Nguyen & Anor v Commissioner of the Australian Federal Police

This matter concerned an application for special leave to appeal to the High Court of Australia from a decision of the Court of Appeal. The applicants, Mr. Nguyen and another, sought to challenge the constitutional validity of certain provisions of the *Proceeds of Crime Act 2002* (Cth) (the Act), which established a civil forfeiture scheme. The respondent was the Commissioner of the Australian Federal Police. The core of the applicants' argument was that the scheme, particularly the role and powers of an "examiner" appointed under the Act, contravened section 77(iii) of the Australian Constitution.

The legal issues before the High Court were whether the scheme established by the *Proceeds of Crime Act 2002* (Cth) offended section 77(iii) of the Constitution. Specifically, the applicants contended that the Act, by investing an examiner with certain powers and functions, effectively incorporated a non-judicial functionary into the institutional setting of a Chapter III court, thereby impermissibly expanding the scope of federal jurisdiction. They argued that the examiner's powers, including the ability to make rulings on evidence and potentially determine matters of law, went beyond the traditional role of a commissioner taking evidence and were not subject to sufficient curial control, thus constituting an unconstitutional "parachuting" of a functionary into the court's structure. A further issue raised was whether the Court of Appeal had erred in bifurcating the matter, thereby separating parts of the federal jurisdiction between the court and the examiner.

The applicants' central submission was that the examiner, by virtue of the powers conferred by the Act, was effectively made an officer of the court in a manner that contravened the principle that when investing a court with federal jurisdiction, the Commonwealth takes the court in its contemporary institutional setting. They argued that the examiner's immunity from suit, discretion to refer legal matters to the court, and the practical necessity for the examiner to make findings regarding compliance with examination notices, demonstrated that the examiner was exercising core functions associated with a court. This, they contended, was distinct from established procedures like taking evidence on commission, where the court retains ultimate control. The applicants also relied on the *Kable* doctrine, suggesting that the civil forfeiture scheme, by avoiding certain procedural safeguards and creating a bifurcated process, also raised constitutional concerns.

The High Court refused special leave to appeal. Keane J stated that the decision of the Court of Appeal was not attended by sufficient doubt to warrant the grant of special leave. Consequently, the application was refused with costs.