Commissioner of Australian Federal Police v Elzein [2017] NSWCA 142

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Commissioner of Australian Federal Police v Elzein [2017] NSWCA 142 Hearing dates: 24 February 2017 Decision date: 21 June 2017 Before: Beazley ACJ at [1]; Basten JA at [11]; Simpson JA at [137] Decision: Q1 Upon their proper construction, do ss 180 and 39(1) of the Proceeds of Crime Act 2002 (Cth) ('Act'), when read with s 319 of the Act, permit an examination order or an order for the provision of sworn statements, respectively, to be made against a person who is a defendant in concurrent criminal proceedings in relation to a related subject matter?

Answer: Yes.

Q2 If yes, are ss 180 and 39(1) of the Act invalid to that extent, on the ground that to permit such orders to be made in those circumstances:

(a) would contravene Ch III of the Constitution by reason that it would be an impermissible interference with:

(i) alleged essential features of the judicial power of the Commonwealth, namely the court's inherent power to control abuse of process or the adversarial nature of a criminal trial (as described in X7 v Australian Crime Commission (2013) 248 CLR 92); or (ii) the manner in which a criminal trial takes place before a court exercising the judicial power of the Commonwealth; or

(b) would contravene s 80 of the Constitution by reason that it would be an impermissible alteration of fundamental features of 'trial … by jury' on an indictment for an offence against a law of the Commonwealth?

Answer: No

Q3 If yes, should ss 180 and 39(1) of the Act be read down to avoid any operation that would be constitutionally invalid?