to make an order ex parte. 30 None of these matters, either singularly or together, provide any basis for a finding that the ss 24(1)(a) or 24(1)(c) are invalid because they compromise the institutional integrity of the court. (i) Making of an order upon satisfaction of conditions 31 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,27 French CJ, Hayne, Crennan, Kiefel, Bell, and Keane JJ held: [57] 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. [58] 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] The plurality in Emmerson quoted from the decision of McHugh J in Fardon28 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. The plurality in Emmerson went on to hold that:29 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 are 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. 32 Cases where such provisions might interfere with the institutional integrity of the court may arise where the statutory criteria are not objective criteria but matters involving the executive being satisfied of a particular fact. Even then, the 27 (2014) 253 CLR 93, [57]; [2014] HCA 13. 28 (2004) 223 CLR 375, [34]; [2004] HCA 46. 29 (2014) 253 CLR 93, [60]; [2014] HCA 13. -- 11 of 19 -- [2024] SADC 101 10 provision may still be valid if the ordinary incidents of the exercise of judicial power still apply to the determination of the issue. 33 The respondents submitted that the fact that s 24(6) provided that the court must make a restraining order even if there is no risk of the property being disposed or dealt with meant that the court could not engage in any evaluative risk of future wrongdoing and was precluded from evaluating whether a restraining order was appropriate. 34 The respondents further submitted that s 24 could not be construed as conferring a substantial adjudicative function when the alternative requirements under s 24(1) each required an executive decision (e.g. was the person charged or proposed to be charged) and when the further requirement in s 24(5) (as to there being reasonable grounds to suspect the property was owned or under the effective control of the respondent) was easily satisfied. 35 I do not accept those submissions for a number of reasons. 36 First, the requirements in s 24(1) cannot be read in isolation and must read in conjunction with ss 24(2), 24(5) and 24(6) which impose further requirements that must be satisfied. 37 Secondly, insofar as s 24(1) requires the court only to be satisfied that the person has been charged with a serious offence, or it is proposed that the person be charged with a serious offence, and that is a decision of the executive, such a decision is made not for the purpose of making a restraining order but as part of the prosecutorial process. It is a circumstance that the court must be satisfied exists. There is no executive determination of whether the criteria have been met. It is unlike the declaration that was under consideration in Totani where the existence of the declaration by the Attorney-General was the circumstance upon which the court must act.30 38 Thirdly, the restraining order does not permanently affect rights and relates to the ability to deal with proprietary rights to exercise control over property. It is an interim measure, similar to a freezing order, which preserves the financial position of the respondents pending any forfeiture application or deemed forfeiture. It is wrong therefore to characterise it, as the respondents sought to do, as designed to prevent future wrongdoing. 39 Fourthly, the exclusion of risk from consideration does not alter the nature of the function that the court is asked to perform. The court must still consider whether the preconditions for the granting of the order are satisfied. The same task would be performed by the court in the absence of s 24(6). It is permissible for the legislature to determine that a particular circumstance does not need to be 30 (2010) 242 CLR 1, [139]; [2010] HCA 39. -- 12 of 19 -- [2024] SADC 101 11 established when granting the court a power to make an order. That is a legitimate part of the balancing exercise undertaken by the legislature. 40 Fifthly, the High Court in Emmerson rejected the proposition that because the discretion given to the court was limited and easily satisfied, there was no adjudicative function and the process was not judicial in character. There is no requirement that s 24 impose a substantial adjudicative process. Similarly, there is no requirement that the court must perform some evaluative process that includes or may include the risk that a respondent might dispose of or deal with their assets. As counsel for the Attorney-General submitted, mandatory minimum sentences, upheld in Magaming v The Queen31 are an example where evaluative judgments have been removed from a court. In Emmerson, French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ held:32 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 the subject to the usual processes of appeal. 41 Section 24 imposes a number of objective requirements which the court must be satisfied of before making a restraining order. For example, one requirement is that the court must be satisfied that the person has been charged with a serious offence or it is proposed that the person be charged with a serious offence or that the person is suspected on reasonable grounds of having committed a serious offence. The court will determine, which, if any, of those matters has been satisfied. The court must also be satisfied, in cases concerning ss 24(1)(a) or (b) that that the property is owned by the suspect or is under the effective control of the suspect. In cases involving s 24(c), the court must be satisfied that there are reasonable grounds to suspect that the property is the proceeds of, or an instrument of, a serious offence. 42 There is nothing in the content of s 24 which undermines the institutional integrity of the court. The determination is made in open court in circumstances where the affected party has the right to be heard (subject to the application being heard ex parte), may have legal representation and may make submissions and receive reasons.33 An application to revoke the order may be made under s 43. The criteria of which the court must be satisfied before making an order depend on the court’s assessment of the evidence. The application must specify the property to which the application relates and the DPP may submit evidence in support of the application in the form of an affidavit.34 Although s 24(3) states that the DPP may file an affidavit, in an interlocutory application governed by the Uniform Civil 31 (2013) 252 CLR 381; [2013] HCA 40. 32 (2014) 253 CLR 393, [67]-[68]; [2014] HCA 13. 33 See Emmerson at [61]. 34 Ibid, [87(4)]; ss 24(2) and 24(3) of the Criminal Assets Confiscation Act 2005 (SA)(the Act). -- 13 of 19 -- [2024] SADC 101 12 Rules 2020 (SA) an affidavit is necessary for the court to be satisfied of the relevant criteria. 43 A similar statutory scheme to the restraining and forfeiture scheme under the Act was considered by the High Court in Emmerson and found to be valid. Section 36A(1) of the Misuse of Drugs Act 1990, (NT)(the Misuse of Drugs Act) provided that the DPP could apply to the Supreme Court for a declaration that the person was a drug trafficker. Section 36A(2) provided that on hearing of that application, the court must declare a person to be a drug trafficker if the person had been found guilty of the specified offence and a corresponding previous offence. The Misuse of Drugs Act worked in conjunction with the Criminal Property Forfeiture Act 2002, (NT) (the Forfeiture Act). Section 94 of the Forfeiture Act provided for forfeiture of property that was subject to a restraining order and that was owned or effectively controlled by the person is forfeited to the Territory. Section 44 of the Forfeiture Act relevantly provided that: (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. 44 In Emmerson, the argument was that the statutory scheme was invalid because it required the court to give effect to executive decisions and legislative policy in a manner that undermined its institutional integrity to a degree that was incompatible with its role as a repository of federal jurisdiction.35 Subsumed into the complaint was an argument that the court’s discretion under s 44 of the Forfeiture Act was limited such that the court could not remedy the alleged 35 (2014) 253 CLR 393, [39]; [2014] HCA 24. -- 14 of 19 -- [2024] SADC 101 13 harshness of any forfeiture.36 After making the general statements which I have referred to above, French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ concluded:37 A declaration can only be made by the Supreme Court on receipt of evidence sufficient to satisfy the civil standard of proof in respect of a person's requisite number of past convictions. There is nothing in the statutory scheme which indicates that the determination to be made by the Supreme Court is to be undertaken other than in open court, in circumstances where an affected party has a right to be heard, may have legal representation, and may make submissions and receive reasons. That the determination of whether the statutory criteria are satisfied may readily be performed, because of the ease of proof of the criteria, does not deprive the process of its judicial character. 45 The respondents relied upon the decision the High Court in Totani38 where it was held that the impugned provision was incompatible with and impaired the institutional integrity of the court and was therefore invalid. In that case, s 14(1) of the Serious and Organised Crime (Control) Act 2008 (SA) (SOCC Act) required the court, on an application of the Commissioner of Police, to make an order if the court was satisfied of one matter, namely that the defendant was a member of a declared organisation. The Attorney-General was given the power under s 10 of the SOCC Act to make a declaration in respect of an organisation on the basis that the members were involved in serious criminal activity. That declaration was administrative in character.39 46 In those circumstances, French CJ held that s 14 requires the court to make a decision that was largely preordained by an executive determinations for which no reasons needed to be given and the merits of which could not be questioned in court and which were based on executive determination of criminal conduct.40 Crennan and Bell JJ made it clear that he fact that the State court may be required to act on the basis of a factum determined by the executive, without more, does not impermissibly impair the institutional integrity of the court.41 However, when the court’s adjudicative powers are confined so as merely to implement an executive or legislative decision, then the institutional integrity of the Court may be (but is not even necessarily) impaired.42 47 In Totani, the court also looked at the quality of the intrusion. Crennan and Bell JJ held43 that the conferral of the power to make control orders, required the court to exercise judicial power undertaking an adjudicative process that was so confined and so dependent on the executive’s determination in the declaration, that it departed impermissibly from the ordinary judicial processes of an independent 36 Ibid, [51]. 37 Ibid, [65]. 38 (2010) 242 CLR 1; [2010] HCA 39. 39 Ibid, [2]. 40 Ibid, [4]. 41 Ibid, [420]. 42 Ibid, [420]. 43 Ibid, [436]. -- 15 of 19 -- [2024] SADC 101 14 and impartial tribunal. That scheme had the effect of rendering the court an instrument of the executive and undermined its independence. 48 Hayne J came to the same conclusion but put in a slightly different way.44 He held that those who were subject to the restraining order were subject to a special restraint, over and above the limitations that were imposed on other members of the public, but not for something that they might have done but because of the choice made by the executive. That function is repugnant to the institutional integrity of the court. 49 French CJ considered that there were a number of elements that led him to the conclusion that the institutional integrity of the court was compromised in an area going to personal liberty and liability to criminal sanctions which lie at the heart of the judicial function; they were the executive findings about factual matters that were not disclosed to the court nor the evidence upon which they were based.45 50 In Garlett,46 Kiefel CJ, Keane and Steward JJ referred to Totani as being a clear case of enlistment of the court to give effect to the decision of the executive government in relation to particular individuals. 51 In the present case, s 24 does not require the court to act at the behest of the DPP or to give effect to government policy without following ordinary judicial process.47 Section 24 and the Act incorporates normal judicial process and safeguards when the court determines whether it should grant a restraining order. Totaini does not, in the circumstances, assist the respondents. 52 The respondents also referred to the decision in Wainhuo.48 The defining aspect of the legislation in that case, which led the court to find that the Act under consideration in that case impaired the institutional integrity of the court, was the provision in the Act that relieved the judge from giving any reasons or grounds for making a declaration. The requirement to give reasons is an integral apart of the judicial process and therefore the dispensing with that requirement obviously impairs the institutional integrity of the court.49 There is no provision in the Act which dispenses with the requirement to give reasons. (ii) The bringing of the application by the DPP 53 The fact that the application for the order is made by the DPP does not mean that the court is acting at the behest of the executive. That point was considered in Emmerson where the plurality held that:50 44 Ibid, [236]. 45 Ibid, [82]. 46 (2022) 277 CLR 1, [96]; [2022] HCA 30. 47 Ibid, [69]. 48 (2011) 243 CLR 181; [2011] HCA 24. 49 Ibid, [58]. 50 Emmerson (above), [61]. -- 16 of 19 -- [2024] SADC 101 15 That the controversy is initiated by an officer of the Executive, the DPP, does not deprive the Supreme Court of its independence. The DPP’s decision to make an application to the Supreme Court in respect of an individual (whether under s 36A or s 44) is a discretionary decision, similar to the well-recognised prosecutorial discretion to decide who is to be prosecuted and for what offences… The role of the DPP in the statutory scheme reflects no more than procedural necessity in the adversarial system. [citations omitted] (iii) Ex parte application 54 The respondents contended that one of the reasons why s 24 impaired the institutional integrity of the courts was that s 25(4) permitted the court to consider, on the request of the DPP, an application for a restraining order on an ex parte basis in circumstances where, pursuant to s 24(6), the court is prohibited from considering whether there is a risk of property being disposed of or otherwise dealt with. The respondents submitted that the command in s 24(6) meant that the court could not consider the risk of disposal of an asset when considering whether to accede to a request by the DPP to hear the matter ex parte. Therefore, in a practical sense, the court was required to comply with the request and hear the matter ex parte. 55 That the application may be (and was in this case) initially heard ex parte does not deprive the court of its institutional integrity. Under s 25(4) of the Act, the court may, upon the request of the DPP, consider the application ex parte. The court retains the discretion as to whether or not to accede to that request. I do not accept the submission of the respondents that the court in practical terms must accede to the request of the DPP to hear a matter ex parte. Section 25(1) requires, in the normal case, notice to be given to the respondent of the application. A departure from that norm, will require some justification. The risk of dissipation of the asset can be one such justification. Risk is a relevant consideration in determining whether or not to hear an application on an ex parte basis, even though a restraining order must be made even if there is no risk. Further, under s 24(8) the restraining order may be made subject to conditions. One such condition could, in the case of an ex parte order, be that the order only have effect until the first return date of the application after service has been effected. Still further, pursuant to s 43, a person who is not notified of the application for a restraining order, may apply to revoke the order within 28 days after being notified. 56 This is very different to the statutory scheme that the court held to be repugnant in International Finance Trust Co Ltd v New South Wales Crime Commission (International Finance Trust).51 In that case, the section under consideration was s 10 of the Criminal Assets Recovery Act 1999 (NSW) (the CAR Act). Section 10(2) of the CAR Act enabled the Commission to apply to the Supreme Court, ex parte, for a restraining order. Pursuant to s 10(3), the court was required to make an order granting the restraining order if the application was supported by an affidavit of an authorised officer stating various matters, and the 51 (2009) 240 CLR 319; [2009] HCA 49. -- 17 of 19 -- [2024] SADC 101 16 court considered that there were reasonable grounds for the suspicion. French CJ held that s 10 of the CAR Act left it to the Commission to decide whether there was such a risk of concealment or dissipation of assets and whether notice of the application should be given to the person affected by it. Therefore, the court’s discretion as to the conduct of its own proceedings in the key area of procedural fairness had been supplanted by the Commission’s judgment.52 French CJ held:53 To require a court, as s 10 does, not only to receive an ex parte application, but also to hear it and to determine the ex parte, if the Executive so desires, it is to direct the court as to the manner in which it exercises its jurisdiction and in doing so to deprive the court an important characteristic of judicial power. That is the power to ensure, so far as practical, fairness between the parties. 57 French CJ went on to hold that to deprive the court of an essential incident of the judicial function by directing that the court as to the manner of the exercise of its jurisdiction, distorted the institutional integrity of the court and affected its capacity as a repository of federal jurisdiction.54 French CJ made the point that that conclusion involved a judgment about the quality of the executive’s intrusion, sanctioned by the legislature into the judicial function. French CJ held that fulfilment of the purposes of civil asset forfeiture laws almost inevitably require provision to be made for ex parte applications.55 58 In the present case there is not that intrusion into the judicial function for reasons I have stated. The court retains a discretion as to whether or not to hear the matter ex parte, to impose conditions upon any ex parte order that may be made, and to and to permit the respondents to apply to revoke any order made on an ex parte application once they have received notice of the application. That is an entirely orthodox position and does not in any way undermine the judicial integrity of the court. In International Finance Trust, Heydon J considered that it was the inability of the respondent to be able to dissolve the ex parte restraining order that was decisive in determining that s 10 of the CAR Act was repugnant to the institutional integrity of the court.56 Conclusion 59 For the reasons that I have expressed, s 24 of the Act does not operate so as to undermine the institutional integrity of the court and is not incompatible with its role as a repository of federal jurisdiction. Sections 24(1)(a) or 24(1)(c) are not invalid. The question that was reserved to this Court namely: “Is section 24 of the Criminal Assets Confiscation Act 2005 (SA) valid”: is answered “Yes”. 52 Ibid, 44, [55]. 53 Ibid. 54 Gummow and Bell JJ reached the same conclusion. Ibid, [97]-[98]. 55 Ibid, [35]. 56 Ibid, [155], [159]. -- 18 of 19 -- [2024] SADC 101 17 The respondents are not entitled to any order declaring void s 24 of the Act or the restraining orders that were made on 14 April 2022 and 17 May 2022. 60 I will hear the parties as to costs. -- 19 of 19 --