Commissioner of the Australian Federal Police v Peng [2022] QDC 211

DISTRICT COURT OF QUEENSLAND CITATION: Commissioner of the Australian Federal Police v Peng [2022] QDC 211 PARTIES: COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE (Applicant) v XUFENG PENG & SIYU JIA (Respondents) FILE NO/S: BD 3635/18 DIVISION: Civil DELIVERED ON: 16 September 2022 DELIVERED AT: Brisbane HEARING DATES: 6, 7, 8 December 2021; 4 August 2022 JUDGE: Barlow KC, DCJ ORDERS: 1. The application filed on 25 January 2021 be dismissed. 2. The orders of Jarro DCJ made on 10 October 2018 be set aside. 3. Order 2 not take effect until the later of: (a) 30 days after publication of these reasons; or (b) if a notice of appeal from this decision is filed within the period in (a) – the day after the appeal is finalised, whether by agreement, judgment or otherwise. 4. The applicant pay the respondents’ costs of the proceeding from 25 January 2021. CATCHWORDS: PRIVATE INTERNATIONAL LAW – RECOGNITION, EFFECT AND ENFORCEMENT OF FOREIGN JUDGMENTS – UNDER LEGISLATION – ENFORCEMENT OF FOREIGN JUDGMENTS – WHAT JUDGMENTS REGISTRABLE – the respondents were the subject of a court order in the People’s Republic of China for the confiscation (as proceeds of crime) of property they held, including real properties in Queensland – the applicant applied for the registration of that foreign order pursuant to the Mutual Assistance in Criminal Matters Act 1987 (Cth) – whether registration would be -- 1 of 66 -- ii contrary to the interests of justice within the meaning of s 34A of that Act – which party had the burden of proof. Mutual Assistance in Criminal Matters Act 1987 (Cth), ss 33A, 34, 34A Mutual Assistance in Criminal Matters (The People’s Republic of China) Regulations 2007 Proceeds of Crime Act 2002 (Cth), s329(1) Briginshaw v Briginshaw (1938) 60 CLR 336, applied Cameron v Cole (1944) 68 CLR 571, distinguished Commissioner of the Australian Federal Police v Ortmann [2021] NSWSC 451, (2021) 360 FLR 123, distinguished Deputy Commissioner of Taxation v Shi (2021) 95 ALJR 634, [2021] HCA 22, considered Kioa v West (1985) 159 CLR 550, applied LFDB v SM [2017] FCA 80, distinguished LFDB v SM (2017) 256 FCR 218, applied Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, applied Minister for Immigration and Citizenship v Haneef (2007) 163 FCR 414, considered Nintendo Co Ltd v Centronics Systems Pty Ltd (1994) 181 CLR 134, applied R v Fardon [2010] QCA 317, considered Stern v National Australia Bank Ltd [1999] FCA 1421, considered TVM v Western Australia (2007) 180 A Crim R 138, cited Vines v Djordjevitch (1955) 92 CLR 512, applied Davies et al, Nygh’s Conflict of Laws in Australia (10th ed, 2020) COUNSEL: G del Villar QC with P Kinchina, for the applicant M Abbott QC with C Jacobi, for the respondents on 6, 7, 8 December 2021 S Zhao (solicitor), for the respondents on 4 August 2022 SOLICITORS: Australian Federal Police for the applicant Brightstone Legal for the respondents Contents Introduction .......................................................................................................................... 1 Background .......................................................................................................................... 1 Events prior to the Hunan Court proceeding .................................................................... 1 Court proceedings prior to this application ...................................................................... 2 -- 2 of 66 -- iii Legislation ............................................................................................................................ 3 Preliminary Issues ................................................................................................................ 6 Section 34A and the principle from Kable ....................................................................... 7 Burden of Proof ................................................................................................................ 8 Objections to evidence ................................................................................................... 12 The scope of the interests of justice ................................................................................... 12 The Commissioner’s submissions .................................................................................. 12 The respondents’ submissions ........................................................................................ 14 Consideration .................................................................................................................. 15 No application by respondents to Attorney-General .......................................................... 21 Did the application for the foreign order relate to a political offence or opinion? ............. 22 The standard of proof ..................................................................................................... 22 The respondents’ evidence ............................................................................................. 22 The parties’ submissions ................................................................................................ 26 Consideration .................................................................................................................. 27 Independence of the Chinese courts ................................................................................... 29 Evidence of the judicial and political systems ............................................................... 29 Professor Lewis .......................................................................................................... 29 Doctor Godwin ........................................................................................................... 31 Parties’ submissions ....................................................................................................... 32 Consideration .................................................................................................................. 33 The process in the Hunan Court ......................................................................................... 38 The relevant Chinese laws .............................................................................................. 38 Rights of participation and appeal .................................................................................. 39 Right to participate in confiscation proceeding .......................................................... 39 Right to appeal confiscation order .............................................................................. 42 Prior steps taken by the Hunan Court and in this Court ................................................. 44 The steps taken by and in the Hunan Court in the confiscation proceeding .................. 46 Service or knowledge of the respondents ....................................................................... 47 Confiscation of assets of absconders .............................................................................. 50 Would registration of the Hunan Court’s order be contrary to the interests of justice? ..... 52 Denial of procedural fairness.......................................................................................... 52 Self-inflicted absence from Hunan Court? ..................................................................... 58 Conclusions .................................................................................................................... 60 Orders ................................................................................................................................. 60 Schedule – objections to evidence ...................................................................................... 62 -- 3 of 66 -- 1 Introduction [1] The applicant, the Commissioner of the Australian Federal Police (Commissioner), applies pursuant to the Mutual Assistance in Criminal Matters Act 1987 (Cth) (the Act or the MACM Act) for the registration of foreign orders for the forfeiture of alleged proceeds of crime owned by the respondents, relevantly including assets situated in Queensland. Those orders were made in a ruling by the Intermediate People’s Court of Yueyang City, Hunan Province (the Hunan Court) of the People’s Republic of China (PRC) on 3 January 2020. On 20 January 2020, the Hunan Court made a formal request for assistance in the enforcement of this ruling (mutual assistance request) to the Commonwealth.1 A delegate of the Commonwealth Attorney-General approved that request and authorised the Commissioner to make this application for registration of the order.2 [2] The respondents resist the application. In essence, they contend that, for a number of reasons, both procedural and substantive, they did not have a fair and just opportunity to defend themselves before the Hunan Court. Therefore, they argue, it would be contrary to the interests of justice for this court to register the Hunan Court’s orders. [3] For the reasons below, I have concluded that the Hunan Court’s orders should not be registered in this court because it would be contrary to the interests of justice to do so. Background Events prior to the Hunan Court proceeding [4] The husband and wife respondents, Mr Peng Xufeng and Ms Jia Siyu,3 are Chinese citizens. Ms Jia owns several properties in various countries, including three in Queensland. Mr Peng worked for many years, both directly for the provincial level government and for government owned corporations, as a civil engineer. By the time of the relevant events, Mr Peng was a very senior employee and Chairman of the Board of one of these entities, Changsha Metro Group Co Ltd. While he was employed there, the Hunan Province Commission for Discipline Inspection (CDI),4 represented by Mr Fu Kui, commenced an investigation into potentially corrupt activities by people with whom Mr Peng had worked or who owned companies that had been engaged as contractors for Changsha Metro. [5] As part of the CDI’s investigation, in about June 2016 and again in February 2017, Mr Fu asked Mr Peng to provide information about any corrupt practices within or involving Changsha Metro. Mr Peng says that he understood that this formed part of a general crackdown on corruption that was taking place within the PRC at the time. Mr Peng said, in his evidence in this proceeding, that he investigated what he could, including the work of the particular persons whom Mr Fu had indicated were the focus of his investigations, but Mr Peng did not find any evidence of corrupt practices by those persons. He told Mr Fu that he could not find any evidence of corruption. 1 Act, s 34(2)(a). Trial bundle (exhibit 1), tab 13. (I shall refer to tabs in the trial bundle as, for example, TB[13] and to pages as, for example, TB175.) Interestingly, the request was not made by the proper Chinese authority under the relevant treaty (to which I refer later), which is the Ministry of Justice for the PRC, but no issue has been taken with that discrepancy. 2 Act, s 34(2). TB[17]. 3 I set out their names and those of other Chinese people referred to in the Chinese manner, with their surnames first. 4 I set out more detail of the CDI and its role later: [113]ff. -- 4 of 66 -- 2 [6] At some time apparently in about February or March 2017, allegedly in retribution for Mr Peng’s refusal to provide information (even false information) about corruption by those persons, the respondents themselves were investigated by the CDI for alleged corrupt activities, including acceptance of bribes and, in relation to Ms Jia, money laundering (the corruption probe). It appears, from the text of the reasons for the Hunan Court’s ruling,5 that the alleged corrupt activities were said to have occurred between 2010 and 2017. [7] In March 2017, a date which may or may not be coincidental, both the respondents left the PRC, ostensibly for a holiday, leaving behind family members including one of their young children (who stayed with Ms Jia’s parents). While they were overseas, the respondents became aware of the corruption probe that was being undertaken against them, as family members informed them that people (including Mr Peng’s brother) were being taken in for questioning by the authorities. Mr Peng, once aware, asked Mr Fu what was going on, who told him to return to China and to provide the information they required, on the promise that, if they did so, “it would all go away.”6 Mr Peng and Ms Jia did not believe that promise. They were concerned that, if they returned to China, they would immediately be arrested and would not have a proper opportunity to defend themselves against any charges that may be made against them. They decided that they should remain outside the PRC. They ended up in the United States of America, which is where they currently live and where (I understand) they may have sought political asylum.7 Court proceedings prior to this application [8] The corruption probe apparently continued in the respondents’ absence. They were alleged to have earned substantial bribes over a number of years8 and to have used the money from the allegedly corrupt activities to purchase real properties and other assets in China, Australia, Cyprus and Saint Kitts and Nevis and to transfer cash to Singapore. They also obtained citizenship in Cyprus and Saint Kitts and Nevis as a result of becoming substantial real property owners in those countries. The Hunan Court ordered in September 2017 and, in amended form, in August 2018 that dealings with the respondents’ assets in all those countries be restrained pending the outcome of the investigation and the proceeding in that court (the freezing order). The August 2018 order was then registered in this court, in respect of the three Queensland properties and some bank accounts in Queensland, by order of Judge Jarro on 10 October 2018.9 [9] Dealings with the respondents’ assets having been restrained, the investigation apparently continued. On 27 June 2019, the Hunan Court announced publicly that an application (the confiscation application) had been made by the local People’s Procuratorate - the body charged with both investigation and prosecution in the PRC - for an order confiscating the respondents’ assets on the basis that they were the 5 Ruling on Confiscation of Illegal Proceeds, Intermediate People’s Court of Yueyang City, Hunan Province, PRC (3 January 2020) (English translation): TB[11]. 6 Affidavit of Peng Xufeng affirmed on 21 May 2021 (1st Peng affidavit), [92] (TB 381). 7 Mr Peng gave evidence that he is in possession of sensitive military information that, I infer, may be of interest to the United States government. 8 On my calculation of the totals referred to in the Hunan Court’s reasons for its decision, the total amount of bribes allegedly received by the respondents over about six years was the equivalent of about A$51,000,000 (depending, of course, on the exchange rate – in my conversion to Australian dollars I have used a rate applying at about the time at which I heard the evidence). 9 TB[8]. -- 5 of 66 -- 3 proceeds of their illegal activities.10 As part of this announcement, the Court indicated that close relatives of the respondents, as well as any other “interested persons,” may apply to the Court in writing for leave to participate in the proceeding personally or by an agent ad litem. The notice specified that any such person had six months to apply, after which the confiscation application would proceed according to law. [10] On 31 December 2019, the Hunan Court held a public hearing in the application. The respondents were not represented at that hearing, although Ms Jia’s parents and another “interested person” were represented, having earlier applied for leave to be represented. On 3 January 2020, the Court made its ruling on the confiscation application.11 It found that there was evidence that the respondents had committed the crimes alleged and it was “highly probable” that nearly all the assets the subject of the application were illegal gains and proceeds of those crimes. It ordered that the respondents’ assets in the PRC, in Australia and in a number of other countries be confiscated (the Hunan Court’s order), although it also ordered that RMB380,00012 that had been seized from Ms Jia’s parents be returned to them. [11] On 4 March 2020, the Hunan Court made the mutual assistance request for the registration in Queensland of the Hunan Court’s order. It is that order that the Commissioner applies to have registered in this jurisdiction. Legislation [12] Section 34 of the Act relevantly provides: 34 Requests for enforcement of foreign orders (2) If a foreign country requests the Attorney-General to make arrangements for the enforcement of: (a) a foreign forfeiture order that: (i) has the effect of forfeiting a person’s property on the basis that the property is, or is alleged to be, the proceeds or an instrument of a foreign serious offence (whether or not a person has been convicted of that offence); and (ii) is made against property that is reasonably suspected of being located in Australia; the Attorney-General may authorise a proceeds of crime authority, in writing, to apply for the registration of the order. [13] Section 34A of the Act relevantly provides: 34A Registration of foreign orders (1) If a proceeds of crime authority applies to a court with proceeds jurisdiction for registration of a foreign order in accordance with an authorisation under this Subdivision, the court must register the order accordingly, unless the court is satisfied that it would be contrary to the interests of justice to do so. (2) The proceeds of crime authority must give notice of the application: 10 The English translation of the announcement is TB[9]. 11 TB[11] (English translation). 12 Renminbi, or yuan; the currency of the PRC. -- 6 of 66 -- 4 (a) to specified persons the authority has reason to suspect may have an interest in the property; and (b) to such other persons as the court directs. (3) However, the court may consider the application without notice having been given if the proceeds of crime authority requests the court to do so. [14] A “foreign order” includes a “foreign forfeiture order”, which is relevantly defined in s 3 as an order made under the law of a foreign country by a court, for the forfeiture of property in respect of an offence against the law of that country. [15] Property is “proceeds” of an offence if it is wholly or partly derived or realised, directly or indirectly, from the commission of an offence, whether or not a person has been convicted of the offence.13 There is no dispute that this court has “proceeds jurisdiction.” [16] The objects of the Act are relevant to its proper construction and are set out in s 5: The objects of this Act are: (a) to regulate the provision by Australia of international assistance in criminal matters when a request is made by a foreign country in respect of which powers may be exercised under this Act (whether or not in conjunction with other Australian laws); and (c)14 to facilitate the obtaining by Australia of international assistance in criminal matters. [17] The object of the relevant subdivision of the Act and the manner of achieving it are set out in s 33A: (1) The object of this Subdivision is to facilitate international cooperation in the recovery of property through the registration and enforcement of foreign orders in Australia. (2) For the purpose of achieving this object, it is the intention of the Parliament that the validity of foreign orders not be examined. [18] The explanatory memorandum for the Bill that introduced s 33A and amended s 34A said that s 33A was –15 designed to ensure that when interpreting the provisions in the Subdivision, courts will have due regard to the overall objective of the Subdivision which is to give effect to foreign orders in situations where property related to serious foreign offences is located in Australia. [19] A brief discussion of the history of s 34A is relevant. The section was first inserted into the Act by the Proceeds of Crime (Consequential Amendments and Transitional Provisions) Act 2002 (Cth). Originally, it did not include the last phrase referring to 13 Proceeds of Crime Act 2002 (POC Act), s329(1), adopted for the purposes of the MACM Act by s 3 of the latter. 14 This is not an error. The former paragraph (b) was repealed by the Extradition and Mutual Assistance in Criminal Matters Legislation Amendment Act 2012, Schedule 3, item 155. 15 Mutual Assistance in Criminal Matters Amendment (Registration of Foreign Proceeds of Crime Orders) Bill 2011, Explanatory Memorandum, Item 5 – Object of Subdivision A Division 2, Part VI (p 6). -- 7 of 66 -- 5 the interests of justice. Rather, it provided for no discretion in the court to refuse any application. [20] In 2009, the High Court determined16 that a similar provision in the Criminal Assets Recovery Act 1990 (NSW) was invalid because it was repugnant to the judicial process.17 The effect of the section under consideration was that it “conscripted” the court into a process requiring the mandatory ex parte sequestration of property for an indeterminate period, from which it would be difficult to obtain release. Thus it distorted the institutional integrity of the court. [21] As a result of that decision, the Parliament in 201118 amended section 34A to insert the proviso to the effect that, if the court considers that it would be contrary to the interests of justice to register a foreign order, then it need not do so. [22] The issues in this case must also be considered in the light of certain other provisions in the Act and in regulations made under it. [23] Section 7 relevantly provides that the regulations may provide that the Act applies to a particular foreign country subject to any mutual assistance treaty between that country and Australia that is referred to in the regulations. If the regulations provide to that effect, then the Act applies subject to the limitations, conditions, exceptions or qualifications that are necessary to give effect to the treaty with that country. [24] Section 8 relevantly provides that a request by a foreign country for assistance under the Act shall be refused if, in the opinion of the Attorney-General, among other things, the request relates to the investigation, prosecution or punishment of a person for an offence that is, or is by reason of the circumstances in which it is alleged to have been committed, a political offence,19 or there are substantial grounds for believing that the request was made to cause prejudice to a person on account of that person’s political opinions. [25] The Governor-General has made a regulation that applies a mutual assistance treaty between Australia and the PRC.20 The terms of the Treaty are therefore relevant to the issues in this proceeding, as the Act applies subject to the terms of the Treaty.21 The Treaty relevantly provides: ARTICLE 1 SCOPE OF APPLICATION 1. The Parties shall, in accordance with this Treaty, grant to each other the widest measure of mutual assistance in connection with investigations, prosecutions and proceedings related to criminal matters. 16 International Finance Trust Company Limited v New South Wales Crime Commission (2009) 240 CLR 319. 17 In line with the decision in Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 (Kable). 18 By the Mutual Assistance in Criminal Matters Amendment (Registration of Foreign Proceeds of Crime Orders) Act 2011 (No 83, 2011), Schedule 1, item 6. As I have mentioned, section 33A was also inserted into the Act by item 5. 19 That is, in broad terms, an offence that is of a political nature, whether because of the circumstances in which it is committed or otherwise: Extradition Act 1988, s 5, adopted in the MACM Act s 3. 20 Mutual Assistance in Criminal Matters (The People’s Republic of China) Regulations 2007. The treaty was made on 3 April 2006 and is reproduced in schedule 1 to the regulation (the Treaty). 21 Act, s 7(2)(a). -- 8 of 66 -- 6 3. Such assistance shall include … measures to locate, restrain and forfeit the instruments and proceeds of crime. ARTICLE 19 INSTRUMENTS AND PROCEEDS OF CRIME 3. At the request of the Requesting Party, the Requested Party may, to the extent permitted by its laws and under the terms and conditions agreed to by the Parties, transfer all or part of the instruments or proceeds of crime, or the proceeds from the sale of such assets to the Requesting Party. 4. In applying this Article, the legitimate rights and interests of the Requested Party and bona fide third parties shall be respected under the laws of the Requested Party. 6. In this Treaty “proceeds of crime” means any property suspected or found by a court to be property derived or realized, directly or indirectly, from the commission of an offence or which represents the value of property and other benefits from the commission of an offence. [26] Also, article 4 provides that assistance shall be refused in the same circumstances as those described in s 8 of the Act. [27] Thus, in considering the scope and application of s 34A of the Act, I must keep in mind the wide scope of mutual assistance and the legitimate rights of third parties under Australian laws, for which the Treaty provides. Preliminary Issues [28] The substantive question for determination by this Court is whether it would be contrary to the interests of justice to register the Hunan Court’s order. (If the court is not satisfied that it would be contrary to the interests of justice to register the order, then it must register the order.) However, the determination of that question also requires the determination of some preliminary issues raised by the parties. [29] There is no dispute about the existence of a valid foreign forfeiture order. Section 33A of the Act, in any event, explicitly provides that it is the intention of Parliament that the validity of foreign orders not be examined, and I do not do so. I proceed on the assumption that the Hunan Court’s order was validly made according to the laws of the PRC. Given the respondents’ submissions, I shall instead examine the circumstances in which the order was made, including the process leading to it, in order to determine whether it would be contrary to the interests of justice (as that term is used in Australian jurisprudence) to register the order. [30] There is also no dispute that the Commissioner, as the proceeds of crime authority, has been properly authorised to bring this application. The respondents were given notice of the application. [31] At the start of the hearing of the application, the parties identified some preliminary issues relating to the interpretation of the Act. One of those issues related to the potential application of constitutional principles from cases such as Kable and South Australia v Totani.22 The other was a question of which party holds the onus of proving whether it would or would not be contrary to the interests of justice to register the foreign order. I also reserved my judgment on some objections taken by the 22 (2010) 242 CLR 1. -- 9 of 66 -- 7 Commissioner to parts of the respondents’ evidence. It is necessary now to deal with those objections. Section 34A and the principle from Kable [32] This issue arose because of the dispute, to which I refer in detail below, about which party has the onus of proving that registration of the foreign order would or would not be contrary to the interests of justice. [33] In debating this issue, the Commissioner submitted that the Court’s role under s 34A(1) is confined so that, among other things, Only in exceptional circumstances, such as if there are manifest problems of a fundamental nature associated with the making of the particular foreign order, would a court be warranted in finding that the interests of justice overrode the importance of Australia’s treaty obligations and international comity. Clear and cogent evidence of such exceptional circumstances would be required.23 [34] The respondents submitted that, if the scope of the interests of justice were so constrained by the section, then the section would continue to be an unconstitutional fetter on the Court’s discretion and therefore invalid. [35] I considered it appropriate to adjourn the matter, after hearing the evidence, for notices pursuant to s 78B of the Judiciary Act 1903 (Cth) to be given to the Attorneys-General of the Commonwealth and the States. No Attorney-General sought to intervene in the proceeding. Nevertheless, the issue potentially remains for my determination, depending on whether I find that the “interests of justice” are so constrained. [36] For the reasons discussed below under the heading “The scope of the interests of justice”, I do not consider that the Court is constrained, in the manner for which the applicant contends, in its approach to the question whether it would be contrary to the interests of justice to register the foreign order. Nothing in s 34A requires that there be exceptional circumstances before a court could find that registration of a foreign order would be contrary to the interests of justice. However, as I conclude below, the authorities indicate that, in considering that question, the court must not be too eager to criticise the standards and procedures of foreign courts. [37] Nor do I consider that a party (whichever has the burden of proof) must demonstrate to the Briginshaw standard that registration is or is not contrary to those interests. That standard applies to the proof of allegations of particular seriousness or unlikelihood, or where the proof of a matter will have particularly grave consequences. The consideration, as a matter of principle, whether to take a particular step would be contrary to the interests of justice is not generally a matter falling within those or similar descriptions.24 Rather, the court must take into account all matters relevant to that question, including the nature and clarity or otherwise of the evidence, and must determine the question having regard to the ordinary meaning and scope of the term “the interests of justice” (as that term is understood in Australian 23 Applicant’s written submissions in reply, 3 December 2021, [17]c. In support of this last proposition, the applicant referred to Briginshaw v Briginshaw (1938) 60 CLR 336, 362 per Dixon J. 24 Although some aspects of a court’s consideration of the issue in a particular case may require proof to that standard. For example, see [110]-[111] below. -- 10 of 66 -- 8 jurisprudence) and, subject to specific exceptions, on the ordinary balance of probabilities. [38] Indeed, it is not a question of the interests of justice “overriding” the importance of Australia’s treaty obligations and international comity. As I discuss below, the Act is clear that those matters are high priorities, but they are all subject to whether the registration of a particular foreign judgment would be contrary to the interests of justice. In other words, the interests of justice are specifically not to be subservient to the other interests that are the subject of the Act. [39] In the circumstances, there is no scope for s 34A to contravene the Constitution and it is unnecessary to consider that proposition any further. Burden of Proof [40] Section 34A(1) states that a court with proceeds jurisdiction must register a foreign order when an application is made to do so, unless the court is satisfied that it would be contrary to the interests of justice to do. [41] The respondents contend that this should be read as placing the burden on the Commissioner, as the proceeds of crime authority, to satisfy this court that it would not be contrary to the interests of justice to register the order. The respondents submit that, as the Commissioner is the party bringing the application, he bears the onus of proving each of the elements of s 34A(1), being: (a) the existence of the foreign order; (b) the authorisation for the proceeds of crime authority to apply for the registration of that order; and (c) that it would not be contrary to the interests of justice to register that order. [42] They also rely on the fact that this application is one that, under s 34A(3), can proceed without notice having been given to the persons the subject of the foreign order if the proceeds of crime authority requests the court to do so.25 In such a case, they submit, the court would need to be satisfied that it would not be contrary to the interests of justice to make the order and the applicant would be obliged to inform the court of any matters that might render registration contrary to those interests. While the respondents accept that the content of such an inquiry can be affected by submissions made by affected parties, whether or not they become proper respondents to any application, there is no provision for the transfer onto a respondent of any onus to prove anything. [43] The respondents rely on the decision in Vines v Djordjevitch,26 a decision about whether terms of a Victorian provision relating to motor vehicle injury proceedings against a nominal defendant placed the onus of proving certain facts on the plaintiff as a condition precedent to the action. In that decision, the High Court identified that in some situations it may be “sufficiently clear” from the statutory provision that all of the conditions that give rise to the right or liability must be found to exist prior to anybody obtaining such a right or incurring such a liability. In such a situation, the 25 Curiously, s 34A(3) does not provide any potential bases for deciding whether to accede to such a request, though it is likely the more general rules concerning when an ex parte hearing is justified would apply to any such application. 26 (1955) 91 CLR 512, 519. -- 11 of 66 -- 9 onus would be on the party seeking to establish the right or liability, as the party bringing the case. [44] On the other hand, the Court in Vines went on to say that a condition may be such that it provides for a special ground of excuse or justification depending on new or additional facts, independent of any right or liability arising under the general provision. In that case, the burden of proving the special exception would, naturally, fall upon the party seeking to rely upon that exception. [45] The respondents, in essence, submit that s 34A(1) falls into the first category from Vines and the qualification in the last phrase of that section is not some kind of exception from the normal course. [46] The respondents also submit that the Commissioner, being the party in contact with the foreign jurisdiction and thus best positioned to obtain evidence about the procedures used in each case, should bear the onus, from a practical point of view, of proving that the procedure undertaken by the foreign court in considering the case before it conformed with the interests of justice as they are construed in Australia. [47] The Commissioner contends that this construction does not accord with the language of the provision, nor with the view taken in Commissioner of the Australian Federal Police v Ortmann.27 The Commissioner, in essence, submits that the provision falls within the second category from Vines. While the Commissioner accepts that he would have a heightened duty of candour should the application be heard ex parte, this does not amount to placing on him, as applicant, a burden of proving that the exception to the general proposition does not apply. It would be a strained interpretation of s34A(1) to read it as requiring the applicant to prove a negative proposition - namely, that “it would not be contrary to the interests of justice” - to be entitled to have the court register the order. [48] I agree with the Commissioner. From a basic construction point of view, the phrase “unless the court is satisfied it would not be in the interests of justice to do so” seems, relatively clearly, to establish the relationship between the two propositions described in the section. If the court is satisfied that it would not be in the interests of justice, then it must not register the foreign order. If it is not satisfied of that situation, then it must register the order. To read the provision otherwise would, in my opinion, go against its plain and ordinary meaning. If Parliament had intended the provision to operate as the respondents contend, the proviso might have been expressed as, “provided that the court is satisfied that it would not be contrary to the interests of justice to do so.” That would more clearly place the onus on the applicant to satisfy the court of the proviso. [49] As the High Court said in Vines, if the Act -28 expresses an exculpation, justification, excuse, ground of defeasance or exclusion which assumes the existence of the general or primary grounds from which the liability or right arises but denies the right or liability in a particular case by reason of additional or special facts, then it is evident that such an 27 (2021) 360 FLR 123, [3] (Adamson J). It is relevant, though, that the defendant in that case agreed that he had the onus of proving that registration would be contrary to the interests of justice: [3]. 28 (1955) 91 CLR 512, 519-520. -- 12 of 66 -- 10 enactment supplies considerations of substance for placing the burden of proof on the party seeking to rely upon the additional or special matter … . [50] In my view, this description directly applies to the proper construction of s 34A. The question whether it would be contrary to the interests of justice to register a foreign order arises only once the primary conditions for registration have been demonstrated to the court by the applicant for registration. The respondent to such an application may seek to persuade the court that, notwithstanding that the primary conditions for registration have been demonstrated, it should deny registration because of the existence of the additional fact that to do so would be contrary to the interests of justice. The respondent bears the onus of demonstrating that additional fact. [51] This construction is supported, if it be necessary to obtain support, by the explanatory memorandum for the Bill which, in explaining this section, said:29 The provision will maintain a presumption in favour of registering the foreign proceeds of crime order by providing that the court must register the order, unless satisfied that it is contrary to the interests of justice to do so. This presumption reflects the overall objective of the … Act to enable Australia to assist other countries effectively and expeditiously with direct enforcement of foreign orders made in respect of benefits derived from criminal activity. Consistent with principles of statutory interpretation, as set out in section 15AA of the Acts Interpretation Act 1901, in interpreting what might be ‘contrary to the interests of justice’, judges are able to take account of the purpose of the Act and Subdivision A of Division 2, Part VI in particular. The objective of the Subdivision, as confirmed by [s 33A], is to facilitate international cooperation in the recovery of property through the registration and enforcement of foreign orders in Australia. In considering what might be ‘contrary to the interests of justice’, an Australian court should not consider issues surrounding the validity of the foreign order. Challenges of this nature should be left to the issuing foreign court to consider as the most appropriate forum. [52] Finally, the explanation for the introduction of s 33A is also relevant to the construction of s 34A(1). The explanatory memorandum said, concerning s 33A:30 The new object clause and the clause stating the intent of Parliament are designed to ensure that when interpreting the provisions in the Subdivision, courts will have due regard to the overall objective of the Subdivision which is to give effect to foreign orders in situations where property related to serious foreign offences is located in Australia. It is not the intention of the regime in Subdivision A that issues relating to the validity of the foreign order be considered by Australian courts. These matters are most appropriately dealt with by the foreign court (either at the time the order is issued, or on application for review of the order). As such, for the purposes of subsection 34A(1) (as amended by item 6), a court should have due regard to the overall objective of the Subdivision and the intent of Parliament when considering when it would be ‘contrary to the interests of justice’ to register a foreign order. 29 Mutual Assistance in Criminal Matters Amendment (Registration of Foreign Proceeds of Crime Orders) Bill 2011, Explanatory Memorandum, Item 6 – amendment to subsection 34A(1). Emphasis in the original. 30 Explanatory Memorandum, Item 5 – Object of Subdivision A Division 2, Part VI. -- 13 of 66 -- 11 It should not, in determining whether registration of the foreign order is contrary to the interests of justice, examine the validity of the foreign order. This is consistent with the principle of international comity and recognises the fundamental importance of reciprocity in international cooperation in criminal matters. [53] Thus the overall intention remained, clearly, that a court would ordinarily register a foreign order, but could refuse to do so only in a particular circumstance. This intention is relevant, in my view, to the propositions I am now considering. [54] The effect of the provision is that an applicant does not need to prove to the court that it would not be contrary to the interests of justice to register the foreign order. Of course, if an application was made ex parte or there was no contradictor, the applicant’s legal representatives would be obliged to draw to the court’s attention anything known to the applicant that might give rise to a credible submission by the respondent that it would be contrary to the interests of justice to register the order. But the applicant need not positively prove the contrary. This is because, in the absence of proof, the court will not have been satisfied of anything in relation to the interests of justice. It does not need to be. While a prudent applicant may still provide such submissions to allay any fears the court may have about the interests of justice, there is nothing on the face of the legislation preventing registration in the absence of proof of the negative proposition. [55] This construction of the section is also supported by the former common law position concerning the recognition in Australia of foreign judgments, which was considered by the Federal Court of Australia in 1999.31 In that decision, Tamberlin J adopted a passage from Professor Nygh’s book, Conflict of Laws in Australia, in which the author identified the conditions that must be satisfied by an applicant for the recognition and enforcement of a foreign judgment. The author said that the onus of establishing the existence of those conditions was on the party seeking to rely on the foreign judgment. Once that onus is satisfied, the judgment is prima facie entitled to enforcement as a valid obligation, unless the defendant can establish one or more of the recognised defences to the enforcement of a foreign judgment.32 [56] In drafting s 34A, Parliament appears to have intended that similar onuses of proof attend that section. [57] This construction of the section also better achieves the object of the subdivision of the Act in which s 34A appears,33 as well as that of providing the “widest measure of mutual assistance” under the Treaty, than the construction for which the respondents contend. The explanatory memorandum for the Bill introducing the amendment clearly stated that there is a presumption in favour of an applicant in registration matters. The objects of international comity and cooperation in criminal and related matters are better served if the applicant is not required, for every single application, to bear the burden of proving the negative proposition advanced in the respondents’ interpretation. This is particularly so given that the applicant is now required, by virtue of s 34A(2), to notify any affected persons of an application being made under this section. If such a person wishes to contest the application, the person may do so, 31 Stern v National Australia Bank Ltd [1999] FCA 1421, [133]. 32 Nygh, Conflict of Laws in Australia (6th ed, 1995), p 137. 33 Section 33A(1): “to facilitate international cooperation in the recovery of property…”. -- 14 of 66 -- 12 but bears the burden of proving the exception to the general obligation of the court to register the foreign order in the primary circumstances described in the section. [58] Nor do I consider that there is merit to the contention that the applicant would be better placed to consider and to demonstrate the interests of justice. It is more likely, in any given case, that the respondent will be aware of facts that, in the respondent’s particular case, may make it contrary to the interests of justice to register the foreign order. Indeed, that is what the respondents have attempted to do in this case. [59] I am therefore satisfied that the respondents bear the burden of proving that registration of the Hunan Court’s order would be contrary to the interests of justice. Objections to evidence [60] In a preliminary hearing before the trial, I heard submissions about a number of objections to evidence of both parties. I ruled on most of the submissions, but I reserved some to the trial in order to determine the objections in the light of other evidence and submissions at trial. [61] The Commissioner has maintained his objections to a number of paragraphs of the respondents’ affidavits. The respondents have now conceded some. The remaining objections, the respondents’ responses to those objections and my rulings (and brief reasons) are set out in the schedule to these reasons. The scope of the interests of justice [62] In considering what might be considered “contrary to the interests of justice”, I must keep in mind the ordinary principles of statutory interpretation. This includes the principle that the interpretation that would best achieve the object or purpose of an Act (and of the relevant section) is to be preferred to any other interpretation.34 Similarly, discretionary powers must be read in light of the scope, purpose and subject matter of the legislation.35 I have set out above the relevant objects stated in the Act and the Treaty. The Commissioner’s submissions [63] The Commissioner submitted that whether something is “contrary to the interests of justice” is informed by whether a step or process is “contrary to public policy”, but the former is a more exacting test. The court should not undertake a species of merits or judicial review of the foreign order and should not be concerned with differences in the legal systems of Australia and the PRC. The statutory framework of the MACM Act and the analogy with the recognition in Australia of foreign judgments36 strongly suggest that it will only be in exceptional circumstances, demonstrated to the Briginshaw37 standard by clear and cogent evidence,38 that this court would be warranted in finding that the interests of justice override the importance of Australia’s treaty obligations and international comity.39 34 Acts Interpretation Act 1901 (Cth), s15AA. 35 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 39-40. 36 I assume the Commissioner is referring to an analogy both with the common law and with the law under modern statutes providing for the registration of foreign judgments generally. 37 (1938) 60 CLR 336. 38 Briginshaw v Briginshaw (1938) 60 CLR 336, 362; applicant’s written submissions, 26 November 2021, [43]. 39 Applicant’s submissions in reply, 3 December 2021, [17]. -- 15 of 66 -- 13 [64] The Commissioner gave examples of exceptional circumstances that may justify a court refusing to register a foreign order: they would include a foreign order obtained by fraud or if the mere filing of a claim was treated as conclusive evidence and the foreign court acted merely as a “rubber stamp” in making the order. The respondents’ evidence does not meet the necessary standard of evidence that may demonstrate the propositions for which they contend, but constitutes uncorroborated assertions of politically motivated actions against them and generalised complaints about the manner in which the Chinese legal system operates, particularly in criminal cases.40 No exceptional circumstances have been proved. [65] The Commissioner also submitted that the Attorney-General is vested with the primary responsibility of considering requests for assistance from foreign countries.41 When a mutual assistance request is received, it is first considered by the Attorney- General or his delegate.42 The Act gives the Attorney-General a critical role in authorising applications for registration and in deciding questions about recognised grounds on which Australia may or must refuse assistance. It provides that the Attorney-General must refuse assistance if, in his opinion, there are substantial grounds for believing that the request was made, relevantly, for the purpose of prosecuting or punishing a person on account of the person’s political opinions.43 It also allows the Attorney-General to direct the Commissioner to apply to a court for the cancellation of the registration of a foreign freezing order.44 That can be done, for example, if the Attorney-General forms the view that a prosecution or other proceeding has occurred because of a person’s political opinions. The respondents could have applied to the Attorney-General to revoke his authorisation of the applicant to seek registration of the Hunan Court’s order, but they have not done so, instead opposing this application.45 [66] Given these aspects of the statutory scheme, the words “contrary to the interests of justice” in s 34A(1) cannot bear their widest meaning. The court’s role is confined. It cannot conduct a review of the law and facts to determine if the foreign order was justified or warranted under the foreign law; the fact that the legal system from which the foreign forfeiture order derives is different, perhaps in important respects, from Australia’s legal system or forfeiture regime is not itself a reason for declining to register a foreign forfeiture order; and to ask whether the foreign order would have been made by an Australian court under the POC Act or an equivalent Australian forfeiture law would be to ask the wrong question. [67] Finally, the Commissioner submitted that, as it is not the role of this Court to conduct a review of the law and facts to determine if the Hunan Court’s order was justified or warranted under Chinese law, it follows that, to the extent that the respondents seek to bolster the allegations of politically motivated investigation by denying factual findings in the Hunan Court’s ruling, claiming that the incriminating evidence referred to must have been concocted and leading contradictory evidence through their 40 The Commissioner submitted that criminal rights and procedures are not relevant in any event, as the proceeding in the Hunan Court was not criminal, but civil, just as proceedings for the confiscation of the proceeds of crime in Australia are civil. 41 Act, ss 8 and 9; Treaty, article 4. 42 I refer to the Attorney-General as male because, at the time the Commissioner was authorised to make this application, the Attorney-General was the Honourable Christian Porter MP and the present incumbent is, of course, the Honourable Mark Dreyfus MP. 43 Act, ss 8(1)(a)-(ba) and 8(1)(c). 44 Act, s 34G(1)(b). 45 As to the proposition in this last sentence, see [103]ff below. -- 16 of 66 -- 14 affidavits, this court should not attempt to determine whether the evidence before the Hunan Court was sufficient to warrant the making of that court’s order. To do so would be to inquire impermissibly into the merits of the order. It is even less appropriate to do so where, to make findings pertaining to the allegations of bribery and money laundering, this court would need to be provided with access to all of the evidence in the Hunan Court proceeding and that body of information is not available.46 [68] The Commissioner submitted that the principle of legality, upon which the respondents rely in part,47 has little or no role to play in the light of the statutory scheme and its objects. The principle exists to protect from inadvertent and collateral alteration of rights, freedom, immunities, principles and values that are important in Australia’s system of representative and responsible government. It does not exist to shield those rights from being specifically affected in the pursuit of clearly identified legislative objects.48 [69] Thus, the Commissioner submitted, this court’s role in considering the applicability of the proviso to s 34A(1) is limited in those ways, as is the scope of the matters relevant to determining whether the court is satisfied that the proviso applies. The respondents’ submissions [70] The respondents submitted that the expressions “the interests of justice” and “contrary to the interests of justice” take their meaning from their statutory context. The expressions should not be narrowly defined. They empower the making of a “judicial evaluation” of the relevant criteria discerned from the Act. They have been held to incorporate, and do incorporate here, conceptions such as the public interest, the administration of justice, a fair trial according to law and the avoidance of injustice.49 [71] The relevant statutory context is that the Act provides for a scheme that effects the expropriation of property. Therefore, the principle of legality guides the construction of expressions in the Act and, where there is a constructional choice, a construction should be preferred which advances the protection of property rights.50 It is only where “the unambiguous effect of the words which the Parliament has seen fit to use” would clearly overcome that principle of construction that it would not apply.51 There are no such words in the MACM Act. [72] The respondents went on to submit that the protection of private property rights is maintained in the statutory scheme, by the Act granting the court a broad discretion not to register a foreign order where it cannot be satisfied that it is in the interests of justice to do so, for any number of reasons that accord with that concept in Australian 46 In line with the process prescribed by the Act and the Treaty, only limited information regarding the facts and evidence forming the basis for the Hunan Court’s order, primarily being the information set out in that court’s ruling, has been provided. 47 See [71] - [72] and [75] - [77] below. 48 Applicant’s written submissions in reply, 3 December 2021, [22]. 49 Respondents’ opening submissions, 2 December 2021, [18]-[19], citing R v Fardon [2010] QCA 317, [74]; TVM v The State of Western Australia (2007) 180 A Crim R 183; Re Corruption and Crime Commission; Ex parte West Australian Newspapers Ltd (2007) 174 A Crim R 325, [29]. 50 Minister for Immigration and Citizenship v Haneef (2007) 163 FCR 414, [106]-[107]. 51 Nintendo Co Ltd v Centronics Systems Pty Ltd (1994) 181 CLR 134, 146; Ex parte Miah (2001) 206 CLR 57. -- 17 of 66 -- 15 law.52 The general words in the section permit the court to examine the process preceding and involved in the making of the order, the terms of the order and other relevant matters. Those matters include the opportunity of the respondents to participate in the process; the fairness of the process; whether it can be shown that certain interests were not considered or the wrong interests only were considered; whether the court considers that the evidence properly identifies that such an order should have been made, or there has been a vitiating error; or whether this court considers that the foreign order would not have been made by an Australian court under the POC Act or an equivalent Australian forfeiture law.53 Consideration [73] I start with the respondents’ proposition that this court can and should examine the evidence and interests considered (or ignored) by the foreign court, whether that court made a vitiating error and whether an Australian court would have made such an order under equivalent Australian laws. I do not consider that those are relevant to the question before the court. The first two would be elements of determining whether the foreign order was valid: a question that the Parliament has expressly said it does not intend be examined by an Australian court.54 The last is irrelevant. Any foreign order will have been made under the laws of that country. It is not a requirement of the Act, nor in determining the “interests of justice”, that the foreign order must have been made under a law that is similar to Australian laws on the same or similar subject matter. [74] However, the fairness of the process in the foreign court and the respondents’ right or opportunity (or lack thereof) to appear or to be represented and properly and adequately to defend the case against them in that court are clearly matters that, when raised in a registration application such as this, are relevant to the consideration of the issue, for reasons discussed below. [75] I do not accept that the principle of legality operates to restrict the scope of the provisions of the Act now under consideration, or the scope of this court’s inquiry. To make it clear, that principle was described and discussed by the Full Court of the Federal Court of Australia,55 which set out a number of judicial pronouncements about it, starting with the following from the United Kingdom:56 … the principle of legality means that Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual. [76] Similarly, in the High Court:57 52 Respondents’ opening submissions, [20]. This assertion is clearly wrong. The court does not need to be satisfied that it would be in the interests of justice to register the order, but that it would be contrary to those interests to do so. 53 Respondents’ opening submissions, [23]. 54 MACM Act, s 33A(2). 55 Minister for Immigration and Citizenship v Haneef (2007) 163 FCR 414, 443-444, [111]-[113]. 56 R v Secretary for Home Department; ex parte Simms [2000] 2 AC 115, 131; quoted in Haneef, [111]. 57 Coco v The Queen (1994) 179 CLR 427, 437; quoted in Haneef, [112]. -- 18 of 66 -- 16 The insistence on express authorization of an abrogation or curtailment of a fundamental right, freedom or immunity must be understood as a requirement for some manifestation or indication that the legislature has not only directed its attention to the question of the abrogation or curtailment of such basic rights, freedoms or immunities but has also determined upon abrogation or curtailment of them. The courts should not impute to the legislature an intention to interfere with fundamental rights. Such an intention must be clearly manifested by unmistakable and unambiguous language. General words will rarely be sufficient for that purpose if they do not specifically deal with the question because, in the context in which they appear, they will often be ambiguous on the aspect of interference with fundamental rights [77] In my view, the MACM Act is unambiguous in authorising the overriding of property rights of a person whose property has, to the satisfaction of a foreign court, been acquired with, or comprises, the proceeds of serious criminal offences. In those circumstances, this court must register the foreign court’s order, so that it may be enforced in this State, except in the limited circumstance that is provided in s 34A. Parliament has, by its clear and unambiguous words, shown its intention that, if that circumstance (that the court is satisfied that it would be contrary to the interests of justice to register the foreign order) does not exist, the foreign court’s order must be registered here, even though it interferes with property rights in this State. [78] In considering the interests of justice, I must have regard to Australian jurisprudence and principles concerning the meaning and content of those interests. While processes undertaken under Chinese law and concepts of justice are relevant to whether the interests of justice (as understood under Australian law) are met, any particular Chinese understanding or law on what amount to the interests of justice in the PRC is irrelevant. Not only is this the natural consequence of the fact that I am acting under Australian law, but also article 19, clause 4 of the Treaty makes this clear. [79] In R v Fardon, Chesterman J adopted what had been said by McKechnie J in TVM v The State of Western Australia and in cases referred to in the latter.58 In particular, McKechnie J referred to the decision of the Full Court of the Family Court of Australia in Chapman v Jensen,59 in which Nicholson J had said: In my view the expression ‘the interests of justice’ is not one which should be narrowly defined … I do not think that it is a concept which courts should find difficult to apply. The interests of justice will vary from case to case, and I think that, in general, … a broad approach is the approach to be preferred. [80] McKechnie J went on at [28] to say: The phrase ‘the interests of justice’ is not an expression capable of easy articulation or explanation because it is conclusionary in its nature. Necessarily, a judge takes into account many factors before concluding where the interests of justice may lie. The phrase ‘the interests of justice’ is devoid of content except where it is given form by the particular facts and circumstances of a case. [81] Chesterman J, at [74], endorsed McKechnie J’s remark that the phrase is so general and abstract that it takes on meaning only by a consideration of the particular facts relevant to the particular matter before the court. 58 R v Fardon [2010] QCA 317, [73]; TVM v Western Australia (2007) 180 A Crim R 138, [22]-[28]. 59 (1990) 100 FLR 66, 74. -- 19 of 66 -- 17 [82] In one sense, these propositions are so broad as not to be particularly helpful. But it is clear that the phrase itself can encompass a large gamut of potential matters. It ought not be narrowly defined unless the relevant statute or its context limits it. [83] It is therefore clear that the requirements of the interests of justice must be determined and adapted as necessary by reference to the statutory framework governing the court or tribunal in question. Procedural fairness is one of the criteria encompassed by the interests of justice. As the High Court has said:60 What is appropriate depends on the circumstances of the case, including the nature of the inquiry, the subject-matter, and the rules under which the decision-maker is acting … the expression “procedural fairness” more aptly conveys the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case. The statutory power must be exercised fairly, i.e., in accordance with procedures that are fair to the individual considered in the light of the statutory requirements, the interests of the individual and the interests and purposes, whether public or private, which the statute seeks to advance or protect or permits to be taken into account as legitimate considerations. [84] So what can this court consider in determining whether it would be contrary to the interests of justice to register the Hunan Court’s order? [85] Harking back to Tamberlin J’s decision in Stern v NAB,61 his Honour considered a number of cases and further comments of Professor Nygh in considering what was contrary to public policy. Perhaps of most relevance, his Honour set out the following from a judgment of Cardozo J in the New York Court of Appeals:62 The courts are not free to refuse to enforce a foreign right at the pleasure of the judges, to suit the individual notion of expediency or fairness. They do not close their doors unless help would violate some fundamental principle of justice, some prevalent conception of good morals, some deep rooted tradition of the common weal. [86] Tamberlin J then concluded:63 The thread running through the authorities is that the extent to which the enforcement of the foreign judgment is contrary to public policy must be of a high order to establish a defence. A number of cases involve questions of moral and ethical policy, fairness of procedure, and illegality, of a fundamental nature. [87] That passage was cited with approval by the Full Court of the Federal Court of Australia in a case in which the Court concluded that – the primary judge was correct to reject the notion that merely because a different approach is taken to a common problem in an overseas jurisdiction, that difference renders such an approach contrary to public policy in Australia. The primary judge recognised at [102] that the authorities demonstrate the need to go further.64 60 Kioa v West (1985) 159 CLR 550, 584-585. 61 [1999] FCA 1421 62 Loucks v Standard Oil Co of New York 224 NY 99 (1918), 111, quoted by Tamberlin J at [1999] FCA 1421, [141], with emphasis added by his Honour. 63 [1999] FCA 1421, [144]. 64 LFDB v SM (2017) 256 FCR 218, [43]. -- 20 of 66 -- 18 [88] The Full Court in that case upheld the decision of Griffiths J, who had considered carefully whether the registration of a judgment of the High Court of New Zealand should be set aside because it was contrary to public policy. In that case, the New Zealand court had ordered that, unless the first appellant (LFDB) complied with an earlier costs order made against him, he be debarred from participating in the substantive hearing of the claim that led to judgment against him.65 He did not pay the costs and was therefore prevented from participating in the trial. [89] Griffiths J agreed with the proposition that a gross denial of procedural fairness could amount to a judgment being regarded as contrary to public policy. His Honour said:66 There is undoubtedly a high threshold to setting aside the registration of a judgment as contrary to public policy, but I see no sound reason for excluding from that concept a judgment obtained in circumstances involving a gross denial of procedural fairness according to relevant principles in this jurisdiction. [90] His Honour also quoted the following passage from reasons of Kirby P sitting in the New South Wales Court of Appeal:67 The interests of comity are not served if the courts of the common law are too eager to criticise the standards of the courts and tribunals of another jurisdiction or too reluctant to recognise their orders, which are, and remain, valid by the law of the domicile … Nevertheless, the courts of the common law … have reserved to themselves the right to refuse to recognise decrees and orders of foreign courts and tribunals … where: (a) the order impugned offends against local ideas of substantial justice … ; or (b) the decree or order has been obtained in the foreign court or tribunal contrary to the requirements of procedural fairness or natural justice … . [91] In the Full Court’s decision in LFDB, the Court observed that:68 it is natural, and to be expected, that different jurisdictions (including those countries with whom we have a close connexion and a shared legal heritage) adopt different solutions to the same problems without those different solutions “suffering the ignominy of being described as contrary to public policy”: see De Santis v Russo (2001) 27 Fam LR 414 at [18] per Atkinson J. [92] These and other decisions to similar effect are discussed by the authors of the latest edition of Professor Nygh’s seminal work in this field of law, in which they conclude that:69 The trend of authority supports the proposition that the public policy ground for refusal of enforcement should be narrowly confined. … The offence against Australian public policy should be profound before refusal to enforce is warranted. 65 Referred to in the courts’ reasons as an “unless order”. 66 LFDB v SM [2017] FCA 80, [102]. Emphasis in the original. 67 Bouton v Labiche (1994) 33 NSWLR 225, 234. 68 256 FCR 218, [37]. 69 Davies et al, Nygh’s Conflict of Laws in Australia (10th ed, 2020) (Nygh 2020), [40.79]. -- 21 of 66 -- 19 [93] Of course, those cases dealt with the question whether the registration of a foreign judgment was “contrary to public policy”: a, perhaps subtly, different question to whether it would be “contrary to the interests of justice” to register such a judgment or order. Many parallels can be drawn between the two concepts, but they are not identical. [94] I do not accept the Commissioner’s submission that the interests of justice may be a higher or more onerous test than public policy. If anything, the interests of justice are only one element of Australian public policy. However, in determining whether it would be contrary to the interests of justice to enforce a foreign order, some similar considerations arise. In particular, under Australian law it is inherent in the interests of justice that, before a court makes an order that affects a person, that person ought ordinarily have a right and full opportunity to appear or to be represented at the hearing and be allowed to present the person’s case against any proposed adverse orders and that the decision maker be impartial. If such an order is made in a person’s absence, ordinarily the person would be afforded a right to apply to have it overturned. In other words, procedural fairness is an essential element of the interests of justice. It is likely, although perhaps not inevitable, that it would be contrary to the interests of justice for an Australian court to enforce a foreign order made in the absence of substantive procedural fairness. [95] The scope of the interests of justice was recently considered, in an entirely different context, by the High Court.70 There, the question was, in short, whether it was in the interests of justice for a court to order that the respondent disclose to the applicant evidence that tended to prove that the respondent had committed an offence against an Australian law. The plurality considered that evaluating the interests of justice for the purpose of the relevant section in that case involved balancing the public interest in disclosure of the information against the potential detriment to the respondent that arose from the tendency of the information to prove that he had committed an offence.71 [96] Gordon J said that what the interests of justice require in a particular case is to be weighed having regard to the proceeding in which the question arises. The factors to be balanced in determining whether the interests of justice required the information to be disclosed were not and could not be prescribed but may include the nature of the information, the likelihood of an offence being prosecuted and any resulting unfairness to a party.72 [97] In order to consider whether registration of the Hunan Court’s order would be contrary to the interests of justice in this case, it is necessary to determine what those interests require in the context of the legislation and the facts of this case and then whether it would be contrary to those interests to register the order. It is necessary to balance: (a) the public interest, particularly in international comity (particularly between Australia and the PRC in this case), the objects of the Act and the requirements of the Act and the Treaty; against 70 Deputy Commissioner of Taxation v Shi [2021] HCA 22; (2021) 95 ALJR 634. 71 [2021] HCA 22, [12] (Keifel CJ, Gageler and Gleeson JJ). 72 [2021] HCA 22, [41], [43]. The plurality generally agreed with her Honour’s reasons. -- 22 of 66 -- 20 (b) the potential detriment to the respondents if the Hunan Court’s order is registered here, particularly involving, as it would, the expropriation of the respondents’ property in this State; and (c) in particular, whether the Hunan Court’s order was made in circumstances that did not effect justice between the parties (particularly to the respondents) in that court’s proceeding, or the respondents had not been afforded natural justice or procedural fairness, in a significant way, in that proceeding. [98] I accept that the mere facts that there are differences in the legal systems of Australia and another country (such as the PRC) and that the foreign processes include or exclude steps that are often, or generally, considered important in Australian legal systems in order to do justice between the parties do not, of themselves, mean that it would be contrary to the interests of justice to register a foreign order. An application for registration must not become a critique of foreign law and legal systems. Nor, if an Australian court found that it would be contrary to the interests of justice, in Australian terms, to register a foreign order, would that finding of itself constitute a criticism or denouncement of the foreign country’s systems. It might be a reflection of the fact that the two countries do have different legal systems and philosophies, or it might simply reflect a significant defect in the manner in which the foreign country’s law or procedures had been followed in the particular case. Recognition and the application of such differences is, indeed, reflected in the very question with which I am now concerned: there is a primary obligation to register a foreign order, but whether that obligation is overcome is informed by the interests of justice in Australian terms. [99] The manner in which the decision to make the foreign order was reached and whether the respondents had a realistic opportunity to oppose the Hunan Court making such an order are matters relevant to the question whether it would contrary to the interests of justice to register the order. Australian concepts of the interests of justice are most relevant in determining that question. I do not consider that the objects of the Act and the subdivision operate to limit the meaning or scope of the matters that this court can consider in determining whether it would be contrary to the interests of justice to register a foreign order. [100] It is necessary, therefore, to consider whether there is any reason, arising from the laws and systems of the PRC or the process followed in this case under those laws and systems, that would make it contrary to the interests of justice to register the Hunan Court’s order in Australia. I stress, however, that, in doing so, this court cannot consider the evidence that was before the Hunan Court and whether that court reached a correct decision according to Chinese law. [101] The particular issues raised here, which now fall for consideration, are whether the application in the Hunan Court related to a political offence or the respondents’ political opinions; whether the Hunan Court made its decision independently of the prosecutorial body (the procuratorate), the executive of the PRC or any other person or body (particularly, in this case, the Chinese Communist Party (CCP or the Party); and whether the procedures under PRC law utilised by and in the Hunan Court proceeding were so fundamentally unfair to the respondents that this court should not recognise and register the order that is the outcome of those procedures because to do so would be contrary to the interests of justice as understood in Australia. [102] First, however, it is necessary to address another issue raised by the Commissioner. -- 23 of 66 -- 21 No application by respondents to Attorney-General [103] As the Attorney-General has power to authorise this application, he has the power to revoke such an authorisation.73 Indeed, he has power, after a foreign order is registered, to direct the Commissioner to apply to the court to cancel that registration.74 [104] As I have recorded above, the Attorney-General is required to refuse a request for assistance under the Act if, among other things, there are substantial grounds for believing that the request relates to the alleged commission of a political offence or that it was made for the purpose of causing prejudice to the respondents on account of their political opinions.75 [105] The respondents rely, in part, on a submission that the proceeding in the Hunan Court was brought against them because Mr Peng refused to report to the CDI any corrupt conduct of his colleagues (which, he says would be a false report, as he found no evidence of corrupt conduct). He submits that this court should infer that the investigation of him and Ms Jia, the allegations against them and false evidence provided to and accepted by the Hunan Court were motivated because of his refusal to accuse others. The CDI is effectively controlled by the CCP and therefore the Hunan Court proceeding was conducted and its ruling was made on account of his political opinions in not acceding to the CDI’s proposed course of conduct. [106] The Commissioner submitted that the respondents could have, but did not, apply to the Attorney-General to revoke the authorisation to the Commissioner to make this application, on the ground that the Hunan Court’s decision was in relation to an alleged political offence or was made for the purpose of causing prejudice on account of the respondents’ political opinions. The Commissioner submitted that the absence of any such application tends against acceptance of the respondents’ argument that registration would be contrary to the interests of justice.76 [107] With respect, I do not consider these matters to be relevant to whether it would be contrary to the interests of justice to register the order. That is a different issue to the issues to which the Attorney-General must or can have regard in making or withdrawing an authorisation. He is not entitled to consider whether such an application, or the registration of an order made in such an application, would be contrary to the interests of justice. That question has properly been left to this court. In this court, the respondents have an opportunity (which they did not have before the Attorney-General authorised the Commissioner to make this application and which would not be relevant to any application to withdraw that authorisation) to demonstrate that proposition, based on a potentially far wider enquiry than is relevant to any decision of the Attorney-General. [108] Nevertheless, as the question has been raised by the respondents, it is still necessary to consider whether the respondents have satisfied me that the order was made in order to cause prejudice to them on account of their political opinions. If it was, that would be a material factor in determining whether it would be contrary to the interests of justice to register the Hunan Court’s order 73 Acts Interpretation Act 1901 (Cth), s 33(3). 74 MACM Act, s 34G. 75 MACM Act, s 8(1)(ba), (c). 76 Applicant’s opening written submission, 26 November 2021, [44]-[48]. -- 24 of 66 -- 22 Did the application for the foreign order relate to a political offence or opinion? The standard of proof [109] The respondents contend that one reason why it would be contrary to the interests of justice to register the foreign order is that the application in the Hunan Court and the investigation that preceded it were made, in effect, for the purpose of punishing and otherwise causing prejudice to the respondents on account of their political opinions: namely, Mr Peng’s view that he should not fabricate evidence of corruption by other persons simply to satisfy or support a political vendetta against those persons by the CCP through the CDI. Another possible political reason foreshadowed by Mr Peng is that he is in possession of information that he described as “highly classified military information” about magnetic levitation technology that would be of use to other countries, including the USA.77 [110] The Commissioner submitted that, for the respondents to demonstrate that the foreign order was, in effect, the result of a political vendetta against them or based upon alleged “political offences”, they must do so to the Briginshaw standard, which would require clear and cogent evidence to that effect. [111] In this respect, I agree with the Commissioner’s submission. It is a grave matter to accuse people, let alone an entire system of justice, of using the criminal law (and associated civil remedies) for political purposes. In my view, this court should not be satisfied of the truth of such an allegation based on inexact testimony or suspicions. The respondents’ evidence [112] It is necessary to summarise the respondents’ evidence in order to consider their submission. [113] Mr Peng described his understanding of the role of the CCP and the CDI.78 The Central Commission for Discipline Inspection (CCDI) is an office of, and directly controlled by, the CCP. The CCDI delegates its tasks to provincial CDIs, each of which has its own Secretary, who is essentially its leader. Mr Fu was the Secretary of the Hunan Province CDI. [114] The responsibilities of the CCDI, set out in the description of its functions, relevantly include: (a) the supervision and inspection of the departments and affiliated organisations of the Ministry of Commerce (MOFCOM) in implementing the CCP’s line, principles, policies and resolutions, in complying with China’s laws and regulations and in implementing decisions of the State Council of the CCP; (b) supervision and inspection of the Party and administrative leadership and its members in upholding the CCP’s political disciplines, in selecting and appointing senior officials and in building a clean and honest government ministry; and (c) assisting the Party and administrative leadership in MOFCOM in coordinating efforts in MOFCOM and its affiliated organisations to develop a clean and honest government ministry and to combat corruption. 77 2nd Peng affidavit, [71]-[78]. 78 1st Peng affidavit, [40] and exhibit XP-11: Ministry of Commerce description of the functions of the CCDI. -- 25 of 66 -- 23 [115] Mr Peng said that, on one occasion, Mr Fu told him that Mr Fu’s objective was to identify, locate and prosecute people believed to be in a political faction opposed to the General Secretary of the CCP, who is also the President of the PRC, Mr Xi Jinping.79 [116] In about June 2016, Mr Fu named a few particular people and asked Mr Peng to give him information about them that could be used to prosecute them for corrupt activities. He said that the people were associates of the old era. The central government had its agendas. The people needed to make way for the new era. He said that this was an opportunity for Mr Peng to show his loyalty to the CCP and the General Secretary but, if Mr Peng did not help, his political position would become clear and he would be considered to oppose the central government and the CCP. Mr Fu repeated similar statements on later occasions when Mr Peng told him that he could not find any adverse information about the named people.80 [117] In early March 2017, it was publicly announced that Mr Peng would be promoted to a senior position in the Hunan provincial government. He then arranged to take a holiday overseas before he took up his appointment. Ms Jia left with their daughter on 10 March 2017 and Mr Peng left on 24 March 2017. They left their young son with Ms Jia’s parents. After leaving, Mr Peng heard that Mr Fu wanted to talk to him. He spoke to Mr Fu by telephone. Mr Fu told him that, if he would go home and provide information about the named people, all would be well, but otherwise Mr Fu would, in effect, prosecute him and treat him as a fugitive official.81 [118] Mr Peng and Ms Jia decided that it was not safe to return home as he would not lie in order to convict others. Instead they made their way to Saint Kitts and Nevis and then to the United States of America, where they now are.82 [119] Since then, Mr Peng said, the Chinese government has been using his family as hostages against him (although most of his proposed evidence in support of that proposition was inadmissible hearsay, which I did not admit into evidence). He said that he was told that, if he did not return to China, his family members would be implicated and ruined.83 [120] Mr Peng also gave evidence that, he contended, demonstrated that the allegations against him were concocted because he would not fabricate evidence against the persons of interest to the CDI. He said84 that the case against him was filed on 1 April 2017, while he was overseas. However, before he left China, he would have been thoroughly investigated for competence and propriety as part of the process leading to his promotion. After his intended promotion was publicly announced, no objections to it were raised and he was cleared by the authorities to take up the new position. He also had to apply for access to his passport,85 which would not have been 79 1st Peng affidavit, [43]. Mr Peng may there be referring to a statement extracted at [63] of his affidavit, TB373. Of course, that statement only goes to what Mr Peng says he was told, not to the truth of what Mr Fu said. 80 1st Peng affidavit, [56]-[73]. 81 1st Peng affidavit, [77]-[78], 92]. 82 1st Peng affidavit, [93]. 83 1st Peng affidavit, [91]. 84 Affidavit of Mr Peng affirmed on 29 June 2021 (2nd Peng affidavit), [7]. 85 Mr Peng said that officials above a certain rank are not allowed to hold onto their passports, which have to be held by the local party committee and released when a person has a legitimate reason to travel internationally. -- 26 of 66 -- 24 released to him, nor would he have been allowed to leave the country, if he had then been under investigation for corruption. He left China on 24 March 2017. In the circumstances, the respondents submit that this court should infer that the allegations against them were concocted in order to punish and otherwise disadvantage them due to Mr Peng’s refusal to assist Mr Fu. [121] Mr Peng gave evidence in response to each of the allegations, detailed in the Hunan Court’s reasons for its order, to the effect that he had accepted bribes from a number of people or companies in exchange for his assistance in securing for them work or other benefits from the authorities by which he was employed, or on other projects, between 2010 and 2017. He denied taking any such bribes. He set out details of the processes that were undertaken by Changsha Metro before a tender for public works could be accepted. The processes included decision making by management and, on occasions, in consultation with the municipal government, review and comment by a number of internal and external bodies, public tenders that are selected in public, and the ability of unsuccessful tenderers to complain if any misconduct appeared to have occurred in the appointment of the successful tenderer. He concluded that it was near impossible for him to influence who was chosen or to appoint an unqualified contractor.86 His evidence in these respects was not challenged or contested, either by evidence on behalf of the Commissioner, or in cross-examination although, as I have said, the Commissioner submitted that it was not relevant to the issue before this court and it should not be used as a collateral challenge to the Hunan Court’s decision. [122] Mr Peng gave evidence about his and his former wife’s income, investments and businesses over some 20 years, from which he said they were able to acquire considerable assets. He said that in recent years it had become more difficult to invest in property in China, so he and Ms Jia had looked at investing overseas. They spoke to some brokers, who advised them of opportunities to invest in Saint Kitts and Nevis and in Cyprus, which would enable them also to obtain citizenship in those countries. That was attractive to them because they liked to travel but it was difficult to do so on Chinese passports. They also decided to invest in Queensland because a friend told them that the real property market here could be lucrative.87 [123] Mr Peng also gave evidence that he believed that the freezing and confiscation orders have been sought and the allegations of criminal conduct have been made against him because the PRC government is attempting to coerce his return to China because he possesses highly classified military information deriving from his involvement, including with military organisations, in the development of magnetic levitation technology. Although it was not directly said, I infer that he and Ms Jia have sought political asylum in the United States of America on the basis of his knowledge of these matters. He also believes that, even if the proceedings do not result in his return to China, by accusing him of substantial and repeated crimes the PRC is trying to discredit him in the eyes of foreign governments.88 [124] Finally, Mr Peng said that he was not aware of the freezing order that had been made by the Hunan Court and registered in Queensland pursuant to Judge Jarro’s order, until he was provided with a copy of his Honour’s order in October 2018. He was never served with any documents for that proceeding and the first he knew of it was 86 2nd Peng affidavit, [8]-[63]. 87 1st Peng affidavit, [128]-[146]; 2nd Peng affidavit, [63]. 88 2nd Peng affidavit, [71]-[78]. -- 27 of 66 -- 25 when he saw documents filed by the Commissioner.89 He also said that he was not aware of the Hunan Court proceeding seeking forfeiture of his and Ms Jia’s assets until he was contacted by the Commissioner about it in January 2021. He was never served with any court documents about the confiscation proceeding. The first time he saw any of those documents was when he received them from the Commissioner when serving this application.90 [125] In her evidence on affidavit, Ms Jia denied any wrongdoing. She said that she left China for her holiday on 10 March 2017 with her daughter, leaving her very young son with her parents. She did that because he was not healthy and she was concerned that travel would make him ill. At the time she thought she would be returning five weeks later. Had she been fleeing the country to avoid an investigation and allegations that she and Mr Peng were criminals, she would have taken her son with her.91 [126] Both Mr Peng and Ms Jia were cross-examined by junior counsel for the Commissioner.92 Mr Peng was asked about how, when and how much money he and his wife transferred out of China to other countries. It was put to him that there was a limit of US$50,000 per person per year and that he knew it was a crime to transfer more than that sum each year.93 He denied that there was such a limit when transferring for investment purposes and that he knew he and his wife had committed a crime in transferring those funds. He said that he or his wife had dealt with investment agencies who had assisted them in the transfers and told them it was legal. He agreed that they had invested in Saint Kitts and Nevis and in Cyprus partly in order to obtain citizenship in those countries and they had obtained those citizenships. [127] Mr Peng was cross-examined about his knowledge of the Hunan Court confiscation proceeding. He agreed that he had read Judge Jarro’s order and the affidavit of Graham White that supported the application for that order94 when they were provided to him by the Commissioner in about October 2018. Mr White’s affidavit had attached to it the Chinese request to register the freezing order. He agreed that, at the time, he understood that he was suspected of committing crimes in China and that the Hunan Court had ordered that his and Ms Jia’s assets be frozen. But he did not accept that he understood that the court suspected that he had committed crimes, as he thought it was the procuratorate, not necessarily the court. He accepted that he understood that one or other suspected that the properties in Queensland were the proceeds of crime. But he did not accept that he understood that the properties had been frozen so that investigations and proceedings to confiscate those assets might be undertaken. He said he was not aware that the assets might be confiscated. He thought that by freezing his and Ms Jia’s assets, the Chinese authorities were trying to force them to return to China. He appealed from Judge Jarro’s order,95 but did not take any steps to appeal, in China, from the Hunan Court’s freezing order. 89 Affidavit of Mr Peng affirmed on 11 November 2021 (3rd Peng affidavit), [40]-[42]. 90 3rd Peng affidavit, [43]-[45]. 91 Affidavit of Ms Jia affirmed on 29 June 2021 (2nd Jia affidavit), [4], [10]-[12]. 92 Mr Peng’s cross-examination starting at T2-41 and Ms Jia’s at T2-72. 93 Evidence about those laws was given by the expert in Chinese law, Dr Godwin, called by the Commissioner: TB[28], Part E at TB1607-1609. I accept that evidence as demonstrating that there was such a limit, but not as proving that the respondents knowingly breached those laws. 94 TB[8] and TB[33] respectively. 95 There is no evidence of the grounds or the outcome of the appeal, but I infer that it was either discontinued or unsuccessful. -- 28 of 66 -- 26 [128] He denied that he was aware that the subsequent confiscation proceeding was on foot. He also denied that, despite knowing this, he chose not to appoint a lawyer or another person to defend his rights in that proceeding. [129] In cross-examination of Ms Jia, she said that she had transferred funds to an agent, who may have transferred them to Australia. She accepted that about RMB800,000 were transferred to Australia in 2014, about RMB2,000,000 (but not RMB3.2M) were transferred to Australia in 2015, she transferred about RMB3,000,000 to her agent in China in 2016 (she did not accept that those funds were transferred to Australia) and about RMB2.0-2.7M were transferred to Australia in 2017. She denied that she transferred the funds using other people’s bank accounts. She denied that she knew that it was illegal to transfer the funds and said that she was told by her agent that it was legal to transfer the funds for investment purposes. She agreed that funds were transferred to Saint Kitts and Nevis and to Cyprus to invest there partly because she and Mr Peng could obtain citizenship there if they invested there. [130] Ms Jia agreed that she had appealed from Judge Jarro’s order after she became aware of it. She agreed that she had read Mr White’s affidavit, including the Chinese authorities’ request for registration of the Hunan Court’s freezing order. After reading the latter, she understood that she was suspected of committing crimes in China and that the Hunan Court had ordered that her and Mr Peng’s assets be frozen. But she was not aware, nor understood, that there was any intention to confiscate those assets. [131] It was put to Ms Jia that she did not take any steps to appeal the freezing order in China. She said that she did seek legal advice. It was then put to her that, by 31 December 2019, she was aware that there was a confiscation proceeding in China in respect of her property. She denied that. It was put that, despite knowing of the proceeding, she chose not to appoint a lawyer or any other person to defend her rights in the confiscation proceeding. Again, she denied that, saying she was not aware of the proceeding. The parties’ submissions [132] On the basis of these events and evidence, the respondents contend that they are being persecuted and the Hunan Court proceeding for forfeiture of their assets was brought against them as part of that persecution, because of Mr Peng’s view that he should not give false evidence against others simply because he was instructed to do so by a senior officer of the CDI, who sought that information in order to remove and prosecute those people because of their political opinions and alleged opposition to the current Chinese government. Given the circumstances in which Mr Peng formed that view, it is a political view or opinion, for which the CDI is seeking to cause him and Ms Jia prejudice by bringing the Hunan Court proceeding and, by the Commissioner, making this application. [133] If that were so, it would be open to the Attorney-General, if satisfied that the Hunan Court’s order was part, or a result, of a political vendetta against the respondents, to withdraw his authorisation of this application. But it is also a matter for this court to take into account. If this court is satisfied, by cogent evidence, that it is likely that the request (or the application to the Hunan Court that led to the order and the request) was made for the purpose of causing prejudice to the respondents because of their political opinions, then it could (and, in the respondents’ submission, it should) conclude that it would be contrary to the interests of justice to register the order. -- 29 of 66 -- 27 [134] The Commissioner, not surprisingly, opposes those submissions. He contends that the evidence falls far short of proving any political element to the investigation of the respondents and the prosecution of the Hunan Court proceeding. The respondents’ evidence is largely speculative. Even if the court accepts that Mr Fu said to Mr Peng the things he records in his affidavits,96 those statements do not indicate a political reason for the application against the respondents. Rather, the evidence indicates that the respondents, among other people, were investigated and the investigation gave rise to suspicions and then evidence that they personally had been involved in corrupt conduct. That evidence was sufficient to persuade the Hunan Court that it was “highly probable”97 that Mr Peng and Ms Jia had accepted bribes and that Ms Jia had “laundered” the proceeds of those bribes. “Highly probable” is clearly equivalent to the balance of probabilities and probably to the Briginshaw98 test. [135] This court cannot examine the validity of that decision; therefore it must not (even if it practically could) examine the evidence that was before the Hunan Court, nor should it examine and make findings about any evidence about those factual matters put before this court but not before the Hunan Court. Consideration [136] I understand why the respondents might believe (if I accept their evidence in this respect) that the proceeding leading to the Hunan Court’s order was brought for political reasons due to Mr Peng’s refusal to give what he says would have been false evidence against other persons, particularly given the statements to Mr Peng by Mr Fu.99 [137] However, I am not satisfied that this was indeed the case. The evidence is not sufficiently cogent to demonstrate that, despite Mr Fu’s comments, the authorities in China were prepared to fabricate evidence against the respondents in order to punish them for Mr Peng’s lack of cooperation. The Criminal Procedure Rules of the PRC expressly prohibit torture or coercion of witnesses.100 Of course, that is not directly applicable to the confiscation proceeding, as it was a civil matter and there is no similar express rule in civil matters. Nevertheless it is relevant to take that into 96 I note that he was not cross-examined about them. 97 Hunan Court’s reasons at p23, TB116. 98 (1938) 60 CLR 336. 99 The assertion by Mr Fu that, if Mr Peng did not give information about persons deemed to be associated with the earlier era, he would be considered to oppose the government and the Party, is consistent with assertions in a recent historical thesis on the organisation of government in China under the CCP: “Xi Jinping was in supreme command … there would be no transparency or public accountability in the drive against corruption and few of the trappings of due process that had been trialled in the Reform Era. Xi and his team implicitly associated corruption with the earlier Reform agenda.” Similarly with Mr Peng’s assertion that “confessions” and “witness statements” referred to in the Hunan Court’s decision were extracted by torture or other illegitimate means: “earlier party techniques of secret detention, torture and forced confessions were now legitimate state methods for law enforcement by police, procurators and courts.” Fitzgerald, J, Cadre Country: How China Became the Chinese Communist Party (UNSW Press, 2022), 212. For the latter proposition, Fitzgerald cites an article by Zhong Sheng published in the People’s Daily on 19 March 2018, “China’s New Reforms to fuel Anti-Corruption Campaigns,” but I consider that the article provides no support for the proposition. 100 Article 52 of the Criminal Procedure Rules, exhibit 8. -- 30 of 66 -- 28 account. Also, the evidence of witnesses referred to by the Hunan Court in its ruling appears, from that ruling, to have been corroborated by documents and other evidence. [138] It is quite possible that the authorities investigating other people for corrupt activities discovered evidence that they thought implicated the respondents in those or similar activities. That is all the more possible because the respondents clearly have a substantial number of valuable assets that, at least without further explanation beyond that given by Mr Peng, seem to be well beyond the assets that they could have acquired from their earnings or even their investments over time.101 [139] Of course, the Hunan Court did not have before it the respondents’ evidence about the allegations against them or seeking to explain their income and assets. But even in this proceeding, although they purported to explain the sources of their income and capital, their explanations went nowhere near demonstrating their ability to acquire so many, and such valuable, assets in Australia and other countries outside China, as well as their assets in China described by the Hunan Court, nor did they dispute the Hunan Court’s findings that they did indeed own the assets that the court found to be theirs.102 [140] The Commissioner submitted that the respondents’ evidence, that they did not expect a confiscation proceeding and about the sources of their wealth, was so contrived or inadequate that I should not accept it. Consequently, I should reject that evidence and conclude that they were not witnesses of truth, especially about their knowledge and the alleged motives behind the proceedings in the PRC. I do not reject their evidence about those matters, notwithstanding the inadequacy of their evidence about their assets. It seems that they have not had access to their records in China, which may have assisted them to give more details about their financial history. As to their understanding of the freezing order, if they had read and considered carefully the documents served on them in October 2018, they might have been aware that the procuratorate, at that stage, was contemplating applying for confiscation of their assets. But that does not mean that they were later aware that any subsequent step was taken to pursue that intention. In any event, I consider it likely that, rather than taking in that proposition, they would have concentrated on the freezing of their assets, because it had an immediate effect on them. I accept that they believed it was an attempt by the Chinese authorities to force them to return to China, or at least to make it more difficult for them to disappear in another country. [141] Nonetheless, the respondents have not satisfied me that the Hunan Court proceeding, let alone its ruling and order, was brought to punish them for their political opinions (even assuming that one might characterise a refusal to give false evidence as a matter of political opinion). On the face of the evidence described in the Hunan Court’s ruling, there were sufficient facts at least to give rise to a genuine suspicion that the respondents did indeed accept bribes during Mr Peng’s career. 101 Indeed, counsel for the Commissioner submitted that their evidence to this court was so inadequate to explain the sources of their current assets that I should find them not to be credible witnesses and I should not accept, in particular, their evidence about their lack of knowledge of the confiscation proceeding. 102 On my calculations, on the basis of their evidence, from 1993 to 2017, between them they received the equivalent of about A$10,500,000 from salaries, businesses, properties and gifts. Their assets in China appear, from the Hunan Court’s ruling, to be worth about A$22,000,000 and their overseas assets, according to their own evidence, are worth about $6,400,000 (in both cases not taking into account any loans secured by - and used to acquire - the assets). They did not challenge the Hunan Court’s description of the assets they were said to own. -- 31 of 66 -- 29 Independence of the Chinese courts [142] The respondents contend that the CDI and the Chinese courts are not independent of the Government of the PRC, nor of the CCP. That is one reason why it would be contrary to the interests of justice to register a foreign forfeiture order made by a Chinese court (or at least by the Hunan Court in the confiscation proceeding). Mr Peng gave evidence to that effect103 and the respondents called evidence from an expert in Chinese law, politics and legal process who gave more detailed evidence about the Chinese legal system. [143] Nowhere in the Act, the regulation or the Treaty is there any requirement that the courts of a foreign country be independent of the executive of the country before Australia may sign a treaty with it, the Attorney-General may accept a request for assistance, or an Australian court may register a foreign order. [144] Indeed, the Commissioner submitted that, when considering whether to register a foreign forfeiture order under s 34A(1), the Court should not be concerned with whether the legal system from which the order derives is different from Australia’s regimes for forfeiture.104 [145] It may well be the case that, if a party to an application for enforcement of a foreign order were to prove that the order had been made by a court that, in actually making its decision, was not independent of the executive arm of the government or of the prosecutorial bodies in that country, it may be contrary to the interests of justice for an Australian court to register the foreign order. But that would depend on whether that lack of independence could be shown to have infected the foreign court’s decision in a crucial manner, such as by effectively comprising a “rubber stamp” for an executive decision.105 The question is whether that is an appropriate description of the Hunan Court and its decision in this case. Evidence of the judicial and political systems Professor Lewis [146] It is useful to deal first with the respondents’ evidence on the general legal and political systems in the PRC, as the expert witness called by them was asked specific questions about those matters and discussed and answered them in her first report, whereas the Commissioner’s expert was not asked those questions, except in cross- examination. [147] The respondents called Professor Margaret Lewis to give evidence about the Chinese legal system and processes. She wrote three reports106 that were tendered and she was cross-examined before me. [148] Professor Lewis is a Professor of Law at Seton Hall University in New Jersey, USA. She has over two decades’ experience in studying the PRC legal system, with an emphasis on criminal law and procedure. This has included interactions with Chinese government legislative officials, prosecutors and judges, as well as Chinese academics and lawyers whose work involved criminal justice. She has made first-hand 103 1st Peng affidavit, [150]. 104 Relying, in particular, on LFDB v SM (Full Court), [43]. 105 The Commissioner gave examples of circumstances that might justify a court refusing to register a foreign order, summarised at [64] above. See also my example at [176] below. 106 The reports are exhibited to affidavits at TB[25], TB[29] and TB[30]. -- 32 of 66 -- 30 observations while in the PRC, including visits to courts, police stations and detention centres. She is fluent in written and spoken Mandarin. However, she has no experience with the processes for confiscation of the alleged proceeds of crime. Nevertheless, the Commissioner did not challenge her evidence as inadmissible non- expert opinion in respect of those processes. [149] Professor Lewis was asked by the respondents’ solicitors to give evidence on PRC legal processes and procedures leading to the Hunan Court’s order and to express an opinion on whether and to what extent they conformed to the norms of due process and the rule of law. She was later asked to comment on certain parts of a report by the expert called by the Commissioner, Dr Godwin, and the opinions he expressed. [150] In her first report,107 Professor Lewis answered questions put to her about the legal system and procedures in China. It is useful to summarise her views on some of those questions. However, to the extent that she was asked questions about criminal processes I consider them largely irrelevant. The Hunan Court proceeding was not a criminal prosecution, but an application of a civil nature, for an order for the confiscation of assets comprising or derived from the proceeds of crime. It was akin to an application in Australia for confiscation of the proceeds of crime (freezing orders and forfeiture orders) under Chapter 2 of the POC Act, which is also of a civil nature. [151] Professor Lewis was first asked the following question: In proceedings in a Chinese court seeking orders for the restraining and/or confiscation of assets, what protections, if any, of due process (whether as a characteristic of the court, or the process it adopts) are typically or usually available for the defendant? In addressing this question please address whether: • such a court is separate from, and independent from, the executive government and if not, your reasons why it is not. [152] Professor Lewis said that the procuratorate is the government entity responsible for supervising the legal system and prosecuting criminal cases. The courts determine guilt and impose sentences, but they work cooperatively with police and procuratorates. Courts seldom reject evidence prepared by the police or procuratorate in criminal proceedings. The courts are not independent of the executive government and the criminal justice system is enmeshed in the Party-State structure of the PRC, in which the CCP and State structures are inextricably intertwined. The courts are deprived of any capacity to behave autonomously vis-à-vis the CCP. The Party has the say in what is political and what is not and whatever the Party decides, courts have to comply with it. That is reflected by the fact that 99% of criminal prosecutions result in convictions. [153] The balance of the relevant questions concerned court procedures, which I discuss below. 107 TB[25]. -- 33 of 66 -- 31 Doctor Godwin [154] The applicant called Dr Andrew Godwin to give evidence about the Chinese laws and procedures relevant to the Hunan Court proceeding. He wrote a report108 and was cross-examined before me. [155] Dr Godwin is an Honorary Principal Fellow at Melbourne University Law School and an Adjunct Professor at the School of Law, City University in Hong Kong. Before his recent retirement, he was Associate Professor, Associate Director (Asian Commercial Law) of the Asian Law Centre, Director of Transactional Law and Director of Studies for Banking and Finance at the Melbourne University Law School. His particular area of expertise in Chinese law appears to be commercial property law. He is fluent in written and spoken Mandarin. [156] Dr Godwin was cross-examined about his expertise in Chinese criminal law and procedure. He said that that has not been a focus of his research, but he has been an expert witness in relation to financial crimes such as foreign exchange and illegal cross-border payment flows, gambling and property related crimes. His first experience of looking at property confiscation procedures has been for this proceeding. The criminal law and procedure of the PRC is not something that has been the focus of his academic research or writing.109 Nevertheless, the relevance of his expertise was not directly challenged by the respondents. [157] Dr Godwin was not asked by the Commissioner’s solicitors to opine on the courts and legal system in the PRC. However, in cross-examination he was asked questions to the effect whether he agreed with Professor Lewis’ views. [158] Dr Godwin agreed that there is no concept of the separation of powers in the PRC. He said that the courts are subject to supervision by standing committees of the People’s Congresses at various levels and so they are subject to the standing committee of the legislature in that sense. That said, there are constitutional provisions to the effect that courts must operate independently, free of interference from administrative bodies and others. There is no express basis on which the CCP can intervene in the courts.110 [159] Dr Godwin did not take issue with much of Professor Lewis’ evidence about the relationships between the courts and the procuratorates. He appeared to accept that there is a very close, collaborative and cooperative relationship between the courts, the procuratorate and the CDIs. He disagreed with Professor Lewis’ proposition that the courts are not independent from the executive government because, as a matter of law, they are independent. He disagreed that it was appropriate to generalise that, in practice, courts did not operate independently of the executive or the CCP. He said that, while it is possible – and Professor Lewis certainly expresses a perception - that the Party had influence over courts, as a matter of law it is not given the power to exercise influence over, or to intervene in, State organs.111 [160] Dr Godwin was asked to consider opinions about the CCP’s influence over or control of Chinese courts that were expressed in a published academic article that was put to 108 TB[38]. 109 T1-32 – T1-38. 110 T1-49:1-10. 111 T1-50 – T1-51. -- 34 of 66 -- 32 him.112 He disagreed with the proposition that the CCP allows courts an element of discretion and absence from interference from the Party so long as the Party is assured the full authority to determine the parameters and the rules for the exercise of that discretion and to revoke the discretion when necessary. He considered it wrong to conflate the Party with the government across the board and to conclude that, because there is a relationship between the Party and the State, ipso facto the courts never operate independently or never operate or function in the way in which they are expected to as a matter of written law.113 He did not agree that PRC courts are not empowered to act independently in a manner that comports with due process protections. But, he said, the question is whether they do in all cases. He is alive to concerns and systemic weaknesses and issues that arise in that regard.114 But he thought it would be wrong to conclude that, because there are systemic weaknesses, no courts ever operate independently or operate in a competent and effective manner. Parties’ submissions [161] The Commissioner submitted that this court should not be concerned with differences between the legal systems of the PRC and Australia. Any differences were for the Commonwealth Government to take into account in deciding whether to enter into a treaty under the MACM Act and the terms of the treaty. The fact that there are differences in the legal systems is not a reason for declining to register the foreign order. But, in any event, the systems and processes applying in both China and Australia for the confiscation of the proceeds of crime are very similar, so the regime in the PRC is not so radically different from that in Australia, nor flawed in such a fundamental way, that this court should be satisfied that it would be contrary to the interests of justice to register the Hunan Court’s order.115 [162] The Commissioner also submitted that, even if this court accepts Professor Lewis’ evidence that there are what might be perceived in Australia as weaknesses in the PRC legal system, no evidence demonstrates that any such weaknesses manifested in, or infected, this particular proceeding. On the face of the Hunan Court’s ruling, the proceeding was undertaken in an appropriate manner that afforded the respondents due process. The hearing occurred after the respondents had absconded overseas, but after notice of the proceeding was publicly published; the hearing was overseen by a panel of judges and proceeded in open court; interested parties participated in the hearing; the witnesses could be cross-examined; the court examined and verified the evidence and it applied a high standard of proof in reaching its conclusions, resulting in it not accepting all the procuratorate’s allegations. [163] The Commissioner went on to submit that, even if one might conclude that any weaknesses in the PRC legal system meant there is a possibility that this proceeding may have been adversely impacted, that does not mean it would be contrary to the interests of justice to register the Hunan Court’s order. The mere possibility of such a consequence would, in such a case, have the logical consequence that it would always be contrary to the interests of justice to register a Chinese court’s order, which would render the MACM Act and the Treaty with the PRC entirely ineffectual. The 112 Ling Li, Political-Legal Order and the Curious Double Character of China’s Courts, (2019) Asian Journal of Law and Society 19. Those parts of the article that were put to Dr Godwin (the abstract, the introduction and the conclusion) are exhibit 2. 113 T1-55 – T1-56. 114 T1-51:1-7. 115 Applicant’s closing submissions, [26](ii), [54], [55]. -- 35 of 66 -- 33 evidence in respect of the PRC legal system led in this case is insufficient to support such a serious finding.116 [164] The respondents submitted that Professor Lewis’ evidence demonstrates that the Chinese legal system is subject to the dominating influence of the CCP. The investigatory and prosecutorial authorities are governed by the CCP and the procuratorate and the courts in the PRC work together cooperatively. That is indicated by the fact that, in criminal prosecutions, the conviction rate exceeds 99%. There is no reason to think that, in a civil proceeding such as this that is related to criminal allegations and proceedings, the courts would not also grant orders sought by the procuratorate in 99% of cases. Where, as Mr Fu made clear to Mr Peng, the CCP has set out to reduce corruption and to prosecute corrupt citizens, any case in which the prosecuting authority alleges corruption will be accepted and acted on by the courts without proper scrutiny of the evidence. That, they submit, is what occurred here. [165] The respondents also submitted that the Hunan Court’s ruling depended to a large extent on evidence from witnesses who are alleged to have bribed the respondents or to have assisted the respondents in receiving and dealing with bribes. The respondents submit that that evidence would be the result of forced confessions, in circumstances where there is no law or privilege against self-incrimination and, notwithstanding rule 55 of the Criminal Procedure Rules, the practices of torture and ill-treatment of suspects and witnesses is deeply entrenched in the criminal justice system from which the Hunan Court proceeding emanated. [166] The respondents also submitted that the Hunan Court’s ruling was based on rules that were not laws, but were “provisions with inconsistent and irregular applications, as well as being introduced with specific political agenda in mind” and that are implemented and adjudicated in inconsistent and arbitrary ways. [167] Finally, the respondents submitted that consideration must be given to “the complete lack of procedural protections for the respondents in the process leading up to the ruling, including the absence of the presumption of innocence.”117 Consideration [168] It appears from the MOFCOM description of the role of the CCDI that the CDI is an arm of, and controlled by, the CCP. But the CDI appears to be the investigatory body. It is not the prosecutorial body: that is the procuratorate. I accept that those two bodies often work “hand in glove” in preparing and prosecuting cases in the courts, but there is no evidence of any direct control of the procuratorate by the CCP. While one might suspect that there is such control, due to the nature of government in the PRC, in the absence of evidence supporting any such suspicion this court cannot infer or find that that is the case generally, let alone in this instance. Furthermore, even though the procuratorate may do the bidding of the CCP, that does not mean that the courts will not independently review evidence put before them by the procuratorate. 116 Applicant’s closing submissions, [70]-[72]. 117 Respondents’ closing submissions, [23](c) and (e). -- 36 of 66 -- 34 [169] Having said that, I take judicial notice of the fact that the PRC is a single party state with the ultimate control of all arms of the government by the CCP.118 However, there are limits – at least in the written law of the PRC - to that proposition. [170] In a very recent publication about China,119 the author said that, in China: The law, like the market, reverted under Xi [Jinping] to an instrument of party rule reinforcing the status of the party. … While the party remains China’s sovereign authority, and sits above the law, the country’s legal system remains little more than a disciplinary instrument of party rule. The author also records that, at the 19th Party Congress in October 2017, President Xi had a new clause inserted into the party constitution, providing that:120 The party leads everything, whether in the party, the government, the military, or the world of learning, and whether north, south, east, west or central. The latter proposition appears not to be correct. The author appears to be relying on a newspaper article or a statement published by the Chinese state news agency, Xinhua. It was reported in the online news website, The Diplomat, on 28 October 2017,121 that, according to a statement issued by Xinhua on 24 October 2017, during the CCP’s 19th National Congress, the Congress unanimously agreed that the leadership of the CCP was – the fundamental feature and the greatest advantage of socialism with Chinese characteristics. … Party, government, military, civilian and academic, east, west, south, north and centre, the party leads everything. Such a statement is not reflected in the Constitution of the CCP. It provides that: Leadership of the Communist Party of China is the most essential attribute of socialism with Chinese characteristics, and the greatest strength of this system. The Party exercises overall leadership over all areas of endeavour in every part of the country. … The Party must act within the scope of the country’s Constitution and the law. It must ensure that the legislative, judicial, administrative, and supervisory organs of the state, economic and cultural organizations, and people’s organizations work actively on their own initiative, independently, responsibly, and cooperatively.122 It also makes statements about the Party leading the people in developing the socialist market economy, democracy, culture and society and having absolute leadership over the armed forces. None of this discussion was the subject of evidence or submissions. I simply record these matters as recent assertions about the constitutional and party framework in the PRC. I do note, however, that the passage from the Constitution of the CCP set out 118 Both parties accepted that I can take such judicial notice, plus there is also expert evidence to that effect. 119 Fitzgerald (above footnote 99), 93, 96. 120 Fitzgerald, 270. 121 Charlotte Gao, ‘The CCP Vows To lead Everything Once Again,’ The Diplomat (web page, 28 October 2017): https://thediplomat.com/2017/10/the-ccp-vows-to-lead-everything-once-again/. 122 Constitution of the Communist Party of China, revised and adopted at the 19th National Congress of the Communist Party of China on October 24, 2017, (web page, accessed 13 September 2022), http://www.xinhuanet.com/english/download/Constitution_of_the_Communist_Party_of_China.pdf, p 10 (in the Preamble). -- 37 of 66 -- 35 above records that even the Party must act within the PRC’s Constitution - it is not above the law - and the Party must ensure, among other things, that the courts act independently of outside influences, as required under the country’s Constitution: see [172] below. This is an indication of the limits – at least in law – of the fact of which I have taken judicial notice. Those limits are made clearer in the PRC’s Constitution. [171] Under the Constitution of the PRC, the National People’s Congress Standing Committee can appoint and remove the president and judges of the Supreme People’s Court, the procurator general of the Supreme People’s Procuratorate and procurators. The Local People’s Congresses can appoint and remove local procurators and presidents of the people’s courts.123 [172] The Constitution of the PRC also provides that, except in special circumstances as prescribed by law, all cases in the people’s courts shall be tried in public and the accused shall have a right to defence. The people’s courts shall, in accordance with the law, independently exercise adjudicatory power and shall not be subject to interference from any administrative organ, social organisation or individual.124 (These are presumably the articles of the Constitution to which Dr Godwin was referring.) [173] The Constitution also provides that the people’s procuratorates are the legal oversight organs of the state. They shall, in accordance with the law, independently exercise procuratorial power and likewise shall not be subject to interference from any administrative organ, social organisation or individual.125 [174] Finally, the Constitution provides that, in handling criminal cases, the courts, the procuratorate and the public security organs should each be responsible for their respective tasks, work together with each other and act as checks on each other to ensure the faithful and effective enforcement of the law.126 [175] Notwithstanding the differences between the systems of government in Australia and in the PRC, the parties correctly submitted that it is not this court’s role to cast judgment on the entire legal system of that country. One might assume that those differences were, at least to some extent, taken into account by the Australian government when it decided to enter into the Treaty with the PRC. Nevertheless, as the respondents have raised the absence of judicial and prosecutorial independence from the executive as a factor relevant to whether it is, in this case, contrary to the interests of justice to register the foreign order,127 the PRC legal system and the particular foreign court’s apparent independence or otherwise in making its order have some relevance. 123 Constitution of the People’s Republic of China, http://www.npc.gov.cn/englishnpc/constitution2019/201911/1f65146fb6104dd3a2793875d19b5b29.s html, Articles 67(12), 67(13), 101. The Constitution itself was not placed in evidence during the hearing. However, Dr Godwin referred to it (paraphrasing it) without objection. The copy to which I refer is from the website of the National People’s Congress of the PRC and is consistent with Dr Godwin’s evidence, to the extent that he referred to it. If it had been tendered in evidence, it would have been admissible under s 68(f) of the Evidence Act 1977. My references to it do not alter, but support, my views derived from the evidence led in the hearing before me. 124 Articles 130, 131. 125 Articles 134, 136. 126 Articles 140. 127 Transcript, 4 August 2022, T1-55:14 – T1-56:19. -- 38 of 66 -- 36 [176] An example of a situation in which a foreign legal system may have particular relevance to the interests of justice in registering a foreign order (not discussed with the parties) might be if the court in a particular instance made an order and said that it did so simply because the prosecutorial authority had applied for the order. That would indicate that no proper consideration had been given to whether such an order should be made. It would not be hard to demonstrate in that case that it would be contrary to the interests of justice to register the order in an Australian court. [177] However, each case must be determined on its own facts. In this case I am not satisfied, on the evidence, that the PRC courts generally act as effective “rubber stamps” for the accusations made by the CDI and the procuratorate, nor (more relevantly) that the Hunan Court did so in this case. While judges are appointed by and subject to the supervision of the People’s Congresses, that does not necessarily mean that they decide cases only in the interests or at the behest of the CCP, let alone that they did so in this instance. I accept Dr Godwin’s evidence that there are constitutional provisions to the effect that courts must operate independently, free of interference from administrative bodies and others.128 As a matter of Chinese law, the Party has no power to intervene in or control the courts’ processes and decisions. It is the law, not some popular understanding or general and unproved proposition, to which I must have regard. [178] Professor Lewis’ evidence to the contrary was very general and largely constituted evidence of perceptions rather than facts. She gave no examples of cases or studies showing that courts regularly or occasionally do not act independently of the investigatory and prosecutorial bodies, other than her evidence of 99% conviction rates in criminal matters. But, while some might infer that the authorities would be likely to have a similar rate of success in civil proceedings (or at least civil proceedings related to criminal proceedings, such as the Hunan Court proceeding), in the absence of any evidence to that effect (let alone evidence derived from a detailed study of court results) it would be speculative for this court to reach such a conclusion. The respondents bear the onus of proving that it would be contrary to the interests of justice to register the Hunan Court’s order and they cannot do so on the basis of speculation. [179] Indeed, in this very case, as counsel for the Commissioner pointed out,129 the Hunan Court did not accept the procuratorate’s case that funds seized from Ms Jia’s parents were the proceeds of crime. Rather, it appears to have accepted their evidence of the source of the funds and ordered that the funds be released to them. That very order supports the Commissioner’s submission that the court operated independently of the procuratorate in its consideration of the evidence and the submissions made to it. [180] I also accept the Commissioner’s submission that, on its face, the ruling appears to demonstrate that the Hunan Court appears to have accorded due process to the participants. (I exclude the respondents from this conclusion, as they were not present. I consider later whether they were afforded natural justice.) [181] I conclude that the respondents have not demonstrated that PRC courts are, or the Hunan Court was in this case in particular, simply a rubber stamp for the executive, the Party or the prosecutorial authorities or operated in that manner. 128 Indeed, the articles of the Constitution referred to above support that evidence. 129 Applicant’s closing submissions in reply, [21]. -- 39 of 66 -- 37 [182] There is also no evidence (apart from speculation and Dr Lewis’ very general proposition) that the evidence before the Hunan Court was invented or was the result of torture or other undue coercion of the witnesses. Rather, as I have said, it appears to have been supported by documentary evidence concerning the respondents’ and others’ income and assets and the movement of amounts of money. [183] I do not accept that the rules under which the Hunan Court proceeding was brought and determined are not laws of the PRC. Although the Confiscation Provisions are said, on their face, to be “judicial interpretation,” Professor Lewis said that they have normative force and PRC courts are required to adhere to them.130 As the Commissioner submitted, they appear to be the Chinese equivalent of subordinate legislation. I am not satisfied that they are applied inconsistently, particularly not in this case. Furthermore, even if they were made “with specific political agenda in mind,” any such agenda (which was not demonstrated in any event) was not directed particularly at the respondents, but would have been part of the ordinary processes of government. As the Commissioner submitted, even in democratic countries such as Australia, laws are often (indeed, almost invariably) made in pursuance of a government’s political agenda. [184] As for the respondents’ final submission under this topic,131 I shall deal with the issue of procedural fairness later. As for the absence of the presumption of innocence, that is relevant to criminal matters and not to a confiscation proceeding. But in any event, at least in law (whether or not always applied in practice), Chinese law does recognise such a presumption in criminal matters. As counsel for the Commissioner noted, in the Criminal Procedure Law:132 (a) article 12 provides that “no person shall be found guilty except by the lawful judgment of a people’s court;”133 (b) article 51 provides that the burden of proof in a “publicly prosecuted case” is with the procuratorate;134 and (c) article 55 provides:135 In the handling and decision of a case, stress shall be laid on evidence, investigation and study, and credence shall not be readily given to oral statements. A defendant cannot be found guilty and sentenced if there is only his confession but no other evidence; however, a defendant may be found guilty and sentenced if, in the absence of his confession, there is credible and sufficient evidence proving his guilt. Evidence shall be deemed to be credible and sufficient if it meets the following criteria: (1) There is evidence for each fact that serves as a basis for conviction and punishment; 130 1st Lewis report, TB[25], [1.2.1.1], TB1025. 131 See [167] above. 132 Applicant’s closing submissions, [62]. 133 As translated by Professor Lewis, TB[25], [1.5.1]; also exhibit 8 (as to which, see my comments on translations at [187] to [189] below). 134 First Lewis report, TB[25], [1.6.1]; exhibit 8. 135 First Lewis report, TB[25], [1.7.1]; exhibit 8. -- 40 of 66 -- 38 (2) The authenticity of evidence on which the judgment is based has been confirmed through statutory procedures; and (3) Based on a comprehensive assessment of the evidence, the ascertained facts exclude all reasonable doubt. [185] I agree, with respect, with the Commissioner’s submission that these provisions do give rise to a presumption of innocence in criminal cases. But, as I have said, this was not a criminal case. Professor Lewis’ opinion on whether the presumption, although existing in law, is not given any practical effect in criminal cases is not, with respect, of assistance, nor is it demonstrated by the matters on which she bases that opinion. The process in the Hunan Court [186] I turn now to consider the applicable laws and the steps taken in the Hunan Court proceeding that led to its ruling and order. The relevant Chinese laws [187] There does not seem to be any substantial dispute as to what are the applicable laws and their content. They were mostly set out as an annexure to the Hunan Court’s reasons for its order. However, I have received in evidence two different translations of those laws: the initial translation undertaken by the Chinese central authority when it made the request for assistance to the Attorney-General and translations of two laws tendered in evidence.136 Additionally, both of the experts in Chinese law called by the parties, who are fluent in Mandarin and English and regularly translate Chinese laws and other documents into English, on occasions provided their views of the correct translation of some of the most relevant provisions. On the whole, there were no substantive differences between the translations. [188] Where necessary, I have determined what I consider to be the content of the relevant provisions, having regard to the exhibits and the experts’ respective written and oral evidence and correcting for proper English vocabulary and grammar. [189] Of course, an expert in foreign law may give evidence of what the content of the foreign law is. The witness may also give evidence as to the meaning of a written foreign law as it has been construed in that country. That is evidence of facts, from which the Australian court will make a finding of fact as to what the foreign law is. However, such a witness cannot generally give evidence about the law’s application to the facts of the particular case. The decision as to its content, meaning and effect is a matter for the court in which the evidence is given.137 136 Exhibit 6 – Provisions of the Supreme People’s Court and the Supreme People’s Procuratorate on Several Issues concerning the Application of the Confiscation Procedures for Illegal Income in a Case Where a Criminal Suspect or Defendant Escapes or Dies, No 1 [2017] of the Supreme People’s Court, effective 1 May 2017 (Confiscation Provisions) - and exhibit 8 – Criminal Procedure Law of the People’s Republic of China, 26 October 2018 (Criminal Procedure Law). Although this copy is from 2018, Professor Lewis said there were no relevant changes apart from renumbering the provisions on confiscation of the proceeds of crime. 137 For example, Stern, [107]-[109]; Nygh 2020, [17.17]-[17.21], [17.30]-[17.33]. -- 41 of 66 -- 39 Rights of participation and appeal [190] It is necessary first to determine what rights the respondents had, or might have had, to participate in the Hunan Court proceeding and to appeal from its ruling. I shall then consider the process that was adopted by the Hunan Court leading to its ruling. Right to participate in confiscation proceeding [191] In his report, Dr Godwin set out and then answered a number of questions that he had been asked by the Commissioner about the procedures in Chinese courts and parties’ rights before them. The first question was what legal avenues, if any, were available to the respondents to participate, or otherwise to make arrangements to defend their interests, in the Hunan Court proceeding without themselves being present in the PRC. [192] In essence, Dr Godwin concluded that a legal avenue was available for the respondents to participate in the proceeding by an agent ad litem, without being present in the PRC. This was particularly because he concluded that Article 19 of the Confiscation Provisions provided that avenue. That Article provides:138 Where a criminal suspect or defendant who has absconded overseas authorises an agent ad litem to apply to participate in the litigation, and the competent authority in the country (region) in which the illegal assets or other related assets are located expressly provides an opinion in support, the people’s court may permit it. Where a people’s court permits participation in the litigation, the agent ad litem of the criminal suspect or defendant shall exercise the procedural rights in these provisions of the agent ad litem of an interested party. [193] An interested party’s procedural rights are set out in Articles 13, 14, 15 and 18 of the Confiscation Provisions. Essentially, where they are permitted by the court to participate in the litigation, they may appoint an agent ad litem, participate in a hearing (which must be held unless the interested party fails to appear), produce evidence and make submissions. An interested party also has a right of appeal, not under the Confiscation Provisions but under Article 300 of the Criminal Procedure Law. [194] Dr Godwin relied, in support of his opinion that the respondents had a legal avenue to participate in the proceeding, on a paper written in January 2017 by the President and Deputy Chief of the Second Criminal Division of the Supreme People’s Court and another member of that court,139 in which the authors wrote (among other things): The question as to whether criminal suspects and defendants should be allowed to appoint agents ad litem was a difficult issue in the drafting process of the [Confiscation] Provisions. One point of view was that in recognition of the severe punishment for criminal suspects and defendants who abscond, the rule of ‘not adopting fugitive testimony’ should be used for reference, and criminal suspects and defendants who abscond should not be allowed to appoint an agent ad litem. Another point of view was that, for the purpose of improving the efficiency of overseas assistance in the execution of confiscation rulings, criminal suspects 138 This interpretation derives from the translations of the Article in exhibit 6 and by Dr Godwin at TB1623. I have corrected its grammar. 139 Godwin report, TB[28], at [2.8], TB1601. Dr Godwin also referred to a press release published on the website of the Supreme People’s Court in January 2017 and written by the same members of the Court and its Director of the Legal Policy Research Office, a copy of which is exhibit 4, by which they announced the Confiscation Provisions. -- 42 of 66 -- 40 and defendants should be allowed to appoint agents ad litem. … special attention has been paid to reviewing due process and increasing the protections in respect of the procedural rights of criminal suspects and defendants. … … in order to smoothly promote the efficiency of overseas assistance in implementation, the [Confiscation] Provisions basically adopt the latter point of view. Article 19, paragraph 1 … clarifies that in such circumstances, the trial court will decide whether to permit the criminal suspect or defendant to appoint an agent ad litem to participate in the litigation based on the circumstances of the case, the comprehensive situation concerning the unlawful gains or other property involved in the case and in accordance with opinions put forward by the country (region) of the responsible departments in the [relevant] country (region). Where permitted to participate in litigation, the agent ad litem of the criminal suspect or defendant exercises the litigation rights in accordance with the provisions concerning the agents ad litem of interested parties. [195] Dr Godwin expressed the view that it was not necessary, in order that a criminal suspect or defendant overseas be permitted representation, to obtain the opinion of the competent authority140 of the country in which assets are situated, supporting the application for permission to be represented. He maintained that such permission was within the Chinese court’s discretion even if no such opinion was obtained.141 [196] With respect, I disagree. Article 19 expressly requires that such an opinion be obtained. That appears to be considered necessary so that the Chinese court can take into account whether the country in which assets are situated ordinarily requires that a respondent to an application for confiscation of property be given a right to be heard in the courts of that country.142 It is only where the overseas suspect appoints an agent ad litem and such an opinion is provided that the Chinese court’s discretion arises. Otherwise the criminal suspect or defendant appears to have no right to participate in a confiscation proceeding. If it be necessary, this seems to be confirmed by the opinion expressed by the authors of the press release to which Dr Godwin referred, as set out above.143 [197] The respondents did not, of course, seek an opinion from the Commonwealth Attorney-General in support of a right to be represented in the confiscation proceeding in the Hunan Court. They did not seek to be represented: they say, because they were not aware of the proceeding at all. If they had been aware of it and had obtained such an opinion and the Hunan Court had granted them leave, they would have had a right to participate in the proceeding, even from another country, by the appointment of an agent ad litem to represent them. However, I might also add that the Commissioner provided no evidence that, if the respondents had sought an opinion supporting an application to be represented, the Attorney-General or his delegate would have been 140 I take the references to the “competent authority” and the “relevant department” to be the authority or department nominated by the other country in any treaty for mutual assistance or otherwise determined by that country. In the case of Australia, the competent authority is the Commonwealth Attorney-General’s department: Treaty Article 3, section 2. 141 T1-74 - 75. 142 This was no doubt intended to guard against another country declining to register a confiscation ruling because the respondents were not given an opportunity to be heard in the Chinese proceeding. This is also apparent from the terms of article 12 of the Confiscation Provisions, which refers to the obtaining the opinion of the country in which the criminal suspect is located concerning service of the suspect: see [236] below. 143 Exhibit 4, paragraph [14]. -- 43 of 66 -- 41 prepared to provide such an opinion. In the absence of such evidence, it seems doubtful that he would have been prepared to take a step that he might consider to be interfering in a foreign proceeding. It is also speculative whether the competent authorities of the other countries in which the respondents have assets would, if asked, have been prepared to provide an opinion to support any application for leave to be represented. [198] Professor Lewis was asked whether a person whose property is the subject of an application for a restraining or forfeiture order has a right to appear and, if so, whether that right extends to cross-examination, tendering exhibits and giving evidence. She concluded that the Confiscation Provisions do allow for participation in those proceedings through an agent in the circumstances described in article 19, but the courts are vested with significant discretion about how a proceeding is conducted.144 I shall discuss shortly her evidence about the extent of participation that might be allowed. [199] I find that a criminal suspect or defendant who is outside China and who is the respondent to an application for forfeiture will only have a right to appear and participate in the proceeding, by an agent ad litem, if: (a) the person appoints an agent ad litem and applies for leave to be represented and thereby to participate in the proceeding; (b) the person obtains and provides to the Chinese court an opinion or submission from the competent authority in each country where the assets the subject of the application are situated, supporting the person’s application for leave to be represented; and (c) the court grants the person leave to be represented, a matter in which, once the above matters are satisfied, the court has a discretion. [200] In the absence of an opinion from the relevant competent authority of each country in which the assets the subject of the confiscation application are situated, a person whose assets are the subject of such an application and who is not physically in China and at the hearing145 has no right to participate in the application, as the court’s discretion is not enlivened. [201] Therefore, I am satisfied that, in this case, the respondents did not have a right to participate in the hearing of the application before the Hunan Court.146 However, if they had obtained an opinion from the Attorney-General supporting their ability to be represented and had applied for leave to be represented, it is possible that the Hunan Court would have allowed them to participate. [202] Assuming that a person obtains leave to participate in a confiscation proceeding, there is little evidence about the extent to which such a person is allowed or permitted to participate. It is not clear, for example, whether the person would be given access to the procuratorate’s evidence in sufficient time to consider it, to gather one’s own evidence and to attempt to counter it effectively; or whether the person can give evidence (including by video link from overseas), tender documents, call witnesses and cross-examine witnesses. In the Hunan Court’s reasons, it noted that Ms Jia’s 144 Second Lewis report, TB[29], section 1.4. 145 In the words of the relevant provisions, who has “absconded”. 146 Of course, this begs the question whether they deliberately did not seek a right to participate. I discuss that issue below at [278]ff. -- 44 of 66 -- 42 father “did not submit relevant evidence and materials,” which tends to indicate that interested parties (and therefore the respondents, if they had been represented) were entitled to produce their own evidence. [203] Ms Jia’s father did “challenge” the procuratorate’s evidence of the payment of RMB380,000 by Ms Jia to a family member. The challenge appears to have been not so much to the payment, but that the procuratorate had not proved that the payment was from the proceeds of crime, rather than from the respondents’ legitimate earnings. The Court accepted that challenge and excluded that sum from its confiscation order. [204] The Court went on to say (concerning the respondents’ assets in Australia):147 The procuratorial personnel presented [the] following evidence in court to prove the above facts, which were ascertained by this Court upon the hearing, cross-examination and verification. [205] However, the extent of a party’s right to cross-examine witnesses is not at all clear. Nor is it clear whether a party is entitled to see all the evidence well in advance of a hearing, so that the party may decide whether to challenge any of it. [206] In her first report, Professor Lewis examined the meaning of the words “upon the hearing, cross-examination and verification,” having particular regard to the Chinese characters used in the original. She opined that the words quoted above mean that an opposing party (to the procuratorate) had some sort of opportunity during the hearing to participate in the examination of evidence by questioning the evidence, after which the court verified the information, but it does not necessarily mean that there were live witnesses in person who were available to be cross-examined in the sense of oral questioning.148 [207] It seems unlikely that any oral questioning (other than, perhaps, by the Court) occurred in the proceeding before the Hunan Court, given that the hearing lasted only one day. However, some oral evidence may have been presented, as the Court appears to distinguish between written statements of some witnesses (in respect of other assets that were subjects of the application) and “testimonies” of witnesses concerning other matters, including the transfer of funds to Australia.149 [208] In the circumstances, I cannot be satisfied that, even if they had been represented at the hearing, the respondents would have been given a real opportunity to test the case against them. However, it is the respondents’ obligation to demonstrate that it would be contrary to the interests of justice to register the order. They have demonstrated some doubt about the extent of their rights, had they appeared or been represented at the hearing, but they have not demonstrated, on the balance of probabilities that they would not have been afforded such an opportunity. Right to appeal confiscation order [209] The second question asked of Dr Godwin was what rights of appeal or other legal avenues were or are available to the respondents to appeal or set aside the Hunan Court’s order, including whether any avenues were or are available to them if they had participated in the proceeding or if they had not. 147 Hunan Court’s reasons, 16: TB[11], TB108. 148 First Lewis report, [2.6], TB1033. 149 For example, TB[11] at 11, 16, TB103, 108. -- 45 of 66 -- 43 [210] Dr Godwin concluded that, if they had participated in the proceeding, they would have had a right to appeal within five days of the Hunan Court’s order being made. His reason for this view is that article 300 of the Criminal Procedure Law provides that close relatives and other interested parties may appeal against a confiscation ruling and Article 19 of the Confiscation Provisions provides that, if a criminal suspect or defendant has absconded and the court permits that person to participate in the proceeding, the agent ad litem of the person will exercise litigation rights in accordance with the provisions concerning an agent ad litem of interested parties. Interested parties have a right of appeal, so the suspect or defendant who participates in the litigation would also have such a right. [211] As the respondents did not participate in the proceeding, they had no right of appeal. But in any event, with respect, I do not agree that, had they participated in the Hunan Court proceeding, the respondents would have had a right of appeal. Even if an overseas criminal suspect or defendant is given a right of appearance in confiscation proceedings under article 19 of the Confiscation Provisions, that person’s agent ad litem can exercise only the procedural rights “in these Provisions” of the agent ad litem of an interested party. An interested party’s right of appeal is not provided under those provisions, but under Article 300 of the Criminal Procedure Rules. [212] Dr Godwin conceded in cross-examination that article 300 does not give any right of appeal to criminal suspects or defendants.150 He relied on article 19 as giving that right, but he was unable to point to any academic or other support for that view apart, he thought, from Professor Lewis. In her third report,151 Professor Lewis did not expressly agree with that view, although I can understand why Dr Godwin thought she may have done so. I disagree that there is such a right, for the reasons set out above. [213] It is possible, as Dr Godwin opined in his report at [1.3], that article 18 gives a right to a person who unwittingly did not participate in the original hearing, to participate in an appeal lodged by somebody else. However, that article only applies to an “interested party”, not to a criminal suspect or defendant. “Interested party” is defined in article 7 of the Confiscation Provisions as including “any close relatives of a criminal suspect or defendant or any other natural person or entity that claims the rights to the property of which confiscation has been applied for.” It does not include the criminal suspect or defendant. [214] Article 18 of the Confiscation Provisions provides: Where an interested party failed to participate in the original trial not intentionally or out of gross negligence, and applies to participate in the trial on appeal, the people’s court shall grant permission and remit the case to the original people’s court for retrial. [215] It might be said that article 18 is applied to a criminal suspect or defendant by the second paragraph of article 19, as article 18 is a “procedural right” of the agent ad litem of an interested party. But article 19 only applies to a criminal suspect or defendant who has applied for leave to participate in the original proceeding, while article 18 applies to a person who did not participate. Article 18 cannot apply to a 150 T2-8:24-27. 151 TB[30], section 2. -- 46 of 66 -- 44 criminal suspect or defendant who did not participate in the proceeding, because in that case article 19 does not apply. [216] For completeness, I record that article 230 of the Criminal Procedure Rules provides that an appeal must be brought within 10 days of judgment or within five days of a ruling, that time to be measured from the date the judgment or ruling is “received”. That word makes it appear that the time for appeal begins whenever a party to the original proceeding in fact receives a copy of the court’s ruling. But that seems unlikely, as it would mean that there would be no definite time within which any appeal must be commenced. I consider it more likely that a ruling is “received” when it is published by the court. But this issue is of academic interest only, given that I consider that the respondents had no right of appeal. [217] Dr Godwin said in cross-examination that, where a person did not participate in a proceeding, any appeal rights would have been in the court’s discretion.152 I disagree. There is no provision that I have seen that gives an appellate court a discretion to allow a person, who has no right under the rules, to appeal from a judgment or ruling. Doctor Godwin was unable to point to any such provision, nor to any case in which any such discretion had been exercised. [218] Therefore, I find that: (a) as the respondents did not participate in the Hunan Court proceeding, they had no right of appeal; (b) even if they had participated in the proceeding, they would still have had no right of appeal; and (c) even if they had had a right of appeal, it is likely that it could only have been exercised within five days of the ruling having been made by the Hunan Court. Prior steps taken by the Hunan Court and in this Court [219] The Yueyang People’s Procuratorate filed a prosecution in the Hunan Court on 1 April 2017. On 20 September 2017, the procuratorate filed an application for an order freezing the respondents’ assets held in Australia.153 [220] On 23 September 2017, the Hunan Court made a ruling in which it ordered that certain assets held by the respondents in Australia and other countries be frozen pending further investigation and prosecution.154 However, the Commonwealth Attorney- General’s Department sought more details of the assets and other matters not dealt with in the ruling,155 which led to the Hunan Court making another ruling on 3 August 2018 (the freezing order), restraining dealings with the relevant assets.156 The Hunan Court157 then requested assistance from the Commonwealth Attorney-General to enforce that ruling in Australia.158 152 T2-4 – 5. 153 TB[2] at TB55. 154 TB[3]. 155 Exhibit 5. 156 TB[4]. 157 Rather than Chinese central authority (under the Treaty). 158 TB[5], [6]. -- 47 of 66 -- 45 [221] On 10 October 2018, Judge Jarro ordered that the Hunan Court’s freezing order be registered.159 His Honour ordered that his order, the originating application, the affidavit in support of the application and any further application in the proceeding be served on the respondents by mail to an address in Saint Kitts and Nevis and by emails to a number of email addresses. Those addresses had been supplied to the Attorney- General’s Department by two Australian banks with which Ms Jia had current accounts. [222] The request for assistance and registration of the Hunan Court’s freezing order was exhibited to the supporting affidavit of Graham White. Of particular relevance, it said:160 In the opinion of the People’s Procuratorate of Yueyang City, the properties transferred by the criminal suspects Peng Xufeng and Jia Suyu to Australia belonged to unlawful proceeds and shall be confiscated according to law. In order to further investigate the corpus delicti, and to prevent the unlawful proceeds from being transferred and concealed, People’s Procuratorate of Yueyang City applied to the Intermediate People’s Court of Yueyang City for restraining the unlawful proceeds transferred by the criminal suspects Peng Xufeng and Jia Suyu to Australia. … [223] It appears that the documents the subject of Judge Jarro’s order were served on the respondents in accordance with his Honour’s order. Mr Peng said that he received his Honour’s order from the applicant in October 2018.161 In his cross-examination, Mr Peng said he read the order and the affidavit in support of Mr White. He understood that he was accused of committing crimes and that the Hunan Court had frozen all his assets. He agreed that he had appealed from Judge Jarro’s order, engaging senior and junior counsel for that purpose.162 He said he did not have any idea that the Chinese authorities intended to confiscate his assets.163 He did not know that the purpose of the restraint was to confiscate his assets, but thought it was an attempt by the Chinese authorities to force him to return to China. He was not aware that there were confiscation proceedings on foot in China, nor did he choose not to appoint anyone to defend his rights in confiscation proceedings (presumably in China).164 [224] Ms Jia agreed that she became aware of the existence of proceedings in China for freezing orders, but she could not recall when. She said she had commenced appeal proceedings in Australia, filed an affidavit in that proceeding and engaged counsel for that purpose. She also became aware of Mr White’s affidavit and read the request for assistance in enforcing the freezing order. But she did not understand from that request that there was a potential for future confiscation of the respondents’ assets. She simply considered that the statements in the documents were lies and political persecution.165 She read the Chinese version of the request for assistance but it did 159 TB[8]. 160 TB[33] at TB2075. 161 3rd Peng affidavit, [40]. 162 T2-59 – T60. 163 T2-55:33-40; T2-56:45 – T2-57:59; T2-61:17 – T2-62:8. 164 T2-64:16-34; T2-65:19-23. 165 T2-81-84. -- 48 of 66 -- 46 not refer to any Chinese authority’s intention to confiscate those assets, although it did use the word “confiscate”.166 [225] There is no other evidence of the appeal from Judge Jarro’s order nor its outcome (although clearly it was either discontinued or unsuccessful, as the freezing order remains on foot). The steps taken by and in the Hunan Court in the confiscation proceeding [226] I turn now to the procedures that led to the Hunan Court’s confiscation order, in order to consider whether those procedures result in a conclusion that it would be contrary to the interests of justice to enforce that order. [227] Those procedures were usefully described by the Hunan Court in its ruling.167 [228] The procuratorate filed its application for confiscation of illegal proceeds on 22 June 2019. Under article 8 of the Confiscation Provisions, an application for confiscation of illegal proceeds must contain certain information, including the facts of the criminal suspect or defendant and relevant evidentiary materials, the type, quantity, value and location of the property of which confiscation is applied for, the relevant facts and evidentiary materials that the property is illegal income or other case-related property and the grounds and legal basis for filing the application. I assume that the application in this case complied with those requirements.168 [229] The Court accepted the application on 23 June 2019 and made an announcement in the People’s Court Daily and on the website of the Supreme People’s Court on 27 June 2019.169 [230] Several people, including Ms Jia’s parents, applied to participate in the proceeding. A public hearing occurred on 31 December 2019. Ms Jia’s father and his agent ad litem appeared and participated at the hearing. They sought to prove (and satisfied the Court) that RMB380,000 that had been given to them (for the purpose of purchasing an apartment) was unlikely to be from the proceeds of crime. That sum was therefore excluded from the ultimate confiscation order.170 [231] The Court published its ruling on 3 January 2020. In the ruling, it found that there was evidence that, from 2010 to 2017, Mr Peng, separately or jointly with Ms Jia and, on occasions, others, had accepted bribes totalling about RMB238,992,588 and US$120,000 (about A$51,000,000 in total). The evidence included physical evidence, documents and witness testimony and “the facts … were ascertained by this Court upon the hearing, cross-examination and verification.” The Court found that the 166 T2-85:1-43. I have set out above the English translation of the document, which refer to the opinion of People’s Procuratorate that the Australian properties “shall be confiscated according to law.” 167 TB[11]. 168 This is a necessary assumption, as this court is not to examine the validity of the Hunan Court’s order: MACM Act, s 33A(2). 169 Article 299 of the Criminal Procedure Law requires that, after the court accepts an application for confiscation, it shall issue a public notice, which shall last for six months. The close relatives of the criminal suspect or defendant and other interested parties shall have the right to apply to participate in the litigation and may engage agents ad litem for that purpose. Article 12 of the Confiscation Provisions requires that the notice be published in newspapers published across the country, information network and other media and the website of the Supreme People’s Court. The notice in this case is at TB[9]. I assume that the extent of its publication was in accordance with these provisions. 170 Hunan Court’s ruling [TB11], p15, TB107. -- 49 of 66 -- 47 assets the subject of this application, as well as other assets, with total values of approximately A$29,000,000 (including assets in China worth about A$22,000,000) were “highly probable to be the illegal proceeds of [Mr Peng or both respondents] from the acceptance of bribes.” [232] Given that the hearing only took one day and the ruling was published only three days later, it seems likely that most or all of the “witness testimony” comprised written statements of witnesses. The Court does refer to at least one written statement (by Mr Peng’s brother) and otherwise to the “testimony” of witnesses. It is not at all clear what “cross-examination” occurred: it seems unlikely that there was any time for substantial, if any, cross-examination during the hearing. It is also unclear what is meant by “verification” by the Court.171 Service or knowledge of the respondents [233] As I have said above in summarising the respondents’ evidence, each of them denies having been served with any documents concerning, or otherwise having been aware of, the Hunan Court proceeding for confiscation of their assets until after the order was made, although they did become aware of the Hunan Court’s earlier freezing order when they were served with Judge Jarro’s order registering that order. Under cross-examination, the respondents persisted in their denials that they had any knowledge of the Hunan Court proceeding for confiscation of their assets before the Commissioner served them with this application. [234] The Commissioner submitted that I should not accept the respondents’ evidence that they did not know that the confiscation proceeding was contemplated or later was on foot. Rather, I should conclude that they deliberately avoided being served with, or having formal notice of, that proceeding, having been forewarned about it by the documents served on them with Judge Jarro’s order. It is not credible that, having been served with Judge Jarro’s order registering the Hunan Court’s freezing order, together with the affidavit in support of the application for registration (including the request for assistance that referred to the procuratorate’s opinion that the assets should be confiscated) and having been in touch with Ms Jia’s parents (who were represented at the hearing of the confiscation proceeding), the respondents would not have understood that the freezing order was a precursor to a confiscation order and, later, that the confiscation proceeding was on foot. I should disbelieve that evidence and find that they knew about the confiscation proceeding. If they chose not to make further enquiries, they were wilfully blind. This court should infer that they had sufficient knowledge of the proceeding that they could be taken to have been informally served with notice of it, or to have deliberately avoided receiving notice of it. [235] The Commissioner filed no evidence that the respondents had been served with, or made aware of, the confiscation proceeding before the Hunan Court order was made. Rather, the Commissioner relies on the Court’s process of advertising such a proceeding, including on the website of the Supreme People’s Court, an assertion that the respondents had frequent conversations with Ms Jia’s parents during the course of the proceeding and the fact that Ms Jia’s parents were represented at the hearing and were themselves obviously aware of at least the nature of the proceeding. Finally, the respondents became aware of the freezing order in late 2018 and should therefore have expected that some further action would be taken, especially as it was stated in the 171 Although, see [206] and [207] above. -- 50 of 66 -- 48 ruling for the freezing order that the procuratorate was of the opinion that the Australian assets “shall be confiscated” and the respondents clearly obtained Australian legal advice about the registration of the order, given that they engaged solicitors and senior and junior counsel in Australia and at least commenced an appeal from Judge Jarro’s order. [236] Article 12 of the Confiscation Provisions is relevant to the question of service of the application in the Hunan Court proceeding. On that question, it provides: … if the people’s court has obtained the contact information of an overseas criminal suspect, defendant or interested party, upon the consent of the addressee, fax, email or any other means which may confirm his receipt may be used to notify him of the announcement content and shall be placed on the record in the case file; and if the addressee does not consent, or the people’s court did not obtain the contact information of an overseas criminal suspect, defendant or interested party, and the competent department in the country (region) in which he is located expressly stated that the notice containing the announcement content ought to be served upon the addressee, the people’s court that accepted the application for confiscation of the illegal income may decide whether or not to serve it. If service is decided, the announcement content shall be reported to the Supreme People’s Court on a level-by-level basis and the Supreme People’s Court shall, according to the criminal treaties and multilateral conventions on judicial assistance, or the principle of reciprocity, request the competent department in the country (region) in which the addressee is located to provide assistance in the service. [237] The respondents contend that they were not aware of the confiscation proceeding (distinguishing it from the application for the freezing order) until they were served with this application. I accept their evidence in that respect. There is a clear difference between an interlocutory order restraining dealings with property and an application for a final order for confiscation of that property. [238] The evidence on which the Commissioner relies is insufficient to infer that the respondents had any, let alone sufficient, knowledge of the confiscation proceeding. The fact that the application was advertised on the Supreme People’s Court’s website and elsewhere for six months before the hearing is not sufficient. What, if anything, they were told by Ms Jia’s parents is not in evidence and they were not asked in cross- examination whether they had been told by Ms Jia’s parents that the confiscation application was on foot. Even though the ruling on the freezing order referred to the procuratorate’s opinion that the assets should be confiscated, that was an opinion of the procuratorate at the time and did not indicate if or when it was to be acted upon. Having been served with the freezing order, it would have been reasonable to assume that, if a confiscation order was sought, the respondents would be served with relevant documents, particularly given that any such application would be for final orders with substantial and permanent consequences. [239] Furthermore, article 12 refers to the possibility of asking the respondents to an application for confiscation to agree to service by a method other than personal service; or the competent department in the country in which the respondent is located expressly stating that the notice containing the announcement content ought to be served upon the addressee. That infers that the Chinese authorities ought to ask the competent department in the country where the criminal suspects are located whether, perhaps under that country’s laws or procedures, it is necessary or preferable that a person be served with notice of the Chinese court proceeding, or it may be effected -- 51 of 66 -- 49 by some form of substituted service. Even if it is informed that that is the case, the Chinese court retains a discretion whether or not to take steps to serve such a notice. [240] There is no evidence that the Hunan Court or any other Chinese authority, nor any person on its behalf, contacted the respondents to arrange some form of personal or substituted service of the confiscation proceeding. This is notwithstanding that, by the time that proceeding was commenced, the Commissioner had successfully served the respondents with the freezing order and related material and the respondents had commenced an appeal from Judge Jarro’s order and, for that purpose, presumably had instructed solicitors in Australia. It is inevitable that the Commissioner would have informed the Chinese authorities of the terms of Judge Jarro’s order, which of course contained those contact details. I infer that the Commissioner informed the Chinese authorities of all these matters, thus arming the latter with contact information for the respondents. [241] Nor is there any evidence that any Chinese authority asked the relevant department in Saint Kitts and Nevis (where the respondents had a physical address known at least to the Commissioner), nor in the United States of America (if that is where the respondents were at the time),172 whether the respondents should be served personally with notice of the confiscation proceeding, nor that the procuratorate or the Hunan Court considered whether, let alone asked, to arrange for service of the proceeding on the respondents. If any real steps had been taken by the Chinese authorities to give them adequate notice, I would expect the Commissioner to have tendered evidence to that effect. There appears to have been no attempt to comply with article 12, nor to serve the respondents with notice of the confiscation application even though, by then, at least the Commissioner and (I infer) the Attorney-General’s Department and the Chinese authorities appear to have had sufficient contact details effectively to serve the freezing order on them.173 [242] I have already said that I accept the respondents’ evidence that it did not strike them that freezing might lead to confiscation.174 I also accept their evidence that they had no knowledge of the proceeding until they were served with this application. Even if they had anticipated a future confiscation application, they were not told that it was proceeding. I do not accept that they were told by anyone in China that the confiscation proceeding was on foot. There is no evidence that they spoke to anyone in China at any time between the date of the Court’s announcement of the application (23 June 2019)175 and the date of the Court’s ruling (3 January 2020). Mr Peng said that occasionally the Chinese police would arrange for his sister or his parents to speak to him via WeChat, during which he would be threatened. He referred in part to two such conversations in June 2020.176 But neither he nor Ms Jia said that they were in touch with anyone in China between June 2019 and January 2020. They both said that they had no knowledge of the confiscation proceeding until they were served with 172 If the PRC has any treaty with either country, which I do not know, or under the common law of international reciprocity. 173 Indeed, the Commissioner was later able to serve on the respondents the application for registration of the confiscation order (filed on 25 January 2021) and the supporting documents, presumably in the manner that Judge Jarro had ordered that it be served, or by service on the respondents’ solicitors in Australia. 174 See [140] above. 175 TB[9]. 176 1st Peng affidavit, TB[20], at [114]. -- 52 of 66 -- 50 the documents in this proceeding. Counsel for the Commissioner did not suggest to them that Ms Jia’s parents told them about the confiscation application. [243] I am satisfied that the respondents were not served, formally or informally, with any notice of the Hunan Court proceeding before the confiscation order was made, and that they were not aware of it. As they were not served with, nor given any other notice of, the application for confiscation in the Hunan Court, they had no opportunity to apply to participate in that proceeding, to obtain a supporting opinion from the competent authorities in the countries where the assets are located and to gather and provide evidence to the Hunan Court to show the sources of their assets and to attempt to counter the evidence on which the procuratorate relied. Their situation is completely different to the defendants in other cases such as LFDB and Ortmann. Confiscation of assets of absconders [244] The Hunan Court proceeding took place in the respondents’ absence substantially because they were criminal suspects or defendants who had fled or hidden and could not be brought to justice one year after they were wanted for arrest.177 That fact – together with the applicants’ failure to apply to be represented by an agent ad litem – meant that the respondents were not able to participate in the Hunan Court proceeding. [245] The Commissioner contends that those facts do not mean that the forfeiture regime in the PRC is so flawed in a fundamental way that this court should be satisfied that it is not in the interests of justice to register the Hunan Court’s ruling. [246] In this respect, the Commissioner compared the PRC process with processes for the confiscation of proceeds of crime in Australia and other jurisdictions. In particular, some regimes permit the confiscation of assets of persons without notice to them where they have absconded or cannot be found.178 [247] Notably, in Australia under the POC Act, a person is taken to have “absconded” if, at the end of six months after a warrant for the person’s arrest is issued, the person cannot be found or is, for any other reason, “not amenable to justice”. In the PRC, by contrast, a forfeiture application can be made if the person “flees or hides and cannot be brought to justice one year after he is wanted for arrest.”179 In that respect, the PRC law appears to be more favourable to a respondent than the Australian law. [248] I accept that the mere absence of notice of an application to confiscate proceeds of crime, where the respondent criminal suspect has absconded, does not necessarily mean that it would be contrary to the interests of justice to make or to register a confiscation order without notice to the owner of the property. However, this court must still consider whether, in this particular case, the absence of notice would, alone or with other factors, make registration of the Hunan Court’s order contrary to the interests of justice. 177 Criminal Procedure Law, article 298 (adopted by article 2 of the Confiscation Provisions). 178 Applicant’s written closing submissions in reply, [10](d), relying on the POC Act, s 63 and the definition of “abscond” in s 334 and, as other examples, Criminal Proceeds Confiscation Act 2002 (Qld), ss 105, 110, 113, 115, 151; Criminal Proceeds Recovery Act 2009 (NZ), s 57; Proceeds of Crime Act 2002 (UK), ss 27-29, 177-178; and Criminal Code Act 1985 (Canada), Part XII.2, s 462.38. 179 Criminal Procedure Law, article 298; Confiscation Provisions, article 2. -- 53 of 66 -- 51 [249] In Australia, if a person is given notice of a confiscation application, the person has an automatic right to be represented at the hearing, whether or not the person has “absconded.” If an application is made without notice and an order is made, the respondent still has a right of appeal from the order. In some circumstances, a court’s order may be set aside on the ground that the respondent was not present when the order was made. Reasons might include that the respondent had been given no notice of the application.180 But even where the respondent did receive some notice of the hearing that led to the order being made, the respondent may still be entitled to have the order set aside, depending on the circumstances that led to the respondent not being present at the hearing (and the availability of an arguable defence to the application). These rights operate to provide an opportunity to be heard notwithstanding that an order has been made. [250] I see no reason why these rights could not operate to have a forfeiture order under the POC Act set aside in appropriate circumstances, including where an order was made without notice in the circumstances provided for in s 63. To my mind, if a court were to dispense with the notice requirement under s 63, that would not necessarily prevent the respondent subsequently applying to set aside any order made in the respondent’s absence because he or she had no knowledge of the application. The whole purpose of rules such as those to which I refer above is to enable a respondent to an application that is heard in the respondent’s absence to attempt to demonstrate that the respondent should have a right to be heard and may have a good defence to the application.181 [251] Indeed, even absent a rule to similar effect, at common law courts, including in Australia, have the power to set aside an order made in the absence of a party. Such a power “enables a court to set matters right when there has been a failure to observe an essential requirement of natural justice.”182 [252] There is no such right under PRC laws. The confiscation order, having been made and there having been no appeal, cannot be set aside, nor the proceeding re-heard. [253] These differences in the laws of the PRC and Australia do not mean that a forfeiture order made in the PRC without notice to an “absconding” defendant would necessarily be so unfair that it would be contrary to the interests of justice to register it in Australia. But they are matters that this Court can and should take into account in determining that ultimate issue. [254] In my view, as the Australian authorities (and, I infer, the Chinese authorities) had contact information for the respondents, the respondents should have been given the opportunity to become “amenable to justice” (using the Australian terminology) by being given notice of the confiscation proceeding. They were not. 180 For example, Uniform Civil Procedure Rules 1999, r 667(2)(a); Federal Court Rules, r 39.05(a). 181 For example, Re Criminal Proceeds Confiscation Act 2002 [2004] 1 Qd R 40, 45 [9]: absent s 30 of the Act there in question, an application for a restraining order could be brought ex parte in the first instance. (Emphasis added.) Also at [13], referring to r 667(2)(a). 182 That is, the right to be heard: Taylor v Taylor (1979) 143 CLR 1, 7 (Gibbs J, having cited Woods v Sheriff of Queensland (1895) 6 QLJ 163, 164); Stephen J agreeing at 10; Mason J to similar effect at 15-16 and Murphy J at 20-21. -- 54 of 66 -- 52 Would registration of the Hunan Court’s order be contrary to the interests of justice? [255] In considering this question, it is relevant to note that, in the explanatory memorandum for the Bill introducing the current Part VI, Division 2 into the Act, it was said that:183 These provisions will also enable the enforcement of civil forfeiture related orders in relation to prescribed countries. It is envisaged that only those countries would be proscribed [sic] which provide reciprocity and where there is confidence that the confiscation regime is fair, adequately supervised by an independent judiciary and provides adequate safeguards for innocent third parties. [256] Although this explanation does not define or limit the matters relevant to the interests of justice,184 it does indicate that Parliament intended that Australian courts would only be required to enforce foreign orders made under a “confiscation regime” having the qualities described: qualities that are relevant to and part of the interests of justice as understood under Australian jurisprudence. But, although Parliament may have intended that treaties for mutual assistance would only be made with countries in which the Australian Government had confidence that they had such a regime, that confidence does not, of course, mean that, in a particular case, it would not be contrary to the interests of justice to register and enforce a particular foreign order. Of course, whatever Parliament’s intention, if it were not the effect of the legislation as enacted, I am bound by the legislation, not the prior expressions of intent. [257] Nothing in the MACM Act in fact requires expressly that treaties only be entered into with countries in which the judicial system has the qualities referred to in the explanatory memorandum. Nor is there anything in the Act that expressly requires a court, such as this, to which an application is made for registration of a foreign order, particularly a foreign confiscation order, only ordering registration if it is satisfied that the court that made the order and the system under which it was made has those qualities. [258] However, whether the process under which a foreign forfeiture order was made involved procedural fairness and natural justice to the respondents, including whether the order was made in circumstances where the regime was fair, the courts were independent and the respondents had had a legitimate and adequate opportunity to oppose the application for confiscation, is clearly relevant to whether it would be contrary to the interests of justice for an Australian court to register the order and thus to enable its enforcement in Australia. [259] It is necessary now to consider this crucial question having regard to my findings and the parties’ submissions. Denial of procedural fairness [260] The respondents submitted that, as they had not been served with notice and had no knowledge of the Hunan Court proceeding for confiscation of their assets, they had no opportunity to participate in that proceeding before (or since) the court made the confiscation order and therefore they have not been afforded any semblance of 183 Proceeds of Crime (Consequential Amendments and Transitional Provisions) Bill 2002, Explanatory Memorandum, p 1 (General Outline). 184 Of course, the interests of justice were not relevant to s 34A as it was introduced by that Bill. -- 55 of 66 -- 53 procedural fairness. Therefore, it would be contrary to the interests of justice to register the Hunan Court’s order. [261] The Commissioner submitted that the respondents were given an appropriate level of procedural fairness and that, in any event, the extent of procedural fairness should be considered in the light of the facts that: (a) the Chinese procedure expressly modified service requirements where a person had absconded, escaped or died, pursuant to which the PRC authorities proceeded in this case; (b) the respondents in fact had absconded and were trying to conceal their whereabouts from the PRC authorities;185 and (c) some Australian and other common law countries’ confiscation regimes permit the confiscation of a person’s assets without notice in circumstances where the person has absconded or cannot be found.186 [262] I have dealt with the substance of those contentions in the previous section of these reasons, but it is necessary also to consider the level of procedural fairness that might lead to it being contrary to the interests of justice to register a foreign order that is the result of some such unfairness. [263] In LFDB v SM at first instance, Griffiths J considered what level of inadequacy in procedural fairness afforded to the respondent by a foreign court may be such as to make it contrary to public policy to enforce a judgment in Australia. I can do no better than quote extracts from his Honour’s reasons, including other cases to which he referred.187 105 In applying the notion of a gross denial of procedural fairness as an aspect of the doctrine of contrary to public policy, I consider that helpful guidance is obtained from the following observations of Lindley MR in Pemberton v Hughes [1899] 1 Ch 781 at 790 to 791 which, although directed to the recognition of a foreign judgment at common law, also inform the proper approach under the Act: If a judgment is pronounced by a foreign Court over persons within its jurisdiction and in a matter with which it is competent to deal, English Courts never investigate the propriety of the proceedings in the foreign Court, unless they offend against English views of substantial justice. Where no substantial justice, according to English notions, is offended, all that English Courts look to is the finality of the judgment and the jurisdiction of the Court, in this sense and to this extent - namely, its competence to entertain the sort of case which it did deal with, and its competence to require the defendant to appear before it. If the Court had jurisdiction in this sense and to this extent, the Courts of this country never inquire whether the jurisdiction has been properly or improperly exercised, provided always that no substantial injustice, according to English notions, has been committed. 185 2nd Peng affidavit, [3], in which he deposed that, in his earlier affidavits in this proceeding, he had used an Australian address because he did not then want the Chinese authorities to know where he was living. 186 Referring to the POC Act, ss 63, 334 and the other statutes referred to in footnote 178 above. 187 [2017] FCA 80, [105]-[111]. Of course, his Honour was considering a slightly different question (public policy) to that which I am considering, but his discussion is nevertheless useful and apposite in considering whether the registration of a foreign order would be contrary to the interests of justice. -- 56 of 66 -- 54 106 The real issue is whether the Court is satisfied that there has been a gross denial of procedural fairness so as to attract the public policy exception. In considering this issue it is important to bear in mind the need for judicial self-restraint, as is highlighted in the passage immediately above. For the following reasons I am not satisfied that a gross denial of procedural fairness has been demonstrated in respect of either judgment. 107 Insofar as LFDB personally is concerned, I reject his submission that the making of the relevant unless orders which resulted in his debarring from participating in the substantive proceedings in New Zealand involved gross procedural unfairness to him. Merely because “unless orders” are unknown in Australia does not mean that they are contrary to public policy. The Court must recognise that merely because a different approach is taken to a problem in an overseas jurisdiction, such as New Zealand, does not mean that the approach is contrary to public policy. As Cardozo J said in Loucks v Standard Oil Co of New York (1918) 224 NY 99; 120 NE 198 at 201 to 202: A right of action is property. If a foreign statute gives the right, the mere fact that we do not give a like right is no reason for refusing to help the plaintiff in getting what belongs to him. We are not so provincial as to say that every solution of a problem is wrong because we deal with it otherwise at home ... The courts are not free to refuse to enforce a foreign right at the pleasure of the judges, to suit the individual notion of expediency or fairness. They do not close their doors unless help would violate some fundamental principle of justice, some prevalent conception of good morals, some deep-rooted tradition of the common weal. 108 Many of the relevant principles which guide the consideration of whether a foreign judgment is contrary to public policy are reflected in the following extracts from Whelan J’s judgment in Jenton Overseas Investment Pty Ltd v Townsing [2008] VSC 470; 21 VR 241 which I consider are also apposite in the specific context of applying that exception under the Act (footnotes omitted): 20 It seems to me that the authorities reveal that the courts are slow to invoke public policy as a ground for refusing recognition or enforcement of a foreign judgment. There are few instances in which a foreign judgment has not been recognised or enforced on this ground. There are good reasons for this. There are, as Kirby P puts it, the “interests of comity” to maintain. The respect and recognition of other sovereign states' institutions is important. This is especially so when acting under the Foreign Judgments Act where the registration and enforcement procedures apply on the basis that there is “substantial reciprocity of treatment” for Australian judgments in the foreign forum. There is also a need for caution because of the inherent volatility of the notion of “public policy”. As Atkinson J points out in De Santis v Russo, “what is contrary to public policy in one era might not be considered contrary to public policy in another”. 21 This is not a case where what is suggested is that there has been a denial of natural justice in the sense that there was no notice given or no opportunity to participate in the hearing. It is worth noting, however, that even where that is the basis for the public policy ground the task of the applicant in persuading the court not to enforce the foreign order is a difficult one, as exemplified by the judgment of Einstein J in Norsemeter Holdings AS v Boele (No 1). What is submitted here is that the public policy ground is enlivened because there has been substantial injustice. -- 57 of 66 -- 55 22 I accept that substantial injustice, either because of the existence of a repugnant law or because of a repugnant application of the law in a particular case, may invoke the public policy ground. But it will only do so where the offence to public policy is fundamental and of a high order. For the public policy ground to be invoked in this context enforcement must offend some principle of Australian public policy so sacrosanct as to require its maintenance at all costs. 109 I also respectfully agree with the following observations of Atkinson J in the Supreme Court of Queensland in De Santis v Russo [2001] QSC 065; 27 Fam LR 414 where, in the context of considering the public policy exception under the Foreign Judgments Act concerning orders made by an Italian court as to the maintenance of children which differed in several respects from comparable laws in Australia (footnotes omitted), his [sic] Honour said at [18]: Certainly these aspects of Italian law are different to Australian law but much more must be shown than that the applicable legal rules are different. Different jurisdictions within Australia, let alone in foreign countries, adopt different solutions to similar problems without suffering the ignominy of being described as contrary to public policy. The relevant Australian law has itself undergone significant change during the course of the twentieth century… 110 As is evident from the summary of the respondent’s submissions above, there are several overseas jurisdictions, including New Zealand, where powers are conferred on a court to make an unless order in appropriate circumstances. 111 I accept the respondent’s submission that, in these circumstances, and having regard to the high threshold, this Court should be hesitant to conclude that the making of unless orders in the New Zealand litigation was contrary to public policy. The making of the unless orders [that] debarred LFDB from participating in the proceedings were made in circumstances which were fully explained by Ellis J. I reject the applicants’ submission that the making of those orders is fundamentally inconsistent with Australian law concerning procedural fairness. It is to be recalled that the principles of procedural fairness require that a person whose interests are likely to be adversely affected is entitled to be generally given a reasonable opportunity to be heard (see Kioa v West [1985] HCA 81, 159 CLR 550). LFDB lost that opportunity because of his failure to comply with the unless orders. [264] The authors of Nygh’s Conflict of Laws in Australia record that public policy requires that a party be accorded natural justice in the foreign court and that requirement relates to the procedure of the foreign court. It has two requirements: (1) each party must have had the opportunity of presenting his or her case before an impartial tribunal; and (2) each party must have been given due notice of the proceeding.188 [265] The authors go on189 to record that it would be a denial of natural justice if a party were not allowed to give evidence before, or to address, a foreign court,190 or if one party is prevented by the intimidation of the other party from conducting the proceeding in the foreign court. [266] I have concluded that the respondents were not served with, nor given notice of, the confiscation proceeding. In that respect, they were not afforded natural justice. As 188 Nygh 2020, [40.82]. 189 Nygh 2020, [40.83]. 190 Subject to self-inflicted prohibition, as in LFDB and Ortmann. -- 58 of 66 -- 56 Griffiths J said at [111], by reference to Kioa v West, the principles of procedural fairness require that a person whose interests are likely to be adversely affected is generally entitled to be given a reasonable opportunity to be heard. I keep in mind that, in the passage quoted by his Honour from the decision of Whelan J, it was noted that, even where the basis for the public policy ground is that there has been a denial of natural justice in the sense that there was no notice given or no opportunity to participate in the hearing, the task of persuading the court not to enforce the foreign order remains a difficult one. But it is not insurmountable. [267] Both the case before Whelan J191 and the case before Einstein J192 to which Griffiths J referred are distinguishable from this. In the former the respondent to the overseas proceedings (the applicant to set aside the registration of the judgments in Victoria) had not only been served with notice of the proceedings, but had fully participated in the proceedings, both at first instance and on appeal. In the latter, the defendant in a proceeding in Norway appeared and was represented in that proceeding, including at the trial. The plaintiff was unsuccessful at trial, but appealed and served the notice of appeal on the defendant’s lawyers, who accepted that service. The lawyers did not tell the plaintiff or the court that, before they were served (indeed, before the judge at first instance had delivered judgment), the defendant had withdrawn his instructions so they no longer represented him. Nor did they inform the defendant that an appeal was on foot. The appeal court, in the defendant’s absence, overturned the decision and gave judgment for the plaintiff. On an application to enforce that judgment in Australia, the defendant contended that he had not been served with, nor had the opportunity to participate in, the appeal and therefore the court should not enforce the judgment. Einstein J held that, given his lawyers’ behaviour in not informing the court or the appellant that they no longer acted for him, the interests of justice required that he be bound by their default rather than that the other party suffer the consequences. [268] In Kioa v West,193 Brennan J cited the following well-known passage: The requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject-matter that is being dealt with, and so forth. Accordingly, I do not derive much assistance from the definitions of natural justice which have been from time to time used, but, whatever standard is adopted, one essential is that the person concerned should have a reasonable opportunity of presenting his case. [269] His Honour went on to recognise that, in some circumstances, a peremptory exercise of a power without notice to a person whose interests are likely to be affected may be justified, where the purpose of the power would be frustrated if notice of intention to exercise it were given. Examples in the matter before me would be the application for the freezing order that was first made by the Hunan Court and the application for registration of that order in this court. Both applications were made without notice to the respondents, no doubt for fear that, if notice were given to them, they may have taken steps to frustrate the power by moving or divesting themselves of assets before any order could be made. That, of course, is typically why applications for freezing orders are made ex parte. But that simply means that, in those cases, what is required to effect natural justice is reduced, even to nil (at least initially), so as not to frustrate 191 Jenton Overseas Investment Pte Ltd v Townsing (2008) 21 VR 241. 192 Norsemeter Holding AS v Boele (No 1) [2002] NSWSC 370. 193 (1985) 159 CLR 550, 613, quoting from Russell v Duke of Norfolk [1949] 1 All ER 109, 118. -- 59 of 66 -- 57 the exercise of the power. Otherwise such a person should be afforded the opportunity to present his or her case. As Brennan J said:194 When the repository [of a power] is bound or is entitled to have regard to the interests of an individual, it may be presumed that observance of the principles of natural justice conditions the exercise of the power, for the legislature can be presumed to intend that an individual whose interests are to be regarded should be heard before the power is exercised. [270] Similar statements about the right of a person to be heard in a claim against the person or the person’s assets have been made and repeated in many cases. For example, in Cameron v Cole,195 Rich J said: It is a fundamental principle of natural justice, applicable to all courts whether superior or inferior, that a person against whom a claim or charge is made must be given a reasonable opportunity of appearing and presenting his case. [271] I do not consider that the circumstances in which confiscation orders may be made without notice, in proceeds of crime cases here and overseas, mean that, in the particular circumstances of this case, it is necessarily not contrary to the interests of justice to register a foreign order that was made without notice to the respondents. [272] Where the Court must register the foreign judgment unless it is satisfied that it would be contrary to the interests of justice to do so, in my view it must have regard to the circumstances in which the foreign order was made, including whether the respondents were afforded natural justice and had the right and a real opportunity to be heard before the foreign order was made. [273] Here, the respondents had no notice of the confiscation proceeding in the Hunan Court. Had they been given notice and afforded an adequate opportunity to appear, to test the evidence of the procuratorate and to give evidence themselves (even by video link), the Hunan Court would have had the opportunity to consider their evidence in making its decision. That evidence is likely to have been similar to (although possibly in greater detail than) their evidence in this proceeding, by which they sought to demonstrate that: (a) it was not possible, given the manner in which tenders were awarded and Mr Peng’s role in that process, for Mr Peng to have influenced the process in any way and therefore there was no sense in any person seeking to persuade or reward Mr Peng for awarding tenders to particular companies; (b) the evidence relied on by the procuratorate, particularly that of the witnesses, was false; (c) the alleged bribes were not in fact paid to them and, possibly, some of the assets the subject of the application were not theirs; (d) the sources and amounts of the respondents’ legitimate income and capital assets over the years enabled them to acquire the assets the subject of the confiscation application; and 194 (1985) 159 CLR 550, 619. 195 (1944) 68 CLR 571, 589. This and other statements of the principle were adopted, by way of another example, by Gibbs J in Taylor v Taylor (1979) 143 CLR 1, 4. -- 60 of 66 -- 58 (e) they were not aware that there was any prohibition on them investing in assets in other countries and, for that purpose, transferring substantial funds to other countries and, indeed, they were advised to the contrary. [274] As to the latter two propositions, the Commissioner contends that their evidence to this court was woefully inadequate and was not supported by any independent evidence. I accept that it is far from sufficient to prove or to explain those matters fully. Indeed, on the evidence before this court as to the respondents’ income and investments over a long period, there seems little prospect that they could have acquired assets in the amounts and to the values of those said by the Hunan Court to be owned by the respondents (assuming that they are in fact the respondents’ assets). But that does not mean that, if the respondents had had a proper opportunity to give and call evidence with sufficient access to their records in China, they could not have provided far greater detail and, perhaps, have satisfied the Hunan Court that the case against them should not succeed, either wholly or in part. [275] In my view, therefore, the failure of the Hunan Court or the PRC authorities to give the respondents notice of the confiscation proceeding and the opportunity to place evidence before the Hunan Court and to test the other evidence involved a significant lack of procedural fairness in the process leading to the Hunan Court’s order. It could well have prevented the respondents disproving part or all of the procuratorate’s case against them (if, as the Commissioner contends, the court would have acted independently and considered all the evidence in an unbiased manner). It is particularly significant given the reasoning of the Supreme People’s Court, in providing for absconding criminal suspects to have a right of appearance, that such a right was necessary “for the purpose of improving the efficiency of overseas assistance in the execution of confiscation rulings” and “in order to smoothly promote the efficiency of overseas assistance in implementation.”196 [276] It is also relevant that the respondents had no right to appeal the Hunan Court’s order. Nor do they have any right to apply to have the order set aside and the case reheard on the grounds that they were not aware of the proceeding and did not have the opportunity to oppose the application. The absence of those rights is also significant in the denial to the respondents of appropriate procedural fairness. [277] Subject to the question whether the respondents chose to absent themselves from the Hunan Court proceeding, all these matters lead me to the conclusion that the process undertaken by the Hunan Court led to a denial of procedural fairness and natural justice in fundamental respects according to relevant Australian principles. Self-inflicted absence from Hunan Court? [278] The Commissioner contends that the respondents chose not to be represented in the confiscation proceeding before the Hunan Court, but to remain overseas. They knew about (or were wilfully blind to) the proceeding and took no steps to be there or to be represented. They did not apply to the Attorney-General for an opinion supporting their right to be represented. Far from taking any such steps, they sought actively to hide their whereabouts from the Chinese authorities. Therefore, their failure to present any defence to the forfeiture application in the Hunan Court was of their own making. 196 See [194] above. -- 61 of 66 -- 59 In the circumstances, it would not be contrary to the interests of justice to register that court’s order. [279] Counsel for the Commissioner relied, as similar examples of a defendant being denied the opportunity to be heard by the defendant’s choice of action, on LFDB v SM and Ortmann. I have already described the circumstances of LFDB. In Ortmann, in which Adamson J was considering the application of s 34A of the MACM Act, Mr Ortmann had been indicted in Virginia, USA, charged with conspiracy to commit money laundering and other serious offences. The indictment sought forfeiture of his assets around the world, including the proceeds of bank accounts in Australia. He was arrested in New Zealand and opposed his extradition to the USA. Under Virginia law, a person can be disallowed from defending a claim for civil forfeiture if, having been given notice of a warrant for his or her arrest, the person declines to re-enter the USA in order to avoid prosecution. A forfeiture order was made in the defendant’s absence in reliance on that provision. He contended that the “doctrine of fugitive disentitlement” (as the law was referred to) was contrary to the requirements of natural justice or procedural fairness recognised by Australian law. The judgment had been ordered without his participation and that amounted to a denial of procedural fairness. [280] Adamson J found to the contrary. Her Honour concluded that, in the case before her, as in LFDB, the defendant was not entitled to be heard by the foreign court because of a circumstance of his own making. For the reasons of the Full Court in LFDB, that was not sufficient to amount to a circumstance making registration of the order contrary to the interests of justice. [281] The Commissioner here contends that the respondents, knowing of the freezing order and that a proceeding for forfeiture of their assets was on foot or was likely to follow, deliberately refrained from returning to China, or instructing someone else to appear as their agent, to oppose the application in the Hunan Court. They had six months after notice of the proceeding was advertised to apply to be represented, yet they did nothing to be represented in that time. They had previously come to know about the freezing order and its registration in Queensland and they had instructed Australian lawyers to represent them here. Yet they took no steps to instruct lawyers in China to advise and represent them there. Therefore their lack of participation in the Hunan Court proceeding was a result of their own deliberate choices and a consequence of their own making. [282] I disagree. The respondents’ position here is distinguishable from each of LFDB and Ortmann. First, in each of those cases, the defendant had lost any right to appear in the relevant foreign court to dispute the claim against him as a consequence of steps deliberately taken, or not taken, by him. In this case, the defendants did not lose an entitlement to be represented in the Hunan Court simply because they chose not to return to China. They were entitled to apply for leave to be represented by an agent ad litem, although whether they were given leave would have been within that Court’s discretion. [283] Secondly, and more importantly, in each of those cases the defendant was aware of the foreign court proceeding, but deliberately took a step that disbarred him from a right to defend that proceeding. I have found that the respondents did not know that the confiscation proceeding was on foot. Had they known, they may well have sought leave from the Hunan Court to be represented in the proceeding. Certainly, when they were served with this Court’s order registering the freezing order and when they were -- 62 of 66 -- 60 later served with this application, on each occasion they obtained legal representation in this country. There is no reason to believe that they would not have sought representation in the Hunan Court proceeding had they known about it. They were prevented from participating in that proceeding because they did not know about it. They did not know about it because no efforts were made by the Chinese authorities to inform them of it, notwithstanding that their whereabouts, or at least their contact details, were known. [284] Therefore I am not satisfied that the respondents deliberately chose to ignore the Hunan Court proceeding and not to participate in it. Conclusions [285] In my opinion, with all due respect to the Hunan Court and notwithstanding the objects of the Act and the relevant subdivision and the government’s obligation in Article 1 of the Treaty to grant the PRC the widest measure of mutual assistance in relevant matters, I consider that it would be contrary to the interests of justice to register the forfeiture order in Queensland. In summary, this conclusion arises from the following matters: (a) most importantly, the respondents were not served with any notice of the Hunan Court proceeding, even though their whereabouts or contact details were known, at least to the Commissioner as representative of the Chinese authorities in the application for registration of the freezing order; therefore they had no real opportunity to contest the application in that court; (b) even if they had had notice of the proceeding, there is some doubt whether they would have been given leave to be represented, as they would first have had to obtain an opinion from the Attorney-General (and, perhaps, opinions from authorities in the other countries where they have assets) supporting their right to be represented in the Chinese proceeding and, in any event, whether they would be entitled to representation was entirely within the Hunan Court’s discretion; (c) it is not clear that, even if they had been given leave to be represented, they would have been given adequate notice of the case against them by, for example, being provided a full brief of the evidence on which the procuratorate relied and a reasonable opportunity to gather their own evidence to counter that of the procuratorate; (d) the absence of any right to appeal from the Hunan Court’s order, or to apply to set it aside because it was made in their absence; and (e) therefore the respondents were not afforded natural justice or procedural fairness in the Hunan Court proceeding. Orders [286] I shall therefore refuse the application for registration of the Hunan Court’s order. [287] I consider that I should also set aside the freezing order made by Judge Jarro. The parties agreed that that would be appropriate if I were to refuse this application. However, that order will not become operative until after the expiration of the time for any appeal and the conclusion of any appeal from my order. -- 63 of 66 -- 61 [288] The parties also accepted that costs should follow the event. I shall therefore also order that the applicant pay the respondents’ costs of the proceeding from the date that the application for registration of the foreign confiscation order was filed. -- 64 of 66 -- 62 Schedule – objections to evidence Evidence Objection Response Decision First Peng affidavit [81]-[86] Hearsay. Not within deponent’s knowledge. Source of information not disclosed. Personal knowledge; source of information disclosed in third Peng affidavit. Not relied on for truth of matters said, but as to deponent’s state of mind (T2-29 – 2-30, 23.11.21). Objection overruled. Allowed as evidence of things said to Mr Peng that led to his state of mind described in [87], relevant to why he left China. [126] 2nd sentence Deponent’s belief irrelevant; comprises submission. Non-hearsay purpose of proving that deponent is in financial distress. Also to his belief and why he won’t return to China (T2-38 – 2-39, 23.11.21) Objection overruled. Relevant to why the respondents will not return to China and to whether they knew of the confiscation proceeding. (Similar to [148]-[150] chapeau, to which objections were not made.) Second Peng affidavit [7](c) Speculation; not within deponent’s knowledge. 2nd sentence is personal knowledge. Balance not pressed. Objection to 2nd sentence overruled, as personal knowledge. 1st and 3rd sentences struck out. [61](g), exhibits XP-N and XP-O Hearsay; not within deponent’s knowledge. Non-hearsay purpose of attesting that named persons were involved and accused. Objection upheld. Hearsay that cannot prove that the persons were accused or involved. Also irrelevant. -- 65 of 66 -- 63 Third Peng affidavit [34] chapeau Grounds of objection not clearly stated, but appear to be relevance (T2-42 – 2-45, 23.11.21). Personal knowledge. Objection upheld. Purports to explain Mr Peng’s knowledge of Chinese court systems, to explain his beliefs stated in 1st Peng affidavit [150](a). Does not demonstrate relevant experience. Second Jia affidavit [4](b)(iv) Speculation. Non-hearsay purpose of attesting that Jia was allowed to depart China. Objection upheld. Belief is irrelevant. (Similar to 2nd Peng affidavit [7](c) 3rd sentence.) -- 66 of 66 --