International Finance Trust Co Ltd v New South Wales Crime Commission

The High Court of Australia heard an appeal from the Court of Appeal of the Supreme Court of New South Wales concerning the constitutional validity of certain provisions of the *Criminal Assets Recovery Act 1990* (NSW). The dispute centred on the power of the New South Wales Crime Commission to obtain restraining orders against property suspected of being derived from serious crime-related activity. The International Finance Trust Co Ltd, as an appellant, challenged the Supreme Court's jurisdiction to make such orders ex parte, arguing it was repugnant to the fundamental principles of the judicial process.

The primary legal issue before the High Court was whether section 10 of the *Criminal Assets Recovery Act 1990* (NSW), which allowed the Supreme Court to make restraining orders ex parte upon application by the Crime Commission based on an affidavit of reasonable grounds for suspicion, impermissibly infringed upon the judicial power of the Commonwealth vested in State courts under Chapter III of the Constitution. Appellants contended that this provision compelled the Supreme Court to engage in activity fundamentally inconsistent with its role as an independent judicial tribunal, particularly by removing judicial discretion to hear matters inter partes. A secondary issue concerned the validity of section 22(2)(b) of the Act, which mandated forfeiture orders under certain conditions, and whether this constituted a bill of pains and penalties.

The High Court, in allowing the appeal, found that section 10 of the *Criminal Assets Recovery Act 1990* (NSW) was invalid. The Court reasoned that the provision, by mandating the making of a restraining order ex parte where the Commission's affidavit met specified criteria, removed any judicial discretion to afford the affected party an opportunity to be heard. This lack of discretion, particularly in contrast to situations where urgency might justify ex parte relief, was considered to be a fundamental departure from the principles of natural justice and the institutional integrity of the Supreme Court as a judicial body. The Court distinguished this from situations where courts may entertain urgent ex parte applications, noting that the Act provided no such discretion.

Consequently, the High Court varied the orders of the Court of Appeal, dismissing the proceedings brought by the Crime Commission and declaring section 10 of the *Criminal Assets Recovery Act 1990* (NSW) to be invalid. The first respondent was ordered to pay the costs of the appellants.