Many lawyers in Western Australia have been awaiting the publication of the High Court’s decision in Attorney-General (Northern Territory) v Emmerson  HCA 13. ((http://www.austlii.edu.au/au/cases/cth/HCA/2014/13.html))
The Court found in a 6:1 decision that the drug trafficker declaration regime that forms a key part of the Criminal Property Forfeiture Act 2002 (NT) (the NT Act) was not invalid on Chapter III, ie Kable ((Kable v DPP (NSW) (1996) 189 CLR 51;  HCA 24)) grounds.
Criminal Property Confiscation Act 2000 (WA)
The decision is of particular relevance to WA practitioners as the NT Act was modelled on the Criminal Property Confiscation Act 2000 (WA) (the WA Act). The two statutes are unique in Australia. They are the only confiscations/proceeds of crime Acts that provide for the forfeiture of all property of a person who is declared a ‘drug trafficker’; even where the person can demonstrate that the property was neither used in the course of, nor derived from criminal activity.
Notably, the dissenting judgment of Gageler J turns on points that are unique to the legal status of the NT as a Territory. (( HCA 13 at )) His Honour’s reasoning on the NT Act would not apply to the WA Act.
In a nutshell the decision in Emmerson has shored up the validity of the WA Act.
The High Court’s decision
In ruling as it did the High Court overturned the Court of Appeal (NT) which had found in a 2:1 decision that certain provisions of the NT Act were repugnant to the independence and institutional integrity of Supreme Court as a repository of federal jurisdiction. ((Emmerson v Director of Public Prosecutions (2013) 33 NTLR 1;  NTCA 4))
One of the saving features for the NT Act was that it did not purport to tell the Supreme Court how to exercise the powers conferred, in the sense that it did not tell the Court to act otherwise than judicially. ((see  and following of the joint judgment)) For instance, unlike some other legislation that has been struck down and which was discussed in Emmerson, the NT Act did not impose a procedural code that was at odds with normal judicial process. Nor it would seem does the WA Act overstep this mark.
In the course of the oral argument of the appeal:
- the Solicitor-General for the NT accepted that a person whose property is the subject of a freezing order application under the NT Act could seek judicial review of the decision. (( HCATrans 006 at line 1930)) No doubt that possibility will be explored further in future cases.
- The Solicitor-General for WA (intervening) accepted that the Court had a limited discretion on an application to freeze property. (( HCATrans 006 at line 3235)) Indeed the Court appeared to agree. ((see  HCA 13 at ))
While further constitutional challenges to the WA Act are not out of the question, in the wake of Emmerson any challenge will need to be on something other than a Kable ground.
Future challenges to the WA Act
I suggest that challenges to the WA Act may have better prospects if they are framed as questions of statutory interpretation.
The WA Act changes fundamental common law rights, such that the principle of legality is engaged. ((see generally the next most recent High Court authority on confiscations, Lee v New South Wales Crime Commission  HCA 39 by way of example)) The consequence of the principle’s application is that the legislature can only pass laws for the confiscation of property interests using words that are irresistibly clear.
Justice Hayne has previously said of the WA Act:
“Both parties to the present application, and all of the judges who have considered its construction, appear to agree that the Criminal Property Confiscation Act 2000 (WA) is an Act that lacks coherence and, for that reason, is drafted unsatisfactorily.”DPP (WA) v Centurion Trust Company Ltd  HCATrans 88
Ambiguities are likely to be resolved against the State and in favour of the owner of the affected property interest.
In an upcoming blog post I will address the rights of third parties (including mortgagees and caveators) under the WA Act.
A word of caution
The WA Act contains strict time limits for the filing of objections. Failure to comply will result in automatic forfeiture (regardless if whether anyone is ever convicted).
Proceedings under the WA Act are civil, not criminal. The rules of evidence, practises and procedures that ordinarily apply in civil matters will govern the determination of litigation under the WA Act. Specialist legal advice should be sought on any matter under the WA Act.