Commissioner of the Australian Federal Police v Kanjo

In the case of Commissioner of the Australian Federal Police v Kanjo, the appellant, the Commissioner, sought to set aside orders made by the primary judge that varied restraining orders under the Proceeds of Crime Act 2002 (Cth). The restraining orders were initially imposed due to suspicions of money laundering and related offences by the respondents, Kanjo and FHS. The key issue before the court was whether the primary judge had the authority to vary the restraining orders to exclude certain interests in property from the restraint, and if so, whether the variation was correctly made under the general ancillary order power in s 39 of the POCA, or whether it should have been made under the specific variation power in s 29.

The court examined the statutory framework of the POCA, particularly the provisions in s 39 and s 29. Section 39 allows for a broad range of ancillary orders, including variations to restraining orders, whereas s 29 sets out specific conditions that must be satisfied for the exclusion of certain property interests from a restraining order. The Commissioner argued that the variation order should only be made under s 29, as it required the satisfaction of certain conditions not present in s 39. The respondents contended that the power to vary the restraining order was sufficiently broad under s 39 to include the exclusion of certain property interests.

The court held that the primary judge had the power to make the variation order under s 39, as it provided for a wide range of ancillary orders, including variations. However, the court found that the primary judge misapplied the law by not considering the specific conditions outlined in s 29. The court concluded that while the power to vary restraining orders exists under s 39, it must still comply with the overall statutory scheme of the POCA, which includes the specific conditions in s 29 for excluding certain property interests from restraint.

The appeal was allowed, the variation orders were set aside, and the application for the variation was refused. The respondents were ordered to pay the costs of the appeal and the application.