In The Commissioner of the Australian Federal Police v Bahmad [2021] NSWSC 954, Button J considered the Court’s power to limit the documents required to be produced by an examiner pursuant to an examination notice in connection with an examination under s.180 of the Proceeds of Crime Act 2002.
In that context, it is important to bear in mind that attendance at an examination is a two step process, involving, first, an examination order of the court and, second, the issue of an examination notice by an approved examiner (usually a presidential member of the AAT). Hence, the notice requiring the production of documents is not issued by a judge of a court, but by the approved examiner.
Complaint was made before Button J that the examination notice sought production of an oppressively broad range of documents, many of which were also alleged to be irrelevant to the matters under investigation by the AFP.
Importantly, Button J determined that the Court has “no power to make the orders sought” (at [52]). Hence, the application was dismissed.
If practitioners wish to challenge any aspect of the examination notice (and I have done this on several occasions), they should make application to the approved examiner ahead of the examination being conducted and raise complaints about the scope of the notice there.
