Question 2: whether a warranty under s 31A must be given personally
25Mr Cassar submitted that in order for a warranty to trigger the operation of s 31A, it must be given personally by the person the subject of the assets forfeiture or proceeds assessment order. He submitted that this followed from the express words of s 31A, viz that:
"... a warranty ... was given ... in proceedings for [an assets forfeiture or proceeds assessment order] by a person against whom the order is made (the defendant) as to the defendant's interest in property." (emphasis added)
26Mr Cassar submitted that the Criminal Assets Recovery Act, including s 31A(1)(b), should be given a strict, literal interpretation given that the Act was penal in nature, conferred wide powers on the Commission and imposed severe consequences upon persons subject to orders made under it. Mr Cassar also submitted that a strict interpretation was warranted given the scope for unintentional non-disclosure of property to be made, having regard to the wide meaning of "interests in property" as defined in s 7 of the Act. It was integral to this submission that the requirement that the warranty be given personally was not subject to or qualified by s 55.
27Principles of statutory interpretation require that the language of the provision be construed having regard to its purpose and its context: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; 239 CLR 27; Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; 87 ALJR 98; Certain Lloyd's Underwriters Subscribing to Contract No IH00AAQS v Cross [2012] HCA 56; 248 CLR 378; Commissioner of Taxation v Unit Trend Services Pty Ltd [2013] HCA 16; 87 ALJR 588 at [47]. The place that context and purpose played in the construction of a provision was explained in Certain Lloyd's Underwriters v Cross by French and Hayne JJ, at [24]:
"The context and purpose of a provision are important to its proper construction because, as the plurality said in Project Blue Sky Inc v Australian Broadcasting Authority, '[t]he primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute' (emphasis added). That is, statutory construction requires deciding what is the legal meaning of the relevant provision 'by reference to the language of the instrument viewed as a whole', and 'the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed' ..." (citations omitted)
28Mr Cassar's submission, that penal statutes were subject to "higher statutory interpretation principles" cannot stand in the light of these authorities. The approach, that criminal statutes are to be construed strictly or according to some "higher interpretation", was the subject of comment in Beckwith v The Queen [1976] HCA 55; 135 CLR 569 where Gibbs J observed, at 576:
"The rule formerly accepted, that statutes creating offences are to be strictly construed, has lost much of its importance in modern times. In determining the meaning of a penal statute the ordinary rules of construction must be applied, but if the language of the statute remains ambiguous or doubtful the ambiguity or doubt may be resolved in favour of the subject by refusing to extend the category of criminal offences: see R. v. Adams [1935] HCA 62; (1935) 53 CLR 563, at pp 567-568 ; Craies on Statute Law, 7th ed. (1971), pp. 529-534. The rule is perhaps one of last resort."
29The same approach was applied in R v Lavender [2005] HCA 37; 222 CLR 67 at [94], where Kirby J stated:
"The ordinary rules of construction are now first applied, including in the ascertainment of the meaning of penal and taxing legislation. In such categories, as much as anywhere else, it is the duty of a court to ascertain, and give effect to, the purpose of the legislature as expressed in the language enacted by Parliament. To some extent the demise in the attractiveness of the former rule of construction has followed the recognition by courts of the legitimacy of modern Parliaments, elected as they now are by universal suffrage. Artificial categories and exceptions are now less in favour than they formerly were. Nevertheless, somewhat like the contra proferentem rule (the occasionally useful principle of construction of insurance and like documents) the principle suggesting a stricter approach to the interpretation of penal legislation may sometimes prove useful when ambiguity seems intractable." (footnotes omitted)
See also Roads and Traffic Authority (NSW) v Baldrock [2007] NSWCCA 35; 168 A Crim R 566 at [24] per Spigelman CJ.
30In accordance with the principles of statutory construction to which we have referred, it is necessary to ascertain the legal meaning of the particular provision under consideration, in this case s 31A, by reference to the language of the section having regard to its purpose and the context in which it appears. The purpose of the Act is to deprive individuals of serious crime derived property and the provisions of the Act, such as ss 22, 27 and 31A aid in achieving that purpose. The context in which s 31A is to be construed is one in which a forfeiture order may be made without the necessity for the court to be satisfied of the prerequisites for otherwise making a forfeiture order in s 22 of the Criminal Assets Recovery Act and where, as submitted, "interest in property" is widely defined. In particular, it is not necessary for the Court to be satisfied that the property in respect of which there has been non-disclosure is serious crime derived or illegally acquired property. The section must also be construed in the context of the other provisions of the Act, including s 55.
31The precondition to making an order under s 31A is that an assets forfeiture order or a proceeds assessment order has been made: s 31A(1)(a). Subject to that pre-condition, s 31A(1)(b) refers to three circumstances which trigger the forfeiture provisions of the section, namely, if the person against whom an order of the type specified in s 31A(1)(a) fails to disclose a specified interest in property in (i) giving evidence, (ii) giving a warranty, or (iii) making a representation in proceedings for the order or in examination proceedings under the Act.
32Although this case concerns the giving of a warranty, the provision as a whole needs to be considered to determine whether the text, context and purpose of s 31A(1)(b) require that a warranty be given personally.
33The first circumstance raised in s 31A(1)(b) in which a non-disclosure may occur is the giving of evidence. Section 31A refers to evidence given in proceedings for an order specified in subs (1)(a) by the defendant against whom such order is made. This wording turns attention to the person against whom the order is made.
34An assets forfeiture order may be made in proceedings against an individual in respect of an interest in property of that individual person who is suspected at the time of the application of having engaged in serious crime related activity: s 22(1) and s 22(1A)(a). If an assets forfeiture order is made under these provisions, then, for the purposes of s 31A, the person who gave evidence must be the person against whom the assets forfeiture order was made.
35An assets forfeiture order and a proceeds assessment order may also be made against a corporation: see s 22(1) and s 22(1A)(b) and (c) and s 27(1). Mr Cassar accepted that this was so. A corporation acts through individuals. Depending upon a person's role or position within the company, a particular individual may act as the corporation in the sense of being the directing mind of the company: Tesco Supermarkets Ltd v Nattras [1972] AC 153 (especially at 171 per Lord Reid); Hamilton v Whitehead [1988] HCA 65; 166 CLR 121. A corporation has the same capacities and powers as an individual: see the Corporations Act 2001 (Cth), s 124 and accordingly may appoint agents and act through them.
36Mr Cassar contended that it was only the evidence of the former, that is, an individual acting as the corporation, that could trigger the operation of s 31A. There is nothing in the language of s 31A(1)(b) that confines the evidence given by a corporation to evidence of a person who acts as the company. An act by an agent on behalf of a principal is as much the act of the principal is if the principal had done the act personally.
37A warranty is different in nature from evidence. Evidence is given on oath in a proceeding. Depending on the matter in issue in the proceeding, it is a statement to the court by a person as to a state of affairs known to a person, or as to that person's actions, knowledge, observations or state of mind. By contrast, a warranty is a promise as to the existence or state of affairs or status of something. For example, a person may warrant or represent that goods are fit for purpose, that there are no defects in a property or that goods will be delivered on a particular day. In the ordinary course of things, a warranty may be given by an agent.
38A representation is a statement about something, not amounting to a promise. For example, a representation may be made during the course of negotiations for the sale of a business, or for a lease of premises for a business, that the location will attract passing trade. There may be a representation that business will increase because of the location. Other examples can easily be brought to mind. Likewise, in the ordinary course, a representation may be given by an agent.
39For the purposes of determining the proper construction of s 31A, it is also relevant to have regard to the person to whom the warranty or representation is given. As already indicated, s 31A only operates if evidence was given in proceedings for one or other of the orders specified in s 31A(1)(a). However, there is nothing in the text of s 31A that indicates that the warranty or representation must be given to the court. This may be contrasted with an undertaking, which may be given either to the court or inter partes with differing consequences. An undertaking given to another party to litigation may in the ordinary course be given personally or by an agent and is governed by the ordinary rules of contract. By contrast, an undertaking given to the court operates in the same way as a court order so that breach will constitute a contempt: see Thomson Australian Holdings Pty Ltd v Trade Practices Commission [1981] HCA 48; 148 CLR 150 at 164-165 per Gibbs CJ, Stephen, Mason and Wilson JJ; Pang v Bydand Holdings Pty Ltd [2011] NSWCA 69 at [51]. Importantly for the purposes of the question presently under consideration, an undertaking to the court may be, and is frequently, given by an agent, usually the person's legal representative. Where an undertaking is given to the Court by an agent, the serious consequence of breach still attaches to the person upon whose behalf the undertaking is given.
40However, it is difficult to see that a warranty could be given or a representation made "to the court", in the sense that an undertaking may be given to the court, for the simple reason that no consequence would thereby attach. The consequence that attaches where property is not disclosed is a consequence imposed by s 31A itself. If there is nothing in the nature of a warranty or representation that requires that it be given personally and if the serious matter of giving an undertaking to the Court may be given by an agent, the question becomes whether there is anything in the language of s 31A(1)(b), having regard to the context and purpose of the section, that requires the warranty or representation to be given personally.
41The essence of Mr Cassar's argument in this regard was that, having regard to the wide meaning of "interest in property" in the Act, there was a real risk of non-disclosure and that as the deprivation of property was such a serious consequence, the legislature must have intended that the language of s 31A, that the evidence, warranty or representation must be given by the person against whom an order is made, be read literally. However, as orders under ss 22 and 27 may be made against a corporation, this argument can only be advanced in respect of an order made in proceedings against an individual.
42That in turn raises the question whether, on its proper construction, s 31A is to be read distributively, so that when an order under s 22 or s 27 is made against an individual, such as in this case, not only must the evidence be given by the person against whom the order has been made, but a warranty or representation must be given or made personally by that individual. If one of the means by which non-disclosure occurs is personal to the defendant, there is an argument that coherence requires that the section be construed so that it applies in a consistent manner. On this approach, where an order is made against an individual, the evidence, warranty or the representation given or made would be required to be given or made personally whereas, in the case of a corporation, the evidence, warranty or representation would be made or given by an agent.
43An indication that this is the proper construction of s 31A is in the words "given or made by the person against whom the order is made". In our opinion, however, there is nothing in the purpose or context of s 31A that would require that the warranty be given or the representation be made personally by the person against whom proceedings are brought. Nor does the text of the section compel that answer. The language that a warranty be given or a representation made "by the person against whom the order is made", does not, as a matter of language, necessarily exclude the operation of the principles of agency. In this regard, the construction of the provision has to be determined in the context of the legislation as a whole: see Project Blue Sky; Certain Lloyd Underwriters above at [27].
44It is necessary, therefore, to turn to s 55.
45Section 55 relates to "conduct of directors, employees and agents". It has, in effect, two parts. Subsections (1) and (2) deal with the position of a body corporate. Subsections (3) and (4) relate to the conduct of individuals. Pursuant to ss 55(1) and 55(2), the state of mind of a body corporate, or conduct engaged in by a body corporate, is not limited by reference to the state of mind or conduct of officers of the corporation. Provided that conduct is engaged in within the scope of a director's, employee's or agent's actual or apparent authority, the state of mind or the conduct is taken to have been engaged in by the corporation, and the corporation's state of mind will be that of the director, employee or agent engaged in the conduct.
46Mr Cassar did not argue that s 55(1) and (2) had no application to a corporation. Rather, on his submission, those provisions clarified the usual understanding of the relationship between a corporation and its directors. He contended, however, that the reference to agency, including the agency of employees of a company, was there "to catch criminal acts". He submitted that s 55(1) and (2) did not apply to the situation of an employee or agent giving a warranty or making a representation within the meaning of s 31A. This argument was an elaboration of the submission referred to above at [26].
47In essence, Mr Cassar's argument was that for the purposes of s 31A, the only conduct that could trigger its operation was conduct of someone who could be equated with the defendant identified in the section. In the case of a corporation, that was a director or officer of the corporation. In the case of an individual, it was the individual. However, dealing for the moment with s 55(1) or (2), there is nothing in the context or in the purpose of those provisions that requires them to be construed in this way. Indeed, that construction is contrary to the plain text of the section and we would reject it.
48That then led to Mr Cassar's argument in respect of s 55(4). Mr Cassar's primary submission remained that s 55(4) did not apply to s 31A. Again, it is necessary to have regard to the language of the provisions, having regard to the purpose of the Act as a whole and of these provisions in the context of the Act. We have already referred to the purpose of the Act and the function of s 31A within that context. The purpose of s 55 is apparent on the face of the terms of the section and its language is plain, as indicated below.
49As already indicated, at [43] above, although there are indications in the language of s 31A that evidence, a warranty or representation must be given or made by the person against whom the order is made, there is also nothing in the language which excludes that this may occur through an agent. In particular, neither s 31A nor s 55 excepts its operation from the other. If the legislature intended that s 55 was not to apply to s 31A, the provision could expressly have, and might have been expected to have, so stated. Not only does the provision not except s 31A from its operation, it expressly provides that conduct engaged in by an agent within the scope of the agent's authority "is to be taken, for the purposes of this Act, to have been engaged in" by the principal (the Court's emphasis).
50When that circumstance is considered in conjunction with the fact that an order under s 31A can be made against a corporation and that a corporation can only act through its agents, given the interaction of ss 55(1) and (2) with s 31A that we consider those provisions have, we are of the opinion that an agent may give a warranty for the purposes of s 31A.