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.