(i) the property is subject to the effective control of the suspect; or

(ii) in any case - the property is proceeds of the offence; or

(iii) if the offence to which the order relates is a terrorism offence - the property is an instrument of the offence.

The affidavit must include the grounds on which the authorised officer holds those suspicions.

(4) Restraining order need not be based on commission of a particular offence

The reasonable grounds referred to in paragraph (1)(d) need not be based on a finding as to the commission of a particular serious offence.

(5) Risk of property being disposed of etc.

The court must make a restraining order even if there is no risk of the property being disposed of or otherwise dealt with.

The court may specify that a restraining order covers property that is acquired by the suspect after the court makes the order. Otherwise, no property that is acquired after a court makes a restraining order is covered by the order.

34 Section 335 of the Act provides that if all or part of the conduct constituting an offence to which the order would relate occurred in a particular State or Territory, or is reasonably suspected of having occurred in that State or Territory, the courts that have proceeds jurisdiction are those which have jurisdiction to deal with the criminal matters on indictment in that State or Territory. Further, s 314 invests the State and Territory courts with jurisdiction with respect to matters arising under the Act. Accordingly, in respect of an order arising from conduct which occurred, or is suspected to have occurred in Western Australia, the courts with jurisdiction to make restraining orders are the Supreme Court and the District Court of Western Australia.

35 Section 25 and s 26 of the Act are in the following terms:

(a) give written notice of an application for a restraining order covering property to the owner of the property (if the owner is known); and

(b) include with the notice a copy of the application and any affidavit supporting the application.

(2) Subject to subsection (4), the DPP must also:

(a) give written notice of an application for a restraining order covering property to any other person the DPP reasonably believes may have an interest in the property; and

(b) include with the notice:

(ii) a further notice that the person may request that the DPP give the person a copy of any affidavit supporting the application.

The DPP must comply with any such request as soon as practicable.

(3) The court must not (unless subsection (4) applies) hear the application unless it is satisfied that the owner of the property to which the application relates has received reasonable notice of the application.

(4) The court must consider the application without notice having been given if the DPP requests the court to do so.

(5) The court may, at any time before finally determining the application, direct the DPP to give or publish notice of the application to a specified person or class of persons. The court may also specify the time and manner in which the notice is to be given or published.

(6) A person who claims an interest in property may appear and adduce evidence at the hearing of the application.

36 Division 3 of pt 2-1 provides that a court may make an order excluding property from a restraining order, on the application of a person who claims an interest in that property. However, unless the court gives leave, such a person cannot apply for an excluding order if they were notified of the application for the restraining order but did not appear at the hearing of that application, or if they appeared at the hearing of the application. Section 32 of the Act provides that the court must not hear an application to exclude specified property from the restraining order if the restraining order is in force and the DPP has not been given a reasonable opportunity to conduct examinations in relation to the application.

37 Section 33 of the Act deals with the giving of notice of the making of a restraining order. It is in the following terms:

(1) If a court makes a restraining order covering property that a person owns, the DPP must give written notice of the order to the person.

Note: A person who was not notified of the application for a restraining order may apply to revoke the restraining order within 28 days of being notified of the order: see section 42.

(2) The DPP must include a copy of the application and any affidavit supporting the application with the notice (if those documents have not already been given to the person).

(3) However, the court may order that:

(a) all or part of the application or affidavit is not to be given to the person; or

(b) the DPP delay giving the notice (and the documents included with the notice) for a specified period;

if the DPP requests the court to do so and the court considers that this is appropriate in order to protect the integrity of any investigation or prosecution.

(4) If the court orders the DPP to delay giving the notice (and the documents included with the notice) for a specified period, the DPP must give the notice as soon as practicable after the end of that period.

38 Section 39 of the Act makes provision for ancillary orders of various kinds, including an order varying the property covered by the restraining order, or varying conditions to which the restraining order was subject. In October 2009, s 39 was in the following terms:

(1) The court that made a restraining order, or any other court that could have made the restraining order, may make any ancillary orders that the court considers appropriate and, without limiting the generality of this, the court may make any one or more of the following orders:

(a) an order varying the property covered by the restraining order;

(b) an order varying a condition to which the restraining order is subject;

(c) an order relating to an undertaking required under section 21;

(d) an order directing the owner of the property (including, if the owner is a body corporate, a specified director of the body corporate) to give a sworn statement to a specified person, within a specified period, setting out particulars of, or dealings with, the property;

(e) if the Official Trustee is ordered under section 38 to take custody and control of property:

(i) an order regulating the manner in which the Official Trustee may exercise its powers or perform its duties under the restraining order; or

(ii) an order determining any question relating to the property, including a question relating to the liabilities of the owner or the exercise of powers or the performance of duties of the Official Trustee; or

(iii) an order directing any person to do anything necessary or convenient to enable the Official Trustee to take custody and control of the property;

(f) an order giving directions about the operation of the restraining order and any one or more of the following:

(i) a forfeiture order that covers the same property as the restraining order;

(ii) a pecuniary penalty order or a literary proceeds order that relates to the same offence as the restraining order;

(g) an order requiring a person whose property is covered by a restraining order to do anything necessary or convenient to bring the property within the jurisdiction.

Note: If there is a pecuniary penalty order that relates to the same offence as a restraining order, the court may also order the Official Trustee to pay an amount equal to the relevant pecuniary penalty out of property covered by the restraining order: see section 282.

(2) The court can only make an ancillary order on the application of:

(a) the DPP; or

(b) the owner of the property covered by the order; or

(c) if the Official Trustee was ordered to take custody and control of the property - the Official Trustee; or

(d) any other person who has the leave of the court.

(3) A person who applies for an ancillary order must give written notice of the application to all other persons entitled to make such an application.

(4) An ancillary order may be made:

(a) if it is made by the court that made the restraining order - when making the restraining order; or

(b) in any case - at any time after the restraining order is made.

(5) An order that is ancillary to a restraining order does not cease to have effect merely because the restraining order, or part of it, ceases to be in force under subsection 45(4) or (5).

Note: A restraining order ceases to be in force under those subsections if a confiscation order covering the same property or relating to the same offence is satisfied.

39 Section 42 of the Act provides for the revocation of a restraining order. In October 2009, that section was in the following terms:

(1) A person who was not notified of the application for a restraining order may apply to the court to revoke the order.

(1A) The application must be made:

(a) within 28 days after the person is notified of the order; or

(b) if the person applies to the court, within that period of 28 days, for an extension of the time for applying for revocation - within such longer period, not exceeding 3 months, as the court allows.

(2) The applicant must give written notice to the DPP and the Official Trustee of both the application and the grounds on which the revocation is sought.

(3) However, the restraining order remains in force until the court revokes the order.

(4) The DPP may adduce additional material to the court relating to the application to revoke the restraining order.

(5) The court may revoke the restraining order if satisfied that there are no grounds on which to make the order at the time of considering the application to revoke the order.

40 Part 2-2 of the Act deals with forfeiture orders. Section 61 sets out the requirements relating to the giving of notice of application for such an order. It is in the following terms:

(1) The DPP must give written notice of an application for a forfeiture order to:

(a) if the order is sought relating to a person's conviction of an offence - the person; and

(b) any person who claims an interest in property covered by the application; and

(c) any person whom the DPP reasonably believes may have an interest in that property.

(2) The court hearing the application may, at any time before finally determining the application, direct the DPP to give or publish notice of the application to a specified person or class of persons. The court may also specify the time and manner in which the notice is to be given or published.

41 I digress to observe that s 61(2) is in similar terms to s 26(5), although unlike s 26, no express provision is made in pt 2-2 for the consideration of an application for a forfeiture order without notice, other than in the situation in which a person to whom notice would have been given has absconded under s 63.

42 The Act was amended by the Crimes Legislation Amendment (Serious and Organised Crime) Act 2010 (No 2) (Cth), the relevant portion of which came into effect on 20 February 2010 - that is, after the restraining order was made, but before the application for revocation of that order was heard and determined by Eaton DCJ. That Act amended s 39 by introducing the following provisions:

39(3A) Despite subsection (3), the court must consider an application for an ancillary order without notice having been given under that subsection if:

(a) the DPP requests the court to do so; and

(b) the restraining order for which the application relates was considered, in accordance with subsection 26(4), without notice having been given.

...

(4A) The court may, at any time before finally determining the application, direct the DPP to give or publish notice of the application to a specified person or class of persons. The court may also specify the time and manner in which the notice is to be given or published.

(4B) If the court makes the ancillary order after a request under subsection (3A), the DPP must give written notice to any person whom the DPP reasonably believes may be affected by the order.

43 I digress to observe that the effect of these amendments was to create a similar structure within s 39, as previously existed within s 26.

44 The Act was also amended by the Crimes Legislation Amendment (Serious and Organised Crime) Act 2010 (Cth), the relevant portions of which also came into effect on 20 February 2010. That Act amended s 42(5) so as to provide an additional ground upon which a court might revoke a restraining order by providing that a court may do so 'if satisfied that it is ... in the interests of justice'. Given that these amendments were made following the decision in International Finance, it is reasonable to infer that the amendment to s 42 was made in response to that decision and, in particular, to address concerns expressed by some of the majority justices in that case relating to the lack of any facility to enforce the obligation to make full disclosure when proceeding ex parte in the CAR Act. The breadth of the power of revocation provided by the amendment would be sufficient to empower a court to revoke a restraining order because of the DPP's failure to comply with the obligation of full disclosure.

45 After setting out the procedural history of the proceedings, and s 18 of the Act, Eaton DCJ gave consideration to the decision of the High Court in International Finance. He characterised that decision in the following terms:

The court held in International Finance Trust Co Ltd v New South Wales Crime Commission that, on its proper construction, s 10 of the CAR Act required the Supreme Court to hear and determine, without notice to persons affected, applications for restraining orders made ex parte by the commission. For that reason the section impermissibly directed the court as to the manner of the exercise of its jurisdiction and restricted the application of procedural fairness, conditioning its full application upon a discretion exercised by the executive branch of the Government of New South Wales. French CJ, in summarising the position, said it was not to the point that the restriction was temporary, nor that the scope of the order might subsequently be varied by an exclusion order, which could only be made if the party affected showed, on the balance of probabilities, that the affected property was not illegally acquired. In his opinion the relevant section was invalid [10].

46 That passage suggests that Eaton DCJ was of the erroneous view that the opinion of French CJ represented the view of the majority of the court.

47 His Honour then turned his attention to s 26(4) of the Act, and rejected the submission that because the only obligation imposed by that subsection upon the court was to 'consider' the application, the Act did not preclude an adjournment of the application until notice had been served in accordance with the direction given by the court pursuant to s 26(5).

48 Eaton DCJ relied upon that construction of s 26 to conclude that the combination of s 26 and s 18 was to produce, in substance, the same effect as s 10 of the CAR Act considered in International Finance. In respect of that section, he cited the following passage from the decision of French CJ in International Finance:

Referring to that section French CJ at [55] said:

'To require a court, as s 10 does, not only to receive an ex parte application, but also to hear and determine it ex parte, if the executive so desires, is to direct the court as to the manner in which it exercises its jurisdiction and in so doing to deprives the court of an important characteristic of judicial power. That is the power to ensure, so far as practicable, fairness between the parties. ... In my opinion the power conferred on the Commission to choose, in effect, whether to require the Supreme Court of New South Wales to hear and determine an application for a restraining order without notice to the party affected is incompatible with the judicial function of that court. It deprives the court of the power to determine whether procedural fairness, judged by reference to practical considerations of the kind usually relevant to applications for interlocutory freezing orders, requires that notice be given to the party affected before an order is made. It deprives the court of an essential incident of the judicial function. In that way, directing the court as to the manner of the exercise of its jurisdiction, it distorts the institutional integrity of the court and affects its capacity as a repository of federal jurisdiction.' [16]

49 The citation of this passage reinforces the inference that his Honour mistakenly took the view that the opinion of French CJ represented the opinion of the majority of the court.

50 Eaton DCJ went on to reject the submission that s 26(5) of the Act empowered the court to direct that the DPP give notice of the application for a restraining order to the owner of the property prior to determining the application. His Honour considered such a construction of the subsection to be inconsistent with s 26(4), which required the court to consider the application without notice upon the request of the DPP. He also considered such an interpretation to be inconsistent with the structure of s 26, which makes specific provision, in other subsections, for service of notice upon the owner and any other person reasonably believed to have an interest in the property. His Honour also relied upon those portions of the explanatory memorandum relating to s 26 of the Proceeds of Crime Bill 2002 (Cth) to support his construction of s 26(5), which relevantly provided:

Clause 26 Notice of Application

This clause sets out the notice provisions for the obtaining a restraining order. The DPP may apply for a restraining order either on notice to the owner of the property or ex parte.

If the DPP requests an ex parte hearing the court has no discretion to refuse it. An application would usually be made ex parte where there is a risk that the assets will be dissipated, or that an investigation may be jeopardised by the provision of affidavit material (see below in cl 33). If the application is on notice, however, subclause 26(3) provides that the court must not hear the application unless it is satisfied that the owner of the property has received reasonable notice of the application. The usual rules in civil matters apply to giving or serving of all notices under the Act.

If the DPP gives the owner notice of the application, a copy of the application and any affidavit must also be provided to that person. Where the DPP believes that other people may have an interest in the property, the DPP must also give them notice of the application, and a copy of the application. The DPP does not have to initially provide those people with a copy of the affidavit, but if a copy is requested, the DPP must comply as soon as is practicable. (By contrast, if the DPP secures a restraining order ex parte, the court has discretion to order that all or part of the notice and affidavit not be given to the owner of the property or other relevant person, or that the giving of those documents is delayed: see subclause 33(3)).

If the court directs, the DPP must also give or publish notice to any other person or class of persons.

A person who is given notice of the application for a restraining order is able to contest the application at the hearing of the application.

51 Eaton DCJ relied upon that text to support the conclusion that the persons to whom notice might be given pursuant to a direction by the court under s 26(5) were 'other' than those addressed by earlier portions of the subsection - namely, the owner of the property and those who were believed to have an interest in the property.

52 Eaton DCJ went on to consider s 42 of the Act. He did so by reference to the form in which that section was after the amendments which came into force on 20 February 2010. However, the application before him was for an order revoking the restraining order made in 2009 or, in the alternative, declaring that s 18 was invalid. Although the former application was properly determined by reference to the Act in its current form (due to the transitional provisions), the validity of s 18 and, therefore, the order made under it, have to be assessed by reference to the validity of the Act at the time it was made.

53 Eaton DCJ set out the competing positions of the parties with respect to s 42. The applicant for revocation submitted that the capacity to apply for revocation of the restraining order under the section did not validate the earlier provisions of the Act, because an applicant for such an order was confronted with a task of 'considerable legal and factual complexity'. On the other hand, the DPP submitted that the task which confronted an applicant for an exclusion order under s 25 of the CAR Act was much more onerous and quite different in nature and character to the task which confronted an applicant for revocation under s 42 of the Act.

54 Eaton DCJ did not express a view on the resolution of these competing submissions. Instead, he made the following observations:

Particularly so far as French CJ and Gummow and Bell JJ were concerned it was, in the case before them, the problem of the executive's intrusion, sanctioned by the legislature, into the judicial function which gave rise to invalidity, the court being deprived of the power to determine whether procedural fairness, judged by reference to practical considerations of the kind that are usually relevant to applications for interlocutory freezing orders required that notice be given to the party effected before an order is made.

Under the Act the discretion to be exercised in relation to the giving of notice of an application for a restraining order is that of the Director. He or she, in mounting an application under s 18 and making a request under s 26(4) chooses, in effect, to require this Court to hear and determine an application for a restraining order without notice to the party affected. That, according to International Finance Trust Co Ltd v New South Wales Crime Commission, is incompatible with the judicial function of the court, depriving the court of the power to determine whether procedural fairness would require that notice be given [32] - [33].

55 These observations reinforce the inferences drawn from earlier passages in the reasons to the effect that his Honour mischaracterised the reasons given by Gummow and Bell JJ in International Finance and wrongly concluded that three of the four majority justices considered that a mandatory obligation to proceed ex parte at the request of the DPP was sufficient, of itself, to produce invalidity.

56 In the result Eaton DCJ declared s 26(4) of the Act to be invalid, and set aside the restraining order.

1. His Honour erred in construing section 26(4) of the Act (in the circumstances in which it applies) to require a court to determine an application for a restraining order in respect of property without notice to the owner of the property because section 26(5) of the Act, properly construed, permits the court, at any time before finally determining the application, to direct the Director of Public Prosecutions to give such notice.
2. Further, and even if the Act required the court to determine an application for a restraining order in respect of property without notice to the owner of the property, his Honour erred in concluding that section 26(4) (in the circumstances in which it applies) is invalid because the Act provides for a restraining order to be revoked on the application of the owner of the property following a contested hearing in a manner that is compatible with Chapter III of the Constitution.

58 The respondent filed a notice contending that the declaration that s 26(4) of the Act was invalid should be upheld on grounds that were said to go beyond the grounds found by Eaton DCJ namely:

1. That should section 26(5) of the Act be construed as empowering the court, before finally determining the application, to give notice to the owner (contrary to his Honour's findings and the respondent's submissions) section 26(4) impermissibly mandates that a court shall grant a restraining order without notice to the owner where the court is satisfied that the conditions of s 18 of the Act are fulfilled.
2. That the provisions of the Act, and in particular section 42, do not provide the facility or provide adequate means to an applicant for revocation of a restraining order to dissolve or set aside the original restraining order taking into account:

(a) the different criteria that apply to revocation of a restraining order from a criteria applicable to the granting of an order;

(b) the inability or potential inability of the respondent to access reasons for the original order; the submissions made in support of the order; and the limited nature of affidavit evidence available to an applicant for revocation;

(c) the onus and persuasive burden upon the applicant to establish a case by 'complex and negative enquiry'.

59 However, the written and oral submissions advanced in support of the notice of contention arguably went beyond the grounds expressly enunciated. It was submitted that even if the Act, properly construed, did not require the court to determine an application for a restraining order without notice to the owner, if the Act, properly construed, authorised the making of such an order without notice, it thereby purported to authorise the court to exercise the judicial power of the Commonwealth in a manner which was inconsistent with the essential character of a court, because there was no facility to speedily dissolve an order made ex parte, and because of the onerous nature of the burden imposed upon an applicant for revocation of a restraining order under s 42 of the Act.

Ground 1 of the appeal and ground 1 of the notice of contention

60 Ground 1 of the appeal and ground 1 of the notice of contention raise issues as to the proper construction of s 26 of the Act. Those issues are:

(a) is there a conflict between the ordinary meaning to be derived from s 26(4) and s 26(5), and if so, is that conflict to be resolved by a particular construction of one or other subsection?

(b) does s 26(4), read with s 18, require the court to hear and grant an application for a restraining order without notice to the owner when the DPP so requests and the requirements of s 18 of the Act are satisfied?

(c) to whom may the court direct that notice be given under s 26(5)?

I will deal with each of these issues in turn. While it is unnecessary to provide a detailed exegesis on the principles of statutory construction before doing so, I will offer some brief observations on that subject.

61 The basic object of statutory construction is to ascertain the intention of the Parliament to be derived from the words used in the relevant statutory provisions, construed in the context of the statute as a whole, preferring a construction that would promote the purpose or object underlying the statute. In addition, there are three specific principles which potentially apply in this case, two of which I have already mentioned.

62 First, in the absence of clear words, it is to be assumed that Parliament does not intend to encroach upon fundamental common law rights and freedoms: see Coco v The Queen [1994] HCA 15; (1994) 179 CLR 427, 437 (Mason CJ, Brennan, Gaudron & McHugh JJ). So, where there is a choice to be made between competing constructions, that construction which will minimise the impact of the statutory provision upon traditional common law rights and freedoms will be preferred.

63 Second, it is to be presumed that Parliament did not intend to exceed its legislative power: Lim (14) (Mason CJ) and s 15A Interpretation Act 1901 (Cth). Accordingly, where there is a choice between competing constructions, one of which would result in the provision being within legislative power, and the other of which would result in its invalidity, the former construction is to be preferred.

64 Third, 'it is quite inappropriate to read provisions conferring jurisdiction or granting powers to a court by making implications or imposing limitations which are not found in the express words': Owners of Shin Kobe Maru v Empire Shipping Company Inc [1994] HCA 54; (1994) 181 CLR 404, 421, (Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron & McHugh JJ).

65 In its natural and ordinary meaning s 26(5) empowers the court to direct the DPP to give notice of the application for a restraining order to a particular person, or class of persons, at any time before the application has been finally determined. Eaton DCJ took the view that this meaning would be inconsistent with s 26(4), which obliges the court to consider the application without notice having been given upon the request of the DPP. Implicit in that view, is a construction of s 26(4) which would require the court to consider 'and determine' the application without notice upon the request of the DPP. The appellant challenges that view, whereas the respondent seeks to uphold it.

66 The first guide to the proper construction of s 26 is to be found in the lexicon employed within the section to differentiate between the functions which a court might perform pursuant to its terms. The word 'hear' is used in s 26(3) to identify that which a court must not do unless it is satisfied that the owner of the property has received reasonable notice. In s 26(4) the word 'consider' is used to identify that which the court must do, without notice, upon the request of the DPP. And in s 26(5) the expression 'finally determining' is used to identify the point in time up to which the court may direct the DPP to give notice of the application to a particular person or class of persons.

67 The words 'hear', 'consider' and 'determine' have different natural and ordinary meanings. It is reasonable to infer that the legislature intended that they bear different meanings, given that different words have been used in the same section.

68 In the context of the section, the word 'hear' is apt to connote a process which involves the presentation of evidence and argument to the court. The word 'consider' is apt to connote a process in which the court turns its mind to the application and the issues which it raises. In the context of s 26, this is a broader notion than that of 'hearing', in that consideration of an application may occur prior to the presentation of evidence and argument and extend to, for example, a 'consideration' of the procedures appropriately adopted, and the directions that should be made prior to a hearing.

69 In the context of s 26, 'determine' is apt to connote the process in which the court adjudicates upon the application by either granting or dismissing it. In s 26(5), the composite expression 'finally determining' is used. That expression is apt in a procedural context in which interim or temporary orders can be made, such as under the 1987 Act. No express provision is made in the Act for a restraining order to be made on an interim or temporary basis. It may be that the expression 'finally determining' is an inappropriate legacy from s 45(5) of the 1987 Act, and that within the structure created by the 2002 Act, the word 'finally' adds no meaning, because an application for a restraining order can only be determined once and for all. On the other hand, it may be that the expression gives rise to an implication that a court has power under the 2002 Act to issue an interim restraining order, in the sense of an order the operation of which is limited in point of time. That construction would be supported by the third specific principle of statutory construction to which I have referred above, namely, the principle that jurisdiction and powers conferred upon a court should not be construed as limited except by express words. However, this particular issue was not addressed at any great length in the submissions before us. It is not an issue that needs to be resolved in this case. It is sufficient for the purposes of this case to note that the word 'determined', when used in s 26(5), plainly has a quite different meaning to each of the expressions 'hear' and 'consider' used in s 26(3) and s 26(4) respectively.

70 The application of these natural and ordinary meanings gives the section a structure which is logical and coherent. Section 26(1) and s 26(2) impose obligations upon the DPP with respect to the giving of notice of an application for a restraining order. Section 26(3) provides that the court must not hear the application, in the sense of receiving evidence and argument in support of the application unless satisfied that the owner of the property has received reasonable notice of the application. Section 26(4) obliges the court to consider the application, in the sense of turning its mind to the steps that ought be taken in respect of the application, without notice, upon the request of the DPP. Section 26(5) provides a general power for the court to direct the DPP to give notice to any particular person or class of persons at any time before the application is determined, in the sense of being granted or dismissed.

71 Applying the basic object of statutory construction, there is nothing in the Act to suggest that the Parliament intended that the words used in s 26 should not bear their natural and ordinary meaning. In those meanings, there is no inconsistency between s 26(4) and s 26(5). Rather, the natural and ordinary meanings of the words used gives the section a logical and coherent structure. Further, in those meanings, the section does not adversely affect traditional common law rights and freedoms to any significant extent, nor would those meanings take the section beyond the legislative power of the Commonwealth. Further, in those meanings the only constraints upon the jurisdiction or powers conferred upon the court are those to be found within the express words of the section. All relevant principles of statutory construction support the conclusion that s 26(4) and s 26(5) should not be construed as inconsistent with each other.

72 Given the lexicon which the Parliament has engaged in s 26, if it had been the intention of Parliament to require the court to determine an application for a restraining order without notice to persons who might be adversely affected by such an order upon the request of the DPP, one would expect the Parliament to have used the word 'determine' in s 26(4), as it did in s 26(5). It has not done so, and there is nothing in the language or structure of the section, or the meanings to be derived from the language used in the section, which would suggest that s 26(4) should be read as requiring the court to 'consider and determine' the application.

73 This conclusion is reinforced by another guide to the construction of s 26. Significantly, each of s 26(1) - s 26(3) is made subject to s 26(4). However, no similar constraint is placed upon the operation of s 26(5). If it had been the intention of Parliament to subjugate the broad power conferred upon the court by s 26(5), so that the court would be denied the power to direct the service of notice of the application when the DPP made a request under s 26(4), no doubt it would have done so by express words of constraint of the kind used in s 26(1) - s 26(3).

74 Finally, the expression 'at any time before finally determining', which is used to condition the time at which the power conferred by s 26(5) can be exercised, is clear and unequivocal, and entirely inconsistent with any implied limitation to be derived from s 26(4).

75 This view of the construction of s 26 of the Act is supported by a number of observations in previous cases, although their force is diminished by the fact that they were made obiter and apparently without the matter being the subject of contentious argument. Nevertheless, in Director of Public Prosecutions (Cth) v Hart [2003] QCA 495; [2004] 2 Qd R 1 [20] (Wilson J); International Finance [34] (French CJ); and Ex parte Commonwealth Director of Public Prosecutions [2010] WASC 277 [2] (Allanson J) observations were made to the effect that s 26(5) empowers a court to direct the DPP to give notice of the application even in cases in which the DPP has exercised the power conferred by s 26(4) to request the court to consider the application ex parte.

76 For these reasons, I do not consider that there is any inconsistency between s 26(4) and s 26(5), so as to give rise to any need to read down the natural and ordinary meaning of s 26(5).

(b) Does s 26(4), read with s 18, require the court to grant an order without notice?

77 By his notice of contention, the respondent asserts that even if s 26(5) empowers the court to require the DPP to give notice to the owner before determining an application for a restraining order, the combined effect of s 26(4), read with s 18, is to require the court to grant an order in circumstances where the DPP makes a request under s 26(4), and the requirements of s 18 are met. The argument relies upon the mandatory terms of s 18, which obliges the court to make a restraining order when its conditions are satisfied. Essentially the proposition is that if the court 'considers' the application as required by s 26(4), and sees that the requirements of s 18 are met, it is obliged to grant the restraining order sought.

78 This submission should be rejected, for much the same reasons that the proposition that there is an inconsistency between s 26(4) and s 26(5) should be rejected.

79 Section 18 specifies the requirements which must be met before a restraining order can be made, and provides that when those requirements are met, a restraining order must be made. Within the lexicon created by s 26, the process upon which the court embarks for the purpose of ascertaining whether the requirements of s 18 have been met, is the process of 'hearing' the application, in the sense of receiving evidence and argument. After that process is complete, the court will 'determine' the application by adjudicating upon the question of whether or not the requirements of s 18 have been met. If the court determines that those requirements have been met, it will necessarily follow that the order must be granted, because of the mandatory terms of s 18.

80 There is no reason why a court could not 'consider' an application, as required by s 26(4) without either hearing or determining the application, in the senses I have just described. It is entirely consistent with the lexicon used within s 26 for the court to 'consider' the application for the purposes of determining, for example, whether the power conferred by s 26(5) should be exercised, or whether other procedural directions should be made prior to the hearing of the application. A construction of s 26(4), read with s 18, which would impliedly exclude the power of the court to adjourn the consideration of the application, or to make procedural directions with respect to the hearing and determination of the application would infringe the specific principle of statutory construction endorsed by the High Court in Shin Kobe Maru. It is also a construction which would adversely impact upon rights of procedural fairness, contrary to the specific principle of construction to which I have referred, and it is not a construction which is consistent with the natural and ordinary meaning of the words used. It should be rejected.

(c) Can the court direct that notice be given to the owner under s 26(5)?

81 There is nothing in the language of s 26(5) which would constrain the range of persons in respect of whom a court might direct that notice be given. To the contrary, the section expressly empowers a court to direct the DPP to give notice 'to a specified person or class of persons'. However, Eaton DCJ concluded that the section should be construed as not authorising the court to direct that notice of the application be given to the owner of the property, for two reasons. First, he inferred that s 26(5) must be referring to the service of notice upon persons other than owners because s 26(1) expressly obliges the DPP to serve notice upon the owner of the property the subject of the application. Second, he relied upon the terms of the explanatory memorandum for the 2002 Bill, the relevant terms of which I have set out above.

82 The first line of reasoning relied upon by Eaton DCJ, and reiterated by the respondent in this appeal, requires the conclusion that s 26(1) covers the field with respect to service of notice upon the owner or owners of property affected by a restraining order. The respondent supports that proposition by pointing to the specification, within s 26(1), of the materials that must be served together with notice, and the absence of any such specification in s 26(5). The respondent also contends that there is an inference to be drawn from the structure of the 1987 Act, to the effect that s 26(5), like the equivalent provision in the 1987 Act, should not be construed as conferring power upon the court to direct that notice be given to an owner. I will deal with each of these propositions in turn.

83 The proposition that s 26(1) should be construed as covering the field with respect to the service of notice upon the owner or owners of property affected by a restraining order is answered by a consideration of the nature of the obligations imposed by that section, as compared to the nature of the powers conferred upon the court by s 26(5). Section 26(1), like s 26(2), imposes obligations upon the DPP. However, s 26(4) empowers the DPP to require the court to consider an application notwithstanding a failure to give notice in accordance with the obligations imposed by s 26(1) and s 26(2).

84 In that context, s 26(5) confers a broad power upon the court, to direct service upon any particular person or class of persons. The breadth of the range of persons who might be given notice if the court decides to exercise that power is to be contrasted with the specific categories of persons required to be given notice by s 26(1) and s 26(2). The power conferred upon the court by s 26(5) is a power which enables the court to afford procedural fairness to anybody who might be affected by the making of a restraining order and who has not been given notice of the proceedings. That construction of s 26(5) is consistent with the specific principles of construction which require provisions to be construed consistently with traditional common law rights and freedoms, and without inhibitions or constraints upon the powers of courts other than those imposed expressly.

85 In that context, s 26(5) is properly construed as an overarching general provision intended to confer a broad power upon a court to ensure the provision of procedural fairness to anybody whose interests might be affected by the making of a restraining order, and who has not been given notice of the proceedings. There may be any number of reasons why such persons may not have been given notice. For example, the DPP may not have considered the relevant person to be an owner or owners of property, or to have a relevant interest in the property, or it may not have been able to locate the person or persons for the purposes of service. Of course it might also be that a person whose interests might be affected by the order may not have been given notice at the time the court first considered the application because the DPP had exercised the power conferred by s 26(4) to require the court to consider the application notwithstanding the failure to give notice. There is nothing in the language used in s 26(5) which would suggest that the powers conferred upon the court to achieve the provision of procedural fairness should be read down, so as to extend only to some categories of persons who might not have been given notice, but not others (such as owners not given notice at the time an application is considered pursuant to s 26(4)). On the contrary, the breadth of the language used, and the remedial purpose evident in the provision itself, compel a contrary conclusion.

86 The respondent points to the lack of specificity in s 26(5), with respect to the documents that are to be served upon a person to whom notice is to be given, if the court so directs. However, the inherent powers of the court with respect to the control of its own processes, to be exercised in the interests of justice, including the provision of procedural fairness, are quite wide enough to enable a court to direct that a particular document or documents be served upon a person to whom notice is to be given in accordance with a direction issued under s 26(5).

87 Turning to the argument based upon the provisions of the 1987 Act, it is by no means clear that the 1987 legislation should be construed as the respondent contends and, in particular, as excluding a power in the court to direct service upon an owner of property. Certainly there is no authority to that effect. But in any case, the structure created under the 1987 Act is quite different to the structure created under the 2002 Act, in that it expressly envisages the making of restraining orders of limited duration in cases where notice was not given prior to the making of the order. That fundamental difference in structure makes it unsafe to draw any conclusions as to the proper construction of the 2002 Act from the language of the 1987 Act.

88 I turn now to the secondary materials, in particular the explanatory memorandum for the 2002 Bill, relied upon by Eaton DCJ to support his conclusion that s 26(5) did not empower the court to direct service upon an owner of property affected by a restraining order.

89 For the reasons I have already given, the natural and ordinary meaning of the words used in s 26 gives rise to a structure of the section which is logical and coherent, which accords with the object or purpose expressed in the Act, and the specific principles of statutory construction to which I have referred. In that circumstance, I doubt that the explanatory memorandum is admissible pursuant to the provisions of s 15AB(1) of the Acts Interpretation Act 1901 (Cth). The provisions of s 26 do not appear to me to be either ambiguous or obscure, nor does the ordinary meaning conveyed by the text of the section lead to a result that is manifestly absurd or unreasonable. Nor was the explanatory memorandum relied upon by the respondent or by Eaton DCJ to confirm that the meaning of the provision is its ordinary meaning.

90 However, no objection was taken to the consideration of the secondary materials, with the consequence that it would not be appropriate to decide this point without considering them.

91 The language of the explanatory memorandum is not consistent with the language of the statute. For example, the explanatory memorandum suggests that the court has no discretion to refuse an ex parte hearing. That proposition is not consistent with the language of the section, which differentiates between a consideration of an application, and the hearing of an application. Similarly, in its reference to the DPP giving notice, if directed, to any 'other' person, the explanatory memorandum departs significantly from the language used in s 26(5).

92 It is a clear inference from the language of the explanatory memorandum that it has not been written with technical precision in mind. The reference to the persons who might be served with notice as a result of the direction of a court is not expressed exhaustively, so as to define the range or class of persons who might be served pursuant to such a direction. In that circumstance, it would not be appropriate to construe the explanatory memorandum as if it were a substitute for the statute itself, given the imprecision of its language.

93 In any event, the primary source of the meaning of a statutory provision is the words used by the Parliament. If the language of the statutory provision, and the language of the explanatory memorandum are directly and irreconcilably inconsistent, it is the language of the statute that must prevail. The construction of the explanatory memorandum for which the respondent contends is irreconcilably inconsistent with the natural and ordinary meaning of the words used by the Parliament in s 26 of the Act. Those words, and the meanings they convey, must prevail. In this regard the recent remarks of French CJ, Gummow, Hayne, Crennan and Kiefel JJ in Saeed v Minister for Immigration and Citizenship [2010] HCA 10; (2010) 241 CLR 252 [31] - [33] are pertinent:

As Gummow J observed in Wik Peoples v Queensland, it is necessary to keep in mind that when it is said the legislative 'intention' is to be ascertained, 'what is involved is the "intention manifested" by the legislation'. Statements as to legislative intention made in explanatory memoranda or by ministers, however clear or emphatic, cannot overcome the need to carefully consider the words of the statute to ascertain its meaning.

In R v Bolton; Ex Parte Beane the question was whether a statutory provision concerned with 'visiting forces' applied to deserters from the armed forces of the United States. Mason CJ, Wilson and Dawson JJ said:

"[T]he second reading speech of the Minister ... quite unambiguously asserts that Pt III relates to deserters and absentees whether or not they are from a visiting force. But this of itself, while deserving serious consideration, cannot be determinative; it is available as an aid to interpretation. The words of a Minister must not be substituted for the text of the law. Particularly is this so when the intention stated by the Minister but unexpressed in the law is restrictive of the liberty of the individual. It is always possible that through oversight or inadvertence the clear intention of the Parliament fails to be translated into the text of the law. However unfortunate it may be when that happens, the task of the Court remains clear. The function of the Court is to give effect to the will of Parliament as expressed in the law."

...

As was pointed out in Catlow v Accident Compensation Commission it is erroneous to look at extrinsic materials before exhausting the application of the ordinary rules of statutory construction. (citations omitted)

94 Finally the respondent points to s 61(2) of the Act, which is similar in terms to s 26(5), and asserts that the two provisions should be given an identical meaning. The flaw in this proposition is that it presumes that the power conferred upon a court to direct the DPP to give notice of an application for a forfeiture order conferred by s 61(2) of the Act is restricted to exclude a direction requiring the DPP to give notice of an application to persons specified in s 61(1). However, there is nothing in the language of s 61(2) which would support that restraint upon its scope, nor is there any authority to that effect. To the contrary, like s 26(5), s 61(2) appears to be a remedial provision empowering a court to require notice to be served in order to accord procedural fairness. It would be inconsistent with that evident purpose to imply some constraint upon the power of direction which is not to be found within the express words of the provision.

95 For the reasons I have given, there is no reason to depart from the natural and ordinary meaning of the words used in s 26 of the Act. In accordance with those meanings, there is no inconsistency between s 26(4) and s 26(5), and the court retains the power conferred by s 26(5) to direct that any particular person, or class of persons, be given notice of the proceedings at any time prior to their determination, irrespective of whether or not the DPP has exercised the power conferred by s 26(4), and irrespective of whether the notice is to be given to the owner or owners of property affected by the order sought. The court's power to adjourn its consideration of the application for a restraining order while notice is given is not constrained by any provision of the Act.

96 For these reasons ground 1 of the appeal should be upheld.

97 Ground 2 of the appeal is predicated upon the assumption of the failure of ground 1. It asserts that if s 26 is construed as obliging the court to hear and to determine an application for a restraining order without notice, the facility to apply for revocation of such an order pursuant to s 42 of the Act, after notice has been given, precludes invalidity. Given that I would uphold ground 1, it is unnecessary and inappropriate to consider and resolve ground 2. It is well established that a constitutional issue should not be addressed unless it is necessary to do so: see Wurridjal v The Commonwealth of Australia [2009] HCA 2; (2009) 237 CLR 309 [355] and ICM Agriculture Pty Ltd v The Commonwealth [2009] HCA 51; (2009) 240 CLR 140 [141].

The remaining grounds and the notice of contention

98 Ground 2 of the respondent's notice of contention, read literally, does not need to be addressed, for the same reasons as ground 2 of the appeal. However, as I have indicated, the ground was extended during argument to include the proposition that even if the Act properly construed did not require the court to determine an application for a restraining order without notice, if it authorised that course, the relevant provisions of the Act were invalid, because of the lack of a speedy and effective facility to set such an order aside after notice was received. Issue was joined on that argument, which is not resolved by the view I have taken of the proper construction of s 26. To the contrary, I have concluded that s 26, read with s 18, empowers the court to issue a restraining order without notice if it considers it is appropriate to do so. That of course is what occurred in this case. Accordingly I have concluded that the premise for this proposition is sound - namely, that there is power in the court to issue a restraining order without notice.

99 It is appropriate to commence a consideration of this issue by repeating the observation I have already made, to the effect that the validity of the restraining order made in this case is to be determined by reference to the validity of the legislation at the time it was made in October 2009, rather than by reference to the validity of the legislation at the time the matter was argued before Eaton DCJ in May 2010. It follows that, for the purposes of this case, the validity of the relevant provisions of the Act is to be determined by reference to the grounds upon which a restraining order could be revoked under s 42 prior to the amendment of that section, which expanded those grounds to include 'the interests of justice'.

100 The next observation usefully made is that the construction that I would give to s 26 of the Act distinguishes this case from International Finance, in which the majority were of the view that s 10 of the CAR Act required the court to determine the application for a restraining order without notice if the applicant requested it to do so. The view which I take of the Act is that it empowers a court to make a restraining order without notice, but does not oblige it to do so, even if requested by the DPP. In such a legislative context, it can be assumed that a court would exercise the discretion to determine whether or not to proceed without notice judicially, taking account of all relevant considerations, including, of course, the consideration that courts will only depart from the obligation to accord procedural fairness in rare and exceptional circumstances which necessitate that course.

101 I have declined to express a concluded view on the question of whether a court can make a restraining order for a limited period under the Act. However, in my view it is clear that the court can adjourn the hearing of an application if it wishes, as the Act does not purport to expressly exclude the exercise of the normal incidents of the court's procedural powers (see Shin Kobe Maru). Section 315 of the Act provides that proceedings under the Act are civil proceedings, with the result that all the normal powers enjoyed by a court invested with jurisdiction under the Act in the exercise of its civil jurisdiction will apply, including specific powers conferred by rules of court, and the court's inherent powers, unless expressly excluded. Those powers would include the power to grant interim injunctive relief to maintain the status quo pending the determination of an application for a restraining order, or the exercise of the specific powers generally conferred by rules of court relating to the preservation of property pending the determination of proceedings in the court. It follows that, irrespective of whether or not a court has power to issue a restraining order for a limited period under the Act, a court that wished to maintain the status quo and protect property from misappropriation or removal while it exercised the power to direct that notice be given to a party who might be affected by the making of a restraining order, could achieve that objective by exercising one or more of a number of ancillary powers, on an interim basis, and adjourning the application for the restraining order until notice was given. In that context, it can be expected that the making of a restraining order of indefinite duration without notice to a party affected by the order would only be appropriate in the most exceptional circumstances, being circumstances in which the exercise of the alternative powers to which I have referred will not sufficiently serve the interests of justice.

102 Nevertheless, it remains the case that, in my view, the Act authorises the making of a restraining order of indefinite duration without notice to persons who might be affected by that order. As all members of the court pointed out in International Finance, the existence of such a power is not exceptional. On the contrary, the jurisdiction of a court to issue orders restraining dealing with property without notice to persons with interests in that property, in appropriate circumstances, has long been recognised. However, the exercise of that exceptional jurisdiction has been attended by a number of safeguards intended to reduce the risk of oppression and injustice, including the obligation of a party moving for the order without notice to make full disclosure of all material facts and circumstances, and the recognition of the right of a party affected by such an order to move the court for its discharge after being given notice of the order. The critical question on this issue is whether the Act provides procedures sufficiently analogous to those safeguards to preclude the conclusion that the grant of authority to the court to make a restraining order without notice would authorise a court to exercise the judicial power of the Commonwealth in a manner which is inconsistent with the essential character of a court (see Lim) or would engage the court in activity which is repugnant in a fundamental degree to the judicial process as understood and conducted throughout Australia.

103 The features of the CAR Act which encouraged three members of the majority in International Finance to conclude that the requirement for the court to make a restraining order without notice, if required by the DPP to do so, was invalid were:

(a) the lack of any effective mechanism for the supervision of the obligation of full disclosure; and

(b) the fact that s 25 of the CAR Act, which provided for an order excluding property from a restraining order, imposed an onerous burden upon the party moving such an order which could only be discharged through a complex negative inquiry which was likely to be very time consuming.

104 As I have suggested, the amendment to s 42(5) of the Act, empowering the court to set aside a restraining order on the grounds that it is in the interests of justice to do so would appear to provide a mechanism for the supervision of the obligation of full disclosure imposed upon an applicant for an order without notice. However, that provision was not in the Act at the time the order the subject of this case was made and must therefore be excluded from consideration. It follows that the validity of the legislation under which the order in this case was made is to be determined on the basis that, like the CAR Act, the Act makes no provision for the enforcement of the obligation of disclosure.

105 However, the power to apply for the revocation of a restraining order under s 42 of the Act is very different to the power to apply for an exclusion order under s 25 of the CAR Act, as it was at the time of the decision in International Finance. Under that section, the applicant carried the onus of proving that the property the subject of the order had not been acquired as a result of fraud or any act or omission which constituted an offence at common law or against the laws of New South Wales or the Commonwealth. Such a provision was appropriately described by the High Court as necessitating a wide ranging and complex inquiry of a negative kind. However, s 42 of the Act is quite different. Under that section the court may revoke the restraining order if it is satisfied that there are no grounds on which to make the order at the time of considering the application for its revocation.

106 The respondent submits that this ground imposes a different test to that imposed by s 18 for the grant of a restraining order, which requires the existence of reasonable grounds. That proposition should be rejected. There will be no grounds on which to make the restraining order, within the meaning of s 42(5) of the Act, if the requirements for the making of an order imposed by s 18 of the Act are not made out. Accordingly, if there are not 'reasonable grounds to suspect that a person has committed a serious offence', or if the court is not satisfied that the suspicion stated in the supporting affidavit is held on reasonable grounds, the requirements for the making of an order imposed by s 18 of the Act will not be made out, and the court will be empowered to revoke the order. This approach to the construction of s 42(5) of the Act is supported by authority: see Director of Public Prosecutions (Cth) v Tan [2003] NSWSC 717.

107 The respondent also submits that s 42 does not provide an adequate remedy to a party aggrieved by the making of a restraining order without notice because the determination with respect to revocation is made by reference to the facts at the time of the application for revocation is determined, not at the time the restraining order was made. However, that does not appear to me to impose any greater burden on the applicant for revocation, but rather, to enable all changed circumstances to be taken into account. The respondent's allied submission that the section should be construed as requiring an applicant for revocation to show a change in circumstances since the order was made must be rejected, as it has no foundation in the words of the section.

108 Next the respondent submits that an applicant for a revocation order may be denied access to reasons, and the submissions and affidavit evidence provided by the applicant for the restraining order at the time it was made. However, the extent to which an applicant for a revocation order is to be granted access to evidence, submissions and the reasons upon which the order was made in the first place are entirely within the control of the court hearing the application for revocation. It can be assumed that a court hearing such an application will ensure that appropriate standards of procedural fairness will be observed. Further, it is established that there is no constitutional principle requiring a party to judicial proceedings to have unfettered access to all material relied upon by a court: see K-Generation Pty Ltd v Liquor Licensing Court [2009] HCA 4; (2009) 237 CLR 501 [97] (French CJ), [147] (Gummow, Hayne, Heydon, Crennan & Kiefel JJ). Further, under s 33 of the Act, the owner must be given notice of the restraining order, together with any affidavit relied upon in support of the application for the order, unless the court has exercised the power conferred by s 33(3) of the Act which is conditioned upon the court's conclusion that the exercise of the power is appropriate in order to protect the integrity of any investigation or prosecution. Again, it can be safely assumed that the power to restrict access to affidavit material relied upon in support of the application will be exercised judicially, and in such a way as to achieve fairness in each individual case: see for example, Gypsy Jokers Motorcycle Club Inc v Commissioner of Police [2008] HCA 4; (2008) 234 CLR 532 [182] (Crennan J).

109 The respondent draws particular attention to the fact that the Act does not expressly provide that reasons are to be given for the making of a restraining order. However, it does not follow that there is no obligation to provide such reasons, as it is fairly arguable that the obligation to provide such reasons arises from the existence of a right of appeal from the making of a restraining order. But most relevant for present purposes, an applicant for a revocation order would not appear to me to be significantly prejudiced by the lack of reasons for the making of the restraining order, because there is no obligation upon such an applicant to demonstrate error in order to obtain a revocation order. Rather, under s 42(5) as it was at the time when the order in this case was made, the inquiry is directed to the question of whether, at the time the application for revocation is considered, there are grounds for the making of a restraining order.

110 The respondent also points to the fact that an applicant for an order revoking a restraining order carries the onus of proving grounds for revocation. However, while that may be accepted, in practical terms the issue will be resolved by a consideration of whether or not the materials before the court establish the existence of grounds for the making of a restraining order. If they do not, the grounds for making a revocation order will be made out. The onus imposed upon an applicant for a revocation under s 42 of the Act is very different to the onus imposed upon an applicant for an exclusion order under s 25 of the CAR Act, as it was at the time International Finance was decided. An applicant under that section had to disprove the possibility that the property could have been acquired in whole or in part as a consequence of any of a wide range of fraudulent or illegal activities. Under s 42 of the Act however, the inquiry will be focused upon the adequacy of the grounds relied upon by the applicant for the restraining order, with the result that the focus of the inquiry will be much narrower, and the burden of proof much less onerous.

111 For these reasons I have concluded that the power to seek revocation of a restraining order under s 42 of the Act is fundamentally different in character to the onerous and limited power to seek an exclusion order under s 25 of the CAR Act. Under s 42 of the Act, as it was at the time the order in this case was made, a person given notice of the making of a restraining order could apply at any time to the court to revoke the order, and obtain such a revocation order if the court was satisfied that there were no grounds for making that order. In other words, the facility provided by s 42 of the Act provides an opportunity for a person affected by a restraining order to argue that such an order should not be continued,

on the basis that grounds for continuing the order are not made out. This facility is not dissimilar in character to the right of a party affected by an ex parte order to move to set it aside, save that, under the Act as it was at the time the order in this case was made, a revocation order could not be obtained on the ground of nondisclosure. However, that limitation upon the capacity of a party affected by a restraining order to obtain its revocation is not sufficient, in my view, to result in the conferral of the power to grant a restraining order without notice being characterised as the grant of authority to exercise judicial power in a manner which is inconsistent with the essential character of a court, nor does it engage the court in activity which is repugnant in a fundamental degree to the judicial process as understood and conducted throughout Australia. Accordingly, I would reject the contention developed by the respondent during argument.

112 The Commonwealth DPP has proceeded on the assumption that leave to appeal is required because the orders appealed from are properly characterised as interlocutory. For my part, I would doubt that conclusion because the revocation of the restraining order effectively terminated the proceedings before the court, and prevented the DPP from applying for a confiscation order under pt 2-2 of the Act. For that reason, it seems to me that the decision of Eaton DCJ was properly characterised as final in character, with the result that leave to appeal is not required. However, if leave to appeal were required, I would in any event grant leave. For the reasons I have given, the decision below was wrong, and of significant public importance, given the declaration of invalidity made by Eaton DCJ.

113 For the reasons I have given I would uphold the appeal, dismiss the respondent's notice of contention, set aside the decision of Eaton DCJ, and reinstate the restraining order.

114 McLURE P: I would uphold ground 2 of the appeal, dismiss ground 1 of the appeal and the notice of contention, set aside the decision of Eaton DCJ and reinstate the restraining order. The factual and procedural background and all the relevant provisions of the Proceeds of Crime Act 2002 (Cth) (POC Act) and its legislative history are detailed in the reasons of the Chief Justice and not repeated here.

1. Does s 26(4) of the POC Act require the court to hear and determine an application for a restraining order on an ex parte basis if so requested by the respondent (the DPP);
2. If s 26(4) requires or authorises the court to hear and determine an application for a restraining order on an ex parte basis, is the section beyond the legislative power of the Commonwealth and thus invalid.

116 The legislative powers of the Commonwealth do not extend to the making of a law which authorises or requires a court exercising judicial power to do so in a manner which is inconsistent with the special character of a court or with the nature of judicial power: Nicholas v The Queen [1998] HCA 9; (1998) 193 CLR 173 [146]; APLA Ltd v Legal Services Commissioner (NSW) [2005] HCA 44; (2005) 224 CLR 322 [247].

117 Procedural fairness lies at the heart of the judicial process. Procedural fairness includes the right to be heard which, as a general rule, requires that parties affected by proceedings be given notice of the hearing, copies of documents filed by the moving party and the opportunity to test and/or rebut the evidence relied on by the applicant: International Finance Trust Co Ltd v New South Wales Crime Commission [2009] HCA 49; (2009) 240 CLR 319 [39].

118 The Commonwealth Parliament can validly legislate to exclude or modify the rules of procedural fairness without rendering the law unconstitutional: Gypsy Jokers Motor Cycle Club (Inc) v The Commissioner of Police [2008] HCA 4; (2008) 234 CLR 532 [182] - [189]. However, legislation which requires a court to depart to a significant degree from the matters and standards which have characterised judicial activities in the past may be repugnant to Ch III of the Constitution: Thomas v Mowbray [2007] HCA 33; (2007) 233 CLR 307 [111].

119 Applications entertained ex parte for orders with immediate effect upon the person or property of another are a well-established qualification to the general rule: International Finance Trust [89] (Gummow & Bell JJ). However, the courts have developed procedures and principles to protect the rights of the persons affected by ex parte orders. Under the general law, where an ex parte order has been made, a party affected by it who was not before the court is entitled to apply subsequently to the court inter partes to discharge the order: Owners of the SS Kalibia v Wilson [1910] HCA 77; (1910) 11 CLR 689, 694; see also Rules of the Supreme Court 1971 (WA), O 58 r 23 (the Rules). The power of the court to review and discharge or vary an order made ex parte is inherent in the provisional nature of such an order: WEA Records Ltd v Visions Channel 4 Ltd [1983] 1 WLR 721, 727 (Donaldson MR); Bell Group NV (in liq) v Aspinall (1998) 19 WAR 561, 569. Further, an applicant for an ex parte order is under a duty to make full disclosure of all relevant information in his or her possession, whether or not it assists the application: WEA Records (727). A court may, but not must, set aside an order made ex parte if there has been a material non-disclosure. Its materiality will depend upon the nature of the decision-making power (whether it be discretionary or otherwise) and the circumstances of the case.

120 The parties to the appeal proceeded on the assumption that the reasons and reasoning of the High Court in International Finance Trust guide the determination of the issues in this case notwithstanding that the High Court was there concerned with the validity of a State Act. In particular, it was not suggested that this is a case where a Commonwealth law could infringe Ch III of the Constitution but a State law to the same effect would not be repugnant under the Kable doctrine (Kable v The Director of Public Prosecutions for the State of New South Wales [1996] HCA 24; (1996) 189 CLR 51): see Fardon v Attorney-General for the State of Queensland [2004] HCA 46; (2004) 223 CLR 575 [87].

121 In International Finance Trust the High Court held that s 10 of the Criminal Assets Recovery Act 1990 (NSW) (the NSW Act) as it stood before 26 November 2009 was constitutionally invalid because it was repugnant in a fundamental degree to the judicial process as understood and conducted throughout Australia. Section 10 of the NSW Act relevantly provided:

(2) The Commission may apply to the Supreme Court, ex parte, for a restraining order in respect of:

(a) specified interests, a specified class of interests or all the interests, in property of a person suspected of having engaged in ... serious crime-related activities ...

(3) The Supreme Court must make the order applied for under subsection (2) if the application is supported by an affidavit of an authorised officer stating that:

(a) in the case of an application in respect of an interest referred to in subsection (2)(a) - the authorised officer suspects that the person has engaged in ... serious crime-related activities and stating the grounds on which that suspicion is based ...

and the court considers that having regard to the matters contained in any such affidavit there are reasonable grounds for any such suspicion.

122 It is significant to note that the Supreme Court's duty to make a restraining order under s 10(3) was triggered solely by reference to the material contained in the affidavit made by the authorised officer. Section 18 of the POC Act is not so limited; the court is required to have regard to all evidence properly before it. Moreover, the NSW Act contained no equivalent to s 42(5) of the POC Act which empowers the court to revoke a restraining order on the application of a person who was not notified of the DPP's application for a restraining order. Section 42 as it was at the material time relevantly provided:

(4) The DPP may adduce additional material to the Court relating to the application to revoke the restraining order.

(5) The Court may revoke the restraining order if satisfied that there are no grounds on which to make the order at the time of considering the application to revoke the order.

123 Under the scheme of the POC Act, a restraining order preserves relevant property until the determination of an application for a forfeiture or confiscation order in respect of that property or until the restraining order ceases to be in force under s 45 of the POC Act. Under s 45, restraining orders automatically cease upon the happening of specified events. Thus the purpose of a restraining order is to preserve the status quo pending the making of substantive orders relating to the property.

124 I do not intend to address the broad question of whether pt 2 of the POC Act read as a whole indicates that it constitutes a self-contained and exhaustive regime which excludes any recourse to or analogies with the general law or statutory powers of the courts with jurisdiction under the POC Act. I will confine attention to two specific questions: are the general law and statutory court powers associated with ex parte orders excluded in relation to restraining orders made under s 26(4) of the POC Act; and does a court have the power to make an ex parte interim restraining order under s 26(4) pending an inter partes determination of the application. Little attention was given to these questions by the parties in their written submissions and oral submissions.

125 Subsections (1) and (2) of s 26, both of which are subject to subs (4), require the DPP to give written notice of an application for a restraining order concerning property, to the owner of the property and to any other person the DPP reasonably believes may have an interest in the property respectively. The balance of s 26 relevantly provides:

(3) The court must not (unless subsection (4) applies) hear the application unless it is satisfied that the owner of the property to which the application relates has received reasonable notice of the application.

(4) The court must consider the application without notice having been given if the DPP requests the court to do so.

(5) The court may, at any time before finally determining the application, direct the DPP to give or publish notice of the application to a specified person or class of persons. The court may also specify the time and manner in which the notice is to be given or published.

(6) A person who claims an interest in property may appear and adduce evidence at the hearing of the application.

126 The first construction issue is the nature and extent of the court's duty in s 26(4). If the court's duty in subs (4) is enlivened, the DPP's obligations in subs (1) and (2) to give notice of the application and serve specified documents do not arise. Further, if the duty in subs (4) is enlivened the prohibition in subs (3) preventing the court from hearing the application in the absence of reasonable notice does not apply. This leaves the way open for the court to perform its duty under subs (4) to consider the application for a restraining order 'without notice having been given' under subs (1) and (2). The requirement to give notice is a pivotal aspect of the right to a hearing. To proceed without notice would have the practical effect of denying to affected parties all aspects of the right to be heard, including the opportunity to test or rebut the evidence relied on by the applicant. In determining validity, regard is had to both the legal and practical effect of the statutory provisions: South Australia v Totani [2010] HCA 39; (2010) 85 ALJR 19. It is unnecessary to determine in these proceedings whether subs (6) is to be construed as 'subject to' subs (4).

127 The next issue is the meaning of the term 'consider' in its context, with particular reference to s 26(5), s 18 and s 42 of the POC Act. Section 26(4) of the POC Act had its origins in s 45 of the Proceeds of Crime Act 1987 (Cth) (the 1987 Act) as it was immediately prior to the commencement of the POC Act. At that time, s 45 of the 1987 Act comprised subs (1), (2) and (5). Subject to s 45(2), the DPP was required to give written notice of an application for a restraining order against property to the owner and any other person the DPP had reason to believe may have an interest in the property (s 45(1)). Section 45(2) provided:

If the DPP requests the Court to do so, the Court shall consider the application without notice having been given in accordance with subsection (1) but ... a restraining order made by virtue of this subsection shall cease to have effect at the end of such period (not exceeding 14 days) as is specified by the Court in the restraining order.

128 Section 45(5) of the 1987 Act is in materially the same terms as s 26(5) of the POC Act. I note for the sake of completeness that under the 1987 Act the court had a discretion to make a restraining order and that there was no review power equivalent to s 42 of the POC Act.

129 The meaning of the word 'consider' depends on its context: see Tickner v Chapman [1995] FCA 1726; (1995) 57 FCR 451. We are here concerned with the expression 'to consider an application' in the context of the exercise of a judicial function. Ordinarily it would encompass the exercise by a court of its functions, duties and powers, including the power to make procedural or other orders, for the purpose of, and leading to but excluding, the final determination of the relevant application. The final determination of an application is the making of final orders disposing of the application (subject to any appeal right). To 'consider' includes the hearing of an application as well as the deliberative function of identifying the relevant law and identifying, weighing and reaching conclusions on the relevant facts and considerations. The reasons for decision reflect the deliberative aspect of the court's consideration process.

130 In the context of s 45(2) of the 1987 Act, 'to consider the application' has the above meaning but with an express limitation which confines the court's inherent power to make an interim restraining order to one that expires automatically at the end of a nominated period.

131 Under the general law, an order made ex parte is not a final order or determination. It is a provisional determination. The power in s 42(5) of the POC Act is the exclusive source of the power to review an ex parte order. However, it has analogies with the general law power to set aside an ex parte order. Any order made ex parte under the POC Act is also provisional, being one that can be set aside upon a review of the merits (as distinct from an appeal or judicial review). The duty in s 26(4) applies to all matters encompassed within the scope of the term 'consider', including the making of an ex parte (and thus provisional) restraining order.

132 The relationship between s 26(4) and s 18 also supports this construction of s 26(4). Section 18 of the POC Act is a power coupled with a duty to exercise it if the court is satisfied that the conditions attached to the power are met. To consider the application requires the court to, among other things, address whether or not the conditions attached to the power are, on the material before the court, met. If the conditions are met, the court is required by s 18 to make an order under subs (1)(a) or (1)(b). Moreover, those subsections when read together with the statutory regime in s 42 and s 45 leave no scope for an interim restraining order.

133 On this construction of s 26(4), s 26(5) is intended to apply to persons who have not been served and who have an interest in property the subject of an inter partes application for a restraining order and when there is an inter partes application for the revocation of a restraining order under s 42(5). There being no conflict between s 26(4) and s 26(5) there is no need for one to be made subject to the other.

134 A textual and contextual construction of s 26(4) that requires the court to deliberate on and, if the conditions are met, make an ex parte restraining order, is consistent with the explanatory memorandum for the POC Act. The use to which a court can put such extrinsic material is governed by s 15AB of the Acts Interpretation Act 1901 (Cth). No question of admissibility arises. Nor was it suggested that the court should determine under s 15AB(3) that no consideration or no weight be given to the explanatory memorandum.

136 A power with a duty to exercise it if the court decides that specified conditions have been met is not, on that ground alone, invalid as a legislative attempt to direct the outcome of an exercise of jurisdiction: International Finance Trust [77], [157]; Totani [133].

137 There is no majority support in International Finance Trust for the opinion of the Chief Justice that to require a court to receive an ex parte application and then hear and determine it ex parte, if the executive so desires, is to direct the court as to the manner in which it exercises its jurisdiction, and in so doing deprives the court of an important characteristic of judicial power, that is the power to ensure fairness between the parties [55].

138 On my reading of the joint judgment of Gummow and Bell JJ, two considerations provide the basis for their conclusion that s 10 of the NSW Act was repugnant in a fundamental degree to the judicial process. They are first, the absence of the general law right of review of an order made ex parte; and secondly, the absence of any effective curial enforcement of the duty of full disclosure on ex parte applications. Linked with the first consideration was that the possibility of release of the property the subject of a restraining order was conditioned upon proof of a negative proposition of considerable legal and factual complexity (the applicant had to prove that it was more probable than not that the interest in the relevant property was not acquired in consequence of a crime at common law, or any State or Federal Territory crime).

139 The fourth member of the majority, Heydon J, concluded that s 10 was invalid because there was no facility for the court to entertain an application to dissolve an ex parte restraining order once the defendant had received notice of its grant [159].

140 The dissentients (Hayne, Crennan & Keifel JJ) construed the NSW Act as not excluding the general law power of a court to reconsider an order made ex parte [134]. They said the grounds for reconsideration include, but are not limited to, an allegation that the applicant did not make full and frank disclosure of all matters bearing upon whether the order sought should be made [126]. They concluded that s 10 was valid.

141 As previously noted, s 18 of the POC Act is materially different from s 10(3) of the NSW Act. Under s 18, it is a necessary but not by itself sufficient condition of the exercise of the duty that the authorised officer who made the affidavit that complies with subs (3) holds the suspicion or suspicions stated in the affidavit on reasonable grounds. There is an additional requirement that there be reasonable grounds to suspect that a person has committed a serious offence.

142 I agree with the Chief Justice that there is no merit in the respondent's second contention relating to s 42. As noted, the court may revoke a restraining order on the application of a person who was not notified of the application if satisfied that there are no grounds on which to make the order at the time of considering the revocation application. The revocation application must be made within 28 days after the person is notified of the order or within any court-approved extended period not exceeding three months. Section 42(5) requires the court to reconsider the merits of the application.

143 In applications under the Rules to set aside an ex parte order, the supplementation of evidence is commonplace and has the practical effect of the court considering the merits of the original application as at the time of the hearing of the application to set aside the ex parte order. Moreover, the applicant under the Rules bears the burden of persuading the court to set aside the ex parte order.

144 It is the case that material non-disclosure could not itself entitle the court to set aside an ex parte restraining order made under s 18 of the POC Act unless it had the effect of undermining a condition necessary to enliven the power (duty). However, that will usually be the case where the original decision does not involve the exercise of a discretion. In any event, material non-disclosure would clearly be relevant to proof of the requirements in s 18(1)(d) and (f) of the POC Act, both of which require the court to make value judgments. Further, deliberate non-disclosure of material information may be such as to prevent the court from being satisfied of the matters in s 18(1)(f).

145 In my assessment, s 26(4), when read with s 18 and s 45 (as it then was) did not require a court to exercise judicial power in a manner inconsistent with the special character of a court or with the nature of judicial power. That conclusion is consistent with the reasoning in the joint judgement of Hayne, Crennan, Keifel and that of Heydon JJ in International Finance Trust. I would uphold ground 2 of the appeal and dismiss the notice of contention.

146 BUSS JA: On 16 October 2009, the Chief Judge of the District Court of Western Australia, Kennedy CJDC, made a restraining order pursuant to s 18 of the Proceeds of Crime Act 2002 (Cth) (the Act) on the application ex parte of the Director of Public Prosecutions (Cth) (DPP).

147 The restraining order related to, relevantly, $30,000 cash seized from the respondent, Nashwan Kamal, on 24 September 2009 at 3/74 Cooper Street, Mandurah under a search warrant issued pursuant to s 3E of the Crimes Act 1914 (Cth). The respondent was not given notice of the DPP's application.

148 By chamber summons dated 21 December 2009, the respondent applied to the District Court pursuant to s 42 of the Act for revocation of the restraining order. By amended chamber summons filed 16 March 2010, the respondent claimed a declaration that s 18 [sic: s 26(4)] of the Act is invalid in that it infringes the restraints upon

legislative power imposed under ch III of the Commonwealth Constitution.

149 On 7 May 2010, after a contested hearing, Eaton DCJ declared that s 26(4) of the Act is invalid. His Honour made various consequential orders including an order setting aside the restraining order made by Kennedy CJDC.

150 The appellant has appealed to this court against Eaton DCJ's declaration and consequential orders. The Attorney-General (Cth) has intervened pursuant to s 78B of the Judiciary Act 1903 (Cth).

The form of the Act as at 16 October 2009 and subsequent amendments

151 The parties were agreed (correctly, in my opinion) that, for the purposes of this appeal, the validity of s 26(4) of the Act must be determined by reference to the form of the Act as at 16 October 2009, being the date on which Kennedy CJDC made the restraining order.

152 The Act has been amended on numerous occasions since 16 October 2009. The most significant amendments in relation to the issues raised by this appeal were made by the Crimes Legislation Amendment (Serious and Organised Crime) Act 2010 (Cth).

The declaratory order made by the primary judge

153 The declaratory order made by the primary judge reads:

Section 26(4) of the Proceeds of Crime Act 2002 (Cth) is invalid, being in violation of Chapter III of the Constitution of the Commonwealth of Australia.

154 It is plain that, irrespective of the merits of the DPP's grounds of appeal, his Honour should have confined the terms of any declaratory relief to s 26(4) in the context of the provisions of the Act as at 16 October 2009.

155 The Act establishes a scheme for the confiscation of property, including the proceeds of offences, instruments of offences, benefits derived from offences, proceeds derived from the commercial exploitation of criminal notoriety, and unexplained wealth.

156 This scheme makes provision for the DPP to apply to a court with jurisdiction under the Act for a restraining order. The courts with jurisdiction include the District Court of Western Australia.

157 A restraining order is made in respect of identified property and prohibits any person from disposing of or otherwise dealing with that property except in accordance with the order. A restraining order preserves the identified property in anticipation of a further application for a forfeiture order or a confiscation order.

158 Section 18 of the Act is concerned with restraining orders covering property in relation to people who are suspected of having committed 'serious offences', as defined in s 338. At the material time, s 18(1) provided:

A court with proceeds jurisdiction must order that:

(a) property must not be disposed of or otherwise dealt with by any person; or

(b) property must not be disposed of or otherwise dealt with by any person except in the manner and circumstances specified in the order;

if:

(c) the DPP applies for the order; and

(d) there are reasonable grounds to suspect that:

(i) a person has committed a serious offence; and

(ii) if the offence is not a terrorism offence - the offence was committed within the 6 years preceding the application, or since the application was made; and

(e) any affidavit requirements in subsection (3) for the application have been met; and

(f) the court is satisfied that the authorised officer who made the affidavit holds the suspicion or suspicions stated in the affidavit on reasonable grounds.

Note: A court can refuse to make a restraining order if the Commonwealth refuses to give an undertaking: see section 21.

159 Section 26 of the Act governs the provision of notice of an application for a restraining order. At the material time, s 26 provided:

(a) give written notice of an application for a restraining order covering property to the owner of the property (if the owner is known); and

(b) include with the notice a copy of the application and any affidavit supporting the application.

(2) Subject to subsection (4), the DPP must also:

(a) give written notice of an application for a restraining order covering property to any other person the DPP reasonably believes may have an interest in the property; and

(b) include with the notice:

(i) a copy of the application; and

(ii) a further notice that the person may request that the DPP give the person a copy of any affidavit supporting the application.

The DPP must comply with any such request as soon as practicable.

(3) The court must not (unless subsection (4) applies) hear the application unless it is satisfied that the owner of the property to which the application relates has received reasonable notice of the application.

(4) The court must consider the application without notice having been given if the DPP requests the court to do so.

(5) The court may, at any time before finally determining the application, direct the DPP to give or publish notice of the application to a specified person or class of persons. The court may also specify the time and manner in which the notice is to be given or published.

(6) A person who claims an interest in property may appear and adduce evidence at the hearing of the application.

160 Section 42 of Act makes provision for a person who was not notified of an application for a restraining order to apply to the court to revoke the order. At the material time, s 42 provided:

(1) A person who was not notified of the application for a restraining order may apply to the court to revoke the order.

(1A) The application must be made:

(a) within 28 days after the person is notified of the order; or

(b) if the person applies to the court, within that period of 28 days, for an extension of the time for applying for revocation - within such longer period, not exceeding 3 months, as the court allows.

(2) The applicant must give written notice to the DPP and the Official Trustee of both the application and the grounds on which the revocation is sought.

(3) However, the restraining order remains in force until the court revokes the order.

(4) The DPP may adduce additional material to the court relating to the application to revoke the restraining order.

(5) The court may revoke the restraining order if satisfied that there are no grounds on which to make the order at the time of considering the application to revoke the order.

161 After 16 October 2009, and after the High Court published its reasons for decision in International Finance Trust Co Ltd v New South Wales Crime Commission [2009] HCA 49; (2009) 240 CLR 319, the Parliament amended s 42 of the Act by introducing s 42(5)(b). See the Crimes Legislation Amendment (Serious and Organised Crime) Act 2010 (Cth), sch 2, item 106. Section 42(5), as amended, now reads:

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.

162 Section 39 of the Act is concerned with the making of ancillary orders in relation to a restraining order covering property. At the material time, s 39 provided:

(1) The court that made a restraining order, or any other court that could have made the restraining order, may make any ancillary orders that the court considers appropriate and, without limiting the generality of this, the court may make any one or more of the following orders:

(a) an order varying the property covered by the restraining order;

(b) an order varying a condition to which the restraining order is subject;

(c) an order relating to an undertaking required under section 21;

(d) an order directing the owner of the property (including, if the owner is a body corporate, a specified director of the body corporate) to give a sworn statement to a specified person, within a specified period, setting out particulars of, or dealings with, the property;

(e) if the Official Trustee is ordered under section 38 to take custody and control of property:

(i) an order regulating the manner in which the Official Trustee may exercise its powers or perform its duties under the restraining order; or

(ii) an order determining any question relating to the property, including a question relating to the liabilities of the owner or the exercise of powers or the performance of duties of the Official Trustee; or

(iii) an order directing any person to do anything necessary or convenient to enable the Official Trustee to take custody and control of the property;

(f) an order giving directions about the operation of the restraining order and any one or more of the following:

(i) a forfeiture order that covers the same property as the restraining order;

(ii) a pecuniary penalty order or a literary proceeds order that relates to the same offence as the restraining order;

(g) an order requiring a person whose property is covered by a restraining order to do anything necessary or convenient to bring the property within the jurisdiction.

Note: If there is a pecuniary penalty order that relates to the same offence as a restraining order, the court may also order the Official Trustee to pay an amount equal to the relevant pecuniary penalty out of property covered by the restraining order: see section 282.

(2) The court can only make an ancillary order on the application of:

(a) the DPP; or

(b) the owner of the property covered by the order; or

(c) if the Official Trustee was ordered to take custody and control of the property - the Official Trustee; or

(d) any other person who has the leave of the court.

(3) A person who applies for an ancillary order must give written notice of the application to all other persons entitled to make such an application.

(4) An ancillary order may be made:

(a) if it is made by the court that made the restraining order - when making the restraining order; or

(b) in any case - at any time after the restraining order is made.

(5) An order that is ancillary to a restraining order does not cease to have effect merely because the restraining order, or part of it, ceases to be in force under subsection 45(4) or (5).

Note: A restraining order ceases to be in force under those subsections if a confiscation order covering the same property or relating to the same offence is satisfied.

163 Section 39 was amended by the Crimes Legislation Amendment (Serious and Organised Crime) Act 2010 (Cth). It is unnecessary to recount the amendments.

164 Section 33 of the Act makes provision for giving notice of the fact that a restraining order covering property has been made. At the material time, s 33 provided:

(1) If a court makes a restraining order covering property that a person owns, the DPP must give written notice of the order to the person.

Note: A person who was not notified of the application for a restraining order may apply to revoke the restraining order within 28 days of being notified of the order: see section 42.

(2) The DPP must include a copy of the application and any affidavit supporting the application with the notice (if those documents have not already been given to the person).

(3) However, the court may order that:

(a) all or part of the application or affidavit is not to be given to the person; or

(b) the DPP delay giving the notice (and the documents included with the notice) for a specified period;

if the DPP requests the court to do so and the court considers that this is appropriate in order to protect the integrity of any investigation or prosecution.

(4) If the court orders the DPP to delay giving the notice (and the documents included with the notice) for a specified period, the DPP must give the notice as soon as practicable after the end of that period.

The nature of proceedings under the Act and the onus and standard of proof

165 Proceedings under the Act on an application for, relevantly, a restraining order covering property are not criminal proceedings. See s 315(1). Except in relation to an offence under the Act, the rules of construction applicable only in relation to the criminal law do not apply in the interpretation of the Act, and the rules of evidence applicable in civil proceedings apply, and those applicable only in criminal proceedings do not apply, to proceedings under the Act. See s 315(2).

166 The applicant in any proceedings under the Act bears the onus of proving the matters necessary to establish the grounds for making the order applied for. See s 317(1). Subject to s 52 and s 118, which are not relevant to this appeal, any question of fact to be decided by a court on an application under the Act is to be decided on the balance of probabilities. See s 317(2).

167 The reasoning of the primary judge may be summarised, relevantly, as follows.

168 First, s 26(5) of the Act is inconsistent with s 26(4) [19].

169 Secondly, s 26(4) and s 18(1) of the Act, read together, preclude the operation of s 26(5) in respect of the owner of property [14]. The mandatory nature of s 18 means that 'final determination' of an application for a restraining order (within s 26(5)) will necessarily be contemporaneous with its 'consideration' under s 26(4) [14].

170 Thirdly, s 26 makes a tripartite distinction between the owner of property, a person having an interest in the property, and a specified person or class of persons [28]. The phrase 'a specified person or class of persons' in s 26(5), properly construed, means any 'other specified persons or class of persons' [27] - [28].

171 Fourthly, the DPP, in making an application under s 18 and making a request under s 26(4), in effect, requires the court to hear and determine the application without notice to the party affected [33]. These provisions are incompatible with the judicial function of the court in that they deprive the court of the power to determine whether procedural fairness would require that notice be given [33]. Section 26(4) is in excess of the legislative power of the Commonwealth and is therefore invalid [34].

172 The primary judge relied on the following passage from the explanatory memorandum relating to the Bill which, upon enactment, became the Act:

If the DPP requests an ex parte hearing the court has no discretion to refuse it. An application would usually be made ex parte where there is a risk that the assets would be dissipated, or that an investigation may be jeopardised by the provision of affidavit material (see below and clause 33). If the application is on notice, however, subclause 26(3) provides that the court must not hear the application unless it is satisfied that the owner of the property has received reasonable notice of the application. The usual rules in civil matters apply to giving or serving of all notices under the Act.

If the DPP gives the owner notice of the application, a copy of the application and any affidavit must also be provided to that person. Where the DPP believes that other people may have an interest in the property, the DPP must also give them notice of the application, and a copy of the application. The DPP does not have to initially provide those people with a copy of the affidavit, but if a copy is requested the DPP must comply as soon as is practicable. (By contrast, if the DPP secures a restraining order ex parte, the court has discretion to order that all or part of the notice and affidavit not be given to the owner of the property or other relevant person, or that the giving of those documents is delayed: see subclause 33(3)).

If the court directs, the DPP must also give or publish notice to any other person or class of persons (page 13). (emphasis added)

173 His Honour thought that the reference in the explanatory memorandum to the court's power to direct the DPP to give or publish notice to 'any other person or class of persons' supported his construction of s 26(5). His Honour said that this reference was 'clearly a reference to s 26(5) of the Act' [27].

175 Ground 1 alleges that the primary judge erred in law in construing s 26(4) of the Act (in the circumstances in which it applies) to require a court to determine an application for a restraining order without notice to the owner of the property because s 26(5), properly construed, permits the court, at any time before finally determining the application, to direct the DPP to give such notice.

176 Ground 2 alleges that, further, and even if the Act required a court to determine an application for a restraining order without notice to the owner of the property, the primary judge erred in law in concluding that s 26(4) (in the circumstances in which it applies) is invalid because the Act provides for a restraining order to be revoked on the application of the owner of the property following a contested hearing in a manner that is compatible with ch III of the Constitution.

177 The respondent filed a notice of contention which contains two grounds.

178 Ground 1 alleges that if s 26(5) of the Act empowers the court, before finally determining the application, to give notice to the owner of the property (contrary to the primary judge's findings and the respondent's submissions), s 26(4) impermissibly mandates that a court shall grant a restraining order, without notice to the owner, where the court is satisfied that the conditions of s 18 are fulfilled.

179 Ground 2 alleges that the provisions of the Act, and in particular s 42, do not provide the facility or adequate means to an applicant for revocation of a restraining order to dissolve or set aside the order in that:

(a) the criteria which apply to the revocation of a restraining order are different from the criteria which apply to the granting of the order;

(b) the applicant is unable or potentially unable to access the reasons for the making of the restraining order, the submissions made in support of the order and the whole of the affidavit evidence in support of the application for the order; and

(c) the applicant bears the onus of establishing a case by 'complex and negative inquiry'.

180 Counsel for the respondent, in the course of argument on the appeal, expanded ground 2, without objection from the DPP or the Attorney-General, to include the assertion that even if the Act did not require the court, upon request by the DPP, to determine an application for a restraining order without notice to the owner of the property, if the court decided to make a restraining order without notice, s 26(4) was invalid because of the absence of a speedy and effective facility to set aside the order after the owner is given notice of the fact that a restraining order has been made.

The right of appeal to this court from the judgment of the primary judge

181 Section 314 of the Act confers jurisdiction on State and Territory courts, as follows:

(1) Jurisdiction is vested in the several courts of the States and Territories with respect to matters arising under this Act.

(2) Subject to section 53, the jurisdiction vested in a court by virtue of subsection (1) is not limited by any limits to which any other jurisdiction of the court may be subject.

(3) Jurisdiction is vested in a court of a Territory by virtue of subsection (1) so far only as the Constitution permits.

See also s 335. Section 53 deals with jurisdictional issues concerning forfeiture orders, and is not relevant to this appeal.

182 Section 322 of the Act makes provision for appeals. It confers rights of appeal in relation to confiscation orders, forfeiture orders, and orders under s 141, s 168 or s 179S declaring property to be available to satisfy a pecuniary penalty order, a literary proceeds order or an unexplained wealth order. The Act does not confer an express right of appeal against a restraining order or in relation to a declaratory order. However, s 322(7) provides that s 322 does not affect 'any other right of appeal'.

183 Section 79(1) of the Judiciary Act provides:

The laws of each State or Territory, including the laws relating to procedure, evidence, and the competency of witnesses, shall, except as otherwise provided by the Constitution or the laws of the Commonwealth, be binding on all Courts exercising federal jurisdiction in that State or Territory in all cases to which they are applicable.

184 By s 80 of the Judiciary Act:

So far as the laws of the Commonwealth are not applicable or so far as their provisions are insufficient to carry them into effect, or to provide adequate remedies or punishment, the common law in Australia as modified by the Constitution and by the statute law in force in the State or Territory in which the Court in which the jurisdiction is exercised is held shall, so far as it is applicable and not inconsistent with the Constitution and the laws of the Commonwealth, govern all Courts exercising federal jurisdiction in the exercise of their jurisdiction in civil and criminal matters.

185 In The Commonwealth v Mewett [1997] HCA 29; (1997) 191 CLR 471, Gummow and Kirby JJ (Brennan CJ agreeing) noted that, in its terms, s 79 of the Judiciary Act applies 'except as otherwise provided by ... the laws of the Commonwealth' (554). Their Honours added that one such law is s 80 of the Judiciary Act. They then said:

Accordingly, there is much to be said for the view that regard is to be had to s 80, and to the common law in Australia, before turning to s 79 to ascertain whether a State or Territory law is to be picked up in the case at hand (554).

186 In Northern Territory of Australia v GPAO [1999] HCA 8; (1999) 196 CLR 553, Gleeson CJ and Gummow J said that s 80 of the Judiciary Act 'directs all courts exercising federal jurisdiction where they "shall go for the substantive law" (South Australia v The Commonwealth [1962] HCA 10; (1962) 108 CLR 130, 140), and is supplemented by s 79' [30]. See also Australian Securities and Investments Commission v Edensor Nominees Pty Ltd [2001] HCA 1; (2001) 204 CLR 559 [57] (Gleeson CJ, Gaudron & Gummow JJ).

187 Section 79(1) of the District Court of Western Australia Act 1969 (WA) (District Court Act) provides, relevantly, that a party to an 'action or matter' who is dissatisfied with:

(a) a 'final judgment', may appeal from that judgment to the Court of Appeal (s 79(1)(a));

(b) a judgment that is not a 'final judgment' or an order remitting any action or matter from one court to another, may by leave of the Court of Appeal, appeal to the Court of Appeal (s 79(1)(b)).

188 In s 6(1) of the District Court Act, 'action' and 'matter' are defined. The term 'action' means 'a civil proceeding commenced by writ or in such other manner as is prescribed by rules of court and includes suit but does not include any criminal proceeding'. The term 'matter' means 'a proceeding in the Court that is commenced otherwise than by writ'.

189 In my opinion, the right of appeal under s 79(1) of the District Court Act is 'picked up' by s 79 of the Judiciary Act. Neither the Constitution nor any law of the Commonwealth 'otherwise provides'. Indeed, s 15 of the Act states that it is the intention of the Parliament that the Act is not to apply to the exclusion of a law of a State or Territory to the extent that the law is capable of operating concurrently with the Act. In my opinion, the right of appeal under s 79(1) of the District Court Act is capable of operating concurrently with the Act. This right may be exercised harmoniously with the express rights of appeal embodied in s 322 and with the other provisions of the Act. As I have mentioned, s 322(7) states that the express rights of appeal conferred by s 322 do not affect 'any other right of appeal'.

190 In the present case, the proceeding which culminated in the judgment of the primary judge was an 'action' or 'matter', as defined in s 6(1) of the District Court Act. This court's jurisdiction to hear the appeal lies under s 79(1) of that Act.

191 Counsel for the DPP submitted that the appeal 'is arguably against interlocutory orders' and in consequence the DPP had proceeded on the basis that it requires leave to appeal pursuant to s 79(1)(b) of the District Court Act. By that provision, leave to appeal to this court is necessary if, relevantly, the judgment of the primary judge is not a 'final judgment'. The term 'final judgment' is not defined. Counsel did not develop the submission or cite any relevant authorities.

192 The characterisation of a judgment as final or interlocutory depends on the nature of the order made, and not on the nature of the application made to the court. See Ex parte Bucknell [1936] HCA 67; (1936) 56 CLR 221, 225 (Latham CJ, Rich, Dixon, Evatt & McTiernan JJ); Niemann v Electronic Industries Ltd [1978] VicRp 44; [1978] VR 431, 438 (Murphy J).

193 It is necessary, in determining whether a judgment is final or interlocutory, to examine the consequences of the judgment and ascertain whether it finally determines the rights of the parties in a principal cause pending between them. The test is not merely whether the judgment finally determines the actual application out of which it arises in that, subject to any possible appeal, every judgment does that unless it is an order that is expressly declared to be subject to variation. See Hall v Nominal Defendant [1966] HCA 36; (1966) 117 CLR 423, 443 (Windeyer J). Regard must be had to the legal rather than the practical effect of the judgment. See Carr v Finance Corporation of Australia Ltd (No 1) [1981] HCA 20; (1981) 147 CLR 246, 248 (Gibbs CJ), 256 - 257 (Mason J).

194 In the present case, the principal cause pending between the DPP and the respondent in the proceedings before the primary judge was, relevantly, whether s 26(4) of the Act is invalid in the context of the provisions of the Act as at 16 October 2009. The primary judge made a declaratory order that s 26(4) is invalid. His Honour also made a number of consequential orders.

195 In my opinion, the declaratory order and the consequential orders which are under attack in this appeal are properly to be characterised as a 'final judgment', for the purposes of s 79(1) of the District Court Act, in that those orders were final and binding on the parties and, as a matter of law, determined the principal cause pending between them. The positive declaration created either a res judicata or an issue estoppel. See Becker v City of Marion Corporation [1977] AC 271, 281 - 282; Marra Developments Ltd v BW Rofe Pty Ltd [1977] 2 NSWLR 616, 626 (Hutley JA, Moffitt P & Mahoney JA relevantly agreeing); A Hudson Pty Ltd v Legal & General Life of Australia Ltd (1985) 1 NSWLR 701, 707- 708 (Kirby P).

196 If, contrary to my opinion, the judgment of the primary judge was not final, leave to appeal should be granted. The grounds of appeal raise issues of general public importance. As I will explain, the decision of the primary judge in relation to these issues was, with respect, erroneous. It is in the interests of justice that there be a grant of leave.

197 Subject to s 26(4), the Parliament has enacted in s 26(1), s 26(2) and s 26(3), relevantly, that:

(a) the DPP must give written notice of an application for a restraining order covering property to 'the owner of the property' (if the owner is known) and to 'any other person the DPP reasonably believes may have an interest in the property'; and

(b) the court must not 'hear the application' unless it is satisfied that the owner of the property has received reasonable notice of the application.

198 The term 'interest', in relation to property or a thing, is defined in s 338 to mean:

(a) a legal or equitable estate or interest in the property or thing; or

(b) a right, power or privilege in connection with the property or thing,

whether present or future and whether vested or contingent.

199 By s 26(4), which overrides s 26(1), s 26(2) and s 26(3), the court 'must consider the application without notice having been given' if the DPP requests the court to do so.

200 By s 26(5), the court may, 'at any time before finally determining the application', direct the DPP to give or publish notice of the application to 'a specified person or class of persons'.

201 Section 26(6) is concerned with standing to appear before the court on an application by the DPP for a restraining order. It provides that a person 'who claims an interest in property' may appear and adduce evidence at the hearing of the application.

202 Section 26 uses the terms 'hear' (s 26(3)), 'consider' (s 26(4)) and 'finally determining' (s 26(5)) in the context of the court hearing, considering and finally determining an application for a restraining order covering property. The Act does not define 'hear', 'consider' or 'finally determining' or any cognate form of those words.

203 The references in s 26 to 'hear', 'consider' and 'finally determining' an application also appear in s 39 of the current Proceeds of Crime Act 2002 (Cth), which is concerned with a court making ancillary orders in relation to a restraining order covering property. The relevant provisions of s 39 were introduced after 16 October 2009 by the Crimes Legislation Amendment (Serious and Organised Crime) Act (No 2) 2010 (Cth), sch 1, pt 5.

204 Section 182 of the Act, which relates to applications for examination orders, provided, at the material time, that an examination order can only be made on application by the DPP. By amendments made under the Crimes Legislation Amendment (Serious and Organised Crime) Act (No 2) 2010 (Cth), the original text of s 182 became subs (1) and a new subs (2) was enacted in these terms:

The court must consider an application for an examination order without notice having been given to any person if the DPP requests the court to do so. (emphasis added)

205 At the material time, the words 'hearing', 'determining' and 'finally determining', and cognate forms of those words, appeared elsewhere in the Act. For example:

(a) s 60(1)(b) refers to an application for a forfeiture order having been 'finally determined' on the merits;

(b) s 61(2) empowers a court 'hearing [an] application' for a forfeiture order, at any time before 'finally determining the application', to direct the DPP to give or publish notice of the application;

(c) s 62(1) refers to a court 'hearing an application' for a forfeiture order;

(d) s 64(2) refers to a court 'determining the application' for a forfeiture order;

(e) s 64(3) refers to a person failing to appear at 'the hearing of the application' for a forfeiture order;

(f) s 69(1)(a)(ii) and s 69(1)(b)(ii) refer to an appeal against a forfeiture order lapsing or being 'finally determined';

(g) s 75(2) refers to the entitlement of the DPP to appear and adduce evidence at 'the hearing of [an] application' for an exclusion order;

(h) s 79(2) confers on the DPP the right to appear and adduce evidence at 'the hearing of [an] application' for a compensation order;

(i) s 93(2) and s 93(3) refer to applications under s 31 being 'finally determined'.

206 In my opinion, 'hear', 'consider' and 'finally determining' in s 26 bear their ordinary meaning in the context of proceedings before a court.

207 'Hear', in the context of the court 'hearing the application' within s 26(3), refers to any hearing or hearings conducted by a judicial officer in relation to the application.

208 'Consider', in the context of the court 'considering the application' within s 26(4), connotes an intellectual process. It involves the judicial officer who has responsibility for the application bringing his or her mind to bear and reflecting on the facts and the legal principles relevant to the issues raised by the application, including the procedural orders which should be made to facilitate the determination of those issues and the final determination of the application, according to law. See Tickner v Chapman [1995] FCA 1726; (1995) 57 FCR 451, 462 (Black CJ), 476 - 477 (Burchett J).

209 'Finally determine', in the context of the court 'finally determining an application' within s 26(5), connotes the judicial officer with responsibility for the application making a decision on the application and embodying that decision in an order which, subject to any rights of appeal, has finality; that is, the order, subject to any rights of appeal, finally disposes of the application.

210 The court may 'consider' the application before it has commenced to 'hear' it. Also, the court will necessarily 'consider' the application during any 'hearing' and before the 'final determination' of the application.

211 Section 26 contains the Parliament's scheme for the giving of notice of an application by the DPP for a restraining order covering property. The critical feature of s 26 in any application is whether or not the DPP makes a request of the court under s 26(4). This feature is the focus of my construction of the relevant provisions of s 26.

212 If the DPP does not make a request of the court under s 26(4) to consider the application, then, subject to s 26(5), the court must proceed to hear and finally determine the application in accordance with the relevant provisions of the Act and, subject to those provisions, its ordinary procedures. Section 26(5) confers a power on the court which, if exercised, supplements the obligations of the DPP under s 26(1) and s 26(2) in relation to giving written notice of the application. By s 26(1)(a) and s 26(2)(a), read together, the DPP must give written notice of the application to 'the owner of the property (if the owner is known)' and to 'any other person the DPP reasonably believes may have an interest in the property'. However, s 26(6) confers standing on a broader category of persons than those identified in s 26(1)(a) and s 26(2)(a). This broader category is any person who 'claims an interest in property'. Any such person may appear and adduce evidence at the hearing of the application. It is apparent, therefore, that if the DPP does not make a request of the court under s 26(4), then, the court may, under s 26(5), at any time before finally determining the application, direct the DPP to give or publish notice of the application to 'a specified person or class of persons'. In these circumstances (where the persons referred to in s 26(1)(a), if known, and the persons referred to in s 26(2)(a), if any, will have already been given notice), if the court exercises the power under s 26(5) the specified person or class of persons will ordinarily be a person or class of persons, other than those to whom notice has already been given under s 26(1)(a) and s 26(2)(a), whom the court thinks may arguably have standing under s 26(6). The court is not, of course, bound by the Act to exercise the power under s 26(5). But, importantly, there is no restriction or limitation in s 26 or elsewhere in the Act upon the court exercising this power judicially in accordance with the established rules of procedural fairness. If, in a particular case, the court does not exercise its power under s 26(5), the relevant application will be heard and finally determined with notice having been given only in accordance with s 26(1)(a) and s 26(2)(a).

213 If the DPP does make a request of the court under s 26(4) to consider the application, then, subject to s 26(5), the court must consider the application and then proceed to hear and finally determine it in accordance with the relevant provisions of the Act and, subject to those provisions, its ordinary procedures. Section 26(4) requires the court to 'consider' the application, but does not require the court to 'hear' or 'finally determine' the application without notice having been given. Section 26(5) confers a power on the court which, if exercised, overrides s 26(4). If the DPP does make a request of the court under s 26(4), the court may, on considering the application and at any time before finally determining it, direct the DPP to give or publish notice of the application to 'a specified person or class of persons'. In these circumstances (where the persons referred to in s 26(1)(a), if known, and the persons referred to in s 26(2)(a), if any, will not have already been given notice), if the court exercises the power under s 26(5) the specified person or class of persons may comprise or include:

(a) the owner of the property (if the owner is known), within s 26(1)(a);

(b) any other person the DPP reasonably believes may have an interest in the property, within s 26(2)(a); and

(c) any other person or class of persons specified by the court.

Ordinarily, the court would specify persons or classes of persons whom the court thinks may arguably have standing in the particular case under s 26(6).

214 There was a precursor to s 26(4) of the Act in the Crimes Legislation Amendment Act 1987 (Cth). This 1987 amending Act amended s 45 and other provisions of the Proceeds of Crime Act 1987 (Cth) (the 1987 Act). Section 45, like s 26 of the Act, governed the provision of notice of an application for a restraining order covering property.

215 Section 45(5) of the 1987 Act was similar to s 26(5) of the Act. By s 45(5):

The court may, at any time before the final determination of an application for:

(a) a restraining order; or

(b) an extension of the period of operation of a restraining order;

direct the DPP to give or publish notice of the application to a specified person or class of persons, in the manner and within the time that the court considers appropriate. (emphasis added)

216 Section 45(2) of the original 1987 Act provided that the court may make a restraining order where notice of the application had not been given to the owner of the property or any other person whom the DPP had reason to believe may have an interest in the property, if the court was satisfied that there were circumstances of urgency requiring the making of such an order or it would be contrary to the public interest to give notice of the application, but, in general, a restraining order made under s 45(2) ceased to have any effect at the end of such period (not exceeding 14 days) as was specified by the court in the restraining order.

217 The 1987 amending Act, which amended the original 1987 Act, omitted s 45(2) and replaced it with the following subsection:

If the DPP requests the court to do so, the court shall consider the application without notice having been given in accordance with subsection (1) but, subject to subsection (3), a restraining order made by virtue of this subsection shall cease to have effect at the end of such period (not exceeding 14 days) as is specified by the court in the restraining order. (emphasis added)

218 In my opinion, the evident purpose of the introduction into the 1987 Act of the new s 45(2) was merely to remove the earlier requirement that the DPP satisfy the court that circumstances of urgency existed or that it would be contrary to the public interest for notice to be given. It was not a purpose of the amendment to affect the court's discretion under s 45(5) of the 1987 Act to direct the DPP to give notice.

219 By s 18(1) of the Act, relevantly, the court must make a restraining order covering property if the DPP applies for the order (s 18(1)(c)); and there are reasonable grounds to suspect that a person has committed a serious offence (s 18(1)(d)); and any affidavit requirements in s 18(3) for the application have been met (s 18(1)(e)); and the court is satisfied that the authorised officer who made the affidavit holds the suspicion or suspicions stated in the affidavit on reasonable grounds (s 18(1)(f)).

220 In my opinion, s 26(4) and s 18(1), read together, do not preclude or inhibit the court's exercise of the power under s 26(5) in respect of the owner of the property or anyone else. My reasons are these.

221 Although the court must make a restraining order if the criteria enumerated in s 18(1) are established, those criteria include the court's satisfaction as to the existence and the reasonableness of the alleged grounds for suspecting that the person has committed a serious offence: s 18(1)(d), s 18(1)(f). The court is bound to give proper attention to the criteria enumerated in s 18(1) and determine whether the conditions for the making of a restraining order have been satisfied. This function must be performed judicially. The court has to proceed on the basis of the evidence before it. This evidence will not necessarily be confined to evidence in favour of the requisite grounds. The DPP is obliged to disclose to the court any adverse evidence. See Thomas A Edison Ltd v Bullock [1912] HCA 72; (1912) 15 CLR 679, 681 - 682 (Isaacs J); International Finance Trust [92] - [93] (Gummow & Bell JJ), [131] - [132] (Hayne, Crennan & Kiefel JJ); Centurion Trust Co Ltd v Director of Public Prosecutions (WA) [2008] WASCA 6; (2008) 35 WAR 463 [110] - [111] (McLure JA, Buss JA agreeing).

222 The court, in exercising its jurisdiction in relation to restraining orders, may, if it thinks fit, adjourn its consideration and any hearing of the DPP's application. The court may order an adjournment whether or not the DPP has made a request of the court under s 26(4). Relevantly, for present purposes, the court may adjourn its consideration and any hearing of the application to enable:

(a) the DPP to comply with any order for the giving of notice which the court may make under s 26(5); and

(b) any person with standing under s 26(6) to appear and adduce evidence.

223 The court's power of adjournment and other procedural powers are embodied primarily in the rules of court.

224 In the present case, the rules of court of the District Court of Western Australia, including its power of adjournment, were 'picked up' by s 79 of the Judiciary Act. Neither the Constitution nor any law of the Commonwealth 'otherwise provided'. Indeed, as I have mentioned, s 15 of the Act records the Parliament's intention that the Act is not to apply to the exclusion of a law of a State or Territory to the extent that the law is capable of operating concurrently with the Act. In my opinion, the District Court's power of adjournment under its rules of court is capable of operating concurrently with, relevantly, s 18 and s 26 of the Act. Nothing in the Act indicates that the Parliament intended that a court with jurisdiction under the Act should act other than 'according to the rules of procedure by which it is governed and subject to the incidents by which it is affected': Electric Light and Power Supply Corporation Ltd v Electricity Commission (NSW) [1956] HCA 22; (1956) 94 CLR 554, 559 (Dixon CJ, McTiernan, Williams, Webb, Fullagar, Kitto & Taylor JJ). The Parliament has taken each court with jurisdiction under the Act as the Parliament finds the court, with all its incidents. Generally see Thomas v Mowbray [2007] HCA 33; (2007) 233 CLR 307 [55] (Gummow & Crennan JJ); Gordon v Tolcher [2006] HCA 62; (2006) 231 CLR 334 [11] - [12], [40] - [41] (Gleeson CJ, Gummow, Hayne, Callinan & Heydon JJ); Director of Public Prosecutions (Cth) v Mare [2008] QCA 373; [2009] 1 Qd R 209 [31], [56] (Fraser JA, Mackenzie AJA & Daubney J agreeing).

225 In my respectful opinion, the reasoning of the primary judge in relation to s 18 and s 26 was erroneous. In particular, for the reasons I have given:

(a) the natural and ordinary meaning of s 26(5) is not inconsistent with s 26(4);

(b) s 26(4) and s 18(1), read together, do not preclude or inhibit the court's exercise of the power under s 26(5) in respect of the owner of the property or anyone else;

(c) the mandatory nature of s 18 does not mean that 'final determination' of an application for a restraining order covering property will necessarily be contemporaneous with its consideration under s 26(4);

(d) s 26 does not make a rigid distinction between the owner of property, a person having an interest in property, and a specified person or class of persons; and

(e) the structure of s 26 and the unqualified language of s 26(5) indicate that s 26(5) is an overarching provision that does not create a third category of persons which is mutually exclusive of the owner of the property or of persons having an interest in the property.

226 The Parliament expresses its intention through the meaning of the statutory text it has adopted, understood in the light of background, purpose and object, and surrounding circumstances. See Singh v The Commonwealth [2004] HCA 43; (2004) 222 CLR 322 [19] (Gleeson CJ). The passage in the explanatory memorandum to the Act relied on by the primary judge does not provide a proper basis (let alone a secure foundation) for departing from what is, in my opinion, the ordinary meaning conveyed by the text of s 26 in the context of the Act as a whole. Section 26 is neither ambiguous nor obscure, and the construction I have given it does not lead to a result that is manifestly absurd or unreasonable. Section 15AB of the Acts Interpretation Act 1901 (Cth) does not permit recourse to the explanatory memorandum for the purpose of departing from the ordinary meaning of the statutory text unless either the meaning of the provision to be construed is ambiguous or obscure or, in its ordinary meaning, leads to a result that is manifestly absurd or unreasonable. See Re Australian Federation of Construction Contractors; Ex parte Billing [1986] HCA 74; (1986) 68 ALR 416, 420 (Gibbs CJ, Mason, Wilson, Brennan, Deane & Dawson JJ). None of those conditions is satisfied in relation to s 26.

Ground 1 of the notice of contention: its merits

228 For the reasons I have given in the course of considering ground 1 of the appeal, s 26(4) of the Act does not mandate that a court must grant a restraining order over property without notice to the owner where the court is satisfied that the conditions in s 18(1) are fulfilled.

230 Ground 2 of the appeal is based on the premise that, contrary to my opinion in relation to ground 1, the Act requires the court to determine an application for a restraining order covering property without notice to the owner. It is therefore strictly unnecessary to deal with ground 2.

231 The High Court follows the precept that constitutional questions should not be decided unless it is necessary 'to do justice in the given case and to determine the rights of the parties': Lambert v Weichelt (1954) 28 ALJ 282, 283 (Dixon CJ, McTiernan, Webb, Fullagar, Kitto & Taylor JJ). See also ICM Agriculture Pty Ltd v The Commonwealth [2009] HCA 51; (2009) 240 CLR 140 [141] (Hayne, Kiefel & Bell JJ).

232 On the assumption that this precept applies to intermediate courts of appeal, it is nevertheless appropriate in the present case that I express my view on ground 2 because there is a division of opinion in the court as to the merits of ground 1.

233 My examination of ground 2 will necessarily be based on the premise that, contrary to my opinion, the Act requires the court to determine an application for a restraining order covering property without notice to the owner.

234 The primary judge, in declaring s 26(4) to be invalid, purported to apply the reasoning of the High Court in International Finance Trust.

235 In International Finance Trust, a majority of the High Court (French CJ, Gummow, Heydon & Bell JJ; Hayne, Crennan & Kiefel JJ dissenting) held that s 10 of the Criminal Assets Recovery Act 1990 (NSW) (the New South Wales Act) was invalid in that the provision required the Supreme Court of New South Wales to engage in an activity that was repugnant, in a fundamental degree, to proper judicial process. See [55] - [56] (French CJ), [98] (Gummow & Bell JJ), [155], [161] (Heydon J).

236 Section 10 of the New South Wales Act was concerned with applications for restraining orders covering property. The process relating to an application for a restraining order under s 10 was summarised by Hayne, Crennan and Kiefel JJ, as follows:

A State statute permits a law enforcement authority to seek from the State's Supreme Court, without notice to anyone, an order preventing any dealing with specified property. The Supreme Court must make that restraining order if a law enforcement officer suspects that the person who owns the property has committed one of a broad range of crimes, or the officer suspects that the property is derived from criminal activity, and the Court considers that there are reasonable grounds for the suspicion. The statute makes no express provision for any subsequent contested hearing about whether a restraining order should be made.

On application by a law enforcement authority, the Supreme Court must order forfeiture of property subject to a restraining order if it is more probable than not that, at any time within the previous six years, the person whose conduct formed the basis of the restraining order had committed any offence punishable by five or more years' imprisonment. Subject to some exceptional cases where hardship would be caused to innocent others, property can only be excluded from the operation of a restraining order, or a forfeiture order, if it is shown to be more probable than not that the relevant interest in the property was not acquired as a result of any illegal activity [101] - [102]. (original emphasis)

237 Gummow and Bell JJ gave this explanation of the relevant operation of the New South Wales Act:

The Supreme Court is conscripted for a process which requires in substance the mandatory ex parte sequestration of property upon suspicion of wrong doing, for an indeterminate period, with no effective curial enforcement of the duty of full disclosure on ex parte applications. In addition the possibility of release from that sequestration is conditioned upon proof of a negative proposition of considerable legal and factual complexity [97].

238 In the present case, the duration of a restraining order is specified in s 41, s 42 and s 45 of the Act. The effect of the order is, in essence, to prohibit the owner of the property in question or any person with an interest in that property from disposing of or otherwise dealing with the property.

239 By s 37(1), a person is guilty of an offence if:

(a) the person disposes of, or otherwise deals with, property; and

(b) the person knows that, or is reckless as to the fact that, the property is covered by a restraining order; and

(c) the disposition or dealing contravenes the order.

240 In the present case, the primary judge appears to have understood International Finance Trust to be authority for the proposition that compatibility with the judicial function demands that the court have a discretion to determine whether an application for a restraining order should be determined without notice having been given. See his Honour's reasons at [10], [33].

241 The primary judge's understanding accords with the reasoning of French CJ in International Finance Trust. See French CJ's reasons at [40], [44] - [45], [55] - [57]. However, the Chief Justice was alone in the view that the Parliament could not remove this discretion from the court.

(a) Heydon J, a member of the majority, said that the court's lack of 'discretion to adjourn the hearing briefly while notice is given to the person affected' was 'not by itself repugnant to the judicial process' [152]. See also his Honour's reasons at [154], [156] - [158].

(b) The minority, Hayne, Crennan and Keifel JJ, said that there is nothing repugnant to the judicial process in the bare fact that it is not left to the court to decide whether an application for a restraining order should be determined ex parte [135] - [136].

243 The opinion of Gummow and Bell JJ on this issue is, with respect, less clear, but it appears that they did not regard the mandatory ex parte nature of the application alone as determinative of invalidity [89], [93], [97]. Their Honours appear to have regarded as critical, the additional absence of any mechanism for the 'effective curial enforcement of the duty of full disclosure on ex parte applications' [97].

244 Section 33(1) of the Act requires the DPP to give written notice of the fact that a restraining order covering property has been made to the owner of the property. The DPP must include a copy of the application and any affidavit supporting the application with the notice (if those documents have not already been given to the owner): s 33(2). However, s 33(3) confers on the court the power to order that all or part of the application or affidavit is not to be given to the owner, or that the DPP delay giving the notice (and the documents included with the notice) for a specified period, if the DPP requests the court to do so and the court considers that this is appropriate in order to protect the integrity of any investigation or prosecution. By s 33(4), if the court orders the DPP to delay giving the notice (and the documents included with the notice) for a specified period, the DPP must give the notice as soon as practicable after the end of that period.

245 It is of significance that the power to order non-disclosure is discretionary and is vested in the court. Neither s 33 nor any other provision of the Act precludes or inhibits the court from exercising this discretion in a manner that will ensure justice in the particular case as between the DPP and the integrity of any investigation or prosecution, on the one hand, and the owner of the property and the owner's rights and interests in relation to the property, on the other. See generally Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72; (2005) 225 CLR 88 [24] (Gleeson CJ, Gummow, Kirby, Hayne & Heydon JJ); Gypsy Jokers Motorcycle Club Inc v Commissioner of Police [2008] HCA 4; (2008) 234 CLR 532 [182] (Crennan J); K-Generation Pty Ltd v Liquor Licensing Court [2009] HCA 4; (2009) 237 CLR 501 [97] (Gummow, Hayne, Heydon, Crennan & Kiefel JJ).

246 Section 42 of the Act makes provision for a person who was not notified of an application for a restraining order to apply to the court to revoke the order. The application to revoke must be made within 28 days after the person was notified of the restraining order, however there is (limited) provision for the granting of an extension of time: s 42(1A). Also, s 39 makes provision for, relevantly, the owner of the property covered by a restraining order (s 39(2)(b)), and any other person who has the leave of the court (s 39(2)(d)), to apply to the court for ancillary orders in relation to the restraining order, including an order varying the property covered by the restraining order (s 39(1)(a)) and an order varying a condition to which the restraining order is subject (s 39(1)(b)).

247 Section 42 makes available an inter partes hearing to determine an application by, relevantly, the owner of the property covered by a restraining order (who was not notified of the application for the restraining order) to revoke the ex parte order.

248 An owner who makes application under s 42 is entitled to adduce evidence at the inter partes hearing, challenge the DPP's evidence and make submissions to the court. Section 42 does not preclude or inhibit the court from conferring on the owner, in relation to the inter partes hearing, the ordinary entitlements under the established rules of procedural fairness. Generally see Director of Public Prosecutions (Cth) v Tan [2004] NSWSC 856 [4] - [9] (Shaw J).

249 The court may revoke a restraining order under s 42(5) if it is satisfied that there are no grounds on which to make the order at the time of considering the application for revocation. The owner bears the onus of persuading the court that there are no reasonable grounds to suspect that a person has committed a serious offence: s 18(1)(d); s 317(1).

250 In Lee v Director of Public Prosecutions (Cth) [2009] NSWCA 347; (2009) 75 NSWLR 581, Basten and Macfarlan JJA and Sackville AJA made the following observations in relation to s 42(5) of the Act (while noting that it was unnecessary to resolve the issues):

It seems preferable ... to treat s 42(5) as requiring satisfaction at the time of the revocation hearing as to the absence of such grounds as could have been relied upon to justify a restraining order, being the grounds specified in whichever of ss 17, 18 or 19 formed the basis of the original order. On that view, the order would be liable to revocation if the Court were satisfied that there were no reasonable grounds for the suspicion which had been relied upon [30].

251 Section 42 of the Act is readily distinguishable from the provisions of s 25 of the New South Wales Act, which were under consideration in International Finance Trust. In particular:

(a) Section 25 permitted, relevantly, an owner of restrained property to make an application for an exclusion order and, merely incidental to that application, the owner may have been able to litigate the propriety of the underlying restraining order: International Finance Trust [93] (Gummow & Bell JJ).

(b) By contrast, s 42 expressly prescribes a procedure for, relevantly, an owner of restrained property, who did not receive notice of the DPP's application for the restraining order, to revoke the ex parte order and, in the course of that application, to adduce evidence and make submissions.

(c) Section 25(2) required that, before an exclusion order could be made, the owner of property, by 'negating ... an extremely widely drawn range of possibilities of contravention of the criminal law found in the common law, and State and federal statute law', prove 'a negative proposition of considerable legal and factual complexity': International Finance Trust [96] - [97] (Gummow & Bell JJ).

(d) By contrast, s 42 confers on the court power to revoke the ex parte order if the owner satisfies the court that there are no grounds on which to make the order at the time of considering the application to revoke the order: s 42(5).

252 In my opinion, the Act (unlike the New South Wales Act) does not displace, without an adequate alternative judicial remedy, the court's power to discharge any restraining order covering property that was made without notice of the application having been given to the owner. The Act does not require or authorise the courts with jurisdiction under the Act to exercise judicial power in a manner inconsistent with the essential character of a court or with the nature of judicial power. See Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs [1992] HCA 64; (1992) 176 CLR 1, 27 (Brennan, Deane & Dawson JJ). The primary judge should have held that there is nothing repugnant to the judicial process in a provision for orders to be made ex parte, at least where those orders may be revoked after a prompt inter partes hearing. The procedure in s 42 is adequate to sustain the constitutional validity of s 26(4) if, contrary to my opinion, the Act requires the court to determine an application for a restraining order without notice to the owner.

Ground 2 of the notice of contention: its merits

254 The criteria which apply to the revocation of a restraining order covering property are not materially different from the criteria which apply to the granting of the order. The court must make a restraining order if, amongst other things, there are reasonable grounds to suspect that a person has committed a serious offence: s 18(1)(d). The onus is on the DPP to make out reasonable grounds for suspicion. The court may revoke the order if satisfied that there are no grounds on which to make the order at the time of considering the application to revoke: s 42(5). The onus is on the owner to satisfy the court, relevantly, that there are no reasonable grounds for suspicion. The order will be liable to revocation if the court is satisfied that there were no reasonable grounds for the particular suspicion which had been relied upon at the ex parte hearing. See [246] - [250] above.

255 The discretionary power under s 33(3) to order that all or part of the application or affidavits is not given to the owner may only be exercised if, relevantly, the court 'considers' that this is 'appropriate' in order to protect the integrity of any investigation or prosecution. The court's power is conditioned upon a determination by the court that it 'considers' that the making of the order is 'appropriate' for the stipulated purpose. The words 'considers' and 'appropriate' indicate that an evaluative judgment is required, by reference to the particular facts and circumstances of the case, as to whether an order should be made and, if so, upon what conditions, if any. The word 'appropriate' connotes propriety; that is, whether the exercise of the court's power will provide an outcome that is, in the particular facts and circumstances, proper for the protection of the investigation's or the prosecution's integrity. In my opinion, the court, in determining whether it is 'appropriate' or proper to make the order and, if so, upon what conditions, if any, may take into account any impact upon the administration of justice (including any prejudice to the owner) if the order is made, whether conditionally or unconditionally. Compare the court's power where a claim of public interest immunity is made in respect of documents: Alister v The Queen [1984] HCA 85; (1984) 154 CLR 404, 412 (Gibbs CJ); The Commonwealth v Northern Land Council [1993] HCA 24; (1993) 176 CLR 604, 616 - 617 (Mason CJ, Brennan, Deane, Dawson, Gaudron & McHugh JJ). Section 33(3) does not require or authorise the court to exercise judicial power in a manner inconsistent with the essential character of a court or with the nature of judicial power.

256 Although the owner bears the onus of satisfying the court that there are no grounds on which to make the order at the time of considering the application to revoke the order, that onus cannot reasonably be characterised as involving the establishment of a case by 'complex and negative inquiry'.

257 For the reasons I have given in the course of considering ground 2 of the appeal and for the reasons set out at [254] - [256] above, the provisions of the Act, in particular s 42, provide a prompt and effective facility to set aside a restraining order covering property after the owner is given notice of the order.

260 Orders 1, 2 and 5 made by the primary judge on 7 May 2010 should be set aside and, instead, it should be ordered that the respondent's application made by chamber summons dated 21 December 2009, as varied by the amended chamber summons filed 16 March 2010, be dismissed.

261 The parties should be heard as to the precise form of the orders including as to costs.