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Commissioner of Australian Federal Police v Elzein [2017] NSWCA 142 (21 June 2017)

Last Updated: 9 February 2018



Court of Appeal
Supreme Court
New South Wales

Case Name:
Commissioner of Australian Federal Police v Elzein
Medium Neutral Citation:
Hearing Date(s):
24 February 2017
Decision Date:
21 June 2017
Before:
Beazley ACJ at [1];
Basten JA at [11];
Simpson JA at [137]
Decision:
Q1 Upon their proper construction, do ss 180 and  39 (1) of the  Proceeds of Crime Act 2002  (Cth) (‘Act’), when read with  s 319  of the Act, permit an examination order or an order for the provision of sworn statements, respectively, to be made against a person who is a defendant in concurrent criminal proceedings in relation to a related subject matter?

Answer: Yes.

Q2 If yes, are  ss 180  and  39 (1) of the Act invalid to that extent, on the ground that to permit such orders to be made in those circumstances:

(a) would contravene Ch III of the Constitution by reason that it would be an impermissible interference with:

(i) alleged essential features of the judicial power of the Commonwealth, namely the court’s inherent power to control abuse of process or the adversarial nature of a criminal trial (as described in X7 v Australian Crime Commission [2013] HCA 29; (2013) 248 CLR 92); or
(ii) the manner in which a criminal trial takes place before a court exercising the judicial power of the Commonwealth; or

(b) would contravene s 80 of the Constitution by reason that it would be an impermissible alteration of fundamental features of ‘trial ... by jury’ on an indictment for an offence against a law of the Commonwealth?

Answer: No

Q3 If yes, should ss 180 and 39(1) of the Act be read down to avoid any operation that would be constitutionally invalid?

Answer: Does not arise.

Q4 If yes, how should ss 180 and 39(1) of the Act be read down?

Answer: Does not arise.

Q5 Upon their proper construction, do sub-ss 319(2)(a) and (3) of the Act validly prohibit a court from staying or setting aside, or disclose a legislative intention that a court should not stay or set aside, orders made under s 39(1) or s 180, on the ground that criminal proceedings have been instituted against the person subject to the proceedings under the Act, even if the Court concludes that the circumstances pertaining to the proceedings under the Act are the same as, or substantially similar to, the circumstances pertaining to the criminal proceedings?

Answer:

(1) Section 319(2)(a) relevantly provides that a court must not stay proceedings under the  Proceeds of Crime Act  on the ground that criminal proceedings have been instituted against the person, even if the circumstances pertaining to each set of proceedings are the same as or substantially similar to each other. The section is to be construed as prohibiting a stay based solely on that ground and despite the fact that the circumstances the subject of each proceeding will be the same or substantially similar.

(2) So construed, subss 319(2)(a) and (3) are not invalid on the basis that they conflict with the requirements of Ch III of the Constitution.
Catchwords:
CONSTITUTIONAL LAW – orders for provision of sworn statements and for examination under  Proceeds of Crime Act 2002  (Cth)  ss 39(1)  and  180  – whether these provisions, insofar as they permit such orders where related criminal proceedings are pending, are invalid because they (a) contravene Constitution Ch III (b) interfere with essential features of judicial power to control abuse of process and the adversarial nature of a criminal trial (c) alter fundamental features of a trial by jury in accordance with Constitution, s 80

CONSTITUTIONAL LAW – whether  Proceeds of Crime Act 2002  (Cth),  s 319  prohibiting court from setting aside or staying orders under  s 39(1)  or  s 180  on ground that related criminal proceedings are pending is invalid

CRIME –  Proceeds of Crime Act 2002  (Cth),  ss 39(1)  and  180  – whether provisions permit orders for sworn statements and for examination against defendant in pending related criminal proceedings

CRIME –  Proceeds of Crime Act 2002  (Cth),  s 319  – whether provisions prohibit court from setting aside or staying orders under  s 39(1)  or  s 180  on ground that related criminal proceedings are pending
Legislation Cited:
Acts Interpretation Act 1901 (Cth), ss 15A, 15AB
Constitution, s 80; Ch III
Crimes Legislation Amendment (Powers, Offences and Other Measures) Act 2015 (Cth), Sch 14, Pt 3, item 11
Crimes Legislation Amendment (Proceeds of Crime and Other Measures) Act 2016 (Cth), Sch 1
Criminal Code (Cth), s 400.9
Criminal Procedure Act 1986 (NSW), s 173
 Proceeds of Crime Act 2002  (Cth),  ss 5 ,  17 ,  18 ,  26 ,  29 ,  32 ,  39 ,  39A , 41,  42 ,  45 ,  49 ,  51 ,  59 ,  73 ,  180 ,  180E ,  183 ,  185 , 186,  188 ,  193 ,  266A ,  315 ,  319 ,  319A ,  335 ,  338 ;  Pt 2 - 1 , Pt 2- 2 ,  Pt 3 - 1 , Div 3, Pt 3-6, Pt 6-2 Proceeds of Crime Regulations 2002 (Cth), reg 12
Supreme Court Act 1970 (NSW), s 75A
Uniform Civil Procedure Rules 2005 (NSW) rr 28.2, 36.16
Cases Cited:
Australian Communications and Media Authority v Today FM (Sydney) Pty Ltd (2015) 255 CLR 352; [2015] HCA 7
CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
Coleman v Power (2004) 220 CLR 1; [2004] HCA 39
Commissioner of the Australian Federal Police v Cacu [2017] NSWCA 5
Commissioner of the Australian Federal Police v McGlone [2016] NSWCA 103
Commissioner of the Australian Federal Police v Zhao (2015) 255 CLR 46; [2015] HCA 5
Condon v Pompano Pty Ltd (2013) 252 CLR 38; [2013] HCA 7
Hamilton v Oades (1989) 166 CLR 486; [1989] HCA 21
Hammond v The Commonwealth (1982) 152 CLR 188; [1982] HCA 42
Lazarus v Independent Commission Against Corruption [2017] NSWCA 37
Lee v New South Wales Crime Commission (2013) 251 CLR 196; [2013] HCA 39
Nicholas v The Queen (1998) 193 CLR 173; [1998] HCA 9
North Australian Aboriginal Justice Agency Ltd v Northern Territory of Australia (2015) 256 CLR 569; [2015] HCA 41
Potter v Minahan (1908) 7 CLR 277; [1908] HCA 63
Victorian Stevedoring and General Contracting Co Pty Ltd and Meakes v Dignan (1931) 46 CLR 73; [1931] HCA 34
X7 v Australian Crime Commission (2013) 248 CLR 92; [2013] HCA 29
Zhao v Commissioner of the Australian Federal Police (2014) 43 VR 187; [2014] VSCA 137
Texts Cited:
Explanatory Memorandum – Crimes Legislation Amendment (Proceeds of Crime and Other Measures) Bill 2015 at par 49

Hansard, House of Representatives, 26 November 2015, p 13826
Category:
Principal judgment
Parties:
Commissioner of the Australian Federal Police (Applicant)
Ahmad Elzein (aka Ahmed Elzein) (First Respondent)
Abbas Elzein (Second Respondent)
Elzein’s Mixed Business Pty Ltd (Third Respondent)
Representation:
Counsel:
Mr A Moses SC/Mr L Livingston (Applicant)
Mr P Lange/Mr A Ahmad (Respondents)

Solicitors:
Penelope Jane Kelton, Criminal Assets Litigation, Australian Federal Police (Applicant)
Zahr Partners (Respondents)
File Number(s):
2016/360189
Referred questions:

Court or Tribunal:
Supreme Court
Jurisdiction:
Common Law Division
Date of Decision:
29 November 2016
Before:
Rothman J
File Number(s):
2015/283656


[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

HEADNOTE

[This headnote is not to be read as part of the judgment]

On 28 September 2015, the Commissioner of the Australian Federal Police obtained ex parte orders with respect to the first and second respondents, Ahmad Elzein and Abbas Elzein, and the third respondent, Elzein’s Mixed Business Pty Ltd. These orders related to the disclosure of property interests associated with the respondents, and required the first and second respondents to provide sworn statements under s 39(1), and to be examined under  s 180 , of the  Proceeds of Crime Act 2002  (Cth).

On 29 September 2015, the first and second respondents were arrested and charged with offences under the Customs Act 1901 (Cth), alleging illegal importation of tobacco products with intent to defraud the Commonwealth of excise tax. Subsequent to the laying of these charges, on 22 July 2016, the first and second respondents were served with “examination notices” pursuant to the orders under s 180. Each notice required the respective respondent to attend for examination at a specified time and place, and to produce documents identified in a schedule.

On 27 October 2016, the respondents sought orders in the Common Law Division setting aside the ex parte orders made on 28 September 2015. On 5 December 2016, the parties obtained, by consent, orders for the determination of separate questions and the referral of the proceedings to this Court.

Shortly stated, the issues for determination were:

(a) Do  ss 39(1)  and  180  of the  Proceeds of Crime Act  permit orders for the examination of a person who is a defendant in pending criminal proceedings in relation to subject matter relating to the criminal charges?

(b) Does  s 319  of the  Proceeds of Crime Act  prohibit a court from staying proceedings on an examination order because criminal proceedings are pending?

(c) If yes to (a) and (b), are  ss 39(1) ,  180  and  319  invalid to that extent, on the ground that to permit such orders to be made in those circumstances would contravene Ch III of the Constitution?

The Court (Beazley ACJ, Basten JA and Simpson JA) held:

In relation to (a):

1. When considering questions of constitutional validity, the first step is to construe the statute: [26].

Lazarus v Independent Commission Against Corruption [2017] NSWCA 37, applied.

2. There is a clear intention that s 180 authorises an examination of a person subject to current criminal charges, with respect to matters related to the charges: [2], [54].

3. There is a power to make orders under s 39(1) as to written statements with respect to a person who has been charged with criminal offences and to enforce such an order against the person, once charged, if made ex parte with respect to a person not yet charged: [107].

In relation to (b):

4. The grounds in s 319(2) on which a court may not order a stay of proceedings are not prohibited considerations. Potential prejudice is to be taken into account, in accordance with subs (6), in circumstances where there are criminal proceedings pending against the person the subject of the proceedings under the Act. The existence of the criminal proceedings will be, in many cases, the source of some potential prejudice arising from the pursuit of proceedings under the Act, but will not be enough in itself: [59].

Commissioner of the Australian Federal Police v Zhao (2015) 255 CLR 46; [2015] HCA 5, discussed.

5. The terms of the relevant provisions demonstrate that the commencement of criminal proceedings is not, of itself, a sufficient basis to stay the operation of an examination order allowing questioning in relation to the conduct the subject of the criminal charges. The provisions should be understood to operate despite the fact that criminal charges have been laid: [9], [89], [101], [162].

Commissioner of the Australian Federal Police v McGlone [2016] NSWCA 103; Commissioner of the Australian Federal Police v Cacu [2017] NSWCA 5, discussed.

6. Subsections 319(2)(a) and (3) prohibit a stay based solely on the ground that criminal proceedings have been instituted against the person, despite the fact that the circumstances the subject of each proceeding will be the same or substantially similar: [136].

In relation to (c):

7. Identifying statements in the caselaw may help in articulating principles, but the particular issue of constitutional validity in this case cannot be decided by reference to generalities: [111].

Condon v Pompano Pty Ltd (2013) 252 CLR 38; [2013] HCA 7; X7 v Australian Crime Commission (2013) 248 CLR 92; [2013] HCA 29; Hammond v The Commonwealth (1982) 152 CLR 188; [1982] HCA 42; Lee v New South Wales Crime Commission (2013) 251 CLR 196; [2013] HCA 39, discussed.

8. A procedural scheme which substantially interfered with the fairness of a criminal trial would be constitutionally invalid. However, the  Proceeds of Crime Act  does not fall into that category: [128]. The power of a court invested with criminal jurisdiction in relation to a federal offence to take steps to protect the integrity of the criminal process is constrained only by the statutory prescription that the mere fact of laying of charges is insufficient to warrant a stay. The court’s powers to protect the interests of the accused are otherwise unimpaired: [133].

9. The impugned provisions are not constitutionally invalid because they impermissibly infringe the essential features of judicial power in the administration of criminal proceedings: [135], [164].

JUDGMENT

  1. BEAZLEY ACJ: I have had the advantage of reading in draft the judgment of Basten JA. I agree with his Honour’s answers to the separate questions and give the following brief reasons of my own.
  2. As Basten JA has pointed out, at [54]-[55],  s 180  of the  Proceeds of Crime Act 2002  (Cth) (the Act) authorises an examination of a person subject to current charges with respect to matters related to the charges. There are, as his Honour has also pointed to, tensions in the Act in relation to prejudice that may arise in respect of disclosure that is permitted under the Act:  s 188(3)(c) ; or even potentially pursuant to s 188(2) and  s 188(3)(b).  Whilst that may be so, that issue does not arise and it is not necessary to make any comment in respect of any potential difficulties that may arise.
  3. I agree with Basten JA’s observation at [76] that the purpose of  s 266A(2)(b)  of the Act precludes the disclosure of information whilst criminal proceedings are pending or are in the course of being heard (and, in my opinion, an order prohibiting disclosure of such information may be made by any court in which the application may be brought). I also agree with his Honour’s construction of  s 39(1). 
  4. Insofar as  s 319  is concerned, I consider that its terms are clear. First, s 319(1) provides that a court may stay proceedings under the Act, including for examination, if it is “in the interests of justice to do so”.  Section 319(2)  specifies four grounds upon which proceedings must not be stayed, including, relevantly, on the ground that there are prospective, pending, or current proceedings against the person subject of the order under the Act: para (a); or against another person in respect of matters relating to the subject matter of the examination: para (b).
  5.  Section 319(6)  prescribes matters that must be taken into account in considering whether a stay is in the interests of justice. Relevantly, paras (c), (d) and (e) direct attention to prejudice if the proceedings are not stayed, as follows:
“(c) the risk of a proceeds of crime authority suffering any prejudice (whether general or specific) in relation to the conduct of the [ Proceeds of Crime Act ] proceedings if the proceedings were stayed;
(d) whether any prejudice that a person (other than a proceeds of crime authority) would suffer if the [ Proceeds of Crime Act ] proceedings were not stayed may be addressed by the court by means other than a stay of the proceedings;
(e) any orders (other than an order for the stay of the [ Proceeds of Crime Act ] proceedings) that the court could make to address any prejudice that a person (other than a proceeds of crime authority) would suffer if the proceedings were not stayed.”
  1. There is a note to the section which provides two examples of orders the court could make to address any prejudice if a stay is not granted, namely, an order for a closed court or an order prohibiting the disclosure of information.
  2. The matters referred to in  s 319(6)  are matters to which the court must have regard, but they are not determinative of the manner in which the discretion is to be exercised. Nor is there any hierarchy or statutory prescription of the weight which is to be given to those considerations. Further, there is nothing in  s 319  which precludes consideration of other matters that the court determines are relevant.
  3. The matters that the court takes into account, either pursuant to  s 319(6)  or otherwise, are to be considered in the context of the fact that criminal proceedings are proposed, pending, or on foot, relevantly, against the person subject of proceedings under the Act, or against another person in respect of matters relating to the subject matter of the proceedings under the Act. In this regard, I do not consider that any of the four matters specified in subs (2) are themselves relevant considerations in the exercise of the discretion.
  4. It follows that I agree in this regard with the conclusion of Basten JA, at [101], that these provisions should be construed and applied according to their terms.
  5. Since preparing these reasons, I have had the opportunity of reading the reasons of Simpson JA, with which I agree.
  6. BASTEN JA: The principal object of the  Proceeds of Crime Act 2002  (Cth) is, as its name suggests, to deprive persons of the proceeds of offences, or benefits derived from offences, against the laws of the Commonwealth. A further object is to deprive a person of unexplained wealth that the person cannot satisfy a court was not derived from certain offences.[1] Those objects are effected by a court making a forfeiture under order  Pt 2 - 2  of the Act.
  7. In furtherance of those objects, courts are given powers, on the application of the respondent Commissioner,[2] to make orders (i) restraining a person from disposing of property,[3] (ii) directing a person to give a sworn statement setting out all his or her interests in property,[4] and (iii) for the examination of any person about their affairs or the affairs of some other person.[5] The final intended outcome is usually a forfeiture order in relation to the person’s property.
  8. A forfeiture order need not depend upon the conviction of the person for an offence, nor is it affected by the acquittal of the person.[6] However, it is common for persons in respect of whom orders are sought under the Act to be charged with one or more offences. This case raises questions as to whether a person charged with an indictable offence can be required (a) to provide a sworn statement as to his or her property interests and (b) to be examined as to the person’s affairs, relating to the subject matter of the criminal charges.

Procedural background

  1. On 28 September 2015, the Commissioner sought and obtained from a judge in the Common Law Division ex parte orders with respect to the two respondents who are natural persons, namely Ahmad Elzein and Abbas Elzein, in relation to property “associated with” each of them and with the third respondent, Elzein’s Mixed Business Pty Ltd. (As the proceedings commenced by the Commissioner have been referred to this Court to answer certain questions noted below, it will be convenient to maintain the roles of the parties in the initial process; accordingly, the persons against whom the Commissioner applied for relief will be referred to as the respondents.)
  2. The first set of orders, being restraining orders under  s 18  of the  Proceeds of Crime Act , are not the subject of the proceeding in this Court. However, further orders for the provision of sworn statements and for examination are challenged as being beyond power.
  3. On the day following the making of the ex parte orders, namely 29 September 2015, the first and second respondents were arrested and charged with a number of offences under the Customs Act 1901 (Cth) and the Criminal Code (Cth) alleging dealing with tobacco products, including “illegally imported cigarettes”, with intent to defraud the Commonwealth of excise tax.
  4. The court attendance notices originally served on the first respondent contained 31 charges; those served on the second respondent involved 37 charges. In August and September 2016 a number of the original charges were withdrawn and dismissed. The remaining charges are pending in the Local Court and committal hearings have been fixed for March and April 2017.
  5. Copies of the orders made on 28 September 2015 and certain supplementary orders made on 16 December 2015 were served on the respondents. The orders for the provision of sworn statements, made pursuant to ss 39(1)(ca) and (d), required that the sworn statements be given within 28 days of the date of service of the orders. Implicit in the agreed fact that the respondents have not provided sworn statements in accordance with those orders is a further fact, namely that the relevant time has elapsed, without being extended.
  6. Schedule 4 to the orders of 28 September 2015 provided a “form of sworn statement”, which included three parts. The first required the provision of full particulars of “the nature and extent of your property or where applicable, the property of the company of which you are a director”. The particulars required included the identification and location of the property, the approximate date of acquisition, and details of any liability in relation to the property, including payments made in respect of that liability. Part 2 required full particulars of current liabilities of the person and of a company of which he or she was a director; Part 3 required full particulars of “any dispositions or dealing with property since 1 January 2014”.
  7. The particular orders with respect to Abbas Elzein referred to property in which he had an interest (order 15) and property in which the corporate respondent, of which he was said to be a director, had an interest (order 19). The order with respect to Ahmad Elzein (order 17) sought a statement of his interests in property.
  8. In contrast, the relevant orders pursuant to s 180 of the Act were in the following terms:
“20. Pursuant to section 180 of the Act, the following persons are to be examined about the affairs of Ahmad Elzein:
a. Ahmad Elzein
b. Abbas Elzein ....
21. Pursuant to section 180 of the Act, the following persons are to be examined about the affairs of Abbas Elzein:
a. Ahmad Elzein;
b. Abbas Elzein ....”

In similar form, orders 22-24 required that the first and second respondents be examined about the affairs of the third respondent, the affairs of Zhara Hussain Elzein and the affairs of Zeinab Dakdouk. The last two persons were identified as the wives of the individual respondents. As such, their affairs were an available subject of examination orders directed to their husbands.[7]

  1. On 22 July 2016 each of the first and second respondents was served with an “examination notice”, pursuant to the orders for examination made under s 180 of the Act. The notices required the respondents to attend for examination at a specified time and place and to produce documents identified in a schedule. The schedule included documents relating to:

(8) and (9) any corporate or business entity, including the third respondent, and including a range of financial records, and

(10) the importation, purchase and sale of tobacco related products, by any of the business entities covered in pars (8) and (9), referred to above.

  1. The notices did not otherwise specify the subject matter of the proposed examinations. Each was issued by a senior member of the Administrative Appeals Tribunal. Neither referred to the order of the Court pursuant to which the examinations were to take place.
  2. On 27 October 2016, the respondents sought orders in the Common Law Division with respect to the ex parte orders made on 28 September 2015. Each of the orders affecting the first and second respondents and requiring the provision of sworn statements and attendance for examination was sought to be set aside.

Orders for determination of separate questions

  1. On 29 November 2016 the parties obtained, by consent, orders from a judge in the Common Law Division for the determination of separate questions and the referral of the proceedings to this Court. The separate questions were as follows:
“(1) Upon their proper construction, do  ss 180  and  39 (1) of the  Proceeds of Crime Act 2002  (Cth) (‘Act’), when read with  s 319  of the Act, permit an examination order or an order for the provision of sworn statements, respectively, to be made against a person who is a defendant in concurrent criminal proceedings in relation to a related subject matter?
(2) If yes, are ss 180 and  39 (1) of the Act invalid to that extent, on the ground that to permit such orders to be made in those circumstances:
(a) would contravene Ch III of the Constitution by reason that it would be an impermissible interference with:
(i) alleged essential features of the judicial power of the Commonwealth, namely the court’s inherent power to control abuse of process or the adversarial nature of a criminal trial (as described in X7 v Australian Crime Commission [2013] HCA 29; (2013) 248 CLR 92); or
(ii) the manner in which a criminal trial takes place before a court exercising the judicial power of the Commonwealth; or
(b) would contravene s 80 of the Constitution by reason that it would be an impermissible alteration of fundamental features of ‘trial ... by jury’ on an indictment for an offence against a law of the Commonwealth?
(3) If yes, should ss 180 and 39(1) of the Act be read down to avoid any operation that would be constitutionally invalid?
(4) If yes, how should ss 180 and 39(1) of the Act be read down?
(5) Upon their proper construction, do sub-ss 319(2)(a) and (3) of the Act validly prohibit a court from staying or setting aside, or disclose a legislative intention that a court should not stay or set aside, orders made under s 39(1) or s 180, on the ground that criminal proceedings have been instituted against the person subject to the proceedings under the Act, even if the Court concludes that the circumstances pertaining to the proceedings under the Act are the same as, or substantially similar to, the circumstances pertaining to the criminal proceedings?”

Construction of statutory provisions – Questions 1 and 5

(1) form of questions

  1. The separate questions correctly (in part) asked the Court first to construe the statute, before considering questions of constitutional validity. Unfortunately, that exercise was partly buried in question 5, which must be addressed now. The conventional wisdom is that there may need to be a three-step process in determining questions of constitutional validity. The first step is to construe the statute; the second is to determine whether, so construed, the statute contravenes a constitutional constraint on legislative power, and the third, if there be inconsistency, is to consider whether the statute can be read down so as to allow it a more limited, but valid, sphere of operation. The last step is provided for in s 15A of the Acts Interpretation Act 1901 (Cth), providing that a provision of an Act shall be construed so as not to exceed the legislative power of the Parliament. As Leeming JA recently explained in Lazarus v Independent Commission Against Corruption,[8] dealing with the Independent Commission Against Corruption Amendment (Validation) Act 2015 (NSW):
“In a case such as this, the first step is to construe the statute: .... If, putting to one side questions of validity, the Validation Act would not apply to the applicants, then the analysis would cease, and the court would not reach the constitutional questions. ... I would reject the applicants’ submissions on construction, save for the possible impact of the constitutional questions. Accordingly, the second step is to determine the constitutional issue, and to do so on the basis of the construction tentatively reached. ... I would reject the applicants’ constitutional submissions as well. The result is to confirm the construction previously reached. It is therefore not necessary to take the further step and consider whether in truth s 31 [of the Interpretation Act 1987 (NSW)] is capable of operation upon cl 35 of the Validation Act .... Nor is it necessary to consider the extent to which avoidance of constitutional invalidity warrants favouring an alternative reasonably open construction....”
  1. However, this was not a case like Coleman v Power where the construction of the statute was undertaken in circumstances where the facts were known, having been established at a trial. Those facts provided a vehicle within which to consider the meaning of the term “insulting” in the relevant Queensland legislation, which was said to contravene the implied freedom of political communication.
  2. The present case provides no such ready vehicle for the construction exercise; the facts have not yet been determined. For example, there is no suggestion that an order to provide sworn statements or to attend for examination cannot properly be made in some circumstances. Rather, the question is whether they can be made in the present circumstances, which, in turn, gives rise to the antecedent question, what are the present circumstances? The circumstances, as defined in question 1 before the Court, involve the person subject to the order being “a defendant in concurrent criminal proceedings in relation to a related subject matter”. This language involves a high degree of imprecision, and even obscurity. Even the term “concurrent” is unfortunate. It should be taken to refer to the relevant examination or sworn statement being required at a time following the laying of charges and before the completion of the criminal proceedings. If the question were directed to the time at which the orders were made, the short response would be that they were made prior to the apprehension and charging of the respondents. In another case, the question might arise with respect to orders made following the entry of guilty pleas in respect of the charges, and in the expectation that they would not be given effect until after the person concerned had been sentenced.
  3. There is also imprecision in the characterisation of the proceedings as being “in relation to a related subject matter”. On one view, that requires an analysis of the subject matter of the proposed examinations and statements and a comparison with the alleged criminal conduct. If, as seems an essential part of the respondents’ case, the statute must be read subject to an implied temporal limitation, it is an unconventional exercise to ask a court to draft the scope of an implied limitation in circumstances where the known facts are exiguous.
  4. Question 1 suffers from a further defect in that it assumes that the power to require a statement under s 39(1), and the power to require an examination under s 180, will allow for identical answers. The better course is to construe the provisions separately until satisfied that their language, history and context do not require different answers.
  5. Because it involves a construction question, reference should be made to the terms of question 5.[9] Although that question follows two questions involving the possible reading down of s 180 and s 39(1) to avoid constitutional invalidity, question 5, dealing with the proper construction of s 319, does not identify any such reading down. The formulation of the questions, taken as a whole, is somewhat curious because it is at least arguable that any invalidity in the scheme of the legislation arises from the limitations imposed on the grant of a stay under s 319. If that provision were found to be partly or wholly invalid, the real question might be whether it should be read down, rather than whether ss 180 and 39 were invalid unless read down.
  6. Because, as question 1 recognises, the provisions relating to examination orders and the provision of statements should be understood in the context of the provisions relating to stays in s 319, the operation of the specific provisions referred to in question 5, namely s 319(2)(a) and (3), should be considered in combination with the two parts of question 1.
  7. There is one further aspect of question 5 which may affect the consideration of question 1. The characterisation of the criminal proceedings in question 5 is clearly intended to reflect the language of s 319(3), although it does not do so precisely. By contrast, the characterisation of the criminal proceedings in question 1 is significantly divorced from the language of s 319(3).

(2) terms of s 180 and related provisions

  1.  Section 180  of the  Proceeds of Crime Act  reads as follows:[10]
180 Examination orders relating to restraining orders
(1) If a *restraining order is in force, the court that made the restraining order, or any other court that could have made the restraining order, may make an order (an examination order) for the *examination of any person, including:
(a) a person whose property is, or a person who has or claims an *interest in property that is, the subject of the restraining order; or
(b) a person who is a *suspect in relation to the restraining order; or
(c) the spouse or *de facto partner of a person referred to in paragraph (a) or (b);
about the *affairs of a person referred to in paragraph (a), (b) or (c).
(2) The *examination order ceases to have effect if the *restraining order to which it relates ceases to have effect.
  1. The “affairs” of a person is a term of broad import, defined in  Pt 6 - 2  (Dictionary):
338 Dictionary
In this Act, unless the contrary intention appears:
...
affairs of a person includes, but is not limited to:
(a) the nature and location of property of the person or property in which the person has an interest; and
(b) any activities of the person that are, or may be, relevant to whether or not the person has engaged in unlawful activity of a kind relevant to the making of an order under this Act.
  1. Three points of significance arise from  s 180.  First, the making of an examination order is dependent upon there being a “restraining order” in force. That precondition is emphasised by provisions relating to the giving of a written notice for the examination. Thus, pursuant to  s 183 , the examination notice can only be given where an examination order is in force and no application has been made to revoke the restraining order.[11]
  2. Secondly, the power to make an examination order is in terms discretionary, subs (1) providing that a court “may make” an examination order. No implied duty arises in circumstances where the statute clearly states where an order is mandatory, as for example in respect of restraining orders referred to in  s 18(1). 
  3. Thirdly,  Pt 2 - 1 , dealing with restraining orders, also contains a power to exclude property from the ambit of a restraining order.[12] However, such an order cannot be made if the Commissioner “has not been given a reasonable opportunity to conduct examinations in relation to the application.”[13] Thus, to impose an implied constraint on either the making of an examination order, or the conduct of the examination pursuant to the order, may be to prevent persons with property the subject of a restraining order from seeking to have it excluded from the restraint.
  4.  Section 180  imposes no other explicit constraints on the making of an examination order, so long as the restraining order remains in force.[14] On the other hand,  s 183 , dealing with examination notices, expressly excludes a particular form of constraint, namely the institution of criminal proceedings. The section relevantly provides:
183 Examination notices
(1) An *approved examiner may, on application by the *responsible authority, give to a person who is the subject of an *examination order a written notice (an examination notice) for the *examination of the person.
(2) However, the *approved examiner must not give the *examination notice if:
(a) an application has been made under  section 42  for the *restraining order to which the notice relates to be revoked; and
(b) the court to which the application is made orders that *examinations are not to proceed.
(3) The fact that criminal proceedings have been instituted or have commenced (whether or not under this Act) does not prevent the *approved examiner giving the *examination notice.
  1.  Section 183(3)  uses the language of criminal proceedings being “instituted” or “commenced”, as does s 319, discussed below. It is sufficient in this State to refer to the “commencement” of criminal proceedings, which occurs when a police officer or public officer issues a court attendance notice and files a notice pursuant to s 173 of the Criminal Procedure Act 1986 (NSW); or when another person issues a court attendance notice signed by a registrar and filed in the court. In the present case, numerous court attendance notices were issued and listed before Downing Centre Local Court on 15 December 2015. Each was said to have been created by the prosecutor on 29 September 2015. It may be accepted that all the relevant criminal charges involved proceedings commenced on the earlier date.
  2. It is then necessary to advert to the restrictions on the use of material disclosed in the course of an examination. First, the examination is to take place in private and, subject to the express provision for persons who are entitled to be present, attendance is at the discretion of the examiner.[15] The examiner may also restrict the publication of specified material.[16]
  3. Part 3-6 governs “Disclosure of information”, including information obtained as the “direct result” of an examination conducted under Pt 3-1. Section 266A then imposes limits on the use of disclosed information:
266A Disclosure
(1) This section applies if a person obtains information:
(a) as a direct result of:
(i) the person being given a sworn statement under an order made under paragraph 39(1)(ca), (d) or (da); or
(ii) the exercise of a power (by the person or someone else), or performance (by the person) of a function, under Part 31, 32, 33, 34 or 35; or
(b) as a result of a disclosure, or a series of disclosures, under this section.
(2) The person may disclose the information to an authority described in an item of the following table for a purpose described in that item if:
(a) the person believes on reasonable grounds that the disclosure will serve that purpose; and
(b) a court has not made an order prohibiting the disclosure of the information to the authority for that purpose.
...
Limits on use of information disclosed
(3) In civil or *criminal proceedings against a person who gave an answer or produced a document in an *examination, none of the following that is disclosed under this section is admissible in evidence against the person:
(a) the answer or document;
(b) information contained in the answer or document.
(4) Subsection (3) does not apply in:
(a) *criminal proceedings for giving false or misleading information; or
(b) proceedings on an application under this Act; or
(c) proceedings ancillary to an application under this Act; or
(d) proceedings for enforcement of a *confiscation order; or
(e) civil proceedings for or in respect of a right or liability the document confers or imposes.
Note: Subsections (3) and (4) reflect section 198.
(5) In a *criminal proceeding against a person who produced or made available a document under a *production order, none of the following that is disclosed under this section is admissible in evidence against the person:
(a) the document;
(b) information contained in the document.
...
  1. Central to the submissions in this case were certain general provisions, which appear in Ch 5 of the Act. First, s 315 deals with the nature of certain proceedings:
315 Proceedings are civil, not criminal
(1) Proceedings on an application for a *restraining order or a *confiscation order are not criminal proceedings.
(2) Except in relation to an offence under this Act:
(a) the rules of construction applicable only in relation to the criminal law do not apply in the interpretation of this Act; and
(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.
  1. The application of this provision with respect to examination orders will be addressed below; the same question arises as to the operation of s 319. Section 319, expressly referred to in questions 1 and 5, relates to an application for a stay of proceedings under the Act.
319 Stay of proceedings
(1) A court may stay proceedings (the POCA proceedings) under this Act that are not criminal proceedings if the court considers that it is in the interests of justice to do so.
(2) The court must not stay the POCA proceedings on any or all of the following grounds:
(a) on the ground that criminal proceedings have been, are proposed to be or may be instituted or commenced (whether or not under this Act) against the person subject to the POCA proceedings;
(b) on the ground that criminal proceedings have been, are proposed to be or may be instituted or commenced (whether or not under this Act) against another person in respect of matters relating to the subject matter of the POCA proceedings;
(c) on the ground that:
(i) a person may consider it necessary to give evidence, or to call evidence from another person, in the POCA proceedings; and
(ii) the evidence is or may be relevant (to whatever extent) to a matter that is, or may be, at issue in criminal proceedings that have been, are proposed to be or may be instituted or commenced (whether or not under this Act) against the person or any other person;
(d) on the ground that POCA proceedings in relation to another person have been, are to be or may be stayed.
(3) Paragraph (2)(a) applies even if the circumstances pertaining to the POCA proceedings are or may be the same as, or substantially similar to, the circumstances pertaining to the criminal proceedings.
(4) Paragraph (2)(b) applies even if the subject matter of the POCA proceedings is the same as, or substantially similar to, the matter at issue in the criminal proceedings.
(5) Paragraph (2)(d) applies even if the staying of the POCA proceedings would avoid a multiplicity of POCA proceedings.
(6) In considering whether a stay of the POCA proceedings is in the interests of justice, the court must have regard to the following matters:
(a) that the POCA proceedings, and any criminal proceedings of a kind referred to in paragraph (2)(a) or (b), should proceed as expeditiously as possible;
(b) the cost and inconvenience to the Commonwealth of retaining property to which the POCA proceeding relates and being unable to expeditiously realise its proceeds;
(c) the risk of a *proceeds of crime authority suffering any prejudice (whether general or specific) in relation to the conduct of the POCA proceedings if the proceedings were stayed;
(d) whether any prejudice that a person (other than a proceeds of crime authority) would suffer if the POCA proceedings were not stayed may be addressed by the court by means other than a stay of the proceedings;
(e) any orders (other than an order for the stay of the POCA proceedings) that the court could make to address any prejudice that a person (other than a proceeds of crime authority) would suffer if the proceedings were not stayed.
Note: Examples of orders the court could make to address any prejudice that a person (other than a proceeds of crime authority) would suffer if the POCA proceedings were not stayed include an order under section 319A (closed court) or an order prohibiting the disclosure of information.
  1. If s 319 is engaged, it is clear from its terms that it anticipates that proceedings under the Act may be commenced or maintained against a person charged with a criminal offence and that “the circumstances pertaining to” the proceedings under the Act are or may be “the same as, or substantially similar to” the circumstances pertaining to the criminal proceedings.
  2. The obscurity of this language may be explained by the need to deal with a variety of proceedings under the Act and a range of potential criminal offences. It was assumed in the present case, no doubt correctly, that if an issue in the pending criminal proceedings was whether the defendants had imported particular tobacco products, an examination under the Act might involve questions directed to that issue. Because s 319(2) imposes constraints on the grounds on which a stay may be granted, the critical point is that the relevant constraint extends to questioning as to core elements of the criminal proceedings, the peripheral operation being unimportant. It is not, therefore, necessary to explore the outer limits of the constraint.
  3. The next question is whether s 319 is engaged in relation to an examination order. The section operates with respect to proceedings under the  Proceeds of Crime Act  “that are not criminal proceedings”.  Section 315(1)  states that proceedings on an application for a restraining order or a confiscation order are not criminal proceedings. The term “restraining order” is defined to mean “an order under  section 17 ,  18 , 19,  20  or  20A  that is in force.”[17] These sections deal with different circumstances in which restraining orders may be made; the discussion set out below with respect to  s 17 , dealing with persons convicted of or charged with indictable offences, may be treated as covering the other sections. While the existence of a restraining order is a precondition to an examination order, there is no other necessary connection between them. In other words, there is no reason to read the phrase “an application for a restraining order” in  s 315(1)  as referring to an application for an examination order.
  4. As explained above, the term “confiscation order” is also a generic term and means “a forfeiture order, a pecuniary penalty order, a literary proceeds order or an unexplained wealth order.”[18] It does not include an examination order and, by parity of reasoning, an application for a confiscation order may not include an application for an examination order.
  5. It follows that  s 315(1)  does not in its terms apply to proceedings on an application for an examination order. The Court’s attention was not drawn to any other provision of the  Proceeds of Crime Act  which expressly provides that proceedings on an application for an examination order are not criminal proceedings. Nevertheless, because the conduct of an examination is in effect ancillary to the scheme in relation to restraining orders and forfeiture orders, there is no reason to suppose that, for the purposes of the  Proceeds of Crime Act , the conduct of an examination is a criminal proceeding. Nor is it in any relevant sense ancillary to the proceedings in relation to the criminal charges. On the other hand, there are various offences created under the  Proceeds of Crime Act , which could give rise to criminal proceedings, to which  s 319  would not apply. Accordingly, it should be accepted that  s 319  has operation with respect to proceedings for examination orders and the conduct of examinations. The submissions in this Court did not address that question, but assumed that was so.

(3) conclusions as to operation of  s 180 

  1. Does  s 180  authorise an examination of an accused person by an authority of the prosecuting state with respect to matters related to the alleged offence? The first step in answering the question is to acknowledge that an affirmative answer would tend to diminish the immunity enjoyed under the general law by a person charged with a criminal offence from being required by the state to answer questions relating to the alleged offence.[19] That immunity under the general law (often referred to as the “right to silence”) is a fundamental characteristic of the system of criminal justice in this country.[20] For Parliament to derogate from that immunity requires a clear legislative statement to that effect.[21] At this stage of the inquiry, it is assumed that the Parliament has power to reduce the scope of the immunity if it expresses that purpose in clear language. However, it is because of the intrusion on the immunity that the effect must be expressed in clear language.
  2. The terms of  s 180  are neutral; by itself that section cannot provide an affirmative answer to the question. However,  s 180  is not to be viewed in isolation. First, an examination under that section depends on there being a restraining order in force. A restraining order may be made under  s 17  (indictable offences) or  s 18  (serious offences). Addressing the terms of  s 17 , such an order can only be made in respect of property of, or “subject to the effective control of”,[22] a person who has been convicted of, charged with, or is proposed to be charged with an indictable offence,[23] referred to as the “suspect”. Where the “suspect” has not been convicted of an indictable offence, an authorised officer must state that he or she “suspects that the suspect committed the offence”.[24]  Section 18  provides a similar regime with respect to “serious offences”.
  3. It is therefore clear that a restraining order can be made with respect to the property of a person who has been charged with an indictable offence. However, it does not necessarily follow from that fact that the power to conduct an examination extends to such a person.
  4. A restraining order remains in force until it is revoked.[25] Further, there are various circumstances in which a restraining order will cease to have effect, pursuant to  poca2002160 /s45.html" class="autolink_findacts">s 45.[26]  Section 45(1)  deals with the termination of proceedings, including the withdrawal of charges.  Section 45(2)  is in the following terms:
45 Cessation of certain restraining orders
...
Restraining orders if there is no conviction etc.
(2) A *restraining order ceases to be in force if, within 28 days after the order was made:
(a) the *suspect has not been convicted of, or charged with, the offence, or at least one offence, to which the restraining order relates; and
(b) there is no *confiscation order or application for a confiscation order that relates to the offence.
  1. The ultimate purpose of a restraining order is to prevent disposal of the property prior to the making of a forfeiture order under Pt 2- 2  of the  Proceeds of Crime Act . The term “confiscation order” in  s 45  includes a “forfeiture order”.[27] It is therefore apparent from the terms of  s 45  that when the authority seeks a restraining order in relation to a person who has not been charged, it expects that he or she will be charged within a period not exceeding 28 days and that it will apply for a forfeiture order within the same period. As an examination order can only be made while there is a restraining order in place, it is clearly contemplated that, at least in the usual case, the examination will be undertaken in relation to a person who has been charged with one or more offences relating to the property the subject of the restraining order. There is thus a clear intention that s 180 authorises an examination of a person subject to current charges, with respect to matters related to the charges.
  2. That conclusion is confirmed by reference to the provisions relating to examination notices and the conduct of examinations. Thus,  s 183 , which provides for the issue of an examination notice, states that the institution or commencement of criminal proceedings “does not prevent the approved examiner giving the examination notice.”[28] Further, in relation to the conduct of an examination,  s 186(4)  provides that the institution of criminal proceedings “does not prevent the examination of a person.”
  3. The primary basis upon which the Commissioner sought to maintain a right to conduct an examination with respect to an accused person (that is, after charges have been laid) was the limitation on the power of a court to order a stay of proceedings which, it was submitted, includes an application for an examination order and the conduct of an examination. So much is apparent from the express references in the separate questions to  s 319  of the  Proceeds of Crime Act .

(4) operation of  s 319 

  1. The starting point is  s 319(1) , which expressly acknowledges the jurisdiction of a court to stay proceedings if the court considers that to do so is “in the interests of justice”.
  2. The remaining subsections have two functions. The first, to be found in subs (2) with further explication in subss (3), (4) and (5), imposes a constraint on the grounds on which proceedings under the Act may be stayed. The second function, in subs (6), is to identify factors which the court must take into account in considering whether to grant a stay. On the one hand, the mandatory considerations will usually weigh in the balance against the grant of a stay; on the other hand, they recognise that there may be prejudice to a person if the proceedings are not stayed and, further, that there are orders the court may make which will address (in the sense of seeking to reduce) any such prejudice.[29]
  3. Reading the section as a whole, it is clear that the prohibited grounds in subs (2) are not prohibited considerations. In other words, potential prejudice is to be taken into account, in accordance with subs (6), in circumstances where there are criminal proceedings pending against the person the subject of the proceedings under the Act. To say that the court “must not stay” the proceedings under the Act on the ground that criminal proceedings have been commenced against the person, is not to say that the existence of the criminal proceedings is to be disregarded. The existence of the criminal proceedings will be, in many cases, the source of some potential prejudice arising from the pursuit of proceedings under the Act, but it will not be enough in itself.
  4. There is a tension within these provisions. They accept that a court might order a stay simply on the basis that an accused should not be questioned about the subject matter of the criminal proceedings, whilst those proceedings remain on foot. However, they also assume that the court considering a stay could take account of the prejudice flowing from that situation, but must then address means of reducing or avoiding the prejudice by steps other than staying the proceedings.
  5. The purpose underlying  s 319(2)  reflects the sections dealing with the issue of examination notices and the conduct of examinations discussed above. It must be read in the context of those provisions which expressly permit an examination of a suspect after a charge has been laid. It would be incoherent to allow an examination to be stayed on the sole ground that it will occur in the precise circumstances in which the Act expressly provides that such an examination may occur.
  6.  Section 319 , in its present form, was introduced by an amendment following the judgment of the High Court in Commissioner of the Australian Federal Police v Zhao.[30] That case involved a forfeiture order sought by the Commissioner at a time when criminal charges were pending. Ms Zhao was the wife of the accused person. Her husband, Xing Jin, alleged that his defence of those proceedings “may be affected if he is obliged to defend the forfeiture proceedings before his criminal trial is held.”[31] A stay of the forfeiture proceedings was refused at first instance, but granted by the Court of Appeal in Victoria. That decision was upheld by the High Court.
  7. In support of his application for a stay the accused stated:[32]
“I am concerned that if I have to make a detailed affidavit or be cross-examined regarding the purchase of the Restrained Property and source of any relevant funds that there is a real risk that any such evidence will prejudice my criminal case.
...
If the civil matters are not stayed I will have to make a decision as to whether to [waive] my privilege and right to silence. This would be at the expense of the civil proceedings.”
  1. At that time, s 319 of the  Proceeds of Crime Act  simply provided:
319 Stay of proceedings
The fact that criminal proceedings have been instituted or have commenced (whether or not under this Act) is not a ground on which a court may stay proceedings under this Act that are not criminal proceedings.
  1. Referring to this provision, the Court stated in Zhao at [30]:
“ Section 319 , which is set out above, clearly contemplates that where criminal proceedings are brought with respect to an offence related to civil proceedings for restraining orders or forfeiture orders, an application for a stay may be brought. Its terms suggest that a person charged with an offence which is relevant to forfeiture or other civil proceedings brought under the POC Act must do more than point to the existence of criminal proceedings in order to obtain a stay of the civil proceedings.”
  1. The critical passages in the reasoning of the Court were as follows:
“[42] The risk of prejudice to the second respondent [the person charged] if a stay is not granted in the forfeiture proceedings and the exclusion proceedings is plain. It is not necessary for the second respondent to say any more than he did on the application for a stay in order to identify that risk, given that the offences and the circumstances relevant to both proceedings are substantially identical.
[43] The Commissioner contends, as the primary judge had held, that it was necessary that the second respondent state the specific matters of prejudice before a stay could be contemplated. However, to require the second respondent to do so would be to make the risk of prejudice a reality by requiring him to reveal information about his defence, the very situation which an order for a stay seeks to avoid. ...
...
[45] During the course of argument, at a point when the power given by s 266A of the POC Act to disclose to a prosecutor evidence obtained by compulsion was mentioned, the Commissioner was at pains to reassure the Court that he does not contend that s 266A provides a licence to communicate information obtained in the civil proceedings to the prosecuting authorities. The Commissioner emphasised that the Proceeds of Crime Litigation section is not regarded as an arm of the prosecution, which appears to have been the perception of the New South Wales Crime Commission in [Lee No 2].
[46] Regardless of the conduct in [Lee No 2], it would not be correct to approach a matter such as this on the basis that a wrong would be committed. However, s 266A would not render the provision of the second respondent's evidence to the prosecution unlawful. Even if it could not be used as evidence against him, its possession by the prosecution might affect his defence. The Court of Appeal's view, that protective orders would not suffice to remove the risk of prejudice to the second respondent's defence, is clearly correct.
[47] The prospect that civil proceedings may prejudice a criminal trial and that such prejudice may require a stay of the civil proceedings is hardly novel. In some jurisdictions, procedures are provided for making an application for a stay in such circumstances.[33] The risk of prejudice in a case such as this is real. The second respondent can point to a risk of prejudice; the Commissioner cannot.
[48] So far as concerns the first respondent [the wife of the accused], the Court of Appeal was correct to identify as relevant that to permit the forfeiture proceedings to proceed against her would produce two sets of proceedings, rather than one. The principle of the common law that seeks to prevent a multiplicity of actions has a long history and cannot be ignored.[34] ...
Conclusion and orders
[49] It may be accepted that criminal proceedings are not an impediment to civil proceedings under the POC Act, but it does not follow that it is intended that forfeiture proceedings brought under the POC Act will continue where to do so would put a respondent at risk of prejudice in his or her criminal trial.
[50] The interests of justice are not served by requiring the second respondent to defend the forfeiture proceedings or pursue the exclusion proceedings before his criminal proceedings are finalised, especially since the Commissioner will suffer no relevant prejudice from a delay in the continuation of the forfeiture proceedings.”
  1. It is clear from the Minister’s second reading speech that part of the purpose of amendments made to the Proceeds of Crime Act in 2016[35] (“the 2016 amendments”) was to overcome the perceived effect of the judgment in Zhao. Thus the Minister stated:[36]
“The amendments clarify the principles a court should consider in granting a stay of confiscation proceedings where there are related criminal matters, and outlines the grounds on which a stay is not to be granted.
Whilst a court may still exercise its discretion to stay civil proceedings if it considers that it is in the interests of justice to do so, the amendments make it clear that it is not enough for a person to say that they, or someone else, may face charges or have to give evidence in a related criminal trial at a future date. There must be something more than that – the risk of prejudice must be explained to a court.
This Bill recognises that the right to a fair trial is of paramount importance in the criminal justice system. Hence the amendments clarify the civil court procedures available in  Proceeds of Crime Act  proceedings to reduce the risk of prejudice to an accused in related concurrent or subsequent criminal proceedings.”
  1. Further, the amendments to  s 319  were addressed in the explanatory memorandum which accompanied the Bill, in the following terms:[37]
“Secondly, new  subsections 319(2) -(5) clarify where a court must not grant a stay. These principles are designed to clarify the intention that concurrent civil and criminal proceedings are possible, and require specific consideration of the individual circumstances and associated risks of prejudice. The amendments clarify that proceedings under the Act may only be stayed where the granting of a stay is the only means of addressing the circumstances (ie. the prejudice that may result to a concurrent or subsequent criminal trial). The proposed amendments are primarily designed to ensure that the court will consider the individual circumstances of the proceedings, including the nature of the overlap between the civil and criminal proceedings, and prevent the risk that a person need only claim a risk of prejudice but not provide evidence explaining the nature of that risk.”
  1. This statement of purpose failed to address the difficulty identified by the High Court in Zhao, namely that to require an applicant for a stay to explain how his or her answers to questions, or the provision of a written statement as to the source of funds to purchase property, would cause a risk of prejudice to his or her defence, would be to create the prejudice which the stay seeks to avoid. The present form of  s 319(2) -(5) does not advance the situation greatly in favour of refusal of a stay. Even in the old form, the High Court stated that the terms of the section “suggest that a person charged with an offence which is relevant to forfeiture or other civil proceedings brought under the POC Act must do more than point to the existence of criminal proceedings in order to obtain a stay of the civil proceedings.” [38]
  2. Further, even if the evidence given at a compulsory examination could not be used against the accused, “its possession by the prosecution might affect his defence.”[39] That form of prejudice arose because s 266A (as it then stood) did not render unlawful the provision of the evidence of the accused to the prosecution.
  3. There is one further aspect of the reasoning in Zhao which should be noted. The Commissioner had suggested that the evidence at the examination could be given in closed court. The Court rejected that submission stating:[40]
“Closing the court so that the Commissioner might progress forfeiture proceedings and receive the second respondent's evidence does not qualify as a proper reason for departing from the [open court] principle.”
  1. Why that was so was not explained. In a different context, the Court had considered the validity of Queensland legislation permitting the court to declare a particular organisation to be a “criminal organisation”, based in part upon information identified as “criminal intelligence”, which was required to be given in closed court and in the absence of the respondent.[41] For reasons which will be addressed further in relation to the validity of the provisions, the Court acknowledged the ability of the Queensland Supreme Court to deal with confidential matters in closed court and in the absence of a party, where the interests of justice required that step be taken.

(5) the 2016 amendments

(a) power to close the court

  1. It is convenient to deal first with the last point, namely the use of a “closed court”. A new s 319A included in the  Proceeds of Crime Act , as part of the 2016 amendments, dealt expressly with closed courts.
319A Closed court
A court may order that proceedings under this Act (other than criminal proceedings) be heard, in whole or in part, in closed court if the court considers that the order is necessary to prevent interference with the administration of criminal justice.
  1. The applications before the court in Zhao included an application by the Commissioner for a forfeiture order under  s 49 , and a defensive application for an exclusion order by the accused person, under s 73 of the  Proceeds of Crime Act . Both applications were to be heard by a court. In that context, the conferral of a power to close the court pursuant to  s 319A  is relevant to the concern expressed in Zhao that such an order would not be appropriate merely so that the Commissioner might proceed with the forfeiture proceedings and the accused might give evidence in resisting such an order. However, that concern has no relevance to an examination under  Pt 3 - 1 , Div 3. The questioning by the approved examiner will not take place in a court and  s 188(1)  provides that the examination “is to take place in private.” That is a factor which is to be taken into account pursuant to s 319(6) and which did not apply in the proceedings in Zhao.

(b) non-disclosure orders

  1. The current form of  s 266A  dealing with disclosure of information has been set out above. This provision was varied by the 2016 amendments by adding to subs (2) the new paragraph (b) permitting disclosure only where “a court has not made an order prohibiting the disclosure of the information”.
  2. The purpose of the new  s 266A(2)(b)  is tolerably clear. It provides a mechanism whereby disclosure to a prosecuting authority is prohibited during, for example, the pendency of the criminal proceedings. The complexity of the statutory regime, however, casts some doubt on how that provision should operate. When read with  s 319(6)(e) , it may be anticipated that the order would be made by the court in which the stay was sought. On the other hand, it might also be made, in anticipation, by the court making the examination order.
  3. The 2016 amendment Act stated, in Sch 1 [1]:
 Subsection 266A(2) 
Omit all the words after “in that item”, substitute:
if:
(a) the person believes on reasonable grounds that the disclosure will serve that purpose; and
(b) a court has not made an order prohibiting the disclosure of the information to the authority for that purpose.

(This amendment appears to have deleted the table in subs (2). If so, it is at least arguable that there is now no power to disclose the information obtained in the examination to anyone.)

  1. There is a difficulty in being sure that the concern as to prejudice by lawful disclosure, identified in Zhao, may not still arise. The problem is that  s 266A  applies to information obtained “as a direct result of ... the person being given a sworn statement under an order made under paragraph 39(1)(ca) ... or the exercise of a power”, including the conduct of an examination under  Pt 3 - 1 , Div 3. In the present case, there were two relevant sets of orders and, although these reasons are currently considering the orders with respect to examinations, it is convenient to refer in this context also to the order to provide a written statement.
  2. Under  s 39(1)(ca)  the order is “to give a sworn statement to a specified person”. Each of the orders made pursuant to this provision required that the recipient was to be “the Commissioner of the Australian Federal Police or his nominated delegate”. According to the table contained within  s 266A(2)  (before it was possibly deleted) the persons to whom information might be disclosed included, relevantly, an authority of the Commonwealth that has the function of investigating or prosecuting offences against a law of the Commonwealth. Although the parties directed no submissions to this issue, it may be assumed that the Commissioner was himself such an authority. The form and effectiveness of an order prohibiting disclosure by the Commissioner to himself or herself is by no means obvious.
  3. With respect to an examination conducted under Pt 3- 1 , the answers to questions will no doubt be information obtained by the approved examiner, appointed under  s 183(5). [42] Approved examiners are persons appointed by the Minister from a class including members of the Administrative Appeals Tribunal[43] and legal practitioners with five years' seniority; former judges and magistrates also fall within the class. The persons entitled to be present at the examination include the proceeds of crime authority which applied for the restraining order, which may, in turn, be either the Commissioner of the Australian Federal Police or the Director of Public Prosecutions (Cth).[44]
  4. Although the approved examiner may give directions about who may be present,[45] that appears to be by way of authorising additional persons to be present and not by way of exclusion of those who are entitled to be present.[46] Once again, the person holding the information as a result of such an examination will include the relevant authority from whom the information may need to be withheld, if a court order were made under  s 266A(2). 
  5. However, as nothing was relied on at the hearing as to such possible difficulties they should be put to one side for present purposes.

(c) grant of stay – prohibited and mandatory considerations

  1. While it may be said that in substance the new  s 319  reflects the purpose of the predecessor provision considered in Zhao, there are three respects in which it goes significantly further. First,  s 319(2)  spells out in greater detail the grounds which are unavailable on an application for a stay. They include not only the commencement of criminal proceedings, but also a proposal to commence and the possibility of commencing such proceedings. The prohibited grounds also extend to the need to give evidence (or call evidence) in the proceedings under the Act and the fact that the evidence is or may be relevant in any criminal proceedings.
  2. Secondly, and no doubt by reference to the consideration identified by the High Court in Zhao that “the offences and the circumstances relevant to both proceedings are substantially identical”,[47] subss (3) and (4) make explicit the application of subs (2) where the circumstances pertaining to both sets of proceedings are “the same as, or substantially similar to” each other.
  3. Thirdly, there are the mandatory considerations in subs (6). In some respects, the purport of the five listed factors is unclear. For example, the statement in par (a) that both sets of proceedings “should proceed as expeditiously as possible” may be a factor to be considered to the extent that it is relevant, or it may constitute a statement of principle which must be applied by the court. With respect to (b), the cost and inconvenience to the Commonwealth of retaining the property and being unable to realise its proceeds expeditiously should better be treated as a variable consideration, depending on the evidence placed before the court. In that sense, it is unexceptionable and covers, in specific terms, a similar ground to the question of prejudice to the proceeds of crime authority, to be considered under par (c).
  4. The effect of pars (d) and (e) is significant and has already been noted. They specifically pick up the ability of the court to close its proceedings, pursuant to  s 319A  and the power conferred on the court to prohibit disclosure of information obtained pursuant to a compulsory process.

(d) conclusions as to the effect of the 2016 amendments

  1. It follows from this discussion that the 2016 amendments have sought to vary the legislative regime in force at the time of Ms Zhao’s proceedings in three specific ways, each of which seeks to address aspects of the reasoning in Zhao.
  2. It is not in doubt that a law permitting the state to undertake a compulsory examination of a person accused of a criminal offence, in circumstances where that person enjoys no privilege against self-incrimination, involves a significant derogation from the immunity otherwise enjoyed. Accordingly, the question is whether such a power is now conferred in clear terms by the  Proceeds of Crime Act . If it is, there is a further issue to be addressed, concerning the constitutional validity of such legislation. To answer the latter question, it will be necessary to consider the protections given to avoid such a level of derogation from the fairness of the criminal trial as to interfere with an essential characteristic of such a trial. However, those protections are also relevant to the question of statutory interpretation; express attempts to provide protection will demonstrate that the Parliament has turned its attention to the scope and effect of the derogation from general law principles.
  3. The terms of the provisions discussed above and, in particular, (a) that the commencement of a criminal proceeding does not prevent the giving of an examination notice  (s 183(3))  or the conduct of an examination  (s 186(4)) ; (b) the power of the examiner to restrict the publication of material  (s 193) , and (c) the provisions of  s 319(2)  in relation to the factors that can and cannot be taken into account in staying proceedings, demonstrate with sufficient clarity that the commencement of criminal proceedings was not, of itself, a sufficient basis to stay the operation of an examination order allowing questioning in relation to the conduct the subject of the criminal charges. Accordingly, absent authority to the contrary, those provisions should be understood to operate despite the fact that criminal charges have been laid.

(6) authority on the construction issues

  1. The Court was taken to two decisions of intermediate appellate courts addressing this legislation. Before turning to those cases, each of which was decided shortly after the 2016 amendments commenced, it is appropriate to identify the transitional provisions relating to the amendments made in 2016.
  2. The 2016 Amendment Act commenced on 1 March 2016.[48] Schedule 1, cl 5, to that Act addressed the application of the amended provisions in the  Proceeds of Crime Act :
5 Application provisions
(1)  Subsection 266A(2)  of the  Proceeds of Crime Act 2002 , as amended by this Schedule, applies in relation to the disclosure of information after the commencement of this item, whether the information was obtained before or after that commencement.
...
(3)  Sections 319  and  319A  of the  Proceeds of Crime Act 2002 , as inserted by this Schedule, apply in relation to proceedings instituted or commenced before or after the commencement of this item.
  1. Commissioner of the Australian Federal Police v McGlone[49] dealt with an appeal from a decision of Button J, who had refused to make orders pursuant to  s 180  of the  Proceeds of Crime Act  with respect to three individuals. Two were the subject of criminal charges; the third was not. This Court upheld the refusal to make orders with respect to the first two respondents, but overturned the decision with respect to the third.
  2. Although the Court was conscious that the statute had been amended since the judgment of the primary judge, the reasoning addressed the statute in its earlier form. The primary discussion related to the proper exercise of the discretion and is therefore not relevant for present purposes. To the extent that the reasoning set out the applicable legal principles, it assumed that the case should be determined on the basis of the law as it stood at the time that the primary judge made his determination.
  3. The second authority was Commissioner of the Australian Federal Police v Cacu.[50] In that matter, orders had been made ex parte, pursuant to  s 39(1)(ca)  and (d) and  s 180(1)  of the  Proceeds of Crime Act . The primary judge (Adams J) had stayed the orders with respect to the respondent who was then the subject of criminal charges. The 2016 amendments in relation to  s 266A(2)  were noted, as was their application in relation to disclosure of information after 1 March 2016.[51] (The Court also said that an order under  s 266A(2)  may only be made by “a court having ‘proceeds jurisdiction’ in accordance with  s 335 ”; it is not clear why that is necessarily so.)
  4. The judgment in Cacu addressed  s 319  as it stood prior to the 2016 amendments and made reference to the decision in the High Court in Zhao.[52] There was no discussion of how the new provisions applied, apparently because the operation of those provisions was relied on only if it became necessary to re-exercise the discretion to grant a stay.[53] Critically for the outcome in that case, the Court accepted that “the power of an approved examiner to prevent or restrict disclosure does not extend to prohibiting disclosure which is in accordance with  s 266A(2). ”[54] That was a reference to the form of that provision prior to the 2016 amendments.
  5. In his concurring observations, Gleeson JA stated, with respect to the amended sections:[55]
“It is, at least, arguable when  s 266A  and  s 319  are read together with the whole of the POCA, that a disclosure prohibition order by a court under the  poca2002160 /s266a.html" class="autolink_findacts">s 266A(2)(b) might preclude the potential prejudice to an accused in the conduct of his or her defence rising to the level of a real risk of interference with the administration of justice. However, whether that would be so is not a question which needs to be determined in the present case.”
  1. Although the reason why the question did not arise is not expressed, it is apparent from the reasons of Meagher JA that no reliance was placed upon the amended provisions as a basis for the Court to intervene on appeal. If that be correct, the parties were in error. The appeal to this Court from a judge of the court is an appeal by way of rehearing.[56] Absent some contrary indication in the statute, the court “must decide an appeal by applying to the circumstances as they exist, when the appeal is dealt with, the law which then operates to determine the rights and liabilities of the parties”.[57] In any event, other than the final suggestion of Gleeson JA, there was no discussion of the legislation following the 2016 amendments.
  2. On the other hand, the cases illustrate a number of factors which have been taken into account in considering whether to grant a stay (or not make an examination order in the first place), including (a) any delay on the part of the Commissioner in seeking an order; (b) the nature of the offence charged (and in particular whether the offence or one of the offences involves an offence under s 400.9 of the Criminal Code (Cth) of dealing with money reasonably suspected of being the proceeds of crime); (c) whether the trial on the criminal charges is imminent; (d) whether there is interference with the preparation for the criminal trial, and (e) the nature of the prejudice to each party generally.
  3. These factors are relevant not only to the exercise of the discretion to stay, but also demonstrate that a construction of the Act which removes the scope for a stay based only upon the existence of the criminal proceedings constrains the scope of the court’s discretion, but does not prevent its exercise in the interests of justice.
  4. It is also to be recalled that the Court in Zhao thought it significant that even if information acquired through compulsory process could not be used against the accused, “its possession by the prosecution might affect his defence.”[58] In circumstances where appropriate orders can be made preventing its disclosure to the prosecution (which should include all police involved with the investigation, prosecution or trial of the offender), that concern would be removed, or at least greatly reduced.
  5. Accordingly, the provisions should be understood in their terms as allowing an examination order obtained ex parte to stand after criminal charges have been laid, even though the examination may go to the conduct alleged to constitute the offences and, if appropriate protective orders have been made under s 266A(2), the examination may, absent some other countervailing consideration, be allowed to proceed.

(7) power to require statement – s 39(1)(ca) and (d)

  1. Many of the considerations set out above also apply to the power of the court to make an “ancillary order” pursuant to s 39(1)(ca) and (d), directing a suspect in relation to a restraining order to give a sworn statement to a specified person setting out all his or her interests in property, his or her liabilities and particulars of and dealings with the property.
  2. As has been noted above, the recipient of the statement under the ex parte orders was to be the Commissioner. That need not be so and one can envisage circumstances where the order should properly be made requiring that the statement be given to another specified person, being someone without authority in respect of the investigation or prosecution of criminal charges against the suspect or the owner of the property.
  3. Under s 26(4), the court is required to consider an application for a restraining order without notice having been given if the authority requests the court to do so. The equivalent provision with respect to ancillary orders, which will often be made by the court that made the restraining order, is s 39(3A). However, the court is empowered to require notice to be given before finally determining the application.[59] The privilege against self-incrimination is removed as a basis for not giving a sworn statement in accordance with such an order.[60]
  4. An order requiring a written statement differs from an order for examination. Although the scope of the written statement may be extensive, its preparation is in the control of the person subject to the order and the scope of the material may be more confined than the scope of an examination into a person’s affairs.
  5. On the other hand, there is no provision equivalent to s 183(3) or s 186(4), to the effect that such a written statement may be required despite the fact that criminal proceedings have been commenced. Nevertheless, the orders available under s 39(1) are ancillary to a restraining order, and the latter can only be made where a person has been convicted of, or charged with, or is proposed to be charged with, an indictable offence.[61]
  6. Further, the scheme for “information gathering” under Ch 3 of the Act involves both the examination and the production of documents.[62] A statement as to the ownership of and dealings in property is part of the information gathering process, as well as being ancillary to the making of a restraining order. Accordingly, it is clear that there is power to make orders as to written statements with respect to a person who has been charged with criminal offences and to enforce such an order against the person, once charged, if made (as here) ex parte with respect to a person not yet charged.

(8) answers to questions 1 and 5

  1. Question 1 should be answered, “Yes”. Question 5 should also be answered in the affirmative, so far as it involves a question of interpretation; however, there are issues of validity within the question and a full answer must await consideration of those issues.

Validity of legislative scheme – Question 2

  1. On the basis that each of ss 180 and 39(1)(ca) and (d) allows for orders to be made against a person who is charged with a criminal offence, it is necessary to address question 2, which asked if the provisions, so construed, were invalid on the basis that they would “contravene Ch III of the Constitution” or “would contravene s 80 of the Constitution”. The formulation of the question leaves something to be desired, but the contravention of Ch III appears to be on one of the following bases, namely:
  2. It is unclear whether the references in question 2(b) to s 80 of the Constitution and the possibility of the alteration of fundamental features of trial by jury raise two separate issues, or whether the former merely identifies a specific provision encapsulating the latter. As s 80 is part of Ch III of the Constitution it is unlikely that separate issues were intended. Rather, the written submissions confirmed, these varying formulations drew on statements in particular judgments in the High Court, either identifying essential characteristics of a court exercising criminal jurisdiction or an essential attribute of judicial power generally.
  3. Identifying such statements in the caselaw may help in articulating principles, but the particular issue cannot be decided by reference to generalities. Thus, in considering the validity of provisions of the Criminal Organisation Act 2009 (Qld), the joint reasons stated in Condon v Pompano:[63]
“As these submissions demonstrate, it is readily possible to take statements made in previous cases in explaining why the legislation under consideration in each was invalid and, by joining them together in a logical sequence, argue that the relevant provisions of the CO Act are invalid. But the constitutional validity of one law cannot be decided simply by taking what has been said in earlier decisions of the Court about the validity of other laws and assuming, without examination, that what is said in the earlier decisions can be applied to the legislation now under consideration. The critical questions are whether and why what has been said can be applied.”
  1. Furthermore, some of the passages relied upon by the respondents to support a claim of invalidity derived from cases in which constitutional validity had not been in issue. One example was X7 v Australian Crime Commission,[64] a case dealing with the scope of powers of examination conferred on the Australian Crime Commission, with respect to persons charged with criminal offences. In describing the impact of such provisions on the accusatorial process, Hayne and Bell JJ stated:[65]
“Even if the answers given at a compulsory examination are kept secret, and therefore cannot be used directly or indirectly by those responsible for investigating and prosecuting the matters charged, the requirement to give answers, after being charged, would fundamentally alter the accusatorial judicial process that begins with the laying of a charge and culminates in the accusatorial (and adversarial) trial in the courtroom. No longer could the accused person decide the course which he or she should adopt at trial, in answer to the charge, according only to the strength of the prosecution's case as revealed by the material provided by the prosecution before trial, or to the strength of the evidence led by the prosecution at the trial. The accused person would have to decide the course to be followed in light of that material and in light of any self-incriminatory answers which he or she had been compelled to give at an examination conducted after the charge was laid. That is, the accused person would have to decide what plea to enter, what evidence to challenge and what evidence to give or lead at trial according to what answers he or she had given at the examination. The accused person is thus prejudiced in his or her defence of the charge that has been laid by being required to answer questions about the subject matter of the pending charge.”
  1. Taking that statement out of context, there was a tendency in the submissions to treat it as a statement of the constitutional limits on the power of the Parliament to legislate. However, in the following paragraph, Hayne and Bell JJ continued: “if an alteration of that kind is to be made to the criminal justice system by statute, it must be made clearly by express words or by necessary intendment.” In other words, the prior statement was the identification of an important aspect of the principle of statutory interpretation, commonly sourced to O’Connor J’s reasons in Potter v Minahan,[66] that “[i]t is in the last degree improbable that the legislature would overthrow fundamental principles, infringe rights, or depart from the general system of law, without expressing its intention with irresistible clearness”.
  2. By way of contrast, Gageler J said in Condon v Pompano:[67]
“There should be no doubt and no room for misunderstanding. Procedural fairness is an immutable characteristic of a court. No court in Australia can be required by statute to adopt an unfair procedure. If a procedure cannot be adopted without unfairness, then it cannot be required of a court. ‘[A]brogation of natural justice’, to adopt the language of the explanatory notes to the Bill for the COA[68], is anathema to Ch III of the Constitution.”
  1. Yet it should be noted that statements of principle made in such absolute language are not to be applied like a statutory rule, in all situations. For example, in Condon itself, that statement did not spell invalidity for the scheme under the Queensland legislation by which “criminal intelligence” could be relied upon for the purpose of declaring an organisation to be a criminal organisation, even though some material had been considered in private and not disclosed to the respondent. Accepting that the potential force of such information, coupled with the public interest in its non-disclosure, gave rise to the possibility of abuse, the Court was nonetheless satisfied that the mechanism for control by the Supreme Court adequately met the risks. Accordingly, there was no inherent unfairness in a process that mirrored the mechanism by which a court deals with claims of public interest immunity.
  2. The respondents’ submissions in relation to invalidity focused upon a construction of the legislation which precluded the Court, in considering whether to stay the operation of certain orders, having regard to “prejudice” to the respondents. In other words, the assumption was that, although s 319(1) of the  Proceeds of Crime Act  envisaged that the Court could stay proceedings if it considered that it was in the interests of justice to do so, nevertheless the removal of specific grounds in the following provisions denied the Court the power, in determining whether to grant a stay, to consider prejudice to the respondents if the proceedings were not stayed. Reference was made to the statement in Nicholas v The Queen,[69] that “a court cannot be required or authorised to proceed in any manner which involves an abuse of process, which would render its proceedings inefficacious, or which brings or tends to bring the administration of justice into disrepute.”[70] Such a law would deny an essential characteristic of a court.[71]
  3. The submissions combined those statements of principle (which did not lead to invalidity in that case) with propositions derived from the judgments in Hammond v The Commonwealth.[72] In Hammond, Gibbs CJ stated that to examine an accused person, albeit in private, was very likely to “prejudice him in his defence” and would amount to a contempt of court.[73] Further, Murphy J said:[74]
“He has a constitutional right to trial by jury (see Constitution, s 80). It is inconsistent with that right that he now be subject to interrogation by the executive government or that his trial be prejudiced in any other manner. I would take this view whether or not he has privilege against self-incrimination.
To maintain the integrity of the administration of the judicial power of the Commonwealth an order should issue restraining the Commissioner from directing the plaintiff to answer any question which would tend to incriminate him in respect of the pending criminal proceedings.”
  1. Deane J in Hammond observed:[75]
“It suffices, for present purposes, to say that it is, in my view, clear that neither the Parliament nor the Executive Government of the Commonwealth or of a State is competent to prevent or prejudice the judicial exercise by a court of part of the judicial power of the Commonwealth by the type of interference with the due administration of justice in a particular case which would ordinarily constitute contempt of court.... [A]n extra-curial inquisitorial investigation of the involvement of a person who has been committed for trial in the matters which form the basis of the criminal proceedings against him constitutes ... an improper interference with the due administration of justice in the proceedings against him in the criminal court and contempt of court.”
  1. It is these passages, taken in combination, which formed the basis of the respondents’ submissions in the present case, and reveal the basis on which question 2 was formulated.
  2. There was a reading of Hammond which might have rendered unconstitutional any attempt by the Parliament to legislate so as to confer on a non-judicial body a power to interrogate a person with respect to the subject matter of a pending criminal charge. However, that was not the way in which Hammond, or other related authorities, including Hamilton v Oades,[76] were understood by any member of the Court in X7. Thus, French CJ and Crennan J (in dissent as to the outcome) concluded that the legislation contained safeguards that were “capable of preventing a compulsory examination from occasioning an unfair burden on the examinee when defending criminal charges.”[77] In the majority, the joint reasons of Hayne and Bell JJ stated:[78]
“Each of Hamilton v Oades and the earlier decisions in Rees v Kratzmann[79] and Mortimer v Brown[80] emphasised the fact that the compulsory examinations would be conducted in court and that, accordingly, the court would retain the power to prevent abuse of its process. In each decision, however, this Court rejected the submission that examination on matters which otherwise might attract the privilege against self-incrimination would, without more, amount to an abuse of process.”
  1. The third member of the majority in X7, Kiefel J, after noting that “[t]he accusatorial nature of the system of criminal justice involves not only the trial itself, but also pre-trial inquiries and investigations”,[81] and that “the conduct of an inquiry parallel to a person’s criminal prosecution would ordinarily constitute a contempt because the inquiry presents a real risk to the administration of criminal justice”,[82] then inquired whether the terms of the Australian Crime Commission Act 2002 (Cth) demonstrated that the Parliament had directed its attention to “an examination of a person as to offences with which that person is presently charged and whose trial is pending”.[83] The question was one of statutory construction.
  2. A similar question, in a different statutory context, came before the High Court in Lee v New South Wales Crime Commission.[84] French CJ noted:[85]
“The general provisions of s 25A(12) and (13), which allowed for evidence given in an examination under the ACC Act to be made available to persons charged with offences, did not expressly cover the case in which the evidence had been given by the person charged. There was, as Hayne and Bell JJ observed in their joint judgment in X7, ‘no express reference, anywhere in the ACC Act, to examination of a person who has been charged with, but not tried for, an offence about the subject matter of the pending charge.’[86] Words sufficiently general to include such a case had been used, but they did not deal directly or expressly with it.[87] However, the objects and character of a compulsory examination under the ACC Act differ materially from the objects and character of a compulsory examination under the CAR Act as the text of the ACC Act differs materially from that of the CAR Act.”
  1. Crennan J in Lee noted that it was “undoubtedly within the power of the legislature of New South Wales to alter the common law in relation to answering incriminating questions” and that similar issues had been considered in X7.[88] Crennan J then considered, in accordance with established rules of statutory construction, whether Parliament had expressed a clear intention that the powers of examination were to extend to the examination of a person charged with a criminal offence in relation to the conduct giving rise to the offence. The intended scope of the power had been expressly addressed, and the fact that the examination would be conducted in the Supreme Court allowed for protection against any unfair interference with the rights of the accused in the criminal prosecution.[89] After considering submissions relying on Hammond, Crennan J concluded:
“[153] Legislatures have from time to time qualified the right to remain silent before and at trial; for example, legislatures commonly require an accused person to give an alibi notice prior to trial,[90] and have otherwise made changes to the accusatorial process of a criminal trial[91] which intrude upon the forensic or procedural advantages the common law accords to an accused person before or at trial.
[154] If, without more, and notwithstanding the protections afforded to an examinee under the CAR Act, the loss of the identified forensic advantage occasions a real risk of interference with pending criminal proceedings, that risk is incidental to the achievement of legitimate legislative objects, and to that extent is implicitly authorised by the legislature of New South Wales.[92]”
  1. Although in dissent as to the outcome, Kiefel J adopted a similar approach to the question, stating:
“[164] The Supreme Court has inherent powers to prevent obstruction to the administration of criminal justice. It has powers which might be used in conjunction with an order for examination,[93] such as the power to limit the publication of information or to require an examination to be in private, and it has powers to prevent a contempt. The extent and efficacy of these powers, to limit the effects of an examination upon the appellants' trials and the conduct of their defence, which may be relevant to an exercise of discretion under s 31D(1)(a), are not relevant to the principal issue on the appeal, which concerns the construction of the CAR Act.
[165] The principal issue on this appeal is whether the CAR Act can be said to authorise the examination of the appellants given the circumstance that they have been charged and their trials are pending. The appellants submit that such an intention is not evident from the provisions of the CAR Act. An intention to abrogate or curtail a fundamental principle or to authorise conduct which constitutes a risk of prejudice to a fair trial must be clear and unambiguous. This submission draws upon the principle of legality.”
  1. Bell J, also in dissent in Lee, nevertheless identified the issue presented on the appeal as whether the State legislation “clearly authorises the compulsory examination of a person who is charged with a criminal offence about matters which are the subject of the charge.”[94]
  2. Gageler and Keane JJ, writing together, identified the relevant principles of statutory construction and stated with respect to Hammond:[95]
“We agree with the observation of French CJ and Crennan J in X7 v Australian Crime Commission that:[96]
‘It is critical to appreciate that the injunctive relief in Hammond was granted in circumstances where criminal proceedings were pending and the prosecution was to have access to evidence and information compulsorily obtained which could establish guilt of the offences, and which was subject only to a direct use immunity.’
Hammond is illustrative of the proposition that a real risk to the administration of justice can arise where there is a real risk that the practical consequence of an exercise of a coercive statutory power would be to give to the prosecution in criminal proceedings ‘advantages which the rules of procedure would otherwise deny’.[97] Hammond is not authority for the proposition that a real risk to the administration of justice necessarily, or presumptively, arises by reason only of the exercise of a statutory power to compel the examination on oath of a person against whom criminal proceedings have been commenced but not completed where the subject matter of the examination will overlap with the subject matter of the proceedings. The majority in X7 does not appear to us to have embraced such a proposition.”
  1. With respect to the decision in Hamilton v Oades, concerning an investigation before a registrar of an officer of a company in respect of whom there were pending criminal charges, Gageler and Keane JJ noted the basis on which the validity of the Companies Code was upheld:[98]
“Mason CJ observed that ‘[t]o the extent only that under the section rights of an accused person are denied and protections removed, an examination may ... amount to an interference with the administration of criminal justice’, but went on to observe that it is ‘well established that Parliament is able to “interfere” with established common law protections, including the right to refuse to answer questions the answers to which may tend to incriminate the person asked’.[99] In that respect, four aspects of the section were treated as being of particular significance: that it specifically abrogated the privilege against self-incrimination; that it specifically provided that answers which may otherwise have been privileged were not admissible in criminal proceedings; that it drew no distinction between pending and future proceedings; and that it explicitly empowered the Supreme Court to give directions concerning the examination.[100] In relation to the third of those aspects, Mason CJ quoted with approval the observation that:[101]
‘There would have been no difficulty, had that been the legislature's true intention, in adding a qualification that the express requirement to answer questions though they might tend to incriminate should not apply where charges had actually been laid, as opposed to being merely expected. The statute ... contains no such qualification’.
In relation to the fourth, Mason CJ observed that it may be that the Supreme Court in conducting the examination ‘may feel it necessary, in accordance with the statutory purpose, not to permit a particular question to be asked which would prejudice the examinee's fair trial’.[102]”
  1. While none of these cases turned upon questions of constitutional validity, as opposed to statutory construction, it may be accepted that, in accordance with the observations of Gageler J in Condon v Pompano,[103] a procedural scheme which constituted a substantial interference with the fairness of a criminal trial would not be constitutionally valid. However, there is no reason to treat the  Proceeds of Crime Act  as falling into such a category. The following considerations are relevant in that respect.
  2. First, while it is true that the interrogation which may be carried out pursuant to an examination order is not carried out before a court, the persons who may be appointed as approved examiners include members of the Administrative Appeals Tribunal and persons who have completed five years as a legal practitioner.
  3. More importantly, the orders for examinations and for the production of documents are interlocutory orders made by a court described as having “proceeds jurisdiction”, including courts having jurisdiction to deal with criminal matters on indictment in a relevant State or Territory, and the Federal Court.[104] The power to grant a stay is not limited to those courts, but would include those courts. In practical terms, the court invited to stay a proceeding will either be the court in which the trial may be brought (which may be, in New South Wales, the District Court) or it may be the Supreme Court in its general supervisory jurisdiction, or because it qualifies as a court with criminal jurisdiction in indictable matters.
  4. Secondly, it is necessary to understand the nature of the constraints on the jurisdiction to stay proceedings, imposed by  s 319  of the  Proceeds of Crime Act . Thus, the fact that proceedings may not be stayed simply on the ground that criminal proceedings have been commenced does little more than state the corollary of the conferral of a power to carry out an examination (or require the production of documents) of (or by) a person charged with an offence. It would be incoherent to confer the power in specified circumstances and, at the same time, permit a stay to be granted merely on the basis that the power had been exercised in those circumstances.
  5. Thirdly, the purpose revealed in s 319(6)(d) and (e), requiring the court to have regard to the power to avoid or mitigate any prejudice by orders other than a stay, is complementary to other provisions, discussed above, empowering the court to impose conditions, such as prohibiting the disclosure of information in accordance with  s 266A. 
  6. Once these limitations are understood, it follows that the power of a court invested with criminal jurisdiction in relation to a federal offence to take steps to protect the integrity of the criminal process is constrained only by the statutory prescription that the mere fact of laying of charges (and the other matters referred to in  s 319)  is insufficient to warrant a stay. The jurisdiction protective of the accused is otherwise unimpaired.
  7. Fourthly, as explained by Crennan J in Lee, the Parliament has authority to pass legislation affecting the way in which criminal trials are to proceed, including by way of pre-trial disclosure of matters such as alibi defences. Unless it can be said that Parliament can never authorise the interrogation of a person charged with a criminal offence in relation to the conduct giving rise to the alleged offence, a proposition which has been rejected, there is no sound basis for concluding that the  Proceeds of Crime Act  oversteps the constitutional boundaries of legislative power by imposing a scheme which may give rise to unfair trials, without adequate judicial protection.

Answers to separate Questions

  1. It follows that the answer to question 1 is “Yes”, and that each part of question 2 should be answered “No”. Questions 3 and 4 do not arise.
  2. The formulation of question 5 is awkward and involves two limbs, namely whether the specified provisions (a) validly prohibit the staying or setting aside of orders, and (b) reveal a legislative intention that the Court should not stay or set aside orders, on a commonly formulated ground. The first limb raises a constitutional question, while the second limb raises a question of statutory construction. They should be answered in the correct order and in the following terms:
Question 5 (1)  Section 319(2)(a)  relevantly provides that a court must not stay proceedings under the  Proceeds of Crime Act  on the ground that criminal proceedings have been instituted against the person, even if the circumstances pertaining to each set of proceedings are the same as or substantially similar to each other. The section is to be construed as prohibiting a stay based solely on that ground and despite the fact that the circumstances the subject of each proceeding will be the same or substantially similar.
(2) So construed, subss 319(2)(a) and (3) are not invalid on the basis that they conflict with the requirements of Ch III of the Constitution.
  1. SIMPSON JA: These proceedings concern the construction and constitutional validity of certain provisions of the  Proceeds of Crime Act 2002  (Cth).

The  Proceeds of Crime Act 

  1. By  s 18(1)(a)  of the  Proceeds of Crime Act  (hereafter “the PoC Act”) the Supreme Court (being a court with appropriate jurisdiction under the PoC Act – see s 335) must make an order (a “restraining order”) that property must not be disposed of or otherwise dealt with by any person if certain conditions are met. The conditions include (but are not limited to):
  2. By s 39, where a court has made a restraining order, it may make any ancillary orders it considers appropriate, including, specifically, an order directing the person suspected of the offence (“the suspect” – see the Dictionary) to give a sworn statement, setting out all of his or her interests in property, and his or her liabilities.
  3. By s 180, where a restraining order is in force, the court may make an order (an “examination order”) for the examination of any person whose property is, or who claims an interest in, property the subject of the restraining order, or a person who is a suspect in relation to the restraining order. The examination order may relate to the affairs (broadly defined in the Dictionary) of any person who may be the subject of an examination order.
  4. By ss 195 and 196 failure to attend for examination as required, and refusal or failure to be sworn or make an affirmation, and to answer questions required by the examiner are criminal offences.
  5. By s 49 a court with jurisdiction under the PoC Act must make an order that property specified in the order is forfeited to the Commonwealth (a “forfeiture order”, also called a “confiscation order” – see the Dictionary) if certain conditions are satisfied.
  6. Other provisions, not necessary here to detail, are directed to the implementation of the regime outlined above. By s 315 proceedings for a restraining order or a confiscation order are civil, not criminal, proceedings.
  7. By s 319(1) a court may stay proceedings under the PoC Act that are not criminal proceedings if it considers that it is the interests of justice to do so. However, by s 319(2) a court is prohibited from staying PoC Act proceedings on a variety of specified grounds, including:
“(a) ... that criminal proceedings have been, are proposed to be or may be instituted or commenced (whether or not under [the PoC Act]) against the person subject to [the PoC Act] proceedings;
(b) on the ground that criminal proceedings have been, are proposed to be or may be instituted or commenced (whether or not under [the PoC Act]) against another person in respect of matters relating to the subject matter of [the PoC Act] proceedings.”
  1. By sub-s (3) of s 319 the prohibitions on a court staying proceedings as a ground that criminal proceedings have been, are proposed to be, or may be instituted or commenced applies even if the circumstances pertaining to the PoC Act proceedings are or may be the same as, or substantially similar to, the circumstances pertaining to the criminal proceedings.

Background facts

  1. The first and second respondents to the present proceedings are Ahmad Elzein and Abbas Elzein. Abbas Elzein is the sole director of Elzein’s Mixed Business Pty Ltd, the third respondent.
  2. On 28 September 2015 the Commissioner of the Australian Federal Police (“the Commissioner”) applied to the Supreme Court for orders under the PoC Act. On the same day, in response to the application, a variety of orders were made including:
  3. The following day, 29 September 2015, Abbas and Ahmad Elzein were arrested and charged with a number of offences (relating to the unlawful importation of tobacco products) under the Customs Act 1901 (Cth) and the Criminal Code (Cth). Subsequently, some of the charges were withdrawn but others remained outstanding.
  4. On 22 July 2016 the Commissioner served on Abbas and Ahmad Elzein examination notices requiring them to attend at specified places and on specified dates and times for the purpose of the s 180 examinations.
  5. By amended notice of motion filed on 27 October 2016 in the Supreme Court, each respondent, invoking Uniform Civil Procedure Rules 2005 (NSW) 36.16, sought orders that the orders directing the provision of sworn statements and the orders for examination concerning the affairs of Abbas and Ahmad Elzein be set aside.
  6. On 29 November 2016, pursuant to UCPR 28.2, Rothman J, by consent, made orders for the separate trial of five questions said to arise on the notice of motion, and ordered that the proceedings be removed into this Court.
  7. The questions were formulated as follows:
“1. Upon their proper construction, do  ss 180  and  39 (1) of the  Proceeds of Crime Act 2002  (Cth) (“Act”), when read with s 319 of the Act, permit an examination order or an order for the provision of sworn statements, respectively, to be made against a person who is a defendant in concurrent criminal proceedings in relation to a related subject matter?
2. If yes, are ss 180 and 39(1) of the Act invalid to that extent, on the ground that to permit such orders to be made in those circumstances:
a) would contravene Ch III of the Constitution by reason that it would be an impermissible interference with:
i. alleged essential features of the judicial power of the Commonwealth, namely the court’s inherent power to control abuse of process or the adversarial nature of a criminal trial (as described in X7 v Australian Crime Commission [2013] HCA 29; (2013) 248 CLR 92); or
ii. the manner in which a criminal trial takes place before a court exercising the judicial power of the Commonwealth; or
b) would contravene s 80 of the Constitution by reason that it would be an impermissible alteration of fundamental features of ‘trial ... by jury’ on an indictment for an offence against a law of the Commonwealth?
3. If yes, should ss 180 and 39(1) of the Act be read down to avoid any operation that would be constitutionally invalid?
4. If yes, how should ss 180 and 39(1) of the Act be read down?
5. Upon their proper construction, do sub-ss 319(2)(a) and (3) of the Act validly prohibit a court from staying or setting aside, or disclose a legislative intention that a court should not stay or set aside, orders made under s 39(1) or s 180, on the ground that criminal proceedings have been instituted against the person subject to the proceedings under the Act, even if the Court concludes that the circumstances pertaining to the proceedings under the Act are the same as, or substantially similar to, the circumstances pertaining to the criminal proceedings?”

Questions 1 and 5

  1. Question 1 is limited to a question of statutory construction. Question 5, if one passes over the intrusion of the stray word “validly”, also raises a question of statutory construction. (To the extent that the use of the word “validly” is intended to raise a question of constitutional validity, it does not appear to raise any issue additional to those raised in Question 2, and perhaps Question 3.)
  2. It appears that the question was formulated with a view to making a contention that s 319 does not permit the exercise of the compulsory powers granted under s 39 (sworn statements) or s 180 (examination) where the person the subject of the orders has been charged with a criminal offence: see X7 v Australian Crime Commission (2013) 248 CLR 92; [2013] HCA 29; and Commissioner of the Australian Federal Police v Zhao (2015) 255 CLR 46; [2015] HCA 5.
  3. No submissions on behalf of the respondents directly related to this question. It may, therefore, be dealt with briefly.
  4. The appellant in Zhao was the wife of Xing Jin, who was charged with offences against the Criminal Code. A restraining order under s 19 of the PoC Act was made with respect to certain property. The property included the matrimonial home of which Ms Zhao was the registered proprietor. The Commissioner applied, pursuant to s 59, for forfeiture of that property under s 49. At that time s 319 was in the following terms:
“The fact that criminal proceedings have been instituted or have commenced (whether or not under this Act) is not a ground on which a court may stay proceedings under this Act that are not criminal proceedings.”
  1. A judge of the County Court of Victoria refused an application made on behalf of Xing Jin and Zhao for a stay of the forfeiture proceedings. The Court of Appeal of the Supreme Court of Victoria allowed an appeal and set aside the judgment and orders and ordered that the proceedings under the PoC Act be stayed until the hearing and determination of the criminal proceedings or further order: Zhao v Commissioner of the Australian Federal Police (2014) 43 VR 187; [2014] VSCA 137.
  2. The High Court upheld that decision. It recognised that:
“Section 319 ... clearly contemplates that where criminal proceedings are brought with respect to an offence related to civil proceedings for restraining orders or forfeiture orders, an application for a stay may be brought. Its terms suggest that a person charged with an offence which is relevant to forfeiture or other civil proceedings brought under the POC Act must do more than point to the existence of criminal proceedings in order to obtain a stay of the civil proceedings.” (at [30])
  1. Nevertheless, the High Court held that the risk of prejudice to Xing Jin’s criminal trial was “plain” ([42]), and “real” ([47]).
  2. By the Crimes Legislation Amendment (Proceeds of Crime and Other Measures) Act 2016 (Cth), and for the express purpose of counteracting the effect of the decision in Zhao, the Parliament amended s 319 by repealing the section as it previously existed and substituting:
“Stay of proceedings
(1) A court may stay proceedings (the POCA proceedings) under this Act that are not criminal proceedings if the court considers that it is in the interests of justice to do so.
(2) The court must not stay the POCA proceedings on any or all of the following grounds:
(a) on the ground that criminal proceedings have been, are proposed to be or may be instituted or commenced (whether or not under this Act) against the person subject to the POCA proceedings;
(b) on the ground that criminal proceedings have been, are proposed to be or may be instituted or commenced (whether or not under this Act) against another person in respect of matters relating to the subject matter of the POCA proceedings;
(c) on the ground that:
(i) a person may consider it necessary to give evidence, or to call evidence from another person, in the POCA proceedings; and
(ii) the evidence is or may be relevant (to whatever extent) to a matter that is, or may be, at issue in criminal proceedings that have been, are proposed to be or may be instituted or commenced (whether or not under this Act) against the person or any other person;
(d) on the ground that POCA proceedings in relation to another person have been, are to be or may be stayed.
(3) Paragraph (2)(a) applies even if the circumstances pertaining to the POCA proceedings are or may be the same as, or substantially similar to, the circumstances pertaining to the criminal proceedings.
(4) Paragraph (2)(b) applies even if the subject matter of the POCA proceedings is the same as, or substantially similar to, the matter at issue in the criminal proceedings.
(5) Paragraph (2)(d) applies even if the staying of the POCA proceedings would avoid a multiplicity of POCA proceedings.
(6) In considering whether a stay of the POCA proceedings is in the interests of justice, the court must have regard to the following matters:
(a) that the POCA proceedings, and any criminal proceedings of a kind referred to in paragraph (2)(a) or (b), should proceed as expeditiously as possible;
(b) the cost and inconvenience to the Commonwealth of retaining property to which the POCA proceeding relates and being unable to expeditiously realise its proceeds;
(c) the risk of a * proceeds of crime authority suffering any prejudice (whether general or specific) in relation to the conduct of the POCA proceedings if the proceedings were stayed;
(d) whether any prejudice that a person (other than a proceeds of crime authority) would suffer if the POCA proceedings were not stayed may be addressed by the court by means other than a stay of the proceedings;
(e) any orders (other than an order for the stay of the POCA proceedings) that the court could make to address any prejudice that a person (other than a proceeds of crime authority) would suffer if the proceedings were not stayed.
Note: Examples of orders the court could make to address any prejudice that a person (other than a proceeds of crime authority) would suffer if the POCA proceedings were not stayed include an order under section 319A (closed court) or an order prohibiting the disclosure of information.”
  1. The Explanatory Memorandum prepared for the purpose of putting the amending legislation contained the following:
“46 The High Court handed down its decision in [Zhao] on 12 February 2015. The High Court upheld the decision to stay non-conviction based forfeiture proceedings under the POC Act until criminal charges against the respondent had been determined. The Bill seeks to clarify the operation of the POC Act following this decision.
47 The Bill inserts a new section 319 which does a number of things.
48 Firstly, new subsection 319(1) clarifies that the court may grant a stay of civil proceedings under the POC Act if the court considers that it is in the interests of justice to do so.
49 Secondly, new subsections 319(2)-(5) clarify where a court must not grant a stay. These principles are designed to clarify the intention that concurrent civil and criminal proceedings are possible, and require specific consideration of the individual circumstances and associated risks of prejudice. The amendments clarify that proceedings under the Act may only be stayed where the granting of a stay is the only means of addressing the circumstances (ie. the prejudice that may result to a concurrent or subsequent criminal trial). The proposed amendments are primarily designed to ensure that the court will consider the individual circumstances of the proceedings, including the nature of the overlap between the civil and criminal proceedings, and prevent the risk that a person need only claim a risk of prejudice but not provide evidence explaining the nature of that risk.” (italics added)
  1. The Explanatory Memorandum confirms the construction I would in any event have placed on the language of the amended s 319 (see Acts Interpretation Act 1901 (Cth), s 15AB). Section 319 expressly permits an examination order and an order for the provision of a sworn statement in circumstances where the person against whom the order has been made is a defendant in concurrent criminal proceedings (Question 1). Each discloses a legislative intention to that effect (Question 5).
  2. I would answer each of Questions 1 and 5 “Yes”.
  3. I agree with Basten JA that no constitutional invalidity has been established and accordingly would answer Question 2 “No”. It follows that Questions 3 and 4 do not arise.

**********

Amendments

08 February 2018 - [11] - inserting "under" after forfeiture.

[80] - adding apostrophe to years'

09 February 2018 - [138] - amending "subs(1)(a)" to read "subs(1)(d)" in first bullet point.

[148] and [149] - Correcting spelling of "Ahmad".

[156] - amending end of penultimate sentence before quote.

[1]  Proceeds of Crime Act ,  s 5. 
[2]  Proceeds of Crime Act , Dictionary, proceeds of crime authority, which refers to both the Director of Public Prosecutions (Cth) and Commissioner of the Australian Federal Police.
[3]  Proceeds of Crime Act ,  ss 17 - 20A .
[4]  Proceeds of Crime Act , s 39(1)(ca).
[5]  Proceeds of Crime Act ,  s 180(1). 
[6] See, for example,  Proceeds of Crime Act ,  s 49(2)  and  s 51. 
[7]  Proceeds of Crime Act ,  s 180(1)(c). 
[8] [2017] NSWCA 37 at [72], referring to Coleman v Power (2004) 220 CLR 1; [2004] HCA 39 at [3] (Gleeson CJ), [158] (Gummow and Hayne JJ), [219]-[221] (Kirby J) and [306] (Heydon J); North Australian Aboriginal Justice Agency Ltd v Northern Territory of Australia (2015) 256 CLR 569; [2015] HCA 41 at [11] (French CJ, Kiefel and Bell JJ); Australian Communications and Media Authority v Today FM (Sydney) Pty Ltd (2015) 255 CLR 352; [2015] HCA 7 at [66] (Gageler J).
[9] See [25] above.
[10] Each defined term is asterisked the first time it appears in a section; definitions of asterisked terms are found in the Dictionary at s 338 of the Act.
[11]  Proceeds of Crime Act ,  s 183(1)  and (2).
[12]  Proceeds of Crime Act ,  s 29. 
[13]  Proceeds of Crime Act , s 32(b).
[14]  Proceeds of Crime Act ,  s 180(2). 
[15]  Proceeds of Crime Act ,  s 188. 
[16]  Proceeds of Crime Act ,  s 193. 
[17]  Proceeds of Crime Act , Dictionary, restraining order.
[18] Proceeds of Crime Act, Dictionary, confiscation order.
[19] Hammond v Commonwealth [1982] HCA 42; (1982) 152 CLR 188 at 202-203 (Brennan J).
[20] X7 v Australian Crime Commission (2013) 248 CLR 92; [2013] HCA 29 at [104] (Hayne and Bell JJ).
[21] X7 at [125] (Hayne and Bell JJ).
[22]  Proceeds of Crime Act , s 17(2)(c).
[23]  Proceeds of Crime Act ,  s 17(1)(d). 
[24]  Proceeds of Crime Act ,  s 17(3)(a). 
[25]  Proceeds of Crime Act ,  ss 41  and  42 (3).
[26] There are qualifications to the effect of a revocation in s 180E.
[27]  Proceeds of Crime Act , Dictionary, confiscation order.
[28] See at [39] above.
[29]  Proceeds of Crime Act ,  s 319(6)(d)  and (e).
[30] (2015) 255 CLR 46; [2015] HCA 5.
[31] Zhao at [1].
[32] Zhao at [9].
[33] For example, United Kingdom, Civil Procedure Rules, Practice Direction 23A, par 11A.
[34] Colonial Sugar Refining Co Ltd v Attorney-General for the Commonwealth [1912] HCA 94; (1912) 15 CLR 182 at 193; [1912] HCA 94; Eastern Extension, Australasia and China Telegraph Co Ltd v Federal Commissioner of Taxation [1923] HCA 62; (1923) 33 CLR 426 at 441; [1923] HCA 62.
[35] Crimes Legislation Amendment (Proceeds of Crime and Other Measures) Act 2016 (Cth) (“2016 Amendment Act”), Sch 1.
[36] Hansard, House of Representatives, 26 November 2015, p 13826.
[37] Explanatory Memorandum – Crimes Legislation Amendment (Proceeds of Crime and Other Measures) Bill 2015, par 49.
[38] Zhao at [30].
[39] Zhao at [46].
[40] Zhao at [44].
[41] Condon v Pompano Pty Ltd (2013) 252 CLR 38; [2013] HCA 7.
[42] Inserted by Crimes Legislation Amendment (Powers, Offences and Other Measures) Act 2015 (Cth), Sch 14, Pt 3, item 11, commenced 27 November 2015.
[43] Proceeds of Crime Regulations 2002 (Cth), reg 12.
[44]  Proceeds of Crime Act ,  s 188(3) ; Dictionary, responsible authority and proceeds of crime authority.
[45]  Proceeds of Crime Act ,  s 188(2). 
[46]  Proceeds of Crime Act ,  s 188(3)(d). 
[47] Zhao at [42].
[48] 2016 Amendment Act, s 2, Table, item 2.
[49] [2016] NSWCA 103 (Beazley P, Ward and Gleeson JJA agreeing).
[50] [2017] NSWCA 5 (Meagher JA, Sackville AJA agreeing and Gleeson JA also agreeing with some further reasons).
[51] Cacu at [18].
[52] Cacu at [39]-[41].
[53] Cacu at [54].
[54] Cacu at [73].
[55] Cacu at [87].
[56] Supreme Court Act 1970 (NSW), s 75A(5).
[57] Victorian Stevedoring and General Contracting Co Pty Ltd and Meakes v Dignan [1931] HCA 34; (1931) 46 CLR 73 at 107 (Dixon J); see also CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67 and 76 at [112] (McHugh, Gummow and Callinan JJ).
[58] Zhao at [46].
[59]  Proceeds of Crime Act ,  s 39(4A). 
[60]  Proceeds of Crime Act ,  s 39A. 
[61]  Proceeds of Crime Act , relevantly,  s 17. 
[62]  Proceeds of Crime Act ,  s 185(2). 
[63] Condon at [137] (Hayne, Crennan, Kiefel and Bell JJ).
[64] (2013) 248 CLR 92; [2013] HCA 29.
[65] X7 at [124] (emphasis in original).
[66] [1908] HCA 63; (1908) 7 CLR 277 at 304.
[67] Condon at [194].
[68] Queensland, Legislative Assembly, Criminal Organisation Bill 2009, Explanatory Notes, p 3.
[69] (1998) 193 CLR 173; [1998] HCA 9.
[70] Nicholas at [74] (Gaudron J).
[71] See also Gummow J at [145]-[146].
[72] [1982] HCA 42; (1982) 152 CLR 188.
[73] Hammond at 198 (Gibbs CJ).
[74] Hammond at 201.
[75] Hammond at 206.
[76] [1989] HCA 21; (1989) 166 CLR 486.
[77] X7 at [57].
[78] X7 at [140].
[79] (1965) 114 CLR 63.
[80] [1970] HCA 4; (1970) 122 CLR 493.
[81] X7 at [160].
[82] X7 at [161].
[83] X7 at [162].
[84] (2013) 251 CLR 196; [2013] HCA 39.
[85] Lee at [15].
[86] X7 at [83].
[87] X7 at [83].
[88] Lee at [125].
[89] Lee at [138].
[90] Criminal Procedure Act 1986 (NSW), s 150. See also Criminal Procedure Act 2009 (Vic), s 190; Criminal Law Consolidation Act 1935 (SA), s 285C; Criminal Code (Qld), s 590A; Criminal Procedure Act 2004 (WA), s 96(3)(a); Criminal Code (Tas), s 368A.
[91] As to which see X7 at [48].
[92] Hamilton v Oades [1989] HCA 21; (1989) 166 CLR 486 at 498-499, 510, 516-517.
[93] See, for instance, Hamilton v Oades... at 498-499.
[94] Lee at [260].
[95] Lee at [322].
[96] X7 at [36].
[97] Pioneer Concrete (Vic) Pty Ltd v Trade Practices Commission [1982] HCA 65; (1982) 152 CLR 460 at 467-468; Environment Protection Authority v Caltex Refining Co Pty Ltd [1993] HCA 74; (1993) 178 CLR 477 at 559.
[98] Lee at [315].
[99] Hamilton v Oades at 494.
[100] Hamilton v Oades at 496, 498.
[101] Hamilton v Oades at 498, quoting Re Gordon (1988) 18 FCR 366 at 372.
[102] Hamilton v Oades at 499.
[103] Set out at [114] above.
[104]  Proceeds of Crime Act ,  s 335. 

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