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

The applicants, Lordianto and Kalimuthu, sought judicial review of decisions made by the Commissioner of the Australian Federal Police (AFP) to refuse their applications for the return of seized property. The property in question, consisting of cash and a vehicle, had been seized by the AFP under the *Proceeds of Crime Act 2002* (Cth) (POCA). The applicants argued that the Commissioner had erred in law by failing to consider relevant factors and by applying an incorrect interpretation of the POCA. The matter was heard by the High Court of Australia.

The central legal issue before the High Court was whether the Commissioner, in exercising the discretion to refuse the return of seized property under s 217 of the POCA, was required to consider the applicants' current financial circumstances and the potential hardship that the continued detention of the property would cause. The applicants contended that a failure to consider these factors rendered the Commissioner's decisions unreasonable and legally flawed.

The High Court held that the Commissioner's discretion under s 217 of the POCA was not unfettered. While the primary purpose of the POCA is to deprive offenders of their illicit gains, the Court found that the Commissioner must, in exercising the discretion to refuse the return of property, take into account all relevant considerations. This includes the applicants' financial circumstances and the potential hardship that the continued detention of the property would impose, particularly where the applicants are not alleged to have committed any criminal offence. The Court emphasised that the exercise of such a discretion must be rational and based on a proper understanding of the statutory purpose and the specific facts of the case.

The High Court allowed the appeals, quashed the decisions of the Commissioner, and remitted the applications for the return of the property to the Commissioner for redetermination according to law.