AFP v Qian – no ex parte application for examination order

On 13 December 2019, his Honour Judge Misso delivered his ruling in Commissioner of the Australian Federal Police v Hui Qian [2019] VCC 2050.

In that case, a solicitor of the AFP had obtained examinations orders of suspects under s.180 of the Proceeds of Crime Act 2002 in an ex parte application.

The solicitors for two of the suspects wrote to the AFP and asked that the examination order be set aside on the basis that it was inappropriate to make such orders on an ex parte basis and because the orders had been made without quarantining orders (being orders preventing the dissemination of information obtained by coercion in the examination to other law enforcement agencies).

The AFP refused to set aside the orders notwithstanding clear authority for the proposition that such orders ought not have been made ex parte. Moreover, the AFP ultimately conceded that the solicitor who appeared in the ex parte application had failed to bring these authorities to the attention of the judge hearing the application. The AFP contended that, in a specialist list, it was unnecessary to bring these authorities to the attention of the presiding judge.

Given the AFP’s position, the examinees then made application to have the examination orders set aside, alternatively for quarantining orders to be made in respect of coercively obtained material.

His Honour Judge Misso followed the decision of Riordan J in Commissioner of the Australian Federal Police v Wen [2017] VSC 391 in finding that protective quarantining orders should be made, despite opposition by the AFP, which sought to assert that its internal protocols were sufficient to confer protection on the examinees.

His Honour was also critical of the fact that the examination order had been sought and made ex parte and stated (at [20]):

I think the AFP should not have made the application for teh examination order ex parte. It should have made that application on notice. The failure to do so has led to this application and has put the applicants to cost and expense unnecessarily.

His Honour ordered the AFP to pay the applicants’ costs.