Lordianto & Anor v Commissioner of the Australian Federal Police; Kalimuthu & Anor v The Commissioner of the Australian Federal Police

The High Court of Australia considered appeals in two cases, *Lordianto & Anor v Commissioner of the Australian Federal Police* and *Kalimuthu & Anor v The Commissioner of the Australian Federal Police*. Both appeals concerned the interpretation and application of Chapter 3 of the *Proceeds of Crime Act 2002* (Cth) (the Act), specifically provisions relating to the forfeiture of unlawfully acquired property. The central dispute revolved around whether the Commissioner of the Australian Federal Police (AFP) had the power to seek forfeiture orders against property that had been acquired by the appellants through criminal conduct, even where that property had subsequently been transferred to third parties.

The primary legal issue before the High Court was whether the Commissioner could obtain a forfeiture order under s 153 of the Act in circumstances where the property in question had been transferred to a third party who was not alleged to have engaged in criminal conduct. This involved determining the scope of the Commissioner's power to seek forfeiture of property that was no longer in the possession of the person who acquired it unlawfully, and the extent to which the Act protected the interests of innocent third-party transferees. The Court also considered whether the Commissioner was required to demonstrate that the third-party transferee had knowledge of the unlawful acquisition of the property.

The High Court held that the Commissioner was not required to prove that a third-party transferee had knowledge of the unlawful acquisition of the property for a forfeiture order to be made under s 153 of the Act. The Court reasoned that the purpose of Chapter 3 of the Act is to deprive persons of property acquired through criminal activity, and that this purpose would be undermined if innocent transferees could defeat forfeiture simply by acquiring the property. The Court emphasised that the Act provides mechanisms for compensation to be paid to innocent third parties who are deprived of their property, thereby balancing the interests of the state in recovering proceeds of crime with the rights of individuals. The appeals were dismissed.