International Finance Trust Co Ltd v New South Wales Crime Commission

HIGH COURT OF AUSTRALIA

FRENCH CJ,
GUMMOW, HAYNE, HEYDON, CRENNAN, KIEFEL AND BELL JJ

INTERNATIONAL FINANCE TRUST COMPANY
LIMITED & ANOR  APPELLANTS

AND

NEW SOUTH WALES CRIME COMMISSION & ORS                  RESPONDENTS

International Finance Trust Company Limited v New South Wales Crime Commission [2009] HCA 49
12 November 2009
S72/2009

ORDER

1.     Appeal allowed.

2.Vary the orders of the Court of Appeal of the Supreme Court of New South Wales entered 6 November 2008:

(a)By adding at the end of order 2, "and proceedings 12212 of 2008 be dismissed and the first respondent pay the costs of those proceedings of the appellants".

(b)By adding an order declaring that s 10 of the Criminal Assets Recovery Act 1990 (NSW) is invalid.

3.First respondent to pay the costs of the appellants.

On appeal from the Supreme Court of New South Wales

Representation

T E F Hughes QC with G J Jones and G A F Connolly for the appellants (instructed by Atanaskovic Hartnell)

I D Temby QC with P F Singleton for the first respondent (instructed by New South Wales Crime Commission)

No appearance for the second and third respondents

Interveners

S J Gageler SC, Solicitor-General of the Commonwealth with K M Richardson intervening on behalf of the Attorney-General of the Commonwealth (instructed by Australian Government Solicitor)

R J Meadows QC, Solicitor-General for the State of Western Australia with C L Conley intervening on behalf of the Attorney-General for the State of Western Australia (instructed by State Solicitor for Western Australia)

M G Sexton SC, Solicitor-General for the State of New South Wales with J G Renwick intervening on behalf of the Attorney-General for the State of New South Wales (instructed by Crown Solicitor (NSW))

P M Tate SC, Solicitor-General for the State of Victoria with K L Walker intervening on behalf of the Attorney-General for the State of Victoria (instructed by Victorian Government Solicitor)

W Sofronoff QC, Solicitor-General of the State of Queensland with G J D del Villar intervening on behalf of the Attorney-General for the State of Queensland (instructed by Crown Law Queensland)

M G Hinton QC, Solicitor-General for the State of South Australia with S T O'Flaherty intervening on behalf of the Attorney-General for the State of South Australia (instructed by Crown Solicitor for the State of South Australia)

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

International Finance Trust Company Limited v New South Wales Crime Commission

Constitutional law (Cth) – Judicial power of Commonwealth – Jurisdiction vested in State courts – Criminal Assets Recovery Act 1990 (NSW) ("Act") – Section 10(2) of Act allows New South Wales Crime Commission ("Commission") to apply to Supreme Court of New South Wales ("Supreme Court") ex parte for restraining order in respect of interests in property – Section 10(3) of Act requires Supreme Court to make restraining order in respect of interest of person suspected of engaging in serious crime related activity and in respect of interests in property suspected of being derived from serious crime related activity where affidavit of authorised officer contains reasonable grounds for suspicion – Restraining order prevents persons disposing of or dealing with the interest, or attempting to do so – Section 25 of Act allows for application to exclude interest in property from restraining order – Where restraining orders granted, upon ex parte application by Commission, in respect of various bank accounts, suspected of being derived from serious crime related activity – Whether basis for granting restraining order only positively displaced by exclusion application under s 25 of Act, where applicant bears burden of proving, on balance of probabilities, that interest in property not fraudulently or illegally acquired – Whether s 10 engages Supreme Court in activity repugnant in a fundamental degree to judicial process.

Constitutional law (Cth) – Judicial power of Commonwealth – Jurisdiction vested in State courts – Section 22(2)(b) of Act requires Supreme Court, upon application by Commission, to make assets forfeiture order in respect of interests in property if more probable than not that the person whose suspected serious crime related activity formed the basis of restraining order has engaged in the last six years in serious crime related activity involving an offence punishable by imprisonment for five years or more – Whether s 22(2)(b) bill of pains and penalties – Whether s 22(2)(b) engages Supreme Court in activity repugnant in a fundamental degree to judicial process.

Statutes – Interpretation – Whether plain intendment of Act the establishment of regime distinct from usual incidents of Supreme Court.

Words and phrases – "ancillary orders", "confiscation", "ex parte", "fraudulently acquired property", "illegally acquired property", "reasonably plain intendment", "serious crime related activity".

Criminal Assets Recovery Act 1990 (NSW), ss 10, 12(1), 22, 25.

FRENCH CJ.

Introduction

1. The Criminal Assets Recovery Act 1990 (NSW) ("the CAR Act") empowers the New South Wales Crime Commission[1] ("the Commission") to apply to the Supreme Court of New South Wales for a restraining order in respect of some or all of the property of a person suspected of having committed a serious offence[2].  The provisions relating to restraining orders are in aid of the Commission's power to apply to the Court for forfeiture of the relevant property[3]. 

   [1]Constituted under the New South Wales Crime Commission Act 1985 (NSW), s 5.

   [2]CAR Act, s 10.

   [3]CAR Act, s 22.

2. The Commission may apply to the Court for a restraining order without notice to the person affected.  If the application is supported by an affidavit stating that the person affected is suspected of having engaged in "serious crime related activities", and setting out the grounds for that suspicion, and if the Court considers, having regard to the affidavit, that there are reasonable grounds for the suspicion, then the Court must make the order sought.

3. The validity of the provisions of the CAR Act providing for restraining orders and assets forfeiture orders is challenged in this appeal from the Court of Appeal of the Supreme Court of New South Wales[4]. The basis of the challenge is that the CAR Act imposes upon the Supreme Court functions which so distort its institutional integrity as to be inconsistent with its status as a repository of federal jurisdiction, conferred pursuant to Ch III of the Commonwealth Constitution. The challenge relies upon the decision of this Court in Kable v Director of Public Prosecutions (NSW)[5].

   [4]International FinanceTrust Company Ltd v New South Wales Crime Commission (2008) 251 ALR 479.

   [5](1996) 189 CLR 51; [1996] HCA 24.

4. On its proper construction, s 10 of the CAR Act requires the Supreme Court to hear and determine, without notice to the persons affected, applications for restraining orders made ex parte by the Commission. For that reason the section impermissibly directs the Court as to the manner of the exercise of its jurisdiction and restricts the application of procedural fairness in the judicial process and conditions its full application upon a discretion exercised by the Executive branch of the government of New South Wales. It is not to the point that the restriction is temporary, nor that the scope of the order may subsequently be varied by an exclusion order, which can only be made if the party affected shows, on the balance of probabilities, that the affected property was not illegally acquired. In my opinion the section is invalid.

   Statutory framework

5. The CAR Act sets out a statement of its principal objects, which include providing for the confiscation, without requiring a conviction, of a person's property if the Supreme Court finds it to be more probable than not that the person has engaged in serious crime related activities[6].  They also include the objective of enabling law enforcement authorities "effectively to identify and recover property."[7] It is that object which is served, inter alia, by the provisions of the CAR Act which confer power on the Supreme Court to make restraining orders and ancillary orders requiring examination on oath of persons concerning the affairs of the owner of an interest in property subject to a restraining order[8].

   [6]CAR Act, s 3(a).

   [7]CAR Act, s 3(c).

   [8]CAR Act, s 12(1)(b).

6. Proceedings on an application for a restraining order or a confiscation order are not criminal proceedings[9]. The rules of construction applicable only in relation to the criminal law do not apply to the interpretation of the CAR Act[10] (except in relation to an offence against the CAR Act). The rules of evidence applicable in civil proceedings apply, and those applicable only in criminal proceedings do not apply, to proceedings under the CAR Act[11].

   [9]CAR Act, s 5(1).

   [10]CAR Act, s 5(2)(a).

   [11]CAR Act, s 5(2)(b).

7. Applications for restraining orders may be made under Pt 2 of the CAR Act. Section 10 provides, inter alia:

   "(1)A restraining order is an order that no person is to dispose of or attempt to dispose of, or to otherwise deal with or attempt to otherwise deal with, an interest in property to which the order applies except in such manner or in such circumstances (if any) as are specified in the order.

   (2)The Commission may apply to the Supreme Court, ex parte, for a restraining order in respect of:

   (a)specified interests, a specified class of interests or all the interests, in property of a person suspected of having engaged in a serious crime related activity or serious crime related activities, including interests acquired after the making of the order and before the making of an assets forfeiture order affecting the interests that are subject to the restraining order, or

   (b)specified interests, or a specified class of interests, in property that are interests of any other person, or

   (c)interests referred to in both paragraph (a) and paragraph (b).

   …

   (3)The Supreme Court must make the order applied for under subsection (2) if the application is supported by an affidavit of an authorised officer stating that:

   (a)in the case of an application in respect of an interest referred to in subsection (2)(a) – the authorised officer suspects that the person has engaged in a serious crime related activity or serious crime related activities and stating the grounds on which that suspicion is based, and

   (b)in the case of an application in respect of any other interest – the authorised officer suspects that the interest is serious crime derived property because of a serious crime related activity or serious crime related activities of a person and stating the grounds on which that suspicion is based,

   and the Court considers that having regard to the matters contained in any such affidavit there are reasonable grounds for any such suspicion."

8. The term "serious crime related activity" is defined as "anything done by the person that was at the time a serious criminal offence, whether or not the person has been charged with the offence" or, if charged, had been tried, tried and acquitted, or convicted (even if the conviction had been quashed or set aside)[12].  The term "serious criminal offence" is defined by reference to a range of specified offences[13] including any offence under a law of the Commonwealth or of a place outside Australia which, if committed in New South Wales, would have been a "serious criminal offence"[14]. 

   [12]CAR Act, s 6(1).

   [13]CAR Act, s 6(2). The specified offences include drug offences; offences involving money laundering, perverting the course of justice, and tax and revenue evasion, if punishable by more than five years imprisonment; and offences against s 197 of the Crimes Act 1900 (NSW) involving the destruction of or damage to property in excess of $500. Accessorial offences, and conspiracy, attempt or incitement to commit a serious offence are also covered by the definition.

   [14]CAR Act, s 6(2)(i).

9. The Court may refuse to make a restraining order if the State fails to provide such undertakings as the Court considers appropriate with respect to the payment of damages or costs in relation to the making and operation of the order[15].

   [15]CAR Act, s 10(6).

10. A restraining order made under s 10 is subject to a conditional time limit. After the first two working days of its operation, the order remains in force only while an application for an assets forfeiture order or an unsatisfied proceeds assessment order is pending before the Supreme Court, or if there is an unsatisfied proceeds assessment order in force against the person whose suspected serious crime related activities formed the basis of the restraining order[16]. If the Court does not make an assets forfeiture order in respect of the relevant property under s 22, then it may make an order in relation to the period for which the restraining order is to remain in force[17].

    [16]CAR Act, s 10(9).

    [17]CAR Act, s 20(1).

11. If the restraining order is made in respect of an interest in the property of a person, and the person was not notified of the application for the making of the order, notice of its making or variation is to be given by the Commission to the person[18].

    [18]CAR Act, s 11(2).

12. The Supreme Court is empowered when it makes a restraining order or at any later time to make ancillary orders[19].  If the Commission or any other person applies for ancillary orders it must give notice of the orders to the person whose property interest is to be affected[20].

    [19]CAR Act, s 12.

    [20]CAR Act, s 12(2) read with s 12(3).

13. Section 22 provides for assets forfeiture orders to be made on application by the Commission. An application for such an order must be made on notice to a person to whom the application relates and that person may appear and adduce evidence at the hearing of the application[21].  The application may be made before or after or at the same time as an application for a restraining order but may not be determined prior to the grant of the restraining order[22]. The Supreme Court is required to make the assets forfeiture order if the condition set out in s 22(2) is satisfied. That condition is that the Court finds it to be more probable than not that the person on whose activities the restraining order was based was, at any time within six years before the application for the assets forfeiture order, engaged in serious crime related activity involving an indictable quantity, or punishable by imprisonment for five years or more. On an assets forfeiture order taking effect in relation to an interest in property, the interest is forfeited to the Crown and vests in the Public Trustee on behalf of the Crown[23].

    [21]CAR Act, s 22(9).

    [22]CAR Act, s 22(1A).

    [23]CAR Act, s 23(1)(a).

14. A person whose interest in property is or may be the subject of an assets forfeiture order may apply to the Supreme Court for an "exclusion order", excluding the interest from the operation of the assets forfeiture order or any relevant restraining order[24].  Broadly speaking an exclusion order may only be made if the property interest to be excluded is not fraudulently or illegally acquired property[25].  The onus of proof is on the party applying for the order.  The applicant must give the Commission notice of the application and notice of the grounds on which the exclusion order is sought[26].  If the Commission proposes to contest the application it must give the applicant notice of the grounds on which the application is to be contested[27].

    [24]CAR Act, s 25(1).

    [25]CAR Act, s 25(2). The term "illegally acquired property" is defined in s 9, inter alia, as including the proceeds of "illegal activity", a term which is defined in s 4(1).

    [26]CAR Act, ss 25(5) and 25(6).

    [27]CAR Act, s 25(7).

    Factual and procedural history

15. On 13 May 2008, the Commission commenced proceedings by summons filed in the Common Law Division of the Supreme Court of New South Wales against a defendant designated as the "beneficial owners of various bank and share trading accounts".

16. By the summons, the Commission sought final relief in the form of an assets forfeiture order pursuant to s 22 of the CAR Act. The Commission also applied by the summons for a restraining order under s 10, and ancillary orders under s 12 of the CAR Act. The ancillary orders sought would require the Public Trustee to hold money and shares from the accounts specified in three schedules to the summons.

17. The application for a restraining order was supported by the affidavit of an authorised person. It was heard ex parte by Hoeben J on 13 May 2008 and a restraining order was made on that day in the terms sought by the Commission along with the ancillary orders sought under s 12. There was no transcript of the proceedings before Hoeben J and no reasons delivered for making the orders.

18. An amended summons adding a further account was filed on 16 May 2008.  A restraining order and ancillary orders were made ex parte on the same day in respect of the interests of the beneficial owners of that account.  The owners were joined as second defendant.  Further ancillary orders were made on 16 May 2008 requiring the Public Trustee to open domestic and international share trading accounts with Commonwealth Securities Ltd and for shares in the specified accounts with Commonwealth Securities Ltd to be transferred to those accounts.  On 13 June 2008, International Finance Trust Company Limited ("IFTC") was joined as third defendant in the proceedings and IFTC Broking Services Limited as fourth defendant.

19. On 6 June 2008, IFTC and IFTC Broking Services filed a notice of intention to appeal against the orders made by Hoeben J on 13 May 2008. Three sets of restraining orders and extensive ancillary orders were made ex parte by Hislop J on 25 October 2008. A fourth amended summons was then filed on behalf of the Commission on 27 October 2008 seeking, inter alia, orders under s 22 in respect of funds and shares held in accounts set out in some seven schedules.

20. On 6 November 2008, the Court of Appeal made orders allowing the appeal and setting aside the orders made on 13 and (with certain immaterial exceptions) 16 May 2008[28] save for joinder orders.  Orders made on 20 and 27 May 2008 were also set aside.  The appeal was allowed by majority (Allsop P, with Beazley JA agreeing, McClellan CJ at CL dissenting) on the basis that there was no admissible evidence before the primary judge that could provide the requisite reasonable grounds for the suspicion asserted by the authorised officer in the affidavit in support of the application[29]. However, the Court unanimously rejected a constitutional challenge to the validity of s 10[30].  This had the effect of leaving the proceedings in the Supreme Court on foot.

    [28](2008) 251 ALR 479 at 513.

    [29](2008) 251 ALR 479 at 487 [39] per Allsop P, Beazley JA agreeing at 490 [56].

    [30](2008) 251 ALR 479 at 503 [101] per McClellan CJ at CL, Allsop P agreeing at 481 [2], Beazley JA agreeing with Allsop P at 490 [56].

21. Special leave to appeal against the decision of the Court of Appeal was granted on 13 March 2009[31].

    [31][2009] HCATrans 047.

    The appeal to this Court

22. By their notice of appeal, the appellants contended that the Court of Appeal of New South Wales erred:

    "(a)in holding that section 10(3) of the Criminal Assets Recovery Act 1990 (NSW) was valid and not repugnant to the exercise by the Supreme Court of New South Wales of the judicial power of the Commonwealth under Chapter III of the Constitution of the Commonwealth of Australia; and

    (b)in not dismissing the amended summons filed by the First Respondent in proceeding S12212 of 2008 of the Supreme Court of New South Wales on the ground of the constitutional invalidity of section 10(3) of the Criminal Assets Recovery Act 1990 (NSW)."

    The decision of the Court of Appeal

23. It is sufficient for present purposes to refer to the reasons of the Court of Appeal on the challenge to the validity of s 10. Those reasons were given by McClellan CJ at CL. Allsop P agreed, as did Beazley JA. In upholding the validity of s 10, McClellan CJ at CL made the following points:

    .It is common for a court to entertain an ex parte application when a matter is urgent, in particular when there is a need to protect assets in circumstances where alerting the defendant may cause the assets to be dissipated[32].

    [32](2008) 251 ALR 479 at 502 [98].

    .It is essential, given the nature of the Commission's functions, that it be permitted to make such an application[33].

    [33](2008) 251 ALR 479 at 502 [98].

    .Section 10 is the point at which the court process which may lead to the ultimate confiscation of property is initiated[34].

    .Restraining orders under s 10 are an incident of a comprehensive scheme, the principal object of which is to confer jurisdiction on the Supreme Court to make assets forfeiture orders[35].

    .Under s 10 the Court is required to ensure that the relevant officer holds the necessary suspicion and that there are reasonable grounds for that suspicion. Whether there is admissible evidence to support confiscation of restrained property is a matter determined after an inter partes hearing[36].

    .The Court is not bound to "rubber stamp" the affidavit supporting an application under s 10. Section 10(3) raises a justiciable issue and the Court thus has a "determinative role in the process of evaluating the application for the making of the order"[37].

    .When the nature and purpose of the legislation are considered, the provision in s 10 allowing the Commission to elect an ex parte hearing does not so compromise the institutional integrity of the Supreme Court that s 10 is offensive to the Commonwealth Constitution[38].

    His Honour held that under s 10(3) the Supreme Court was not free to proceed to hear and determine the application for a restraining order other than ex parte if the Commission had elected to bring the application ex parte[39].

    [34](2008) 251 ALR 479 at 502-503 [99].

    [35](2008) 251 ALR 479 at 503 [100].

    [36](2008) 251 ALR 479 at 503 [101].

    [37](2008) 251 ALR 479 at 503 [100].

    [38](2008) 251 ALR 479 at 503 [101].

    [39](2008) 251 ALR 479 at 504 [104].

24. Allsop P observed additionally that, although it had not been argued in the Court of Appeal, if it were to be concluded that the character of the task conferred upon the Supreme Court by s 10 was administrative and not judicial, the applicability of the Kable doctrine might arise.  If it were to be considered that the judge hearing such an application should not, or must not, give reasons, again the applicability of Kable might arise[40].

    [40](2008) 251 ALR 479 at 489 [52].

    Civil forfeiture of assets – a global phenomenon

25. Forfeiture of assets by reason of criminal conduct has a long history in English law[41].  That history encompasses deodand, common law forfeiture of the property of felons and traitors and statutory forfeiture.  Statutory forfeiture has been described by the Supreme Court of the United States as "likely a product of the confluence and merger of the deodand tradition and the belief that the right to own property could be denied the wrongdoer."[42]

    [41]See generally Re Director of Public Prosecutions; Ex parte Lawler (1994) 179 CLR 270 at 279 per Brennan J, 289 per Dawson J; [1994] HCA 10; Blackstone, Commentaries on the Laws of England, (1766), bk 2 at 267-268 and (1769), bk 4 at 374-381; Freiberg and Fox, "Fighting Crime with Forfeiture: Lessons from History", (2000) 6 Australian Journal of Legal History 1; and the celebrated article by J J Finkelstein, "The Goring Ox", (1973) 46 Temple Law Quarterly 169.

    [42]Calero-Toledo v Pearson Yacht Leasing Co 416 US 663 at 682 (1974); Austin v United States 509 US 602 at 612-613 (1993). These judgments were concerned with the application to in rem civil forfeiture of the Eighth Amendment prohibition on imposition of excessive fines.

26. There are broadly two classes of statutory forfeiture.  One depends upon conviction and is generally referred to as "criminal assets forfeiture".  The other depends upon unlawful conduct and is designated "civil assets forfeiture"[43]. The first civil assets forfeiture law in Australia was enacted in 1977 when s 229A was introduced into the Customs Act 1901 (Cth).

    [43]Early English customs statutes were precursors of criminal assets forfeiture laws, for example the Act of Frauds (1 Eliz c 11).  See Harper, The English Navigation Laws:  a Seventeenth-Century Experiment in Social Engineering, (1939) at 87; Freiberg and Fox, "Forfeiture, Confiscation and Sentencing", in Fisse, Fraser and Coss (eds), The Money Trail:  Confiscation of Proceeds of Crime, Money Laundering and Cash Transaction Reporting, (1992) 106 at 114.  The distinction between forfeitures and penalties was considered in Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd (2003) 216 CLR 161 at 172-173 [29]-[31] per Gummow J, 177-178 [52] per Kirby J, 195-198 [108]-[112] per Hayne J; [2003] HCA 49.

27. Civil assets forfeiture laws were first enacted in the United States in 1789[44].  They provided for the forfeiture of ships and cargoes used in customs offences, piracy and slave trafficking.  A general conviction-based forfeiture scheme was established in 1970 by the Racketeer Influenced and Corrupt Organizations Act ("the RICO Act")[45].  The Money Laundering Control Act 1986[46] became the primary civil assets forfeiture statute[47].  Civil assets forfeiture laws have been enacted in the past few decades in a significant number of countries, including Australia, Canada, the United Kingdom, Ireland and South Africa[48].

    [44]See discussion in United States v Bajakajian 524 US 321 at 340-341 (1998) per Thomas J for the Court, 345-346 per Kennedy J (dissenting).

    [45]Which amended title 18 of the United States Code by inserting, inter alia, Ch 96, entitled "Racketeer Influenced and Corrupt Organizations" (18 USC §§1961-1968).

    [46]Which amended title 18 of the United States Code by inserting, inter alia, a new Ch 46, entitled "Forfeiture" (18 USC §§981- 982).

    [47]See generally Cassella, "An Overview of Asset Forfeiture in the United States", in Young (ed), Civil Forfeiture of Criminal Property, (2009) 23 at 27-30.

    [48]See generally Young (ed), Civil Forfeiture of Criminal Property, (2009), Chs 3 to 7.

28. Royal Commissions of Inquiry into organised crime and corruption in Australia in the 1970s and 1980s recommended the development of effective mechanisms for depriving criminals of their profits[49].  The Standing Committee of Attorneys-General in 1983 initiated the development of model forfeiture legislation.  In the event, the States and Territories enacted criminal assets forfeiture laws[50].  In the late 20th and early 21st centuries civil assets forfeiture statutes of general application were enacted by the Commonwealth and all States and Territories save for Tasmania[51].

    [49]Lusty, "Civil Forfeiture of Proceeds of Crime in Australia", (2002) 5 Journal of Money Laundering Control 345.

    [50]Crimes (Confiscation of Profits) Act 1986 (Vic); Crimes (Confiscation of Profits) Act 1986 (SA); Proceeds of Crime Act 1987 (Cth); Crimes (Confiscation of Profits) Act 1988 (WA); Crimes (Forfeiture of Proceeds) Act 1988 (NT); Crimes (Confiscation of Profits) Act 1989 (Q); Confiscation of Proceeds of Crime Act 1989 (NSW); Proceeds of Crime Act 1991 (ACT); Crime(Confiscation of Profits)Act 1993 (Tas). See discussion in Grono, "Civil Forfeiture – The Australian Experience", in Young (ed), Civil Forfeiture of Criminal Property, (2009) 125.

    [51]Proceeds of Crime Act 2002 (Cth); Criminal Assets Recovery Act 1990 (NSW); Confiscation Act 1997 (Vic); Criminal Property Confiscation Act 2000 (WA); Criminal Proceeds Confiscation Act 2002 (Q); Criminal Property Forfeiture Act 2002 (NT); Confiscation of Criminal Assets Act 2003 (ACT); Criminal Assets Confiscation Act 2005 (SA).

29. The preceding history is mentioned by way of acknowledgment of the widespread acceptance by governments around the world and within Australia of the utility of civil assets forfeiture laws as a means of deterring serious criminal activity which may result in the derivation of large profits and the accumulation of significant assets.  The law under consideration in this case is, in many respects, typical of the kind of civil assets forfeiture statutes enacted in other States and Territories of Australia and in other countries.

    The CAR Act – legislative history

30. The CAR Act began its life as the Drug Trafficking (Civil Proceedings) Act 1990 (NSW) ("the 1990 Act"). It was directed to property of persons who had engaged in a "drug-related activity". This was defined in s 6 of the 1990 Act by reference to the commission of a "serious drug offence", itself a defined term. Section 10 of the 1990 Act provided for a restraining order which differed in content from the current form of order. The original definition of "restraining order" in s 10(1) was:

    "an order that no interest in property that is an interest to which it applies is to be disposed of, or otherwise dealt with, by the person whose interest it is or by any other person, except in such manner and in such circumstances (if any) as are specified in the order."

    The terms of sub-ss (2) and (3) have remained relevantly unchanged save for expansion of their application from drug related activities to serious crime related activities.

31. The Premier of New South Wales, delivering the Second Reading Speech for the Bill for the 1990 Act, made it clear that it was influenced by the conclusions of the Moffitt Royal Commission and inspired by the American RICO Act[52].  Little was said of the process for obtaining restraining orders save for an erroneous reference to the Commission as the body effecting the restraint and a reference to the requirement for an undertaking as to damages[53].

    [52]New South Wales, Legislative Assembly, Parliamentary Debates (Hansard), 8 May 1990 at 2527-2528.

    [53]New South Wales, Legislative Assembly, Parliamentary Debates (Hansard), 8 May 1990 at 2530.

32. The 1990 Act was amended by the Drug Trafficking (Civil Proceedings) Amendment Act 1997 (NSW), which widened its application to serious crime related activity and changed its name to the Criminal Assets Recovery Act 1990 (NSW). Its coverage was extended to include property situated outside the State of New South Wales. The prohibition on dealing with property the subject of a restraining order was extended to include attempts to deal with such property. None of the extrinsic materials made any specific reference to the power of the Commission to make an ex parte application for a restraining order.

    Restraining orders and assets forfeiture

33. Interim or interlocutory restraining or asset freezing processes go hand-in-hand with assets forfeiture.  They have their origins deep in the history of this branch of the law.  Processes akin to pre-conviction restraint mechanisms were available at common law against indicted persons, although they appear to have involved nominal seizure by a sheriff rather than by court order[54].  Today all civil assets forfeiture statutes in Australia make reference to restraining orders or freezing orders.

    [54]Dalton, Countrey Justice, (1619) at 267; Hale, The History of the Pleas of the Crown, new ed (1800), vol 1 at 363-364.

34. Ex parte applications can be made in every jurisdiction.  The forfeiture statutes of the Commonwealth, Victoria, Queensland and South Australia each make express provision for the application for a restraining order to be made ex parte.  They also empower the court to which the application is made to direct that notice of the application be given to the person affected before the application is fully determined[55].  Western Australia's Criminal Property Confiscation Act 2000 provides for "freezing orders" to be made affecting "confiscable property". Applications may be made to the relevant court by the Director of Public Prosecutions and may be made ex parte. There is no express provision for the court to require that notice of such applications be given to any party[56].

    [55]Proceeds of Crime Act 2002 (Cth), s 26(5); Confiscation Act 1997 (Vic), s 17(1); Criminal Proceeds Confiscation Act 2002 (Q), s 30A(3); Criminal Assets Confiscation Act 2005 (SA), s 25(5).

    [56]Criminal Property Confiscation Act 2000 (WA), ss 41-46. Similarly, the Proceeds of Crime Act 2002 (UK) provides that applications for restraint orders may be made ex parte (s 42(1)) and does not expressly empower the court to require that notice be given to any party.  Under Ontario's Civil Remedies Act 2001, an application for a restraining order may be made on motion without notice for up to 30 days (s 4(3)).

35. Fulfilment of the purposes of civil assets forfeiture laws almost inevitably requires provision to be made for ex parte applications for orders for the protection of targeted assets pending a substantive forfeiture hearing.  There will be in some, and perhaps many cases, a real risk that the owner of the assets, if alerted to the making of an application for a protective order, will take steps to conceal or dispose of the subject assets.  Such considerations are not novel in the exercise of the wider civil jurisdiction of courts particularly in relation to the grant of Mareva orders and Anton Piller orders.  But the relevance of prudential considerations in favour of ex parte applications for a particular class of case does not mean that an ex parte application will be required in every case within the class.

    The construction of s 10

36. The construction of s 10 raises the following questions:

    1.Is the Supreme Court required to hear, without notice to the affected party, an ex parte application made by the Commission under s 10?

    2.Is the Supreme Court, in any event, required to decide the application only upon the material contained in the affidavit of an authorised officer supporting the application?

    Senior counsel for the appellants accepted that the proposition that s 10(3) does not allow the Court hearing an ex parte application for a restraining order to do other than hear it ex parte was critical to his argument.

37. On any view of the section it cannot require the Court to hear ex parte an application for a restraining order in circumstances in which the CAR Act requires the Commission to give notice to the affected party. Such a requirement arises where a final assets forfeiture order is sought at the same time as the restraining order[57]. Assuming that requirement does not arise, the first constructional question invites a consideration of the words "ex parte" and the text and context of ss 10(2) and 10(3), as well as of the objects of the legislation.

    [57]CAR Act, s 22(9).

38. In its primary meaning, "ex parte" designates an application in a judicial proceeding made by a person who is not a party to the proceeding but has an interest sufficient to support the application. However, in the usage relevant to this appeal, "ex parte" refers to something done in judicial proceedings without notice to the party affected. That may be an application, or a hearing, or the making of an order. A party may file an application or motion against another party without giving notice that it has done so. The court may hear the application ex parte and may make an order without prior notice to the affected party. In New South Wales, r 25.11 of the Uniform Civil Procedure Rules 2005 (NSW) provides that the Supreme Court "may make [a freezing] order … upon or without notice to a respondent …".

39. Ex parte procedures of the kind contemplated by r 25.11 of the UCPR are not unusual but should always be regarded as exceptional. They involve a departure, albeit temporary, from the general requirement of procedural fairness that no order adverse to a party's property, liberty, or any other interest should be made without that party first having an opportunity to be heard. That opportunity includes the right to test and/or rebut evidence relied upon by the moving party and to make submissions on matters of fact and law. Ex parte interlocutory injunctive relief may be sought where the urgency of the matter is such that there is no time to notify the respondent. Anton Piller orders and Mareva or assets preservation orders are often sought ex parte on the basis that notice to the affected party is likely to result in the destruction of evidence or the concealment or dissipation of assets which it is intended the proposed order will protect[58].  Nevertheless, courts have long had the power to require that notice of an application made ex parte be given to the party affected.  The court may not accept that the matter is as urgent as claimed or that the subject matter of the application would be compromised if the affected party were to be alerted to it.  Or it may be that the court does not find the affidavit in support of the motion "sufficiently positive"[59].

    [58]The doctrinal basis of Mareva or assets preservation orders was discussed in Cardile v LED Builders Pty Ltd (1999) 198 CLR 380 at 399-401 [41]-[44] per Gaudron, McHugh, Gummow and Callinan JJ; [1999] HCA 18.

    [59]Joyce, The Law and Practice of Injunctions in Equity and at Common Law, (1872), vol 2 at 1306, referring to Byron (Lord) v Johnston (1816) 2 Mer 29 [35 ER 851]; for general discussion on ex parte applications, see Joyce at 1306-1307; and Paterson (ed), Kerr on the Law and Practice of Injunctions, 6th ed (1927) at 635.

40. The appellants and the Commission were on common ground in submitting that if the Commission chooses to bring an ex parte application under s 10, the Court is required to hear and determine it ex parte. The Commission submitted that the contrary construction should be rejected unless such a construction is needed to render the provision constitutional, a need which it contended does not arise. The Solicitor-General of the Commonwealth supported the construction of s 10 advanced by the appellants and the Commission. The State of New South Wales, on the other hand, contended that on its proper construction s 10 would allow the Court to require the party affected to be given notice before hearing an application made ex parte.

41. The process of statutory construction, including the identification of constructional choices, is informed by text, context and legislative purpose and, when applicable, the conservative principle that, absent clear words, Parliament does not intend to encroach upon fundamental common law principles, including the requirement that courts accord procedural fairness to those who are to be affected by their orders.  Further, where there is a constructional choice that would place the statute within the limits of constitutional power and another that would place it outside those limits, the former is to be preferred[60].

    [60]See Interpretation Act 1987 (NSW), s 31(1); Attorney-General (Vict) v The Commonwealth (1945) 71 CLR 237 at 267 per Dixon J; [1945] HCA 30; Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1 at 14 per Mason CJ; [1992] HCA 64; New South Wales v The Commonwealth (Work Choices Case) (2006) 229 CLR 1 at 161 [355]; [2006] HCA 52; Gypsy Jokers Motorcycle Club Inc v Commissioner of Police (2008) 234 CLR 532 at 553 [11]; [2008] HCA 4. See also K‑Generation Pty Ltd v Liquor Licensing Court (2009) 237 CLR 501 at 519 [46]; [2009] HCA 4.

42. There is a caveat which should be entered in relation to these principles.  The court should not strain to give a meaning to statutes which is artificial or departs markedly from their ordinary meaning simply in order to preserve their constitutional validity.  There are two reasons for this.  The first is that if Parliament has used clear words to encroach upon the liberty or rights of the subject or to impose procedural or other constraints upon the courts its choice should be respected even if the consequence is constitutional invalidity.  The second reason is that those who are required to apply or administer the law, those who are to be bound by it and those who advise upon it are generally entitled to rely upon the ordinary sense of the words that Parliament has chosen[61].  To the extent that a statutory provision has to be read subject to a counterintuitive judicial gloss, the accessibility of the law to the public and the accountability of Parliament to the electorate are diminished.  Moreover, there is a real risk that, notwithstanding a judicial gloss which renders less draconian or saves from invalidity a provision of a statute, the provision will be administered according to its ordinary, apparent and draconian meaning.  In the context of the present case, that risk is enhanced where the provision, on the face of it, appears to require the Supreme Court to hear only from the moving party where that party chooses to make an ex parte application.

    [61]See Interpretation Act 1987 (NSW), s 34(3).

43. Section 10 does not make any express provision for the Commission to apply to the Court on notice. Yet it and other provisions of the CAR Act are drafted on the premise that an application may be made on notice. Section 10 provides that a restraining order may make provision, out of the property to which the order applies, for reasonable legal expenses "incurred in connection with the application for the restraining order"[62].  Notice of the restraining order itself is to be given to the person affected if "the person was not notified of the application for the making of the restraining order"[63].  Moreover, an ancillary order may be made when the Court makes a restraining order and can be made on the application of the owner of the affected property[64].  Consideration of these provisions leads to the conclusion that the Commission may elect not to exercise its right to make its application ex parte.  There is some limited textual support for that conclusion in the sense that the express authority conferred by the statute on the Commission to apply ex parte can be said to subsume the lesser authority to apply on notice.

    [62]CAR Act, s 10(5).

    [63]CAR Act, s 11(2)(b).

    [64]CAR Act, ss 12(1) and 12(2)(b).

44. It does not follow from the preceding discussion that s 10 authorises the Court to require that the Commission give notice of the application to the affected party. The Court must make the order applied for on the Commission's application when the conditions set out in s 10(3) of the CAR Act are satisfied. There is no textual space in the section within which the Court may interpose a further condition requiring that notice first be given to the affected party. Nor is this a case in which, on the interpretative principles to which I have referred earlier, the Court should read such a power into the section by some form of implication unsupported by its text. Moreover, the general provisions of the UCPR relating to freezing orders are not apt to be grafted on to the legislative scheme of the CAR Act so far as it relates to restraining orders. The CAR Act contains its own procedural provisions. As Gummow and Bell JJ point out in their joint judgment[65] and Heydon J shows in detail[66], the CAR Act establishes a "distinct regime" excluding the general powers of the Supreme Court which might otherwise have applied.

    [65]See below at [79]-[80].

    [66]See below at [162]-[165].

45. The question whether notice is to be given of an application for a restraining order is therefore at the Commission's discretion.  It is left to the Commission to judge whether there is such a risk of concealment or dissipation of the assets the subject of the order that notice of the application should not be given to the person affected by it.  The Court's discretion as to the conduct of its own proceedings in the key area of procedural fairness is supplanted by the Commission's judgment.  It is a consequence of the preceding construction that if the Commission elects to apply ex parte there is no opportunity for the affected party upon the hearing of the application to test the authorised person's affidavit or to put before the Court evidence to rebut it.  Upon an ex parte application, the Court is confined to a consideration of the sufficiency of the affidavit of the authorised officer.

46. Section 10(3) conditions the Court's obligation to make the order sought upon the Court considering that, having regard to the matters contained in the affidavit, there are reasonable grounds for the suspicion which is asserted by the authorised officer. Although the Court can refuse the order on the basis that it considers that the authorised officer does not have the requisite suspicion, if the application is heard ex parte there will be no-one before the Court to question the existence of that suspicion. In most cases it will be sufficient, as a practical matter, that the suspicion is asserted and that there are reasonable grounds for it disclosed on the affidavit.

47. If the application were made on notice, the affected party would be able to cross-examine the authorised officer on his or her affidavit with a view to demonstrating that he or she does not hold the requisite suspicion, or that there are parts of the affidavit which are so inherently unreliable as not to form reasonable grounds for that suspicion. Evidence in rebuttal could be directed to the same propositions. The party, if given notice, could also make submissions to the Court about the existence of the conditions upon the Court's powers under s 10. Such a process would be an unobjectionable exercise of the judicial function. It would not involve any intrusion by the legislature upon that function nor any usurpation of it by the Executive. The issue of validity arises with respect to s 10 because it authorises ex parte applications to the Court, which must be heard and determined ex parte by the Court.

48. It was submitted that the person affected by a restraining order can apply to set it aside.  The statute itself makes no such provision.  Assuming, however, that such an application can be made, it is difficult to see any ground upon which the order could be set aside save for the following:

    (i)want of the relevant suspicion on the part of the authorised officer;

    (ii)want of reasonable grounds for the asserted suspicion.

    In the absence of any discretion in the Court to refuse a restraining order when the conditions for making the order are satisfied, non-disclosure of a material fact by the authorised officer will be significant only if the fact is material to the criteria for the making of the order.  The availability of a mechanism by which a party affected by a restraining order can apply to discharge it is not germane to the issue of validity.  The question whether there has been an impermissible invasion of the judicial function of the Court is not to be resolved simply by engaging in a calculus of fairness and assessing whether prejudice to a party, flowing from denial to it of a hearing prior to a restraining order being made, can be remedied at some later time.  In any event, in this case, as explained in the joint judgment of Gummow and Bell JJ[67], a restraining order can only be displaced, pending the determination of an assets forfeiture order, by an application under s 25, which places upon the party affected by the restraining order the onus of demonstrating that the property the subject of the application is not illegally acquired property as defined in the CAR Act.

    [67]See below at [90].

    The validity of s 10

49. The separation of legislative, executive and judicial powers reflected in the structure of Chs I, II and III of the Constitution does not prevent the Commonwealth Parliament from passing a law which has the effect of requiring a court exercising federal jurisdiction to make specified orders if certain conditions are met. If the satisfaction of a condition enlivening the court's statutory duty depends upon a decision made by a member of the Executive branch of government, it does not necessarily follow that the Parliament has thereby authorised the Executive to infringe impermissibly upon the judicial power[68].

    [68]Palling v Corfield (1970) 123 CLR 52 at 58-59 per Barwick CJ, 62 per McTiernan J, 64-65 per Menzies J, 65 per Windeyer J agreeing with other members of the Court, 67 per Owen J, 69-70 per Walsh J, 70 per Gibbs J; [1970] HCA 53.

50. On the other hand, Parliament cannot direct courts exercising federal jurisdiction as to the manner and outcome of the exercise of that jurisdiction.  As was pointed out in Chu Kheng Lim v Minister for Immigration[69], that would constitute an impermissible intrusion into the judicial power which Ch III vests
    
    exclusively in the courts which it designates[70].  In Nicholas v The Queen[71], Brennan CJ observed that the acceptance of instructions from the legislature to exercise judicial power in a particular way was inconsistent with the duty to act impartially.  Gaudron J said that the essential character of a court and the nature of judicial power necessitate that a court not be required or authorised to proceed in a manner that does not ensure, inter alia, the right of a party to meet the case made against him or her[72].  Gummow J put it thus[73]:

    "The legislative powers of the Commonwealth do not extend to the making of a law which authorises or requires a court exercising the judicial power to do so in a manner which is inconsistent with its nature."

    As his Honour said, quoting from a judgment of Windeyer J[74], the concept of judicial power and that of impermissible intrusions upon the manner and outcome of its exercise "transcends 'purely abstract conceptual analysis' and 'inevitably attracts consideration of predominant characteristics', together with 'comparison with the historic functions and processes of courts of law'."[75]  His Honour again touched upon the question in APLA Ltd v Legal Services Commissioner (NSW)[76] when he accepted that:

    "a law may not validly require or authorise the courts in which the judicial power of the Commonwealth is vested to exercise judicial power in a manner which is inconsistent with the essential character of a court or with the nature of judicial power."

    Whether that proposition could be subsumed in a concept of "due process" was left open.

    [69](1992) 176 CLR 1.

    [70](1992) 176 CLR 1 at 36 per Brennan, Deane and Dawson JJ.

    [71](1998) 193 CLR 173 at 188 [20]; [1998] HCA 9.

    [72](1998) 193 CLR 173 at 208 [74].

    [73](1998) 193 CLR 173 at 232 [146].

    [74]R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361 at 394; [1970] HCA 8.

    [75](1998) 193 CLR 173 at 233 [148].

    [76](2005) 224 CLR 322 at 411 [247]; [2005] HCA 44.

51. In Bodruddaza v Minister for Immigration and Multicultural Affairs[77], this Court noted that the Minister did not dispute that if s 486A of the Migration Act 1958 (Cth), which was then under challenge, "had the character of a law which purported to direct the manner in which the judicial power of the Commonwealth should be exercised, it would be invalid."[78]  The Court referred to the judgment in Chu Kheng Lim as demonstrating the point[79].

    [77](2007) 228 CLR 651; [2007] HCA 14.

    [78](2007) 228 CLR 651 at 669 [47].

    [79](2007) 228 CLR 651 at 669-670 [48].

52. In their joint judgment in Thomas v Mowbray[80], Gummow and Crennan JJ observed that the decisions of this Court had not gone so far as to imply something like a "due process" requirement from the text and structure of Ch III.  I would add that the term "due process", imported from another constitutional setting, should be treated with some caution in relation to Ch III.  Whether a more general implication may emerge from Ch III than has hitherto been made, and how it should be designated, is a matter for another day.  It is sufficient, for the present, to accept as a proposition that which Gummow and Crennan JJ accepted, albeit as a working hypothesis, when they said in Thomas[81]:

    "it may be accepted for present purposes that legislation which requires a court exercising federal jurisdiction to depart to a significant degree from the methods and standards which have characterised judicial activities in the past may be repugnant to Ch III."

    The plaintiff in that case argued that provisions of Div 104 of the Criminal Code (Cth) providing for the issue of interim control orders were invalid. One of the grounds of the asserted invalidity was that "Div 104 provides for the routine making of interim control orders depriving a person of liberty on an ex parte basis and without notice."[82]  Gummow and Crennan JJ rejected that contention on the basis that[83]:

    "ex parte applications are no novelty, and the scheme of the legislation … is to provide in the very short term for a contested confirmation hearing if the person in question wishes to proceed in that way."

    The question whether Div 104 required a court to proceed ex parte upon receipt of a request for the issue of an interim control order was not agitated.

    [80](2007) 233 CLR 307 at 355 [111]; [2007] HCA 33.

    [81](2007) 233 CLR 307 at 355 [111].

    [82](2007) 233 CLR 307 at 312 (R Merkel QC in argument).

    [83](2007) 233 CLR 307 at 355 [112].

53. Chu Kheng Lim, Nicholas and Thomas were concerned with courts exercising federal jurisdiction and the question whether duties or functions were imposed upon them which were inconsistent with their independence from the legislative and executive branches of government.  Although it is right to say, as was recognised in Kable, that the Constitution provides for an integrated national court system, that does not mean that State courts or their judges and officers are to be assimilated with federal courts and their judges and officers[84].  On the other hand, as McHugh J explained in Kable[85]:

    "in some situations the effect of Ch III of the Constitution may lead to the same result as if the State had an enforceable doctrine of separation of powers. This is because it is a necessary implication of the Constitution's plan of an Australian judicial system with State courts invested with federal jurisdiction that no government can act in a way that might undermine public confidence in the impartial administration of the judicial functions of State courts."

    [84]See Fardon v Attorney-General (Qld) (2004) 223 CLR 575 at 598 [36] per McHugh J; [2004] HCA 46.

    [85](1996) 189 CLR 51 at 118.

54. Procedural fairness or natural justice lies at the heart of the judicial function. In the federal constitutional context, it is an incident of the judicial power exercised pursuant to Ch III of the Constitution. It requires that a court be and appear to be impartial, and provide each party to proceedings before it with an opportunity to be heard, to advance its own case and to answer, by evidence and argument, the case put against it. According to the circumstances, the content of the requirements of procedural fairness may vary. When an ex parte application for interlocutory relief is made the court, in the ordinary course, has a discretion whether or not to hear the application without notice to the party to be affected. In exercising that discretion it will have regard to the legitimate interests of the moving party which have to be protected, whether there is likely to be irrevocable damage to the interests of the affected party if the order is made, and what provision can be made for the affected party to be heard to have the order discharged or varied after it has been made. In so saying, it is not intended to suggest that an official cannot validly be authorised by statute to bring an application ex parte to a federal court or to a State or Territory court capable of exercising federal jurisdiction. The CAR Act takes the further step of requiring the Supreme Court to hear and determine such an application ex parte.

55. To require a court, as s 10 does, not only to receive an ex parte application, but also to hear and determine it ex parte, if the Executive so desires, is to direct the court as to the manner in which it exercises its jurisdiction and in so doing to deprive the court of an important characteristic of judicial power. That is the power to ensure, so far as practicable, fairness between the parties. The possibility that a statutorily mandated departure from procedural fairness in the exercise of judicial power may be incompatible with its exercise was considered in Leeth v The Commonwealth[86].  Mason CJ, Dawson and McHugh JJ said[87]:

    "It may well be that any attempt on the part of the legislature to cause a court to act in a manner contrary to natural justice would impose a non-judicial requirement inconsistent with the exercise of judicial power, but the rules of natural justice are essentially functional or procedural and, as the Privy Council observed in the Boilermakers' Case, a fundamental principle which lies behind the concept of natural justice is not remote from the principle which inspires the theory of separation of powers." (footnote omitted)

    [86](1992) 174 CLR 455; [1992] HCA 29.

    [87](1992) 174 CLR 455 at 470.

56. In my opinion the power conferred on the Commission to choose, in effect, whether to require the Supreme Court of New South Wales to hear and determine an application for a restraining order without notice to the party affected is incompatible with the judicial function of that Court.  It deprives the Court of the power to determine whether procedural fairness, judged by reference to practical considerations of the kind usually relevant to applications for interlocutory freezing orders, requires that notice be given to the party affected before an order is made.  It deprives the Court of an essential incident of the judicial function.  In that way, directing the Court as to the manner of the exercise of its jurisdiction, it distorts the institutional integrity of the Court and affects its capacity as a repository of federal jurisdiction. 

57. The preceding conclusion involves a judgment about the quality of the Executive's intrusion, sanctioned by the legislature, into the judicial function. It is not to the point to say that in many, if not most cases of such applications, the Supreme Court would be likely, if it had the discretion, to hear and determine them ex parte. It is likely that, before deciding to proceed ex parte, the Court would first determine that procedural fairness could be accorded by provision for discharge on application. Alternatively, it might make the order limited in time so that the applicant would have to justify its continuation. Nor is it to the point to say that the particular intrusion upon the judicial function authorised by s 10 is confined in scope and limited in effect both in time and by the facility to seek ancillary or exclusion orders. Such a calculus will not accord sufficient significance to the quality of the intrusion upon the judicial function. An accumulation of such intrusions, each "minor" in practical terms, could amount over time to death of the judicial function by a thousand cuts.

58. Even if, contrary to my primary conclusion, a facility for the party affected to seek discharge or variation of the restraining order within a short time would have been sufficient to save s 10 from invalidity, s 25, for the reasons explained by Gummow and Bell JJ, is not such a facility.

59. In my opinion, s 10 is invalid. Although the authority it confers on the Commission to make ex parte applications subsumes the authority to make applications on notice, assumed in other provisions of the CAR Act, it cannot sensibly be read down to limit its operation to applications on notice. That operation is inextricably linked to the express authority which it confers and which, for the reasons outlined, thus spells invalidity. Such a reading down would impose a judicial gloss on the section at odds with its text.

60. I agree with and respectfully adopt the observations in the joint judgment of Gummow and Bell JJ concerning the effect of the provisions of s 25 relating to exclusion orders and of the provisions of s 12 relating to ancillary orders[88]. I agree also with their Honours' rejection of the proposition that s 22 is a bill of pains and penalties and their observation that it does not operate independently of a judicial determination of liability[89]. I agree with their conclusion that the significance of s 22 lies in its interaction with s 10 and not otherwise[90]. 

    [88]See below at [90]-[97].

    [89]See below at [99].

    [90]See below at [99].

    Conclusion

61. In my opinion the appeal should be allowed, the appellants' costs to be paid by the first respondent. There should be an order declaring that s 10 of the CAR Act is invalid. The proceedings in the Supreme Court of New South Wales should be dismissed, with costs as proposed by Gummow and Bell JJ.

62. GUMMOW AND BELL JJ.   The appellants are companies incorporated in Vanuatu.  The first appellant ("IFTC") is a Vanuatu government licensed trust company.  The second appellant ("IFTCB") conducts share trading accounts.  The appellants are entitled to exercise effective control over various accounts with ANZ National Bank Limited, Bank of New Zealand, Commonwealth Bank of Australia and Commonwealth Securities Limited which are the subject of the orders of the Supreme Court of New South Wales giving rise to this appeal.

63. The untested case presented to the Supreme Court by the first respondent ("the Commission") was that IFTC is owned and managed by a firm of accountants, PKF Vanuatu, the senior partner of which is Mr Robert Francis Agius. He is an Australian citizen, who stays regularly in Sydney, but resides in Vanuatu. The Commission suspects that Mr Agius has engaged in offences punishable by imprisonment for five years or more and involving fraud, contrary to ss 176, 176A and 178BA of the Crimes Act 1900 (NSW) ("the Crimes Act").

64. The appellants appeal from so much of the judgment of the New South Wales Court of Appeal (Allsop P, Beazley JA and McClellan CJ at CL) given on 6 November 2008[91] as upheld the validity of the "restraining order" provision in s 10 of the statute enacted as the Drug Trafficking (Civil Proceedings) Act 1990 (NSW) but since 1997[92] titled the Criminal Assets Recovery Act 1990 (NSW) ("the Act"). In this Court, the Attorneys‑General of the Commonwealth, New South Wales, Victoria, South Australia, Queensland and Western Australia intervened to support the validity of s 10. There has been no appearance for the second and third respondents.

    [91](2008) 251 ALR 479.

    [92]By amendment made by the Drug Trafficking (Civil Proceedings) Amendment Act 1997 (NSW).

65. Part 2 of the Act (ss 10‑21) is headed "Restraining orders", and Pt 3 (ss 22‑32) is headed "Confiscation". Detailed definitions are found in Pt 1 (ss 1‑9A).

66. The orders with respect to the accounts of IFTC and IFTCB were made in reliance upon s 10. The Court of Appeal, by majority (Allsop P and Beazley JA; McClellan CJ at CL dissenting), set aside the orders on two grounds. These were that there had been no admissible evidence before the primary judge on which he could conclude that the suspicions held by the Commission were based on reasonable grounds, and that there had been a failure by the primary judge to discharge the obligation to provide reasons.

67. However, the appellants remained exposed to the prospect of further proceedings under s 10 because the Court of Appeal unanimously upheld the validity of that section. Further, s 10 must be read with s 22, which provides for the making by the Supreme Court of an assets forfeiture order on the application of the Commission. The subject matter of such an order would be "all or any of the interests in property that are, or are proposed to be, subject to a restraining order when the assets forfeiture order takes effect" (s 22(1)).

    The scheme of the Act

68. A restraining order continues in force for at least the first two working days after it is made; it continues thereafter, relevantly, so long as there is pending in the Supreme Court an application for an assets forfeiture order (s 10(9)). If the Supreme Court refuses to make the assets forfeiture order in respect of the interests bound by the restraining order, the Court may make such orders "as it considers appropriate in relation to the operation of the restraining order" (s 20(1)). This would include the making of an order to discharge the restraining order. However, the Act contains no provision limiting the period within which the assets forfeiture order application must be brought on for determination and no sanctions against delay in doing so.

69. Section 25, which it will be necessary to consider in detail later in these reasons, does provide for the making, on application to the Supreme Court, of orders excluding interests in property from the operation of a current restraining order. But the applicant must prove that it is more probable than not that the property was not acquired by serious crime related activity (s 25(2)).

70. The relationship between the restraining order and an application for an assets forfeiture order thus is not analogous to that between an interim injunction granted on an ex parte application, a contested application shortly thereafter for an interlocutory injunction and a suit for final relief. The scheme of the Act is more rigid and places the importance to the Commission in obtaining and retaining a restraining order above remedial flexibility.

    The construction of s 10

71. Section 10 has been amended since its enactment in 1990, and there have been expansions in some of the defined terms upon which it depends, but the essential structure of the provision has been retained. Section 10(1) identifies a "restraining order" as:

    "an order that no person is to dispose of or attempt to dispose of, or to otherwise deal with or attempt to otherwise deal with, an interest in property to which the order applies except in such manner or in such circumstances (if any) as are specified in the order."

72. Section 10(2) states:

    "The Commission^[[93]^] may apply to the Supreme Court, ex parte, for a restraining order in respect of:

    (a)specified interests, a specified class of interests or all the interests, in property of a person suspected of having engaged in a serious crime related activity or serious crime related activities, including interests acquired after the making of the order and before the making of an assets forfeiture order affecting the interests that are subject to the restraining order, or

    (b)specified interests, or a specified class of interests, in property that are interests of any other person, or

    (c)interests referred to in both paragraph (a) and paragraph (b)."  (emphasis added)

    The orders against the appellants were based upon par (b) of s 10(2).

    [93]Provision also is made by s 19 of the Police Integrity Commission Act 1996 (NSW) for the exercise by that body of the functions of the Commission under provisions such as s 10 of the Act.

73. The expression "serious crime related activity" in s 10(2) has a very wide reach. It extends to anything done by a person which at the time was "a serious criminal offence", whether or not the person has been charged or, if charged, has been tried, or tried and acquitted, or convicted, even if the conviction has been quashed or set aside (s 6(1)). The expression "a serious criminal offence" itself is given a comprehensive definition in pars (a)‑(j) of s 6(2). It includes, for example, an offence under s 197 of the Crimes Act involving the destruction of or damage to property with a value of more than $500 (par (h)). Sections 176, 176A and 178BA of the Crimes Act, to which reference has been made, appear to fall within par (d) of s 6(2) of the Act[94].

    [94]Paragraph (d) reads:

    "an offence that is punishable by imprisonment for 5 years or more and involves theft, fraud, obtaining financial benefit from the crime of another, money laundering, extortion, violence, bribery, corruption, harbouring criminals, blackmail, obtaining or offering a secret commission, perverting the course of justice, tax or revenue evasion, illegal gambling, forgery or homicide".

74. In the course of argument in this Court questions were raised as to whether the expression in s 10(2) "may apply to the Supreme Court, ex parte, ..." necessitated an ex parte application or whether a particular application might be made on notice to those whose property interests would be bound by the order sought by the Commission. Other provisions, in particular s 11(2)(b) and s 25(4)(a), indicate that the Commission may decide to give notice of an application for the making of a restraining order. In this sense, the phrase "may apply" is permissive as to the procedure adopted in making an application.

75. Section 10(2) also serves a distinct purpose of creating a new species of subject matter for adjudication by the Supreme Court, namely applications by the Commission for a "restraining order". Section 10(2) is to be read with s 10(3). Together they have the dual operation of creating that new subject matter for adjudication and of conferring on the Supreme Court the authority to exercise jurisdiction with respect to that subject matter.

76. Section 10(3) states:

    "The Supreme Court must make the order applied for under subsection (2) if the application is supported by an affidavit of an authorised officer stating that:

    (a)in the case of an application in respect of an interest referred to in subsection (2)(a) – the authorised officer suspects that the person has engaged in a serious crime related activity or serious crime related activities and stating the grounds on which that suspicion is based, and

    (b)in the case of an application in respect of any other interest – the authorised officer suspects that the interest is serious crime derived property because of a serious crime related activity or serious crime related activities of a person and stating the grounds on which that suspicion is based,

    and the Court considers that having regard to the matters contained in any such affidavit there are reasonable grounds for any such suspicion."

77. Section 10(3) is a provision of a familiar kind. It confers upon the Supreme Court a power with a duty to exercise it if the Supreme Court decides that the conditions attached to the power are satisfied[95].  A law of that description is not to be stigmatised on that ground alone as an attempt to direct the Supreme Court as to the outcome of the exercise of its jurisdiction[96].  However, the outcome is determined by the adequacy of the evidence in the affidavit of the authorised officer of the Commission.  It is upon this material that the Supreme Court considers whether there are reasonable grounds for the suspicion expressed by the authorised officer.  The result is that even where notice of an application is given there will be limited scope to contest the making of the order sought by the Commission.

    [95]Leach v The Queen (2007) 230 CLR 1 at 17‑18 [38]; [2007] HCA 3; John Fairfax Publications Pty Ltd v Gacic (2007) 230 CLR 291 at 302 [28]; [2007] HCA 28.

    [96]Gypsy Jokers Motorcycle Club Inc v Commissioner of Police (2008) 234 CLR 532 at 560 [39]; [2008] HCA 4.

78. Relevantly for the construction of s 10, the Act stipulates that proceedings on a restraining order application are not criminal proceedings (s 5(1)) and that the rules of construction applicable only in relation to the criminal law do not operate (s 5(2)). However, two relevant principles of statutory construction are engaged.

79. The first principle is that the legislature, in selecting the Supreme Court as the forum, may be taken, in the absence of contrary express words or of reasonably plain intendment, to take the Supreme Court as the legislature finds it, with all its incidents[97]. Three of those incidents which the Court of Appeal accepted as applicable to the jurisdiction to make restraining orders, and which the Commission did not seek to challenge in this Court, are the application of the rules of evidence respecting the use of affidavit evidence on interlocutory applications, the requirement that the primary judge provide adequate reasons, and the exercise of the appellate jurisdiction of the Court of Appeal with respect to challenges to interlocutory orders. However, as is explained later in these reasons and, in particular, in those of Heydon J, in other significant respects the Act displays a plain intendment to establish a distinct regime.

    [97]Mansfield v Director of Public Prosecutions (WA) (2006) 226 CLR 486 at 491 [7]; [2006] HCA 38; Thomas v Mowbray (2007) 233 CLR 307 at 340 [55]; [2007] HCA 33.

80. That distinct regime invites application of the second principle of construction.  This is that a particular provision which explicitly prescribes the mode of exercise of a power may exclude the operation of general provisions which might otherwise have been relied upon for the exercise of the power[98].  Several such particular provisions may be noted.  The power to make a restraining order is conferred in broad terms, but nevertheless an order does not apply to an interest acquired after the order is made, in the absence of express provision that it does so apply (s 10(2A)).  Further, the Supreme Court may refuse to make a restraining order in the absence of such undertakings by the State as the Court considers appropriate, with respect to payment of damages or costs in relation to the making and operation of the order (s 10(6)); these undertakings may be given by the Commission on behalf of the State (s 10(7)).

    [98]Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 228 CLR 566 at 583‑589 [44]‑[59], 612 [149], 615‑616 [162]‑[165]; [2006] HCA 50; Director of Public Prosecutions v Vu (2006) 14 VR 249 at 267.

    The principal objects of the Act

81. In the Second Reading Speech on the Bill for the Act, given on 8 May 1990, the Premier observed that there was "no doubt the proposed legislation is tough"[99].  He added[100]:

    "The most innovative and controversial aspect of this legislation is that it will create a scheme of asset confiscation that will operate outside and completely independent of the criminal law process. All existing confiscation schemes in Australia, with the notable exception of the Commonwealth Customs Act, are conviction‑based – that is to say, before a person's assets can be confiscated the person must have been convicted in the criminal courts. This legislation, like the Commonwealth Customs Act, treats the question of confiscation as a separate issue from the imposition of a criminal penalty. It essentially provides that a person can be made to account for and explain assets and profits whether or not the person has been convicted, and even if the person has been acquitted in the criminal courts. The critical thing that must be proved is that it is more probable than not that the person engaged in serious drug crime. Proof on the balance of probabilities is the same standard of proof as that used in ordinary civil litigation. The more stringent standard of proof beyond a reasonable doubt is a creature of the criminal law."

    [99]New South Wales, Legislative Assembly, Parliamentary Debates (Hansard), 8 May 1990 at 2528.

    [100]New South Wales, Legislative Assembly, Parliamentary Debates (Hansard), 8 May 1990 at 2528‑2529.

82. The use of the term "confiscation" in legislation of this type is imprecise, if not inaccurate.  Speaking of the United Kingdom legislation beginning with the Drug Trafficking Offences Act 1986 (UK) and including the Proceeds of Crime Act 2002 (UK), Lord Bingham of Cornhill observed in R v May[101] that what is involved is "not confiscation in the sense in which schoolchildren and others understand it".  He continued:

    "A criminal caught in possession of criminally‑acquired assets will, it is true, suffer their seizure by the state.  Where, however, a criminal has benefited financially from crime but no longer possesses the specific fruits of his crime, he will be deprived of assets of equivalent value, if he has them.  The object is to deprive him, directly or indirectly, of what he has gained.  'Confiscation' is, as Lord Hobhouse of Woodborough observed in In re Norris[102], a misnomer."

    These remarks apply with added force to application of the Act to the situation, of which the facts of the present case are an example, where there has been no conviction, and to the application of the Act in cases where there has been an acquittal. Again, in NSW Crime Commission v D'Agostino[103], the Act operated upon a motor vehicle and a half share in a residential property owned by a person convicted of a single instance of shop‑lifting.

    [101][2008] 1 AC 1028 at 1034.

    [102][2001] 1 WLR 1388 at 1392; [2001] 3 All ER 961 at 966.

    [103](1998) 103 A Crim R 113.

83. The issues which are before this Court do not call into question the legislative policy of which the Premier spoke. This policy is now, after the expansion of the statute beyond concern with drug trafficking, expressed in the statement in s 3 of the principal objects of the Act as being:

    "(a)to provide for the confiscation, without requiring a conviction, of property of a person if the Supreme Court finds it to be more probable than not that the person has engaged in serious crime related activities, and

    (b)to enable the proceeds of serious crime related activities to be recovered as a debt due to the Crown, and

    (b1)to provide for the confiscation, without requiring a conviction, of property of a person that is illegally acquired property held in a false name or is not declared in confiscation proceedings, and

    (c)to enable law enforcement authorities effectively to identify and recover property."

    The issue in this Court

84. What is in issue is the validity of the conscription of the Supreme Court as an essential actor in the provisions for the making of restraining orders.  In the present case Allsop P, after referring to the above remarks of the Premier in 1990, continued[104]:

    "Balanced against that important public policy is the clear recognition in our legal and political system of the importance of the protection of individual rights, including the right to own and enjoy private property.  Thus, the common law requires a degree of clarity in the wording of any statute which abrogates or confiscates property rights.  This is rooted in the importance of such rights and their legitimate protection in civil society free from the exercise of arbitrary power, in particular prerogative or Executive power."

    His Honour went on to identify the use of the judicial branch of government as the mechanism chosen by the legislature "to mediate the relationship between the competing, and to a degree conflicting, policies to which I have referred"[105].

    [104](2008) 251 ALR 479 at 482.

    [105](2008) 251 ALR 479 at 483.

85. The Supreme Court, for over a century, has been invested with extensive federal jurisdiction. In the instant case, the Court of Appeal had before it a controversy respecting the validity of s 10 of the Act and so was exercising the judicial power of the Commonwealth in a matter arising under or involving the interpretation of the Constitution. In other cases, even where there is no issue of constitutional validity, an application under s 10 nevertheless may attract the exercise of federal jurisdiction[106]. For example, certain offences under the laws of the Commonwealth are classified by par (i) of s 6(2) of the Act as serious criminal offences and may found the suspicion spoken of in s 10(2)(a) of engagement in serious crime related activity.

    [106]See LNC Industries Ltd v BMW (Australia) Ltd (1983) 151 CLR 575 at 581‑582; [1983] HCA 31.

86. However, the case for invalidity has been conducted on a broader basis, looking to the operation of the legislation where the Supreme Court acts as the highest judicial organ of the State and no exercise of federal jurisdiction is involved. 

87. The appellants accordingly contend in accordance with authority in this Court[107] that s 10 is designed to engage the Supreme Court in activity which is repugnant to the judicial process in a fundamental degree and thereby impermissibly trenches upon its appearance as a tribunal which stands apart from the Executive Branch of the government of the State and its instrumentalities such as the Commission, and which is equipped to administer in disputes justice inter partes, with results openly arrived at by the Court.

    [107]The most recent general statements of principle are found in Gypsy Jokers Motorcycle Club Inc v Commissioner of Police (2008) 234 CLR 532 at 551‑552 [6]‑[7], 552‑553 [10], 594 [175] and K‑Generation Pty Ltd v Liquor Licensing Court (2009) 237 CLR 501 at 530 [89]‑[90], 535 [111]; [2009] HCA 4.

    Consideration

151. Commissioner of Police v Tanos.  Illustrations of the aversion of Australian judicial process to ex parte relief of a substantive kind could be multiplied extensively, but a final illustration is Commissioner of Police v Tanos.  In that case Dixon CJ and Webb J said[185]:  "[I]t is a deep-rooted principle of the law that before any one can be punished or prejudiced in his person or property by any judicial or quasi-judicial proceeding he must be afforded an adequate opportunity of being heard."  Their Honours then said of this "general principle" that it was "hardly necessary to add that its application to proceedings in the established courts is a matter of course."[186]  That case concerned s 3(1)(b) of the Disorderly Houses Act 1943 (NSW), which provided that the Supreme Court of New South Wales "may declare" premises to be a disorderly house on the affidavit of a police officer claiming reasonable grounds for suspecting one or more of various conditions.  The Disorderly Houses Regulations, reg 1, gave the Court power to make the declaration "immediately and ex parte" if this seemed "necessary or desirable" or on notice and inter partes if the Court thought an opportunity should be given to the owner or occupier to oppose the making of the declaration.  Their Honours thought that on its true construction the regulation meant that prima facie the second course should be followed, and that the former course should be followed "only in exceptional or special cases" – where there was "some special hazard or cause of urgency"[187].  The case affords an instructive contrast with the present, for no such judicial discretion is available here. 

     [185](1958) 98 CLR 383 at 395; [1958] HCA 6.

     [186]Commissioner of Police v Tanos (1958) 98 CLR 383 at 396.

     [187]Commissioner of Police v Tanos (1958) 98 CLR 383 at 396.

152. Section 10(2)[188] of the Act provides that the Commission "may" apply for a restraining order ex parte. Section 10(3)[189] provides that if the Commission makes an application for a restraining order ex parte, the Supreme Court "must" make that order if the affidavit relied on by the Commission satisfies stipulated conditions.  That is, the Supreme Court has no discretion to adjourn the hearing briefly while notice is given to the person affected.  Although this is not by itself repugnant to the judicial process in a fundamental degree, it is relevant to whether one other aspect of the legislation is.

     [188]See [72].

     [189]See [76].

153. The duration of restraining orders.  Section 10(9)[190] makes it plain that once a restraining order has been made, unless it is set aside on appeal, it remains in force for two working days and continues to remain in force thereafter indefinitely until such time as all the states of affairs described in paragraphs (a)‑(d) cease to exist. That period could be quite lengthy, since, for example, there is no statutory obligation on the Commission to prosecute the application for an assets forfeiture order described in s 10(9)(a) with any expedition. The extreme significance in the legislative scheme of the grant of a restraining order is highlighted by s 22(1A). It provides that an application for an assets forfeiture order under s 22(1) may be made "before or after or at the same time as an application for the relevant restraining order but may not be determined before the restraining order is granted." The scheme is that assets are to be frozen first and argued about afterwards – possibly a long time afterwards.

     [190]It provides:

     "After the first 2 working days of its operation, a restraining order remains in force in respect of an interest in property only while:

     (a)there is an application for an assets forfeiture order pending before the Supreme Court in respect of the interest, or

     (b)there is an unsatisfied proceeds assessment order in force against the person whose suspected serious crime related activities formed the basis of the restraining order, or

     (c)there is an application for such a proceeds assessment order pending before the Supreme Court, or

     (d)it is the subject of an order of the Supreme Court under section 20 (Effect on restraining order of refusal to make confiscation order)."

154. Practical utility.  It is understandable that the Act places a high significance on the importance of obtaining a restraining order without notice to defendants. No doubt many potential defendants are able to dispose of their assets very speedily, and would do so, if given notice of the application before the restraining order is made. A duty in the Supreme Court to grant an ex parte restraining order for a short period pending an application by the defendant to oppose its continuation, or dissolve it, is not repugnant to the judicial process in a fundamental degree. But the practical desirability of ensuring that assets not be disposed of before an application for a restraining order comes to court is one thing. Creating a capacity in the Commission to retain a restraining order it has obtained ex parte without there being any procedure by which the defendant may apply to have it speedily dissolved is another.

155. The central issue.  If there is no procedure by which the person subject to a s 10(2) restraining order made ex parte may approach the Court to have it set aside once that person has learnt of the order, the effect of s 10 is to compel the Supreme Court of New South Wales to engage in activity which is repugnant to the judicial process in a fundamental degree.

156. The element which is repugnant is not the grant of a power to make restraining orders ex parte.  That is a very well-known aspect of Australian judicial process in relation to injunctions, although the power should only be exercised in exceptional or special cases, where there is some special hazard or cause of urgency.  A risk of dissipation of assets in such a fashion as to frustrate the objects of the law can be in that category. 

157. Nor is the element which is repugnant the creation of a duty on the Court to make the order, if the conditions in s 10(3) are satisfied. That too is a well‑known aspect of Australian judicial process.

158. Nor is the element which is repugnant to be found in the failure of the legislation to give the Court power to consider whether the circumstances are sufficiently extreme to justify a grant of ex parte relief or whether the order, if made, should be limited so as to last only for a short time.  That is because that failure will cause little injustice if a wrongly made order is only made for a short time or can be dissolved speedily.

159. The repugnance arises if the legislation ensures that there is no facility for the Court to entertain an application to dissolve an ex parte restraining order once the defendant has received notice of its grant pursuant to s 11(2). If that facility existed, the potential injustice flowing from the preceding three characteristics of s 10 would be nullified or mitigated. But if it does not exist, there is the potentiality for extreme injustice in a fashion repugnant to the judicial process in a fundamental degree.

160. The crucial question is thus whether it is possible for a defendant to apply for speedy dissolution of the ex parte restraining order. The answer is "No". The Act does not expressly or implicitly grant defendants that facility. And its structure excludes it.

161. No statutory grant of the facility.  There is no provision in s 10 or any other part of the Act pursuant to which a person against whom an ex parte restraining order has been made can apply to the Supreme Court to have the order set aside, at least without much difficulty and delay. The extensive list of orders set out in s 12(1) and described as "ancillary orders" does not contain any order of that kind. Section 12(1)(a) refers to "an order varying the interests in property to which the restraining order relates", but that language does not include an order setting aside the restraining order in its totality. An order which is "ancillary" to another is an order which is subservient, subordinate, auxiliary or accessory to it. An order which sets aside another order is not "ancillary" to it. Further, s 12(1) contemplates that an "ancillary" order can be made either later than or at the same time as the restraining order: a set of orders comprising a restraining order and an "ancillary" order made at the same time as the restraining order and setting it aside would be internally contradictory, which suggests that an order setting aside a restraining order is not an ancillary order. Nor does s 25 assist[191]. For the reasons given by Gummow and Bell JJ the narrow potentiality s 25 affords for bringing the restraining order to an end – through a complex negative inquiry which is likely often to be very time-consuming – does not prevent s 10 from operating so as to compel the Supreme Court to engage in an activity which is repugnant to the judicial process in a fundamental degree[192].  The same is true of s 20, because the power it affords to terminate the restraining order is only triggered once the Court decides not to make an assets forfeiture order, and that decision may not be made for a long time.

     [191]See [93]-[94].

     [192]See [93]-[97].

162. Statutory preclusion of the facility.  In addition to the fact that there is no express provision in the Act permitting a speedy application to dissolve restraining orders granted ex parte, the relevant sections in Pt 2 of the Act read as a whole indicate that they constitute a self-contained and exhaustive regime. It is a regime which excludes any recourse to, or to an analogy with, the general law powers in the Supreme Court to permit an application by an affected person to dissolve ex parte interlocutory injunctions. The Commission made a contrary concession, but incorrectly. It is not open to it to advocate or accept particular constructions of the legislation in any fashion binding on this Court and thereby, as it were, to "concede" the legislation under which it operates into constitutional validity by converting it into a statute which is different from the one actually enacted by the legislature.

163. The self-contained and exhaustive nature of the regime is demonstrated by the quite close detail to which Pt 2 of the Act descends in dealing with restraining orders. It would be wearisome to engage in unduly minute analysis, but the following matters may be noted. Section 10(1) and (2) provides for how the orders are to be applied for. Section 10(2), (2AA) and (2A) provides for the property in relation to which the orders may be applied for. Section 10(3) and (3A) provides for when the orders must be made. Section 10(4) provides for the Court to order the Public Trustee to take control of property to which the restraining order relates: see also ss 12, 18, 19 and 21. Section 10(5)(a) gives the Court power to ensure that a restraining order may make provision for meeting out of the property to which the order applies the reasonable living expenses of any person whose interests in property are subject to the restraining order (including the reasonable living expenses of any dependants). Section 10(5)(b) gives the Court power to ensure that a restraining order makes provision for the payment out of the property to which the order applies of the reasonable legal expenses of any person whose interests in the property are subject to the restraining order, being expenses incurred in connection with the application for the restraining order or an application for a confiscation order, or incurred in defending a criminal charge: see also ss 16A, 16B and 17. Section 10(6) and (7) provides for undertakings as to damages or costs. Section 10(8) provides that if a restraining order is in force in respect of an interest of a person in property, the order does not prevent the levying of execution against the property in satisfaction or partial satisfaction of the debt arising under a proceeds assessment order in force against the person, or, with the consent of the Supreme Court, the sale or other disposition of the interest to enable the proceeds to be applied in satisfaction or partial satisfaction of that debt, or, with the consent of the Supreme Court, the application of the interest in satisfaction or partial satisfaction of that debt. Section 10(9) provides for the duration of the orders. Section 10B provides for applications for restraining orders to be made by telephone and for notice of those orders to be given by telephone. Section 11 provides for notice of the restraining orders. Section 12 provides for the making of numerous ancillary orders. Sections 13 and 13A provide for the abolition of certain privileges. Section 14 provides for orders for sale of certain types of property. Section 15 provides for recording restraining orders on title registers. Section 16 provides for punishments for contravention of restraining orders. Section 20 provides that if while a restraining order is in force the Supreme Court does not make an assets forfeiture order in respect of interests in property to which the restraining order relates or a proceeds assessment order in respect of any person whose interests in property are affected by the restraining order, the Court may make an order in relation to the period for which the restraining order is to remain in force, and make such other order or orders as it considers appropriate in relation to the operation of the restraining order.

164. In 1864 the Supreme Court of the United States said:  "Parties whose rights are to be affected are entitled to be heard; and in order that they may enjoy that right they must first be notified."[193] Under Pt 2 of the Act, there is notification only after the defendant's rights are affected, and no provision for any opportunity for defendants to argue that orders affecting them should be dissolved. In 1965 the Supreme Court of the United States said that the opportunity to be heard "must be granted at a meaningful time and in a meaningful manner."[194] The meaningfulness of notice depends on its timeliness. If the Commission chooses to proceed ex parte, the statutory scheme under consideration grants no right to notice before the ex parte order is made, and the grant by s 11(2)[195] of a right to notice of the ex parte order after it has been made is not a grant at a meaningful time because it can lead to no avenue by which the order can be dissolved before it causes more harm.  

     [193]Baldwin v Hale 68 US 223 at 233 (1864).

     [194]Armstrong v Manzo 380 US 545 at 552 (1965).

     [195]See [110].

165. In short, the strict, confined, specific and tight regulation of the powers granted excludes recourse by analogy or otherwise to the general powers and traditional procedures of the Supreme Court in its administration of equitable relief. The "reasonably plain intendment" of the legislation is that Pt 2 does not, in this respect at least, take the Supreme Court of New South Wales as it finds it[196]. 

     [196]Electric Light and Power Supply Corporation Ltd v Electricity Commission of NSW (1956) 94 CLR 554 at 560 per Dixon CJ, McTiernan, Williams, Webb, Fullagar, Kitto and Taylor JJ; [1956] HCA 22.

     Bill of pains and penalties

166. To some extent the appellants employed s 22(2)(b) as an aid to their arguments in support of the conclusion that s 10 was invalid by reason of the Kable doctrine. That conclusion has been accepted for reasons other than the existence of s 22(2)(b). But the appellants also advanced a distinct argument based on s 22(2)(b). They submitted that s 22(2)(b)[197] exposes a person to punishment, in the form of forfeiture of property, for an offence for which that person has not been prosecuted, tried or convicted; that s 22(2) was void as being in substance a bill of pains and penalties antithetical to the exercise of judicial power under Ch III of the Constitution; and that s 10(3) fell with s 22(2)(b) because the making of a s 10(3) restraining order was a condition precedent to the making of an assets forfeiture order under s 22(2)(b).

     [197]See [111].

167. The submission must be rejected.  Like a bill of attainder, a bill of pains and penalties "is a legislative enactment which inflicts punishment without a judicial trial"[198]. The key question is thus whether s 22(2)(b) provides for a judicial trial. The finding referred to in s 22(2)(b) can only be made after notice of the application for an assets forfeiture order has been given to the person described in s 22(2)(b): see s 22(9)[199]. That person has a right to appear and adduce evidence: s 22(9). And the rules of evidence apply to that process of adducing evidence: s 5(2)(b)[200]. Thus s 22(2)(b) provides for a judicial trial. The standard of proof to be satisfied by the Commission ("more probable than not") is lower than the conventional criminal standard. This may be an unamiable provision, but it does not entail constitutional invalidity[201].  The more extreme step of reversing the burden of proof itself has been held not to invalidate a federal statute[202]. Section 22(2)(b) does not adjudge any specific person or specific persons guilty of an offence: it leaves it to the Supreme Court to do so on that standard of proof, but otherwise in conformity with the rules of evidence. If any s 22(2)(b) order is made, it is made in exercise of judicial power, not legislative power.

     [198]Polyukhovich v The Commonwealth (1991) 172 CLR 501 at 535 per Mason CJ; [1991] HCA 32.

     [199]It provides: 

     "Notice of an application under this section is to be given to a person to whom the application relates and the person may appear, and adduce evidence, at the hearing of the application."

     [200]It provides: 

     "Except in relation to an offence under this Act:

     …

     (b)the rules of evidence applicable in civil proceedings apply, and those applicable only in criminal proceedings do not apply, to proceedings under this Act."

     [201]Silbert v Director of Public Prosecutions (WA) (2004) 217 CLR 181 at 186 [11]; [2004] HCA 9.

     [202]Nicholas v The Queen (1998) 193 CLR 173; [1998] HCA 9. See also Thomas v Mowbray (2007) 233 CLR 307 at 355-356 [113].

     Section 22 does not undermine the protection of a criminal trial

168. A final submission advanced for the appellants by reference to s 3(a) of the Act[203] was that a s 22(2)(b) order amounted to confiscation of property without a conviction; that the proceedings for the s 22(2)(b) order were thus civil proceedings; that the forfeiture effected by the order was punishment; that the person against whom the order was sought was in peril of punishment without the procedural safeguards of a criminal trial; that this violated the essential requirements of the exercise of judicial power and usurped it; and that to punish a person only after a civil hearing was impliedly prohibited by the doctrine of the separation of powers.

     [203]See above at [83].

169. In substance, as emerged in oral argument, these submissions did no more than complain that it is not constitutionally possible for a State court to obtain an order for forfeiture of property unless the matters of fact constituting the conditions for forfeiture are proved beyond a reasonable doubt.  For the reasons given above[204], the stipulation of a lower standard of proof does not lead to that conclusion. 

     [204]See [167] above.

     Orders

170. I agree with the orders proposed by Gummow and Bell JJ.