Application by the Commissioner of the Australian Federal Police

By summons filed in Court today, the Commissioner of the Australian Federal Police (the Commissioner), seeks orders pursuant to s 19 of the Proceeds of Crime Act 2002 (Cth) (the Act). In support of the summons, the Commissioner relies on the affidavit of Scott Michael Mathews affirmed 30 November 2015. Federal Agent Mathews deposes in paragraph 1 of his affidavit that he is a member of the Australian Federal Police (AFP).

Section 19 of the Act provides that a Court with proceeds jurisdiction (which includes this Court) must, if certain conditions are fulfilled, make an order that property not be deposed of or otherwise dealt with by any person. The Court’s obligation to make an order with respect to serious offences is subject to its satisfaction that an appropriate undertaking has been given: s 21 (addressed below).

Section 19 provides:

The conditions, the fulfilment of which entitle the Commission to an order under s 19(1)(a) or (b) are set out in s 19(1)(c) – (f) of the Act. These will be considered in turn.

The Commissioner is a proceeds of crime authority by reason of the definition under s 338 of the Act. Accordingly s 19(1)(c) is fulfilled.

There must be reasonable grounds to suspect that the property is the proceeds of an indictable offence. The relevant offences are offences against s 142 of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth) and an offence contrary to s 400.9(1) of the schedule to the Criminal Code Act 1995 (the Criminal Code), which is contained in Part 10.2 of the Criminal Code.

These are both “serious offences” within the meaning of s 338 of the Act, which relevantly includes:

Having read the affidavit of Federal Agent Mathews, I am satisfied that there are reasonable grounds to suspect that the property referred in schedule 1 of the summons and to the minute of order is the proceeds of an indictable offence, or indictable offences, within the meaning of s 19(1)(d)(i).

Section 19(1)(e) provides that it is a condition of the making of an order that the application is supported by an affidavit of an authorised officer stating that the authorised officer suspects, relevantly, that the property is proceeds of the offence. The definition of “authorised officer” in s 338 of the Act includes an AFP member if authorised by the Commissioner.

The evidence establishes that Commissioner Negus, by authorisation dated 26 August 2013, authorised all AFP members to be authorised officers under the Act. Accordingly, Federal Agent Mathews is an authorised officer.

The condition in s 19(1)(e) is fulfilled by the affidavit of Federal Agent Mathews affirmed 30 November 2015. He sets out the basis for his belief in paragraphs 13 to 47 to his affidavit and summarises those grounds in paragraph 48 of his affidavit.

I am required to be satisfied that the officer who made the affidavit holds the suspicion on reasonable grounds. I am satisfied that the matters set out in paragraphs 13 to 47 and summarised in paragraph 48 of the affidavit provide sufficient basis, by way of reasonable grounds, for the suspicion to which Federal Agent Mathews deposes.

Section 26(4) of the Act provides that I must consider an application such as the present without notice having been given if the responsible authority requested the Court to do so. Ms Millington, who appears on behalf of the plaintiff in the current application, requests, on behalf of the plaintiff, that I hear the application without notice. Accordingly, I am bound by section 26(4) to do so.

Section 21 of the Act provides that I may refuse to make a restraining order if the Commonwealth refuses or fails to give the court an appropriate undertaking with respect to the payment of damages or costs (or both) for the making and operation of the order. Ms Millington has, on behalf of the plaintiff, given what I regard as an appropriate undertaking with respect to the payment of damages and costs for the making and operation of the order.

For those reasons, I am satisfied that it is appropriate to make the orders set out in the short minute of order, which also notes the plaintiff's undertaking.

Accordingly, I make orders as follows as sought in the short minutes of order which I will sign and date and place with the papers: