Commissioner of Australian Federal Police v Li - [2015] WASC 488

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: COMMISSIONER OF AUSTRALIAN FEDERAL POLICE -v- LI [2015] WASC 488

CORAM: KENNETH MARTIN J

HEARD: 2 DECEMBER 2015

DELIVERED : 21 DECEMBER 2015

FILE NO/S: CIV 2856 of 2015

BETWEEN: COMMISSIONER OF AUSTRALIAN FEDERAL POLICE
Applicant
AND
FEI LI
First Respondent
GLOBAL FOREX (PERTH) PTY LTD
Second Respondent

Catchwords:

Confiscation of property - Commonwealth - Commonwealth restraining order in force over seized cash - Application of provisions for exclusion of property restraining order - Statutory construction - Western Australian crime proceeds legislation - Freezing notice - Cancellation of State restraint on property - Whether consequential cessation of Commonwealth restraining order

Legislation:

Criminal Property Confiscation Act 2000 (WA)
Proceeds of Crime Act 2002 (Cth), s 330(4)(e)

Result:

Application refused

Category: B

Representation:

Counsel:

Applicant:     Mr G D Cobby
First Respondent           :     Mr E Greaves
Second Respondent       :     Mr E Greaves

Solicitors:

Applicant:     Australian Federal Police - Proceeds of Crime Litigation
First Respondent           :     WA Criminal Law
Second Respondent       :     WA Criminal Law

Case(s) referred to in judgment(s):

Anthony v Tasmanian Alkaloids Pty Ltd (No 2) [2005] TASSC 68; (2005) 15 Tas R 84
Commissioner of the Australian Federal Police v Zhao [2015] HCA 5; (2015) 316 ALR 378
In re a Debtor; Ex parte Official Receiver v United Auto & Finance Corporation [1947] Ch 313
Parsons v Mather & Platt Ltd [1977] 1 WLR 855
KENNETH MARTIN J:

Introduction

I am concerned on this application by the second respondent, Global Forex (Perth) Pty Ltd (who I will refer to as 'GFP'), with the interpretation and application to underlying facts, of s 330(4)(e) of the Proceeds of Crime Act 2002 (Cth) (POC Act) (as amended). That application is opposed by the Commissioner of the Australian Federal Police (the 'Commissioner').
Section 330(4)(e), which essentially I am asked to interpret in urgent circumstances, has now been repealed and re-enacted, following the enactment of the Crimes Legislation Amendment (Powers, Offences and Other Measures) Act 2015 (Cth). However, those amendments to s 330(4)(e) took effect, as is accepted, only from Friday, 27 November 2015 and therefore after the second respondent made this application.
Accordingly, I am dealing with the interpretation and application of s 330(4)(e) as it formerly provided, prior to its very recent repeal.
Section 330(4) (which occurs in ch 6 pt 6-1 div 1 of the POC Act) provided as follows up to midnight on 26 November 2015:
(4)Property only ceases to be *proceeds of an offence or an *instrument of an offence:-
…
(e)if an *interstate restraining order or an *interstate forfeiture order is satisfied in respect of the property; or
…
Asterisks applied as a preamble to words and phrases used within the POC Act indicate that those terms carry a 'dictionary' definition from ch 6 pt 6-2 (s 338 of the POC Act). I shall return to address some applicable definitions later in the reasons.
The heart of the application is an exercise in statutory interpretation within s 330(4)(e) towards the verb 'satisfied'‑ as regards the subject matter of an 'interstate restraining order'.
Obviously, all terms are construed within their context and overall purpose within the POC Act.
The task of ascertaining the correct meaning of the verb 'satisfied', used in relation to a Commonwealth 'forfeiture order' under s 330(4)(d), or an 'interstate forfeiture order', under the disjunctive component of s 330(4)(e), looks a relatively straightforward exercise. But that is not so, as regards ascertaining the work of the verb 'satisfied' when used in s 330(4)(e), vis-à-vis an 'interstate restraining order' (as defined). How does a restraining order get satisfied?
The base contention of the second respondent/applicant, (GFP), is that under the applicable circumstances here, s 330(4)(e) has been engaged ‑ at no later than 3 September 2015, with a consequence that no later than that date, all relevant property at issue has ceased to be 'proceeds' of an offence, or an 'instrument' of an offence, engaging s 330(4).
That in turn should mean, GPF says, that its application by s 29 of the POC Act (read with s 31) to exclude the specified interest in property from the ambit of a restraining order (issued under s 18 of the POC Act out of this court on 20 November 2015) must, as regards an amount of funds held to the extent of $337,690 and now claimed back by GFP, be allowed.
The opposing response of the Commissioner to GFP is that there has never been any relevant degree of 'satisfaction', for a purpose of engaging with s 330(4)(e) as regards any 'interstate restraining order'. The consequence, argues the Commissioner, is that the funds at issue remain the subject of the restraining orders issued by this court on 20 November 2015 and are exposed to forfeiture to the Commonwealth.

Procedural history relating to Proceeds of Crime Act 2002 (Cth) in the Supreme Court of Western Australia

On 18 November 2015, in this action (CIV 2856 of 2015), the Commissioner as applicant, filed an originating motion seeking a restraining order pursuant to s 18 of the POC Act ‑ in relation to property specified under three schedules incorporated within that originating motion. Further relief was also sought pursuant to s 38, s 39(1) and s 39(ca) of the POC Act.
The present application is only concerned with the property identified under sch A of the Commissioner's originating motion. Other property as identified under sch B or C addressed, by sch B, other funds standing to the credit of a Westpac Bank account in the name of two other persons and, by sch C, to a lot found upon strata plan for real property, in Perth.
The distinct property in respect of which the present relief is currently sought by GFP under the POC Act by sch A, is identified as:
the sum of $337,690 seized by the Western Australian Police from XXX Robinson Avenue, Perth in the State of Western Australia on 11 May 2015 and deposited into the West Australian Police operating account with the account number [redacted].
The originating motion was supported by two affidavits from Mr Gareth Reilly, a Federal Agent, sworn on 17 November 2015 and on 19 November 2015.
The Commissioner's originating motion seeking the restraining order was listed for an urgent ex parte hearing before Chaney J on 20 November 2015. His Honour issued orders essentially as sought under the originating motion of the Commissioner.
Relevantly, his Honour ordered that:
1.Pursuant to s 18 of the Proceeds of Crime Act 2002 (Cth) (the Act) the property specified in schedule A, B and C must not be disposed of or otherwise dealt with by any person except in the manner and circumstances specified in the order, or with the written consent of the Plaintiff.
At the same time, Chaney J also issued some ancillary orders granting the respondent, Mr Fei Li, (at that time, the only named respondent to the action) liberty to make an application pursuant to s 24 or s 42 of the POC Act on 24 hours' notice. He also granted liberty to both the applicant and the respondent and any party referred to under order 6 of his Honour's orders to apply for further orders. Those orders remain in force.
On Thursday, 26 November 2015, GFP, as a proposed second respondent, filed at this court a minute seeking an 'exclusion order' under the POC Act from this court.
GFP's minute read:
The proposed second respondent will seek the following substantive orders by way of oral motion, pursuant to the liberty to apply granted on 20 November 2015:
I pause to observe that a close reading of Chaney J's orders of 20 November 2015 indicates that they were confined to the applicant, the respondent and to the persons identified under order 6 of his Honour's orders. That did not include GFP.
Nevertheless, the GFP minute now sought:
1.Global Forex (Perth) Pty Ltd be granted liberty to apply to bring this application by oral motion;
…
4.Pursuant to s 29 of the Proceeds of Crime Act2002 the property referred to in schedule A of the restraining order made herein on 20 November 2015 be and is hereby excluded from restraint.
On 27 November 2015, Tottle J ordered that GFP be added as a second respondent to the action, with Mr Fei Li renamed as first respondent.
His Honour ordered that GFP's application seeking an order pursuant to s 29 of the POC Act that the money referred to in sch A of the restraining order of 20 November 2015 be excluded from restraint be listed at a special appointment on Wednesday, 2 December 2015.
His Honour also issued some consequential directions, in terms of timetabling and exchange of written submissions to that end. He also granted leave correcting an error in the originating motion, so it properly would refer to s 47, rather than to s 49 of the POC Act.
To that end, there were then filed the written submissions of GFP filed 26 November 2015 and then 30 November 2015. These written submissions were responded to under the Commissioner's written submissions of 1 December 2015.
For the purposes of GFP's application, two affidavits of a legal practitioner employed with the solicitors of record for the respondents were relied upon. These were the affidavits of Ms Dawn Rena Alfreds and their attachments sworn, respectively, on 25 November and 2 December 2015. There was no objection to any of that material being received for this application.
Before proceeding to my consideration of arguments submitted by the parties under their written submissions, and then orally developed by respective counsel at the hearing on 2 December 2015, it is necessary to set down something of a brief chronology as to the underlying events.
After that, I will proceed to an evaluation of the parties' respective arguments.

Factual chronology

From the evidence adduced on this application, I find the following facts to be uncontroversially established.
On 11 May 2015, a joint agency investigation involving the WA Police organised crime squad, AUSTRAC and the Australian Crime Commission (ACC), resulted in the issue and execution of a search warrant. There followed a seizure of $337,690 in cash. The cash seizure happened at an address in Robinson Avenue, Northbridge, where currency notes in that amount were seized by WA Police from a safe on the premises.
On 14 and 15 May 2015, the seized cash was banked into an account operated by the WA Police (see par 14 of the affidavit of Mr Reilly sworn 17 November 2015).
On 31 July 2015, there was a joint Media Release issued by WA Police, AUSTRAC and the ACC, in terms:
A joint agency investigation involving the WA Police Organised Crime Squad, AUSTRAC (Australian Transaction Reports and Analysis Centre) and Australian Crime Commission (ACC), through the Eligo National Taskforce has resulted in charges relating to international money transfers and the suspension of a money transfer business.
The investigation commenced in October 2014 after intelligence generated by AUSTRAC regarding suspicious money transfers involving a Perth-based remittance business.
The investigation culminated in search warrants in May and again last week which resulted in the seizure of $337,690 cash and charges against two men as follows:
•A 25-year-old Perth man charged with 11 counts of Recklessly Dealing in Proceeds of Crime (Commonwealth charge);
•A 28-year-old Yokine man charged with 12 counts of Recklessly Dealing in Proceeds of Crime (Commonwealth charge).
Separate to the criminal charges, AUSTRAC acted swiftly to suspend the registration of the money transfer business operated by the Perth man, Global Forex (Perth) Pty Ltd (GF Perth).
GF Perth has been removed from AUSTRAC's Remittance Sector Register and it is now illegal for the business to provide remittance services while the suspension applies.
Intelligence gathered during this investigation also led to the seizure of 4.65 kg of methylamphetamine and $466,500.
The 25-year-old Perth man is due to appear in the Perth Magistrates Court today (Friday, 31 July 2015). The 28-year-old Yokine man is due to appear in the Perth Magistrates Court on August 19, 2015.
On 24 August 2015 a 'freezing notice' was issued by a justice of the peace (WAPFN 150144), under the Western Australian Criminal Property Confiscation Act 2000 (WA) (CPCA). The basis for the 'freezing notice' was identified in schedule 1 to the notice, which stated:
There are reasonable grounds for suspecting that the property in Schedule 2 and marked as CU is crime used and/or that the property in Schedule 2 marked as CD is crime derived.
Schedule 2 to the notice had identified two amounts of cash in Australian currency which was seized on 11 May 2015, at a Robinson Avenue address in Northbridge 'from [the first respondent] Mr Fei Li'. According to sch 2, that was the property 'frozen' under the 'freezing notice'.
I pause to note that power for a justice of the peace in Western Australia to issue a 'freezing notice' emanates from s 34(2) of the CPCA, found in pt 4 div 2 of the Act. Section 34(2) of the CPCA provides:
A Justice of the Peace may issue a freezing notice for any property if there are reasonable grounds for suspecting that the property is crime-used or crime-derived.
The required contents of a freezing notice issued under the CPCA are identified under s 35(1). As to the duration of such a 'freezing notice', see s 39, particularly s 39(3) and, more relevantly, s 39(3)(d), where a freezing notice terminates, if
(t)he freezing notice is cancelled under s 40.
A s 34 CPCA pathway to a 'freezing notice' is to be contrasted to an alternate pathway via a Western Australian court (found in pt 4 div 3): see s 43(1).
By definition provisions of the CPCA, the respective terms 'freezing notice' (meaning a freezing notice issued under s 34) and 'freezing order' (meaning an order of a court, under s 43) are defined.
Also defined in the CPCA is the associated term 'frozen', as meaning:
in relation to property and in relation to a freezing notice or freezing order, means subject to the freezing notice or the freezing order.
That leads on to s 7, found in pt 2 of the CPCA, which provides:
(1)Frozen property is confiscated if an objection to the confiscation of the property is not filed on or before the 28th day after the service cut‑off date for the property.
By s 7(2) of the CPCA, where property is the subject of a 'freezing notice', that property will be confiscated, in circumstances where there is an objection to its confiscation ‑ if the 'freezing notice' is not cancelled or set aside.
Similarly, there is confiscation, where there is a 'freezing order' that is issued by a court, if that order is not set aside within a nominated period of time.
By s 7(3) of the CPCA, property 'frozen' under a 'freezing notice' is not confiscated, unless the freezing notice has been filed in accord with s 36(6)(a). That provision requires the application for the freezing notice to be filed in a court specified in the notice, along with an affidavit of service and endorsed copies filed in the court. (In this particular case, the freezing notice of 24 August 2015, issued by a Justice of the Peace, had relevantly nominated the District Court of Western Australia: see first Ms Alfreds' affidavit, sworn 25 November 2015, page 16).
The terms of the 'freezing notice', as issued here, had required that a statutory declaration be filed, thereby invoking s 37(1) of the CPCA.
Section 37 provides:
(1)A person who is served with a copy of a freezing notice under section 36 must give a statutory declaration to the officer in charge of the police station specified in the notice.
…
(3)In the statutory declaration, the declarant must -
(a)state the name and, if known, the address of any other person whom the declarant is aware is or may be, or claims to be, an interested party; or
(b)if the declarant is not aware of any other person who is or may be, or claims to be, an interested party - make a statement to that effect.
The 'freezing notice' issued by the Justice of the Peace in the present circumstances would appear to have been served upon Mr Fei Li, either on or shortly after 24 August 2015.
On 31 August 2015, Mr Fei Li provided a statutory declaration as required of him, as a consequence of him being served with a copy of that freezing notice.
On 3 September 2015, this freezing notice issued under the CPCA was cancelled: see Ms Alfreds' affidavit, sworn 25 November 2015, page 20.
The cancellation was in respect of all property in the notice.
Notice of cancellation was issued to Mr Fei Li and also to GFP.
The cancellation notice concluded:
You are hereby requested to remove from the relevant register any record of the freezing notice in relation to:
TAll the property in the Notice.
Cancellation, on its face, presents as an exercise of power under s 40(1) of the CPCA, as the cancellation looks to bear the ostensible signature of a police officer of the Western Australian Police. CPCA s 40(1) provides:
A police officer or the DPP must cancel a freezing notice issued under section 34(2) for property if the grounds for suspecting that the property is crime-used or crime-derived no longer exist.
Notwithstanding cancellation by the WA Police of the freezing notice, the funds the subject of the notice remained and, indeed, still remain within the bank account of the Western Australian Police.
Communications sent by legal representatives throughout September 2015 on behalf of GFP and its director, Mr Fei Li, have been wholly unsuccessful in seeing the funds voluntarily released.
Because of that issue, on 16 October 2015, GFP issued action POC 18 of 2015 out of the District Court of Western Australia, invoking the Criminal and Found Property Disposal Act 2006 (the CFPD Act) against the Commissioner of Police (WA), as defendant.
By that action, which was listed for an initial return date of not before noon on 3 December 2015 in the District Court, GFP sought that, pursuant to s 11 and s 13 of the CFPD Act:
WA Police release property seized on 11 May 2015 at XXX Robinson Avenue, Northbridge, to the Claimant, effective immediately.
The District Court's powers on such an application are identified under s 13(2) of the CFPD Act.
Subsequently, on 18 November 2015 the AFP, as applicant, has commenced an action by originating motion filed in this court seeking, as I mentioned, that all property as is identified in these proceedings be made the subject of a 'restraining order', pursuant to s 18 of the POC Act. As mentioned above, Chaney J made a restraining order on 20 November 2015.
Issuing of the originating motion looks to be a first manifestation of any exercise of a Commonwealth power, in relation to the funds that were originally seized as cash in May 2015 and were subsequently banked into the account of the WA Police in the amount of $337,690 (where they remain) (being the subject of schedule A to the originating motion).
As I mentioned earlier, on Friday, 20 November 2015, Chaney J, pursuant to s 18 of the POC Act, issued orders made ex parte, essentially granting restraining orders applicable over property, including over the funds in the amount of $337,690.
On Thursday, 26 November 2015, solicitors for GFP filed their minute of proposed directions, seeking the exclusion order ‑ and applying pursuant to s 29 of the POC Act in respect of the schedule A funds (namely, $337,690) on a basis that those funds be 'excluded from restraint'.
On Friday, 27 November 2014, Tottle J issued the orders I earlier identified, granting liberty to GFP to bring the present exclusion application for relief pursuant to s 29 of the POC Act, as regards the schedule A funds.
I will now identify some relevant further surrounding Commonwealth provisions from the POC Act.

Relevant provisions within the Proceeds of Crime Act 2002 (Cth)

Section 18(1) of the POC Act provides:
A court with *proceeds jurisdiction [see s 335 of the POC Act, which is accepted in the circumstances to include the Supreme Court of Western Australia] 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:
…
As I indicated, Chaney J issued orders out of this court under s 18 of the POC Act on 20 November 2015. He relevantly ordered that funds deposited in the Western Australia Police operating account 'must not be disposed of or otherwise dealt with by any person except in the manner and circumstances specified in the order, or with the written consent of the Plaintiff'.
Accepting, as I do, that GFP engages appropriately with the requirements of s 31 of the POC Act, as a person who can apply for an order under s 29, on a basis of an interest claimed in the funds, I turn to s 29 POC Act. This is the provision pursuant to which the current application is made by GFP.
Section 29 is within ch 2 pt 2-1 div 3 of the POC Act. It says, relevantly:
(1)The court to which an application for a *restraining order under s 17, 18 or 19 was made must, when the order is made or at a later time, exclude an *interest in property from the order if:-
(a)an application is made under s 30 or s 31; and
(b)the court is satisfied that the relevant reason under subsection (2) or (3) for excluding the interest from the order exists.
That leads to POC Act s 29(2) and relevantly here s 29(2)(c), which relied upon in this instance, providing:
(2)The reasons for excluding a specified *interest in property from a *restraining order are:
…
(c)for a restraining order under s 18 - the interest is neither:
(i)in any case - proceeds of unlawful activity; nor
(ii)if an offence to which the order relates is a serious offence - an *instrument of any serious offence; or
…
The reference under s 29(2)(c)(i) to 'proceeds of an unlawful activity' requires a further journey to the defined meaning of the word 'proceeds' which is defined under s 329 in ch 6 pt 6‑1 div 1 of the POC Act which deals with the interpretation of words and phrases used in POC Act.
Section 329(4) provides:
Proceeds or an instrument of an *unlawful activity means proceeds or an instrument of the offence constituted by the act or omission that constitutes the unlawful activity. (emphasis in original)
From that key definition is seen another important phrase, 'proceeds … of the offence'. That phrase in turn finally leads to the provisions of s 330.
I have already set out in the introductory overview the content of s 330(4)(e), within s 330(4).
The meaning of this provision, on my assessment, is less than clear. Any exercise in its interpretation requires the surrounding context and the overall purpose of the provision in the legislation, to be considered.
Embarking on that exercise, I will set out as a schedule 'A' to these reasons the full content of s 329 and s 330 (as at 26 November 2015) within ch 6 pt 6‑1 div 1 of the POC Act.
For present purposes, I can note that s 330(1) identifies a scenario under which property becomes proceeds of an offence, in certain situations. Likewise, s 330(2) identifies when property becomes an 'instrument' of an offence.
Section 330(3) identifies a scenario in which property 'remains' 'proceeds' of an offence or an 'instrument' of an offence. I note particularly, s 330(3)(a) where property is credited to an *account (which is a defined term).
I discuss the critically important content of s 330(4) in due course. But, for introductory purposes, I can now note that subsection (4) at s 330 addresses scenarios in which property 'ceases' to be 'proceeds' of an offence, or ceases to be an 'instrument' of an offence. It is that cessation work in s 330 (4) with which I am concerned on this application.
Of significance to my construction of the true meaning of that provision as being a provision of narrow, exclusionary ambit, rather than of broad ambit, there is seen a use of the word 'only' to preface all the ensuing cessation scenarios arising in paragraphs s 330(4)(a) through s 330(4)(g) that follow. I will return to discuss further the paragraphs of s 330(4), in due course.
I can also note, for present purposes, that s 330(5) goes on to qualify the ambit of what might otherwise have been the width of the exception arising under s 330(4)(f) by, in effect, 'clawing back in' property that might have otherwise been excluded. This 'claw back' is for a situation where a person, by s 330(5)(c), 'acquires the property again' ‑ with the consequence that 'the property becomes proceeds of an offence or an instrument of the offence again (as the case requires)'.
By my assessment, s 330(5) also contributes a pervading s 330 neighbourhood flavour of narrowness, in terms of closely qualifying the exception scenarios, which would otherwise see property 'cease' to be assessed as the 'proceeds' of an offence, or as an 'instrument' of an offence for the purposes of s 330(4).
Likewise, s 330(5A) narrows the breadth of another scenario of exclusion, that would otherwise be delivered under s 330(4)(ba), concerning a distribution of property in the environment of the Family Law Act 1975 (Cth). This is 'claw back in' position bites where the property remains under the 'effective control' of a person tied to an offence 'in question'.
I note also a concluding s 330(6), in relation to another narrowing of exception scenarios - where an act or omission constitutes the unlawful activity.
In short, it presents to me that the overall flavour of s 330(4) in terms of the intended scope of different scenarios where property would otherwise cease to be 'proceeds' of an offence, or cease to be an 'instrument' of an offence - can be seen to be narrow and tightly constrained. That policy sentiment, in my view, eventually must bear upon the proper construction of s 330(4)(e), if its text is unclear.
I can now move to the respective arguments of the parties advanced towards the rival positions they would have the court adopt - on GFP's application to exclude the identified funds (in the amount of $337,690) from the reach of the restraining order issued pursuant to s 18 of the POC Act, on 20 November 2015.

Parties' respective arguments

Submissions of the applicant/second respondent GFP as to s 330(4)(e) POC Act being engaged

Summarising the contentions of GFP under its written submissions of 25 and 30 November 2015, as augmented by the submissions of counsel at the hearing of the application, the following core contentions seem, in effect, to emerge.
First, it is contended that by operation of s 29(1) and s 29(2)(c) of the POC Act the relevant court must exclude from restraint property that is neither proceeds of unlawful activity, nor an involved instrument of a serious offence. The key words proceeds and instrument are terms defined in the dictionary section of the POC Act, namely s 338. The dictionary meaning of those terms directs attention to s 329 and s 330 of the POC Act. Following that pathway leads to s 330(4), which lists a number of scenarios by which property ceases to be either the proceeds of an offence or an instrument of an offence. One of the scenarios is under s 330(4)(e), which identifies a cessation circumstance:
(e)if an *interstate restraining order or an *interstate forfeiture order is satisfied in respect of the property;
The term 'interstate restraining order' is also defined in the dictionary provision (s 338) to the POC Act. So also is the phrase 'interstate forfeiture order'. GFP's submission relies on its contention that a 'freezing notice' issued under the CPCA, and which was undoubtedly live in the period between 24 August 2015 and 3 September 2015 is an interstate restraining order (there appears to be no argument about that).
GFP's next contention is that the freezing notice, which was live for a period of 11 days under the Western Australian CPCA legislation, was relevantly 'satisfied in respect of the property' - for the purpose of meeting and satisfying s 330(4) POC Act criteria, which delivers the cessation of schedule A property as being from that time either 'proceeds' of an offence, or an 'instrument' of an offence under the Commonwealth legislation.
The POC Act via the dictionary in s 338 also defines the terms 'interstate restraining order' and 'interstate forfeiture order' in dynamic terms, by reference to a potential encompassment within those phrases of orders made under corresponding laws (also a defined term identifying a law of a State or self‑governing Territory declared by the Commonwealth regulations to correspond to the POC Act). This is achieved by an express declaration made under the Commonwealth regulations.
The term 'interstate forfeiture order' as defined in s 338 'means an order that is made under a corresponding law and is of a kind declared by the regulations to be within this definition'.
The term 'interstate restraining order' as defined in s 338 'means an order that is made under a corresponding law and is of a kind declared by the regulations to be within this definition'.
The Proceeds of Crime Regulations 2002 (Cth) currently provide by reg 5 for orders declared to be within the definition of interstate forfeiture order. Regulation 7 of those same regulations then deals with interstate restraining orders. It provides (inter alia):
for the definition of interstate restraining order in s 338 of the Act, each of the following kinds of order is declared to be within that definition:
…
(g)freezing notice under s 34 of the Criminal Property Confiscation Act 2000 of Western Australia;
(h)freezing order under s 43 of the Criminal Property Confiscation Act 2000 of Western Australia.
Both the reg 5 and reg 7 above definitions deal with 'an order'. But given reg 7(g)'s express reference to a freezing 'notice' under s 34 of the CPCA, it is clear here that 'freezing notice' WAPFN 150144 of 24 August 2015 fully meets a description that falls within the umbrella phrase 'interstate restraining order'.
The live residual question then is whether that freezing notice under the CPCA which was in force for a period of 11 days is something which meets a description of being an interstate restraining order that 'is satisfied' in respect of $337,690 - initially seized as cash on 11 May 2015, but then banked by Western Australian Police into a Western Australian Police account on 14 and 15 May 2015?
GFP contends that this freezing notice was, relevantly, satisfied.
GFP contends, in effect, that for the purposes of the POC Act, the $337,690 no longer had the characteristic of being a relevant 'proceeds' or 'instrument' as a result of the issuance (or alternatively the cancellation, or answering by Mr Fei Li) of the freezing notice.
The baseline argument of GFP contending that, as a matter of the true interpretation of the POC Act, an interstate restraining order (ie, this freezing notice) has been satisfied, begins on the basis of the assertion that there is no ascertainable ambiguity about the correct meaning of the text within s 330(4)(e). Reference is given to ordinary dictionary definitions of the word 'satisfy', and associated verbs, 'satisfied' or 'satisfying' in the Macquarie Dictionary. The meanings include:
1.To fulfil the desires, expectations, needs, or demands of, or content (a person, the mind, etc); supply fully the needs of (a person etc).
2.To fulfil (a desire, expectation, want, etc).
3.To give assurance to; convince: to satisfy oneself by investigation.
4.To answer sufficiently (an objection, etc); solve (a doubt etc).
5.To discharge fully (a debt etc).
6.To make reparation to (a person, etc) or for (a wrong, etc).
7.To pay (a creditor).
8.To fulfil the requirements or conditions of: to satisfy an algebraic equation - verb (i)9. To give satisfaction.
GFP's second tranche of written submissions sees reference made to cases dealing with the verb 'satisfied', in other contexts. Generally this is in a curial context of the satisfaction of an order or a judgment of a court. Reference is made to Parsons v Mather & Platt Ltd [1977] 1 WLR 855, 858D (Ackner J, as Lord Ackner then was) concerning the circumstances in which a judgment debt could be assessed to have been satisfied, where the money was still yet to be paid out of the court to its intended recipient. Reference is given made to further authorities, including In re a Debtor; Ex parte Official Receiver v United Auto & Finance Corporation [1947] Ch 313, 327 concerning a creditor's claim not being satisfied until being paid in full with statutory interest. Likewise, in Anthony v Tasmanian Alkaloids Pty Ltd (No 2) [2005] TASSC 68; (2005) 15 Tas R 84 [4] Blow J dealt with the nonsatisfaction of a judgment debt where the relevant money remained in a joint interest bearing account on a stay.
However, I do not find any of those authorities concerning substantially different curial contexts, as being of any real assistance to my present task.
GFP invokes the Parsons decision to support its contention (par 30 of its original submissions) that the 'freezing notice' issued here under the CPCA became relevantly satisfied, once it had 'come into force' and been given effect to - by, for instance, the cash that had been seized here, being secured by the police, in accordance with directions given.
By reference to Parsons and the 'satisfied' synonyms emerging as dictionary definitions of the verb 'satisfied', namely by being fulfilled or answered, GFP contends that for the present case, that with the relevant cash having been seized prior to an issue of a CPCA freezing notice, in a chronological sense, that upon issue of the freezing notice 'it came into immediate effect'.
Accordingly, it is submitted by GFP that the freezing notice was on the plain English meaning of the word 'satisfied' - either 'fulfilled' or 'answered' here once it came into immediate effect on 4 August 2015.
Alternate temporal satisfaction arguments were pursued as well by GFP. One argument contended that this freezing notice would also be satisfied on 31 August 2015, when a statutory declaration was provided by Mr Fei Li, by his answering a compulsory command of the freezing notice by reference to a power to that end afforded under s 37 of the CPCA.
As a further alternative temporal satisfaction submission, it was also argued by GFP that once this freezing notice had ceased to operate, by reason of it being 'cancelled', as occurred on 3 September 2015 this was a satisfaction scenario under s 330(4)(e). This last alternate submission proceeds as follows (under par 32 of the first tranche of submissions of GFP) '… [w]hen the freezing notice in the present case was cancelled it no longer had effect. It became lifeless. It bound no personal property, it had been fully satisfied.'
GFP made an overall plenary submission about general fairness undoubtedly being legislatively intended by the POC Act to persons who find themselves in the unfortunate position of having their property seized. Hence, GFP contended that if there is any ambiguity at all in the meaning of the word 'satisfied' in s 330(4)(e), that the subparagraph must be read as to limit the extent to which personal property is put in jeopardy of forfeiture to the Commonwealth. To that end, GFP makes the general submission (par 22 of its first tranche of submissions) that:
… the purpose of s 330(4)(e) is to ensure the property (and those with interests in it, are not subjected to a form of prejudice analogous to double jeopardy. Without s 330(4)(e) Federal authorities would be free to pursue assets that had already been the subject of action under State confiscations legislation.
In its second tranche of written submissions, GFP calls in aid a recent decision of the High Court of Australia, Commissioner of the Australian Federal Police v Zhao [2015] HCA 5; (2015) 316 ALR 378 [48], a decision dealing with the POC Act. GFP drew attention to 'the principle of the common law that seeks to prevent a multiplicity of actions has a long history and cannot be ignored'.
Although the present is plainly not a scenario of multiple actions in any curial sense, GFP seeks to extract some in principle assistance from the notion to contend (at pars 28 - 29 of its second tranche of submissions):
the concept that satisfaction of an interstate restraining order should change the character of property reflects that principle … Any other construction of the original subsection would sanction and encourage a practice whereby property may be frozen under State legislation, released before forfeiture proceedings under the State legislation are finalised, and then restrained afresh under the POC Act and subject to new forfeiture proceedings under the POC Act. That is not only inefficient and costly, it also occasions delay and unfairness. It would be contrary to the principle referred to in Zhao.
GFP also refers to the explanatory memorandum ('EM') to the Proceeds of Crime Bill 2002 (page 119). The EM said:
Paragraphs 330(4)(d) and (e) provide that property which is an instrument or proceeds of an offence ceases to have that character if it is the subject of a forfeiture order under the Act; or an interstate restraining order or an interstate forfeiture; and the relevant order has been satisfied.
GFP seeks to derive assistance for its construction from two observed disjunctive uses of the word 'or', culminating in a conjunctive use of the word 'and' in the EM. Then it observes that this structure (see par 31 of GFP's second tranche of submissions):
confirms the natural meaning of the original subsection (that an interstate restraining order may be satisfied independently of whether there is ever an interstate forfeiture order and it is permissible to use it accordingly invoking s 15AB(1)(a) of the Acts Interpretation Act 1901 (Cth).
GFP also submits that no support is to be gained for a narrower meaning of the word 'satisfied', as is contended for by the Commissioner arising out of a mutual use within s 330(4)(e) of the two umbrella terms, 'interstate forfeiture order' and 'interstate restraining order'. It is contended (par 26 of the first tranche of submissions) that the use of those two terms 'is instructive', because:
[h]ad Parliament wished to focus on the final outcome of State confiscations litigation, it could have used a term such as 'interstate forfeiture order application', and provided that property ceased to be proceeds or an instrument of an offence if an interstate forfeiture order application was finally determined in relation to the property. Indeed Parliament could have adapted section 60 POC Act to achieve that end. But it did neither of these things. It directed the property ceases to be proceeds or an instrument (regardless of forfeiture orders and applications) even if only an interstate restraining order was satisfied in respect of the property.

Some evaluations of GFP's submissions

In my view:
1.Little to no assistance is to be obtained from the terms of the EM addressing the correct interpretation of s 330(4)(d) and (e). On my assessment the EM blandly restates the content of the provision. It shines no light at all upon ascertaining the true meaning of the word 'satisfied' within s 330(4)(e). Contending otherwise is analogous to seeing meaning in 'tea leaves'.
2.An understanding towards the meaning of the word 'satisfied' in reference to an 'interstate forfeiture order', on my assessment is relatively clear. I see a use of the word 'satisfied' as well in s 330(4)(d) as regards a Commonwealth forfeiture order. In that clearer context a forfeiture order is 'satisfied' when an event of forfeiture actually happens in respect of identified property.
3.I do not accept GFP's submission that the meaning of the verb 'satisfied' is clear in s 330(4) when evaluated in reference to the object, 'interstate restraining order'. The base characteristic of a restraining order is a negative condition, ie, the restraint. On my assessment, the intended work of the verb 'satisfy' in that extra s 330(4)(e) context of negativity by restraint under paragraph (4)(e), is not functionally clear. Use of the word 'satisfied' in reference to a restraining order (or as here, a 'freezing notice' under the CPCA) is a somewhat uncomfortable juxtaposition of concepts.
4.It is necessary to embark upon an evaluation of s 330(4)(e) in its overall context within the POC Act. The statutory purpose underlying the provision is also to be assessed as part of a process of seeking to unravel the true meaning of s 330(4)(e).
5.Given that the character of the POC Act is such that it can impact detrimentally against property rights of a citizen in draconian fashion, where there is a true ambiguity of meaning, then an interpretation of the legislative provision that is open and which favours the rights of the citizen, should usually prevail.
6.The true meaning of the verb 'satisfied' used in reference to the term 'interstate restraining order' in s 330(4)(e) is mostly illuminated by a consideration of its surrounding home context within s 330(4), then within the overall framework and objectives of the POC Act. To that end, I address in the next section of these reasons the content of the paragraphs of s 330(4). I do that in a context of showing that the context of the surrounding paragraphs, save for s 330(4)(g), can by analysis be seen to address different scenarios of property that is the subject of a transfer, for one reason or another. In consequence under s 330(4) of such a transfer, the property then ceases to be either proceeds of an offence or an instrument of an offence.
7.The overall s 330(4) surrounding context of 'property transference', on my assessment, colours the ultimate interpretation to be afforded compatibility with that transference notion to a satisfaction of an interstate restraining order, by s 330(4)(e).

Surrounding context - s 330

Part 6-1 div 1 of the POC Act contains s 329 and s 330. I have already addressed the content of s 330(1), (2), (3), (5), (5A) and (6) under prior observations. Those provisions as I have mentioned deal with scenarios whereby property is identified as becoming the proceeds of an offence or becoming an instrument of an offence, or remaining the proceeds of an offence or an instrument of an offence under s 330(1), s 330(2) and s 330(3), respectively. By s 330(5) there is an overall 'claw back in' of circumstances which might otherwise be regarded as cessation circumstances under s 330(4).
Then s 330(5A) provides a cutback to the exclusion that might otherwise have delivered cessation circumstances in the Family Law Act context under s 330(4)(ba). It is not necessary to address s 330(6).
The underlying flavour therefore of s 330 is one of a tight control, concerning circumstances under which property becomes proceeds of an offence or an instrument of an offence. The circumstances in which property might 'cease' to be the proceeds of an offence or an instrument of an offence under s 330(4), look particularly tightly controlled. That control manifests, firstly, by use of the term 'only' in the preface to s 330(4), in the phrase 'property only ceases to be' and, secondly, in the claw backs to the exclusions under s 330(4) as seen under s 330(5) and s 330(5A) and which echo that flavour of tight control of cessation circumstances.
From that platform I can consider the paragraphs of s 330(4)(a) through (g). On my analysis, paragraphs (a) through (g), when assessed as surrounding context to s 330(4)(e), support the Commissioner's construction submissions, which are that:
(a)The only aspect of s 330(4) which might be said not to have been concerned with the transfer of interests in property (save for a general par (g)) as constituting the 'proceeds' of an offence or an 'instrument' of an offence, is in the reference to an 'interstate restraining order', 'being satisfied' under s 330(4)(e).
(b)There is discernible regime of cessation, for transfers of interests in property, as seen under paragraph (a) - in what might otherwise be broadly described as a scenario of bona fide purchaser for value without notice, involving the third party acquisition of transferred property.
(c)Further transference scenarios present under s 330(4) concerning, respectively, the vesting from the distribution of a deceased estate property that has been distributed in accordance with provisions of the Family Law Act for property of parties to a marriage where six years has elapsed since that distribution was made, where property has been acquired as payment for reasonable legal expenses under defined scenarios, where a forfeiture order under the POC Act has been satisfied, or where the property has otherwise been sold or disposed of under provisions of the POC Act itself.
(d)The principal object of the POC Act (see s 5(a)) is to deprive persons of the proceeds of their offences against the laws of the Commonwealth.
(e)The POC Act operates in an environment of much other State and Territory legislation operating at the same time as the Commonwealth's POC Act legislation. This is in circumstances where s 15 of the POC Act provides that the Commonwealth legislation is not to apply to the exclusion of a State law to the extent that a State law is capable of operating concurrently with the Commonwealth law. The POC Act is constructed to operate harmoniously with the other criminal property confiscation laws, to avoid scenarios of direct inconsistency as between Commonwealth and State laws in the area of proceeds of crime‑derived property.
(f)There is no direct inconsistency between State, Territory and Commonwealth laws where the laws only operate to 'freeze' property. Such laws can all operate concurrently to restrain. However, there is far more scope for there to emerge direct inconsistency in scenarios of the same property potentially being forfeited to the Commonwealth but, at the same time, also to a State or Territory under a corresponding confiscation forfeiture law.
(g)Potential for a direct clash of forfeiture (or confiscation) laws is addressed and ameliorated by a provision such as s 330(4)(e). Property restrained under both Commonwealth and State (or Territory) law at the same time (validly) will cease to be so constrained by the Commonwealth in the event of there manifesting a satisfied interstate restraining order. That must mean in overall context an interstate restraining order which is a freezing notice under CPCA s 34 (or a freezing order issued by a court s 43 of the CPCA), where by the workings of the State legislation a freezing 'notice' (or freezing order) is not interrupted. In that event, the 'frozen property' is confiscated to the State of Western Australia, under s 7 of the CPCA. Scenarios of an uninterrupted 'freezing notice', or uninterrupted freezing order, leading ultimately under the CPCA to forfeiture of property by a transfer to the State, then do very much present as additional manifestations of scenarios of property transfer that approach to s 330(4)(e) is in complete harmony with the overall flavour of the other paragraph provisions within s 330(4).
(h)The approach will also deliver an internal harmony within s 330(4)(e) itself. This is on the basis of compatibility with an underlying common theme in s 330(4)(e) of property forfeiture (or confiscation), in harmony with the other content of paragraph (e) 'the interstate forfeiture order'.
(i)That forfeiture/transfer interpretation also renders a common meaning of the verb 'satisfy', also deployed in s 330(4)(d) as regards forfeiture orders taking place under the POC Act.
(j)The approach also delivers an in-practice operation of s 330(4)(e) as regards the satisfaction of an interstate restraining order, being limited just to relatively narrow scenarios, that is, freezing order scenarios which by the provisions of State or Territory legislation, have not been interrupted and so have not been interrupted and so have culminated in the forfeiture of property leading to its transfer to the State or Territory.
That narrower scope of application of the s 330(4)(e) provision stands in some contrast to the rival interpretation contended by GFP which would see s 330(4)(e) operate much more expansively, to liberate property by cessation in situations where there had once been a prior interstate restraining order operative to freeze property under State or Territory legislation, for any period. In other words, as counsel for GFP did not shirk from contending, where there was some restrained property which had been once been 'walked over' by a State confiscation law imposing some level of restraint, no matter how briefly or lightly, that would be enough to have influenced the Commonwealth to have 'ring fenced' that property under s 330(4)(e) with the intent of excluding it from any potential application of Commonwealth confiscation law for all time - on the basis of the cessation delivered under s 330(4). I cannot accept that argument. On my assessment, the interpretation of s 330(4)(e) as contended for by the Commissioner on the basis seen in the steps just outlined is irresistible and is to be preferred.

Conclusion: 'No Satisfaction'

In short, I have accepted, in the present circumstances, par 18 of the Commissioner's submissions to the effect:
A freezing notice issued under s 34 of the State CPCA legislation would only be satisfied, within the meaning of that term as used in s 330(4)(e) of the POC Act, if and when the property the subject of that freezing notice, was confiscated to the State of Western Australia as frozen property under s 7 of the CPCA.
On my assessment, the expansive carve out role as contended for by GFP, and chiefly on a basis of asserted fairness or by so‑called analogous double jeopardy considerations, cannot be accepted.
In my view, that construction of s 330(4)(e) is out of harmony with and contrary to the surrounding context seen within s 330(4) itself, as well as with the overall legislative intent and function of the POC Act - which is to operate aggressively against property identified as either the proceeds of criminal offence, or an instrument of a criminal offence.
That intended statutory objective would be illogically frustrated, in my view, by accepting GFP's expansive carve out interpretation concerning the verb 'satisfied' as operating against the phrase 'interstate restraining order' under s 330(4)(e), merely because there had been some earlier point in time at which a valid interstate restraining order had been operative.
Consequently I dismiss the s 29/s 31 application by GFP.
The consequence is that restraining orders issued by Chaney J pursuant to s 18 of the POC Act, continue to apply as regards the schedule A property as identified by his Honour's orders of 20 November 2015.
SCHEDULE A