The Northern Territory Court of Appeal has struck down the declared drug trafficker provisions in the Misuse of Drugs Act and the Criminal Property Forfeiture Act as being unconstitutional.
These provisions required the Supreme Court to declare a person who committed three drug offences over ten years to be a “drug trafficker”.
The result of such a declaration was that all of that person’s property was forfeited to the Crown regardless of whether it was the product of or used in any criminal offence.
In the decision of Emmerson v The Director of Public Prosecutions & Ors  NTCA 04 by a majority of two to one (Kelly and Barr JJ, Riley CJ dissenting), the Court held that these provisions impermissibly compromised the independence of the Supreme Court, attracting the principle in Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51. The Territory Attorney-General has made an application for special leave to appeal the decision to the High Court. Alistair
Wyvill SC and Ned Aughterson appeared for Mr Emmerson.