Commissioner of the Australian Federal Police v Zhang

The matter before the Court involved the Commissioner of the Australian Federal Police seeking orders under the Proceeds of Crime Act 2002 (Cth) for the restraint, forfeiture, and exclusion of certain assets from forfeiture. The appellant, Zhang, challenged the determination of the judge, arguing that there was an error in the order of the proceedings and that the judge misapplied the decision in Commissioner of the Australian Federal Police v Zhao (2015) 255 CLR 46.

The central legal issues for the Court to determine were whether the judge erred in deciding the applications for forfeiture before determining the applications for exclusion from the restraining orders and whether the judge misapplied the Zhao decision in the context of the present proceedings. The Court had to consider the interplay between the various sections of the Proceeds of Crime Act 2002 (Cth) and the correct procedural order in which to make these orders.

The Court found that the judge did indeed err in determining the forfeiture applications before addressing the exclusion applications. The Court held that the Zhao decision, which provided guidance on the correct procedure in such cases, was misapplied. The Court emphasised that the order in which these applications are determined is crucial, and the exclusion applications must be considered before the forfeiture applications to ensure that the applicant has an opportunity to respond and potentially exclude certain assets from forfeiture. The Court allowed the appeal and set aside the orders made by the judge, directing that the exclusion applications be determined first.

The Court's decision highlighted the importance of following the correct procedural steps when dealing with applications under the Proceeds of Crime Act 2002 (Cth) and the need to ensure that the applicant has an opportunity to respond to the various applications. The Court's findings and reasoning in this case will be of interest to legal practitioners involved in similar proceedings, as they underscore the significance of adhering to established legal principles and the correct order of proceedings.