On 21 November 2018, Archer J delivered the reasons in Commissioner of Australian Federal Police v Li [No 2] [2018] WASC 359.
In that case, the Commissioner of the Australian Federal Police (Commissioner) had obtained an examination order under section 180 of the Proceeds of Crime Act 2002. Notice of that application had been given to the proposed examinee, but no notice had been given to the parties whose property had been restrained.
The question was whether the Commissioner was obliged to notify the parties whose property had been restrained (so as to properly describe the application which had been made as an ‘ex parte’ application), and thereby allow them to be heard on the application to examine a third party.
In short, the Court determined that the Commissioner was not obliged to give notice and that persons other than the proposed examinee were not entitled to be heard on the application.
It follows that the Commissioner may examine persons without revealing the existence of, or the evidence given at, such examinations.
Archer J stated (from [102]):
- I accept that the application for an examination order was brought in the restraint proceedings. However, that does not mean that an examination order made without notice to the respondent in the restraint proceedings would thereby be ex parte.
- The Proceeds of Crime Act permits the Commissioner to seek an examination order of a person. The Act regulates how an application is to be made, the conduct of such examinations, and how the evidence obtained is to be treated. In the context of the Act as a whole, it is clear that the proper parties to applications for examination orders and the hearings of such examinations are the applicant and the proposed examinee.
