On 18 October 2018, Smith J delivered the decision in Commissioner of the Australian Federal Police v P [2018] WASC 314.
In that case the applicants for exclusion applications had been served with notices to attend an examination under the Proceeds of Crime Act 2002 (POCA), but failed to appear at the examination.
The Commissioner sought orders section 29 of the POCA (which provides for the making of ancillary orders), inter alia “that each of the Respondents remedy their on-going failure to attend an examination under Part 3-1 of the Proceeds of Crime Act 2002 (Cth) (the Act), in breach of the examination order by Banks-Smith J on 8 March 2017, by attending an examination within 56 days of the date of this order”.
The orders were opposed on the basis that it was contended that the Court had no power to make them under section 39.
As for the ancillary power generally, Smith J observed at [34]:
In Woodcroft v Director of Public Prosecutions, Giles JA considered the scope and effect of the power to make ancillary orders in s 48(1) of the 1987 Act. His Honour observed:[14]
(a) an ancillary order (by its character) ‘must be ancillary to something, here to the restraining order, in that it is incidental or supplemental to it’; and
(b) a narrow view should not be taken when considering what is incidental or supplemental when making an ancillary order pursuant to s 48(1).
At [44], Smith J framed the issue to be determined as follows:
Consequently, the question in this matter is whether:
(a) the power to require a person to attend an examination by an approved examiner within a specified period, being the power conferred upon an approved examiner by operation of s 183 of the 2002 Act, cannot be encroached by the power conferred by s 39(1); and
(b) the failure to attend a compulsory examination can only be enforced by charging a person with an offence under s 195 of the 2002 Act[21] which cannot be encroached by the power conferred by s 39(1).
Smith J concluded that, although it may be accepted that the power to make ancillary orders under section 39 of the POCA is broad, the special power to compel attendance at an examination was only conferred on the examiner and, therefore, the Court had no power to make the order sought.
Smith J stated at [48] “When read with s 185, s 183 creates a special power, conferred not on the court but on an approved examiner to give notice of an examination requiring a person to attend an examination and specifying the time and place of the examination.”
The Commissioner’s application was dismissed.
