Commissioner of the Australian Federal Police v Al Zubaidy - [2024] WADC 110

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE -v- AL ZUBAIDY [2024] WADC 110
CORAM:   PALMER DCJ
HEARD:   23 OCTOBER 2024
DELIVERED          :   19 DECEMBER 2024
FILE NO/S:   POC 3 of 2023
BETWEEN:   COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE
Applicant
AND
JAWAD KATHEM JAWDAT ALI AL ZUBAIDY
Respondent

Catchwords:

Application for forfeiture under the Proceeds of Crime Act 2002 (Cth) - Whether application out of time - Proper construction of Act

Legislation:

Proceeds of Crime Act 2002 (Cth), s 47, s 59(2)

Result:

Application granted

Representation:

Counsel:

Applicant	:	Mr L F Livingston SC and Ms C E Moss
Respondent	:	Mr E W L Greaves

Solicitors:

Applicant	:	Australian Federal Police, Criminal Assets Litigation
Respondent	:	Macquarie Law Group

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

Commissioner of the Australian Federal Police v Cranston (No 14) [2021] NSWSC 1118
Lee v Director of Public Prosecutions (Cth) [2008] NSWSC 300; (2008) 217 FLR 200
State of Victoria (Corrections Victoria Unit of the Department of Justice & Regulation) v Thompson [2019] 58 VR 583
State of Victoria (Corrections Victoria Unit of the Department of Justice & Regulation) v Thompson [2019] VSCA 237
The Commissioner of the Australian Federal Police v Thasthahir [2016] VSC 468; (2016) 313 FLR 358

PALMER DCJ:

Introduction

These reasons concern an application made by the Commissioner of the Australian Federal Police for the forfeiture of property the subject of restraining orders that I made on 22 November 2023 pursuant to s 18 of the Proceeds of Crime Act2002 (Cth) (Act).
The Respondent, Mr Al Zubaidy, opposes the application on the basis that the forfeiture application has been made out of time. Relying on s 59(2) of the Act, he argues that any forfeiture application needed to be brought within 6 months of his conviction of an indictable offence.
It is not in dispute that these proceedings were commenced more than 6 months after Mr Al Zubaidy was convicted (the Conviction) for possession of 500 kg or more of tobacco in which excise or customs duty was not paid, contrary to s 308‑10 of the Taxation Administration Act 1953 (Cth) (Taxation Administration Act) on 29 November 2022. These proceedings were commenced on 9 August 2023.
Section 59(2) of the Act provides that if a forfeiture application 'relates to' a person's conviction for an indictable offence, the application must be made before the end of the period of 6 months after the conviction day. Mr Al Zubaidy argues that the Commissioner's forfeiture application relates to the Conviction because the Conviction was a 'ground' of the application.
The Commissioner does not accept that the Conviction is a 'ground' of the Commissioner's forfeiture application. He submits that, in any event, when s 59(2) of the Act is properly construed in the context of the Act, it may be seen that it is only a forfeiture application made pursuant to s 48 of the Act that 'relates to' a conviction of an indictable offence within the meaning of that term in s 59(2) of the Act. The Commissioner's application is not made pursuant to s 48 of the Act but rather pursuant to s 47 of the Act.
I consider therefore that the issues to be determined in these proceedings are:
(a)whether s 59(2) can ever relate to an application for forfeiture under s 47;
(b)if so, whether the time limit in s 59(2) prevents the Commissioner's application from proceeding in this case; and
(c)whether a forfeiture order should be made under s 47 of the Act.
It assists to begin with a consideration of the confiscation scheme provided for in the Act and the history of the present proceedings.

The restraining and forfeiture orders that may be made under the Act

Chapter 2 of the Act is titled the 'confiscation scheme'. Chapter 2 is divided into parts that relevantly include:
(a)Part 2-1 that addresses 'restraining orders';
(b)Part 2-2 that addresses 'forfeiture orders';
(c)Part 2-3 that addresses forfeiture on conviction of a serious offence; and
(d)Part 2-4 that addresses pecuniary penalty orders.
The making of restraining orders is addressed in Division 1 of Part 2-1. Different sections in Division 1 of Part 2-1 provide for the making of restraining orders on different bases. Relevantly, Division 1 of Part 2-1 includes:
(a)section 17 which addresses making restraining orders where a person is convicted of or charged with an 'indictable offence';
(b)section 18 which addresses making restraining orders where a person is suspected of committing a 'serious offence'; and
(c)section 19 which addresses making restraining orders where property is suspected of being the proceeds of an indictable offence.
The present application is an application for a forfeiture order. The making of forfeiture orders is addressed in Division 1 of Part 2-2. Again, different sections in Division 1 of Part 2-2 provide for different bases upon which a forfeiture order may be made.
Each of the sections in Division 1 of Part 2-1 that provide for the making of a restraining order, has an analogue or counterpart section in Division 1 of Part 2-2, that provides for the forfeiture of the property that has been restrained. Relevantly, Division 1 of Part 2-2 includes:
(a)section 47 which addresses making restraining orders where a person is suspected of committing a 'serious offence'. This section is the analogue or counterpart to s 18;
(b)section 48 which addresses making restraining orders where a person is convicted of or charged with an 'indictable offence'. This section is the analogue or counterpart to s 17; and
(c)section 49 which addresses making restraining orders where property is suspected of being the proceeds of an indictable offence. This section is the analogue or counterpart to s 19.
Section 17 and s 48 of the Act are concerned with restraining and forfeiture orders based upon a person being charged with, and ultimately convicted of, an indictable offence. A restraining order under s 17 of the Act is made if a person has been charged with, or it is proposed that they be charged, with an indictable offence, or convicted of an indictable offence.[1] A freezing order under s 48 is made if a person is convicted of one or more indictable offences[2] and the court is satisfied that the relevant property is either the proceeds of one or more of the offences,[3] or an instrument of one or more of the offences.[4]
[1] Section 17(1)(d) of the Act.
[2] Section 48(1)(b) and s 48(2)(b) of the Act.
[3] Section 48(1)(c) of the Act.
[4] Section 48(2)(d) of the Act.
Section 18 and s 47 of the Act are concerned with restraining and forfeiture orders based upon the commission of serious offences (without the need to establish that they had been convicted of an indictable offence). A restraining order under s 18 of the Act is made if there are reasonable grounds to suspect that a person has committed a serious offence.[5] A forfeiture order under s 47 of the Act is made where a restraining order made under s 18 has been in place for at least 6 months[6] and the court is satisfied that a person whose conduct or suspected conduct formed the basis of the restraining order, engaged in conduct constituting one or more serious offences.[7]
[5] Section 18(1)(d) and s 18(3)(a) of the Act.
[6] Section 47(1)(a) and s 47(1)(b) of the Act.
[7] Section 47(1)(c) of the Act.
Section 19 and s 49 are concerned with restraining and forfeiture orders where property is suspected, or proven to be, the proceeds, or an instrument of certain criminal offences. A restraining order under s 19 of the Act is made if there are reasonable grounds to suspect that property is the proceeds of certain criminal offences or an instrument of those offences.[8] A forfeiture order is made where a restraining order made under s 49 has been in place for at least 6 months[9] and the court is satisfied that the property is the proceeds of certain criminal offences or an instrument of those offences.[10]
[8] Section 19(1)(d) of the Act.
[9] Section 49(1)(a) and s 49(1)(b) of the Act.
[10] Section 49(1)(c) of the Act, although also note s 49(2) of the Act.

The history of these proceedings

The Originating Summons and supporting affidavit

These proceedings were commenced by way of an Originating Summons dated 7 August 2023, by which the Commissioner applied for:
(a)restraining orders pursuant to s 17, s 18 and s 19 of the Act;
(b)a control and custody order pursuant to s 38 of the Act;
(c)forfeiture orders under s 47 and s 49 of the Act; and
(d)examination orders pursuant to s 180 of the Act.
The Originating Summons was supported by an Affidavit of Ankica Smith sworn 21 July 2023 (the First Smith Affidavit). In that affidavit Ms Smith deposed to the Conviction[11] and then deposed to her suspicion that Mr Al Zubaidy had committed the following additional offences:[12]
(a)sale of tobacco of 500 kg or above in which excise for customs duty was not paid, contrary to s 308‑25 of the Taxation Administration Act (Tobacco Sales Offence);
(b)doing anything with the intention of causing a loss to another person and that person is a Commonwealth entity, namely the Commissioner of Taxation, contrary to s 135.1(3) of the Criminal Code Act 1995 (Cth) Schedule 1 (Criminal Code) (Tax Evasion Offence); and
(c)dealing with money or other property, it being reasonable to suspect that the property is the proceeds of an indictable crime and the value of the property is $100,000 or more, contrary to s 400.9(1) of the Criminal Code (Money Laundering Offence).
[11] First Smith Affidavit, par 10.
[12] First Smith Affidavit, par 11.
Later in her affidavit, Ms Smith deposed to the basis of her suspicion that Mr Al Zubaidy had committed these offences.[13] She separately addressed the grounds for making a restraining order under s 17 of the Act[14] and s 19 of the Act.[15] In the part of Ms Smith's affidavit addressed to s 17 of the Act, Ms Smith deposed to the Conviction.

The restraining order made on 22 November 2023

[13] First Smith Affidavit, pars 75 - 77.

[14] First Smith Affidavit, pars 70 - 74.

[15] First Smith Affidavit, pars 78 - 91.

On 22 November 2023, I heard an ex parte application by the Commissioner for restraining orders pursuant to s 18 and s 19 of the Act and a control and custody order.[16] The Commissioner did not seek an order under s 17 of the Act. The orders sought by the Commissioner also provided for an order that Mr Al Zubaidy be given notice of the application.
[16] Minute of Proposed Orders for Hearing dated 17 November 2023.
In support of his application for the restraining orders, the Commissioner relied upon the First Smith Affidavit and filed submissions titled 'Applicant's Outline of Written Submissions in Support of an Application for Restraining Orders Pursuant to Sections 17, 18 and 19 of the Proceeds of Crime Act 2002 (Cth) and Related Orders' (the Restraining Order Submissions).
Although the title of the Restraining Order Submissions referred to a restraining order being made pursuant to s 17 of the Act and the submissions themselves mentioned the Conviction,[17] the submissions did not address the making of a restraining order under s 17. Rather, the submissions addressed the making of a restraining order under s 18 and s 19 of the Act.
[17] Restraining Order Submissions, par 4.
When addressing the serious offence which it was suspected that Mr Al Zubaidy had committed for the purposes of s 18 of the Act, the Restraining Order Submissions referred to and relied upon, the suspicions that Ms Smith had that Mr Al Zubaidy had committed the Tobacco Sales Offence, the Tax Evasion Offence and the Money Laundering Offence.[18]
[18] Restraining Order Submissions, pars 5, 43.b and 44.
On 22 November 2023, I declined to make the restraining order under s 19 of the Act on an ex parte basis but I indicated that I would be prepared to hear the application for an order on that basis on an inter parties basis once Mr Al Zubaidy had been served.
I made a restraining order under s 18 of the Act and gave ex tempore reasons for doing so. The transcript of those reasons contains some typographical errors. Schedule 1 to these reasons is a copy of my record of the ex tempore reasons that I delivered.
I indicated in my ex tempore reasons that I was satisfied that there were reasonable grounds to suspect that a person has committed a serious offence (as required by s 18(1)(d)) on the basis of the evidence that Ms Smith gave of her suspicion that Mr Al Zubaidy had committed the Tobacco Sales Offence, the Tax Evasion Offence and the Money Laundering Offence.

The Commissioner applies for forfeiture

On 6 August 2024, the Commissioner wrote to the court asking for the Originating Summons to be re‑listed so that the Commissioner might seek orders for the confiscation pursuant to s 47(1) of the Act.
On 29 August 2004, the forfeiture application was listed for hearing on 20 September 2024.
On 16 September 2024, the Commissioner filed an 'Applicant's Outline of Submissions for the Forfeiture Hearing Pursuant to Section 47 of the Proceeds of Crime Act 2002 (Cth)' (the Commissioner's Initial Forfeiture Submissions).
On 13 September 2024 the Commissioner filed a further Affidavit of Ankica Smith which attached a certificate of final outcome of charge in relation to the Conviction.
On 18 September 2024, Mr Al Zubaidy filed submissions opposing the forfeiture application on the basis that the application had been made out of time (Respondent's Submissions).
On 19 September 2024, my chambers received an email from junior counsel for the Commissioner:
(a)seeking an adjournment of the hearing on 20 September 2024 on the basis that the Commissioner wished to brief Senior Counsel and, if appropriate respond to the submissions filed by Mr Al Zubaidy; and
(b)indicating that Mr Al Zubaidy would agree to the adjournment if the hearing was adjourned to either 18 or 23 October 2024 and the Commissioner filed any responsive submissions by 11 October 2024.
The court was able to accommodate a hearing on 23 October 2024 and on 19 September 2024, I made orders adjourning the hearing of the confiscation application until 23 October 2024 by consent.
On 11 October 2024, the Commissioner filed an outline of submissions in response to Mr Al Zubaidy's argument that the Commissioner's application was out of time (the Commissioner's Responsive Submissions). Those submissions addressed the Commissioner's argument that when s 59(2) of the Act is properly construed in the context of the Act, it may be seen that it is only a forfeiture application made pursuant to s 48 of the Act that 'relates to' a conviction of an indictable offence.

The basis upon which forfeiture was sought

Mr Al Zubaidy's written submissions submitted that the basis upon which the Commissioner contends the forfeiture order should be made under s 47(1) 'appeared clearly' from paragraphs [7] - [21] the Commissioner's Initial Forfeiture Submissions.[19]
[19] Respondent's Submissions, par 12.
Mr Al Zubaidy's written submissions submitted that it was 'abundantly clear' from paragraphs [9(b)] and [13] - [16] of the Commissioner's Initial Forfeiture Submissions and from Ms Smith's September 2024 affidavit that the forfeiture application was 'grounded upon' the Conviction.[20]
[20] Respondent's Submissions, par 17.
Paragraph [9(b)] of the Commissioner's Initial Forfeiture Submissions submitted that the court had jurisdiction because Mr Al Zubaidy's offending which forms the basis of the Commissioner's application occurred or is reasonably suspected of having occurred in Western Australia.
The footnote to paragraph [9(b)] of the Commissioner's Initial Forfeiture Submissions referred to paragraphs [10] - [12] of the Smith Affidavit. Relevantly, those paragraphs deposed to the following matters:
(a)paragraph [10] of the First Smith Affidavit which deposed to the Conviction;
(b)paragraph [11] of the First Smith Affidavit which deposed to Ms Smith's suspicion that Mr Al Zubaidy had also committed the Tobacco Sales Offence, the Tax Evasion Offence and the Money Laundering Offence; and
(c)paragraph [12] of the First Smith Affidavit which deposed to the fact that the offences in both paragraphs [10] and [11] of the First Smith Affidavit were indictable offences and serious offences as defined by the Act.
Paragraphs [13] ‑ [16] of the Commissioner's Initial Forfeiture Submissions referred to the Conviction and submitted that the offence for which Mr Al Zubaidy was convicted was a 'serious offence' within the meaning of s 338 of the Act.
Paragraph [17] of the Commissioner's Initial Forfeiture Submissions referred 'in addition' to the evidence in the First Smith Affidavit where Ms Smith deposed to her suspicion that Mr Al Zubaidy had committed the Tobacco Sales Offence, the Tax Evasion Offence and the Money Laundering Offence. Paragraphs [18] to [20] then submitted that each of these offences was a 'serious offence' within the meaning of s 338 of the Act.
Paragraph [21] of the Commissioner's Initial Forfeiture Submissions submitted that the evidence in support of the contention that Mr Al Zubaidy had engaged in conduct constituting a serious offence had not been undermined by material put before the court.
Paragraphs [39] to [41] of Mr Al Zubaidy's Submissions were titled '[a]n alternative basis for forfeiture?'.
Under this heading Mr Al Zubaidy submitted that paragraphs [17] to [21] of the Commissioner's Initial Forfeiture Submissions suggested that the court can be satisfied that Mr Al Zubaidy committed other offences (beyond the one he was convicted of). Mr Al Zubaidy submitted that if one 'ground' upon which an application is advanced 'relates to' the conviction, then the application itself 'relates to' the conviction and the entire application is out of time.
The Commissioner submitted that the Conviction was not a 'ground' of his forfeiture application.[21] Counsel for the Commissioner submitted that the fact of the Conviction was itself irrelevant to the application.[22]
[21] ts 106.
[22] ts 12 - ts 13, ts 16 - ts 25.
The Commissioner argued that the evidence established that Mr Al Zubaidy committed four serious offences, the offence for which he was convicted and each of the Tobacco Sales Offence, the Tax Evasion Offence and the Money Laundering Offence.[23] It may be observed that this is a broader basis for seeking forfeiture than the basis upon which I made the restraining orders in this matter. I made those orders on the basis that Mr Al Zubaidy was suspected to have committed the three offences for which he had not been convicted.
[23] ts 61 - ts 68.
Counsel submitted that the fact of the Conviction was itself irrelevant other than as an evidentiary pathway.[24] Counsel submitted that the Commissioner relied upon the Conviction to prove that Mr Al Zubaidy admitted to engaging in the conduct set out in the relevant statement of material facts.[25] It was argued that this evidence was relevant because:
(a)that admission established that Mr Al Zubaidy engaged in conduct that was a serious offence;[26] and
(b)was also circumstantial evidence relevant to establishing that Mr Al Zubaidy committed the Tobacco Sales Offence, the Tax Evasion Offence and the Money Laundering Offence.[27]
[24] ts 106.
[25] ts 12 - ts 13, ts 16 - ts 25.
[26] ts 23 - ts 24.
[27] ts 24 - ts 25.

Why the Commissioner argues that s 59(2) does not apply

An overview of the Commissioner's construction of the Act

As I have mentioned, the Commissioner argued that when the Act is properly construed, it may be seen that s 59(2) applies to forfeiture applications made under s 48 but not s 47 or s 49.
The Commissioner's argument relied upon the text of s 47, s 48, s 49 and s 59. He also relied upon what he characterised as important matters of context which he argued emerged from a careful analysis of the scheme of the Act. Broadly, the Commissioner contended that three different regimes or approaches could be discerned in the Act depending on whether an application was being made because a person had been convicted, it was suspected an offence had been committed, or whether property was suspected to have been the proceeds of an offence.

The Commissioner submitted that s 59 and s 48 were part of a regime that applied where a person had been convicted of an offence. He argued that s 47 (pursuant to which the Commissioner sought forfeiture) was part of a different regime that applied where a person is suspected of committing an offence. He contended that s 59 did not apply to this regime.
The Commissioner argued that the construction he advanced was supported by an analysis of the legislative history of the Act.

The text of s 59 of the Act

Section 59 of the Act provides as follows:
59Proceeds of crime authority may apply for a forfeiture order
(1)A *proceeds of crime authority may apply for a *forfeiture order.
(2)If the application relates to a person's conviction of an *indictable offence, the application must be made before the end of the period of 6 months after the *conviction day.
The Commissioner submitted that the terms of s 59(1) and s 59(2) can be contrasted. He argued that in its terms s 59(1) applies to any forfeiture order, while s 59(2) applies only to a narrower category of forfeiture order, where 'the application relates to a person's conviction of an indictable offence'.
The Commissioner argued that there was a textual connection between the use of the phrase 'a person's conviction of an indictable offence' in s 59(2) and the text of s 48. He referred to the fact that an essential prerequisite in s 48(1)(b) is that a person has been convicted of one or more indictable offences. The Commissioner submitted that the same phraseology appears in s 48(2)(b).
The Commissioner submitted that the correct approach was not to isolate the words 'relates to' and give them the widest possible meaning. Rather, he argued that the task is to discern the precise ambit of that phrase from the context in which the words are used. He submitted that this was consistent with the approach in State of Victoria v Thompson.[28]
[28] State of Victoria (Corrections Victoria Unit of the Department of Justice & Regulation) v Thompson [2019] 58 VR 583 [37].
The Commissioner referred to the fact that the 6‑month time period in s 59(2) operated from the 'conviction day'. He submitted that the definition of 'conviction day' in s 333 is addressed to an indictable offence. He contended that the concept of 'conviction day' is relevant only to s 48 and has no relevance to s 47 or s 49 because only s 48 operates by reference to a conviction.
The Commissioner submitted that s 47 does not use the term 'indictable offence' at all. He argued that it refers only to a 'serious offence', which has a different meaning. He referred to the fact that s 49 refers to an indictable offence, a foreign indictable offence, and a serious offence, each of which is differently defined.[29]
[29] ts 40.
The Commissioner accepted that internal referencing to specific sections and forfeiture types does occur within the Act, but he argued that there are lacunas where the scope of a section must be determined by its context. He submitted that the omission of an explicit or specific express reference to a section is therefore not determinative or persuasive in the context of this case.
The Commissioner referred to the decisions of Lee v Director of Public Prosecutions (Cth).[30] In that case the Supreme Court of New South Wales considered the operation of s 45(2) of the Act. The Commissioner submitted that similarly to the wide language used in s 59(2), s 45(2) does not, in terms, specifically exclude restraining orders made pursuant to s 19, but was held by the court to do so based upon the court's consideration of the proper construction of the section.

The text of s 47, s 48 and s 49 and the different regimes for court ordered forfeiture

[30] Lee v Director of Public Prosecutions (Cth) [2008] NSWSC 300 [16] - [22]; (2008) 217 FLR 200, followed by The Commissioner of theAustralian Federal Police v Thasthahir [2016] VSC 468 [34] - [36]; (2016) 313 FLR 358.

The Commissioner argued that in the context of the relevant statutory regime, a forfeiture application which 'relates to a person's conviction of an indictable offence' (as referred to in s 59(2)) can only be a forfeiture application pursuant to s 48 of the Act. The Commissioner submitted that this was the case because s 48 is the only provision by which forfeiture depends upon conviction. The Commissioner contended that by contrast, forfeiture orders pursuant to s 47 and s 49 of the Act are made pursuant to a finding of fact made by the court, rather than any conviction.
The Commissioner argued that the use of the phrase 'indictable offence' in s 59(2) mirrors the language in s 17 and s 48 of the Act and is not, as Mr Al Zubaidy submitted, a term used broadly with the intention of also capturing 'serious offences'.
The Commissioner contended that s 59(2) could easily and clearly have been expanded to include within the time limit an application which '[related] to a person's conviction of an indictable offence or a person's conduct or suspected conduct constituting one or more serious offences'. The Commissioner argued that the omission of those words (or similar) supports the narrower construction of the subsection and its limitation to forfeiture applications pursuant to s 48.
The Commissioner submitted that s 17(1)(d) of the Act has the effect that a person being charged with, or convicted of, an indictable offence is an essential pre‑requisite to the making of an order under s 17. He drew attention to the fact that both s 17(1)(d) and s 17(3)(a) use the defined term 'indictable offence' as opposed to any other defined term such as 'serious offence'.
The Commissioner submitted that similarly s 48(1)(b) provides that the conviction of a person of one or more indictable offences is an essential pre-requisite to the making of an order under s 48. He argued that it was telling that that section again used the defined term 'indictable offence' and not some other defined term.
The Commissioner referred to the fact that s 18 used the term 'serious offence' rather than the term 'indictable offence' and contended that the making of an order under the section did not turn on whether or not a person had been charged or convicted of an 'indictable offence'.
The Commissioner submitted that s 47 does not turn on whether a person has been charged or convicted and does not contain any reference to a conviction, or to a conviction date. He submitted that it was also significant that s 47 does not contain any maximum time period by which a forfeiture application must be made.
The Commissioner referred to the fact that s 19(1)(d) required there to be reasonable grounds to suspect that property is the proceeds of various differently defined offences, or is the instrument of a serious offence and the fact that s 19(2) uses similar terminology. The Commissioner attached significance to the fact that although the defined term 'indictable offence' was used, it was only one of a number of defined terms used.
The Commissioner submitted that the focus of s 49(1)(c) was similarly on the property, rather than an identified suspect. He argued that the focus of the analysis was whether the property was the proceeds of one or more indictable offence, one or more foreign indictable offence, one or more indictable offence of Commonwealth Concern, or the property is an instrument of one or more serious offence. He noted that s 49(2) of the Act uses the word 'commission' rather than conviction. He referred to the fact that s 49(2)(a) provides that it is not necessary to identify an offender.
The Commissioner drew attention to the fact that in contrast to s 47, s 48 does not itself include any minimum period of time in which the restraining order was to be in place. He contended that this is because the maximum period in which to make such an application is addressed in s 59(2) of the Act.

The different approaches argued to be evident in other provisions of the Act

The Commissioner argued that his construction is consistent with the clear distinction articulated in other sections of the Act between conviction based and non conviction based forfeiture.
The Commissioner referred to s 14 of the Act which addresses the application of the Act. That section provides:
This Act applies in relation to:
(a)an offence committed at any time (whether or not any person is convicted of the offence); and
(b)a person's conviction of an offence at any time;
whether the offence or conviction occurred before or after the commencement of this Act.
The Commissioner submitted that the Act revealed a deliberate distinction between the commission of an offence (addressed in s 14(a)) and the conviction of an offence (addressed in s 14(b)). He contended that this distinction underlies the Act as a whole.
The Commissioner also referred to s 51 which deals with the effect of an acquittal on the making of a forfeiture order under s 47 or s 49. He submitted that the fact that a person has been acquitted of an offence with which a person has been charged does not affect the court's power to make a forfeiture order under s 47 and s 49. He contended that it was significant that reference was not made to s 48. He argued that this was because forfeiture under s 48 is based upon conviction, unlike forfeiture under s 47 and s 49.
The Commissioner also referred to s 54(a). This section deals with a presumption that is made in certain cases that property is an instrument of an offence. That section provides that:
If:
(a)a *proceeds of crime authority applies for:
(i)a *forfeiture order under section 47 or 49 against particular property in relation to a person's commission of a *serious offence; or
(ii)a forfeiture order under section 48 against particular property in relation to a person's conviction of an *indictable offence; and
The Commissioner drew attention to the fact that s 54(a)(ii) uses very similar language to that used in s 59(2) of the Act to describe a forfeiture order made under s 48.
The Commissioner next referred to s 80 and s 81. Section 80 provides that a forfeiture order made under s 47 or s 49 is unaffected by an acquittal or the quashing of a conviction. Section 81 provides for the discharge of a forfeiture order made under s 48 on the quashing of a conviction.
The Commissioner submitted that it was again significant that s 80 did not refer to s 48. He contended that this was because s 48, unlike s 47 and s 48, provides for forfeiture that is based upon or related to a conviction.
The Commissioner submitted that the language used in s 81(1) echoed the language in s 59(2) in that it stated:
A *forfeiture order made under section 48 in relation to a person's conviction of an offence is discharged if:
(emphasis added)
The Commissioner then referred to s 116(b) which sets out the circumstances in which a court must make a pecuniary penalty order. The section provides for the making of such orders if either a person is convicted of an indictable offence and has derived benefits from the commission of the offence (s 116(b)(i)), or has committed a serious offence (s 116(b)(i)), or both.
The Commissioner submitted that the terms of s 116(b) was significant because of the terms of s 134 which he argued was in its terms and structure similar to s 59(2). He contended that s 134(2) and s 134(3) were similar to s 59(4) because the provision provided for a time period in which an application for a pecuniary penalty order must be made relative to the conviction day.
Section 134(2) of the Act provides that if the application relates to a person's conviction of a 'serious offence' then the application must be made within 9 months of the conviction day, or within 3 months of the end of any extended period due to an extension order.
Section 134(3) of the Act provides that if the application related to a person's conviction of an 'indictable offence' that is not a 'serious offence', the application must be made before the end of the period of 6 months after the 'conviction day'.
The Commissioner submitted that it was significant that s 134(2) and s 134(3) only apply where a pecuniary penalty order is based on conviction where the pecuniary penalty order is made under s 116(1)(b)(ii) of the Act. He argued that the time limits did not apply where the pecuniary penalty order is based on the commission but not conviction of a serious offence, that is s 116(1)(b)(ii).
The Commissioner submitted that it was notable that s 134 did not contain any specific reference to s 116(b) of the Act. He contended that a specific reference was unnecessary because the manner in which the section was to work was clear enough from the context.
The Commissioner submitted that s 134 is also consistent with Parliament imposing a post‑conviction time limit on application under the Act only where the order itself is based on the conviction as opposed to being based on offending.
The Commissioner submitted that there were other provisions that assume that s 47 and s 49 forfeiture orders can still be made 6 months after the conviction day.
The Commissioner referred to s 110. This section is found in Division 4 of Part 2‑3 which addresses the effect of forfeiture on convictions being quashed. This section provides that a court may confirm a forfeiture order if:
(a)it could make a 'forfeiture order' under s 47 in relation to the offence in relation to which the person's conviction was quashed if the responsible authority for the restraining order referred to in s 92(1)(b) were to apply for an order under that section; or
(b)it could make a forfeiture order under s 49 in relation to the offence in relation to which the person's conviction was quashed if the authority were to apply for an order under that section.
To understand the present significance of these provisions, it is necessary to consider the operation of s 92 and s 107(1).
Section 92 is also part of Division 1 of Part 2‑3 which addresses forfeiture on conviction of a serious offence. This section provides for the forfeiture of restrained property without a forfeiture order if a person has been convicted of a serious offence.
Section 107(1) (which is in Division 4 of Part 2-3 with s 110) provides that the forfeiture of property under s 92 ceases to have effect.
As the Commissioner submitted, s 110 is addressed to the situation where a conviction has been quashed and provides the court may still confirm forfeiture if it is satisfied that it could make a forfeiture order under s 47 or s 49. The Commissioner submitted that this was significant because it assumed that a forfeiture order could still be made under s 47 or s 49 even though inevitably more than 6 months would have passed since the conviction day by the time that an application would be made under s 110.

The legislative history of the Act

The Commissioner argued that his construction of the Act derives support from a consideration of the legislative history of the Act.
The Commissioner submitted that the Act's predecessor, the Proceeds of Crime Act 1987 (Cth) (1987 Act), included provisions for conviction‑based forfeiture only. The Commissioner submitted that under s 14(1) of the 1987 Act, the Director of Public Prosecutions (DPP) could make an application for forfeiture based on a conviction. However, s 14(2)(a) provided that the DPP was not empowered to make an application after the end of the relevant application period in relation to the conviction, being 6 months from conviction.
The Commissioner noted that the Explanatory Memorandum to the Proceeds of Crime Bill 1987 (1987 Bill) stated that this time period was in place so that people were not repeatedly exposed to confiscation proceedings and confiscation matters were determined as soon as possible after conviction.
The Commissioner submitted that in 2002, the Act was enacted to expand the confiscations scheme to include non conviction based confiscations and to create a civil forfeiture regime directed to confiscating unlawfully acquired property without first requiring a conviction, to operate in addition to the existing conviction based confiscation regime.
The Commissioner noted at the time the Act was passed, s 18 and s 19 restraining orders and s 47 and s 49 forfeiture orders could only be made in relation to offences that occurred in the 6 years preceding the relevant application.
The Commissioner argued that by contrast, no time limit was stated in s 17 and s 48 - and s 59(2), in identical terms to the present, provided that applications for forfeiture in relation to a conviction must be made before the end of the period of 6 months after the conviction day.
The Commissioner submitted that in 2010, with the enactment of the Crimes Legislation Amendment (Serious and Organised Crime) Act 2010 (Cth) (2010 Act), the 6‑year time limit on applications for non conviction based restraint and forfeiture was removed. The Commissioner argued that the result was that the current s 18, s 19, s 47 and s 49 contain no maximum time limit.
The Commissioner referred to the Explanatory Memorandum to the Crimes Legislation Amendment (Serious and Organised Crime) Bill 2009 (Cth) and argued that the removal of the 6‑year time limit was to overcome the bar to confiscation if the relevant offences were not detected until more than 6 years after the offence was committed and to facilitate confiscation where extended criminal conduct stretched for more than 6 years. He referred to the Explanatory Memorandum where it was said that the removal of the time limit was specifically stated to 'ensure that criminals are not able to benefit from their crimes, regardless of when they occurred'.
The Commissioner submitted that it would be contrary to that explicit legislative purpose if s 59(2) were to be construed as imposing a 6‑month post‑conviction time limit on forfeiture applications under s 47 and s 49 of the Act. He argued that the historical context of s 59(2) supports the conclusion that the subsection applies only to conviction‑based forfeiture in s 48 of the Act.
The Commissioner also submitted that the purpose of s 59(2) is to provide a clear time limit on the Commissioner's ability to make a forfeiture application to which that subsection applies and that purpose is facilitated by a construction which is certain in its application.
The Commissioner argued that the construction advanced by the Commissioner promotes certainty and enables the time limit applicable to s 48 forfeiture applications to be objectively and immediately ascertainable: the time limit would clearly apply from the conviction date. He submitted that the construction advanced by Mr Al Zubaidy would lead to uncertain results and the inherent scope for uncertainty tells against his construction.
The Commissioner submitted that if the 6‑month time limit applied to non conviction based forfeiture, disputes would arise as to whether a serious offence alleged in a s 18 application or in a s 47 application 'related to' a conviction in any case where there was any arguable overlap between the facts underpinning the conviction and any other serious offence alleged. He argued that further, in any application for forfeiture under s 47 or s 49 where the Commissioner's evidence included even passing reference to a conviction, disputes would arise as to whether or not the application 'relates to' a conviction on the construction of s 59(2) urged by Mr Al Zubaidy.

Mr Al Zubaidy's proposed construction

The text of s 59

Mr Al Zubaidy submitted that a consideration of the text of s 59 in its proper context and having regard to its evident purposes, reveals the section has general application to all forfeiture order applications.
Mr Al Zubaidy submitted that the words 'relates to' are of wide import and he referred to the decision of the Victorian Court of Appeal in State of Victoria (Corrections Victoria Unit of the Department of Justice & Regulation) v Thompson.[31] In that case Beach JA, Osborn JA and Kennedy AJA observed that he words 'relates to' are words of wide and general import, the precise ambit of which can only be discerned from the context in which it has been used.
[31] State of Victoria (Corrections Victoria Unit of the Department of Justice & Regulation) v Thompson [2019] VSCA 237.

Mr Al Zubaidy submitted that the words 'relates to' words must be given their usual wide meaning in the context of the Act. He referred to a decision of Wright J in Commissioner of the Australian Federal Police v Cranston (No 14)[32] in which the question of whether a restraining order relates to an offence and the definition of related offence were considered, in the context of consideration of the operation of s 92(1)(b)(i) of the Act.
[32] Commissioner of the Australian Federal Police v Cranston (No 14) [2021] NSWSC 1118.
Mr Al Zubaidy drew attention to the heading of s 59, then read s 59(1) and then read s 59(2). The heading to s 59 is 'proceeds of crime authority may apply for a forfeiture order'. Section 59(1) provides that a 'proceeds of crime authority, may apply or a 'forfeiture order'.
Mr Al Zubaidy submitted that the application referred to in s 59(2) is the application for the forfeiture order referred to in s 59(1) of the Act.
Mr Al Zubaidy referred to the fact that 'forfeiture order' is defined in s 338 to mean 'an order made under Division 1 of Part 2-2…'. He argued that his construction was consistent with the plain English reading of that definition as Division 1 of Part 2‑2 contains each of s 47, s 48 and s 49.
Mr Al Zubaidy submitted that s 59(2) has general application to all types of forfeiture applications made under the Act. He argued that there was nothing in the text of s 59(2) to limit its field of operation. He submitted that it was significant that s 59 is found in Division 3 which is concerned with forfeiture applications generally. He argued that it would be absurd if s 59(1) applied to s 47 - s 49 but s 59(2) applied only to s 48.
Mr Al Zubaidy argued when the Act wishes to speak about a specific type of forfeiture order it consistently does so by referencing the applicable section numbers. In this regard, Mr Al Zubaidy referred to s 51, s 54(a), s 57(1)(f), s 62(2)(b) & s 62(4), s 72(1)(a), s 73(1), s 80, s 81, s 84, s 110, s 316(2)(b) and s 335(6)(a)(ii).
Mr Al Zubaidy also attached significance to the fact that s 59(2) uses the broader term indictable offence which captures indictable offences, and thereby also serious offences. He submitted that serious offences are a subset of indictable offences (defined in s 338). He argued that sections such as s 49(1)(c)(i) demonstrate that when the Act uses the term indictable offence that also captures serious offences.
Mr Al Zubaidy argued that the Commissioner's submissions proceeded as if the words 'relates to' meant 'based upon' or something similar.
Mr Al Zubaidy described the question of whether a forfeiture application relates to a conviction as being a factual question. He disavowed the proposition that the mere mention of a conviction in the affidavit material filed in support of a forfeiture application would be enough to establish that a forfeiture application 'relates to' a conviction.[33]
[33] ts 71 - ts 72.
Mr Al Zubaidy accepted that the application was the originating summons.[34]
[34] ts 101.
Mr Al Zubaidy initially submitted that the conviction needed to be an 'important plank' in the application but not a critical plank.[35] Later, he submitted that the conviction needed to be a 'ground' upon which forfeiture was sought.[36]
[35] ts 88.
[36] ts 90, ts 96.
Mr Al Zubaidy's argument that the Commissioner's application related to the Conviction rested upon statements made in the Commissioner's Initial Submissions. He submitted the application related to the Conviction because of the manner in which the Commissioner addressed that conviction in those submissions. He said it was not relevant that the evidence referred to the Conviction.[37]
[37] ts 97.
Mr Al Zubaidy submitted that even if there where multiple bases upon which a proceeds of crime authority sought forfeiture, if one of the bases related to a conviction then the entire application related to the conviction. He contended that it was important that the application should not be conflated with the judicial determination of that application.[38]
[38] ts 93.
Mr Al Zubaidy contended that there are sound policy reasons that underlie s 59(2). He submitted that offenders should be allowed to get on with their lives and s 59(2) allows the authorities a further period of 6 months after sentencing to conduct any further inquiries. He argued that within that period the authorities should know if they wish to pursue forfeiture and should do so.
Mr Al Zubaidy argued that the mischief of s 47 and s 49 forfeiture applications being made years after a related conviction is no less pronounced than the mischief of a s 48 application being made years later.

The legislative history of the Act

Mr Al Zubaidy argued that the extrinsic material could not be used to create or find ambiguity. In this regard, he relied upon s 15AB of the Acts Interpretation Act 1901 (Cth) and observations made in Pearce D, Statutory Interpretation in Australia (9^th ed, 2019) [3.17].[39]
[39] Respondent's Oral Outline dated 23 October 2024, pars 21 - 22.
Mr Al Zubaidy submitted that the history of s 59(2) can be traced to the statutory predecessor s 14(2) of the Act. He contended that although expressed quite differently that section reflected the same policy that he said was evident from the current legislation. He argued that there can be no suggestion of a legislative slip in relation to that legislation.
Mr Al Zubaidy submitted that the explanatory memorandum to the Proceeds of Crime Bill 2002 (Cth) does not shed any further light on the purpose or intended operation of s 59(2).

Whether s 59(2) can apply to an application made under s 47

Where a person is convicted of an indictable offence, the Act would seem to permit a proceeds of crime authority to apply for restraining and forfeiture orders under either the conviction based restraining and forfeiture order regime in s 17 and s 48, or the conduct constituting serious offences‑based restraining and forfeiture order regime in s 18 and s 47.
As I have mentioned, the Originating Summons sought restraining orders under both s 17 and s 18, although the Commissioner only moved for orders under s 18 of the Act and I made orders under that section.
Although the Commissioner seeks forfeiture under s 47 (and not s 48), he relies upon the Conviction as an 'evidentiary pathway' to establish that Mr Al Zubaidy engaged in conduct constituting a serious offence. The Commissioner submits, amongst other things, that the court can be satisfied that Mr Al Zubaidy engaged in the conduct constituting the serious offence for which he was convicted because he pled guilty to that offence and was convicted of that offence.
The Commissioner accepts that if he relied upon the Conviction to seek forfeiture under s 48, s 59(2) would prevent him from applying for forfeiture because more than 6 months have passed since the Conviction. On the Commissioner's construction of the Act, however, if he relies upon the Conviction as an evidentiary pathway to establish that Mr Al Zubaidy engaged in the conduct constituting the serious offence for which he was convicted because he plead guilty to that offence and was convicted of that offence, he may seek forfeiture under s 47.
The Commissioner's construction of the Act has the potential to deprive the 6‑month time limitation in s 59(2) of any meaningful effect. This is because even if more than 6 months had passed since the relevant conviction, the Commissioner could rely on the same factual basis that would have supported an application under s 48 (namely, the conviction) to instead apply under s 47. To an extent, that is the very thing that the Commissioner seeks to do in this case.
Senior Counsel for the Commissioner submitted that the course the Commissioner has adopted is permitted by the Act. He contended that an analysis of the text and structure of the Act and its legislative history reveals a legislative intention that s 59(2) applies to s 47 but not s 48.
The text and structure of the Act provides some support for the Commissioner's argument.
As the Commissioner submitted, there is a textual connection between the use of the phrase 'a person's conviction of an indictable offence' in s 59(2) and the text of s 48. This includes the use of the word conviction in text of s 48 and the heading to that section.
A forfeiture application made under s 48 must necessarily relate to a conviction. This is because s 48(1)(b) and s 48(2)(b) provides that in determining a forfeiture application, a court must be satisfied that a person has been convicted of one or more indictable offences. The making of a forfeiture order under s 48 can therefore only be made if there is a conviction.
A forfeiture application made under s 47 does not require a court to be satisfied that a person has been convicted. Section 47(1)(c) requires the court to be satisfied that a person whose conduct or suspected conduct formed the basis of the restraining order, engaged in conduct constituting one or more serious offences. The court's power to order forfeiture is not conditioned upon a person being convicted as it is under s 48.
In this sense it is not immediately apparent from the text of s 47 that the determination of an application under that section could 'relate to' a conviction. This may be contrasted to s 48, where the relationship between forfeiture and conviction is plain from the text of that section.
It does not necessarily follow, however, that there could be no relevant relationship.
The text of s 59(2) expresses the 6‑month limitation period as applying if 'the application relates to a person's conviction of an indictable offence'. It does not refer to a forfeiture application made under any particular section. Rather, the applicability of the limitation period is expressed as being dependent upon whether there is a relationship between the forfeiture application and the conviction.
The word 'relate' is relevantly defined in the Shorter Oxford English Dictionary, (5^th ed, 2002), to mean 'bring (a thing or person) into relation with; establish a connection between'.
While it is not necessary for a proceeds of crime authority to establish that a person has been convicted in order to obtain an order under s 47, as I have mentioned, it is open to a proceeds of crime authority to rely on evidence of a conviction for the purposes of seeking such an order.
Where a proceeds of crime authority relies upon a conviction in an application under s 47, this could establish a connection between the conviction and the application. An application under s 47 can only be granted if the court is satisfied that a person engaged in conduct constituting one or more serious offences.[40] Where a proceeds of crime authority relies upon evidence of a conviction to establish that a person engaged in the very offence for which he was convicted, there is a connection between the conviction and the application. The conviction is the evidence which establishes that the person engaged in a serious offence and the serious offence is the indictable offence for which the person was convicted. In such a case, the proceeds of crime authority has elected to bring the conviction 'into relation' with the application.
[40] Although s 48(2) provides that a finding need not be based on a finding that a particular offence was committed.
Mr Al Zubaidy's submission was that an application under s 47 would 'relate to' a conviction if the conviction was a 'ground' upon which forfeiture has been sought. Counsel for Mr Al Zubaidy drew a distinction between the evidence relied upon in support of the application and such grounds.
Neither the Act, nor the procedural rules of this court, require the specification of any 'grounds' upon which forfeiture is sought. Nor does s 47 require the court to consider such grounds.
Precisely what were the 'grounds' upon which the Commissioner sought forfeiture was the subject of some debate before me. Counsel for Mr Al Zubaidy suggested that these grounds were to be determined by reference to the Commissioner's Initial Forfeiture Submissions. While those submissions refer to various matters, none of those matters are expressly referred to as grounds. The word 'ground' is not used in the Commissioner's Initial Forfeiture Submissions at all.
To the extent that the reference to a ground is intended to be a reference to the offence which the Commissioner seeks to establish that a person engaged in and the evidence relied upon for that purpose, then that is a matter that I have already addressed. If the reference to ground is intended to refer to some other concept, then that concept seems foreign to the process contemplated by s 47. In either event, the use of the term 'ground' seems apt to distract.
The Commissioner argued that the construction he advanced promoted certainty and would enable the time limit applicable to s 48 forfeiture applications to be objectively and immediately ascertainable. He submitted that if the 6‑month time limit applied to non conviction based forfeiture, disputes would arise about whether a serious offence alleged in a s 18 application or in a s 47 application 'related to' a conviction.
There is some force to this submission. It does seem to me that the construction advanced by the Commissioner would provide certainty. Such certainty is attractive and would facilitate the timely administration of the Act.
The Commissioner placed considerable reliance on the structure of the Act, including sections of the Act that distinguished between the commission of an offence and the conviction for an offence. While I accept that such a distinction might be identified, it does not seem to me that this advances matters much in the present case.
The identification of two different regimes does not necessarily suggest that the limitation in s 59(2) should apply to only one of those regimes. It is open to the Commissioner to rely on a conviction when applying for restraining and forfeiture orders under either regime. Given this, it might not be unexpected for the limitation to apply irrespective of the regime that the Commissioner applied under, so as to ensure a consistent outcome.
The Commissioner submitted that s 110 assumed that forfeiture orders under s 47 and s 49 can be made more than 6 months after the conviction day. While it is true that s 110 contemplates that a forfeiture application can be made more than 6 months after a conviction day, the section only operates where a conviction has been quashed. It seems to me that where a conviction has been quashed, the position is akin to a situation in which there has been no conviction at all.
I consider that the operation of s 59(2) is sufficiently ambiguous to permit reference to the legislative history but I do not consider that reference to that history assists much.
Section 59(2) has been in its present terms since the inception of the Act. This suggests that the section may have had a consistent operation, without necessarily revealing much about the scope of that operation.
The Commissioner relied on the fact that originally s 47 had a 6‑year limitation period but that provision was repealed in 2010. The presence of a limitation provision in s 47 would have been relevant to the question of the scope of operation of s 59 but it would not have excluded the potential operation of s 59(2) where an application related to a person's conviction. In any event, no such limitation period is present in the current Act.
The Commissioner also relied on the fact that the explanatory memorandum to the bill that repealed the 6‑year limitation period in s 47 stated that the repeal was to overcome the bar to confiscation if the relevant offences were not detected until more than 6 years after the offence was committed and to facilitate confiscation where extended criminal conduct stretched for more than 6 years. Such reasoning has no application where an application 'relates to' a conviction and reveals nothing about the meaning of those words as they appear in s 59(2).
The Commissioner also submitted that Parliament had seen fit to give the responsible authority a wide degree of flexibility in choosing the approach to adopt to achieve the legislative objectives of the Act.[41] In my view, that a responsible authority has such discretion supports a construction that s 59(2) applies equally irrespective of the approach that the authority elects to adopt.
[41] ts 49.
Ultimately, while I consider that there is some force to some of the Commissioner's submissions, I consider that the determinative consideration is that the Commissioner's construction would seem to me to render the limitation period in s 59(2) of the Act nugatory.
Even on the Commissioner's construction, s 59(2) applies to forfeiture applications under s 48. Section 48 and s 59(2) reveal a legislative intent that where a forfeiture application is based on a person being convicted of one or more indictable offences, any application for forfeiture must be made within 6 months.
If the Commissioner were correct, then the 6-month time limitation in s 59(2) would lack any meaningful limiting effect. A proceeds of crime authority who failed to apply under s 48 within 6 months could simply apply under s 47 instead. It would be able to rely on the fact of the conviction to establish the person engaged in the conduct constituting the very offence for which the person had been convicted. Such a construction would mean that a proceeds of crime authority could always avoid the limitation provision in s 59(2) by reframing its application under s 48. This seems unlikely to me to be what the legislature intended.
On its face, the text of s 59(2) is expressed in terms broad enough to apply to an application made under s 47. The words 'relates to' are words of broad import and the section is not expressly limited to applying to s 48. Giving full effect to those words would have the result that the section applies to both s 47 and s 48 with the result that the limitation in s 59(2) would apply equally irrespective of which section a forfeiture application was made under. Despite the attraction of some of the Commissioner's arguments, the Commissioner's construction seems to involve a reading down of the section which I am ultimately not satisfied is justified.
I consider that s 59(2) can apply to an application under s 47. Whether it does or does not will depend on the basis of the crime authority's application. It is therefore necessary to consider whether s 59(2) prevents the application that the Commissioner from making the application that he has in these proceedings.

Whether s 59(2) prevents the Commissioner's application proceeding in this case

As I have mentioned, the Commissioner contended that the evidence established that Mr Al Zubaidy committed four different serious offences: the offence for which he was convicted, the Tobacco Sales Offence, the Tax Evasion Offence and the Money Laundering Offence.[42]
[42] ts 61 - ts 68.
Mr Al Zubaidy accepted that if the Commissioner had applied for forfeiture based only upon the Tobacco Sales Offence, the Tax Evasions Offence and the Money Laundering Offence, then the Commissioner's application would not be related to the Conviction. He submitted, however that where a proceeds of crime authority applied for forfeiture on multiple bases, if one of those bases related to a conviction, then the entire 'application' related to the conviction. He said that as a result, the application cannot proceed, and the restraining order must be discharged.
Mr Al Zubaidy argued that 'application' meant the Originating Summons that was filed. He submitted that there was only one application.
As I have mentioned, the Originating Summons applies for an order for forfeiture pursuant to s 47 of the Act. The Originating Summons does not identify the basis upon which that order was sought.
The Originating Summons was filed with the First Smith Affidavit, however. Parts of that affidavit were not relied upon by the Commonwealth for the purposes of the forfeiture application. The material that remained still identified evidence upon which it might be concluded that Mr Al Zubaidy committed each of the four offences I have mentioned.

A forfeiture order under s 47 can only be made if the court is satisfied that a person engaged in conduct constituting one or more serious offence.[43] Where (as here) four different offences are alleged based on four different sets of evidence, each offence has the potential to independently justify the making of an order under s 47. As a consequence, it is necessary for the court to consider each alleged offence and the evidence related to that offence separately. In effect, forfeiture is sought on four independent bases that must be considered separately.
[43] See s 47(1)(c) of the Act.
Given this, I have difficulty accepting that if one of four alternate bases upon which forfeiture is sought relates to a conviction, necessarily so too must the other three bases. To the extent that the Commissioner applies for forfeiture on the basis that Mr Al Zubaidy committed an offence other than the one for which he was convicted, on the basis of different evidence, then it is not apparent to me that there is any relationship between the Conviction and forfeiture to engage s 59(2) of the Act.
Mr Al Zubaidy submitted that to engage in such reasoning is to conflate the application with the judicial determination of that application.[44] He seemed to submit that for s 59(2) to be engaged the relationship needed to be between the Originating Summons and the Conviction. The Originating Summons does not refer to the Conviction at all, however. The Originating Summons merely seeks a forfeiture order under s 47. It is unclear to me how seeking such an order could alone engage s 59(2).
[44] ts 93.
Mr Al Zubaidy also seemed to argue that s 59(2) was engaged by the Commissioner's Initial Forfeiture Submissions. Section 59(2) is engaged where there is a relationship between the application and the conviction, however. Not where there is a relationship between a submission made and a conviction.
In any event, the Commissioner's Initial Forfeiture Submissions suggest that the various bases upon which forfeiture was sought were alternatives. The Respondent's Submissions themselves refer to the bases upon which forfeiture might be sought as 'alternatives'.
I do not consider that s 59(2) is engaged insofar as the Commissioner seeks forfeiture on the alternate basis that Mr Al Zubaidy engaged in the conduct constituting the Tobacco Sales Offence, the Tax Evasion Offence and the Money Laundering Offence. While it is true that the Commissioner relies upon the Conviction (in addition to other evidence) as a piece of circumstantial evidence to establish that Mr Al Zubaidy engaged in these other offences, I consider that the relevance of the Conviction is too peripheral to establish a relationship between the Conviction and the application. Mr Al Zubaidy seemed to accept as much.
In any event, I would not have discharged the restraining orders I made. As I have explained above, I made those restraining orders because I was satisfied that there were reasonable grounds to suspect that Mr Al Zubaidy had committed the Tobacco Sales Offence, the Tax Evasion Offence and the Money Laundering Offence. The Conviction was not relevant to the making of the restraining order.
Mr Al Zubaidy accepted that it would be open to the Commissioner to have made an application for forfeiture if it were based only on the basis that Mr Al Zubaidy engaged in the conduct constituting the Tobacco Sales Offence, the Tax Evasion Offence and the Money Laundering Offence.[45] I would have left the restraining orders in place, to allow the Commissioner to have made a fresh forfeiture application on the basis of those offences.
[45] ts 104.

Whether the Commissioner's position changed

At one point, counsel for Mr Al Zubaidy suggested that the Commissioner had changed his position from that articulated in the Commissioner's Initial Forfeiture Submissions. Counsel submitted that Mr Al Zubaidy had elected to conduct his case in a particular way on the basis of what was said in those submissions and Mr Al Zubaidy would be denied procedural fairness if the Commissioner were permitted to change his position.[46]
[46] ts 85 - ts 86.
It is not apparent to me that the Commissioner's position changed but even if his submissions were developed slightly during oral argument, I do not consider that this meant that Mr Al Zubaidy was denied procedural fairness. It is common for oral argument to develop points made in written submissions.
Mr Al Zubaidy was not denied an opportunity to take a different approach to the Commissioner's application if he wished. It was open to him to file evidence to address the Commissioner's application more fulsomely if he wished. He elected not to do so and to limit himself to taking the point that he did.

Whether forfeiture orders should be made

Mr Al Zubaidy conceded that if contrary to his submissions the forfeiture application is within time, the pre‑conditions for forfeiture under s 47 had been satisfied. He submitted that paragraphs [7(b)] -[7(d)] and [10] - [16] of the Commissioner's Initial Submissions set out how these conditions had been met. He argued that there is no reason for the court to determine the 'alternative' arguments made in paragraphs [17] - [21] of those submissions. He submitted that he did not raise the public interest in s 47(4) of the Act and that there was therefore no reason to consider it.
Given the conclusion I have reached, it is necessary for me to consider the Commissioner's submissions that Mr Al Zubaidy referred to as being the alternative arguments.
When I granted the restraining order in this matter, I formed the view that there were reasonable grounds to suspect that Mr Al Zubaidy had committed the Tobacco Sales Offence, the Tax Evasion Offence and the Money Laundering Offence on the basis of the evidence in the First Smith Affidavit.
Mr Al Zubaidy has not filed any evidence to contradict the matters deposed to in the First Smith Affidavit. Mr Al Zubaidy's submissions about this aspect of the Commissioner's application were limited to disputing the admissibility of some parts of the First Smith Affidavit.
On the basis of the evidence in the First Smith Affidavit, I am satisfied that Mr Al Zubaidy engaged in conduct constituting one or more serious offence (in addition to the offence for which he was convicted). Section 47(2) of the Act provides that a finding that a person engaged in conduct constituting one or more serious offence need not be based on a finding about the commission of a particular offence and can be based on a finding that some serious offence or other was committed. I am satisfied that Mr Al Zubaidy committed one or more of the Tobacco Sales Offence, the Tax Evasion Offence and the Money Laundering Offence.

Conclusion

For these reasons, I consider that a forfeiture order should be made.
An application has been made by Mr Al Zubaidy and Babylon Trading Pty Ltd for the exclusion of certain property from any forfeiture order pursuant to s 73(1) of the Act.
I will hear from the parties further in relation to what orders should be made to give effect to these reasons, in light of this outstanding application.

SCHEDULE

Introduction

The Commissioner of the Australian Federal Police applies pursuant to section 25 of the Proceeds of Crime Act 2002 (Cth) (the Act), for restraining orders pursuant to section 18 and section 19 of the Act, in relation to cash seized by the Australian Border Force and real property both of which are identified in schedules to the summons.
The orders presently sought by the Commissioner are set out in a Minute of Proposed Orders dated 13 November 2023. The minute proposes orders that the identified property must not be disposed of, or otherwise dealt, with by any person except in the manner and circumstances specified in the orders.

Ex parte

The orders are sought on an ex parte basis under section 26(4) of the Act.

The application made under both s 18 and s 19

The Commissioner applies for restraining orders in relation to the property listed in Schedules One and Two pursuant to section 18 and section 19 of the Act.
The Commissioner submitted that section 27 of the Act authorises the Commissioner to apply for restraining orders over the same property under more than one section of the Act.
To the extent that what is being submitted is that section 27 of the Act contemplates orders being made under two sections of the Act simultaneously, it is far from clear to me that section 27 so provides. Section 27 of the Act states:
To avoid doubt, the fact that a *proceeds of crime authority may apply for a *restraining order under a section of Division 1 against property in relation to an offence does not prevent a proceeds of crime authority from applying for a *restraining order under a different section of Division 1 against that property in relation to that offence.
To me this section seems to provide the Commissioner with the liberty to choose which section to apply under, rather than provide for orders being made under multiple sections simultaneously.
In any event, if an order may be made under one section, it is not apparent to me why it would also be necessary to in addition, make the order under another section. For this reason, I will first consider the application as it is made under section 18 and only turn to consider the application under section 19 if it is necessary.

Section 18

Section 18(1) of the Act relevantly provides that a court with 'proceeds jurisdiction' must make such orders if the Commissioner applies for the order; and
(a)there are reasonable grounds to suspect that a person has committed a 'serious offence'; and
(b)any affidavit requirements in subsection (3) for the application have been met; and
(c)the court is satisfied that the 'authorised officer' who made the affidavit holds the suspicion or suspicions stated in the affidavit on reasonable grounds.
Section 18(3) of the Act provides that an application for the order must be supported by an affidavit of an 'authorised officer' stating:
(a)that the authorised officer suspects that the 'suspect' committed the offence; and
(b)if the application is to restrain property of a person other than the suspect, that the authorised officer suspects that:
(i)the property is subject to the 'effective control' of the suspect; or
(ii)in any case - the property is 'proceeds of the offence'.
Section 18(2) of the Act provides that the order must specify, as property that must not be disposed of or otherwise dealt with, the property specified in the application for the order, to the extent that the court is satisfied that there are reasonable grounds to suspect that that property is any one or more of the following:
(a)all or specified property of the 'suspect' (section 18(2)(a)); or
(b)specified property of another person (whether or not that other person's identity is known) that is subject to the 'effective control' of the suspect (section 18(2)(c)).

Affidavit material

The Commissioner's application relies on the Affidavit of Ankica Smith sworn 21 July 2023 in support of the orders sought.

Reasonable grounds to suspect that a person has committed a 'serious offence' (s 18(1)(d))

It seems to me that Ms Smith's affidavit satisfies the requirements of section 18(3) of the Act.
In paragraph 11 of Ms Smith's affidavit, she deposes to suspecting that the respondent has committed offences contrary to section 308‑25 of the Taxation Administration Act 1953 (Cth) and section 135.1(3) and section 400.9(1) of the Criminal Code Act 1995 (Cth) sch 1. She explains the basis of her suspicion in paragraphs 75 - 77 of her affidavit. In paragraphs 72, 73 and 74 of her affidavit, Ms Smith says that she suspects that the property the subject of the present application was in the effective control of the respondent.
I do not propose to set out what Ms Smith says in her affidavit in detail but having reviewed that affidavit, I am satisfied of the matters set out in section 18(1)(d) and section 18(1)(f) and section 18(2) of the Act.
In reaching this conclusion I have had regard to the matters raised by the respondent's solicitor and referred to in paragraph 93 and attachment 'AS‑31' to Ms Smith's Affidavit. Those submissions addressed the source of the sums of cash that were seized. The submissions did not assert however that that cash was not in the respondent's effective control.
In the circumstances, I am prepared to make the orders sought pursuant to section 18 of the Act. Given this, I do not consider it necessary to consider whether the orders should be made under section 19 of the Act.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
GS
Associate
19 DECEMBER 2024