Director of Public Prosecutions (Cth) v Kamal - [2011] WASCA 55

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION: DIRECTOR OF PUBLIC PROSECUTIONS (CTH) -v- KAMAL [2011] WASCA 55

CORAM: MARTIN CJ
McLURE P
BUSS JA

HEARD: 18 OCTOBER 2010

DELIVERED : 15 MARCH 2011

FILE NO/S: CACV 45 of 2010

BETWEEN: DIRECTOR OF PUBLIC PROSECUTIONS (CTH)
Appellant
AND
NASHWAN KAMAL
Respondent
ATTORNEY-GENERAL (CTH)
Intervener

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :EATON DCJ
Citation  :DIRECTOR OF PUBLIC PROSECUTIONS (CTH) -v- KAMAL [2010] WADC 67
File No  :POC 4 of 2009

Catchwords:

Constitutional law - Judicial power of the Commonwealth - Restraining order made over respondent's property under s 18 Proceeds of Crime Act 2002 (Cth) - Order made ex parte - Respondent sought revocation of restraining order including by reason of invalid contravention of ch III of the Commonwealth Constitution - Declaration that s 26(4) invalidly granted - Appeal from grant of declaration

Whether s 26(4) of the Act requires a court to determine an application for a restraining order over property ex parte on request of DPP - Whether invalid by application of International Finance Trust Company Ltd v New South Wales Crime Commission (2009) 240 CLR 319 - Whether Proceeds of Crime Act 2002 (Cth) provides a sufficient procedure for revocation of a restraining order on application of property owner

Legislation:

Acts Interpretation Act 1901 (Cth), s 15AB
Constitution (Cth), ch III
Crimes Act 1914 (Cth), s 3E
Crimes Legislation Amendment (Serious and Organised Crime) Act 2010 (Cth)
Crimes Legislation Amendment (Serious and Organised Crime) Act 2010 (No 2) (Cth)
Crimes Legislation Amendment Act 1987 (Cth)
Criminal Assets Recovery Act 1990 (NSW), s 10
District Court of Western Australia Act 1969 (WA), s 6(1), s 79(1)
Judiciary Act 1903 (Cth), s 78B, s 79, s 80
Proceeds of Crime Act 1987 (Cth), s 45
Proceeds of Crime Act 2002 (Cth), s 15, s 18, s 25, s 26, s 32, s 33, s 37, s 39, s 42, s 45, s 60, s 61, s 63, s 64, s 69, s 75, s 79, s 93, s 182, s 314, s 315, s 317, s 322, s 355
Rules of the Supreme Court 1971 (WA), O 58 r 23
Serious and Organised Crime (Control) Act 2008 (SA), s 14(1)

Result:

Appeal allowed on ground 1 and ground 2
Notice of contention dismissed

Category: A

Representation:

Counsel:

Appellant:     Ms A G Braddock SC & Mr E W L Greaves
Respondent:     Mr R E Lindsay
Intervener:     Mr S J Gageler SC & Mr B Lim

Solicitors:

Appellant:     Director of Public Prosecutions (Cth)
Respondent:     S C Nigam & Co
Intervener:     Australian Government Solicitor

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

A Hudson Pty Ltd v Legal & General Life of Australia Ltd (1985) 1 NSWLR 701
Alister v The Queen [1984] HCA 85; (1984) 154 CLR 404
APLA Ltd v Legal Services Commissioner (NSW) [2005] HCA 44; (2005) 224 CLR 322
Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72; (2005) 225 CLR 88
Australian Securities and Investments Commission v Edensor Nominees Pty Ltd [2001] HCA 1; (2001) 204 CLR 559
Baker v The Queen [2004] HCA 45; (2004) 223 CLR 513
Becker v City of Marion Corporation [1977] AC 271
Bell Group NV (in liq) v Aspinall (1998) 19 WAR 561
Carr v Finance Corporation of Australia Ltd (No 1) [1981] HCA 20; (1981) 147 CLR 246
Centurion Trust Co Ltd v Director of Public Prosecutions (WA) [2008] WASCA 6; (2008) 35 WAR 463
Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs [1992] HCA 64; (1992) 176 CLR 1
Coco v The Queen [1994] HCA 15; (1994) 179 CLR 427
Director of Public Prosecutions (Cth) v Hart [2003] QCA 495; [2004] 2 Qd R 1
Director of Public Prosecutions (Cth) v Mare [2008] QCA 373; [2009] 1 Qd R 209
Director of Public Prosecutions (Cth) v Tan [2003] NSWSC 717
Director of Public Prosecutions (Cth) v Tan [2004] NSWSC 856
Electric Light and Power Supply Corporation Ltd v Electricity Commission (NSW) [1956] HCA 22; (1956) 94 CLR 554
Ex parte Bucknell [1936] HCA 67; (1936) 56 CLR 221
Ex parte Commonwealth Director of Public Prosecutions [2010] WASC 277
Fardon v Attorney‑General (Qld) [2004] HCA 46; (2004) 223 CLR 575
Forge v Australian Securities and Investments Commission [2006] HCA 44; (2006) 228 CLR 45
Gordon v Tolcher [2006] HCA 62; (2006) 231 CLR 334
Gypsy Jokers Motorcycle Club Inc v Commissioner of Police [2008] HCA 4; (2008) 234 CLR 532
Hall v Nominal Defendant [1966] HCA 36; (1966) 117 CLR 423
ICM Agriculture Pty Ltd v The Commonwealth [2009] HCA 51; (2009) 240 CLR 140
International Finance Trust Company Ltd v New South Wales Crime Commission [2009] HCA 49; (2009) 240 CLR 319
Kable v Director of Public Prosecutions (NSW) [1996] HCA 24; (1996) 189 CLR 51
K‑Generation Pty Ltd v Liquor Licensing Court [2009] HCA 4; (2009) 237 CLR 501
Lambert v Weichelt (1954) 28 ALJ 282
Lee v Director of Public Prosecutions (Cth) [2009] NSWCA 347; (2009) 75 NSWLR 581
Marra Developments Ltd v BW Rofe Pty Ltd [1977] 2 NSWLR 616
Nicholas v The Queen [1998] HCA 9; (1998) 193 CLR 173
Niemann v Electronic Industries Ltd [1978] VR 431
Northern Territory of Australia v GPAO [1999] HCA 8; (1999) 196 CLR 553
Owners of Shin Kobe Maru v Empire Shipping Company Inc [1994] HCA 54; (1994) 181 CLR 404
Owners of the SS Kalibia v Wilson [1910] HCA 77; (1910) 11 CLR 689
Re Australian Federation of Construction Contractors; Ex parte Billing [1986] HCA 74; (1986) 68 ALR 416
Saeed v Minister for Immigration and Citizenship [2010] HCA 10; (2010) 241 CLR 252
Singh v The Commonwealth [2004] HCA 43; (2004) 222 CLR 322
South Australia v The Commonwealth [1962] HCA 10; (1962) 108 CLR 130
South Australia v Totani [2010] HCA 39; (2010) 85 ALJR 19
The Commonwealth v Mewett [1997] HCA 29; (1997) 191 CLR 471
The Commonwealth v Northern Land Council [1993] HCA 24; (1993) 176 CLR 604
Thomas A Edison Ltd v Bullock [1912] HCA 72; (1912) 15 CLR 679
Thomas v Mowbray [2007] HCA 33; (2007) 233 CLR 307
Tickner v Chapman (1995) 57 FCR 451
WEA Records Ltd v Visions Channel 4 Ltd [1983] 1 WLR 721
Wurridjal v The Commonwealth of Australia [2009] HCA 2; (2009) 237 CLR 309

Table of Contents

MARTIN CJ:............................................................................................................................ 7

Summary
Procedural history
Chapter III of the Constitution
International Finance
State of South Australia v Totani
The legislative history of the Act

Proceeds of Crime Act 1987 (Cth)
Proceeds of Crime Act 2002 (Cth)
The 2010 amendments

The decision at first instance
The grounds of appeal
The notice of contention
Ground 1 of the appeal and ground 1 of the notice of contention

(a) Are s 26(4) and s 26(5) inconsistent?

(b) Does s 26(4), read with s 18, require the court to grant an order without notice?

Section 26 - summary
Ground 2 of the appeal
The remaining grounds and the notice of contention
Leave to appeal

Conclusion
McLURE P:............................................................................................................................. 45
Ground 1 - the construction of s 26(4)
Ground 2 - constitutional validity
BUSS JA:................................................................................................................................. 53
The form of the Act as at 16 October 2009 and subsequent amendments
The declaratory order made by the primary judge
The purpose or object of the Act
Section 18(1), s 26 and s 42 of the Act
The introduction of s 42(5)(b)
Section 39 of the Act
Section 33 of the Act
The nature of proceedings under the Act and the onus and standard of proof
The primary judge's reasoning
The grounds of appeal
The respondent's notice of contention
The right of appeal to this court from the judgment of the primary judge
Is leave to appeal required?
Ground 1 of the appeal: its merits
Ground 1 of the notice of contention: its merits
Ground 2 of the appeal: its merits
Ground 2 of the notice of contention: its merits

Conclusion

MARTIN CJ:

Summary

The Commonwealth Director of Public Prosecutions (DPP (Cth)) appeals from the decision of Eaton DCJ declaring s 26(4) of the Proceeds of Crime Act 2002 (Cth) (the Act) invalid because it infringes the restraints upon legislative power imposed by Ch III of the Commonwealth Constitution, and setting aside a restraining order made by Chief Judge Kennedy of the District Court pursuant to s 18 of the Act relating to $30,000 cash seized from the respondent during the execution of a search warrant. For reasons which follow, I have concluded that the appeal should be allowed and the decision of Eaton DCJ set aside.

Procedural history

On 24 September 2009, a search warrant issued pursuant to the Crimes Act 1914 (Cth) was executed at premises in Mandurah. $30,000 cash believed to belong to the respondent was seized. On 15 October 2009, the DPP (Cth) applied to the District Court of Western Australia for a restraining order in respect of the cash, and also in respect of funds standing to the credit of a nominated bank account held in the name of a corporate entity.
The application came before Chief Judge Kennedy on 16 October 2009. Notice had not been given to the respondent, and her Honour dealt with the application ex parte. She made the restraining order sought and further ordered that the DPP (Cth) was to serve the respondent with copies of the order, the originating motion, all documents filed in support of the originating motion save for a particular affidavit and the written submissions in support of the application, and certain sections of the Act. Her Honour further ordered that the respondent have liberty to make any application pursuant to either s 24 or s 42 of the Act on 24 hours notice to the DPP (Cth).
It seems that service was effected pursuant to her Honour's orders, and the respondent exercised the liberty to apply by chamber summons dated 3 November 2009, seeking revocation of the restraining order pursuant to s 42 of the Act, or alternatively, the grant of reasonable business and living expenses from the property the subject of the restraining order pursuant to s 24 of the Act.
The matter came before Wisbey DCJ on 5 November 2009. By consent, the restraining order made by Chief Judge Kennedy was varied by deleting reference to the funds standing to the credit of the bank account. The matter was otherwise adjourned to 19 November 2009 for further hearing, and on that day, further adjourned indefinitely.
On 22 December 2009, the respondent again applied for an order pursuant to s 42 of the Act revoking the restraining order imposed over his property. The application was later amended to include a claim for a declaration that s 18 of the Act was invalid by reason of contravention of the restrictions upon legislative power imposed by Ch III of the Constitution. Notices were served upon all Attorneys‑General pursuant to s 78B of the Judiciary Act 1903 (Cth). None sought to intervene.
That application came before Eaton DCJ on 30 March 2010. On 7 May 2010, he published reasons for his decision, and made the orders to which I have referred. On 14 May 2010, McLure P made orders staying the orders of Eaton DCJ, pending determination of this appeal.

Chapter III of the Constitution

In Chu Kheng Lim v Minister for Immigration [1992] HCA 64; (1992) 176 CLR 1, Brennan, Deane and Dawson JJ observed that the legislative power of the Commonwealth did not extend to making a law which:
[R]equires or authorises the courts in which the judicial power of the Commonwealth is exclusively vested to exercise judicial power in a manner which is inconsistent with the essential character of a court or with the nature of judicial power (27).
In Kable v Director of Public Prosecutions(NSW) [1996] HCA 24; (1996) 189 CLR 51, it was held that the provisions of Ch III of the Constitution of the Commonwealth, which postulate an integrated system of State and Federal Courts exercising the judicial power of the Commonwealth, impose implied constraints upon the legislative powers of the States. It was held that a State legislature cannot validly confer a function upon a court of that State which would substantially impair its institutional integrity, so as to be incompatible with its role as a repository of federal jurisdiction. The institutional integrity of the court will be relevantly impaired if a function is conferred upon it which is repugnant to, or incompatible with the exercise of the judicial power of the Commonwealth - see Kable (103) (Gaudron J), (134) (Gummow J); Fardon v Attorney‑General (Qld) [2004] HCA 46; (2004) 223 CLR 575 [101] (Gummow J), [141] (Kirby J). It follows for even stronger reason that the legislative power of the Commonwealth does not extend to the conferral of functions upon State courts which are repugnant to or incompatible with the exercise by those courts of the judicial power of the Commonwealth.
For a time it was thought that the principle enunciated in Kable might be 'a constitutional guard-dog that would bark but once': Baker v The Queen [2004] HCA 45; (2004) 223 CLR 513 [54] (Kirby J). However, the application of the principle has been considered in a number of recent cases. The decision of the High Court in International Finance Trust Company Ltd v New South Wales Crime Commission [2009] HCA 49; (2009) 240 CLR 319, merits particular attention, because it concerns the application of the Kable principle to legislation concerning the forfeiture of the proceeds of crime. It was the decision principally relied upon by Eaton DCJ for his conclusion that s 26(4) of the Act was invalid.

International Finance

The case was concerned with the validity of certain provisions of the Criminal Assets Recovery Act 1990 (NSW) (the CAR Act). Section 10 of that Act empowered the Crime Commission of New South Wales to apply ex parte to the Supreme Court of New South Wales for a restraining order in respect of property, and further provided that the Supreme Court was obliged to make the order sought if the application was supported by an affidavit meeting the requirements of the section. Section 25 of the CAR Act empowered a person claiming an interest in property the subject of a restraining order to apply for an order excluding that property from the restraining order previously made. However, the section precluded the Supreme Court from making an exclusion order unless the applicant proved, on the balance of probabilities, that the property was not 'fraudulently acquired property' or 'illegally acquired property'. Each of those expressions was defined in very broad terms by the CAR Act so that, for example, 'illegally acquired property' extended to and included property which was all or part of the proceeds arising from any act or omission which constituted an offence at common law, or against the laws of New South Wales or the Commonwealth.
The High Court decided by a majority (French CJ, Gummow, Heydon and Bell JJ), (Hayne, Crennan and Kiefel JJ dissenting) that s 10 was invalid because it engaged the Supreme Court in an activity which was repugnant to the judicial process in a fundamental degree. Differing reasons were given by the majority for their conclusion that the section was invalid.
French CJ construed s 10 of the CAR Act as requiring the Supreme Court to hear and determine, without notice to the persons affected, applications for restraining orders by the Crime Commission, if requested to do so by the Commission. In his view, that characteristic was sufficient in itself to lead to the conclusion of invalidity, because it subjugated the court's obligation to afford procedural fairness to a determination made by the executive branch of the government of New South Wales. In his Honour's view, it was not to the point that a restraining order was temporary in nature, or that its scope could subsequently be varied by an exclusion order.
On the subject of the proper construction of s 10 of the CAR Act, his Honour made reference to two well established principles of construction, namely:
(a)in the absence of clear words, parliament should not be taken to intend to encroach upon fundamental common law principles, including the principle that courts accord procedural fairness to those who are to be affected by their orders; and
(b)where there is a choice to be made between a construction that would place a statute within the limits of constitutional power, and another that would place it outside those limits, the former is to be preferred.
However, in the following passage, his Honour suggested that some limits should be applied upon the application of those principles:
There is a caveat which should be entered in relation to these principles. The court should not strain to give a meaning to statutes which is artificial or departs markedly from their ordinary meaning simply in order to preserve their constitutional validity. There are two reasons for this. The first is that if Parliament has used clear words to encroach upon the liberty or rights of the subject or to impose procedural or other constraints upon the courts its choice should be respected even if the consequence is constitutional invalidity. The second reason is that those who are required to apply or administer the law, those who are to be bound by it and those who advise upon it are generally entitled to rely upon the ordinary sense of the words that Parliament has chosen. To the extent that a statutory provision has to be read subject to a counterintuitive judicial gloss, the accessibility of the law to the public and the accountability of Parliament to the electorate are diminished. Moreover, there is a real risk that, notwithstanding a judicial gloss which renders less draconian or saves from invalidity a provision of a statute, the provision will be administered according to its ordinary, apparent and draconian meaning [42].
Gummow and Bell JJ, in a joint judgment, agreed with French CJ as to the construction of s 10 of the CAR Act. However, in their view, the imposition of an obligation, on the request of the executive, upon the Supreme Court to hear and determine an application for a restraining order without notice to persons who might affected by that order was not, of itself, sufficient to result in the invalidity of the section. In their Honours' view, it was that obligation, combined with the lack of any clear means of curial supervision of the duty to disclose all material facts when making an ex parte application, and the lack of a prompt and effective right to seek a review of a restraining order issued ex parte which were, in combination, sufficient to result in a conclusion of invalidity. On the subject of the capacity of a person affected by a restraining order made ex parte to seek the release of property from that order by an application for an exclusion order, their Honours drew attention to the onerous burden imposed upon the applicant for such an order by s 25 of the Act, in that the applicant was required to negate 'an extremely widely drawn range of possibilities of contravention of the criminal law found in the common law, and state and federal statute law' (International Finance [96]).
Their Honours' conclusion is summarised in the following passages:
The Supreme Court is conscripted for a process which requires in substance the mandatory ex parte sequestration of property upon suspicion of wrong doing, for an indeterminate period, with no effective curial enforcement of the duty of full disclosure on ex parte applications. In addition the possibility of release from that sequestration is conditioned upon proof of a negative proposition of considerable legal and factual complexity.
Section 10 engages the Supreme Court in activity which is repugnant in a fundamental degree to the judicial process as understood and conducted throughout Australia [97] ‑ [98].
Heydon J agreed with the other members of the majority on the question of the construction of s 10 of the CAR Act. He considered that under the section, the Supreme Court had no jurisdiction to adjourn the hearing briefly while notice was given to the person affected. However, in his view:
Although this is not by itself repugnant to the judicial process in a fundamental degree, it is relevant to whether one other aspect of the legislation is [152].

In his Honour's view, the critical issue was whether there was an adequate procedure by which a person made subject to a restraining order issued pursuant to s 10 of the CAR Act might approach the court to have it set aside, once the person had learnt of the order. In his Honour's view, if there was no such procedure, the effect of s 10 would be to compel the Supreme Court of New South Wales to engage in activity which is repugnant to the judicial process in a fundamental degree. In his Honour's view, the element which was repugnant was not the grant of power to make a restraining order ex parte, nor the duty to make such an order if certain conditions were satisfied. Nor did repugnancy lie in the imposition of an obligation upon the court to proceed ex parte without itself determining whether the circumstances were sufficiently extreme to justify the grant of such relief. Rather, in his Honour' view, the repugnance would only arise if, in addition to these three factors, the legislature failed to provide a facility for the court to entertain an application to dissolve an order made ex parte after a person affected by it had received notice. In his Honour's view, the procedure provided by the legislature would have to permit 'speedy dissolution' of the ex parte restraining order in order to avoid repugnance (International Finance [155] ‑ [160]).
Heydon J agreed with the observations made by Gummow and Bell JJ as to the very narrow potential afforded by s 25 for bringing the restraining order to an end 'through a complex negative inquiry which is likely often to be very time consuming' (International Finance [161]). For that reason, Heydon J did not consider that s 25 provided the facility that was necessary to avoid the conclusion that s 10 engaged the Supreme Court of New South Wales in an activity which was repugnant to the judicial process in a fundamental degree.
Hayne, Crennan and Kiefel JJ disagreed with the majority on the construction of s 10 of the CAR Act. In their Honour's view, this section did not prevent the court from adjourning the application for a restraining order while notice was given to persons who might be affected by that order in accordance with directions made by the court. Their Honours also took the view that the provisions of the Act did not exclude the general power of the Supreme Court to reconsider an order made ex parte on the application of a person affected by that order. Accordingly, because in their Honour's view, the Act properly construed did not oblige the court to determine an application for a restraining order without notice to persons affected, and because the court retained power to reconsider the issue of a restraining order made ex parte upon the application of a person affected by that order after receiving notice of it, no question of repugnance to conventional judicial functions arose.

State of South Australia v Totani

More recently, in South Australia v Totani [2010] HCA 39; (2010) 85 ALJR 19, a majority of the High Court (French CJ, Gummow, Hayne, Crennan, Bell and Kiefel JJ, Heydon J dissenting) was of the view that s 14(1) of the Serious and Organised Crime (Control) Act 2008 (SA) was invalid, because it imposed upon the Magistrates Court of South Australia a function which was repugnant to its institutional integrity in such a way as to be incompatible with that court's exercise of federal jurisdiction. A detailed consideration of the legislation invalidated is not merited, because its terms are far removed from the Act under consideration in this case. However, some general observations made by the court are of relevance.
French CJ emphasised the importance of the independence of the courts from executive government, in the maintenance of the institutional integrity of the courts. In his view, that independence must be maintained in reality and in appearance (Totani [1]).
French CJ also endorsed an earlier observation made in Forge v Australian Securities and Investments Commission [2006] HCA 44; (2006) 228 CLR 45 that:
It is neither possible nor profitable to attempt to make some single all embracing statement of the defining characteristics of a court [64].
However, in his Honour's view, procedural fairness effected by impartiality and the natural justice hearing rule lay at the heart of the judicial process (Totani [62]).
French CJ made the following observation concerning the test of repugnancy or incompatibility with the exercise of the judicial power of the Commonwealth:
[T]he true question is not whether a court of a State, subject to impugned legislation, can still be called a court of a State nor whether it bears a sufficient relation to a court of State. The question indicated by the use of the term 'integrity' is whether the court is required or empowered by the impugned legislation to do something which is substantially inconsistent or incompatible with the continuing subsistence, in every aspect of its judicial role, of its defining characteristics as a court. So much is implicit in the constitutional mandate of continuing institutional integrity [70].
Hayne J observed:
[A]n important indication that a particular law is repugnant to, or incompatible with, … institutional integrity is 'that the exercise of the power or function in question is calculated, in the sense of apt or likely, to undermine public confidence in the courts exercising that power or function'. But perception as to the undermining of public confidence 'is an indicator, but not the touchstone, of invalidity; the touchstone concerns institutional integrity [206].
Hayne J agreed with French CJ that 'the critical notions of repugnancy and incompatibility are insusceptible of further definition in terms which necessarily dictate future outcomes' (Totani [207] (citing Gummow J in Fardon)).

The legislative history of the Act

Proceeds of Crime Act 1987 (Cth)

The origins of some parts of the Act may be traced to provisions in the Proceeds of Crime Act 1987 (Cth) (the 1987 Act). In particular, s 43 of that Act made provision for the making of restraining orders, prohibiting dealing in property in certain circumstances. As originally enacted, s 45(1) of that Act provided that subject to s 45(2) of that section, the DPP was obliged to give written notice of an application for a restraining order to the owner of the property and to any other person the DPP had reason to believe may have an interest in the property. However, s 45(2) provided that the court may make a restraining order where notice had not been given in accordance with s 45(1) if the court was satisfied that there were circumstances of urgency requiring the making of such an order or that it would be contrary to the public interest to give notice of the application. In the event that the court made a restraining order without notice having been given in accordance with s 45(1), s 45(2) provided that the restraining order was to cease effect at the end of such period, not exceeding 14 days, as was specified by the court in the restraining order. Section 45(3) permitted the court to extend the operation of a restraining order granted without notice if the court was satisfied that there were circumstances justifying the extension. Section 45(5) was in the following terms:
The court may, at any time before the final determination of an application for:
(a)a restraining order; or
(b)an extension of the period of operation of a restraining order;
direct the DPP to give or publish notice of the application to a specified person or class of persons, in the manner and within the time that the court considers appropriate.
This provision was described in the Explanatory Memorandum for the Proceeds of Crime Bill 1987 as enabling 'the court at any time before the matter is finally determined, to direct the DPP to give or publish notice of the application to any person' (32).
Section 46 of the 1987 Act provided that where notice had been given of an application for a restraining order, any person who claimed an interest in the property might appear and adduce evidence at the hearing of the application.
Shortly after the 1987 Act was promulgated, it was amended by the Crimes Legislation Amendment Act 1987 (Cth). By s 43 of that Act, s 45(2) of the 1987 Act was repealed and re‑enacted in the following terms:
If the DPP requests the court to do so, the court shall consider the application without notice having been given in accordance with subsection (1) but, subject to subsection (3), a restraining order made by virtue of this subsection shall cease to have effect at the end of such period (not exceeding 14 days) as is specified by the court in the restraining order.
As will be seen, this provision is in similar terms to s 26(4) of the Act, which Eaton DCJ found to be invalid.

Proceeds of Crime Act 2002 (Cth)

The Act has been amended since the restraining order was made by Chief Judge Kennedy on 16 October 2009. It is therefore appropriate to commence with a consideration of the terms of the Act at the time that the order was made, and then to consider the amendments subsequently made.
Part 2‑1 of the Act makes provision for the making of restraining orders. Within that part, s 17 makes provision for the making of restraining orders in respect of people convicted of, or charged with indictable offences. Section 18 empowers a court to make restraining orders in respect of people suspected of committing certain offences. It is in the following terms:
(1)When a restraining order must be made
A court with proceeds jurisdiction must order that:
(a)property must not be disposed of or otherwise dealt with by any person; or
(b)property must not be disposed of or otherwise dealt with by any person except in the manner and circumstances specified in the order;
if:
(c)the DPP applies for the order; and
(d)there are reasonable grounds to suspect that:
(i)a person has committed a serious offence; and
(ii)if the offence is not a terrorism offence - the offence was committed within the 6 years preceding the application, or since the application was made; and
(e)any affidavit requirements in subsection (3) for the application have been met; and
(f)the court is satisfied that the authorised officer who made the affidavit holds the suspicion or suspicions stated in the affidavit on reasonable grounds.
Note:A court can refuse to make a restraining order if the Commonwealth refuses to give an undertaking: see section 21.
(2)Property that a restraining order may cover
The order must specify, as property that must not be disposed of or otherwise dealt with, the property specified in the application for the order, to the extent that the court is satisfied that there are reasonable grounds to suspect that that property is any one or more of the following:
(a)all or specified property of the suspect;
(aa)all or specified bankruptcy property of the suspect;
(b)all property of the suspect other than specified property;
(ba)all bankruptcy property of the suspect other than specified bankruptcy property;
(c)specified property of another person (whether or not that other person's identity is known) that is subject to the effective control of the suspect;
(d)specified property of another person (whether or not that other person's identity is known) that is:
(i)in any case - proceeds of the offence; or
(ii)if the offence to which the order relates is a terrorism offence - an instrument of the offence.
(3)Affidavit requirements
The application for the order must be supported by an affidavit of an authorised officer stating:
(a)that:
(i)the authorised officer suspects that the suspect committed the offence within the 6 years preceding the application, or since the application was made; or
(ii)the offence is a terrorism offence; and
(b)if the application is to restrain property of a person other than the suspect but not to restrain bankruptcy property of the suspect -that the authorised officer suspects that:
(i)the property is subject to the effective control of the suspect; or
(ii)in any case - the property is proceeds of the offence; or
(iii)if the offence to which the order relates is a terrorism offence - the property is an instrument of the offence.
The affidavit must include the grounds on which the authorised officer holds those suspicions.
(4)Restraining order need not be based on commission of a particular offence
The reasonable grounds referred to in paragraph (1)(d) need not be based on a finding as to the commission of a particular serious offence.
(5)Risk of property being disposed of etc.
The court must make a restraining order even if there is no risk of the property being disposed of or otherwise dealt with.
(6)Later acquisitions of property
The court may specify that a restraining order covers property that is acquired by the suspect after the court makes the order. Otherwise, no property that is acquired after a court makes a restraining order is covered by the order.
Section 335 of the Act provides that if all or part of the conduct constituting an offence to which the order would relate occurred in a particular State or Territory, or is reasonably suspected of having occurred in that State or Territory, the courts that have proceeds jurisdiction are those which have jurisdiction to deal with the criminal matters on indictment in that State or Territory. Further, s 314 invests the State and Territory courts with jurisdiction with respect to matters arising under the Act. Accordingly, in respect of an order arising from conduct which occurred, or is suspected to have occurred in Western Australia, the courts with jurisdiction to make restraining orders are the Supreme Court and the District Court of Western Australia.
Section 25 and s 26 of the Act are in the following terms:
25.DPP may apply for a restraining order
The DPP may apply for a restraining order.
26.Notice of application
(1)Subject to subsection (4), the DPP must:
(a)give written notice of an application for a restraining order covering property to the owner of the property (if the owner is known); and
(b)include with the notice a copy of the application and any affidavit supporting the application.
(2)Subject to subsection (4), the DPP must also:
(a) give written notice of an application for a restraining order covering property to any other person the DPP reasonably believes may have an interest in the property; and
(b)include with the notice:
(i)a copy of the application; and
(ii)a further notice that the person may request that the DPP give the person a copy of any affidavit supporting the application.
The DPP must comply with any such request as soon as practicable.
(3)The court must not (unless subsection (4) applies) hear the application unless it is satisfied that the owner of the property to which the application relates has received reasonable notice of the application.
(4)The court must consider the application without notice having been given if the DPP requests the court to do so.
(5)The court may, at any time before finally determining the application, direct the DPP to give or publish notice of the application to a specified person or class of persons. The court may also specify the time and manner in which the notice is to be given or published.
(6)A person who claims an interest in property may appear and adduce evidence at the hearing of the application.
Division 3 of pt 2‑1 provides that a court may make an order excluding property from a restraining order, on the application of a person who claims an interest in that property. However, unless the court gives leave, such a person cannot apply for an excluding order if they were notified of the application for the restraining order but did not appear at the hearing of that application, or if they appeared at the hearing of the application. Section 32 of the Act provides that the court must not hear an application to exclude specified property from the restraining order if the restraining order is in force and the DPP has not been given a reasonable opportunity to conduct examinations in relation to the application.
Section 33 of the Act deals with the giving of notice of the making of a restraining order. It is in the following terms:
(1)If a court makes a restraining order covering property that a person owns, the DPP must give written notice of the order to the person.
Note: A person who was not notified of the application for a restraining order may apply to revoke the restraining order within 28 days of being notified of the order: see section 42.
(2)The DPP must include a copy of the application and any affidavit supporting the application with the notice (if those documents have not already been given to the person).
(3)However, the court may order that:
(a)all or part of the application or affidavit is not to be given to the person; or
(b)the DPP delay giving the notice (and the documents included with the notice) for a specified period;
if the DPP requests the court to do so and the court considers that this is appropriate in order to protect the integrity of any investigation or prosecution.
(4)If the court orders the DPP to delay giving the notice (and the documents included with the notice) for a specified period, the DPP must give the notice as soon as practicable after the end of that period.
Section 39 of the Act makes provision for ancillary orders of various kinds, including an order varying the property covered by the restraining order, or varying conditions to which the restraining order was subject. In October 2009, s 39 was in the following terms:
(1)The court that made a restraining order, or any other court that could have made the restraining order, may make any ancillary orders that the court considers appropriate and, without limiting the generality of this, the court may make any one or more of the following orders:
(a)an order varying the property covered by the restraining order;
(b)an order varying a condition to which the restraining order is subject;
(c)an order relating to an undertaking required under section 21;
(d)an order directing the owner of the property (including, if the owner is a body corporate, a specified director of the body corporate) to give a sworn statement to a specified person, within a specified period, setting out particulars of, or dealings with, the property;
(e)if the Official Trustee is ordered under section 38 to take custody and control of property:
(i)an order regulating the manner in which the Official Trustee may exercise its powers or perform its duties under the restraining order; or
(ii)an order determining any question relating to the property, including a question relating to the liabilities of the owner or the exercise of powers or the performance of duties of the Official Trustee; or
(iii)an order directing any person to do anything necessary or convenient to enable the Official Trustee to take custody and control of the property;
(f)an order giving directions about the operation of the restraining order and any one or more of the following:
(i)a forfeiture order that covers the same property as the restraining order;
(ii)a pecuniary penalty order or a literary proceeds order that relates to the same offence as the restraining order;
(g)an order requiring a person whose property is covered by a restraining order to do anything necessary or convenient to bring the property within the jurisdiction.
Note: If there is a pecuniary penalty order that relates to the same offence as a restraining order, the court may also order the Official Trustee to pay an amount equal to the relevant pecuniary penalty out of property covered by the restraining order: see section 282.
(2)The court can only make an ancillary order on the application of:
(a)the DPP; or
(b)the owner of the property covered by the order; or
(c)if the Official Trustee was ordered to take custody and control of the property - the Official Trustee; or
(d)any other person who has the leave of the court.
(3)A person who applies for an ancillary order must give written notice of the application to all other persons entitled to make such an application.
(4)An ancillary order may be made:
(a)if it is made by the court that made the restraining order - when making the restraining order; or
(b)in any case - at any time after the restraining order is made.
(5)An order that is ancillary to a restraining order does not cease to have effect merely because the restraining order, or part of it, ceases to be in force under subsection 45(4) or (5).
Note: A restraining order ceases to be in force under those subsections if a confiscation order covering the same property or relating to the same offence is satisfied.

Section 42 of the Act provides for the revocation of a restraining order. In October 2009, that section was in the following terms:
(1)A person who was not notified of the application for a restraining order may apply to the court to revoke the order.
(1A)The application must be made:
(a)within 28 days after the person is notified of the order; or
(b)if the person applies to the court, within that period of 28 days, for an extension of the time for applying for revocation - within such longer period, not exceeding 3 months, as the court allows.
(2)The applicant must give written notice to the DPP and the Official Trustee of both the application and the grounds on which the revocation is sought.
(3)However, the restraining order remains in force until the court revokes the order.
(4)The DPP may adduce additional material to the court relating to the application to revoke the restraining order.
(5)The court may revoke the restraining order if satisfied that there are no grounds on which to make the order at the time of considering the application to revoke the order.
Part 2‑2 of the Act deals with forfeiture orders. Section 61 sets out the requirements relating to the giving of notice of application for such an order. It is in the following terms:
(1)The DPP must give written notice of an application for a forfeiture order to:
(a)if the order is sought relating to a person's conviction of an offence - the person; and
(b)any person who claims an interest in property covered by the application; and
(c)any person whom the DPP reasonably believes may have an interest in that property.
(2)The court hearing the application may, at any time before finally determining the application, direct the DPP to give or publish notice of the application to a specified person or class of persons. The court may also specify the time and manner in which the notice is to be given or published.
I digress to observe that s 61(2) is in similar terms to s 26(5), although unlike s 26, no express provision is made in pt 2-2 for the consideration of an application for a forfeiture order without notice, other than in the situation in which a person to whom notice would have been given has absconded under s 63.

The 2010 amendments

The Act was amended by the Crimes Legislation Amendment (Serious and Organised Crime) Act 2010 (No 2) (Cth), the relevant portion of which came into effect on 20 February 2010 - that is, after the restraining order was made, but before the application for revocation of that order was heard and determined by Eaton DCJ. That Act amended s 39 by introducing the following provisions:
39(3A)Despite subsection (3), the court must consider an application for an ancillary order without notice having been given under that subsection if:
(a)the DPP requests the court to do so; and
(b)the restraining order for which the application relates was considered, in accordance with subsection 26(4), without notice having been given.
…
(4A)The court may, at any time before finally determining the application, direct the DPP to give or publish notice of the application to a specified person or class of persons. The court may also specify the time and manner in which the notice is to be given or published.
(4B)If the court makes the ancillary order after a request under subsection (3A), the DPP must give written notice to any person whom the DPP reasonably believes may be affected by the order.
I digress to observe that the effect of these amendments was to create a similar structure within s 39, as previously existed within s 26.
The Act was also amended by the Crimes Legislation Amendment (Serious and Organised Crime) Act 2010 (Cth), the relevant portions of which also came into effect on 20 February 2010. That Act amended s 42(5) so as to provide an additional ground upon which a court might revoke a restraining order by providing that a court may do so 'if satisfied that it is … in the interests of justice'. Given that these amendments were made following the decision in International Finance, it is reasonable to infer that the amendment to s 42 was made in response to that decision and, in particular, to address concerns expressed by some of the majority justices in that case relating to the lack of any facility to enforce the obligation to make full disclosure when proceeding ex parte in the CAR Act. The breadth of the power of revocation provided by the amendment would be sufficient to empower a court to revoke a restraining order because of the DPP's failure to comply with the obligation of full disclosure.

The decision at first instance

After setting out the procedural history of the proceedings, and s 18 of the Act, Eaton DCJ gave consideration to the decision of the High Court in International Finance. He characterised that decision in the following terms:
The court held in International Finance Trust Co Ltd v New South Wales Crime Commission that, on its proper construction, s 10 of the CAR Act required the Supreme Court to hear and determine, without notice to persons affected, applications for restraining orders made ex parte by the commission. For that reason the section impermissibly directed the court as to the manner of the exercise of its jurisdiction and restricted the application of procedural fairness, conditioning its full application upon a discretion exercised by the executive branch of the Government of New South Wales. French CJ, in summarising the position, said it was not to the point that the restriction was temporary, nor that the scope of the order might subsequently be varied by an exclusion order, which could only be made if the party affected showed, on the balance of probabilities, that the affected property was not illegally acquired. In his opinion the relevant section was invalid [10].
That passage suggests that Eaton DCJ was of the erroneous view that the opinion of French CJ represented the view of the majority of the court.
His Honour then turned his attention to s 26(4) of the Act, and rejected the submission that because the only obligation imposed by that subsection upon the court was to 'consider' the application, the Act did not preclude an adjournment of the application until notice had been served in accordance with the direction given by the court pursuant to s 26(5).
Eaton DCJ relied upon that construction of s 26 to conclude that the combination of s 26 and s 18 was to produce, in substance, the same effect as s 10 of the CAR Act considered in International Finance. In respect of that section, he cited the following passage from the decision of French CJ in International Finance:
Referring to that section French CJ at [55] said:
'To require a court, as s 10 does, not only to receive an ex parte application, but also to hear and determine it ex parte, if the executive so desires, is to direct the court as to the manner in which it exercises its jurisdiction and in so doing to deprives the court of an important characteristic of judicial power. That is the power to ensure, so far as practicable, fairness between the parties. … In my opinion the power conferred on the Commission to choose, in effect, whether to require the Supreme Court of New South Wales to hear and determine an application for a restraining order without notice to the party affected is incompatible with the judicial function of that court. It deprives the court of the power to determine whether procedural fairness, judged by reference to practical considerations of the kind usually relevant to applications for interlocutory freezing orders, requires that notice be given to the party affected before an order is made. It deprives the court of an essential incident of the judicial function. In that way, directing the court as to the manner of the exercise of its jurisdiction, it distorts the institutional integrity of the court and affects its capacity as a repository of federal jurisdiction.' [16]
The citation of this passage reinforces the inference that his Honour mistakenly took the view that the opinion of French CJ represented the opinion of the majority of the court.
Eaton DCJ went on to reject the submission that s 26(5) of the Act empowered the court to direct that the DPP give notice of the application for a restraining order to the owner of the property prior to determining the application. His Honour considered such a construction of the subsection to be inconsistent with s 26(4), which required the court to consider the application without notice upon the request of the DPP. He also considered such an interpretation to be inconsistent with the structure of s 26, which makes specific provision, in other subsections, for service of notice upon the owner and any other person reasonably believed to have an interest in the property. His Honour also relied upon those portions of the explanatory memorandum relating to s 26 of the Proceeds of Crime Bill 2002 (Cth) to support his construction of s 26(5), which relevantly provided:
Clause 26 Notice of Application
This clause sets out the notice provisions for the obtaining a restraining order. The DPP may apply for a restraining order either on notice to the owner of the property or ex parte.
If the DPP requests an ex parte hearing the court has no discretion to refuse it. An application would usually be made ex parte where there is a risk that the assets will be dissipated, or that an investigation may be jeopardised by the provision of affidavit material (see below in cl 33). If the application is on notice, however, subclause 26(3) provides that the court must not hear the application unless it is satisfied that the owner of the property has received reasonable notice of the application. The usual rules in civil matters apply to giving or serving of all notices under the Act.
If the DPP gives the owner notice of the application, a copy of the application and any affidavit must also be provided to that person. Where the DPP believes that other people may have an interest in the property, the DPP must also give them notice of the application, and a copy of the application. The DPP does not have to initially provide those people with a copy of the affidavit, but if a copy is requested, the DPP must comply as soon as is practicable. (By contrast, if the DPP secures a restraining order ex parte, the court has discretion to order that all or part of the notice and affidavit not be given to the owner of the property or other relevant person, or that the giving of those documents is delayed: see subclause 33(3)).
If the court directs, the DPP must also give or publish notice to any other person or class of persons.
A person who is given notice of the application for a restraining order is able to contest the application at the hearing of the application.
Eaton DCJ relied upon that text to support the conclusion that the persons to whom notice might be given pursuant to a direction by the court under s 26(5) were 'other' than those addressed by earlier portions of the subsection - namely, the owner of the property and those who were believed to have an interest in the property.
Eaton DCJ went on to consider s 42 of the Act. He did so by reference to the form in which that section was after the amendments which came into force on 20 February 2010. However, the application before him was for an order revoking the restraining order made in 2009 or, in the alternative, declaring that s 18 was invalid. Although the former application was properly determined by reference to the Act in its current form (due to the transitional provisions), the validity of s 18 and, therefore, the order made under it, have to be assessed by reference to the validity of the Act at the time it was made.
Eaton DCJ set out the competing positions of the parties with respect to s 42. The applicant for revocation submitted that the capacity to apply for revocation of the restraining order under the section did not validate the earlier provisions of the Act, because an applicant for such an order was confronted with a task of 'considerable legal and factual complexity'. On the other hand, the DPP submitted that the task which confronted an applicant for an exclusion order under s 25 of the CAR Act was much more onerous and quite different in nature and character to the task which confronted an applicant for revocation under s 42 of the Act.
Eaton DCJ did not express a view on the resolution of these competing submissions. Instead, he made the following observations:
Particularly so far as French CJ and Gummow and Bell JJ were concerned it was, in the case before them, the problem of the executive's intrusion, sanctioned by the legislature, into the judicial function which gave rise to invalidity, the court being deprived of the power to determine whether procedural fairness, judged by reference to practical considerations of the kind that are usually relevant to applications for interlocutory freezing orders required that notice be given to the party effected before an order is made.
Under the Act the discretion to be exercised in relation to the giving of notice of an application for a restraining order is that of the Director. He or she, in mounting an application under s 18 and making a request under s 26(4) chooses, in effect, to require this Court to hear and determine an application for a restraining order without notice to the party affected. That, according to International Finance Trust Co Ltd v New South Wales Crime Commission, is incompatible with the judicial function of the court, depriving the court of the power to determine whether procedural fairness would require that notice be given [32] ‑ [33].
These observations reinforce the inferences drawn from earlier passages in the reasons to the effect that his Honour mischaracterised the reasons given by Gummow and Bell JJ in International Finance and wrongly concluded that three of the four majority justices considered that a mandatory obligation to proceed ex parte at the request of the DPP was sufficient, of itself, to produce invalidity.
In the result Eaton DCJ declared s 26(4) of the Act to be invalid, and set aside the restraining order.

The grounds of appeal

There are two grounds of appeal. They are:
1.His Honour erred in construing section 26(4) of the Act (in the circumstances in which it applies) to require a court to determine an application for a restraining order in respect of property without notice to the owner of the property because section 26(5) of the Act, properly construed, permits the court, at any time before finally determining the application, to direct the Director of Public Prosecutions to give such notice.
2.Further, and even if the Act required the court to determine an application for a restraining order in respect of property without notice to the owner of the property, his Honour erred in concluding that section 26(4) (in the circumstances in which it applies) is invalid because the Act provides for a restraining order to be revoked on the application of the owner of the property following a contested hearing in a manner that is compatible with Chapter III of the Constitution.

The notice of contention

The respondent filed a notice contending that the declaration that s 26(4) of the Act was invalid should be upheld on grounds that were said to go beyond the grounds found by Eaton DCJ namely:
1.That should section 26(5) of the Act be construed as empowering the court, before finally determining the application, to give notice to the owner (contrary to his Honour's findings and the respondent's submissions) section 26(4) impermissibly mandates that a court shall grant a restraining order without notice to the owner where the court is satisfied that the conditions of s 18 of the Act are fulfilled.
2.That the provisions of the Act, and in particular section 42, do not provide the facility or provide adequate means to an applicant for revocation of a restraining order to dissolve or set aside the original restraining order taking into account:
(a)the different criteria that apply to revocation of a restraining order from a criteria applicable to the granting of an order;
(b)the inability or potential inability of the respondent to access reasons for the original order; the submissions made in support of the order; and the limited nature of affidavit evidence available to an applicant for revocation;
(c)the onus and persuasive burden upon the applicant to establish a case by 'complex and negative enquiry'.
However, the written and oral submissions advanced in support of the notice of contention arguably went beyond the grounds expressly enunciated. It was submitted that even if the Act, properly construed, did not require the court to determine an application for a restraining order without notice to the owner, if the Act, properly construed, authorised the making of such an order without notice, it thereby purported to authorise the court to exercise the judicial power of the Commonwealth in a manner which was inconsistent with the essential character of a court, because there was no facility to speedily dissolve an order made ex parte, and because of the onerous nature of the burden imposed upon an applicant for revocation of a restraining order under s 42 of the Act.

Ground 1 of the appeal and ground 1 of the notice of contention

Ground 1 of the appeal and ground 1 of the notice of contention raise issues as to the proper construction of s 26 of the Act. Those issues are:
(a)is there a conflict between the ordinary meaning to be derived from s 26(4) and s 26(5), and if so, is that conflict to be resolved by a particular construction of one or other subsection?
(b)does s 26(4), read with s 18, require the court to hear and grant an application for a restraining order without notice to the owner when the DPP so requests and the requirements of s 18 of the Act are satisfied?
(c)to whom may the court direct that notice be given under s 26(5)?
I will deal with each of these issues in turn. While it is unnecessary to provide a detailed exegesis on the principles of statutory construction before doing so, I will offer some brief observations on that subject.
The basic object of statutory construction is to ascertain the intention of the Parliament to be derived from the words used in the relevant statutory provisions, construed in the context of the statute as a whole, preferring a construction that would promote the purpose or object underlying the statute. In addition, there are three specific principles which potentially apply in this case, two of which I have already mentioned.
First, in the absence of clear words, it is to be assumed that Parliament does not intend to encroach upon fundamental common law rights and freedoms: see Coco v The Queen [1994] HCA 15; (1994) 179 CLR 427, 437 (Mason CJ, Brennan, Gaudron & McHugh JJ). So, where there is a choice to be made between competing constructions, that construction which will minimise the impact of the statutory provision upon traditional common law rights and freedoms will be preferred.
Second, it is to be presumed that Parliament did not intend to exceed its legislative power: Lim (14) (Mason CJ) and s 15A Interpretation Act 1901 (Cth). Accordingly, where there is a choice between competing constructions, one of which would result in the provision being within legislative power, and the other of which would result in its invalidity, the former construction is to be preferred.
Third, 'it is quite inappropriate to read provisions conferring jurisdiction or granting powers to a court by making implications or imposing limitations which are not found in the express words': Owners of Shin Kobe Maru v Empire Shipping Company Inc [1994] HCA 54; (1994) 181 CLR 404, 421, (Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron & McHugh JJ).

(a) Are s 26(4) and s 26(5) inconsistent?

In its natural and ordinary meaning s 26(5) empowers the court to direct the DPP to give notice of the application for a restraining order to a particular person, or class of persons, at any time before the application has been finally determined. Eaton DCJ took the view that this meaning would be inconsistent with s 26(4), which obliges the court to consider the application without notice having been given upon the request of the DPP. Implicit in that view, is a construction of s 26(4) which would require the court to consider 'and determine' the application without notice upon the request of the DPP. The appellant challenges that view, whereas the respondent seeks to uphold it.
The first guide to the proper construction of s 26 is to be found in the lexicon employed within the section to differentiate between the functions which a court might perform pursuant to its terms. The word 'hear' is used in s 26(3) to identify that which a court must not do unless it is satisfied that the owner of the property has received reasonable notice. In s 26(4) the word 'consider' is used to identify that which the court must do, without notice, upon the request of the DPP. And in s 26(5) the expression 'finally determining' is used to identify the point in time up to which the court may direct the DPP to give notice of the application to a particular person or class of persons.
The words 'hear', 'consider' and 'determine' have different natural and ordinary meanings. It is reasonable to infer that the legislature intended that they bear different meanings, given that different words have been used in the same section.
In the context of the section, the word 'hear' is apt to connote a process which involves the presentation of evidence and argument to the court. The word 'consider' is apt to connote a process in which the court turns its mind to the application and the issues which it raises. In the context of s 26, this is a broader notion than that of 'hearing', in that consideration of an application may occur prior to the presentation of evidence and argument and extend to, for example, a 'consideration' of the procedures appropriately adopted, and the directions that should be made prior to a hearing.
In the context of s 26, 'determine' is apt to connote the process in which the court adjudicates upon the application by either granting or dismissing it. In s 26(5), the composite expression 'finally determining' is used. That expression is apt in a procedural context in which interim or temporary orders can be made, such as under the 1987 Act. No express provision is made in the Act for a restraining order to be made on an interim or temporary basis. It may be that the expression 'finally determining' is an inappropriate legacy from s 45(5) of the 1987 Act, and that within the structure created by the 2002 Act, the word 'finally' adds no meaning, because an application for a restraining order can only be determined once and for all. On the other hand, it may be that the expression gives rise to an implication that a court has power under the 2002 Act to issue an interim restraining order, in the sense of an order the operation of which is limited in point of time. That construction would be supported by the third specific principle of statutory construction to which I have referred above, namely, the principle that jurisdiction and powers conferred upon a court should not be construed as limited except by express words. However, this particular issue was not addressed at any great length in the submissions before us. It is not an issue that needs to be resolved in this case. It is sufficient for the purposes of this case to note that the word 'determined', when used in s 26(5), plainly has a quite different meaning to each of the expressions 'hear' and 'consider' used in s 26(3) and s 26(4) respectively.
The application of these natural and ordinary meanings gives the section a structure which is logical and coherent. Section 26(1) and s 26(2) impose obligations upon the DPP with respect to the giving of notice of an application for a restraining order. Section 26(3) provides that the court must not hear the application, in the sense of receiving evidence and argument in support of the application unless satisfied that the owner of the property has received reasonable notice of the application. Section 26(4) obliges the court to consider the application, in the sense of turning its mind to the steps that ought be taken in respect of the application, without notice, upon the request of the DPP. Section 26(5) provides a general power for the court to direct the DPP to give notice to any particular person or class of persons at any time before the application is determined, in the sense of being granted or dismissed.
Applying the basic object of statutory construction, there is nothing in the Act to suggest that the Parliament intended that the words used in s 26 should not bear their natural and ordinary meaning. In those meanings, there is no inconsistency between s 26(4) and s 26(5). Rather, the natural and ordinary meanings of the words used gives the section a logical and coherent structure. Further, in those meanings, the section does not adversely affect traditional common law rights and freedoms to any significant extent, nor would those meanings take the section beyond the legislative power of the Commonwealth. Further, in those meanings the only constraints upon the jurisdiction or powers conferred upon the court are those to be found within the express words of the section. All relevant principles of statutory construction support the conclusion that s 26(4) and s 26(5) should not be construed as inconsistent with each other.
Given the lexicon which the Parliament has engaged in s 26, if it had been the intention of Parliament to require the court to determine an application for a restraining order without notice to persons who might be adversely affected by such an order upon the request of the DPP, one would expect the Parliament to have used the word 'determine' in s 26(4), as it did in s 26(5). It has not done so, and there is nothing in the language or structure of the section, or the meanings to be derived from the language used in the section, which would suggest that s 26(4) should be read as requiring the court to 'consider and determine' the application.
This conclusion is reinforced by another guide to the construction of s 26. Significantly, each of s 26(1) ‑ s 26(3) is made subject to s 26(4). However, no similar constraint is placed upon the operation of s 26(5). If it had been the intention of Parliament to subjugate the broad power conferred upon the court by s 26(5), so that the court would be denied the power to direct the service of notice of the application when the DPP made a request under s 26(4), no doubt it would have done so by express words of constraint of the kind used in s 26(1) ‑ s 26(3).
Finally, the expression 'at any time before finally determining', which is used to condition the time at which the power conferred by s 26(5) can be exercised, is clear and unequivocal, and entirely inconsistent with any implied limitation to be derived from s 26(4).
This view of the construction of s 26 of the Act is supported by a number of observations in previous cases, although their force is diminished by the fact that they were made obiter and apparently without the matter being the subject of contentious argument. Nevertheless, in Director of Public Prosecutions (Cth) v Hart [2003] QCA 495; [2004] 2 Qd R 1 [20] (Wilson J); International Finance [34] (French CJ); and Ex parte Commonwealth Director of Public Prosecutions [2010] WASC 277 [2] (Allanson J) observations were made to the effect that s 26(5) empowers a court to direct the DPP to give notice of the application even in cases in which the DPP has exercised the power conferred by s 26(4) to request the court to consider the application ex parte.
For these reasons, I do not consider that there is any inconsistency between s 26(4) and s 26(5), so as to give rise to any need to read down the natural and ordinary meaning of s 26(5).

(b) Does s 26(4), read with s 18, require the court to grant an order without notice?

By his notice of contention, the respondent asserts that even if s 26(5) empowers the court to require the DPP to give notice to the owner before determining an application for a restraining order, the combined effect of s 26(4), read with s 18, is to require the court to grant an order in circumstances where the DPP makes a request under s 26(4), and the requirements of s 18 are met. The argument relies upon the mandatory terms of s 18, which obliges the court to make a restraining order when its conditions are satisfied. Essentially the proposition is that if the court 'considers' the application as required by s 26(4), and sees that the requirements of s 18 are met, it is obliged to grant the restraining order sought.
This submission should be rejected, for much the same reasons that the proposition that there is an inconsistency between s 26(4) and s 26(5) should be rejected.
Section 18 specifies the requirements which must be met before a restraining order can be made, and provides that when those requirements are met, a restraining order must be made. Within the lexicon created by s 26, the process upon which the court embarks for the purpose of ascertaining whether the requirements of s 18 have been met, is the process of 'hearing' the application, in the sense of receiving evidence and argument. After that process is complete, the court will 'determine' the application by adjudicating upon the question of whether or not the requirements of s 18 have been met. If the court determines that those requirements have been met, it will necessarily follow that the order must be granted, because of the mandatory terms of s 18.
There is no reason why a court could not 'consider' an application, as required by s 26(4) without either hearing or determining the application, in the senses I have just described. It is entirely consistent with the lexicon used within s 26 for the court to 'consider' the application for the purposes of determining, for example, whether the power conferred by s 26(5) should be exercised, or whether other procedural directions should be made prior to the hearing of the application. A construction of s 26(4), read with s 18, which would impliedly exclude the power of the court to adjourn the consideration of the application, or to make procedural directions with respect to the hearing and determination of the application would infringe the specific principle of statutory construction endorsed by the High Court in Shin Kobe Maru. It is also a construction which would adversely impact upon rights of procedural fairness, contrary to the specific principle of construction to which I have referred, and it is not a construction which is consistent with the natural and ordinary meaning of the words used. It should be rejected.

(c) Can the court direct that notice be given to the owner under s 26(5)?

There is nothing in the language of s 26(5) which would constrain the range of persons in respect of whom a court might direct that notice be given. To the contrary, the section expressly empowers a court to direct the DPP to give notice 'to a specified person or class of persons'. However, Eaton DCJ concluded that the section should be construed as not authorising the court to direct that notice of the application be given to the owner of the property, for two reasons. First, he inferred that s 26(5) must be referring to the service of notice upon persons other than owners because s 26(1) expressly obliges the DPP to serve notice upon the owner of the property the subject of the application. Second, he relied upon the terms of the explanatory memorandum for the 2002 Bill, the relevant terms of which I have set out above.
The first line of reasoning relied upon by Eaton DCJ, and reiterated by the respondent in this appeal, requires the conclusion that s 26(1) covers the field with respect to service of notice upon the owner or owners of property affected by a restraining order. The respondent supports that proposition by pointing to the specification, within s 26(1), of the materials that must be served together with notice, and the absence of any such specification in s 26(5). The respondent also contends that there is an inference to be drawn from the structure of the 1987 Act, to the effect that s 26(5), like the equivalent provision in the 1987 Act, should not be construed as conferring power upon the court to direct that notice be given to an owner. I will deal with each of these propositions in turn.
The proposition that s 26(1) should be construed as covering the field with respect to the service of notice upon the owner or owners of property affected by a restraining order is answered by a consideration of the nature of the obligations imposed by that section, as compared to the nature of the powers conferred upon the court by s 26(5). Section 26(1), like s 26(2), imposes obligations upon the DPP. However, s 26(4) empowers the DPP to require the court to consider an application notwithstanding a failure to give notice in accordance with the obligations imposed by s 26(1) and s 26(2).
In that context, s 26(5) confers a broad power upon the court, to direct service upon any particular person or class of persons. The breadth of the range of persons who might be given notice if the court decides to exercise that power is to be contrasted with the specific categories of persons required to be given notice by s 26(1) and s 26(2). The power conferred upon the court by s 26(5) is a power which enables the court to afford procedural fairness to anybody who might be affected by the making of a restraining order and who has not been given notice of the proceedings. That construction of s 26(5) is consistent with the specific principles of construction which require provisions to be construed consistently with traditional common law rights and freedoms, and without inhibitions or constraints upon the powers of courts other than those imposed expressly.
In that context, s 26(5) is properly construed as an overarching general provision intended to confer a broad power upon a court to ensure the provision of procedural fairness to anybody whose interests might be affected by the making of a restraining order, and who has not been given notice of the proceedings. There may be any number of reasons why such persons may not have been given notice. For example, the DPP may not have considered the relevant person to be an owner or owners of property, or to have a relevant interest in the property, or it may not have been able to locate the person or persons for the purposes of service. Of course it might also be that a person whose interests might be affected by the order may not have been given notice at the time the court first considered the application because the DPP had exercised the power conferred by s 26(4) to require the court to consider the application notwithstanding the failure to give notice. There is nothing in the language used in s 26(5) which would suggest that the powers conferred upon the court to achieve the provision of procedural fairness should be read down, so as to extend only to some categories of persons who might not have been given notice, but not others (such as owners not given notice at the time an application is considered pursuant to s 26(4)). On the contrary, the breadth of the language used, and the remedial purpose evident in the provision itself, compel a contrary conclusion.
The respondent points to the lack of specificity in s 26(5), with respect to the documents that are to be served upon a person to whom notice is to be given, if the court so directs. However, the inherent powers of the court with respect to the control of its own processes, to be exercised in the interests of justice, including the provision of procedural fairness, are quite wide enough to enable a court to direct that a particular document or documents be served upon a person to whom notice is to be given in accordance with a direction issued under s 26(5).
Turning to the argument based upon the provisions of the 1987 Act, it is by no means clear that the 1987 legislation should be construed as the respondent contends and, in particular, as excluding a power in the court to direct service upon an owner of property. Certainly there is no authority to that effect. But in any case, the structure created under the 1987 Act is quite different to the structure created under the 2002 Act, in that it expressly envisages the making of restraining orders of limited duration in cases where notice was not given prior to the making of the order. That fundamental difference in structure makes it unsafe to draw any conclusions as to the proper construction of the 2002 Act from the language of the 1987 Act.
I turn now to the secondary materials, in particular the explanatory memorandum for the 2002 Bill, relied upon by Eaton DCJ to support his conclusion that s 26(5) did not empower the court to direct service upon an owner of property affected by a restraining order.
For the reasons I have already given, the natural and ordinary meaning of the words used in s 26 gives rise to a structure of the section which is logical and coherent, which accords with the object or purpose expressed in the Act, and the specific principles of statutory construction to which I have referred. In that circumstance, I doubt that the explanatory memorandum is admissible pursuant to the provisions of s 15AB(1) of the Acts Interpretation Act 1901 (Cth). The provisions of s 26 do not appear to me to be either ambiguous or obscure, nor does the ordinary meaning conveyed by the text of the section lead to a result that is manifestly absurd or unreasonable. Nor was the explanatory memorandum relied upon by the respondent or by Eaton DCJ to confirm that the meaning of the provision is its ordinary meaning.
However, no objection was taken to the consideration of the secondary materials, with the consequence that it would not be appropriate to decide this point without considering them.
The language of the explanatory memorandum is not consistent with the language of the statute. For example, the explanatory memorandum suggests that the court has no discretion to refuse an ex parte hearing. That proposition is not consistent with the language of the section, which differentiates between a consideration of an application, and the hearing of an application. Similarly, in its reference to the DPP giving notice, if directed, to any 'other' person, the explanatory memorandum departs significantly from the language used in s 26(5).
It is a clear inference from the language of the explanatory memorandum that it has not been written with technical precision in mind. The reference to the persons who might be served with notice as a result of the direction of a court is not expressed exhaustively, so as to define the range or class of persons who might be served pursuant to such a direction. In that circumstance, it would not be appropriate to construe the explanatory memorandum as if it were a substitute for the statute itself, given the imprecision of its language.
In any event, the primary source of the meaning of a statutory provision is the words used by the Parliament. If the language of the statutory provision, and the language of the explanatory memorandum are directly and irreconcilably inconsistent, it is the language of the statute that must prevail. The construction of the explanatory memorandum for which the respondent contends is irreconcilably inconsistent with the natural and ordinary meaning of the words used by the Parliament in s 26 of the Act. Those words, and the meanings they convey, must prevail. In this regard the recent remarks of French CJ, Gummow, Hayne, Crennan and Kiefel JJ in Saeed v Minister for Immigration and Citizenship [2010] HCA 10; (2010) 241 CLR 252 [31] ‑ [33] are pertinent:
As Gummow J observed in Wik Peoples v Queensland, it is necessary to keep in mind that when it is said the legislative 'intention' is to be ascertained, 'what is involved is the "intention manifested" by the legislation'. Statements as to legislative intention made in explanatory memoranda or by ministers, however clear or emphatic, cannot overcome the need to carefully consider the words of the statute to ascertain its meaning.
In R v Bolton; Ex Parte Beane the question was whether a statutory provision concerned with 'visiting forces' applied to deserters from the armed forces of the United States. Mason CJ, Wilson and Dawson JJ said:
"[T]he second reading speech of the Minister … quite unambiguously asserts that Pt III relates to deserters and absentees whether or not they are from a visiting force. But this of itself, while deserving serious consideration, cannot be determinative; it is available as an aid to interpretation. The words of a Minister must not be substituted for the text of the law. Particularly is this so when the intention stated by the Minister but unexpressed in the law is restrictive of the liberty of the individual. It is always possible that through oversight or inadvertence the clear intention of the Parliament fails to be translated into the text of the law. However unfortunate it may be when that happens, the task of the Court remains clear. The function of the Court is to give effect to the will of Parliament as expressed in the law."
…
As was pointed out in Catlow v Accident Compensation Commission it is erroneous to look at extrinsic materials before exhausting the application of the ordinary rules of statutory construction. (citations omitted)

The court, in exercising its jurisdiction in relation to restraining orders, may, if it thinks fit, adjourn its consideration and any hearing of the DPP's application. The court may order an adjournment whether or not the DPP has made a request of the court under s 26(4). Relevantly, for present purposes, the court may adjourn its consideration and any hearing of the application to enable:
(a)the DPP to comply with any order for the giving of notice which the court may make under s 26(5); and
(b)any person with standing under s 26(6) to appear and adduce evidence.
The court's power of adjournment and other procedural powers are embodied primarily in the rules of court.
In the present case, the rules of court of the District Court of Western Australia, including its power of adjournment, were 'picked up' by s 79 of the Judiciary Act. Neither the Constitution nor any law of the Commonwealth 'otherwise provided'. Indeed, as I have mentioned, s 15 of the Act records the Parliament's intention that the Act is not to apply to the exclusion of a law of a State or Territory to the extent that the law is capable of operating concurrently with the Act. In my opinion, the District Court's power of adjournment under its rules of court is capable of operating concurrently with, relevantly, s 18 and s 26 of the Act. Nothing in the Act indicates that the Parliament intended that a court with jurisdiction under the Act should act other than 'according to the rules of procedure by which it is governed and subject to the incidents by which it is affected': Electric Light and Power Supply Corporation Ltd v Electricity Commission (NSW) [1956] HCA 22; (1956) 94 CLR 554, 559 (Dixon CJ, McTiernan, Williams, Webb, Fullagar, Kitto & Taylor JJ). The Parliament has taken each court with jurisdiction under the Act as the Parliament finds the court, with all its incidents. Generally see Thomas v Mowbray [2007] HCA 33; (2007) 233 CLR 307 [55] (Gummow & Crennan JJ); Gordon v Tolcher [2006] HCA 62; (2006) 231 CLR 334 [11] ‑ [12], [40] ‑ [41] (Gleeson CJ, Gummow, Hayne, Callinan & Heydon JJ); Director of Public Prosecutions (Cth) v Mare [2008] QCA 373; [2009] 1 Qd R 209 [31], [56] (Fraser JA, Mackenzie AJA & Daubney J agreeing).
In my respectful opinion, the reasoning of the primary judge in relation to s 18 and s 26 was erroneous. In particular, for the reasons I have given:
(a)the natural and ordinary meaning of s 26(5) is not inconsistent with s 26(4);
(b)s 26(4) and s 18(1), read together, do not preclude or inhibit the court's exercise of the power under s 26(5) in respect of the owner of the property or anyone else;
(c)the mandatory nature of s 18 does not mean that 'final determination' of an application for a restraining order covering property will necessarily be contemporaneous with its consideration under s 26(4);
(d)s 26 does not make a rigid distinction between the owner of property, a person having an interest in property, and a specified person or class of persons; and
(e)the structure of s 26 and the unqualified language of s 26(5) indicate that s 26(5) is an overarching provision that does not create a third category of persons which is mutually exclusive of the owner of the property or of persons having an interest in the property.
The Parliament expresses its intention through the meaning of the statutory text it has adopted, understood in the light of background, purpose and object, and surrounding circumstances. See Singh v The Commonwealth [2004] HCA 43; (2004) 222 CLR 322 [19] (Gleeson CJ). The passage in the explanatory memorandum to the Act relied on by the primary judge does not provide a proper basis (let alone a secure foundation) for departing from what is, in my opinion, the ordinary meaning conveyed by the text of s 26 in the context of the Act as a whole. Section 26 is neither ambiguous nor obscure, and the construction I have given it does not lead to a result that is manifestly absurd or unreasonable. Section 15AB of the Acts Interpretation Act 1901 (Cth) does not permit recourse to the explanatory memorandum for the purpose of departing from the ordinary meaning of the statutory text unless either the meaning of the provision to be construed is ambiguous or obscure or, in its ordinary meaning, leads to a result that is manifestly absurd or unreasonable. See Re Australian Federation of Construction Contractors; Ex parte Billing [1986] HCA 74; (1986) 68 ALR 416, 420 (Gibbs CJ, Mason, Wilson, Brennan, Deane & Dawson JJ). None of those conditions is satisfied in relation to s 26.
Ground 1 of the appeal has been made out.

Ground 1 of the notice of contention: its merits

For the reasons I have given in the course of considering ground 1 of the appeal, s 26(4) of the Act does not mandate that a court must grant a restraining order over property without notice to the owner where the court is satisfied that the conditions in s 18(1) are fulfilled.
Ground 1 of the notice of contention fails.

Ground 2 of the appeal: its merits

Ground 2 of the appeal is based on the premise that, contrary to my opinion in relation to ground 1, the Act requires the court to determine an application for a restraining order covering property without notice to the owner. It is therefore strictly unnecessary to deal with ground 2.
The High Court follows the precept that constitutional questions should not be decided unless it is necessary 'to do justice in the given case and to determine the rights of the parties': Lambert v Weichelt (1954) 28 ALJ 282, 283 (Dixon CJ, McTiernan, Webb, Fullagar, Kitto & Taylor JJ). See also ICM Agriculture Pty Ltd v The Commonwealth [2009] HCA 51; (2009) 240 CLR 140 [141] (Hayne, Kiefel & Bell JJ).
On the assumption that this precept applies to intermediate courts of appeal, it is nevertheless appropriate in the present case that I express my view on ground 2 because there is a division of opinion in the court as to the merits of ground 1.
My examination of ground 2 will necessarily be based on the premise that, contrary to my opinion, the Act requires the court to determine an application for a restraining order covering property without notice to the owner.
The primary judge, in declaring s 26(4) to be invalid, purported to apply the reasoning of the High Court in International Finance Trust.
In International Finance Trust, a majority of the High Court (French CJ, Gummow, Heydon & Bell JJ; Hayne, Crennan & Kiefel JJ dissenting) held that s 10 of the Criminal Assets Recovery Act 1990 (NSW) (the New South Wales Act) was invalid in that the provision required the Supreme Court of New South Wales to engage in an activity that was repugnant, in a fundamental degree, to proper judicial process. See [55] ‑ [56] (French CJ), [98] (Gummow & Bell JJ), [155], [161] (Heydon J).
Section 10 of the New South Wales Act was concerned with applications for restraining orders covering property. The process relating to an application for a restraining order under s 10 was summarised by Hayne, Crennan and Kiefel JJ, as follows:
A State statute permits a law enforcement authority to seek from the State's Supreme Court, without notice to anyone, an order preventing any dealing with specified property. The Supreme Court must make that restraining order if a law enforcement officer suspects that the person who owns the property has committed one of a broad range of crimes, or the officer suspects that the property is derived from criminal activity, and the Court considers that there are reasonable grounds for the suspicion. The statute makes no express provision for any subsequent contested hearing about whether a restraining order should be made.
On application by a law enforcement authority, the Supreme Court must order forfeiture of property subject to a restraining order if it is more probable than not that, at any time within the previous six years, the person whose conduct formed the basis of the restraining order had committed any offence punishable by five or more years' imprisonment. Subject to some exceptional cases where hardship would be caused to innocent others, property can only be excluded from the operation of a restraining order, or a forfeiture order, if it is shown to be more probable than not that the relevant interest in the property was not acquired as a result of any illegal activity [101] ‑ [102]. (original emphasis)
Gummow and Bell JJ gave this explanation of the relevant operation of the New South Wales Act:
The Supreme Court is conscripted for a process which requires in substance the mandatory ex parte sequestration of property upon suspicion of wrong doing, for an indeterminate period, with no effective curial enforcement of the duty of full disclosure on ex parte applications. In addition the possibility of release from that sequestration is conditioned upon proof of a negative proposition of considerable legal and factual complexity [97].
In the present case, the duration of a restraining order is specified in s 41, s 42 and s 45 of the Act. The effect of the order is, in essence, to prohibit the owner of the property in question or any person with an interest in that property from disposing of or otherwise dealing with the property.
By s 37(1), a person is guilty of an offence if:
(a)the person disposes of, or otherwise deals with, property; and
(b)the person knows that, or is reckless as to the fact that, the property is covered by a restraining order; and
(c)the disposition or dealing contravenes the order.
See also s 37(2).
In the present case, the primary judge appears to have understood International Finance Trust to be authority for the proposition that compatibility with the judicial function demands that the court have a discretion to determine whether an application for a restraining order should be determined without notice having been given. See his Honour's reasons at [10], [33].
The primary judge's understanding accords with the reasoning of French CJ in International Finance Trust. See French CJ's reasons at [40], [44] ‑ [45], [55] ‑ [57]. However, the Chief Justice was alone in the view that the Parliament could not remove this discretion from the court.
By contrast:
(a)Heydon J, a member of the majority, said that the court's lack of 'discretion to adjourn the hearing briefly while notice is given to the person affected' was 'not by itself repugnant to the judicial process' [152]. See also his Honour's reasons at [154], [156] ‑ [158].
(b)The minority, Hayne, Crennan and Keifel JJ, said that there is nothing repugnant to the judicial process in the bare fact that it is not left to the court to decide whether an application for a restraining order should be determined ex parte [135] ‑ [136].
The opinion of Gummow and Bell JJ on this issue is, with respect, less clear, but it appears that they did not regard the mandatory ex parte nature of the application alone as determinative of invalidity [89], [93], [97]. Their Honours appear to have regarded as critical, the additional absence of any mechanism for the 'effective curial enforcement of the duty of full disclosure on ex parte applications' [97].
Section 33(1) of the Act requires the DPP to give written notice of the fact that a restraining order covering property has been made to the owner of the property. The DPP must include a copy of the application and any affidavit supporting the application with the notice (if those documents have not already been given to the owner): s 33(2). However, s 33(3) confers on the court the power to order that all or part of the application or affidavit is not to be given to the owner, or that the DPP delay giving the notice (and the documents included with the notice) for a specified period, if the DPP requests the court to do so and the court considers that this is appropriate in order to protect the integrity of any investigation or prosecution. By s 33(4), if the court orders the DPP to delay giving the notice (and the documents included with the notice) for a specified period, the DPP must give the notice as soon as practicable after the end of that period.
It is of significance that the power to order non‑disclosure is discretionary and is vested in the court. Neither s 33 nor any other provision of the Act precludes or inhibits the court from exercising this discretion in a manner that will ensure justice in the particular case as between the DPP and the integrity of any investigation or prosecution, on the one hand, and the owner of the property and the owner's rights and interests in relation to the property, on the other. See generally Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72; (2005) 225 CLR 88 [24] (Gleeson CJ, Gummow, Kirby, Hayne & Heydon JJ); Gypsy Jokers Motorcycle Club Inc v Commissioner of Police [2008] HCA 4; (2008) 234 CLR 532 [182] (Crennan J); K-Generation Pty Ltd v Liquor Licensing Court [2009] HCA 4; (2009) 237 CLR 501 [97] (Gummow, Hayne, Heydon, Crennan & Kiefel JJ).
Section 42 of the Act makes provision for a person who was not notified of an application for a restraining order to apply to the court to revoke the order. The application to revoke must be made within 28 days after the person was notified of the restraining order, however there is (limited) provision for the granting of an extension of time: s 42(1A). Also, s 39 makes provision for, relevantly, the owner of the property covered by a restraining order (s 39(2)(b)), and any other person who has the leave of the court (s 39(2)(d)), to apply to the court for ancillary orders in relation to the restraining order, including an order varying the property covered by the restraining order (s 39(1)(a)) and an order varying a condition to which the restraining order is subject (s 39(1)(b)).
Section 42 makes available an inter partes hearing to determine an application by, relevantly, the owner of the property covered by a restraining order (who was not notified of the application for the restraining order) to revoke the ex parte order.
An owner who makes application under s 42 is entitled to adduce evidence at the inter partes hearing, challenge the DPP's evidence and make submissions to the court. Section 42 does not preclude or inhibit the court from conferring on the owner, in relation to the inter partes hearing, the ordinary entitlements under the established rules of procedural fairness. Generally see Director of Public Prosecutions (Cth) v Tan [2004] NSWSC 856 [4] ‑ [9] (Shaw J).
The court may revoke a restraining order under s 42(5) if it is satisfied that there are no grounds on which to make the order at the time of considering the application for revocation. The owner bears the onus of persuading the court that there are no reasonable grounds to suspect that a person has committed a serious offence: s 18(1)(d); s 317(1).
In Lee v Director of Public Prosecutions (Cth) [2009] NSWCA 347; (2009) 75 NSWLR 581, Basten and Macfarlan JJA and Sackville AJA made the following observations in relation to s 42(5) of the Act (while noting that it was unnecessary to resolve the issues):
It seems preferable … to treat s 42(5) as requiring satisfaction at the time of the revocation hearing as to the absence of such grounds as could have been relied upon to justify a restraining order, being the grounds specified in whichever of ss 17, 18 or 19 formed the basis of the original order. On that view, the order would be liable to revocation if the Court were satisfied that there were no reasonable grounds for the suspicion which had been relied upon [30].
I respectfully agree with this opinion.
Section 42 of the Act is readily distinguishable from the provisions of s 25 of the New South Wales Act, which were under consideration in International Finance Trust. In particular:
(a)Section 25 permitted, relevantly, an owner of restrained property to make an application for an exclusion order and, merely incidental to that application, the owner may have been able to litigate the propriety of the underlying restraining order: International Finance Trust [93] (Gummow & Bell JJ).
(b)By contrast, s 42 expressly prescribes a procedure for, relevantly, an owner of restrained property, who did not receive notice of the DPP's application for the restraining order, to revoke the ex parte order and, in the course of that application, to adduce evidence and make submissions.
(c)Section 25(2) required that, before an exclusion order could be made, the owner of property, by 'negating … an extremely widely drawn range of possibilities of contravention of the criminal law found in the common law, and State and federal statute law', prove 'a negative proposition of considerable legal and factual complexity': International Finance Trust [96] ‑ [97] (Gummow & Bell JJ).
(d)By contrast, s 42 confers on the court power to revoke the ex parte order if the owner satisfies the court that there are no grounds on which to make the order at the time of considering the application to revoke the order: s 42(5).
In my opinion, the Act (unlike the New South Wales Act) does not displace, without an adequate alternative judicial remedy, the court's power to discharge any restraining order covering property that was made without notice of the application having been given to the owner. The Act does not require or authorise the courts with jurisdiction under the Act to exercise judicial power in a manner inconsistent with the essential character of a court or with the nature of judicial power. See Chu KhengLim v Minister for Immigration, Local Government and Ethnic Affairs [1992] HCA 64; (1992) 176 CLR 1, 27 (Brennan, Deane & Dawson JJ). The primary judge should have held that there is nothing repugnant to the judicial process in a provision for orders to be made ex parte, at least where those orders may be revoked after a prompt inter partes hearing. The procedure in s 42 is adequate to sustain the constitutional validity of s 26(4) if, contrary to my opinion, the Act requires the court to determine an application for a restraining order without notice to the owner.
Ground 2 of the appeal has been made out.

Ground 2 of the notice of contention: its merits

The criteria which apply to the revocation of a restraining order covering property are not materially different from the criteria which apply to the granting of the order. The court must make a restraining order if, amongst other things, there are reasonable grounds to suspect that a person has committed a serious offence: s 18(1)(d). The onus is on the DPP to make out reasonable grounds for suspicion. The court may revoke the order if satisfied that there are no grounds on which to make the order at the time of considering the application to revoke: s 42(5). The onus is on the owner to satisfy the court, relevantly, that there are no reasonable grounds for suspicion. The order will be liable to revocation if the court is satisfied that there were no reasonable grounds for the particular suspicion which had been relied upon at the ex parte hearing. See [246] ‑ [250] above.
The discretionary power under s 33(3) to order that all or part of the application or affidavits is not given to the owner may only be exercised if, relevantly, the court 'considers' that this is 'appropriate' in order to protect the integrity of any investigation or prosecution. The court's power is conditioned upon a determination by the court that it 'considers' that the making of the order is 'appropriate' for the stipulated purpose. The words 'considers' and 'appropriate' indicate that an evaluative judgment is required, by reference to the particular facts and circumstances of the case, as to whether an order should be made and, if so, upon what conditions, if any. The word 'appropriate' connotes propriety; that is, whether the exercise of the court's power will provide an outcome that is, in the particular facts and circumstances, proper for the protection of the investigation's or the prosecution's integrity. In my opinion, the court, in determining whether it is 'appropriate' or proper to make the order and, if so, upon what conditions, if any, may take into account any impact upon the administration of justice (including any prejudice to the owner) if the order is made, whether conditionally or unconditionally. Compare the court's power where a claim of public interest immunity is made in respect of documents: Alister v The Queen [1984] HCA 85; (1984) 154 CLR 404, 412 (Gibbs CJ); The Commonwealth v Northern Land Council [1993] HCA 24; (1993) 176 CLR 604, 616 ‑ 617 (Mason CJ, Brennan, Deane, Dawson, Gaudron & McHugh JJ). Section 33(3) does not require or authorise the court to exercise judicial power in a manner inconsistent with the essential character of a court or with the nature of judicial power.

Although the owner bears the onus of satisfying the court that there are no grounds on which to make the order at the time of considering the application to revoke the order, that onus cannot reasonably be characterised as involving the establishment of a case by 'complex and negative inquiry'.
For the reasons I have given in the course of considering ground 2 of the appeal and for the reasons set out at [254] ‑ [256] above, the provisions of the Act, in particular s 42, provide a prompt and effective facility to set aside a restraining order covering property after the owner is given notice of the order.
Ground 2 of the notice of contention fails.

Conclusion

I would allow the appeal.
Orders 1, 2 and 5 made by the primary judge on 7 May 2010 should be set aside and, instead, it should be ordered that the respondent's application made by chamber summons dated 21 December 2009, as varied by the amended chamber summons filed 16 March 2010, be dismissed.
The parties should be heard as to the precise form of the orders including as to costs.