Commissioner of the Australian Federal Police v Peng
[2022] QDC 211
•16 September 2022
DISTRICT COURT OF QUEENSLAND
CITATION: Commissioner of the Australian Federal Police v Peng [2022] QDC 211 PARTIES: COMMISSIONER OF THE AUSTRALIAN
FEDERAL POLICE(Applicant) v XUFENG PENG & SIYU JIA (Respondents) FILE NO/S: BD 3635/18 DIVISION: Civil DELIVERED ON: 16 September 2022 DELIVERED AT: Brisbane HEARING DATES: 6, 7, 8 December 2021; 4 August 2022 JUDGE: Barlow KC, DCJ ORDERS:
1. The application filed on 25 January 2021 be dismissed.
2. The orders of Jarro DCJ made on 10 October 2018 be set aside.
3. Order 2 not take effect until the later of:
(a) 30 days after publication of these reasons; or
(b) if a notice of appeal from this decision is filed within the period in (a) – the day after the
appeal is finalised, whether by agreement,
judgment or otherwise.4. The applicant pay the respondents’ costs of the
proceeding from 25 January 2021.
CATCHWORDS: PRIVATE INTERNATIONAL LAW – RECOGNITION, EFFECT AND ENFORCEMENT OF FOREIGN JUDGMENTS – UNDER LEGISLATION – ENFORCEMENT OF FOREIGN JUDGMENTS – WHAT JUDGMENTS REGISTRABLE – the respondents were the subject of a court order in the People’s Republic
of China for the confiscation (as proceeds of crime) of property they held, including real properties in Queensland
– the applicant applied for the registration of that foreign order pursuant to the Mutual Assistance in Criminal Matters Act 1987 (Cth) – whether registration would be
ii
contrary to the interests of justice within the meaning of
s 34A of that Act – which party had the burden of proof.
Mutual Assistance in Criminal Matters Act 1987 (Cth), ss 33A, 34, 34A
Mutual Assistance in Criminal Matters (The People’s
Republic of China) Regulations 2007
Proceeds of Crime Act 2002 (Cth), s329(1)
Briginshaw v Briginshaw (1938) 60 CLR 336, applied
Cameron v Cole (1944) 68 CLR 571, distinguished
Commissioner of the Australian Federal Police v
Ortmann [2021] NSWSC 451, (2021) 360 FLR 123,
distinguished
Deputy Commissioner of Taxation v Shi (2021) 95 ALJR
634, [2021] HCA 22, considered
Kioa v West (1985) 159 CLR 550, applied
LFDB v SM [2017] FCA 80, distinguishedLFDB v SM (2017) 256 FCR 218, applied
Minister for Aboriginal Affairs v Peko-Wallsend Ltd
(1986) 162 CLR 24, applied
Minister for Immigration and Citizenship v Haneef
(2007) 163 FCR 414, considered
Nintendo Co Ltd v Centronics Systems Pty Ltd (1994)
181 CLR 134, applied
R v Fardon [2010] QCA 317, considered
Stern v National Australia Bank Ltd [1999] FCA 1421,
considered
TVM v Western Australia (2007) 180 A Crim R 138,
citedVines v Djordjevitch (1955) 92 CLR 512, applied
Davies et al, Nygh’s Conflict of Laws in Australia (10th
ed, 2020)
COUNSEL: G del Villar QC with P Kinchina, for the applicant M Abbott QC with C Jacobi, for the respondents on 6, 7,
8 December 2021S Zhao (solicitor), for the respondents on 4 August 2022 SOLICITORS: Australian Federal Police for the applicant Brightstone Legal for the respondents
Contents
Introduction .......................................................................................................................... 1
Background .......................................................................................................................... 1
Events prior to the Hunan Court proceeding .................................................................... 1
Court proceedings prior to this application ...................................................................... 2
iii
Legislation ............................................................................................................................ 3
Preliminary Issues ................................................................................................................ 6
Section 34A and the principle from Kable ....................................................................... 7
Burden of Proof ................................................................................................................ 8Objections to evidence ................................................................................................... 12
The scope of the interests of justice ................................................................................... 12
The Commissioner’s submissions .................................................................................. 12
The respondents’ submissions ........................................................................................ 14
Consideration .................................................................................................................. 15
No application by respondents to Attorney-General .......................................................... 21
Did the application for the foreign order relate to a political offence or opinion? ............. 22
The standard of proof ..................................................................................................... 22
The respondents’ evidence ............................................................................................. 22
The parties’ submissions ................................................................................................ 26
Consideration .................................................................................................................. 27
Independence of the Chinese courts ................................................................................... 29
Evidence of the judicial and political systems ............................................................... 29
Professor Lewis .......................................................................................................... 29
Doctor Godwin ........................................................................................................... 31
Parties’ submissions ....................................................................................................... 32
Consideration .................................................................................................................. 33
The process in the Hunan Court ......................................................................................... 38
The relevant Chinese laws .............................................................................................. 38
Rights of participation and appeal .................................................................................. 39
Right to participate in confiscation proceeding .......................................................... 39
Right to appeal confiscation order .............................................................................. 42
Prior steps taken by the Hunan Court and in this Court ................................................. 44
The steps taken by and in the Hunan Court in the confiscation proceeding .................. 46
Service or knowledge of the respondents ....................................................................... 47Confiscation of assets of absconders .............................................................................. 50
Would registration of the Hunan Court’s order be contrary to the interests of justice? ..... 52
Denial of procedural fairness.......................................................................................... 52
Self-inflicted absence from Hunan Court? ..................................................................... 58Conclusions .................................................................................................................... 60
Orders ................................................................................................................................. 60
Schedule – objections to evidence ...................................................................................... 62
Introduction
The applicant, the Commissioner of the Australian Federal Police (Commissioner), applies pursuant to the Mutual Assistance in Criminal Matters Act 1987 (Cth) (the Act or the MACM Act) for the registration of foreign orders for the forfeiture of alleged proceeds of crime owned by the respondents, relevantly including assets situated in Queensland. Those orders were made in a ruling by the Intermediate People’s Court of Yueyang City, Hunan Province (the Hunan Court) of the People’s
Republic of China (PRC) on 3 January 2020. On 20 January 2020, the Hunan Court made a formal request for assistance in the enforcement of this ruling (mutual assistance request) to the Commonwealth.[1] A delegate of the Commonwealth Attorney-General approved that request and authorised the Commissioner to make this application for registration of the order.[2]
[1] Act, s 34(2)(a). Trial bundle (exhibit 1), tab 13. (I shall refer to tabs in the trial bundle as, for example, TB[13] and to pages as, for example, TB175.) Interestingly, the request was not made by the proper Chinese authority under the relevant treaty (to which I refer later), which is the Ministry of Justice for the PRC, but no issue has been taken with that discrepancy.
[2] Act, s 34(2). TB[17].
The respondents resist the application. In essence, they contend that, for a number of reasons, both procedural and substantive, they did not have a fair and just opportunity to defend themselves before the Hunan Court. Therefore, they argue, it would be
contrary to the interests of justice for this court to register the Hunan Court’s orders.
For the reasons below, I have concluded that the Hunan Court’s orders should not be
registered in this court because it would be contrary to the interests of justice to do so.
Background
Events prior to the Hunan Court proceeding
The husband and wife respondents, Mr Peng Xufeng and Ms Jia Siyu,[3] are Chinese citizens. Ms Jia owns several properties in various countries, including three in Queensland. Mr Peng worked for many years, both directly for the provincial level government and for government owned corporations, as a civil engineer. By the time of the relevant events, Mr Peng was a very senior employee and Chairman of the Board of one of these entities, Changsha Metro Group Co Ltd. While he was employed there, the Hunan Province Commission for Discipline Inspection (CDI),[4] represented by Mr Fu Kui, commenced an investigation into potentially corrupt activities by people with whom Mr Peng had worked or who owned companies that had been engaged as contractors for Changsha Metro.
[3] I set out their names and those of other Chinese people referred to in the Chinese manner, with their surnames first.
[4] I set out more detail of the CDI and its role later: [113]ff.
As part of the CDI’s investigation, in about June 2016 and again in February 2017,
Mr Fu asked Mr Peng to provide information about any corrupt practices within or involving Changsha Metro. Mr Peng says that he understood that this formed part of a general crackdown on corruption that was taking place within the PRC at the time. Mr Peng said, in his evidence in this proceeding, that he investigated what he could, including the work of the particular persons whom Mr Fu had indicated were the focus of his investigations, but Mr Peng did not find any evidence of corrupt practices by those persons. He told Mr Fu that he could not find any evidence of corruption.
At some time apparently in about February or March 2017, allegedly in retribution for
Mr Peng’s refusal to provide information (even false information) about corruption
by those persons, the respondents themselves were investigated by the CDI for alleged corrupt activities, including acceptance of bribes and, in relation to Ms Jia, money laundering (the corruption probe). It appears, from the text of the reasons for the Hunan Court’s ruling,[5] that the alleged corrupt activities were said to have occurred
[5] Ruling on Confiscation of Illegal Proceeds, Intermediate People’s Court of Yueyang City, Hunan
between 2010 and 2017.
In March 2017, a date which may or may not be coincidental, both the respondents left the PRC, ostensibly for a holiday, leaving behind family members including one
of their young children (who stayed with Ms Jia’s parents). While they were overseas,
the respondents became aware of the corruption probe that was being undertaken
against them, as family members informed them that people (including Mr Peng’s
brother) were being taken in for questioning by the authorities. Mr Peng, once aware, asked Mr Fu what was going on, who told him to return to China and to provide the
information they required, on the promise that, if they did so, “it would all go away.”[6]
[6] Affidavit of Peng Xufeng affirmed on 21 May 2021 (1st Peng affidavit), [92] (TB 381).
Mr Peng and Ms Jia did not believe that promise. They were concerned that, if they returned to China, they would immediately be arrested and would not have a proper opportunity to defend themselves against any charges that may be made against them. They decided that they should remain outside the PRC. They ended up in the United States of America, which is where they currently live and where (I understand) they may have sought political asylum.[7]
[7] Mr Peng gave evidence that he is in possession of sensitive military information that, I infer, may be of interest to the United States government.
Court proceedings prior to this application
The corruption probe apparently continued in the respondents’ absence. They were
alleged to have earned substantial bribes over a number of years[8] and to have used the money from the allegedly corrupt activities to purchase real properties and other assets in China, Australia, Cyprus and Saint Kitts and Nevis and to transfer cash to Singapore. They also obtained citizenship in Cyprus and Saint Kitts and Nevis as a result of becoming substantial real property owners in those countries. The Hunan Court ordered in September 2017 and, in amended form, in August 2018 that dealings
[8] On my calculation of the totals referred to in the Hunan Court’s reasons for its decision, the total
with the respondents’ assets in all those countries be restrained pending the outcome
of the investigation and the proceeding in that court (the freezing order). The August 2018 order was then registered in this court, in respect of the three Queensland properties and some bank accounts in Queensland, by order of Judge Jarro on 10 October 2018.[9]
[9] TB[8].
Dealings with the respondents’ assets having been restrained, the investigation
apparently continued. On 27 June 2019, the Hunan Court announced publicly that an
application (the confiscation application) had been made by the local People’s
Procuratorate - the body charged with both investigation and prosecution in the PRC
- for an order confiscating the respondents’ assets on the basis that they were the
proceeds of their illegal activities.[10] As part of this announcement, the Court indicated
[10] The English translation of the announcement is TB[9].
that close relatives of the respondents, as well as any other “interested persons,” may
apply to the Court in writing for leave to participate in the proceeding personally or by an agent ad litem. The notice specified that any such person had six months to apply, after which the confiscation application would proceed according to law.
On 31 December 2019, the Hunan Court held a public hearing in the application. The
respondents were not represented at that hearing, although Ms Jia’s parents and another “interested person” were represented, having earlier applied for leave to be
represented. On 3 January 2020, the Court made its ruling on the confiscation application.[11] It found that there was evidence that the respondents had committed
[11] TB[11] (English translation).
the crimes alleged and it was “highly probable” that nearly all the assets the subject
of the application were illegal gains and proceeds of those crimes. It ordered that the
respondents’ assets in the PRC, in Australia and in a number of other countries be
confiscated (the Hunan Court’s order), although it also ordered that RMB380,000[12]
[12] Renminbi, or yuan; the currency of the PRC.
that had been seized from Ms Jia’s parents be returned to them.
[11] On 4 March 2020, the Hunan Court made the mutual assistance request for the
registration in Queensland of the Hunan Court’s order. It is that order that the
Commissioner applies to have registered in this jurisdiction.
Legislation
Section 34 of the Act relevantly provides:
34 Requests for enforcement of foreign orders
(2) If a foreign country requests the Attorney-General to make
arrangements for the enforcement of:
(a) a foreign forfeiture order that:
(i) has the effect of forfeiting a person’s property on the basis that the property is, or is alleged to be, the proceeds or an instrument of a foreign serious offence (whether or not a person has been convicted of that offence); and
(ii) is made against property that is reasonably suspected of being
located in Australia;
the Attorney-General may authorise a proceeds of crime authority,
in writing, to apply for the registration of the order.Section 34A of the Act relevantly provides:
34A Registration of foreign orders (1) If a proceeds of crime authority applies to a court with proceeds jurisdiction for registration of a foreign order in accordance with an authorisation under this Subdivision, the court must register the order accordingly, unless the court is satisfied that it would be contrary to the interests of justice to do so.
(2) The proceeds of crime authority must give notice of the application:
(a)
to specified persons the authority has reason to suspect may have an interest in the property; and
(b) to such other persons as the court directs. (3) However, the court may consider the application without notice having been given if the proceeds of crime authority requests the court to do so.
A “foreign order” includes a “foreign forfeiture order”, which is relevantly defined in
s 3 as an order made under the law of a foreign country by a court, for the forfeiture
of property in respect of an offence against the law of that country.
Property is “proceeds” of an offence if it is wholly or partly derived or realised,
directly or indirectly, from the commission of an offence, whether or not a person has
been convicted of the offence.[13] There is no dispute that this court has “proceeds
jurisdiction.”[13] Proceeds of Crime Act 2002 (POC Act), s329(1), adopted for the purposes of the MACM Act by s 3 of the latter.
The objects of the Act are relevant to its proper construction and are set out in s 5:
The objects of this Act are:
(a)
to regulate the provision by Australia of international assistance in criminal matters when a request is made by a foreign country in respect of which powers may be exercised under this Act (whether or not in conjunction with other Australian laws); and
(c)[14] to facilitate the obtaining by Australia of international assistance in
[14] This is not an error. The former paragraph (b) was repealed by the Extradition and Mutual Assistance in Criminal Matters Legislation Amendment Act 2012, Schedule 3, item 155.
criminal matters.
The object of the relevant subdivision of the Act and the manner of achieving it are set out in s 33A:
(1) The object of this Subdivision is to facilitate international cooperation in the recovery of property through the registration and enforcement of foreign orders in Australia.
(2) For the purpose of achieving this object, it is the intention of the Parliament
that the validity of foreign orders not be examined.
The explanatory memorandum for the Bill that introduced s 33A and amended s 34A
said that s 33A was –[15]
[15] Mutual Assistance in Criminal Matters Amendment (Registration of Foreign Proceeds of Crime
designed to ensure that when interpreting the provisions in the Subdivision, courts will have due regard to the overall objective of the Subdivision which is to give effect to foreign orders in situations where property related to serious foreign offences is located in Australia.
A brief discussion of the history of s 34A is relevant. The section was first inserted into the Act by the Proceeds of Crime (Consequential Amendments and Transitional Provisions) Act 2002 (Cth). Originally, it did not include the last phrase referring to the interests of justice. Rather, it provided for no discretion in the court to refuse any application.
In 2009, the High Court determined[16] that a similar provision in the Criminal Assets Recovery Act 1990 (NSW) was invalid because it was repugnant to the judicial
[16] International Finance Trust Company Limited v New South Wales Crime Commission (2009) 240 CLR 319.
process.[17] The effect of the section under consideration was that it “conscripted” the
[17] In line with the decision in Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 (Kable).
court into a process requiring the mandatory ex parte sequestration of property for an indeterminate period, from which it would be difficult to obtain release. Thus it distorted the institutional integrity of the court.
As a result of that decision, the Parliament in 2011[18] amended section 34A to insert the proviso to the effect that, if the court considers that it would be contrary to the interests of justice to register a foreign order, then it need not do so.
[18] By the Mutual Assistance in Criminal Matters Amendment (Registration of Foreign Proceeds of Crime Orders) Act 2011 (No 83, 2011), Schedule 1, item 6. As I have mentioned, section 33A was also inserted into the Act by item 5.
The issues in this case must also be considered in the light of certain other provisions in the Act and in regulations made under it.
Section 7 relevantly provides that the regulations may provide that the Act applies to a particular foreign country subject to any mutual assistance treaty between that country and Australia that is referred to in the regulations. If the regulations provide to that effect, then the Act applies subject to the limitations, conditions, exceptions or qualifications that are necessary to give effect to the treaty with that country.
Section 8 relevantly provides that a request by a foreign country for assistance under the Act shall be refused if, in the opinion of the Attorney-General, among other things, the request relates to the investigation, prosecution or punishment of a person for an offence that is, or is by reason of the circumstances in which it is alleged to have been committed, a political offence,[19] or there are substantial grounds for believing that the
[19] That is, in broad terms, an offence that is of a political nature, whether because of the circumstances in which it is committed or otherwise: Extradition Act 1988, s 5, adopted in the MACM Act s 3.
request was made to cause prejudice to a person on account of that person’s political
opinions.
The Governor-General has made a regulation that applies a mutual assistance treaty between Australia and the PRC.[20] The terms of the Treaty are therefore relevant to the issues in this proceeding, as the Act applies subject to the terms of the Treaty.[21] The Treaty relevantly provides:
[20] Mutual Assistance in Criminal Matters (The People’s Republic of China) Regulations 2007. The
[21] Act, s 7(2)(a).
ARTICLE 1 SCOPE OF APPLICATION
1. The Parties shall, in accordance with this Treaty, grant to each other the widest measure of mutual assistance in connection with investigations, prosecutions and proceedings related to criminal matters.
3. Such assistance shall include … measures to locate, restrain and forfeit the
instruments and proceeds of crime.
ARTICLE 19 INSTRUMENTS AND PROCEEDS OF CRIME
3. At the request of the Requesting Party, the Requested Party may, to the extent permitted by its laws and under the terms and conditions agreed to by the Parties, transfer all or part of the instruments or proceeds of crime, or the proceeds from the sale of such assets to the Requesting Party.
4. In applying this Article, the legitimate rights and interests of the Requested
Party and bona fide third parties shall be respected under the laws of the
Requested Party.
6. In this Treaty “proceeds of crime” means any property suspected or found
by a court to be property derived or realized, directly or indirectly, from the commission of an offence or which represents the value of property and other benefits from the commission of an offence.
Also, article 4 provides that assistance shall be refused in the same circumstances as those described in s 8 of the Act.
Thus, in considering the scope and application of s 34A of the Act, I must keep in mind the wide scope of mutual assistance and the legitimate rights of third parties under Australian laws, for which the Treaty provides.
Preliminary Issues
The substantive question for determination by this Court is whether it would be
contrary to the interests of justice to register the Hunan Court’s order. (If the court is
not satisfied that it would be contrary to the interests of justice to register the order, then it must register the order.) However, the determination of that question also requires the determination of some preliminary issues raised by the parties.
There is no dispute about the existence of a valid foreign forfeiture order. Section 33A of the Act, in any event, explicitly provides that it is the intention of Parliament that the validity of foreign orders not be examined, and I do not do so. I proceed on
the assumption that the Hunan Court’s order was validly made according to the laws
of the PRC. Given the respondents’ submissions, I shall instead examine the
circumstances in which the order was made, including the process leading to it, in order to determine whether it would be contrary to the interests of justice (as that term is used in Australian jurisprudence) to register the order.
There is also no dispute that the Commissioner, as the proceeds of crime authority, has been properly authorised to bring this application. The respondents were given notice of the application.
At the start of the hearing of the application, the parties identified some preliminary issues relating to the interpretation of the Act. One of those issues related to the potential application of constitutional principles from cases such as Kable and South Australia v Totani.[22] The other was a question of which party holds the onus of proving whether it would or would not be contrary to the interests of justice to register the foreign order. I also reserved my judgment on some objections taken by the
[22] (2010) 242 CLR 1.
Commissioner to parts of the respondents’ evidence. It is necessary now to deal with
those objections.
Section 34A and the principle from Kable
This issue arose because of the dispute, to which I refer in detail below, about which party has the onus of proving that registration of the foreign order would or would not be contrary to the interests of justice.
[33] In debating this issue, the Commissioner submitted that the Court’s role under
s 34A(1) is confined so that, among other things,
Only in exceptional circumstances, such as if there are manifest problems of a fundamental nature associated with the making of the particular foreign order, would a court be warranted in finding that the interests of justice
overrode the importance of Australia’s treaty obligations and international
comity. Clear and cogent evidence of such exceptional circumstances would
be required.[23][23] Applicant’s written submissions in reply, 3 December 2021, [17]c. In support of this last
[34] The respondents submitted that, if the scope of the interests of justice were so constrained by the section, then the section would continue to be an unconstitutional
fetter on the Court’s discretion and therefore invalid.
I considered it appropriate to adjourn the matter, after hearing the evidence, for notices pursuant to s 78B of the Judiciary Act 1903 (Cth) to be given to the Attorneys-General of the Commonwealth and the States. No Attorney-General sought to intervene in the proceeding. Nevertheless, the issue potentially remains for my determination,
depending on whether I find that the “interests of justice” are so constrained.
For the reasons discussed below under the heading “The scope of the interests of
justice”, I do not consider that the Court is constrained, in the manner for which the
applicant contends, in its approach to the question whether it would be contrary to the interests of justice to register the foreign order. Nothing in s 34A requires that there be exceptional circumstances before a court could find that registration of a foreign order would be contrary to the interests of justice. However, as I conclude below, the authorities indicate that, in considering that question, the court must not be too eager to criticise the standards and procedures of foreign courts.
Nor do I consider that a party (whichever has the burden of proof) must demonstrate to the Briginshaw standard that registration is or is not contrary to those interests. That standard applies to the proof of allegations of particular seriousness or unlikelihood, or where the proof of a matter will have particularly grave consequences. The consideration, as a matter of principle, whether to take a particular step would be contrary to the interests of justice is not generally a matter falling within those or similar descriptions.[24] Rather, the court must take into account all matters relevant to that question, including the nature and clarity or otherwise of the evidence, and must determine the question having regard to the ordinary meaning and scope of
[24] Although some aspects of a court’s consideration of the issue in a particular case may require proof
the term “the interests of justice” (as that term is understood in Australian
jurisprudence) and, subject to specific exceptions, on the ordinary balance of
probabilities.
Indeed, it is not a question of the interests of justice “overriding” the importance of
Australia’s treaty obligations and international comity. As I discuss below, the Act is
clear that those matters are high priorities, but they are all subject to whether the registration of a particular foreign judgment would be contrary to the interests of justice. In other words, the interests of justice are specifically not to be subservient to the other interests that are the subject of the Act.
In the circumstances, there is no scope for s 34A to contravene the Constitution and it is unnecessary to consider that proposition any further.
Burden of Proof
Section 34A(1) states that a court with proceeds jurisdiction must register a foreign order when an application is made to do so, unless the court is satisfied that it would be contrary to the interests of justice to do.
[41] The respondents contend that this should be read as placing the burden on the Commissioner, as the proceeds of crime authority, to satisfy this court that it would not be contrary to the interests of justice to register the order. The respondents submit that, as the Commissioner is the party bringing the application, he bears the onus of proving each of the elements of s 34A(1), being:
(a) the existence of the foreign order; (b) the authorisation for the proceeds of crime authority to apply for the registration of that order; and (c) that it would not be contrary to the interests of justice to register that order.
They also rely on the fact that this application is one that, under s 34A(3), can proceed without notice having been given to the persons the subject of the foreign order if the proceeds of crime authority requests the court to do so.[25] In such a case, they submit, the court would need to be satisfied that it would not be contrary to the interests of justice to make the order and the applicant would be obliged to inform the court of any matters that might render registration contrary to those interests. While the respondents accept that the content of such an inquiry can be affected by submissions made by affected parties, whether or not they become proper respondents to any application, there is no provision for the transfer onto a respondent of any onus to prove anything.
[25] Curiously, s 34A(3) does not provide any potential bases for deciding whether to accede to such a request, though it is likely the more general rules concerning when an ex parte hearing is justified would apply to any such application.
The respondents rely on the decision in Vines v Djordjevitch,[26] a decision about whether terms of a Victorian provision relating to motor vehicle injury proceedings against a nominal defendant placed the onus of proving certain facts on the plaintiff as a condition precedent to the action. In that decision, the High Court identified that
[26] (1955) 91 CLR 512, 519.
in some situations it may be “sufficiently clear” from the statutory provision that all
of the conditions that give rise to the right or liability must be found to exist prior to anybody obtaining such a right or incurring such a liability. In such a situation, the onus would be on the party seeking to establish the right or liability, as the party bringing the case.
On the other hand, the Court in Vines went on to say that a condition may be such that it provides for a special ground of excuse or justification depending on new or additional facts, independent of any right or liability arising under the general provision. In that case, the burden of proving the special exception would, naturally, fall upon the party seeking to rely upon that exception.
The respondents, in essence, submit that s 34A(1) falls into the first category from Vines and the qualification in the last phrase of that section is not some kind of exception from the normal course.
The respondents also submit that the Commissioner, being the party in contact with the foreign jurisdiction and thus best positioned to obtain evidence about the procedures used in each case, should bear the onus, from a practical point of view, of proving that the procedure undertaken by the foreign court in considering the case before it conformed with the interests of justice as they are construed in Australia.
The Commissioner contends that this construction does not accord with the language of the provision, nor with the view taken in Commissioner of the Australian Federal Police v Ortmann.[27] The Commissioner, in essence, submits that the provision falls within the second category from Vines. While the Commissioner accepts that he would have a heightened duty of candour should the application be heard ex parte, this does not amount to placing on him, as applicant, a burden of proving that the exception to the general proposition does not apply. It would be a strained interpretation of s34A(1) to read it as requiring the applicant to prove a negative
[27] (2021) 360 FLR 123, [3] (Adamson J). It is relevant, though, that the defendant in that case agreed that he had the onus of proving that registration would be contrary to the interests of justice: [3].
proposition - namely, that “it would not be contrary to the interests of justice” - to be
entitled to have the court register the order.
I agree with the Commissioner. From a basic construction point of view, the phrase
“unless the court is satisfied it would not be in the interests of justice to do so” seems,
relatively clearly, to establish the relationship between the two propositions described in the section. If the court is satisfied that it would not be in the interests of justice, then it must not register the foreign order. If it is not satisfied of that situation, then it must register the order. To read the provision otherwise would, in my opinion, go against its plain and ordinary meaning. If Parliament had intended the provision to operate as the respondents contend, the proviso might have been expressed as,
“provided that the court is satisfied that it would not be contrary to the interests of
justice to do so.” That would more clearly place the onus on the applicant to satisfy
the court of the proviso.
As the High Court said in Vines, if the Act -[28]
[28] (1955) 91 CLR 512, 519-520.
expresses an exculpation, justification, excuse, ground of defeasance or exclusion which assumes the existence of the general or primary grounds from which the liability or right arises but denies the right or liability in a particular case by reason of additional or special facts, then it is evident that such an enactment supplies considerations of substance for placing the burden of proof
on the party seeking to rely upon the additional or special matter … .
In my view, this description directly applies to the proper construction of s 34A. The question whether it would be contrary to the interests of justice to register a foreign order arises only once the primary conditions for registration have been demonstrated to the court by the applicant for registration. The respondent to such an application may seek to persuade the court that, notwithstanding that the primary conditions for registration have been demonstrated, it should deny registration because of the existence of the additional fact that to do so would be contrary to the interests of justice. The respondent bears the onus of demonstrating that additional fact.
This construction is supported, if it be necessary to obtain support, by the explanatory memorandum for the Bill which, in explaining this section, said:[29]
[29] Mutual Assistance in Criminal Matters Amendment (Registration of Foreign Proceeds of Crime
The provision will maintain a presumption in favour of registering the foreign proceeds of crime order by providing that the court must register the order, unless satisfied that it is contrary to the interests of justice to do so. This
presumption reflects the overall objective of the … Act to enable Australia to
assist other countries effectively and expeditiously with direct enforcement of
foreign orders made in respect of benefits derived from criminal activity.Consistent with principles of statutory interpretation, as set out in section 15AA of the Acts Interpretation Act 1901, in interpreting what might be
‘contrary to the interests of justice’, judges are able to take account of the
purpose of the Act and Subdivision A of Division 2, Part VI in particular. The objective of the Subdivision, as confirmed by [s 33A], is to facilitate international cooperation in the recovery of property through the registration and enforcement of foreign orders in Australia. In considering what might be
‘contrary to the interests of justice’, an Australian court should not consider
issues surrounding the validity of the foreign order. Challenges of this nature should be left to the issuing foreign court to consider as the most appropriate forum.
[52] Finally, the explanation for the introduction of s 33A is also relevant to the construction of s 34A(1). The explanatory memorandum said, concerning s 33A:[30]
[30] Explanatory Memorandum, Item 5 – Object of Subdivision A Division 2, Part VI.
The new object clause and the clause stating the intent of Parliament are designed to ensure that when interpreting the provisions in the Subdivision, courts will have due regard to the overall objective of the Subdivision which is to give effect to foreign orders in situations where property related to serious foreign offences is located in Australia. It is not the intention of the regime in Subdivision A that issues relating to the validity of the foreign order be considered by Australian courts. These matters are most appropriately dealt with by the foreign court (either at the time the order is issued, or on application for review of the order).
As such, for the purposes of subsection 34A(1) (as amended by item 6), a court should have due regard to the overall objective of the Subdivision and the
intent of Parliament when considering when it would be ‘contrary to the
interests of justice’ to register a foreign order.It should not, in determining whether registration of the foreign order is contrary to the interests of justice, examine the validity of the foreign order.
This is consistent with the principle of international comity and recognises the fundamental importance of reciprocity in international cooperation in criminal matters.
Thus the overall intention remained, clearly, that a court would ordinarily register a foreign order, but could refuse to do so only in a particular circumstance. This intention is relevant, in my view, to the propositions I am now considering.
The effect of the provision is that an applicant does not need to prove to the court that it would not be contrary to the interests of justice to register the foreign order. Of course, if an application was made ex parte or there was no contradictor, the
applicant’s legal representatives would be obliged to draw to the court’s attention
anything known to the applicant that might give rise to a credible submission by the respondent that it would be contrary to the interests of justice to register the order. But the applicant need not positively prove the contrary. This is because, in the absence of proof, the court will not have been satisfied of anything in relation to the interests of justice. It does not need to be. While a prudent applicant may still provide such submissions to allay any fears the court may have about the interests of justice, there is nothing on the face of the legislation preventing registration in the absence of proof of the negative proposition.
This construction of the section is also supported by the former common law position concerning the recognition in Australia of foreign judgments, which was considered by the Federal Court of Australia in 1999.[31] In that decision, Tamberlin J adopted a
[31] Stern v National Australia Bank Ltd [1999] FCA 1421, [133].
passage from Professor Nygh’s book, Conflict of Laws in Australia, in which the
author identified the conditions that must be satisfied by an applicant for the recognition and enforcement of a foreign judgment. The author said that the onus of establishing the existence of those conditions was on the party seeking to rely on the foreign judgment.
Once that onus is satisfied, the judgment is prima facie entitled to enforcement as a valid obligation, unless the defendant can establish one or more of the recognised defences to the enforcement of a foreign judgment.[32]
[32] Nygh, Conflict of Laws in Australia (6th ed, 1995), p 137.
In drafting s 34A, Parliament appears to have intended that similar onuses of proof attend that section.
This construction of the section also better achieves the object of the subdivision of
the Act in which s 34A appears,[33] as well as that of providing the “widest measure of mutual assistance” under the Treaty, than the construction for which the respondents
[33] Section 33A(1): “to facilitate international cooperation in the recovery of property…”.
contend. The explanatory memorandum for the Bill introducing the amendment clearly stated that there is a presumption in favour of an applicant in registration matters. The objects of international comity and cooperation in criminal and related matters are better served if the applicant is not required, for every single application,
to bear the burden of proving the negative proposition advanced in the respondents’
interpretation. This is particularly so given that the applicant is now required, by virtue of s 34A(2), to notify any affected persons of an application being made under this section. If such a person wishes to contest the application, the person may do so, but bears the burden of proving the exception to the general obligation of the court to register the foreign order in the primary circumstances described in the section.
Nor do I consider that there is merit to the contention that the applicant would be better placed to consider and to demonstrate the interests of justice. It is more likely, in any
given case, that the respondent will be aware of facts that, in the respondent’s
particular case, may make it contrary to the interests of justice to register the foreign
order. Indeed, that is what the respondents have attempted to do in this case.[59] I am therefore satisfied that the respondents bear the burden of proving that
registration of the Hunan Court’s order would be contrary to the interests of justice.
Objections to evidence
In a preliminary hearing before the trial, I heard submissions about a number of objections to evidence of both parties. I ruled on most of the submissions, but I reserved some to the trial in order to determine the objections in the light of other evidence and submissions at trial.
The Commissioner has maintained his objections to a number of paragraphs of the
respondents’ affidavits. The respondents have now conceded some. The remaining
objections, the respondents’ responses to those objections and my rulings (and brief
reasons) are set out in the schedule to these reasons.
The scope of the interests of justice
In considering what might be considered “contrary to the interests of justice”, I must
keep in mind the ordinary principles of statutory interpretation. This includes the principle that the interpretation that would best achieve the object or purpose of an Act (and of the relevant section) is to be preferred to any other interpretation.[34] Similarly, discretionary powers must be read in light of the scope, purpose and subject matter of the legislation.[35] I have set out above the relevant objects stated in the Act and the Treaty.
[34] Acts Interpretation Act 1901 (Cth), s15AA.
[35] Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 39-40.
The Commissioner’s submissions
The Commissioner submitted that whether something is “contrary to the interests of justice” is informed by whether a step or process is “contrary to public policy”, but
the former is a more exacting test. The court should not undertake a species of merits or judicial review of the foreign order and should not be concerned with differences in the legal systems of Australia and the PRC. The statutory framework of the MACM Act and the analogy with the recognition in Australia of foreign judgments[36] strongly suggest that it will only be in exceptional circumstances, demonstrated to the Briginshaw[37] standard by clear and cogent evidence,[38] that this court would be
[36] I assume the Commissioner is referring to an analogy both with the common law and with the law under modern statutes providing for the registration of foreign judgments generally.
[37] (1938) 60 CLR 336.
[38] Briginshaw v Briginshaw (1938) 60 CLR 336, 362; applicant’s written submissions, 26 November
warranted in finding that the interests of justice override the importance of Australia’s
treaty obligations and international comity.[39]
[39] Applicant’s submissions in reply, 3 December 2021, [17].
The Commissioner gave examples of exceptional circumstances that may justify a court refusing to register a foreign order: they would include a foreign order obtained by fraud or if the mere filing of a claim was treated as conclusive evidence and the
foreign court acted merely as a “rubber stamp” in making the order. The respondents’
evidence does not meet the necessary standard of evidence that may demonstrate the propositions for which they contend, but constitutes uncorroborated assertions of politically motivated actions against them and generalised complaints about the manner in which the Chinese legal system operates, particularly in criminal cases.[40] No exceptional circumstances have been proved.
[40] The Commissioner submitted that criminal rights and procedures are not relevant in any event, as the proceeding in the Hunan Court was not criminal, but civil, just as proceedings for the confiscation of the proceeds of crime in Australia are civil.
[65] The Commissioner also submitted that the Attorney-General is vested with the primary responsibility of considering requests for assistance from foreign countries.[41] When a mutual assistance request is received, it is first considered by the Attorney- General or his delegate.[42] The Act gives the Attorney-General a critical role in authorising applications for registration and in deciding questions about recognised grounds on which Australia may or must refuse assistance. It provides that the Attorney-General must refuse assistance if, in his opinion, there are substantial grounds for believing that the request was made, relevantly, for the purpose of
[41] Act, ss 8 and 9; Treaty, article 4.
[42] I refer to the Attorney-General as male because, at the time the Commissioner was authorised to make this application, the Attorney-General was the Honourable Christian Porter MP and the present incumbent is, of course, the Honourable Mark Dreyfus MP.
prosecuting or punishing a person on account of the person’s political opinions.[43] It
[43] Act, ss 8(1)(a)-(ba) and 8(1)(c).
also allows the Attorney-General to direct the Commissioner to apply to a court for the cancellation of the registration of a foreign freezing order.[44] That can be done, for example, if the Attorney-General forms the view that a prosecution or other
[44] Act, s 34G(1)(b).
proceeding has occurred because of a person’s political opinions. The respondents
could have applied to the Attorney-General to revoke his authorisation of the applicant
to seek registration of the Hunan Court’s order, but they have not done so, instead
opposing this application.[45]
[45] As to the proposition in this last sentence, see [103]ff below.
Given these aspects of the statutory scheme, the words “contrary to the interests of justice” in s 34A(1) cannot bear their widest meaning. The court’s role is confined. It
cannot conduct a review of the law and facts to determine if the foreign order was justified or warranted under the foreign law; the fact that the legal system from which the foreign forfeiture order derives is different, perhaps in important respects, from
Australia’s legal system or forfeiture regime is not itself a reason for declining to
register a foreign forfeiture order; and to ask whether the foreign order would have been made by an Australian court under the POC Act or an equivalent Australian forfeiture law would be to ask the wrong question.
Finally, the Commissioner submitted that, as it is not the role of this Court to conduct
a review of the law and facts to determine if the Hunan Court’s order was justified or
warranted under Chinese law, it follows that, to the extent that the respondents seek to bolster the allegations of politically motivated investigation by denying factual
findings in the Hunan Court’s ruling, claiming that the incriminating evidence referred
to must have been concocted and leading contradictory evidence through their affidavits, this court should not attempt to determine whether the evidence before the
Hunan Court was sufficient to warrant the making of that court’s order. To do so
would be to inquire impermissibly into the merits of the order. It is even less appropriate to do so where, to make findings pertaining to the allegations of bribery and money laundering, this court would need to be provided with access to all of the evidence in the Hunan Court proceeding and that body of information is not available.[46]
[46] In line with the process prescribed by the Act and the Treaty, only limited information regarding the
[68] The Commissioner submitted that the principle of legality, upon which the respondents rely in part,[47] has little or no role to play in the light of the statutory scheme and its objects. The principle exists to protect from inadvertent and collateral alteration of rights, freedom, immunities, principles and values that are important in
[47] See [71] - [72] and [75] - [77] below.
Australia’s system of representative and responsible government. It does not exist to
shield those rights from being specifically affected in the pursuit of clearly identified
legislative objects.[48][48] Applicant’s written submissions in reply, 3 December 2021, [22].
Thus, the Commissioner submitted, this court’s role in considering the applicability
of the proviso to s 34A(1) is limited in those ways, as is the scope of the matters
relevant to determining whether the court is satisfied that the proviso applies.
The respondents’ submissions
The respondents submitted that the expressions “the interests of justice” and “contrary
to the interests of justice” take their meaning from their statutory context. The
expressions should not be narrowly defined. They empower the making of a “judicial
evaluation” of the relevant criteria discerned from the Act. They have been held to
incorporate, and do incorporate here, conceptions such as the public interest, the administration of justice, a fair trial according to law and the avoidance of injustice.[49]
[49] Respondents’ opening submissions, 2 December 2021, [18]-[19], citing R v Fardon [2010] QCA
The relevant statutory context is that the Act provides for a scheme that effects the expropriation of property. Therefore, the principle of legality guides the construction of expressions in the Act and, where there is a constructional choice, a construction should be preferred which advances the protection of property rights.[50] It is only
[50] Minister for Immigration and Citizenship v Haneef (2007) 163 FCR 414, [106]-[107].
where “the unambiguous effect of the words which the Parliament has seen fit to use”
would clearly overcome that principle of construction that it would not apply.[51] There
are no such words in the MACM Act.[51] Nintendo Co Ltd v Centronics Systems Pty Ltd (1994) 181 CLR 134, 146; Ex parte Miah (2001) 206 CLR 57.
The respondents went on to submit that the protection of private property rights is maintained in the statutory scheme, by the Act granting the court a broad discretion not to register a foreign order where it cannot be satisfied that it is in the interests of justice to do so, for any number of reasons that accord with that concept in Australian law.[52] The general words in the section permit the court to examine the process preceding and involved in the making of the order, the terms of the order and other relevant matters. Those matters include the opportunity of the respondents to participate in the process; the fairness of the process; whether it can be shown that certain interests were not considered or the wrong interests only were considered; whether the court considers that the evidence properly identifies that such an order should have been made, or there has been a vitiating error; or whether this court considers that the foreign order would not have been made by an Australian court under the POC Act or an equivalent Australian forfeiture law.[53]
[52] Respondents’ opening submissions, [20]. This assertion is clearly wrong. The court does not need
[53] Respondents’ opening submissions, [23].
Consideration
I start with the respondents’ proposition that this court can and should examine the
evidence and interests considered (or ignored) by the foreign court, whether that court made a vitiating error and whether an Australian court would have made such an order under equivalent Australian laws. I do not consider that those are relevant to the question before the court. The first two would be elements of determining whether the foreign order was valid: a question that the Parliament has expressly said it does not intend be examined by an Australian court.[54] The last is irrelevant. Any foreign order will have been made under the laws of that country. It is not a requirement of
[54] MACM Act, s 33A(2).
the Act, nor in determining the “interests of justice”, that the foreign order must have
been made under a law that is similar to Australian laws on the same or similar subject
matter.
However, the fairness of the process in the foreign court and the respondents’ right or
opportunity (or lack thereof) to appear or to be represented and properly and adequately to defend the case against them in that court are clearly matters that, when raised in a registration application such as this, are relevant to the consideration of the issue, for reasons discussed below.
I do not accept that the principle of legality operates to restrict the scope of the
provisions of the Act now under consideration, or the scope of this court’s inquiry.
To make it clear, that principle was described and discussed by the Full Court of the Federal Court of Australia,[55] which set out a number of judicial pronouncements about it, starting with the following from the United Kingdom:[56]
[55] Minister for Immigration and Citizenship v Haneef (2007) 163 FCR 414, 443-444, [111]-[113].
[56] R v Secretary for Home Department; ex parte Simms [2000] 2 AC 115, 131; quoted in Haneef, [111].
… the principle of legality means that Parliament must squarely confront what
it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual.
Similarly, in the High Court:[57]
[57] Coco v The Queen (1994) 179 CLR 427, 437; quoted in Haneef, [112].
The insistence on express authorization of an abrogation or curtailment of a fundamental right, freedom or immunity must be understood as a requirement for some manifestation or indication that the legislature has not only directed its attention to the question of the abrogation or curtailment of such basic rights, freedoms or immunities but has also determined upon abrogation or curtailment of them. The courts should not impute to the legislature an intention to interfere with fundamental rights. Such an intention must be clearly manifested by unmistakable and unambiguous language. General words will rarely be sufficient for that purpose if they do not specifically deal with the question because, in the context in which they appear, they will often be ambiguous on the aspect of interference with fundamental rights
In my view, the MACM Act is unambiguous in authorising the overriding of property rights of a person whose property has, to the satisfaction of a foreign court, been acquired with, or comprises, the proceeds of serious criminal offences. In those
circumstances, this court must register the foreign court’s order, so that it may be
enforced in this State, except in the limited circumstance that is provided in s 34A. Parliament has, by its clear and unambiguous words, shown its intention that, if that circumstance (that the court is satisfied that it would be contrary to the interests of
justice to register the foreign order) does not exist, the foreign court’s order must be
registered here, even though it interferes with property rights in this State.
In considering the interests of justice, I must have regard to Australian jurisprudence and principles concerning the meaning and content of those interests. While processes undertaken under Chinese law and concepts of justice are relevant to whether the interests of justice (as understood under Australian law) are met, any particular Chinese understanding or law on what amount to the interests of justice in the PRC is irrelevant. Not only is this the natural consequence of the fact that I am acting under Australian law, but also article 19, clause 4 of the Treaty makes this clear.
In R v Fardon, Chesterman J adopted what had been said by McKechnie J in TVM v The State of Western Australia and in cases referred to in the latter.[58] In particular, McKechnie J referred to the decision of the Full Court of the Family Court of Australia in Chapman v Jensen,[59] in which Nicholson J had said:
[58] R v Fardon [2010] QCA 317, [73]; TVM v Western Australia (2007) 180 A Crim R 138, [22]-[28].
[59] (1990) 100 FLR 66, 74.
In my view the expression ‘the interests of justice’ is not one which should be
narrowly defined … I do not think that it is a concept which courts should
find difficult to apply. The interests of justice will vary from case to case, and
I think that, in general, … a broad approach is the approach to be preferred.
McKechnie J went on at [28] to say:
The phrase ‘the interests of justice’ is not an expression capable of easy
articulation or explanation because it is conclusionary in its nature. Necessarily, a judge takes into account many factors before concluding where
the interests of justice may lie. The phrase ‘the interests of justice’ is devoid
of content except where it is given form by the particular facts and
circumstances of a case.Chesterman J, at [74], endorsed McKechnie J’s remark that the phrase is so general
and abstract that it takes on meaning only by a consideration of the particular facts
relevant to the particular matter before the court.
In one sense, these propositions are so broad as not to be particularly helpful. But it is clear that the phrase itself can encompass a large gamut of potential matters. It ought not be narrowly defined unless the relevant statute or its context limits it.
It is therefore clear that the requirements of the interests of justice must be determined and adapted as necessary by reference to the statutory framework governing the court or tribunal in question. Procedural fairness is one of the criteria encompassed by the interests of justice. As the High Court has said:[60]
[60] Kioa v West (1985) 159 CLR 550, 584-585.
What is appropriate depends on the circumstances of the case, including the nature of the inquiry, the subject-matter, and the rules under which the
decision-maker is acting … the expression “procedural fairness” more aptly
conveys the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case. The statutory power must be exercised fairly, i.e., in accordance with procedures that are fair to the individual considered in the light of the statutory requirements, the interests of the individual and the interests and purposes, whether public or private, which the statute seeks to advance or protect or permits to be taken into account as legitimate considerations.
So what can this court consider in determining whether it would be contrary to the
interests of justice to register the Hunan Court’s order?
Harking back to Tamberlin J’s decision in Stern v NAB,[61] his Honour considered a
[61] [1999] FCA 1421
number of cases and further comments of Professor Nygh in considering what was contrary to public policy. Perhaps of most relevance, his Honour set out the following from a judgment of Cardozo J in the New York Court of Appeals:[62]
[62] Loucks v Standard Oil Co of New York 224 NY 99 (1918), 111, quoted by Tamberlin J at [1999] FCA 1421, [141], with emphasis added by his Honour.
The courts are not free to refuse to enforce a foreign right at the pleasure of the judges, to suit the individual notion of expediency or fairness. They do not close their doors unless help would violate some fundamental principle
of justice, some prevalent conception of good morals, some deep rooted
tradition of the common weal.
Tamberlin J then concluded:[63]
[63] [1999] FCA 1421, [144].
The thread running through the authorities is that the extent to which the enforcement of the foreign judgment is contrary to public policy must be of a high order to establish a defence. A number of cases involve questions of moral and ethical policy, fairness of procedure, and illegality, of a fundamental nature.
That passage was cited with approval by the Full Court of the Federal Court of
Australia in a case in which the Court concluded that –
the primary judge was correct to reject the notion that merely because a different approach is taken to a common problem in an overseas jurisdiction, that difference renders such an approach contrary to public policy in Australia. The primary judge recognised at [102] that the authorities demonstrate the need to go further.[64]
[64] LFDB v SM (2017) 256 FCR 218, [43].
The Full Court in that case upheld the decision of Griffiths J, who had considered carefully whether the registration of a judgment of the High Court of New Zealand should be set aside because it was contrary to public policy. In that case, the New Zealand court had ordered that, unless the first appellant (LFDB) complied with an earlier costs order made against him, he be debarred from participating in the substantive hearing of the claim that led to judgment against him.[65] He did not pay the costs and was therefore prevented from participating in the trial.
[65] Referred to in the courts’ reasons as an “unless order”.
Griffiths J agreed with the proposition that a gross denial of procedural fairness could amount to a judgment being regarded as contrary to public policy. His Honour said:[66]
[66] LFDB v SM [2017] FCA 80, [102]. Emphasis in the original.
There is undoubtedly a high threshold to setting aside the registration of a judgment as contrary to public policy, but I see no sound reason for excluding from that concept a judgment obtained in circumstances involving a gross denial of procedural fairness according to relevant principles in this jurisdiction.
His Honour also quoted the following passage from reasons of Kirby P sitting in the New South Wales Court of Appeal:[67]
[67] Bouton v Labiche (1994) 33 NSWLR 225, 234.
The interests of comity are not served if the courts of the common law are too eager to criticise the standards of the courts and tribunals of another jurisdiction or too reluctant to recognise their orders, which are, and remain,
valid by the law of the domicile …
Nevertheless, the courts of the common law … have reserved to themselves
the right to refuse to recognise decrees and orders of foreign courts and
tribunals … where:
(a) the order impugned offends against local ideas of substantial justice … ;
or
(b) the decree or order has been obtained in the foreign court or tribunal
contrary to the requirements of procedural fairness or natural justice … .
In the Full Court’s decision in LFDB, the Court observed that:[68]
[68] 256 FCR 218, [37].
it is natural, and to be expected, that different jurisdictions (including those countries with whom we have a close connexion and a shared legal heritage) adopt different solutions to the same problems without those different
solutions “suffering the ignominy of being described as contrary to public
policy”: see De Santis v Russo (2001) 27 Fam LR 414 at [18] per Atkinson J.
These and other decisions to similar effect are discussed by the authors of the latest
edition of Professor Nygh’s seminal work in this field of law, in which they conclude
that:[69]
[69] Davies et al, Nygh’s Conflict of Laws in Australia (10th ed, 2020) (Nygh 2020), [40.79].
The trend of authority supports the proposition that the public policy ground
for refusal of enforcement should be narrowly confined. … The offence
against Australian public policy should be profound before refusal to enforce
is warranted.Of course, those cases dealt with the question whether the registration of a foreign
judgment was “contrary to public policy”: a, perhaps subtly, different question to
whether it would be “contrary to the interests of justice” to register such a judgment
or order. Many parallels can be drawn between the two concepts, but they are not
identical.
I do not accept the Commissioner’s submission that the interests of justice may be a
higher or more onerous test than public policy. If anything, the interests of justice are only one element of Australian public policy. However, in determining whether it would be contrary to the interests of justice to enforce a foreign order, some similar considerations arise. In particular, under Australian law it is inherent in the interests of justice that, before a court makes an order that affects a person, that person ought ordinarily have a right and full opportunity to appear or to be represented at the
hearing and be allowed to present the person’s case against any proposed adverse
orders and that the decision maker be impartial. If such an order is made in a person’s
absence, ordinarily the person would be afforded a right to apply to have it overturned. In other words, procedural fairness is an essential element of the interests of justice. It is likely, although perhaps not inevitable, that it would be contrary to the interests of justice for an Australian court to enforce a foreign order made in the absence of substantive procedural fairness.
The scope of the interests of justice was recently considered, in an entirely different context, by the High Court.[70] There, the question was, in short, whether it was in the interests of justice for a court to order that the respondent disclose to the applicant evidence that tended to prove that the respondent had committed an offence against an Australian law. The plurality considered that evaluating the interests of justice for the purpose of the relevant section in that case involved balancing the public interest in disclosure of the information against the potential detriment to the respondent that arose from the tendency of the information to prove that he had committed an offence.[71]
[70] Deputy Commissioner of Taxation v Shi [2021] HCA 22; (2021) 95 ALJR 634.
[71] [2021] HCA 22, [12] (Keifel CJ, Gageler and Gleeson JJ).
Gordon J said that what the interests of justice require in a particular case is to be weighed having regard to the proceeding in which the question arises. The factors to be balanced in determining whether the interests of justice required the information to be disclosed were not and could not be prescribed but may include the nature of the information, the likelihood of an offence being prosecuted and any resulting unfairness to a party.[72]
[72] [2021] HCA 22, [41], [43]. The plurality generally agreed with her Honour’s reasons.
In order to consider whether registration of the Hunan Court’s order would be contrary
to the interests of justice in this case, it is necessary to determine what those interests require in the context of the legislation and the facts of this case and then whether it would be contrary to those interests to register the order. It is necessary to balance:
(a)
the public interest, particularly in international comity (particularly between Australia and the PRC in this case), the objects of the Act and the requirements of the Act and the Treaty; against
(b) the potential detriment to the respondents if the Hunan Court’s order is registered here, particularly involving, as it would, the expropriation of the
respondents’ property in this State; and
(c) in particular, whether the Hunan Court’s order was made in circumstances that did not effect justice between the parties (particularly to the respondents) in that
court’s proceeding, or the respondents had not been afforded natural justice or
procedural fairness, in a significant way, in that proceeding.
I accept that the mere facts that there are differences in the legal systems of Australia and another country (such as the PRC) and that the foreign processes include or exclude steps that are often, or generally, considered important in Australian legal systems in order to do justice between the parties do not, of themselves, mean that it would be contrary to the interests of justice to register a foreign order. An application for registration must not become a critique of foreign law and legal systems. Nor, if an Australian court found that it would be contrary to the interests of justice, in Australian terms, to register a foreign order, would that finding of itself constitute a
criticism or denouncement of the foreign country’s systems. It might be a reflection
of the fact that the two countries do have different legal systems and philosophies, or
it might simply reflect a significant defect in the manner in which the foreign country’s
law or procedures had been followed in the particular case. Recognition and the application of such differences is, indeed, reflected in the very question with which I am now concerned: there is a primary obligation to register a foreign order, but whether that obligation is overcome is informed by the interests of justice in Australian terms.
The manner in which the decision to make the foreign order was reached and whether the respondents had a realistic opportunity to oppose the Hunan Court making such an order are matters relevant to the question whether it would contrary to the interests of justice to register the order. Australian concepts of the interests of justice are most relevant in determining that question. I do not consider that the objects of the Act and the subdivision operate to limit the meaning or scope of the matters that this court can consider in determining whether it would be contrary to the interests of justice to register a foreign order.
[100] It is necessary, therefore, to consider whether there is any reason, arising from the laws and systems of the PRC or the process followed in this case under those laws and systems, that would make it contrary to the interests of justice to register the Hunan
Court’s order in Australia. I stress, however, that, in doing so, this court cannot
consider the evidence that was before the Hunan Court and whether that court reached
a correct decision according to Chinese law.[101] The particular issues raised here, which now fall for consideration, are whether the
application in the Hunan Court related to a political offence or the respondents’
political opinions; whether the Hunan Court made its decision independently of the prosecutorial body (the procuratorate), the executive of the PRC or any other person or body (particularly, in this case, the Chinese Communist Party (CCP or the Party); and whether the procedures under PRC law utilised by and in the Hunan Court proceeding were so fundamentally unfair to the respondents that this court should not recognise and register the order that is the outcome of those procedures because to do so would be contrary to the interests of justice as understood in Australia.
[102] First, however, it is necessary to address another issue raised by the Commissioner.
No application by respondents to Attorney-General
[103] As the Attorney-General has power to authorise this application, he has the power to revoke such an authorisation.[73] Indeed, he has power, after a foreign order is registered, to direct the Commissioner to apply to the court to cancel that registration.[74]
[73] Acts Interpretation Act 1901 (Cth), s 33(3).
[74] MACM Act, s 34G.
[104] As I have recorded above, the Attorney-General is required to refuse a request for assistance under the Act if, among other things, there are substantial grounds for believing that the request relates to the alleged commission of a political offence or that it was made for the purpose of causing prejudice to the respondents on account of their political opinions.[75]
[75] MACM Act, s 8(1)(ba), (c).
The respondents rely, in part, on a submission that the proceeding in the Hunan Court was brought against them because Mr Peng refused to report to the CDI any corrupt conduct of his colleagues (which, he says would be a false report, as he found no evidence of corrupt conduct). He submits that this court should infer that the investigation of him and Ms Jia, the allegations against them and false evidence provided to and accepted by the Hunan Court were motivated because of his refusal to accuse others. The CDI is effectively controlled by the CCP and therefore the Hunan Court proceeding was conducted and its ruling was made on account of his
political opinions in not acceding to the CDI’s proposed course of conduct.
[106] The Commissioner submitted that the respondents could have, but did not, apply to the Attorney-General to revoke the authorisation to the Commissioner to make this
application, on the ground that the Hunan Court’s decision was in relation to an
alleged political offence or was made for the purpose of causing prejudice on account
of the respondents’ political opinions. The Commissioner submitted that the absence
of any such application tends against acceptance of the respondents’ argument that
registration would be contrary to the interests of justice.[76]
[76] Applicant’s opening written submission, 26 November 2021, [44]-[48].
[107] With respect, I do not consider these matters to be relevant to whether it would be contrary to the interests of justice to register the order. That is a different issue to the issues to which the Attorney-General must or can have regard in making or withdrawing an authorisation. He is not entitled to consider whether such an application, or the registration of an order made in such an application, would be contrary to the interests of justice. That question has properly been left to this court. In this court, the respondents have an opportunity (which they did not have before the Attorney-General authorised the Commissioner to make this application and which would not be relevant to any application to withdraw that authorisation) to demonstrate that proposition, based on a potentially far wider enquiry than is relevant to any decision of the Attorney-General.
[108] Nevertheless, as the question has been raised by the respondents, it is still necessary to consider whether the respondents have satisfied me that the order was made in order to cause prejudice to them on account of their political opinions. If it was, that would be a material factor in determining whether it would be contrary to the interests of
justice to register the Hunan Court’s order
Did the application for the foreign order relate to a political offence or opinion?
The standard of proof
[109] The respondents contend that one reason why it would be contrary to the interests of justice to register the foreign order is that the application in the Hunan Court and the investigation that preceded it were made, in effect, for the purpose of punishing and otherwise causing prejudice to the respondents on account of their political opinions:
namely, Mr Peng’s view that he should not fabricate evidence of corruption by other
persons simply to satisfy or support a political vendetta against those persons by the CCP through the CDI. Another possible political reason foreshadowed by Mr Peng
[271] I do not consider that the circumstances in which confiscation orders may be made without notice, in proceeds of crime cases here and overseas, mean that, in the particular circumstances of this case, it is necessarily not contrary to the interests of justice to register a foreign order that was made without notice to the respondents.
Where the Court must register the foreign judgment unless it is satisfied that it would be contrary to the interests of justice to do so, in my view it must have regard to the circumstances in which the foreign order was made, including whether the respondents were afforded natural justice and had the right and a real opportunity to be heard before the foreign order was made.
[273] Here, the respondents had no notice of the confiscation proceeding in the Hunan Court. Had they been given notice and afforded an adequate opportunity to appear, to test the evidence of the procuratorate and to give evidence themselves (even by video link), the Hunan Court would have had the opportunity to consider their evidence in making its decision. That evidence is likely to have been similar to (although possibly in greater detail than) their evidence in this proceeding, by which they sought to demonstrate that:
(a) it was not possible, given the manner in which tenders were awarded and Mr Peng’s role in that process, for Mr Peng to have influenced the process in
any way and therefore there was no sense in any person seeking to persuade or
reward Mr Peng for awarding tenders to particular companies;
(b)
the evidence relied on by the procuratorate, particularly that of the witnesses, was false;
(c)
the alleged bribes were not in fact paid to them and, possibly, some of the assets the subject of the application were not theirs;
(d) the sources and amounts of the respondents’ legitimate income and capital assets over the years enabled them to acquire the assets the subject of the
confiscation application; and(e)
they were not aware that there was any prohibition on them investing in assets in other countries and, for that purpose, transferring substantial funds to other countries and, indeed, they were advised to the contrary.
[274] As to the latter two propositions, the Commissioner contends that their evidence to this court was woefully inadequate and was not supported by any independent evidence. I accept that it is far from sufficient to prove or to explain those matters
fully. Indeed, on the evidence before this court as to the respondents’ income and
investments over a long period, there seems little prospect that they could have acquired assets in the amounts and to the values of those said by the Hunan Court to
be owned by the respondents (assuming that they are in fact the respondents’ assets).
But that does not mean that, if the respondents had had a proper opportunity to give and call evidence with sufficient access to their records in China, they could not have provided far greater detail and, perhaps, have satisfied the Hunan Court that the case against them should not succeed, either wholly or in part.
[275] In my view, therefore, the failure of the Hunan Court or the PRC authorities to give the respondents notice of the confiscation proceeding and the opportunity to place evidence before the Hunan Court and to test the other evidence involved a significant
lack of procedural fairness in the process leading to the Hunan Court’s order. It could
well have prevented the respondents disproving part or all of the procuratorate’s case
against them (if, as the Commissioner contends, the court would have acted independently and considered all the evidence in an unbiased manner). It is
particularly significant given the reasoning of the Supreme People’s Court, in
providing for absconding criminal suspects to have a right of appearance, that such a
right was necessary “for the purpose of improving the efficiency of overseas
assistance in the execution of confiscation rulings” and “in order to smoothly promote
the efficiency of overseas assistance in implementation.”[196]
[196] See [194] above.
It is also relevant that the respondents had no right to appeal the Hunan Court’s order.
Nor do they have any right to apply to have the order set aside and the case reheard on the grounds that they were not aware of the proceeding and did not have the opportunity to oppose the application. The absence of those rights is also significant in the denial to the respondents of appropriate procedural fairness.
[277] Subject to the question whether the respondents chose to absent themselves from the Hunan Court proceeding, all these matters lead me to the conclusion that the process undertaken by the Hunan Court led to a denial of procedural fairness and natural justice in fundamental respects according to relevant Australian principles.
Self-inflicted absence from Hunan Court?
[278] The Commissioner contends that the respondents chose not to be represented in the confiscation proceeding before the Hunan Court, but to remain overseas. They knew about (or were wilfully blind to) the proceeding and took no steps to be there or to be represented. They did not apply to the Attorney-General for an opinion supporting their right to be represented. Far from taking any such steps, they sought actively to hide their whereabouts from the Chinese authorities. Therefore, their failure to present any defence to the forfeiture application in the Hunan Court was of their own making. In the circumstances, it would not be contrary to the interests of justice to register that
court’s order.
Counsel for the Commissioner relied, as similar examples of a defendant being denied
the opportunity to be heard by the defendant’s choice of action, on LFDB v SM and
Ortmann. I have already described the circumstances of LFDB. In Ortmann, in which Adamson J was considering the application of s 34A of the MACM Act, Mr Ortmann had been indicted in Virginia, USA, charged with conspiracy to commit money laundering and other serious offences. The indictment sought forfeiture of his assets around the world, including the proceeds of bank accounts in Australia. He was arrested in New Zealand and opposed his extradition to the USA. Under Virginia law, a person can be disallowed from defending a claim for civil forfeiture if, having been given notice of a warrant for his or her arrest, the person declines to re-enter the USA
in order to avoid prosecution. A forfeiture order was made in the defendant’s absence in reliance on that provision. He contended that the “doctrine of fugitive disentitlement” (as the law was referred to) was contrary to the requirements of natural
justice or procedural fairness recognised by Australian law. The judgment had been ordered without his participation and that amounted to a denial of procedural fairness.
Adamson J found to the contrary. Her Honour concluded that, in the case before her, as in LFDB, the defendant was not entitled to be heard by the foreign court because of a circumstance of his own making. For the reasons of the Full Court in LFDB, that was not sufficient to amount to a circumstance making registration of the order contrary to the interests of justice.
[281] The Commissioner here contends that the respondents, knowing of the freezing order and that a proceeding for forfeiture of their assets was on foot or was likely to follow, deliberately refrained from returning to China, or instructing someone else to appear as their agent, to oppose the application in the Hunan Court. They had six months after notice of the proceeding was advertised to apply to be represented, yet they did nothing to be represented in that time. They had previously come to know about the freezing order and its registration in Queensland and they had instructed Australian lawyers to represent them here. Yet they took no steps to instruct lawyers in China to advise and represent them there. Therefore their lack of participation in the Hunan Court proceeding was a result of their own deliberate choices and a consequence of their own making.
[282] I disagree. The respondents’ position here is distinguishable from each of LFDB and
Ortmann. First, in each of those cases, the defendant had lost any right to appear in the relevant foreign court to dispute the claim against him as a consequence of steps deliberately taken, or not taken, by him. In this case, the defendants did not lose an entitlement to be represented in the Hunan Court simply because they chose not to return to China. They were entitled to apply for leave to be represented by an agent
ad litem, although whether they were given leave would have been within that Court’s
discretion.
[283] Secondly, and more importantly, in each of those cases the defendant was aware of the foreign court proceeding, but deliberately took a step that disbarred him from a right to defend that proceeding. I have found that the respondents did not know that the confiscation proceeding was on foot. Had they known, they may well have sought leave from the Hunan Court to be represented in the proceeding. Certainly, when they
were served with this Court’s order registering the freezing order and when they were
later served with this application, on each occasion they obtained legal representation in this country. There is no reason to believe that they would not have sought representation in the Hunan Court proceeding had they known about it. They were prevented from participating in that proceeding because they did not know about it. They did not know about it because no efforts were made by the Chinese authorities to inform them of it, notwithstanding that their whereabouts, or at least their contact details, were known.
[284] Therefore I am not satisfied that the respondents deliberately chose to ignore the Hunan Court proceeding and not to participate in it.
Conclusions
In my opinion, with all due respect to the Hunan Court and notwithstanding the objects
of the Act and the relevant subdivision and the government’s obligation in Article 1
of the Treaty to grant the PRC the widest measure of mutual assistance in relevant matters, I consider that it would be contrary to the interests of justice to register the forfeiture order in Queensland. In summary, this conclusion arises from the following matters:
(a)
most importantly, the respondents were not served with any notice of the Hunan Court proceeding, even though their whereabouts or contact details were known, at least to the Commissioner as representative of the Chinese authorities in the application for registration of the freezing order; therefore they had no real opportunity to contest the application in that court;
(b)
even if they had had notice of the proceeding, there is some doubt whether they would have been given leave to be represented, as they would first have had to obtain an opinion from the Attorney-General (and, perhaps, opinions from authorities in the other countries where they have assets) supporting their right to be represented in the Chinese proceeding and, in any event, whether they
would be entitled to representation was entirely within the Hunan Court’s
discretion;
(c) it is not clear that, even if they had been given leave to be represented, they would have been given adequate notice of the case against them by, for example, being provided a full brief of the evidence on which the procuratorate relied and a reasonable opportunity to gather their own evidence to counter that of the procuratorate; (d) the absence of any right to appeal from the Hunan Court’s order, or to apply to set it aside because it was made in their absence; and
(e)
therefore the respondents were not afforded natural justice or procedural fairness in the Hunan Court proceeding.
Orders
[286] I shall therefore refuse the application for registration of the Hunan Court’s order.
[287] I consider that I should also set aside the freezing order made by Judge Jarro. The parties agreed that that would be appropriate if I were to refuse this application. However, that order will not become operative until after the expiration of the time for any appeal and the conclusion of any appeal from my order.
[288] The parties also accepted that costs should follow the event. I shall therefore also
order that the applicant pay the respondents’ costs of the proceeding from the date that
the application for registration of the foreign confiscation order was filed.
Schedule – objections to evidence
| Evidence | Objection | Response | Decision |
| First Peng affidavit | |||
| [81]-[86] | Hearsay. Not within deponent’s | Personal knowledge; source of | Objection overruled. Allowed as |
| knowledge. Source of information | information disclosed in third Peng | evidence of things said to Mr Peng | |
| not disclosed. | affidavit. Not relied on for truth of | that led to his state of mind | |
| matters said, but as to deponent’s | described in [87], relevant to why | ||
| state of mind (T2-29 – 2-30, | he left China. | ||
| 23.11.21). |
| [126] 2nd sentence | Deponent’s | belief | irrelevant; | Non-hearsay purpose of proving | Objection overruled. Relevant to |
comprises submission. that deponent is in financial why the respondents will not return distress. Also to his belief and why to China and to whether they knew he won’t return to China (T2-38 – of the confiscation proceeding. 2-39, 23.11.21) (Similar to [148]-[150] chapeau, to
which objections were not made.)
Second Peng affidavit
| [7](c) | Speculation; not within deponent’s | 2nd | sentence | is | personal | Objection | to | 2nd | sentence |
knowledge. knowledge. Balance not pressed. overruled, as personal knowledge.
1st and 3rd sentences struck out.
| [61](g), exhibits XP-N and XP-O | Hearsay; not within deponent’s | Non-hearsay purpose of attesting | Objection upheld. Hearsay that |
| knowledge. | that named persons were involved | cannot prove that the persons were | |
| and accused. | accused or involved. Also irrelevant. | ||
| Third Peng affidavit | |||
| [34] chapeau | Grounds of objection not clearly | Personal knowledge. | Objection upheld. Purports to |
| stated, but appear to be relevance | explain Mr Peng’s knowledge of | ||
| (T2-42 – 2-45, 23.11.21). | Chinese court systems, to explain his beliefs stated in 1st Peng affidavit [150](a). Does not demonstrate relevant experience. | ||
| Second Jia affidavit | |||
| [4](b)(iv) | Speculation. | Non-hearsay purpose of attesting | Objection upheld. Belief is |
| that Jia was allowed to depart | irrelevant. (Similar to 2nd Peng | ||
| affidavit [7](c) 3rd sentence.) | |||
| China. |
Province, PRC (3 January 2020) (English translation): TB[11].
amount of bribes allegedly received by the respondents over about six years was the equivalent of
about A$51,000,000 (depending, of course, on the exchange rate – in my conversion to Australian
dollars I have used a rate applying at about the time at which I heard the evidence).
Orders) Bill 2011, Explanatory Memorandum, Item 5 – Object of Subdivision A Division 2, Part VI
(p 6).
treaty was made on 3 April 2006 and is reproduced in schedule 1 to the regulation (the Treaty).
proposition, the applicant referred to Briginshaw v Briginshaw (1938) 60 CLR 336, 362 per Dixon J.
to that standard. For example, see [110]-[111] below.
Orders) Bill 2011, Explanatory Memorandum, Item 6 – amendment to subsection 34A(1). Emphasis
in the original.
2021, [43].
facts and evidence forming the basis for the Hunan Court’s order, primarily being the information set
out in that court’s ruling, has been provided.
317, [74]; TVM v The State of Western Australia (2007) 180 A Crim R 183; Re Corruption and Crime Commission; Ex parte West Australian Newspapers Ltd (2007) 174 A Crim R 325, [29].
to be satisfied that it would be in the interests of justice to register the order, but that it would be
contrary to those interests to do so.under the CCP: “Xi Jinping was in supreme command … there would be no transparency or public
accountability in the drive against corruption and few of the trappings of due process that had been trialled in the Reform Era. Xi and his team implicitly associated corruption with the earlier Reform
agenda.”
Similarly with Mr Peng’s assertion that “confessions” and “witness statements” referred to in the
Hunan Court’s decision were extracted by torture or other illegitimate means: “earlier partytechniques of secret detention, torture and forced confessions were now legitimate state methods for
law enforcement by police, procurators and courts.”
Fitzgerald, J, Cadre Country: How China Became the Chinese Communist Party (UNSW Press,
2022), 212. For the latter proposition, Fitzgerald cites an article by Zhong Sheng published in thePeople’s Daily on 19 March 2018, “China’s New Reforms to fuel Anti-Corruption Campaigns,” but I
consider that the article provides no support for the proposition.
Indeed, counsel for the Commissioner submitted that their evidence to this court was so inadequate should not accept, in particular, their evidence about their lack of knowledge of the confiscation proceeding.
China appear, from the Hunan Court’s ruling, to be worth about A$22,000,000 and their overseas
assets, according to their own evidence, are worth about $6,400,000 (in both cases not taking into
account any loans secured by - and used to acquire - the assets). They did not challenge the HunanCourt’s description of the assets they were said to own.
Journal of Law and Society 19. Those parts of the article that were put to Dr Godwin (the abstract, the introduction and the conclusion) are exhibit 2.
October 2017):
html, Articles 67(12), 67(13), 101. The Constitution itself was not placed in evidence during the
hearing. However, Dr Godwin referred to it (paraphrasing it) without objection. The copy to whichI refer is from the website of the National People’s Congress of the PRC and is consistent with
Dr Godwin’s evidence, to the extent that he referred to it. If it had been tendered in evidence, it
would have been admissible under s 68(f) of the Evidence Act 1977. My references to it do not alter,
but support, my views derived from the evidence led in the hearing before me.Several Issues concerning the Application of the Confiscation Procedures for Illegal Income in a
Case Where a Criminal Suspect or Defendant Escapes or Dies, No 1 [2017] of the Supreme People’s Court, effective 1 May 2017 (Confiscation Provisions) - and exhibit 8 – Criminal Procedure Law of
the People’s Republic of China, 26 October 2018 (Criminal Procedure Law). Although this copy
is from 2018, Professor Lewis said there were no relevant changes apart from renumbering the
provisions on confiscation of the proceeds of crime.the website of the Supreme People’s Court in January 2017 and written by the same members of the
Court and its Director of the Legal Policy Research Office, a copy of which is exhibit 4, by which they announced the Confiscation Provisions.
or department nominated by the other country in any treaty for mutual assistance or otherwise
determined by that country. In the case of Australia, the competent authority is the CommonwealthAttorney-General’s department: Treaty Article 3, section 2.
of People’s Procuratorate that the Australian properties “shall be confiscated according to law.”
order: MACM Act, s 33A(2).
information network and other media and the website of the Supreme People’s Court. The notice in
this case is at TB[9]. I assume that the extent of its publication was in accordance with these
provisions.manner that Judge Jarro had ordered that it be served, or by service on the respondents’ solicitors in
Australia.
definition of “abscond” in s 334 and, as other examples, Criminal Proceeds Confiscation Act 2002
Criminal Proceeds Recovery Act Proceeds of (Qld), ss 105, 110, 113, 115, 151; 2009 (NZ), s 57; s 462.38.
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