Mai v Commissioner of the Australian Federal Police

Mai was the subject of a restraining order made under the Proceeds of Crime Act 2002 (Cth), which was subsequently revoked by the court. The Commissioner of the Australian Federal Police applied to the Federal Court to reinstate the restraining order, which was opposed by Mai. The central issue before the court was the onus of proof in relation to the revocation of a restraining order under the Act.

The court considered whether the onus was on the applicant to prove there were no possible grounds for the restraining order when the revocation application was made, or whether the court needed to be satisfied that there were no grounds for making the restraining order on the evidence before it. The court concluded that the latter approach was correct, and that the requirement relates back to and invokes the statutory test for making restraining orders. The court noted that in order for the applicant to succeed, they must show that there were no grounds for making the restraining order on the evidence before it.

The court also considered whether the grounds for suspicion must be those of the authorised officer, or whether the relevant grounds are those stated by the officer. The court found that the relevant grounds are those stated by the officer, and that there was no requirement to suspect actual advantage, gain or loss. The court held that the use of a company account for the purpose of concealing the financial position from taxation and social security authorities provided reasonable grounds for the suspicion.

The appeal was dismissed, and the restraining order was reinstated.