Justice Mildren criticised the wideness of the scheme in DPP v Green  NTSC 16 (at -):
the wide definition of crime-used property … gives rise to the possibility that what may be forfeited, for a relatively trivial offence, may be the offender’s own home … the Act has been described by both counsel as draconian in its reach. I doubt whether Dracos himself would have conceived of a law so wide reaching.
There is no doubt that the scheme is a lucrative one for the government: the Australian Institute of Criminology reported that by 2009 ‘the Northern Territory Police ha[d] seized over $13 million dollars in criminal property forfeiture cases, with approximately $5 million forfeited to the Crown’.
The enactment of laws of the Territory is uniquely limited by the application of the Northern Territory (Self-Government) Act 1978 (Cth), s 50 of which requires laws with respect to the acquisition of property to be on just terms. The validity of the Territory’s acquisition of property by way of the Criminal Property Forfeiture Act was recently challenged before the Court of Appeal of the Northern Territory in Dickfoss v DPP & Ors  NTCA 1.
In July 2009 Mr Dickfoss was charged with offences under the Territory’s Misuse of Drugs Act. Subsequently a restraining order was granted over 9.1ha of freehold land owned by Mr Dickfoss and his father as crime-used property. In September 2009 both filed objections to the restraint of the land. In March 2010 Mr Dickfoss’s father died. In August 2010 Mr Dickfoss pleaded guilty and was sentenced in relation to the cultivation and possession of a commercial quantity of cannabis. In October 2010 the NT Office of the Director of Public Prosecutions filed for forfeiture of the land on the basis it was crime-used property. In January 2011 the Supreme Court delivered judgment, inter alia, ordering forfeiture of the land, as well as rejecting two constitutional challenges to the Criminal Property Forfeiture Act. Mr Dickfoss appealed the Supreme Court judgment.
In the leading Court of Appeal judgment at  and , Riley CJ set out the difference between the position under the Northern Territory (Self-Government) Act 1978 and the Constitution: the Legislative Assembly of the NT may enact legislation on all subject matters, and s 50 acts as a restriction on that power. However, the power of the Commonwealth Parliament to enact legislation is limited to the heads of power identified in s 51 of the Constitution. Further, at , not every acquisition of property will fall within the scope of the constitutional guarantee in the context of the Constitution, or, by analogy, the restriction in the Northern Territory (Self-Government) Act. His Honour relied on the principles in Burton v Honan  86 CLR 169 and Re Director of Public Prosecutions; ex parte Lawler (1994) 179 CLR 270 to find (at ) that the Criminal Property Forfeiture Act ‘is not by its nature and object a law to which the guarantee of just terms applies. It is an Act providing for the forfeiture of property used in or derived from unlawful activity.’
Mr Dickfoss has filed for special leave to appeal to the High Court. It is anticipated his application will be heard in the middle of the year.
SUE ERICKSON is an Assistant Parliamentary Counsel in the Office of the Parliamentary Counsel, Northern Territory.