Brauer v The Director of Public Prosecutions

This matter concerned an application for special leave to appeal to the High Court of Australia. The applicant, Mr. Thilo Andreas Wolfgang Carl, sought to raise a constitutional question concerning section 51(xxxi) of the Constitution, which had not been debated in the courts below. The respondent, the Director of Public Prosecutions, submitted that the question did not truly raise a constitutional issue and that the Court could proceed to deal with the matter.

The legal issues before the Court were whether the applicant had raised a valid constitutional question regarding the acquisition of property under section 51(xxxi) of the Constitution, and if so, whether special leave to appeal should be granted. The applicant's argument centred on the operation of the *Proceeds of Crimes Act*, specifically sections 43 and 44, which provide for restraining orders against a defendant's property when they have been charged with an indictable offence and a police officer believes on reasonable grounds that the offence has been committed. Further, section 30 of the Act provides for the forfeiture of property to the Commonwealth if a restraining order is in force six months after a conviction for a serious offence, even in the absence of a conviction.

The Court was required to consider whether the forfeiture provisions of the *Proceeds of Crimes Act*, particularly when applied in the absence of a conviction, constituted an acquisition of property for the purposes of the Commonwealth under section 51(xxxi) of the Constitution, and if so, whether it was upon just terms. The applicant contended that the Act allowed for the deprivation of property without a conviction, based solely on a police officer's belief, and that this raised a significant constitutional question regarding the acquisition of property. The respondent argued that the question was not a true constitutional question and that the Court could deal with it on other grounds.