Authorities
68 Having expressed my opinion about the proper construction of s 12GB(6), I turn to consider if there is anything in the authorities to which the Court was referred which is incompatible with the construction I have adopted, or requires me to reach a different conclusion.
69 There are some cases which have considered similar provisions, and at least one case, both at first instance and on appeal, that has considered s 12GB(6), together with s 12GBC(2). The parties placed different emphasis on different aspects of these cases.
70 The applicant relied on the outcome in Attorney-General (Cth) v Oates [1999] HCA 35; 198 CLR 162, and the finding that s 1316 of the Corporations Law was facultative. Section 1316 provided:
Despite anything in any other law, proceedings for an offence against this Law may be instituted within the period of 5 years after the act or omission alleged to constitute the offence or, with the Minister's consent, at any later time.
71 The applicant submitted:
The High Court held that s 1316 is a facultative provision that was enacted to respond to a particular mischief, namely time limits imposed on the bringing of charges for summary offences. That mischief was especially acute because the law in the different States of the Commonwealth was not necessarily uniform. What s 1316 did, then, was to ensure that at a minimum, should there be any time limit otherwise imposed, then five years was granted to commence a prosecution. But if there was no time limit (or no shorter limit), then it was unnecessary to have resort to s 1316, and it did not operate as a time bar itself.
(Citations omitted.)
72 Insofar as Oates is used to support the proposition that provisions expressed in language similar to s 12GB(6) could be construed other than as restrictive time limits, so much can be accepted. Otherwise, the facts and the "mischief" arising from the wider legislative context in Oates were quite different. Further, as ME Bank submitted, a key aspect of the scheme in Oates which persuaded the Court to see the provision as facultative was the phrase "despite anything in any other law", a phrase which is not present in s 12GB(6). That phrase was the textual indicator of a circumstance across the wider legislative regimes which required correction or modification by s 1316. However, even the presence of this phrase in s 12GB(6) would not have removed the textual impediments to the applicant's construction. Only words to the effect of "[D]espite anything in s 15B(1)(b) of the Crimes Act" could have had a textual signalling effect.
73 I do not consider Oates assists the applicant, or is incompatible with the conclusions I have reached. It represents conclusions on a different legislative provision, in a different context.
74 Comptroller-General of Customs v Parker [2006] NSWSC 390; 200 FLR 44 was used by the applicant to like effect, as I understood it. Parker concerned the proper construction of s 249 of the Customs Act 1901 (Cth), which provided:
Customs prosecutions may be instituted at any time within 5 years after the cause thereof.
75 Simpson J held s 249 excluded and extended any limitation period appearing elsewhere in legislation applicable to the Court where a prosecution was instituted. Her Honour held:
Following the reasoning in Oates, I conclude that the purpose of s 249 was to exclude any lesser statutory time limits applicable by reason of provisions relevant to the court in which the prosecution is brought.
76 Given how the applicant's submissions in reality led to a reliance on s 15B(1A), again I understood the applicant to point to Parker as another example of how a provision such as s 12GB(6) could be construed as performing a function of extending other time limits in other provisions, rather than as imposing an outer time limit. Again, in theory, that can be accepted. However, all will depend on the particular statutory text and context. ME Bank submitted Parker was distinguishable, and I agree with that submission.
77 The applicant also relied on Seeto v R; Evans v R [2008] NSWCCA 227. The debate in that case concerned the proper construction of s 200(3) of the Police Act 1990 (NSW). As initially enacted, s 200(3) had extended the time in which a prosecution for certain summary offences relating to bribery could be brought, from six months to two years. That is, the provision had a facultative effect. A subsequent provision (s 200(4)) made the offences in question indictable offences. There being generally no time limit on the prosecution of indictable offences, the question was whether s 200(3), read with s 200(4), should be construed as imposing a restrictive time limit on the commencement of a prosecution for indictable offences. The Court of Appeal rejected that contention. It did so (with Price J delivering the principal judgment) because of the Court's views about the purpose of rendering the offences in question indictable offences: see [34]-[39]. The Court also considered there was a way to preserve the facultative operation of the provision if there was a summary prosecution: see [40].
78 With respect, there are no real parallels between the provisions in issue in Seeto and the present constructional choice. Again, the focus on the mischief to be addressed is notable, and neither the chronology concerning s 12GB and s 15B(1A), nor the extrinsic material, nor the text of the provisions, advances the applicant's arguments in a similar way here.
79 That leaves Sadie Ville, and the decision on appeal from that case, Deloitte Touche Tohmatsu (A Firm) v Sadie Ville Pty Ltd (As Trustee for Sadie Ville Superannuation Fund) [2020] FCAFC 23; 144 ACSR 1. These decisions concerned reliance on the privilege against exposure to penalties and the privilege against self-incrimination in relation to discovery. The question was whether Deloitte could rely on those privileges, which in turn required the Court to decide whether Deloitte was exposed to prosecution under a variety of provisions, including s 12DB of the ASIC Act. These two decisions address Division 2 of Part 2 of the ASIC Act expressly, although with more emphasis on the civil penalty provisions in s 12GBC. However, in making its argument about the effect of s 12GBC(2) as imposing an outer time limit of six years, Deloitte in that case did rely on the terms of s 12GB(6) as part of its argument.
80 In the decision at first instance, Moshinsky J held at [109]:
In relation to prosecution for contravention of s 12DB of the ASIC Act and/or s 151 of the [Australian Consumer Law (Vic) (ACLV)], I proceed for present purposes on the basis that a prosecution would not be out of time. While the relevant provisions (namely, s 12GB(6) of the ASIC Act and s 212 of the ACLV, set out above) are not expressed in the same terms as the provision considered in Oates - in particular the words "Despite anything in any other law", which were important in the reasoning of the High Court in Oates, are not present - it is at least arguable that the provisions are facultative and not restrictive. Provisions with similar wording to ss 12GB(6) and 212 were considered in [Parker] at [59]-[67] and [Seeto] at [43]-[44]. In each case, it was held that the provision was facultative, not restrictive.
81 It does not appear that his Honour's attention was directed to the kinds of arguments put before this Court, and in particular the asserted relationship between the ASIC Act provisions and the time limit provisions in s 15B(1A) of the Crimes Act. His Honour's reference to whether s 12GB was 'facultative', in relation to a corporation, bears this out. Of course on the applicant's argument here, s 12GB(6) has no work to do in relation to a corporation because a prosecution may be brought at any time. The more detailed analysis of precisely how s 12GB(6) was said to be facultative was clearly not explored before his Honour.
82 In that quite different situation, Moshinsky J expressed no more than a tentative view. I consider that what his Honour said at [109] is sufficiently removed from the present debate that it can be distinguished.
83 As to s 12GBC(2), the civil penalty proceeding time limit, Moshinsky J found at [111]:
In relation to pecuniary penalty proceedings for contravention of s 12DB of the ASIC Act and/or s 29 of the ACLV, I consider that any such proceeding would be out of time. Section 12GBC of the ASIC Act and s 228 of the ACLV are set out above. Each of these provisions adopts the same form as s 77 of the Trade Practices Act 1974 (Cth), now s 77 of the Competition and Consumer Act 2010 (Cth). The first subsection confers a power to bring a proceeding for the recovery of a pecuniary penalty, and the second subsection stipulates a time within which such a proceeding may be commenced. It has been held by a Full Court of this Court that s 77(2) operates as a limitation period: Australian Competition and Consumer Commission v PT Garuda Indonesia Ltd (2016) 244 FCR 190; 330 ALR 230; [2016] FCA 42 at [522], [547]; see generally at [526]-[547]. That reasoning is, in my view, applicable to s 12GBC of the ASIC Act and s 228 of the ACLV. These provisions are unlike the provision considered in Oates, and the provisions considered in Parker and Seeto v R, as they involve both a conferral of power to bring a proceeding of a certain character and the stipulation of a time within which such a proceeding may be commenced. Given that more than six years has elapsed since the relevant events, I consider that a pecuniary penalty proceeding would be out of time.
84 Notably, his Honour had no difficulty considering previous iterations of this provision in the TPA as imposing a restrictive limitation. In my respectful opinion, while the terms of s 12GBC are quite different to s 12GB, the latter is self-contained in its own way, as I have explained.
85 On appeal, the Full Court did not squarely address the construction of s 12GB(6), but did give some attention to the construction of the civil penalty time limit in s 12GBC(2). The Full Court endorsed Moshinsky J's finding that any civil penalty proceeding would be statute barred under s12GBC. Wigney J held at [71]:
The primary judge held that any civil penalty proceedings against the uninvolved partners would be statute-barred ([Sadie Ville] at [111]). Deloitte contended that his Honour erred in so finding (ground 2 of the appeal). I agree with Markovic and O'Callaghan JJ that Deloitte's submissions in support of that ground of appeal have no merit and that the primary judge's finding was correct. Even putting the decision of the Full Court in Australian Competition and Consumer Commission v PT Garuda Indonesia Ltd (2016) 244 FCR 190; 330 ALR 230; [2016] FCAFC 42 at [520]-[522] to one side, the point remains that the terms of s 12GBC(2) of the ASIC Act and s 228 of the Consumer Law are materially different to the terms of the provisions considered in [Oates] and, perhaps more significantly, if s 12GBC(2) of the ASIC Act and s 228 of the Consumer Law are not construed as providing limitation periods, they would have no work to do.
86 At [246]-[248], Markovic and O'Callaghan JJ reached the same conclusion, but did refer in passing to s 12GB(6):
In our view, Sadie Ville's submissions must be accepted. The decision of the High Court in Oates, and the other cases cited by DTT, involved differently worded provisions, and were intended to fulfil a different purpose. As Price J (Giles JA and Rothman J agreeing) explained in Seeto at [44]:
The Crown drew attention to [Oates]. Section 1316 of The Corporations Law, applying as part of the law of Western Australia, provided that 'Despite anything in any other law, proceedings for an offence against this Law may be instituted within the period of five years after the act or omission alleged to constitute the offence …' The respondent was charged with indictable offences against the Law, alleged to have been committed more than 5 years prior to the institution of the proceedings. It was held that s 1316 was facultative, operating to extend the twelve month period for the commencement of proceedings for offences punishable by summary conviction, and did not limit the commencement of proceedings for indictable offences. This construction of s 1316 was reached in the light of (i) the introductory words 'Despite anything in any other law…'; (ii) the word 'may'; (iii) the perceived mischief that many summary offences could not be prosecuted if the twelve month period applied; and (iv) the legislative history whereby functional predecessors to s 1316 were enacted in order to deal with that mischief. Not all these matters are found in the present case, but the decision provides some support for the conclusion expressed in the preceding paragraph.
Other than the fact that the word "may" is used in s 12GBC(2) of the ASIC Act and s 228(2) of the ACLV (as it was in s 77(2) of the Trade Practices Act), none of those matters has any possible bearing here. Further, the words "Despite anything in any other law …", which do not appear in either section, are obviously critical to the conclusion reached by the High Court in Oates that s 1316 of the Corporations Law was facultative, not restrictive, because it authorised the commencement of proceedings, including summary proceedings, which would otherwise have been time barred. As Simpson J explained in Parker at [62]:
The High Court [in Oates] … examined the complex interplay of State and Federal statutory provisions of which s 1316 was a part. It concluded that s 1316 was a "facultative" provision and did not create a statutory limitation. As I read the judgment, of some significance in the Court's reaching this conclusion were the opening words of the section:
Despite anything in any other law …
That was because, by other statutory provisions, time limits of less than five years were imposed in respect of the bringing, in certain courts, of some summary prosecutions under the same law. Section 1316 therefore had the effect of extending the time for prosecution, summarily, of those offences, that otherwise would have been statute barred by reason of provisions applicable to particular courts …
It is true, as counsel for DTT contended, that reading s 12GBC(2) of the ASIC Act in the way that we do means that a similarly worded provision in the same Division of the Act dealing with prosecutions, like s 12GB(6), is to be read differently. But, in our view, unless s 12GBC(2) of the ASIC Act and s 228(2) of the ACLV are read, consistently with the views expressed by the Full Court in Garuda, as imposing a time limitation on the bringing of an action for a pecuniary penalty, then, as counsel for Sadie Ville submitted, those provisions would have no work to do.
(Emphasis added.)
87 In my respectful opinion, like the primary judge in Sadie Ville, the Full Court was also not confronted with the arguments put to this Court on the separate question, understandably so in the context of the matters before them. I reject the somewhat faint submission by the applicant that there is any part of the ratio in Deloitte which binds me to accept the applicant's proposed construction of s 12GB(6).
88 However, the emphasis in the Full Court on assessing what work a time limit provision has to do is, with respect, instructive in the context of s 12GB(6). Ultimately, the applicant strained to find work for s 12GB(6) to do, on her contended construction. It is, as I have explained, work which produces some irrationalities, and requires considerable reading into the text of s 12GB(6) itself. I consider that both at first instance and on appeal, the approach taken in Sadie Ville and Deloitte is not inconsistent with the approach I have taken, and does not require me to accept the applicant's construction.