Commissioner of the Australian Federal Police v Mazzco Investments Pty Ltd & Ors.

lice (plaintiff) Despina Katherine Mavris (fourth defendant) Representation: Counsel: Mr L Livingston SC with Mr R Perla (plaintiff) Mr A McInerney SC with Mr K Josifoski (fourth defendant)

Solicitors: Australian Federal Police (plaintiff) Fortis Law (fourth defendant) File Number(s): 2018/22509 Publication restriction: Nil

Introduction

1. These reasons deal with two separate questions framed so as to determine whether it is permissible to use the production power in s 202 of the Proceeds of Crime Act 2002 (Cth) ('the POCA') once proceedings under the POCA have been commenced. [1]
2. The issue has arisen because, following commencement of proceedings by the Commissioner of the Australian Federal Police ('the Commissioner') and the securing of, inter alia, a number of restraining orders, the Commissioner sought production orders under s 202 of the POCA. Those production orders - directed, broadly, to financial institutions and lawyers/conveyancers - required production of property-tracking documents. Some of the documents produced in response to the production orders were deployed by the Commissioner in evidence in these proceedings.
3. Despina Mavris ('the fourth defendant') submits that the use of the power in s 202 in those circumstances was not authorised by the POCA. Three arguments were advanced: first, as a matter of construction, the power in s 202 was exhausted, and unable to be utilised, once proceedings under the POCA had been commenced; secondly, it was beyond power, and invalid, for a magistrate to make those production orders once proceedings were commenced; and, thirdly, the Commissioner in seeking (and securing) those orders, and subsequently using the material produced in the proceedings in this Court amounts to an interference with the administration of justice, and a contempt of court.
4. The two questions for separate determination directed to resolving these issues are: 1. On its proper construction, does section 202 of the Proceeds of Crime Act 2002 (Cth) (Act) permit the Commissioner of the Australian Federal Police to apply for and obtain production orders, in circumstances where proceedings under the Act (POCA Proceedings) have commenced? 2. If the answer to the first question is yes, on its proper construction, does section 202 of the Act permit the Commissioner of the Australian Federal Police to apply for and obtain production orders, in circumstances where the sole or dominant purpose is to obtain evidence for use in the POCA proceedings?
5. A short explanation about the issues and questions should be made. As is apparent, there are three issues and two questions. When orders for the separate determination were made, the fourth defendant had not raised the constitutional argument: that argument arose for the first time when the fourth defendant served its written submissions dated 17 October 2023. Subject to the procedural issue - described immediately below - the arguments of the parties nevertheless proceeded on the basis that the constructional and constitutional arguments (the first and second issues) were within the first separate question. The matter has been approached on that basis (albeit that I return to the form of the questions later in these reasons: see [149], below).

A procedural issue

1. During the course of the hearing, and after the Commissioner had made its submissions, a complication emerged. Despite filing a 'statement of proposed facts' sought to be proven as well as written submissions (and submissions in reply) that dealt, somewhat extensively, with whether s 202 of the POCA was the subject of an implied limitation - to the effect, absent clear authorisation to the contrary, the section should be construed in a way so as not to authorise the use of the power if the circumstances are such that to do so would amount to a contempt of court - the fourth defendant essentially indicated that she neither apprehended that issue was to be dealt with in the course of this hearing, nor ready to deal with that broad topic if it was. The fourth defendant also foreshadowed the need for some further evidence.
2. It is, as the Commissioner pointed out, a little difficult to see how the issue was not one which was contemplated to be dealt with during the course of this hearing given the submissions and material that the fourth defendant filed. Nevertheless, given the fourth defendant's stated position, and the prospect of further delay if the matter was the subject of an adjournment, I ruled that I would only deal with the construction and constitutional questions (in effect, question one).

Background

1. I set out below the background facts. They reflect my findings.

The circumstances giving rise to the Commissioner's proceedings

1. On 23 May 2018 the Late Dimitrios (Jim) Mavris was arrested at Sydney Airport by Australian Federal Police ('AFP') officers, and subsequently interviewed by them. On 24 May 2018 he was charged with the offence import a commercial quantity of a border-controlled drug contrary to s 307.1 of the Criminal Code 1995 (Cth): in short, the allegation was that on or around 23 March 2018, Mr Mavris attempted to import into Australia from Peru, 59kg of cocaine concealed inside the walls of two shipping containers. The cocaine had a value that had been estimated to be between $AUD11,800,000 and $AUD12,980,000, and up to $AUD20,000,000.
2. Following being taken into custody, on 25 May 2018, Mr Mavris was found dead in his cell from an apparent suicide.
3. On 30 May 2018 the charge against Mr Mavris was withdrawn.
4. The Commissioner's evidence also sets out circumstances of a money laundering offence. It is alleged that Mr Mavris and Mazzco Investments Pty Limited each committed a serious offence, or offences, being dealing in money or property worth $AUD100,000 or more which was reasonably suspected of being proceeds of crime, contrary to s 400.9(1) of the Criminal Code. Put very simply, it is alleged that this offence arose from the value of properties being grossly disproportionate to the declared income of each of them: in the case of properties owned by (or, alleged to be subject to the effective control of) Mr Mavris in Woolloomooloo, each were purchased in close proximity to the importation of two consignments of semi-processed cow hides from Colombia in 2012 and 2013 - consignments that are suspected to have contained border-controlled drugs.

The AFP proceedings in this Court

1. On 19 July 2018 the Commissioner commenced proceedings under the POCA by summons, naming four defendants: Mazzco Investments Pty Limited (the first defendant); Mr Mavris (the second defendant); the Administrator of the Estate of the Late Dimitrios (Jim) Mavris (the third defendant); and Despina Mavris (the fourth defendant). The only active defendant is the fourth defendant.
2. By that summons, the Commissioner sought a number of restraining (orders 3-7), custody and control (orders 15-16), and forfeiture orders (orders 18-22) under the POCA over eight properties. Mazzco Investments Pty Ltd - of which Mr Mavris was its sole director and shareholder - was the registered proprietor of six properties in Pyrmont ('the Pyrmont Properties') and the fourth defendant is the registered proprietor of two properties in Woolloomooloo ('the Woolloomooloo Properties'). The Commissioner also sought pecuniary penalty orders against Mazzco Investments Pty Limited; Mr Mavris; and the Administrator of the Estate of the Late Dimitrios (Jim) Mavris (order 17).
3. On 19 July 2018, Schmidt J made nineteen orders pursuant to the Commissioner's summons, including restraining orders under ss 18 and 19 of the POCA in connection with the Pyrmont Properties and the Woolloomooloo Properties. Relevantly here, the orders restrained the fourth defendant from selling or otherwise disposing of the Woolloomooloo Properties - it being alleged that the Woolloomooloo Properties were the property of the fourth defendant "that was subject to the effective control of the Late Dimitrios (Jim) Mavris" (order 3). Further, in relation to the Woolloomooloo Properties, the restraining orders were made under both ss 18 and 19 of the POCA.

The fourth defendant's notice of motion and summons

1. On 17 August 2018 the fourth defendant filed a notice of motion (the 'revocation and exclusion' motion) seeking two primary orders in connection with the restraining orders made by Schmidt J: 1. first, an order, pursuant to s 42(5) of the POCA, that orders 3-7 made by Schmidt J on 19 July 2018 be revoked - that is, an order revoking the restraining orders made under ss 18 and 19 of the POCA in relation to the Pyrmont and Woolloomooloo Properties; and, 2. secondly, and alternatively, an order pursuant to ss 29 and/or 31 of the POCA that the Pyrmont and Woolloomooloo Properties be excluded from the restraining orders made by Schmidt J on 19 July 2018.
2. Given that the fourth defendant was the registered proprietor only of the Woolloomooloo Properties, the basis for the fourth defendant seeking orders in connection with the Pyrmont Properties was not explored on the current hearing, and need not be considered further.
3. On 18 August 2022 the fourth defendant filed a further amended cross summons. By that further amended cross summons, the fourth defendant seeks: 1. declaratory and injunctive relief on the basis that the use by the Commissioner of the information gathering powers under the POCA after the commencement of the proceedings "for the sole or dominant purpose of adducing evidence in the proceedings was not authorised by the Act", or in the alternate if it was authorised, that it nevertheless constituted an excess of power and was unlawful or an abuse of process, where it had a "real risk of, or involves a tendency to interfere with, the administration of justice and the exercise of judicial power in federal jurisdiction by conferring an advantage on the Plaintiff not available under the Court's processes" such that the Commissioner's conduct was "in excess of power and unlawful, or an abuse of process, and null and void" (further amended cross summons, relief claimed, par 1); 2. a declaration that production orders issued to third parties pursuant to Part 3-2 of the POCA are "invalid, null and void" (further amended cross summons, relief claimed, par 1A); 3. an "order setting aside as invalid, null and void the production orders issued" to third parties pursuant to Part 3-2 of the POCA (further amended cross summons, relief claimed, par 1B); 4. an order restraining the Commissioner from "in any way using, or relying on, as evidence or otherwise" any documents obtained by the Commissioner by the issue of the production orders (further amended cross summons, relief claimed, par 2); and 5. an order that the Commissioner be required to "identify, deliver up, and then destroy" such documents (further amended cross summons, relief claimed, par 3).

Use of information gathering powers

1. In the period 24 October 2018 to 31 July 2019, the Commissioner applied to various Local Court Magistrates for the issuing of seventeen production orders pursuant to s 202 of the POCA - either directed to financial institutions or lawyers/conveyancers - requiring the production of property-tracking documents.
2. In relation to each application, an authorised officer within the POCA (see s 338 of the POCA) - being, a member of the AFP authorised by the Commissioner - swore an affidavit in support of the making of production orders. The content of each of those affidavits was essentially identical. The authorised officer (relevantly) disclosed: the background to the charges against Mr Mavris; that proceedings had been commenced by the Commissioner under the POCA; that orders had been made by Schmidt J in connection with the Woolloomooloo and Pyrmont Properties; and that the property-tracking documents requested "will provide evidence as to the unlawful accumulation of wealth by [Mr Mavris] in support of the ultimate forfeiture of property restrained in the orders made by Justice [Schmidt]".
3. On 24 October 2018, Atkinson LCM made production orders directed to six third parties - namely, Bowles Lawyers Pty Ltd; Firmstone Lawyers; Owen Hodge Lawyers; Gailee Solicitors Pty Ltd; Fox Stevens Conveyancing Pty Ltd; and Judy Howard Conveyancing. The orders made required production of property-tracking documents by 8 November 2018.
4. On 22 November 2018, Funston LCM made production orders directed to four third parties - namely, M Law Group; Moray & Agnew Lawyers; Growthbuilt Pty Ltd; and Eclipse Prudent Mortgage Corporation. The orders made required production of property-tracking documents by 7 December 2018.
5. On 16 May 2019, Kennedy LCM made production orders directed to four third parties - namely, St George Bank; Bendigo and Adelaide Bank Ltd; National Australia Bank Ltd; and Bank of Sydney Ltd. The orders made required production of property-tracking documents by 31 May 2019.
6. On 10 July 2019, Atkinson LCM made production orders directed to two third parties - namely, Commonwealth Bank of Australia Ltd and Ronayne Lawyers Pty Ltd. The orders made required production of property-tracking documents by 25 July 2019.
7. On 19 July 2019, Milledge LCM made a production order directed to one third party - namely, BankWest. The orders made required production of property-tracking documents by 2 August 2019.

The nature of the documents produced

1. The documents produced in response to the production orders were not in evidence, but it was accepted that what was produced was in excess of 1000 pages of material. The fourth defendant's evidence also indicated that a "fraction" of that material was, in fact, used by the Commissioner in the evidence that they filed in 2019. The evidence did not identify those documents, although there was a schedule of the documents produced in evidence. Nevertheless, given the agreed limitation of use of the evidence, no further findings can, or need be made.
2. Aside from the fourth defendant's overarching objection to the use of the power following commencement of these proceedings (and the argument that its use conferred an advantage upon the Commissioner, and disadvantage upon her, so as to give rise to a contempt of court - as to which, see par A2 of the further amended cross summons), no issue has been raised about any irregularity or non-compliance with the making of the production orders.

The POCA: an overview

1. The POCA "provides a regime by which property that is used in, or is the proceeds of, serious criminal offending can be forfeited to the State": Saad v Commissioner of the Australian Federal Police (2021) 361 FLR 261; [2021] VSCA 246 at [8] ('Saad'). The principal objects of the POCA include to deprive persons of the proceeds of offences, the instruments of offences and benefits derived from offences: s 5(a). In furtherance of this, and the other, principal objects, the POCA establishes a scheme to deprive persons of the proceeds of crime. It does this through the creation of "processes by which confiscation can occur" and "ways in which Commonwealth law enforcement agencies can obtain information relevant to these processes": s 6 of the POCA.

Chapter 2: the confiscation scheme

1. Chapter 2 sets out processes relating to confiscation. Some matters, by way of introduction, should be noted.
2. First, although the scheme makes provision for the confiscation of the proceeds of suspected crime in circumstances where a person has been charged, or convicted of, an offence, an important aspect of the scheme is that it makes provision "for the confiscation of the proceeds of suspected crime, in the absence of criminal proceedings or conviction": Lee v Director of Public Prosecutions (Cth) (2009) 75 NSWLR 581; [2009] NSWCA 347 at [17] ('Lee v Director of Public Prosecutions (Cth)'). There is conviction-based recovery (permitting the recovery of assets associated with a crime once a person has been convicted of, or charged with, an indictable offence) and civil recovery (permitting the recovery of assets suspected of being the proceeds of crime absent a criminal conviction). Secondly, the respective provisions within Chapter 2 have been described as "interlocking": Commissioner of the Australian Federal Police v Hart (2018) 262 CLR 76; [2018] HCA 1 at [56] ('Hart'). Thirdly, the making of a restraining order is critical to the scheme: it "is the mechanism that ensures property is not dissipated before it is able to be confiscated": Hart at [58]. Fourthly, proceedings of the kind commenced by the Commissioner are civil, not criminal: s 315(1), with s 338 of the POCA defining 'confiscation order' and 'restraining order'.
3. A general overview of these provisions is as follows. In the course of this review, specific reference will be made to those provisions referred to by the parties in the course of submissions on the proper construction of s 202.
4. Part 2-1A provides for the making of freezing orders against an account with a financial institution: once made, a financial institution is precluded from allowing a withdrawal from that account before the court makes a decision on an application for a restraining order to cover that account: ss 7(aa) and 15B(1) of the POCA. The freezing order remains in force until the end of the period specified in the order or, "if, before the end of that period, a court makes a decision on an application for a restraining order to cover the account", the time the court makes that decision: ss 15N(2)(a) and (b). Further, a "person may apply to a magistrate to revoke a freezing order", and the magistrate "may revoke the freezing order if satisfied that it is in the interests of justice to do so": ss 15R(1) and (4).

The revocation and exclusion application by the fourth defendant

1. As I have earlier pointed out, the fourth defendant, in her notice of motion filed on 17 August 2018, sought an order that the restraining order obtained by the Commissioner in connection with the Pyrmont and Woolloomooloo Properties be revoked (pursuant to s 42(5) of the POCA) and an alternative order that excluded those properties from the restraining order (pursuant to ss 29 and 31 of the POCA): see [16], above.
2. In relation to that application, the following further matters should be noted beyond that to which reference has earlier been made in the course of the review of the statutory provisions. First, where a proceeds of crime authority has applied "for a forfeiture order relating to particular property" and a person applies for an exclusion order "to exclude a specified interest in that property from a restraining order", and that application for an "exclusion order has not been withdrawn", the court must hear and determine the application for exclusion from a restraining order before the application for the forfeiture order is heard and determined: s 315A(2); Commissioner of the Australian Federal Police v Zhang (2016) 312 FLR 17; [2016] VSCA 171 at [5] and [53]. Secondly, in the event that the revocation motion is unsuccessful, the application for exclusion of property must not be heard if the proceeds of crime authority "has not been given a reasonable opportunity to conduct examinations in relation to the application": s 32(b). The "examinations" are those referred to in s 180. (That provision, and the provisions of Part 3-1 of the POCA more generally, are discussed further: see [61], below). Thirdly, following any examinations, s 31(1) permits a person who "claims an interest" in restrained property to apply for its exclusion from the restraining order under s 29. Section 29(1) permits the court to exclude "a specified interest in the property from the order" if an application is made under ss 30 or 31 and "the court is satisfied that the relevant reason" under ss 29(2) or (3) for "excluding the interest from the order exists": ss 29(1)(a) and (b).
3. In relation to a revocation application, the court may revoke the restraining order if satisfied as to either of the matters in s 42(5). Section 42(5) is in these terms: (5) The court may revoke the restraining order if satisfied that: (a) there are no grounds on which to make the order at the time of considering the application to revoke the order; or (b) it is otherwise in the interests of justice to do so.

Chapter 3: Information gathering

1. Chapter 3 of the POCA concerns 'Information gathering', and sets out five ways that Commonwealth law enforcement agencies may obtain information: 1. first, by "examining any person about the affairs of people covered by examination orders": s 8(1)(a); Part 3-1 ('Examinations'); 2. secondly, by "requiring people, under production orders, to produce property-tracking documents or make them available for inspection": s 8(1)(b); Part 3-2 ('Production orders'); 3. thirdly, by "requiring financial institutions to provide information and documents relating to accounts and transactions": s 8(1)(c); Part 3-3 ('Notices to financial institutions'); 4. fourthly, by "requiring financial institutions, under monitoring orders, to provide information about transactions over particular periods: s 8(1)(d); Part 3-4 ('Monitoring orders'); and, 5. fifthly, by "searching for and seizing tainted property or evidential material, either under search warrants or in relation to conveyances": s 8(1)(e); Part 3-5 ('Search and seizure').
2. A general (and relevant) overview of these provisions is as follows.

Part 3-1: Examinations

1. Part 3-1 deals with examinations, and Division 1 provides for the making of examination orders in certain circumstances: ss 180-181. One circumstance is where there is a restraining order in force - being an order under ss 17, 18, 19, 20 or 20A: ss 180(1) and 338 (which defines 'restraining order').
2. By s 180, if a restraining order is in force, the court which made that order (or another court that could have made the restraining order) "may make an order for the examination of any person", including "a person whose property is, or a person who has or claims an interest in property that is, the subject of the restraining order" (s 180(1)(a)); or "a person who is a suspect in relation to the restraining order" (s 180(1)(b)); or "the spouse or de facto partner of a person referred to in paragraph (a) or (b)" (s 180 (1)(c)) - that is, the order can be made against any person. Although any person may be examined - not simply those specifically nominated in ss 180(1)(a)-(c) - the subject matter of the examination is confined by s 180(1) to the "affairs of a person referred to in paragraph (a), (b) or (c)".
3. An examination order "ceases to have effect if the restraining order to which it relates ceases to have effect": s 180(2).
4. An examination order can only be made on application by the responsible authority for the principal order (a term defined in s 338 to mean a restraining, forfeiture, pecuniary penalty, literary proceeds or unexplained wealth orders), or the application for a principal order, in relation to which the examination order is sought (s 182(1)) and the court "must consider an application for an examination order without notice having been given to any person if the responsible authority requests the court to do so" (s 182(2)). The Commissioner emphasised that, if there be any doubt (in my respectful view, there is not given the terms of s 180) that such an order is made after proceedings had been commenced and for the purpose of those proceedings, s 182 puts the matter beyond doubt given the provision makes plain that the examination order was incidental to an application for a principal order.
5. The Commissioner also drew attention to the fact that, in any proceedings on an application for an order under the POCA, any transcript of the "examination is evidence of the answers given by a person put to the person in the course of the examination": s 318(2). The Commissioner emphasised that this, again, was a matter that evidenced the processes in Chapter 3 being used for proceedings instituted under Chapter 2.

Part 3-2: Production orders

1. The separate questions principally concern Part 3-2 of the POCA - in particular, the proper construction of s 202 of the POCA. That section relevantly provides: (1) A magistrate may make an order (a production order) requiring a person to: (a) produce one or more property-tracking documents to an authorised officer; or (b) make one or more property-tracking documents available to an authorised officer for inspection. (2) However: (a) the magistrate must not make a production order unless the magistrate is satisfied by information on oath that the person is reasonably suspected of having possession or control of such documents; and (b) a production order cannot require documents that are not: (i) in the possession or under the control of a body corporate; or (ii) used or intended to be used in the carrying on of a business; to be produced or made available to an authorised officer; and (c) a production order cannot require any accounting records used in the ordinary business of a financial institution (including ledgers, day-books, cash-books and account books) to be produced to an authorised officer. (3) The production order can only be made on application by an authorised officer of an enforcement agency. (4) The authorised officer need not give notice of the application to any person. …
2. In relation to the power to make a production order, it is apparent that such power is conditioned upon the magistrate being "satisfied by information on oath that the person is reasonably suspected of having possession or control" of property-tracking documents: s 202(2)(a). Once so satisfied, the power to make a production order is engaged: s 202(1).
3. Section 202(5) defines 'property-tracking document' (see also the Dictionary which defines property-tracking document as having the meaning in that section: s 338 of the POCA). Property-tracking documents relevantly include (s 202(5)): (a) a document relevant to identifying, locating or quantifying property of any person: (i) who has been convicted of, charged with, or whom it is proposed to charged with, an indictable offence; or (ii) whom there are reasonable grounds to suspect of having engaged in conduct constituting a serious offence; (b) … (c) a document relevant to identifying, locating or quantifying: (i) proceeds of an indictable offence, or an instrument of an indictable offence, of which a person has been convicted all with which a person has been charged or is proposed to be charged; or (ii) proceeds of a serious offence, or an instrument of a serious offence, that a person is reasonably suspected of having committed; …

Part 3-3: Notices to financial institutions

1. Part 3-3 deals with notices to financial institutions. Put simply, by s 213(1) an authorised officer (as to which see s 213(3)) may give a notice to a financial institution to provide authorised officer "any information or documents relevant to" the matters specified in ss 213(1)(a)-(f).
2. The authorised officer must not issue the notice unless the officer "reasonably believes" that giving the notice is required "to determine whether to take any action" under the POCA or "in relation to proceedings" under the POCA: ss 213(2)(a) and (b).

Part 3-4: Monitoring orders

1. Part 3-4 empowers a judge of a court of a State or Territory (that has jurisdiction to deal with criminal matters on indictment) to make a monitoring order - in effect, an order that a financial institution provide information about transactions of a particular kind: ss 2019(1)(a) and (b). The grounds for making that order are set out in s 219(2).
2. The Commissioner drew attention to s 223(4)(e) - permitting a person to disclose the existence of that order for the purposes of "facilitating the authority's performance of its functions" under the POCA.

Part 3-5: Search warrants

1. Part 3-5 empowers a magistrate to issue a search warrant to search premises if satisfied "there are reasonable grounds for suspecting that there is at the premises or will be … tainted property or evidential material": s 225(1). The expressions "tainted property" and "evidential material" are both defined in the Dictionary (s 338).
2. The Dictionary defines "evidential material" to mean evidence relating to "property in respect of which action has been or could be taken" under the POCA. That the definition extends "evidential material" in this way - particularly by identifying that material to relate to "property in respect of which action has been … taken under this Act" - was accepted by the parties to authorise the issuing of a search warrant following the commencement of Chapter 2 proceedings.

The competing positions: an overview

1. I will set out, by way of introduction, a summary of the competing positions of the parties.
2. As I have earlier noted, the fourth defendant advances essentially two submissions: first, that, upon its proper construction, the POCA does not permit the exercise of the power in s 202 following the commencement of proceedings; and, secondly, that the making of production orders under the POCA after the commencement of proceedings could not be authorised by the Act lest it contravene the separation of powers doctrine and result in invalidity because the making of such orders "was incidental to the exercise of judicial power" and therefore "exceeded the legislative power of the Parliament" (fourth defendant's submissions dated 17 October 2023 at 2 ('fourth defendant's submissions')).
3. It would follow, if either of the fourth defendant's arguments were accepted, that the answer to the first question would be: 'No', and the second question would not arise for consideration. If the first question was answered: 'Yes', given that the fourth defendant was not placed to deal with the unfair advantage arguments raised in the third further amended cross summons, relief claimed par A2, the second question does not arise.
4. The Commissioner's essential submission is that there are no relevant limitations upon the power contained in s 202, and certainly none of the limitations suggested by the fourth defendant. Further, the Commissioner argued that there was no constitutional invalidity, as argued by the fourth defendant. If the Commissioner's ultimate position was accepted, the answer to the first question would be: 'Yes', and although it argued that the second question would (and should) also be answered: 'Yes', given the fourth defendant was not placed to deal with the unfair advantage arguments raised, then the second question does not arise.
5. It is appropriate to deal with the statutory construction argument before the constitutional argument: Bitannia Pty Ltd v Parkline Constructions Pty Ltd (2006) 67 NSWLR 9; [2006] NSWCA 238 at [41].

The construction of the power in s 202

1. The fourth defendant argued that the power to make production orders was exhausted - or spent - once proceedings under the POCA had been commenced.
2. This ultimate submission was not addressed in the fourth defendant's written submissions but, as developed during the course of the hearing, the fourth defendant emphasised three matters that were argued to support this construction: first, it was argued that there was no express statement that permitted this to occur and in this respect the position could be contrasted to other provisions within Chapter 3 of the POCA; secondly, it was argued that "there are different powers conferred as between the court exercising a proceeds of crime jurisdiction" and, instances where a proceeds of crime authority "can issue a notice where there is satisfaction of reasonable grounds or a reasonable belief"; and, thirdly, "the circumstances where a magistrate may [exercise] a power".
3. The second and third matters were not altogether clear and, in any event, the fourth defendant accepted that the first matter was the "critical" one relied upon to support the construction that the use of the production power was not authorised following the commencement of proceedings under the POCA.

Statutory construction: the background principles

1. The starting point in the task of statutory construction is the text of the provision considered in its context, which includes objectively discerned purpose: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, 381; [1998] HCA 28 ('Project Blue Sky'); Thiess v Collector of Customs (2014) 250 CLR 664; [2014] HCA 12 at [22]-[23]. In Project Blue Sky the process of statutory construction was described in these terms (at 381, footnotes omitted): The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined "by reference to the language of the instrument viewed as a whole". In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that "the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed". Thus, the process of construction must always begin by examining the context of the provision that is being construed.
2. In relation to purpose, this may be express or inferred from the terms of the statute - but the "purpose of a statute is not something which exists outside the statute. It resides in its text and structure …": Lacey v Attorney-General (Qld) (2011) 242 CLR 573; [2011] HCA 10 at [44].
3. Given the first issue to be determined involves the construction of Commonwealth legislation, reference should also be made to s 15AA of the Acts Interpretation Act 1901 (Cth). That section provides: 15AA Interpretation best achieving Act's purpose or object In interpreting a provision of an Act, the interpretation that would best achieve the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act) is to be preferred to each other interpretation.
4. It should also be observed that the "rules of construction applicable only in relation to the criminal law do not apply in the interpretation of" the POCA: s 315(2). Neither party called in aid this provision (or suggested it was relevant), and it may be put to one side.

Discussion and consideration

1. Turning now to the question of construction: in my respectful view, the statutory text, context, purpose (including the considerations in s 15AA of the Acts Interpretation Act) and general coherence of the POCA do not support the construction that the power in s 202 is a pre-litigation provision; rather, they support the construction that the production order power in s 202 is available after the commencement of proceedings under Chapter 2 of the POCA. My reasons for that conclusion follow.
2. Some matters are clear: there is nothing in the text of s 202 that imposes any temporal limitation upon the use of that power and nor is there anything in the text of Part 3-2 more generally (being the Part that deals with production orders) that does so. There are, thus, no textual indicators that concern the timing of when production may be sought. Nor is there anything within the terms of s 202, nor Part 3-2 more generally, suggesting that the purpose of the production order power was directed to the question of whether proceedings under Chapter 2 should be commenced (that is, directed to the pre-litigation phase) - and neither party argued to the contrary.
3. The argument for the fourth defendant essentially reduced to a submission that because there is no temporal limitation or restriction upon the exercise of the power in s 202 - in contrast to other provisions within Chapter 3 of the POCA - then the absence of express wording should be taken to evince an intent for its use to be precluded once proceedings were commenced. To be clear, the fourth defendant accepted that, in relation to all other information gathering powers contained within Chapter 3 of the POCA, they were exercisable after Chapter 2 proceedings had been commenced. The constructional result that follows from what the fourth defendant argued would be that, in relation to all information gathering powers within Chapter 3, they would be available to be used (subject to the terms of the POCA) after proceedings under the POCA had been commenced - except in relation to production orders: a proceeds of crime authority would be precluded from seeking (and a magistrate precluded from making) a production order.
4. The fourth defendant emphasised the contrast between the drafting of s 202, when compared to the other information gathering provisions within Chapter 3. The argument was that as all other information gathering powers had a provision empowering their use following the commencement of proceedings, the fact that the legislature had not included a similar provision in connection with the power to make a production order was significant: it was argued that "it would be a simple enough matter for the words to be included to make that clear". That, in a nutshell, was the fourth defendant's argument, and was where the matter was left.

An overview of the fourth defendant's argument

1. The fourth defendant next argued that, given Chapter 2 proceedings had been commenced, the magistrate making the order acted "in excess of the legislative power of the Parliament, because it is only the courts which may exercise incidental judicial power following the commencement of the court process which initiates the exercise of judicial power" (fourth defendant's submissions at [44]).
2. This outcome is argued to result from the fact that, following the commencement of proceedings, the use of the power in s 202 "for a purpose of obtaining evidence for use in the court proceedings, is akin to the exercise of incidental judicial power to issue a subpoena to give evidence and to produce documents" (fourth defendant's submissions at [43]).
3. At the forefront of the fourth defendant's argument were some remarks in the judgments of O'Connor J in Huddart, Parker & Co Pty Ltd v Moorehead (1909) 8 CLR 330; [1909] HCA 36 ('Huddart Parker') and Griffiths CJ in Melbourne Steamship Co Ltd v Moorehead (1912) 15 CLR 333; [1912] HCA 69 ('Melbourne Steamship') - which were argued to compel a holding that constitutional invalidity necessarily results. Given the centrality of those decisions to the fourth defendant's argument, it will be necessary to return to some of their detail as well as subsequent decisions which have addressed them.
4. The fourth defendant's argument contains a number of steps - some of which were contested, and some of which were not. In order to distil the critical parts of the argument, I will set out the various steps involved.

The fourth defendant's argument: some further detail

1. The fourth defendant first submitted that where proceedings have been commenced in federal jurisdiction for a restraining order under the POCA, "the judicial process has been initiated for the exercise of judicial power" (fourth defendant's submissions at [24]). That general submission was not contested, and may be accepted. The fourth defendant then submitted that what "belongs to the judicial power" includes not only the judicial power itself, but what "is incidental or ancillary to it" (fourth defendant's submissions at [25]). Nevertheless, a "power which is incidental or ancillary to judicial power … cannot be exercised by the executive" (fourth defendant's submissions at [27]). These further general submissions were not contested, and may also be accepted.
2. The fourth defendant next argued that the exercise of a power to compel the provision of information - such as the one exercised under s 202 of the POCA - "constitutes an element in the exercise of judicial power when the power is part of the proceedings of the court" (fourth defendant's submissions at [30]). This characterisation of the power being exercised and the relationship to the proceedings in this Court - that it forms part of the proceedings - is an (probably the) integral part of the fourth defendant's overall submission in support of constitutional invalidity.
3. On the fourth defendant's argument, constitutional invalidity results because: 1. The "Commonwealth Parliament has no power to confer on a State court a function which is neither a judicial function nor incidental to a judicial function": s 77(iii) of the Constitution does not enable the Parliament to require State courts to exercise non-judicial power (fourth defendant's submissions at [40]). 2. The judiciary "cannot absorb or be amalgamated by the Executive by the conferral of incidental judicial power on the Executive to compel production of documents, where court proceedings are on foot, for a purpose of obtaining evidence for use in those proceedings" (fourth defendant's submissions at [46]).

Consideration: the fourth defendant's argument

1. The argument for the fourth defendant involved two principal interrelated contentions. The first is that, following commencement of the proceedings, there is something of a transformation in the character of the power under s 202 which occurs because that process is similar to powers held by the court: the fourth defendant argues that, in that situation, the exercise of that power is no longer administrative, but "is akin to the exercise of incidental judicial power to issue a subpoena to give evidence and to produce documents" (emphasis added). The second is a corollary of the first: namely, that it is only the courts which may exercise incidental judicial power following the commencement of the court process. The consequence is that the exercise of the power is an invalid one.
2. Before moving to examine parts of the fourth defendant's argument, it should be noted that the fourth defendant did not explain what was meant by the description "akin to the exercise of incidental judicial power", nor how - if at all - that phrase sits within the constitutional law taxonomy of judicial power, incidental judicial power and non-judicial (or administrative) power. The Commissioner submitted that the phrase was constitutionally and legally meaningless. Given my conclusion, it is unnecessary to examine this issue any further.
3. I will start with some of the more straightforward parts of the fourth defendant's argument: the making of a production order, and the nature (and character) of the power exercised.

The making of a production order

1. The fourth defendant accepted that a magistrate, when exercising the power to make a production order under s 202 of the POCA, was "clearly" exercising an administrative power. In this respect, the submissions of the fourth defendant used the term 'administrative function' and 'non-judicial power' interchangeably and synonymously. The fourth defendant accepted that to be so based upon the broad acceptance that the power to issue search warrants, and analogous warrants, is not incidental to the exercise of judicial power: Hilton v Wells (1985) 157 CLR 57, 67; [1985] HCA 16; Grollo v Palmer (1995) 184 CLR 348, 360, 375 and 389; [1995] HCA 26 ('Grollo') (fourth defendant's submissions at [42]).
2. Further, the fourth defendant also accepted that, when exercising the power under s 202 of the POCA, the magistrate is exercising the power in their personal - rather than judicial - capacity. That characterisation necessarily follows, given the earlier concession, by reason of s 324 of the POCA. That section, which has earlier been set out (see [73], above), relevantly provides that a power conferred upon a magistrate under the POCA "that is neither judicial nor incidental to a judicial function or power is conferred on that person in a personal capacity and not as a court or member of a court": s 324(1).
3. Thus, in exercising the power conferred, the magistrate is acting as an individual rather than a member of the court to which they belong - notwithstanding that membership to the court is what provides eligibility (in many cases, and does so here) to exercise the power: Grollo at 362. This is the doctrine of persona designata, a doctrine that permits Commonwealth law to confer non-judicial functions on a judge of a court as persona designata.

The exercise of the power in s 202 is 'akin' to the exercise of incidental judicial power

1. This step in the fourth defendant's argument was its centrepiece. The fourth defendant argued that, Chapter 2 proceedings having commenced, the exercise of a power to compel the provision of information - such as the one exercised under s 202 of the POCA - "constitutes an element in the exercise of judicial power when the power is part of the proceedings of the court" (fourth defendant's submissions at [30]). This submission requires some short explanation so as to expose the critical premise of it.
2. It may be accepted (as the Commissioner did) that the power of the court, which is the site of the proceedings, to compel the provision of information is an exercise of judicial power or incidental to the exercise of judicial power. The assumption of the fourth defendant's submission is thus apparent: it is that because the exercise of the power under s 202 of the POCA is broadly analogous to the process of issuing a subpoena to produce documents, it necessarily follows that the exercise of the power by the magistrate (that is, in a different court) is "akin" to the exercise of incidental judicial power in this Court. It follows, on the fourth defendant's argument, that this power cannot be exercised by the magistrate.
3. In aid of the above submission, the fourth defendant relied upon what was said by O'Connor J in Huddart Parker and by Griffiths CJ in Melbourne Steamship and select parts of the judgment of Mason J in Pioneer Concrete. In my respectful view, nothing in these decisions supports the fourth defendant's arguments.
4. The decision in Huddart Parker concerned s 15B of the Australian Industries Preservation Act 1906 (Cth) - a provision that empowered the Comptroller-General of Customs to issue a notice that required a person to answer questions and produce documents where the Comptroller-General believed that an offence had been committed against that Act. The notice issued under s 15B was not served at a time when proceedings had been instituted. It was, however, argued that irrespective of whether proceedings had been commenced, the provisions were invalid because they purported to confer judicial power upon the Comptroller-General, contrary to s 71 of the Constitution. That argument was rejected by all members of the Court. Further, there is a statement in the judgment of O'Connor J to the effect that the powers conferred upon the Comptroller-General did not survive the commencement of proceedings. This part of the judgment of O'Connor J (at 379-380) was relied upon by the fourth defendant to support this part of her argument: When the Comptroller makes his requirement under 15B there can be no proceeding pending in a Court. He is not empowered to use the section with reference to an offence when once it has been brought within the cognizance of the Court. The power to prevent any such interference by the Executive with a case pending before the ordinary tribunals is undoubtedly vested in this Court by the Constitution.

The proposed amendment to question two and the form of question one

1. The Commissioner proposed a refinement to question two. That refinement is identified by the underlining in the question: 2. If the answer to the first question is yes, on its proper construction, does section 202 of the Act permit the Commissioner of the Australian Federal Police to apply for and obtain production orders, in [the] circumstances [of the present case] where the sole or dominant purpose is to obtain evidence for use in the POCA proceedings, or is the Commissioner's authority to apply for and obtain such orders subject to any implied statutory limitation of the kind alleged in the second further amended cross summons and, if so, what is that limitation?
2. The fourth defendant opposed the revision to the question.
3. It is unnecessary to rule on whether the revision should be allowed given the confinement of the issues that occurred at the hearing - as to which see [6]ff, above.
4. A further matter should be noted. The orders for separate determination were made at a time before the fourth defendant had raised her constitutional argument - that argument was only raised in the fourth defendant's submissions filed on 17 October 2023. The matter was, however, argued by both parties on the basis that question one covered both arguments.

Costs

1. The hearing of the questions for separate determination was originally listed on 24 October 2023. Shortly prior to the hearing, the fourth defendant indicated (by the service of written submissions and a proposed amended cross summons) that she wished to argue that the exercise of the power under s 202 was constitutionally invalid. That argument did not form part of any issue contained within a pleading that had been filed, and had not otherwise been raised (or foreshadowed) in any way. The Commissioner was not placed to meet that argument in the short time available before the allocated hearing and, separately, given the argument raised it became necessary for the fourth defendant to serve notices under s 78B of the Judiciary Act 1903 (Cth): s 78B(1). For those reasons, on 20 October 2023, the hearing originally fixed was adjourned upon the Commissioner's application. The Commissioner sought an order that the fourth defendant pay its costs of the adjournment. I reserved the question of costs to the hearing of the separate questions.
2. In my view, it is appropriate in the circumstances outlined for the fourth defendant to pay the Commissioner's costs of and incidental to the adjournment of the adjourned hearing. Nevertheless, given the conclusions that I have reached in respect of both arguments, and the overall cost order that I propose to make, it is unnecessary to make a separate order in respect of those costs.

Answers to the questions determined and orders

1. For the above reasons, I would answer the questions for separate determination as follows, and make the following orders: 1. On its proper construction, does section 202 of the Proceeds of Crime Act 2002 (Cth) (Act) permit the Commissioner of the Australian Federal Police to apply for and obtain production orders, in circumstances where proceedings under the Act (POCA Proceedings) have commenced? Answer: Yes. 1. If the answer to the first question is yes, on its proper construction, does section 202 of the Act permit the Commissioner of the Australian Federal Police to apply for and obtain production orders, in circumstances where the sole or dominant purpose is to obtain evidence for use in the POCA proceedings? Answer: For the reasons given (see [6]-[7], above) this question has not been answered. 1. Order the fourth defendant pay the plaintiff's costs of, and incidental to, the separate determination including the costs of the adjournment of the hearing on 24 October 2023. 2. List the matter for status review on 23 February 2024.

Endnote

1. The parties accepted the applicable version of the POCA to be Compilation No. 48. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 December 2023