CENTURION TRUST COMPANY LTD -v- DIRECTOR OF PUBLIC PROSECUTIONS (WA) [2009] WASCA 97 (4 June 2009)

Misuse of Drugs Act 1981 (WA), s 32A(1)

Supreme Court Act 1935 (WA), s 21(3)

1 OWEN JA: For the reasons expressed by McLure JA I agree that the appeal must be dismissed.

2 McLURE JA: The appellant seeks leave to appeal and to appeal from the decision of Templeman J made on 6 June 2008 dismissing its application for an extension of time in which to file an objection to the confiscation of property under the Criminal Property Confiscation Act 2000 (WA) (the Act).

3 The appellant is registered and domiciled in Jersey in the Channel Islands. On 28 January 2004 the appellant was served with a freezing order made by Scott J on 14 November 2003. The property the subject of the freezing order was money standing to the credit of 'ASIC Welcome Stranger Mining Company (NL Trust A/C)' in a nominated bank account and held for the appellant as trustee for the Gold Coast Trust (the property).

4 The freezing order was granted on the basis that the Director of Public Prosecutions (DPP) had applied under s 43(1)(b) of the Act for an examination order in relation to the property and was likely to apply against Brian Millwood Smith for a crime‑used property substitution declaration and a criminal benefits declaration. The foreshadowed applications were made. Mr Smith, a beneficiary of the Gold Coast Trust, was subsequently acquitted on appeal of some of the offences underpinning the application for the freezing order and a retrial was ordered on others: Smith v The Queen [2008] WASCA 128.

5 The appellant did not file an objection to the freezing order but instead applied unsuccessfully to have it set aside. On 2 July 2004, Roberts-Smith J made a declaration under s 30 of the Act that the property had been confiscated: Re Smith; Ex parte Director of Public Prosecutions for Western Australia (No 3) [2004] WASC 157. The court must make such a declaration if the property has been confiscated under s 6, s 7 or s 8 of the Act. There was no appeal from that decision.

6 By application dated 2 July 2004 the appellant applied under s 79 of the Act for an extension of time to file an objection to the confiscation of the frozen property. Templeman J dismissed the application on the basis that s 79 is not applicable to property which has been confiscated. He also rejected a claim that the court has inherent jurisdiction under s 102 of the Act and s 21(3) of the Supreme Court Act 1935 (WA) to extend time if the interests of justice so require. That being the case, the primary judge did not determine the merits of the application for an extension of time.

7 The appellant contends the trial judge misconstrued s 79 of the Act in holding that the court did not have jurisdiction to extend time after the property the subject of the freezing order had been confiscated and that the trial judge erred in holding that the court did not have inherent jurisdiction to order an extension of time.

(1) A person may file an objection to the confiscation of frozen property.

(2) If a copy of the freezing notice or freezing order was served on the objector, the objection must be filed ‑

(a) within 28 days after the day on which the copy of the notice or order was served on the objector; or

(b) within any further time allowed by the court.

(3) If a copy of the freezing notice or freezing order was not served on the objector, the objection must be filed ‑

(a) within 28 days after the day on which the objector becomes aware, or could reasonably be expected to have become aware, that the property has been frozen; or

(b) within any further time allowed by the court.

(4) The court may allow further time under subsection (2) or (3) even if the time for filing the objection has expired.

9 The Act contains a glossary which 'defines or affects' the meaning of some of the words and expressions in the Act (s 3). The word 'frozen' is defined in the glossary as follows:

'frozen', in relation to property and in relation to a freezing notice or freezing order, means subject to the freezing notice or the freezing order.

10 The word 'confiscation' is not defined but 'confiscated' in relation to property is defined in the glossary to mean confiscated under s 6, s 7 or s 8 of the Act. The primary judge concluded that once property has been confiscated under the Act it is no longer 'frozen property' as defined and thus s 79 has no application.

11 In order to construe s 79 it is necessary to understand the scheme of the Act as a whole, in particular that relating to freezing orders, objections and confiscation. As noted by the High Court in Mansfield v Director of Public Prosecutions [2006] HCA 38; (2006) 226 CLR 486 [50], the Act is both draconian and complex. Its purpose is to provide for the confiscation of 'confiscable property' which is defined in s 142 to mean:

(1) property owned or effectively controlled or which has at any time been given away by a person who has unexplained wealth or who has acquired a criminal benefit or who is a declared drug trafficker;

12 Part 4 div 2 of the Act deals with the issue of a freezing notice by a Justice of the Peace. Part 4 div 3 deals with freezing orders made by the court. The scheme of the Act for freezing notices and freezing orders is similar. I propose to focus attention on freezing orders which can be and usually are made ex parte (s 41(2)).

13 The court may make a freezing order for property if (1) the court has made an examination, monitoring or suspension order in relation to specific property under pt 5 of the Act (an investigation order) which freezing order is only in force while the investigation order is in force (s 43(1)(a)); (2) the DPP advises the court that it has made or is likely to make an application for an investigation order within 21 days (s 43(1)(b)); (3) a production order has been made or an application has been made by the DPP (or the court is advised that one is likely to be made within 21 days) under s 11 for an unexplained wealth declaration, under s 15 for a criminal benefits declaration, under s 21 for a crime‑used property substitution declaration or under s 62 for a production order (s 43(3)); (4) a person has been charged with an offence (or the DPP advises the court the person is likely to be charged within 21 days) and the person could be declared a drug trafficker if the person is convicted of the offence (s 43(5)); or (5) there are reasonable grounds for suspecting that the property is crime‑used or crime‑derived (s 43(8)). The facts enlivening the court's power to grant a freezing order provide a very low threshold for the DPP.

14 The purpose of the power to freeze property is to preserve assets pending the determination of the substantive application brought (or to be brought) by the DPP under the Act or the criminal charge as the case may be. A freezing order provides security for any liability of a respondent as defined in the Act (the respondent) to pay the amount specified in an unexplained wealth declaration, a criminal benefits declaration or a crime used property substitution declaration. If the amount owing is not paid within the time allowed, any frozen property is available for satisfying the respondent's liability (s 26).

15 A freezing order 'stops being in force' on the grounds specified in s 48 (real property) and s 49 (other property) of the Act. The grounds differ according to the basis on which the freezing order was made. If it was made on the basis of a foreshadowed application, it will stop being in force if the application is not made within the specified time. If an application is made, the freezing order will stop being in force if the application is withdrawn or is unsuccessful. A freezing order will also stop being in force if it is set aside at the request of the applicant for the freezing order or under s 82, s 83 or s 84 or if the property is confiscated under s 6, s 7 or s 8. The prohibition against dealing with frozen property only applies if a freezing order (or notice) is in force (s 50).

16 Under s 46(1) a freezing order and a notice that complies with subsection (6) must be served personally on the person from whom the frozen property was taken and any other person of whom the applicant is aware at the time the freezing order is made who is, or may be, or who claims to be, an 'interested party' (defined as a person who has an interest in the property that would enable the person to succeed on an objection to the confiscation of the property).

17 By subsection (6) the notice must, inter alia, advise the recipient that the property may be confiscated automatically under the Act unless an objection to the confiscation is filed within 28 days after service of the notice and give details of the recipient's obligations under s 47.

18 Section 47 is headed 'Statutory declarations about frozen property'. It provides that a person who is served under s 46 with a copy of a freezing order and a notice must give a statutory declaration to the DPP stating the name and, if known, address of any other person whom the declarant is aware is or may be, or claims to be, an interested party, or if the declarant is not aware of any such person, make a statement to that effect. Section 46(4) and s 46(5) are of particular relevance. They provide:

(4) If, as a result of information in a statutory declaration given, in accordance with section 47, by a person who was served with a copy of the freezing order under subsection (1), the applicant becomes aware that any other person is or may be or claims to be an interested party, then the applicant must arrange for a copy of the freezing order and a notice that complies with subsection (6) to be served on the person personally, as soon as practicable.

(5) Nothing in subsection (1) or (4) prevents the applicant from serving a copy of the freezing order and a notice at any time on any other person whom the applicant becomes aware is, or may be or claims to be an interested party, but the service cut off date for the property is not affected by any service outside the requirements of subsection (1) or (4).

19 Subsections (1) and (4) of s 46 are cast in terms of an obligation to serve the freezing order and subsection (6) notice whereas subsection (5) is not. The same service and statutory declaration regime applies to freezing notices (s 36 and s 37 of the Act).

20 Sections 6, 7 and 8 deal with the confiscation of property. Property is confiscated under s 6 when it is taken to satisfy a liability to pay an amount specified in an unexplained wealth declaration, a criminal benefits declaration or a crime‑used property substitution declaration. The respondent carries the onus of proving that the relevant property was not lawfully acquired for the purposes of an unexplained wealth declaration and a criminal benefits declaration (s 12(2) and s 16(3)).

21 Section 7 is of particular relevance in this case. It provides:

(1) Frozen property is confiscated if an objection to the confiscation of the property is not filed on or before the 28th day after the service cut off date for the property.

(2) If an objection to the confiscation of frozen property is filed on or before the 28th day after the service cut off date for the property, the property is confiscated if ‑

(a) the objection, or each objection if there are more than one, is finally determined;

(b) where the property is subject to a freezing notice ‑ the freezing notice is not cancelled or set aside; and

(c) where the property is subject to a freezing order ‑ the freezing order is not set aside.

22 The term 'objection' is defined to mean an objection filed under s 79. Section 150 of the Act defines the service cut off date as follows:

For the purpose of determining when frozen property is confiscated under section 7, the service cut off date is ‑

(a) for property frozen under a freezing notice ‑ the date of the last day on which a copy of the freezing notice was served on anyone under section 36(4); and

(b) for property frozen under a freezing order ‑ the date of the last day on which a copy of the freezing order was served on anyone under section 46(4).

23 In summary, the effect of s 46, s 47 and s 150 is as follows: (1) the service cut off date is not a fixed date. The date cannot be determined until the identification of the date on which the last person has been personally served under s 46(4); (2) the service cut off date is determined without reference to the service of a freezing order permitted under s 46(5); (3) service under s 46(5) is not in terms limited to the period prior to the confiscation of the property. The subsection states that the applicant may serve a copy of the freezing order and a notice 'at any time'; (4) a person served under s 46(5) is also obliged by s 47 to give a statutory declaration; (5) a person who is served under s 46(5) is required to receive a notice that complies with s 46(6) which refers to lodging an objection to the confiscation within 28 days after service.

24 A question of construction arises as to the service cut off date if the person (or persons) served under s 46(1) filed a statutory declaration stating they were not aware of any other interested persons. On a literal interpretation of s 150, there would be no service cut off date. An alternative construction may be the date of the last day on which a copy of the freezing order was required to be served on persons under s 46(1) and (4).

25 Only s 8 provides for the confiscation of property as a result of a person having been convicted of a criminal offence. All a person's property (whether lawfully or unlawfully acquired) is confiscated if he or she is declared to be a drug trafficker under the Misuse of Drugs Act 1981 (WA) as a result of being convicted of a confiscation offence (an offence punishable by imprisonment for 2 years or more).

26 Section 6 and s 7 of the Act provide for the confiscation of a person's property in the absence of any criminal conviction. Moreover, because the onus of proof is reversed and proceedings under the Act are taken to be civil to which the lower standard of proof applies (s 102) a person may be acquitted of the criminal offence which forms the basis for the confiscation of that person's property under the Act.

27 Property (except registrable real property) that is confiscated under s 6, s 7 or s 8 vests absolutely in the State when the section takes effect in relation to the property (s 10).

28 Part 6 of the Act (s 79 to s 87) is headed 'Objections to confiscation'. On the hearing of an objection to the confiscation of frozen property filed under s 79, the court may set aside the freezing order or notice to the extent permitted under s 82, s 83, or s 84 (s 81). Significantly, the grounds on which a freezing order can be made do not correlate with the grounds on which it can be set aside. It will be necessary to return to the detail of these provisions.

29 Section 85 of the Act entitles a person to apply to the court for the release of property which has been confiscated under s 6 or s 7. Such an application must be made within 28 days after the person becomes aware, or can reasonably be expected to have become aware, that the property has been confiscated. The Act makes no provision for that 28‑day period to be extended.

30 Further, the grounds for release of confiscated property under s 87 are narrower than the grounds for setting aside a freezing order. The court has a discretion to release confiscated property if (1) the applicant was an owner of the property immediately before the confiscation; (2) the property is not effectively controlled by a person who made criminal use of the property or a person who derived or realised the property from the commission of a confiscation offence; (3) the applicant was not aware and could not reasonably be expected to become aware until after the property was confiscated that it was liable to confiscation under s 6 or s 7; and (4) the applicant is an innocent party in relation to the property. 'Innocent party' is defined in s 153 of the Act. If all owners are innocent parties the property is released. If not, the court may order the release of the objector's share of the property. The appellant could not satisfy the third requirement.

31 Section 87 lists the orders that can be made on the hearing of an application under s 85 of the Act. Section 87(2) provides:

If the court orders the release of the property ‑

(a) if the property is money ‑ an amount equal to the amount of the money is to be paid to the objector from the Confiscation Proceeds Account;

(b) if the property is not money, and has not been disposed of ‑ the property is to be given to the objector; and

(c) if the property is not money, and has been sold ‑ an amount equal to the value of the property is to be paid to the objector from the Confiscation Proceeds Account.

Principles of statutory interpretation and a contextual issue

32 Under the general law, the Act would be classified as quasi penal in nature and thus be construed strictly, with ambiguities resolved in favour of those whose property has been or would be confiscated: Murphy v Farmer [1988] HCA 31; (1988) 165 CLR 19; Director of Public Prosecutions v Logan Park Investments Pty Ltd (1995) 37 NSWLR 118.

33 This rule of construction is not applicable only in relation to the criminal law in which event it is not excluded by s 102(2)(a) of the Act. However, it remains the case that in construing legislation the court's duty is to identify and apply the legislative intention reflected in the language and purpose of the statute.

34 The appeal was conducted on the assumption that in order to avoid the automatic confiscation of property under s 7 of the Act it is necessary for persons with a proprietary interest in the frozen property to file an objection to the confiscation under s 79 of the Act. I have reservations as to the correctness of that proposition. I propose to identify and explain the basis for those reservations because they are contextually relevant.

35 The reservations are based on the following (obiter) propositions. First, s 7 only applies if the objection is one which is capable of being determined in the objector's favour under s 81 ‑ s 84 of the Act. That is, the scope of s 7 is commensurate with the scope for relief under s 81 ‑ s 84. Section 7(2)(a), which postpones confiscation until each objection is determined, supports that proposition.

36 Secondly, the objection procedure in pt 6 of the Act is an integrated regime whereby the filing of an objection under s 79 is intended to activate the hearing and determination of the basis or grounds for the objection.

37 Thirdly, the grounds for relief under s 81 ‑ s 84 are a limited subset of the grounds for making a freezing order and the grounds for setting it aside or it otherwise ceasing to be in force. That is, not all freezing orders are capable of being set aside under pt 6 of the Act. A court may set aside a freezing order (or notice) under pt 6 only to the extent permitted under s 82, s 83 or s 84 and only if it is set aside on all the grounds on which it was made (s 81). Section 82 materially provides:

(1) The court may set aside a freezing notice or freezing order for property that was frozen on the ground that it is crime‑used if the objector establishes that it is more likely than not that the property is not crime‑used.

(2) If the court finds that the property is crime‑used, or is not required to decide whether the property is crime‑used, the court may make an order under subsection (3) or (4).

(3) The court may set aside the freezing notice or freezing order for the property if the objector establishes that it is more likely than not that ‑

(a) the objector is the spouse, a de facto partner or a dependant of an owner of the property;

(b) the objector is an innocent party, or is less than 18 years old;

(c) the objector was usually resident on the property at the time the relevant confiscation offence was committed, or is most likely to have been committed;

(d) the objector was usually resident on the property at the time the objection was filed;

(e) the objector has no other residence at the time of hearing the objection;

(f) the objector would suffer undue hardship if the property is confiscated; and

(g) it is not practicable to make adequate provision for the objector by some other means.

(4) The court may set aside the freezing notice or freezing order if the objector establishes that it is more likely than not that ‑

(a) the objector is the owner of the property, or is one of 2 or more owners of the property;

(b) the property is not effectively controlled by a person who made criminal use of the property;

(c) the objector is an innocent party in relation to the property; and

(d) each other owner (if there are more than one) is an innocent party in relation to the property.

(5) If the objector establishes the matters set out in subsection (4)(a), (b) and (c), but fails to establish the matter set out in subsection (4)(d), the court may order that, when the property is sold after confiscation, the objector is to be paid an amount equal to the amount that bears to the value of the property the same proportion as the objector's share of the property bears to the whole property.

(6) In an order under subsection (5), the court is to specify the proportion that it finds to be the objector's share of the property.

(7) On the application of the DPP or an owner of the property, the court may set aside the freezing notice or freezing order for the property if it also orders the objector to pay to the State an amount equal to the value of the property.

...

38 Thus, there are four grounds on which a freezing order may be set aside under s 82. The first applies if the property was frozen on the ground that it is crime‑used. That is not a ground specified in s 43 for enlivening the power to make a freezing order. However, a finding that property is crime‑used must satisfy the lesser threshold of there being reasonable grounds for suspecting that the property is crime‑used. The second ground for setting aside a freezing order under s 82 may be described as the 'innocent partner residence' exception. The third ground may be described as the innocent party(s) exception. The final basis is if the court orders the objector to pay to the State an amount equal to the value of the property.

39 Save for the innocent partner residence exception, the other exceptions in s 82 have equivalents in s 83 which applies to crime‑derived property. Section 83(1) applies to property frozen on the ground that it is crime‑derived.

40 Section 84 applies to property frozen under s 43(3) and (5). It provides:

(1) The court may set aside a freezing order for property that was frozen under section 43(3) if the court finds that it is more likely than not that the person who is or will be the respondent to the unexplained wealth declaration, criminal benefits declaration or crime used property substitution declaration does not own or effectively control the property, and has not at any time given it away.

(2) The court may set aside a freezing notice issued for property under section 34(3) or a freezing order for property that was frozen under section 43(5) if the court finds that it is more likely than not that the person who is or will be charged with the offence does not own or effectively control the property, and has not at any time given it away.

(3) The court may make any necessary or convenient ancillary orders.

41 A freezing order under s 43(3) can only be granted in relation to property that is owned or effectively controlled or was given away by the person that is the respondent to an application for an unexplained wealth declaration, a criminal benefits declaration or a crime‑used property substitution declaration. Proving that is not the case is the only basis for setting aside a freezing order under the objection regime. Of course, there are other grounds in s 48 and s 49 for setting aside a freezing order made under s 43(3) or that result in it ceasing to be in force. Moreover, a freezing order may be set aside on grounds other than those set out in s 48, s 49 and pt 6: Mansfield v Director of Public Prosecutions [8].

42 As with s 43(3), a freezing order under s 43(5) can only be granted in relation to property that is owned or effectively controlled or was given away by the person charged with an offence which may result in a declaration that he is a drug trafficker.

43 It is instructive to note the freezing orders that cannot be set aside under the objection provisions of the Act. They include freezing orders based on:

(2) an application for an investigation order having been made or foreshadowed;

(3) a production order having been made or an application foreshadowed;

(4) an application made or foreshadowed for an unexplained wealth declaration, a criminal benefits declaration or a crime‑used property substitution declaration against a respondent who owned or effectively controlled the property or who had given it away;

(5) a person being charged or it being foreshadowed that a person will be charged with an offence which could result in the person being declared a drug trafficker and the person owned or effectively controlled the property or had given it away.

44 In summary, the objection regime provides for relief in only a limited number of situations. It is difficult to identify a logical or rational explanation for concluding that s 7(1) applies to those persons whose property (or interest in the property) is affected by a freezing order but who cannot obtain relief under the objection provisions. However, this and other issues relating to the scope of the automatic confiscation provisions do not arise for determination in this case because there is no challenge to the confiscation. Accordingly, I will proceed on the basis that s 79(1) is the only source of the appellant's right or entitlement to object to the confiscation of frozen property.

45 The issue identified by the parties in the appeal is whether s 79 permits the filing of an objection to the confiscation of frozen property after the property has been confiscated. In other words, is s 79 confined to future confiscations (the narrow construction) or does it apply to past and future confiscations (the wide construction)?

46 The language of s 79(1) (including the definitions of relevant terms), is neutral on the question whether a person's entitlement to object to confiscation applies only to future confiscations or to both past and future confiscations. The answer depends on contextual considerations and the scheme and purpose of the Act as a whole.

47 There are a number of factors that support the narrow construction of s 79. First, in proceedings for the determination of objections the court is given the power to set aside the freezing order or notice but there is no express reference to confiscation. Secondly, pt 6 makes express provision for the release of property that has been confiscated under s 6 or s 7 of the Act. Thirdly, the service cut off date is not directly or indirectly affected by alterations to the time for filing objections under s 79. Fourthly, there is nothing in the language of s 7 to support a conclusion that a s 79 objection filed after the 28th day from the service cut off date itself alters the status of the property by it ceasing to be confiscated. Such an outcome is inconsistent with the property vesting absolutely in the State on confiscation. Fifthly, if the objection provisions were intended to avoid the confiscation it is to be expected there would be the equivalent to s 87(3) which grants substitute rights to the owner where the State has disposed of the confiscated property.

48 There are also factors favouring the wide construction. Prima facie, s 79(2) entitles all persons served with a freezing order to have 28 days from the date of service within which to object to the confiscation of frozen property or such further period allowed by the court.

49 Prima facie, s 79(3) entitles all persons who have not been served with a freezing notice to object to the confiscation of frozen property within 28 days from the date on which they become aware or could reasonably be expected to become aware that the property had been frozen or such further period allowed by the court.

50 If s 79(1) is limited to future confiscations, not all persons referred to in s 79(2) and s 79(3) would have any entitlement to object to the confiscation. In particular, a person served with a freezing order under s 46(5) after the property had been confiscated and the subjects of a s 47 declaration given by that person would have no right to object. However, the deliberate exclusion of persons served under s 46(5) from the service cut off date suggests that result was intended.

51 Moreover, on the alternative construction of the service cut off date, if only one person was required to be served with a freezing order and that person was late in filing an objection, the right to an extension of time in s 79(2)(b) would be illusory. On the narrow construction of s 79, the principle of statutory interpretation requiring ambiguities to be resolved in favour of the property owner would support the literal construction of the service cut off date.

52 Persons to whom s 7 applies who do not have, or have lost, the right to object are significantly disadvantaged by the automatic confiscation of their property. In considering the effect of automatic confiscation it is salient to note that a court is not to refuse to make a freezing order for property under s 43(3) only because the value of the property exceeds or could exceed the amount that a person could be liable to pay under an unexplained wealth declaration, a criminal benefits declaration or a crime‑‑used property substitution declaration.

53 Further, it is difficult to reconcile the broad grounds on which freezing orders are intended to stop being in force (which recognise the very low threshold that enlivens the discretion to grant a freezing order) and the consequence of automatic confiscation which is to pre‑empt and prevent the operation and effect of the other grounds in s 48 and s 49. So, for example, if automatic confiscation of frozen property under s 7(1) occurs pending the decision on a contested application for a criminal benefits declaration which was the basis of the grant of the freezing order and the application is subsequently refused, the owner(s) of the frozen property would be without a remedy. That is beyond draconian. That is arbitrary, oppressive and unjust. It results in the confiscation of 'non confiscable' property. It transforms a freezing order from an interlocutory aid for the preservation of property to a tool for confiscation.

54 It cannot sensibly be suggested that a failure to object before the service cut off date denotes an admission that the property was relevantly connected with a confiscable offence. Ordinarily, the failure to comply with time limits results from misunderstandings or oversights which is why courts are invariably given the power to extend time.

55 Notwithstanding the factors favouring the wide construction, there are significant impediments in its way. The primary impediment lies in the identification of a power or statutory mechanism in s 81 to s 84 for unwinding the automatic confiscation. An incidental power such as that in s 83 and s 84, cannot be relied on to interfere with a statutorily mandated consequence. The focus must be on the court's express power to set aside the freezing order. A freezing order is made prior to any automatic confiscation. If the freezing order was invalid at the time of the confiscation (because for example it was made without jurisdiction), the confiscation would also be invalid. That is, the validity of the confiscation is dependent and contingent upon the existence of a valid freezing order at the time of confiscation.

56 That raises for consideration the effect of an order under pt 6 of the Act setting aside the freezing order. Does it operate retrospectively so as to remove the necessary underpinning for a valid confiscation or does it operate prospectively. The clear indications in the Act are that it is not intended to operate retrospectively. A freezing order or notice that is set aside stops being in force (s 48, s 49). Confiscated property vests absolutely in the State (s 10) who can dispose of it. There is no equivalent to s 87(2) giving the owner rights against the State. That omission is significant in the light of s 37 which confers immunity on the State and its officers for anything done in good faith for the purpose of carrying the Act into effect.

57 If the order setting aside the freezing order operates prospectively there is no basis, express or implied, in the Act for this court to alter the automatic statutory consequence of confiscation. There remains a further option not raised by the parties. Proceedings in an application under the Act are taken to be civil proceedings for all purposes. The court is given

power in objection proceedings to set aside a freezing order or a freezing notice. Order 42 r 2 of the Rules of the Supreme Court 1971 (WA) (Rules) provides:

(1) A judgment or order of the Court takes effect from the day of its date.

(2) Such judgment or order shall be dated as of the day on which it is pronounced, given or made, unless the Court orders that it be dated as of some earlier or later day, in which case it shall be dated as of that other day.

58 If the order setting aside the freezing order or notice was dated at some time prior to the date of confiscation, the confiscation would fall away. However, the power in O 42 r 2 to antedate orders is exercised with caution and only where there has been something exceptional on the facts to justify doing so: Smolarek v Liwszyc [2006] WASCA 50 (S). If Parliament intended s 79 to apply to confiscated property it would not have relied on this power which is only used in exceptional circumstances.

59 In my view, the court does not have the power under the Act or the Rules to alter the statutorily mandated automatic confiscation of frozen property. The consequences of confiscation pursuant to a valid freezing order can only be altered under s 85 of the Act. Notwithstanding that the automatic confiscation provisions of the Act are capable of producing arbitrary, oppressive and unjust outcomes, the statutory language and scheme compels the conclusion that on its proper construction s 79 does not apply after the property the subject of the freezing order or freezing notice has been confiscated. That is, s 79 is confined to freezing orders and freezing notices that remain in force. It follows from my reasons for this conclusion that reliance on any inherent jurisdiction of the court to extend time is misconceived and must also fail. I would dismiss the appeal.

60 BUSS JA: I have read the proposed reasons for judgment of McLure JA (with whom Owen JA concurs). I agree with her Honour that the appeal should be dismissed. My reasons are as follows.

61 On 14 November 2003, Scott J, on the application of the Director of Public Prosecutions (DPP), made a freezing order in respect of funds standing to credit in a bank account with Westpac Banking Corporation in

the name 'ASIC Welcome Stranger Mining Company (NL Trust A/C)'. The funds were held for the appellant as trustee of the Gold Coast Trust.

62 Scott J made the freezing order on two grounds. First, pursuant to s 43(1)(b) of the Criminal Property Confiscation Act 2000 (WA) (the Act), on the basis that the DPP had applied for an examination order in relation to the funds in the bank account. Secondly, pursuant to s 43(3)(c), read with s 43(3)(b), on the basis that the DPP was likely to apply against Brian Millwood Smith for a crime‑used property substitution declaration and a criminal benefits declaration within 21 days after the freezing order was made. Subsequently, the DPP made the contemplated applications against Mr Smith.

63 On 24 November 2003, Mr Smith was served with a copy of the freezing order and on 27 November 2003, he submitted a statutory declaration to the DPP pursuant to s 47 of the Act in which he named the appellant as an 'interested party' (as defined in the glossary to the Act) in the frozen funds. See Re Smith; Ex parte Director of Public Prosecutions for Western Australia (No 3) [2004] WASC 157 [8].

64 On 9 January 2004, EM Heenan J ordered that the period of 28 days prescribed by s 79 of the Act, within which an objection to a freezing order may be filed, be extended to 60 days from the date of service of the freezing order (and the accompanying notice under s 46(6)) on any person in the United Kingdom (including the appellant) who is, may be or claims to be, an interested party. His Honour purported to extend time pursuant to s 79(4). He also ordered that the extension of time be without prejudice to any right of any person to apply for an extension under s 79. See Re Smith (No 3) [9].

65 On 28 January 2004, the appellant was served with the freezing order and the accompanying notice. The notice stated, relevantly:

AUTOMATIC CONFISCATION

The property frozen under a Freezing Order may be confiscated automatically under the Criminal Property Confiscation Act 2000 and without further notice to you unless an objection to the confiscation of the property is filed in the Court specified in a Freezing Order within 28 days after the date of service of a Freezing Order on you.

IF YOU WANT TO PREVENT AUTOMATIC CONFISCATION YOU MUST FILE AN OBJECTION.

WHAT YOU MAY DO

OBJECTION

You may be eligible to file an objection to the confiscation of the property frozen under a Freezing Order.

If you are eligible to file an objection and wish to prevent automatic confiscation you MUST file an objection to the confiscation in the Court specified below within 28 days after the day on which a copy of a Freezing Order was served on you.

THE COURT IN WHICH AN OBJECTION IS TO BE FILED

Supreme Court, at Supreme Court Gardens, Barrack Street, Perth WA 6000

...

NOTE: Giving a statutory declaration to the Director of Public Prosecutions will not prevent automatic confiscation of the property frozen under a Freezing Order ‑ to prevent automatic confiscation you must file an objection in the court specified in a Freezing Order.

66 Neither the appellant nor any other person filed an objection under s 79(1) of the Act to the confiscation of the funds frozen under the freezing order. The appellant did, however, make application on 15 December 2003 to set aside the freezing order. This application, which was heard before Roberts-Smith J on 29 April 2004, challenged the jurisdiction of the court to make the freezing order. First, the appellant alleged that the order was beyond jurisdiction as it purported to have an extra‑territorial coercive effect on the appellant but was made without any jurisdiction being established over the appellant. Secondly, the appellant alleged that the circumstances did not enliven the statutory jurisdiction of the court to grant a freezing order and the freezing order was an abuse of process. On 30 June 2004, his Honour dismissed the appellant's application. See Re Smith; Ex parte Director of Public Prosecutions for Western Australia (No 2) [2004] WASC 147. The appellant's appeal to this court against his Honour's decision was dismissed. See Centurion Trust Company Ltd v Director of Public Prosecutions (WA) [2008] WASCA 6; (2008) 35 WAR 463.

67 On 2 July 2004, the DPP made an ex parte application for a declaration, pursuant to s 30 of the Act, that the funds frozen under the freezing order had been confiscated under s 7(1), in that an objection to the confiscation of the funds was not filed on or before the 28th day after the 'service cut off date', as defined in the glossary to the Act. Roberts-Smith J heard the application. His Honour was satisfied that no objection had been filed by any interested party and that the statutory preconditions for the making of a declaration under s 30 had been satisfied. See Re Smith (No 3) [13], [24]. On 2 July 2004, his Honour made the declaration.

68 On 2 July 2004, the appellant made application under s 79 of the Act for an extension of time to file an objection to the confiscation of the frozen funds. Templeman J dismissed the application. His Honour held that s 79 is not applicable to property which has been confiscated. His Honour also held that the court did not have inherent jurisdiction, arising under s 102 of the Act and s 21(3) of the Supreme Court Act 1935 (WA), to extend time if, in effect, the interests of justice so require. Templeman J decided that, in the circumstances, it was unnecessary for him to consider the merits of the appellant's application. See Director of Public Prosecutions (WA) v Centurion Trust Company Ltd [No 5] [2008] WASC 107 [11] ‑ [12], [14], [17] ‑ [19], [27].

69 On 7 July 2004, the appellant made application to set aside the confiscation declaration which Roberts-Smith J made on 2 July 2004. The application came before Templeman J. It was based on the assumption that, in making the declaratory order, Roberts-Smith J had exercised a judicial discretion. After further consideration, the appellant concluded that the application was misconceived in that the court was obliged to make the declaration. Counsel for the appellant accepted that the application should be dismissed, and on 18 April 2008 Templeman J made an order to that effect. See Director of Public Prosecutions (WA) v Centurion Trust Company Ltd [No 5] [28] ‑ [30].

70 The appellant appeals to this court against Templeman J's decision to dismiss its application under s 79 of the Act for an extension of time to file an objection to the confiscation of the frozen property.

71 The appellant's grounds of appeal raise two issues. First, whether the learned primary judge misconstrued s 79 of the Act in deciding that the court does not have jurisdiction to extend time to object after the property, the subject of a freezing order, has been confiscated. Secondly, whether his Honour erred in holding that the court does not have inherent jurisdiction to extend time.

The assumption by the parties that the frozen funds had been confiscated under s 7(1) of the Act.

72 The parties conducted the proceedings before the learned primary judge and the appeal before this court on the basis that the funds, the subject of the freezing order, had been confiscated under s 7(1) of the Act.

73 It is necessary, before considering the merits of the appellant's grounds of appeal, to examine the scheme of the Act including, in particular, the interaction between the confiscation provisions in s 6, s 7 and s 8 on the one hand and the provisions for objections to the confiscation of frozen property and for the release of frozen property in pt 6 on the other.

74 The primary purpose of the Act is to provide for the confiscation, in certain circumstances, of property acquired as a result of criminal activity and property used for criminal activity.

Part 3 of the Act: identifying and recovering confiscable property

75 Part 3 of the Act is concerned with identifying and recovering confiscable property. Property is confiscable for the purposes of the Act if it is:

(a) owned or effectively controlled, or has at any time been given away, by a person who has 'unexplained wealth';

(b) owned or effectively controlled, or has at any time been given away, by a person who has acquired a 'criminal benefit';

(c) 'crime‑used property';

(d) 'crime-derived property'; or

(e) owned or effectively controlled, or has at any time been given away, by a 'declared drug trafficker'.

See s 142. See also the definitions of 'unexplained wealth' (s 144), 'criminal benefit' (s 145), 'crime‑used property' (s 146), 'crime‑derived property' (s 148) and 'declared drug trafficker' (s 159).

76 The court is empowered, on the application of the DPP, to make against a person an unexplained wealth declaration (s 11 ‑ s 14), a criminal benefits declaration (s 15 ‑ s 20) and a crime‑used property substitution declaration (s 21 ‑ s 24).

77 For the purposes of an application for an unexplained wealth declaration, any property, service, advantage or benefit that is a constituent of the respondent's wealth is presumed not to have been lawfully acquired unless the respondent establishes the contrary: see s 12(2). For the purposes of an application for a criminal benefits declaration, the property, service, advantage or benefit described in the application is presumed to have been directly or indirectly acquired as a result of the respondent's involvement in a confiscation offence unless the respondent establishes otherwise: see s 16(3). See also s 17(2). For the purposes of an application for a crime‑used property substitution declaration, if the respondent has been convicted of the relevant confiscation offence, it is presumed that the respondent made criminal use of the property unless the respondent establishes the contrary: see s 22(3). See also s 22(4) and s 22(5).

78 By s 14, when the court makes an unexplained wealth declaration, the respondent is liable to pay to the State an amount equal to the amount specified in the declaration as the assessed value of the respondent's unexplained wealth.

79 By s 20, when the court makes a criminal benefits declaration, the respondent is liable to pay to the State an amount equal to the amount specified in the declaration as the assessed value of the criminal benefit acquired by the respondent.

80 By s 24(1), when the court makes a crime‑used property substitution declaration, the respondent is liable to pay to the State an amount equal to the amount specified in the declaration as the assessed value of the crime‑used property. By s 24(2), if a crime‑used property substitution declaration is made against two or more respondents in respect of the same crime‑used property, the respondents are jointly and severally liable to pay to the State an amount equal to the amount specified in the declaration as the assessed value of the property.

81 Sections 25 ‑ 32 of the Act make provision for the recovery of confiscable property.

82 Section 25 provides:

(1) The amount payable by a respondent under section 14, 20 or 24 is payable ‑

(a) within one month after the date on which the respective unexplained wealth declaration, criminal benefits declaration or crime‑used property substitution declaration was made; or

(b) within any further time allowed by the court.

(2) The court may allow further time even if the due date has passed.

(3) If part or all of the amount is not paid within the time allowed, the unpaid amount is recoverable from the respondent by the State in a court of competent jurisdiction as a debt due to the State.

83 Section 26 makes provision for the use of frozen property to meet a respondent's liability under s 14, s 20 or s 24. It provides:

(1) Frozen property owned by a respondent may be taken, with the respondent's consent, in payment or part‑payment of an amount payable by the respondent under section 14, 20 or 24.

(2) However, if part or all of the amount payable by the respondent is not paid within the time allowed under section 25(1), then despite any other provision of this Act, any frozen property that is owned by the respondent is available for the purpose of satisfying the respondent's liability as if the property had been taken from the respondent's possession under a writ, warrant or other process of execution.

(3) Nothing in subsection (1) or (2) limits any other means of satisfying a debt due to the State under subsection 25(3).

84 The term 'frozen', in relation to property and in relation to a freezing notice or freezing order, is defined in the glossary to the Act to mean 'subject to the freezing notice or the freezing order'.

85 The DPP is entitled under s 30(1) to apply to the court for a declaration that property has been confiscated. Pursuant to s 30(2), if the court finds that the property described in the DPP's application has been confiscated under s 6, s 7 or s 8, the court must make a declaration to that effect.

Part 4 of the Act: preventing dealings in confiscable property

86 Part 4 of the Act is concerned with preventing dealings in confiscable property. Section 33 prevents such dealings by providing for the seizure of crime‑used property or crime‑derived property. Sections 34 ‑ 40 prevent such dealings by providing for freezing notices in respect of crime‑used property and crime‑derived property to be issued by a justice of the peace on the application of the DPP or a police officer. Sections 41 ‑ 49 prevent such dealings by providing for freezing orders in respect of confiscable property to be made by the court on the application of the DPP. The provisions for the issue of freezing notices broadly reflect the provisions for the making of freezing orders. It is unnecessary, in these reasons, to examine separately the provisions relating to freezing notices.

87 Section 43 empowers the court to make freezing orders. The circumstances in which the court may make a freezing order are specified in subsections (1), (3), (5), (6), (7) and (8). Section 43 provides, relevantly, as follows:

(1) The court may make a freezing order for property if ‑

(a) an examination order, a monitoring order or a suspension order is in force in relation to the property; or

(b) the DPP advises the court that an application for an examination order, a monitoring order or a suspension order has been made in relation to the property, or is likely to be made in relation to the property within 21 days after the freezing order is made.

(2) The court may make a freezing order under subsection (1) whether or not the person against whom the examination order, monitoring order or suspension order is made, or is to be sought, owns or effectively controls the property.

(3) The court may make a freezing order for all or any property that is owned or effectively controlled by the person or that the person has at any time given away if ‑

(a) a production order has been made against the person;

(b) an application has been made against the person for an unexplained wealth declaration, criminal benefits declaration, crime‑used property substitution declaration or production order; or

(c) the DPP advises the court that such an application is likely to be made within 21 days after the freezing order is made.

...

(5) The court may make a freezing order for all or any property that is owned or effectively controlled by a person, or that the person has at any time given away if ‑

(a) the person has been charged with an offence, or the DPP advises the court that a person is likely to be charged with an offence within 21 days after the day on which the freezing order is made; and

(b) the person could be declared to be a drug trafficker under section 32A(1) of the Misuse of Drugs Act 1981 if he or she is convicted of the offence.

(6) A freezing order may be made under subsection (3) or (5) for all property owned or effectively controlled by the person, whether or not any of the property is described or identified in the application.

(7) A freezing order may be made under subsection (3) or (5) for all property acquired after the order is made ‑

(a) by the person; or

(b) by another person at the request or direction of the first‑mentioned person.

(8) The court may make a freezing order for property if there are reasonable grounds for suspecting that the property is crime‑used or crime‑derived.

88 Section 46 makes provision for the service of freezing orders, relevantly, as follows:

(1) As soon as practicable after a freezing order is made, the applicant for the order must arrange for a copy of the order and a notice that complies with subsection (6) to be served personally on each of the following persons ‑

(a) if the frozen property was taken from a person, or is in the custody of a person ‑ that person;

(b) if, at the time that the freezing order is made, the applicant is aware of any other person who is, or may be, or claims to be, an interested party ‑ that person.

...

(4) If, as a result of information in a statutory declaration given, in accordance with section 47, by a person who was served with a copy of the freezing order under subsection (1), the applicant becomes aware that any other person is or may be or claims to be an interested party, then the applicant must arrange for a copy of the freezing order and a notice that complies with subsection (6) to be served on the person personally, as soon as practicable.

(5) Nothing in subsection (1) or (4) prevents the applicant from serving a copy of the freezing order and a notice at any time on any other person whom the applicant becomes aware is, or may be or claims to be an interested party, but the service cut off date for the property is not affected by any service outside the requirements of subsection (1) or (4).

(6) The notice must ‑

(a) summarise the effect of the order;

(b) advise the recipient to the effect that the property described in the order may be confiscated automatically under this Act unless an objection to the confiscation of the property is filed in the court specified in the notice within 28 days after the date of service of the notice;

(c) tell the recipient that he or she may be eligible to file an objection to the confiscation of the property; and

(d) give details of the recipient's obligations under section 47.

89 Section 47(1) requires a person who is served with a copy of a freezing order and a notice under s 46 to give a statutory declaration to the DPP. The statutory declaration must be given within 7 days after the day on which the notice was served on the person: see s 47(2). In the statutory declaration, the declarant must:

(a) state the name and, if known, the address of any other person whom the declarant is aware is or may be, or claims to be, an 'interested party'; or

(b) if the declarant is not aware of any other person who is or may be, or claims to be, an 'interested party' ‑ make a statement to that effect.

See s 47(3).

90 The glossary to the Act defines the term 'interested party', in relation to frozen property, to mean a person who has an interest in the property that would enable the person to succeed on an objection to the confiscation of the property.

91 Section 48 specifies the duration of freezing orders for registrable real property. Such an order comes into force when a memorial of the making of the order is registered under s 113(1): see s 48(1). By s 48(2), it stops being in force when a memorial under s 48(4), s 48(5), s 48(6) or s 48(7) in relation to the property is registered under s 113(1). Section 48(4), s 48(5), s 48(6) and s 48(7) provide:

(4) If a freezing order for registrable real property was made under section 43(1) on the basis that an application for another order has been or is likely to be made, the applicant for the freezing order must lodge a memorial with the Registrar of Titles if ‑

(a) where the freezing order was made on the basis of advice given to the court under section 43(1)(b) ‑ an application for the other order is not made within 21 days after the date of the freezing order;

(b) the application for the other order is withdrawn;

(c) the application for the other order is finally determined but the court does not make the other order;

(d) the freezing order is set aside at the request of the applicant for the freezing order or in proceedings on an objection; or

(e) the property is confiscated under section 6, 7 or 8.

(5) If a freezing order for registrable real property was made under section 43(3) on the basis that an application for a declaration or another order has been or is likely to be made, the applicant for the freezing order must lodge a memorial with the Registrar of Titles if‑ ‑

(a) where the freezing order was made on the basis of advice given to the court under section 43(3)(c) ‑ an application for the declaration or other order is not made within 21 days after the date of the freezing order;

(b) the application for the declaration or other order is withdrawn;

(c) the application for the declaration or other order is finally determined, but the court does not make the declaration or other order;

(d) in the case of a declaration ‑ the declaration is made, and the respondent's liability to pay an amount under section 14, 20 or 24 is satisfied, whether or not any or all of the frozen property is given or taken in satisfaction of the liability;

(e) the freezing order is set aside on all grounds at the request of the applicant for the freezing order or in proceedings on an objection; or

(f) the property is confiscated under section 6, 7 or 8.

(6) If a freezing order for registrable real property was made under section 43(5) on the basis that a person has been or is likely to be charged with an offence, the applicant for the freezing order must lodge a memorial with the Registrar of Titles if ‑

(a) where the freezing order was made on the basis of advice given to the court under section 43(5)(a) ‑ the person is not charged with the offence within 21 days after the date of the freezing order;

(b) the charge against the person is disposed of;

(c) the charge is finally determined, but the person is not declared to be a drug trafficker under section 32A(1) of the Misuse of Drugs Act 1981;

(d) the freezing order is set aside on all grounds at the request of the applicant for the freezing order or in proceedings on an objection; or

(e) the property is confiscated under section 6, 7 or 8.

(7) If a freezing order was made under section 43(8) for registrable real property on the basis that the property was suspected of being crime‑used or crime‑derived, the applicant for the freezing order must lodge a memorial with the Registrar of Titles if ‑

(a) the freezing order is set aside at the request of the applicant for the freezing order or in proceedings on an objection; or

(b) the property is confiscated under section 6, 7 or 8.

92 Section 49 specifies the duration of freezing orders for other property (that is, property except registrable real property). Such an order comes into force when the freezing order is made: see s 49(1). By s 49, it stops being in force, as follows:

(2) If a freezing order for property (except registrable real property) was made under section 43(1) on the basis that an application for another order has been or is likely to be made, the freezing order stops being in force as soon as one of the following happens ‑

(a) if the freezing order was made on the basis of advice given to the court under section 43(1)(b) ‑ an application for the other order is not made within 21 days after the date of the order;

(b) the application for the other order is withdrawn;

(c) the application for the other order is finally determined but the court does not make the other order;

(d) the freezing order is set aside at the request of the applicant for the freezing order or in proceedings on an objection;

(e) the property is confiscated under section 6, 7 or 8.

(3) A freezing order for property (except registrable real property) made under section 43(3) on the basis that an application for a declaration or another order has been or is likely to be made stops being in force as soon as one of the following happens ‑

(a) if the freezing order was made on the basis of advice given to the court under section 43(3)(c) ‑ an application for the declaration or other order is not made within 21 days after the date of the freezing order;

(b) the application for the declaration or other order is withdrawn;

(c) the application for the declaration or other order is finally determined, but the court does not make the declaration or other order;

(d) in the case of a declaration ‑ the declaration is made, and the respondent's liability to pay an amount under section 14, 20 or 24 is satisfied, whether or not any or all of the frozen property is given or taken in satisfaction of the liability;

(e) the freezing order is set aside on all grounds at the request of the applicant for the freezing order or in proceedings on an objection;

(f) the property is confiscated under section 6, 7 or 8.

(4) A freezing order for property (except registrable real property) made under section 43(5) on the basis that a person has been or is likely to be charged with an offence stops being in force as soon as one of the following happens ‑

(a) if the freezing order was made on the basis of advice given to the court under section 43(5)(a) ‑ the person is not charged with the offence within 21 days after the date of the order;

(b) the charge against the person is disposed of;

(c) the charge is finally determined, but the person is not declared to be a drug trafficker under section 32A(1) of the Misuse of Drugs Act 1981;

(d) the freezing order is set aside on all grounds at the request of the applicant for the freezing order or in proceedings on an objection;

(e) the property is confiscated under section 6, 7 or 8.

(5) A freezing order made under section 43(8) for property (except registrable real property) on the basis that it was suspected of being crime‑used or crime‑derived stops being in force as soon as one of the following happens ‑

(a) the freezing order is set aside on all grounds at the request of the applicant for the freezing order or in proceedings on an objection;

(b) the property is confiscated under section 6, 7 or 8.

(6) However, if the freezing order was made on 2 or more grounds, but the order has not stopped being in force under subsection (2), (3), (4) or (5) in relation to each of those grounds, the freezing order continues in force as if it had been made on each remaining ground.

93 When a freezing order stops being in force pursuant to s 49, the cessation does not operate retrospectively or adversely affect the efficacy of the freezing order while it was in force.

Part 5 of the Act: investigation and search

94 Part 5 of the Act includes div 2, which is concerned with examinations.

95 The DPP may apply ex parte to the District Court for an order for the examination of a person: see s 57. By s 58(1), the court may order a person to submit to an examination about any or all of the matters specified in the subsection. The matters specified, include, relevantly, the nature, location and source of frozen property (par (a)) and the nature, location and source of property that is not frozen, but is suspected on reasonable grounds of being confiscable (par (b)).

96 Division 3 of pt 5 makes provision for the District Court to make production orders for 'property‑tracking documents', as defined in s 155.

97 Division 4 of pt 5 makes provision for the making of monitoring orders and suspension orders, as defined in s 68, to facilitate the monitoring of financial transactions.

Part 2 of the Act: confiscation of property

98 Part 2 of the Act is concerned with the confiscation of property. It comprises s 6 ‑ s 10.

99 Section 6 relates to a person's liability to pay the amount specified in an unexplained wealth declaration, a criminal benefits declaration or a crime‑used property substitution declaration. It reads:

Property is confiscated when it is given or taken in satisfaction of a person's liability under section 14, 20 or 24 to pay the amount specified in an unexplained wealth declaration, a criminal benefits declaration or a crime‑used property substitution declaration.

100 Section 7 provides for the automatic confiscation of certain property, relevantly, as follows:

(1) Frozen property is confiscated if an objection to the confiscation of the property is not filed on or before the 28th day after the service cut off date for the property.

(2) If an objection to the confiscation of frozen property is filed on or before the 28th day after the service cut off date for the property, the property is confiscated if ‑

(a) the objection, or each objection if there are more than one, is finally determined;

(b) where the property is subject to a freezing notice ‑ the freezing notice is not cancelled or set aside; and

(c) where the property is subject to a freezing order ‑ the freezing order is not set aside.

101 The term 'objection' is defined in the glossary to the Act to mean an objection filed under s 79 to the confiscation of property.

102 The term 'service cut off date', in relation to frozen property, is given the following meaning by s 150:

For the purpose of determining when frozen property is confiscated under section 7, the service cut off date is ‑

(a) for property frozen under a freezing notice ‑ the date of the last day on which a copy of the freezing notice was served on anyone under section 36(4); and

(b) for property frozen under a freezing order ‑ the date of the last day on which a copy of the freezing order was served on anyone under section 46(4).

103 The definition of 'service cut off date' is remarkable for its clumsiness and lack of coherence. Paragraph (b) is premised on the assumption that, as a result of information in a statutory declaration given in accordance with s 47, a copy of the freezing order will be served on another person or persons, as required by s 46(4). The definition does not deal expressly with the situation where service is not required by s 46(4) because the statutory declaration given in accordance with s 47 (by a person served with the freezing order under s 46(1)) does not disclose the existence of any other person whom the declarant is aware is or may be, or claims to be, an interested party. Although it is unnecessary, in the present case, to express a final opinion on the point, my preliminary view is that on a proper construction of the definition of 'service cut off date', in the context of the provisions of s 7, s 46 and pt 6, the 'service cut off date' for property frozen under a freezing order is as follows:

(a) if, after a statutory declaration has been given in accordance with s 47, it is necessary to serve a person or persons under s 46(4) ‑ the date of the last day on which a copy of the freezing order is served on that person or the last of those persons to be served;

(b) if, after a statutory declaration has been given in accordance with s 47, it is unnecessary to serve any person or persons under s 46(4) ‑ the date on which the statutory declaration was given.

104 I note that s 46(5) provides that the service cut off date for frozen property is not affected by any service outside the requirements of s 46(1) or s 46(4). In particular, the service cut off date is not affected by service under s 46(5), which permits the applicant for a freezing order to serve a copy of the order and the accompanying notice at any time on any other person whom the applicant becomes aware is or may be, or claims to be, an interested party.

105 Section 8 deals with the confiscation of a drug trafficker's property. It provides, relevantly:

(1) When a person is declared to be a drug trafficker under section 32A(1) of the Misuse of Drugs Act 1981 as a result of being convicted of a confiscation offence that was committed after the commencement of this Act, the following property is confiscated ‑

(a) all the property that the person owns or effectively controls at the time the declaration is made;

(b) all property that the person gave away at any time before the declaration was made, whether the gift was made before or after the commencement of this Act.

(2) When a person is taken to be a declared drug trafficker under section 159(2), the following property is confiscated ‑

(a) all the property that the person owned or effectively controlled at the time that the person absconded;

(b) all property that the person gave away at any time before the person absconded, whether the gift was made before or after the commencement of this Act.

106 Registrable real property that is confiscated under s 6, s 7 or s 8 vests absolutely in the State when the court declares under s 30 that the property has been confiscated and a memorial of the making of the declaration is registered under s 113(1): see s 9(1).

107 Property (except registrable real property) that is confiscated under s 6, s 7 or s 8 vests absolutely in the State when the section takes effect in relation to the property: see s 10(1).

108 Section 6 and s 7 are distinguishable from s 8 in that property may be confiscated under s 6 and s 7 even if no person is or has been convicted of a confiscable offence.

Part 8 of the Act: court jurisdiction and evidentiary matters

109 By s 102(1), proceedings on an application under the Act are taken to be civil proceedings for all purposes. Section 102(2)(a) provides that, except in relation to an offence under the Act, a rule of construction that is applicable only in relation to the criminal law does not apply in the interpretation of the Act.

Part 6 of the Act: objections to confiscation and the release of certain confiscated property

110 Part 6 of the Act comprises s 79 ‑ s 87 and is concerned with objections to confiscation, and also with the release of property that has been confiscated under s 6 or s 7.

111 Section 79 regulates the filing of objections to the confiscation of frozen property. It reads:

(1) A person may file an objection to the confiscation of frozen property.

(2) If a copy of the freezing notice or freezing order was served on the objector, the objection must be filed ‑

(a) within 28 days after the day on which the copy of the notice or order was served on the objector; or

(b) within any further time allowed by the court.

(3) If a copy of the freezing notice or freezing order was not served on the objector, the objection must be filed ‑

(a) within 28 days after the day on which the objector becomes aware, or could reasonably be expected to have become aware, that the property has been frozen; or

(b) within any further time allowed by the court.

(4) The court may allow further time under subsection (2) or (3) even if the time for filing the objection has expired.

112 The State is a party to proceedings on an objection: see s 80.

113 Section 81(1) provides that on the hearing of an objection, the court may set aside the freezing notice or freezing order 'to the extent permitted under section 82, 83 or 84'.

114 By s 81(2), if the property was frozen on two or more grounds but the court does not set aside the freezing notice or freezing order in relation to both or all of the grounds, the notice or order continues in force as if it had been made on each remaining ground.

115 Section 82 permits the court to set aside a freezing notice or freezing order for property that was frozen on the ground that it is crime‑used property. The section is, relevantly, in these terms:

(1) The court may set aside a freezing notice or freezing order for property that was frozen on the ground that it is crime‑used if the objector establishes that it is more likely than not that the property is not crime‑used.

(2) If the court finds that the property is crime‑used, or is not required to decide whether the property is crime‑used, the court may make an order under subsection (3) or (4).

(3) The court may set aside the freezing notice or freezing order for the property if the objector establishes that it is more likely than not that ‑

(a) the objector is the spouse, a de facto partner or a dependant of an owner of the property;

(b) the objector is an innocent party, or is less than 18 years old;

(c) the objector was usually resident on the property at the time the relevant confiscation offence was committed, or is most likely to have been committed;

(d) the objector was usually resident on the property at the time the objection was filed;

(e) the objector has no other residence at the time of hearing the objection;

(f) the objector would suffer undue hardship if the property is confiscated; and

(g) it is not practicable to make adequate provision for the objector by some other means.

(4) The court may set aside the freezing notice or freezing order if the objector establishes that it is more likely than not that ‑

(a) the objector is the owner of the property, or is one of 2 or more owners of the property;

(b) the property is not effectively controlled by a person who made criminal use of the property;

(c) the objector is an innocent party in relation to the property; and

(d) each other owner (if there are more than one) is an innocent party in relation to the property.

(5) If the objector establishes the matters set out in subsection (4)(a), (b) and (c), but fails to establish the matter set out in subsection (4)(d), the court may order that, when the property is sold after confiscation, the objector is to be paid an amount equal to the amount that bears to the value of the property the same proportion as the objector's share of the property bears to the whole property.

(6) In an order under subsection (5), the court is to specify the proportion that it finds to be the objector's share of the property.

116 The term 'crime‑used', in relation to property, is defined in s 146. By s 146(1), property is crime‑used if:

(a) the property is or was used, or intended for use, directly or indirectly, in or in connection with the commission of a confiscation offence, or in or in connection with facilitating the commission of a confiscation offence;

(b) the property is or was used for storing property that was acquired unlawfully in the course of the commission of a confiscation offence; or

(c) any act or omission was done, omitted to be done or facilitated in or on the property in connection with the commission of a confiscation offence.

117 Section 82(1) empowers the court to set aside 'a freezing notice or freezing order for property that was frozen on the ground that it is crime‑used'. Section 82(3) empowers the court to set aside 'the freezing notice or freezing order for the property' if the objector establishes certain specified matters. Section 82(4) empowers the court to set aside 'the freezing notice or freezing order' if the objector establishes certain matters. Section 82(5) is, in substance, a subset of s 82(4). Section 82(3), s 82(4) and s 82(5) do not specify the ground on which the freezing notice or freezing order in question was made but it is plain, in my opinion, when s 82 is read as a whole and, in particular, from the use of the indefinite article 'a' in subsection (1) and the use of the definite article 'the' in subsections (3) and (4), that the court's power under s 82(3), s 82(4) and s 82(5) may only be exercised if the freezing notice or freezing order in question was made on the ground that the frozen property is crime‑used. (emphasis added)

118 Section 83 permits the court to set aside a freezing notice or freezing order for property that was frozen on the ground that it is crime‑derived property. It provides, relevantly:

(1) The court may set aside a freezing notice or freezing order for property that was frozen on the ground that it is crime‑derived if the objector establishes that it is more likely than not that the property is not crime‑derived.

(2) If the court finds that the property is crime‑derived, or is not required to decide whether the property is crime‑derived, the court may set aside the freezing notice or freezing order if the objector establishes that it is more likely than not that ‑

(a) the objector is the owner of the property, or is one of 2 or more owners of the property;

(b) the property is not effectively controlled by a person who wholly or partly derived or realised the property, directly or indirectly, from the commission of a confiscation offence;

(c) the objector is an innocent party in relation to the property; and

(d) each other owner (if there are more than one) is an innocent party in relation to the property.

(3) If the objector establishes the matters set out in subsection (2)(a), (b) and (c), but fails to establish the matter set out in subsection (2)(d), the court may order that, when the property is sold after confiscation, the objector is to be paid an amount equal to the amount that bears to the value of the property the same proportion as the objector's share of the property bears to the whole property.

(4) In an order under subsection (3), the court is to specify the proportion that it finds to be the objector's share of the property.

119 The term 'crime‑derived', in relation to property, is defined in s 148. By s 148(1), property that is wholly or partly derived or realised, directly or indirectly, from the commission of a confiscation offence is crime‑derived, whether or not:

(a) anyone has been charged with or convicted of the offence;

(b) anyone who directly or indirectly derived or realised the property from the commission of the offence has been identified; or

(c) anyone who directly or indirectly derived or realised the property from the commission of the offence was involved in the commission of the offence.

120 On the basis of my reasoning in relation to s 82(3), s 82(4) and s 82(5), I am of the opinion that the court's power under s 83(2) and s 83(3) is exercisable only if the freezing notice or freezing order in question was made on the ground that the frozen property is crime‑derived. See [117] above.

121 Section 83 is materially different from s 82 in that s 83 does not have a provision comparable to s 82(3). Section 82(1) is comparable to s 83(1), s 82(4) is comparable to s 83(2), s 82(5) is comparable to s 83(3) and s 82(6) is comparable to s 83(4).

122 The Act does not in terms confer on the court power to make a freezing order (or confer on a justice of the peace power to issue a freezing notice) for property on the ground that it is crime‑used or crime‑derived. By s 43(8), however, the court may make a freezing order for property 'if there are reasonable grounds for suspecting' that the property is crime‑used or crime‑derived. (Section 34(2) is relevantly in identical terms in relation to the power of a justice of the peace to issue a freezing notice.) In my opinion, on a proper construction of s 43(8) (and s 34(2)) in the context of s 82 and s 83 and the Act as a whole, it is apparent that the references in s 82 and s 83 to a freezing notice or freezing order made on the ground that the property in question is crime‑used or crime‑derived are to a freezing notice or freezing order made under s 43(8) (or s 34(2)).

123 The term 'innocent party', which is to be found in s 82(3) and s 82(4) and s 83(2), is defined in s 153. It is unnecessary, in these reasons, to refer to the definition in any detail. Broadly and generally, the term describes a person who was not in any way involved in the commission of the relevant confiscation offence and did not know, and had no reasonable grounds for suspecting, that the offence was being or would be committed, or took all reasonable steps to prevent its commission.

(a) a freezing order for property that was frozen under s 43(3), that is, a freezing order made for all or any property that is owned or effectively controlled by a person, or that the person has at any time given away, if a production order has been made against the person; an application has been made against the person for an unexplained wealth declaration, a criminal benefits declaration, a crime‑used property substitution declaration or a production order; or the DPP advises the court that such an application is likely to be made within 21 days after the freezing order is made;

(b) a freezing order for property that was frozen under s 43(5), that is, a freezing order made for all or any property that is owned or effectively controlled by a person, or that the person has at any time given away, if the person has been charged with an offence, or the DPP advises the court that a person is likely to be charged with an offence within 21 days after the freezing order is made, and the person could be declared to be a drug trafficker under s 32A(1) of the Misuse of Drugs Act 1981 (WA) if he or she is convicted of the offence.

Section 84 also empowers the court to set aside a freezing notice issued for property under s 34(3). The provisions of s 34(3) are not materially different from those of s 43(5).

(1) The court may set aside a freezing order for property that was frozen under section 43(3) if the court finds that it is more likely than not that the person who is or will be the respondent to the unexplained wealth declaration, criminal benefits declaration or crime‑used property substitution declaration does not own or effectively control the property, and has not at any time given it away.

(2) The court may set aside a freezing notice issued for property under section 34(3) or a freezing order for property that was frozen under section 43(5) if the court finds that it is more likely than not that the person who is or will be charged with the offence does not own or effectively control the property, and has not at any time given it away.

126 Section 85, s 86 and s 87 are concerned with the release of property that has been confiscated under s 6 or s 7.

127 By s 85(1), a person may apply to the court for the release of property that has been confiscated under s 6 or s 7. Section 85(2) provides that the application must be made within 28 days after the person became aware, or can reasonably be expected to have become aware, that the property has been confiscated. There is no provision for the 28 day period to be extended.

128 The State is a party to proceedings on an application under s 85: see s 86.

129 Section 87 empowers the court, on hearing an application under s 85, to make orders for the release of confiscated property. It provides, relevantly:

(1) On hearing an application under section 85, the court may order the release of any property if it is more likely than not that ‑

(a) immediately before the confiscation of the property, the applicant owned the property, or was one of 2 or more owners of the property;

(b) the property is not effectively controlled by a person who made criminal use of the property, or by a person who wholly or partly derived or realised the property, directly or indirectly, from the commission of a confiscation offence;

(c) the applicant did not become aware, and can not reasonably be expected to have become aware, until after the property was confiscated, that the property was liable to confiscation under section 6 or 7;

(d) the applicant is or was an innocent party in relation to the property; and

(e) each other owner (if there are more than one) is or was an innocent party in relation to the property.

(2) If the court orders the release of the property ‑

(a) if the property is money ‑ an amount equal to the amount of the money is to be paid to the objector from the Confiscation Proceeds Account;

(b) if the property is not money, and has not been disposed of ‑ the property is to be given to the objector; and

(c) if the property is not money, and has been sold ‑ an amount equal to the value of the property is to be paid to the objector from the Confiscation Proceeds Account.

(3) If the objector establishes the matters set out in subsection (1)(a), (b), (c) and (d), but fails to establish the matter set out in subsection (1)(e), the court may order the release of the objector's share of the property.

(4) In an order under subsection (3) the court is to specify the proportion that it finds to be the objector's share of the property.

(5) If the court makes an order under subsection (3), the objector is to be paid out of the Confiscation Proceeds Account ‑

(a) if the property is money ‑ an amount equal to the objector's share of the money; and

(b) if the property is not money ‑ an amount equal to the amount that bears to the value of the property the same proportion as the objector's share of the property bears to the whole property.

130 The power of the court under s 87 to make orders for the release of confiscated property is broader than the court's powers under s 82, s 83 and s 84 to set aside a freezing order for property. Section 87 applies generally to confiscated property and is not limited by reference to the ground or grounds on which a freezing notice or freezing order was made in respect of the property in question.

131 However, s 87(1)(c) significantly restricts the power of the court to make an order for the release of confiscated property. The court must be satisfied it is more likely than not that the applicant did not become aware, and cannot reasonably be expected to have become aware, until after the property was confiscated, that the property was liable to confiscation under s 6 or s 7.

132 Section 87(1) uses the word 'may' in the context of providing that the court may order the release of confiscated property. Although it is unnecessary, in the present case, to express a final opinion on the point, my preliminary view is that the word 'may' does not confer a discretion or residual discretion on the court. Rather, s 87(1) confers a power which must be exercised upon the court being satisfied in relation to the existence of each of the matters specified in pars (a) ‑ (e) of the subsection. Generally, see Finance Facilities Pty Ltd v Federal Commissioner of Taxation [1971] HCA 12; (1971) 127 CLR 106, 134 ‑ 135; Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194 [19]; Leach v The Queen [2007] HCA 3; (2007) 230 CLR 1 [38].

133 Finally, in relation to pt 6, I note that a person whose property is affected by an ex parte freezing order may apply to have it set aside for such reasons as the absence of jurisdiction, material non‑disclosure and changed circumstances. See Bennett & Co (a firm) v Director of Public Prosecutions (WA) [2005] WASCA 141; (2005) 31 WAR 212 [64]; Mansfield v Director of Public Prosecutions (WA) [2006] HCA 38; (2006) 226 CLR 486 [8].

The interaction between s 79 and the other objection provisions in pt 6

134 Section 79 regulates the filing of objections to the confiscation of frozen property. Its provisions are general in their application to frozen property. They do not confine the right to file an objection by reference to the particular ground or grounds on which the freezing order was made.

135 However, s 79 must be read and construed with the other provisions of pt 6 which are concerned with objections to confiscation.

136 By s 81(1), a court hearing an objection may only set aside a freezing notice or freezing order to the extent permitted under s 82, s 83 or s 84. If the property in question was frozen on two or more grounds, but the court does not set aside the freezing notice or freezing order in relation to both or all of the grounds, the notice or order continues in force as if it had been made on each remaining ground: see s 81(2).

137 Section 82 permits the court to set aside a freezing notice or freezing order for property that was frozen on the ground that it is crime‑used property; that is, relevantly, a freezing order for property made pursuant to s 43(8) in that there are reasonable grounds for suspecting that the property is crime‑used. Section 82 does not permit the court to set aside a notice or order for property that was frozen on any other ground.

138 Section 83 permits the court to set aside a freezing notice or freezing order for property that was frozen on the ground that it is crime‑derived property; that is, relevantly, a freezing order for property made pursuant to s 43(8) in that there are reasonable grounds for suspecting that the property is crime‑derived. Section 83 does not permit the court to set aside a notice or order for property that was frozen on any other ground.

139 Section 84 permits the court to set aside a freezing order for property that was frozen under s 43(3). A freezing order may be made under s 43(3) in respect of property owned or effectively controlled by a person, or that the person has at any time given away, only if:

(a) a production order has been made against the person;

(b) an application has been made against the person for an unexplained wealth declaration, a criminal benefits declaration, a crime‑used property substitution declaration or a production order; or

(c) the DPP advises the court that such an application is likely to be made within 21 days after the freezing order is made.

140 Section 84 also permits the court to set aside a freezing order made under s 43(5). A freezing order may be made under s 43(5) in respect of property owned or effectively controlled by a person, or that the person has at any time given away, only if:

(a) the person has been charged with an offence; or

(b) the DPP advises the court that a person is likely to be charged with an offence within 21 days after the freezing order is made,

and the person could be declared to be a drug trafficker under s 32A(1) of the Misuse of Drugs Act if he or she is convicted of the offence.

141 Section 84 does not permit the court to set aside a freezing order for property that was frozen under any other provision than s 43(3) or s 43(5).

142 In my opinion, when s 79 is read and construed with the other provisions of pt 6 which are concerned with objections to confiscation (in particular, s 81, s 82, s 83 and s 84), it is apparent that, despite the general language of s 79, a notice of objection to the confiscation of frozen property may only be filed if the property in question has been frozen on a ground or grounds in respect of which the court may grant relief under s 82, s 83 or s 84. If property has been frozen on a ground in respect of which the court may not grant relief under s 82, s 83 or s 84, a notice of objection may not be filed under s 79.

The interaction between the confiscation provision in s 6 and the scheme for objections to confiscation under pt 6

143 By s 6, read with s 26(1), frozen property is confiscated when it is given or taken, with the respondent's consent, in payment or part‑payment of:

(a) the respondent's liability under s 14 to pay the amount specified in an unexplained wealth declaration made by the court in respect of the respondent;

(b) the respondent's liability under s 20 to pay the amount specified in a criminal benefits declaration made by the court in respect of the respondent; or

(c) the respondent's liability under s 24 to pay the amount specified in a crime‑used property substitution declaration made by the court in respect of the respondent.

144 Each of these declarations may only be made by the court pursuant to and after the hearing of an application by the DPP for the declaration in question, and subject to the court being satisfied of the matters set out in s 12(1) (in the case of an application for an unexplained wealth declaration), s 16(1) or s 17(1) (in the case of an application for a criminal benefits declaration) or s 22 (in the case of an application for a crime‑used property substitution declaration).

145 Where the court has made a freezing order in respect of property owned or effectively controlled by a person, or that the person has at any time given away, on the ground that:

(a) an application has been made against the person for, relevantly, an unexplained wealth declaration, a criminal benefits declaration or a crime‑used property substitution declaration (see s 43(3)(b)); or

(b) the DPP has advised the court that, relevantly, such an application is likely to be made within 21 days after the freezing order is made (see s 43(3)(c), read with s 43(3)(b)),

the person may file an objection under s 79(1) to the confiscation of the frozen property in that the property has been frozen on a ground in respect of which the court may grant relief under s 84(1).

146 However, there is no relationship between the circumstances which cause property to be confiscated under s 6 on the one hand, and the filing of or failure to file an objection under s 79(1) to the confiscation of the property on or before the 28th day after the service cut off date on the other.

The interaction between the confiscation provision in s 7 and the scheme for objections to confiscation under pt 6

147 By s 7(1), frozen property is confiscated if an objection to the confiscation of the property is not filed on or before the 28th day after the service cut off date for the property.

148 By s 7(2), if an objection to the confiscation of frozen property is filed on or before the 28th day after the service cut off date for the property, the property is confiscated if:

(a) the objection, or each objection if there are more than one, is finally determined;

(b) where the property is subject to a freezing notice ‑ the freezing notice is not cancelled or set aside; and

(c) where the property is subject to a freezing order ‑ the freezing order is not set aside.

149 There is a relationship between the confiscation of frozen property under s 7(1) on the one hand, and the failure of any person to file an objection under s 79(1) to the confiscation of the property within 28 days after the service cut off date on the other.

150 Section 7(1) provides for frozen property to be confiscated automatically upon the failure of any person to file under s 79(1) an objection to the confiscation.

151 Despite the general language of s 79, a notice of objection to the confiscation of frozen property may only be filed if the property in question has been frozen on a ground or grounds in respect of which the court may grant relief under s 82, s 83 or s 84. See [142] above.

152 It follows, in my opinion, that the automatic confiscation of frozen property under s 7(1) is coextensive with:

(a) the existence of a right in any person to file an objection under s 79(1) to the confiscation of the property; and

(b) the failure of any person to file an objection under s 79(1) within 28 days after the service cut off date for the property.

153 Frozen property will not be automatically confiscated under s 7(1) unless the property was frozen on one or more grounds in respect of which the court is permitted to grant relief under s 82, s 83 or s 84.

154 Confiscation under s 7(1) occurs automatically by operation of the provision itself. It is not dependent upon the DPP applying for and the court making a declaration of confiscation under s 30.

155 Where a notice of objection is filed under s 79, the filing of the objection suspends the confiscation process until the court has heard and determined the merits of the objection.

The interaction between the confiscation provision in s 8 and the scheme for objections to confiscation under pt 6

156 By s 8(1), when a person is declared to be a drug trafficker under s 32A(1) of the Misuse of Drugs Act as a result of being convicted of a confiscation offence that was committed after the commencement of the Act, the following property is confiscated:

(a) all the property that the person owns or effectively controls at the time the declaration is made; and

(b) all property that the person gave away at any time before the declaration was made, whether the gift was made before or after the commencement of the Act.

157 Where the court makes a freezing order in respect of property owned or effectively controlled by a person, or that the person has at any time given away, on the ground that:

(a) the person has been charged with an offence, or the DPP advises the court that a person is likely to be charged with an offence within 21 days after the day on which the freezing order is made; and

(b) the person could be declared to be a drug trafficker under s 32A(1) of the Misuse of Drugs Act if he or she is convicted of the offence (see s 43(5)),

the person may file an objection under s 79(1) to the confiscation of the frozen property in that the court may grant relief under s 84(2) in respect of the freezing order.

158 However, there is no relationship between the circumstances which cause property to be confiscated under s 8(1) on the one hand, and the filing of or failure to file an objection under s 79(1) to the confiscation of the property on or before the 28th day after the service cut off date on the other.

Was the appellant entitled to file an objection under s 79(1) to the confiscation of the frozen funds within 28 days after the service cut off date?

159 Scott J made the freezing order in respect of the funds standing to credit in the bank account with Westpac Banking Corporation pursuant to:

(a) s 43(1)(b), on the ground that the DPP had applied for an examination order in relation to the funds; and

(b) s 43(3)(c), read with s 43(3)(b), on the ground that the DPP had advised the court that an application for a crime‑used property substitution declaration and a criminal benefits declaration were likely to be made against Mr Smith within 21 days after the freezing order was made.

160 The appellant was not entitled to file an objection under s 79(1), read with s 82, to the confiscation of the frozen funds in that the funds were not frozen on the ground that they were crime‑used. Further, the appellant was not entitled to file an objection under s 79(1), read with s 83, to the confiscation of the frozen funds in that the funds were not frozen on the ground that they were crime‑derived. Scott J did not make the freezing order pursuant to s 43(8).

161 The appellant was, however, entitled to file an objection under s 79(1), read with s 84(1), to the confiscation of the frozen funds in that one of the grounds of which Scott J made the freezing order was that the DPP was likely to apply against Mr Smith for a crime‑used property substitution declaration and a criminal benefits declaration within 21 days after the freezing order is made (see s 43(3)(c), read with s 43(3)(b)). By s 84(1), the court was empowered to set aside the freezing order made by his Honour if the court found that it was more likely than not that Mr Smith (being 'the person who is or will be the respondent to the ... criminal benefits declaration or crime‑used property substitution declaration') did not own or effectively control the funds, and had not at any time given the funds away.

162 For completeness, I should note that the appellant was not entitled to file an objection under s 79(1), read with s 84(2), to the confiscation of the frozen funds in that Scott J did not make the freezing order under s 43(5).

163 Also, I should note that the appellant's entitlement to file an objection arose solely in consequence of Scott J having made the freezing order pursuant to s 43(3)(c), read with s 43(3)(b). No such entitlement arose in consequence of his Honour having, in addition, made the order pursuant to s 43(1)(b). The court is not permitted to grant relief under s 82, s 83 or s 84 where the ground for making a freezing order in respect of property was pursuant to s 43(1)(b).

The merits of the appeal: does the court have jurisdiction to extend time after the property, the subject of a freezing order, has been confiscated?

164 The appellant made an application under s 79(2) and s 79(4) to extend the time for filing an objection to the confiscation of the frozen funds. It did not make an application under s 85 for the release of the funds; that is, it did not challenge the confiscation of the funds.

165 The learned primary judge held that, on a proper construction of s 79 of the Act, the court does not have jurisdiction to extend time after the property, the subject of a freezing order, has been confiscated.

166 By s 79(2), relevantly, if a copy of a freezing order is served on a person, any objection by the person must be filed:

(a) within 28 days after the day on which the copy of the notice or order was served on the objector; or

(b) within any further time allowed by the court.

167 Section 79(4) provides, relevantly, that the court may allow further time under s 79(2) even if the time for filing the objection has expired.

168 By s 7(1), frozen property is confiscated if an objection to the confiscation is not filed on or before the 28th day after the service cut off date for the property.

169 In my opinion, the court has jurisdiction to extend time under s 79(2) and s 79(4) if, and only if, an application for an extension is made, and the court allows further time pursuant to the application, before the property has been confiscated under s 7(1). I am of that opinion for the following reasons.

170 First, pt 6 expressly distinguishes between objections to the confiscation of frozen property on the one hand and applications for the release of confiscated property on the other. On the hearing of an objection to the confiscation of frozen property, the court is empowered to grant relief, to the extent (and only to the extent) permitted under s 82, s 83 and s 84, by setting aside the freezing order. Section 48 and s 49 are concerned with the duration of freezing orders. They provide, relevantly, that a freezing order made under s 43(1), s 43(3), s 43(5) or s 43(8) stops being in force:

(a) in the case of registrable real property, when a memorial in relation to the property is registered under s 113(1): relevantly, for present purposes, a memorial must be registered under s 113(1) if the property is confiscated under s 6, s 7 or s 8;

(b) in the case of property (except registrable real property), as soon as the property is confiscated under s 6, s 7 or s 8.

171 Secondly, the service cut off date in relation to frozen property, as defined in s 150, is not extended or otherwise affected in the event of the court allowing further time under s 79(2) and s 79(4) for filing an objection to the confiscation of frozen property.

172 Thirdly, there is no provision in s 7 or elsewhere in the Act for the release of confiscated property or the rescission or revocation of a confiscation of property in the event of a court allowing further time under s 79(2) and s 79(4) for filing an objection.

173 Fourthly, there is no provision in the Act for any readjustment of the rights and liabilities as between the State as the entity in whom confiscated property is vested absolutely (see s 9 and s 10) and other parties, except in the context of those provisions of pt 6 which deal with applications for the release of confiscated property and orders by the court releasing confiscated property (see s 87; in particular, s 87(5)).

174 These considerations indicate decisively that, despite the general and unqualified language of s 79, the preferable and correct construction of s 79(2) and s 79(4), in the context of pt 6 and the Act as a whole, is that the court's power to allow further time is not available where the frozen property has already been confiscated automatically under s 7(1).

175 My opinion that the court does not have jurisdiction to extend time after the property, the subject of a freezing order, has been confiscated, does not render wholly nugatory the power of the court to allow further time under s 79(2) and s 79(4). These provisions still have work to do.

176 The power to extend time may be exercised where a person has filed an objection within time which has not been finally determined, as contemplated by s 7(2)(a), and another person (or persons) wishes to file an objection after the 28 day period referred to in s 79(2)(a) has expired in relation to that other person (or persons).

177 Also, the court may extend time where no objection has been filed but a person who wishes to object applies for, and the court allows, further time before the occurrence of the 28th day after the service cut off date for the property. This may occur where a person who has been served under s 46(1) gives a statutory declaration in accordance with s 47 in which the person reveals the existence of another person who is or may be, or claims to be, an interested party.

178 The power to extend time is not exercisable, however, where no objection has been filed, and an application for further time is not made, and the court does not allow further time, before the occurrence of the 28th day after the service cut off date for the property. A person whose interests are affected by the confiscation of property under s 7(2) may, of course, apply under s 85 for the release of the property, but the person may be unable to rely on that provision in that, as I have mentioned, there is no power to extend the 28 day period prescribed by s 85(2) and the condition in s 87(1)(c) is a significant restriction on the power of the court to order the release of confiscated property. No doubt, in these circumstances, the absence of power to extend time may, in some individual cases, operate unfairly or even give rise to a serious injustice. Although the rationale for the limitation upon the jurisdiction of the court to extend time under s 79(2) and s 79(4) is not readily apparent, the limitation appears to have been the result of a calculated and deliberate decision of the Parliament. As the High Court observed in Mansfield [50], the Act is not only complex (as my review of the legislation demonstrates), but draconian.

The merits of the appeal: does the court have inherent jurisdiction to extend time?

179 The learned primary judge held that the court does not have inherent jurisdiction to extend time. His Honour was, with respect, correct.

180 In my opinion, the court does not have inherent jurisdiction to grant an extension of time to permit a person to file an objection under s 79 after the property, the subject of a freezing order, has been confiscated.

181 The court cannot resort to its inherent jurisdiction to override the statutory scheme for the confiscation of property under s 7 or the statutory scheme for circumscribing the time within which an objection may be filed or the circumstances in which the court may grant an extension of time. See Reid v Howard [1995] HCA 40; (1995) 184 CLR 1, 16 ‑ 17; DJL v The Central Authority [2000] HCA 17; (2000) 201 CLR 226 [25] ff. The court may, of course, exercise its inherent jurisdiction in respect of matters regulated by a statute or the rules of court, but only if this can be done without contravening the statute or rules. See Landsal Pty Ltd (in liq) v REI Building Society, now The Co‑operative Building Society of South Australia [1993] FCA 121; (1993) 41 FCR 421, 427 ‑ 428; Re Hoffman [2004] WASCA 238; (2004) 187 FLR 263 [23] ‑ [24].

182 In the present case, if the court were to grant an extension of time in its inherent jurisdiction, it would be acting in disregard of the statutory limitations upon the exercise of the power in s 79 to allow further time, and would be circumventing the scheme of the legislation by enabling a person in the position of the appellant to, in substance, challenge the confiscation of property without satisfying the requirements of s 87. The court's inherent jurisdiction is not available in these circumstances.

183 For similar reasons, I am of the opinion that the court's power under O 42 r 2 to antedate orders is, also, unavailable.