FRENCH CJ, HAYNE, CRENNAN, KIEFEL, BELL, GAGELER AND KEANE JJ
ATTORNEY-GENERAL FOR THE NORTHERN TERRITORY & ANOR APPELLANTS
AND
REGINALD WILLIAM EMMERSON & ANOR RESPONDENTS
Attorney-General (NT) v Emmerson
[2014] HCA 13
10 April 2014
D5/2013
ORDER
1.Appeal allowed.
2.Set aside the order of the Court of Appeal of the Northern Territory made on 28 March 2013 and paragraphs 1, 2 and 4 (first appearing) of the order of the Court of Appeal made on 13 May 2013 and, in their place, order that the appeal to that Court be otherwise dismissed with costs.
3.The second appellant pay the first respondent's costs in this Court.
On appeal from the Supreme Court of the Northern Territory
Representation
M P Grant QC, Solicitor-General for the Northern Territory with R H Bruxner and S L Brownhill for the appellants (instructed by Solicitor for the Northern Territory)
A Wyvill SC and N Christrup with P W Johnston for the first respondent (instructed by Ward Keller Lawyers)
Submitting appearance for the second respondent
Interveners
J T Gleeson SC, Solicitor-General of the Commonwealth with C J Horan for the Attorney-General of the Commonwealth, intervening (instructed by Australian Government Solicitor)
M G Sexton SC, Solicitor-General for the State of New South Wales with N L Sharp for the Attorney-General for the State of New South Wales, intervening (instructed by Crown Solicitor (NSW))
W Sofronoff QC, Solicitor-General of the State of Queensland with G J D del Villar for the Attorney-General of the State of Queensland, intervening (instructed by Crown Law (Qld))
M G Hinton QC, Solicitor-General for the State of South Australia with A C Carter for the Attorney-General for the State of South Australia, intervening (instructed by Crown Solicitor (SA))
G R Donaldson SC, Solicitor-General for the State of Western Australia with K E McDonald for the Attorney-General for the State of Western Australia, intervening (instructed by State Solicitor (WA))
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Attorney-General (NT) v Emmerson
Constitutional law (Cth) – Judicial power of the Commonwealth – Constitution, Ch III – Section 36A of Misuse of Drugs Act (NT) and s 94 of Criminal Property Forfeiture Act (NT) effect statutory scheme for forfeiture of property – Section 36A provides that Supreme Court can declare a person to be a "drug trafficker" – Section 94(1) provides for forfeiture to Northern Territory of property subject to restraining order that is owned, effectively controlled or given away by that person – Where Director of Public Prosecutions successfully applied to Supreme Court for declaration that first respondent was a drug trafficker – Whether statutory scheme enlists Supreme Court to give effect to decisions of Executive – Whether statutory scheme compatible with independence and institutional integrity of Supreme Court as repository of federal jurisdiction.
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Attorney-General (NT) v Emmerson [2014] HCA 13
Case
[2014] HCA 13
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered a constitutional challenge brought by the Attorney-General (NT) against the first respondent, concerning the validity of certain provisions of the *Misuse of Drugs Act* (NT) and the *Criminal Property Forfeiture Act* (NT). The dispute centred on a statutory scheme that allowed the Supreme Court of the Northern Territory to declare an individual a "drug trafficker," which then enabled the forfeiture of their property to the Northern Territory government. The Attorney-General argued that this scheme was constitutionally valid, while the first respondent contended it infringed upon fundamental constitutional principles.
The primary legal issues before the High Court were twofold. Firstly, whether the statutory scheme, by enlisting the Supreme Court to give effect to decisions made by the executive branch (specifically, the Director of Public Prosecutions), undermined the institutional integrity and independence of the Supreme Court as a repository of federal jurisdiction, thereby contravening Chapter III of the Commonwealth Constitution. Secondly, the Court had to determine whether the forfeiture provisions constituted an "acquisition of property" by the Northern Territory otherwise than on "just terms," as prohibited by section 50(1) of the *Northern Territory (Self-Government) Act 1978* (Cth).
The High Court allowed the appeal, finding that the statutory scheme did not contravene Chapter III of the Constitution. The Court reasoned that the Supreme Court's role in declaring a person a "drug trafficker" was not merely giving effect to an executive decision but involved the exercise of judicial power. The Court held that the scheme did not deny the Supreme Court the independence and impartiality compatible with its constitutional role. Furthermore, the Court concluded that the forfeiture provisions did not amount to an acquisition of property within the meaning of section 50(1) of the *Northern Territory (Self-Government) Act*, and therefore did not require just terms compensation. Consequently, the Court set aside the orders of the Northern Territory Court of Appeal and ordered that the first respondent's appeal to that Court be otherwise dismissed.
Orders
Orders of the court
1. Appeal allowed.
2. Set aside the order of the Court of Appeal of the Northern Territory made on 28 March 2013 and paragraphs 1, 2 and 4 (first appearing) of the order of the Court of Appeal made on 13 May 2013 and, in their place, order that the appeal to that Court be otherwise dismissed with costs.
3. The second appellant pay the first respondent's costs in this Court.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
FRENCH CJ, HAYNE, CRENNAN, KIEFEL, BELL AND KEANE JJ
(dissent)
GAGELER J
Unlike the first respondent's proffered construction, the Court of Appeal's interpretation of s 52(3)(a) accords with, and does not frustrate, the stated objectives of the statutory scheme and must be upheld. Conclusions The result is that s 36A of the Misuse of Drugs Act and s 94(1) of the Forfeiture Act do not, singly or together, operate to deny the Supreme Court of the Northern Territory such independence and impartiality as is compatible with its constitutional role as a repository of federal jurisdiction. Further, the provisions do not effect an acquisition of property within the contemplation of the Northern Territory (Self-Government) Act[141].[141]Northern Territory (Self‑Government) Act, s 50(1). Orders For the reasons given the following orders should be made:1. Appeal allowed.2.Set aside the order of the Court of Appeal of the Northern Territory made on 28 March 2013 and paragraphs 1, 2 and 4 (first appearing) of the order of the Court of Appeal made on 13 May 2013 and, in their place, order that the appeal to that Court be otherwise dismissed with costs.3.The second appellant pay the first respondent's costs in this Court. Introduction Section 6 of the Northern Territory (Self-Government) Act 1978 (Cth) ("the Self-Government Act") confers power on the Legislative Assembly of the Northern Territory "to make laws for the peace, order and good government of the Territory". The power is subject to the express limitation in s 50(1) of the Self-Government Act that it "does not extend to the making of laws with respect to the acquisition of property otherwise than on just terms". Section 36A of the Misuse of Drugs Act (NT) ("the Misuse Act") and ss 44(1)(a) and 94 of the Criminal Property Forfeiture Act (NT) ("the Forfeiture Act") contravene that express limitation on the power of the Legislative Assembly. They are laws with respect to the acquisition of property otherwise than on just terms. To explain why, it is necessary to start with an identification of the critical features of their legal operation.Legislative scheme The Supreme Court of the Northern Territory is established by the Legislative Assembly under the Supreme Court Act (NT). It is a court which the Commonwealth Parliament can invest, under s 122 of the Constitution, with jurisdiction in respect of matters arising under Commonwealth laws applicable throughout Australia, which is properly described as "federal jurisdiction". Together with other Territory courts, and with State courts which the Commonwealth Parliament can invest with federal jurisdiction under s 77(iii) of the Constitution, the Supreme Court is therefore a court in which the "judicial power of the Commonwealth" can be vested within the meaning of s 71 of the Constitution[142]. Together with other State and Territory courts, it is a Ch III court.[142]North Australian Aboriginal Legal Aid Service Inc v Bradley (2004) 218 CLR 146 at 162-163 [27]-[28]; [2004] HCA 31. The Director of Public Prosecutions ("the DPP") is a statutory officer appointed under the Director of Public Prosecutions Act (NT). The DPP exercises functions on behalf of the "Crown", meaning the executive government which is the repository of the executive power formally vested in the Administrator of the Territory[143]. The DPP's functions include functions conferred by the Misuse Act and the Forfeiture Act.[143]Section 31 of the Self-Government Act; s 11(1)(a) of the Director of Public Prosecutions Act (NT).