Zheng & Anor v Commissioner of Australian Federal Police & Anor;Commissioner of Australian Federal Police v Zheng & Anor

The case involved an application by the Commissioner of the Australian Federal Police (Commissioner) for restraining orders against Yunjuan Zheng and Shengqi Zheng (the Zhengs) concerning a property and a bank account. The application was made without notice to the Zhengs, who were in China at the time. The District Court of South Australia granted the restraining orders. Subsequently, the Zhengs, upon their return to Australia, sought to have these orders revoked, arguing that certain provisions of the relevant legislation were invalid. The matter came before the Full Court of the Supreme Court of South Australia, with the Attorney-General for South Australia intervening to make submissions on the validity of a specific section of the Proceeds of Crime Act.

The primary legal issues before the Full Court concerned the validity of section 42(1A) of the Proceeds of Crime Act 2002 (Cth) and section 400.9(1) of the Schedule to the Criminal Code Act 1995 (Cth). The Zhengs contended that section 42(1A) of the Proceeds of Crime Act, which imposed a time limit for challenging restraining orders, unduly restricted their right to seek judicial review and was therefore invalid. They also challenged the validity of section 400.9(1) of the Criminal Code.

The Court considered the nature of restraining orders as interlocutory and noted the procedural safeguards in place before property could be forfeited. It concluded that the time limit imposed by section 42(1A) of the Proceeds of Crime Act did not so severely curtail the right to seek review as to be incompatible with the judicial process. Consequently, the Court dismissed the Zhengs' application for a declaration that section 400.9(1) of the Criminal Code was invalid, and also dismissed their interlocutory application challenging the validity of section 42(1A) of the Proceeds of Crime Act. The Court indicated it would hear the parties on the issue of costs.