Walker v Members Equity Bank Ltd

MORTIMER J: 1 These are the Court's reasons for the answer given to the separate question stated by orders made on 15 September 2021. The answer to this question is the only matter which remains in contest between the parties. By agreement, the accused, Members Equity Bank Ltd ABN 56 070 887 679 (ME Bank), has not entered a formal plea, pending the resolution of the separate question. The Court has been informed that ME Bank will plead guilty to the charges which are found by the Court to have been brought within time. 2 Rule 1.05 of the Federal Court (Criminal Proceedings) Rules 2016 (Cth) states: 1.05 Application of these Rules and other Rules of the Court (1) Unless the Court orders otherwise, these Rules apply to criminal proceedings started in the Court on or after the commencement of these Rules. (2) The other Rules of the Court apply, to the extent that they are relevant and not inconsistent with these Rules, to criminal proceedings started in the Court on or after the commencement of these Rules. 3 When the parties proposed a separate question process, the Court queried if it was available in a summary prosecution. The parties submitted it was, and the Court accepted that submission. The separate question was therefore stated in accordance with Division 30.1 of the Federal Court Rules 2011 (Cth).

Background 4 These proceedings were commenced against ME Bank on 25 May 2021 by an officer of ASIC, Caroline Walker (the applicant), with the filing of 62 charges. The Commonwealth Director of Public Prosecutions is the legal representative for the applicant. It is unnecessary to set out in any detail the course the proceedings then took, other than to note there was substantial negotiation between the parties, which resulted in the filing of a further information dated 11 October 2021 on 20 October 2021. That information alleges eight 'rolled up' charges, comprising: (a) four charges alleging contraventions of s 64 and s 65 of the National Credit Code (Cth); and (b) four charges alleging contraventions of s 12DB(1)(g) and s 12GB(1) of the Australian Securities and Investments Commission Act 2001 (Cth) (ASIC Act). 5 The parties adduced a short agreed statement of facts (ASOF) pursuant to s 191 of the Evidence Act 1995 (Cth), the signed document being marked as an exhibit on the separate question. That statement is Annexure A to these reasons. 6 The separate question concerns only the ASIC Act charges. Each of the ASIC Act charges involves alleged false and misleading representations by ME Bank in relation to a number of customers: see [13]-[17] of the ASOF. 7 At the time of ME Bank's alleged conduct, s 12GB(6) of the ASIC Act provided: A prosecution for an offence against subsection (1) may be commenced within 3 years after the commission of the offence. 8 The present form of s 12GB(6) refers additionally to subs (1AA) of s 12GB, which was inserted on 1 January 2021, but is agreed to be of no relevance to the separate question, or to this proceeding. 9 The separate question presents a constructional choice about the meaning of s 12GB(6): does it impose a "hard" or restrictive time limit on the bringing of a prosecution for conduct to which s 12GB(1) refers? The applicant contended a prosecution may be brought at any time, by reason of the operation of s 15B(1A) of the Crimes Act 1914 (Cth). If, as ME Bank contends, s 12GB(6) does impose a restrictive time limit, then any contravention of s 12DB(1)(g) alleged to have occurred before 25 May 2018 (being three years before the filing date for charges) would be out of time and statute barred. Three of the four ASIC Act charges involve dates entirely before 25 May 2018 - namely, between 24 April 2017 and 30 June 2017 (charge 63); between 1 July 2017 and 7 May 2018 (charge 64); and between 2 September 2016 and 30 June 2017 (charge 65). The fourth ASIC Act charge (charge 66) involves some alleged conduct which is prior to 25 May 2018 and some alleged conduct which is after this date (and up until 3 September 2018). 10 On any view, if the submissions of ME Bank are accepted, the number of rolled up charges it would face for offences against the ASIC Act would be considerably reduced.

The parties' submissions in summary 11 While the applicant's submissions initially focussed on the proposition that s 12GB(6) should be construed as "facultative" and not as imposing a restrictive time limit, it became clear during oral argument that equally critical to the applicant's submissions was the construction and operation of s 15B of the Crimes Act, and subs (1) and subs (1A) in particular. 12 The applicant submitted that time for the bringing of prosecutions such as the present is governed by the general provisions in s 15B of the Crimes Act. Section 15B provides: 15B Time for commencement of prosecutions (1) Subject to subsection (1B), a prosecution of an individual for an offence against any law of the Commonwealth may be commenced as follows: (a) if the maximum penalty which may be imposed for the offence in respect of an individual is, or includes, a term of imprisonment of more than 6 months in the case of a first conviction - at any time; (b) in any other case - at any time within one year after the commission of the offence. (1A) A prosecution of a body corporate for an offence against any law of the Commonwealth may be commenced as follows: (a) if the maximum penalty which may be imposed for the offence in respect of a body corporate is, or includes, a fine of more than 150 penalty units in the case of a first conviction - at any time; (b) in any other case - at any time within one year after the commission of the offence. (1B) A prosecution of an individual for an offence that is taken to have been committed because of section 11.2 or 11.2A of the Criminal Code, or against another law of the Commonwealth dealing with aiding and abetting, in relation to an offence committed by a body corporate may be commenced as follows: (a) if the maximum penalty which may be imposed for the principal offence in respect of a body corporate is, or includes, a fine of more than 150 penalty units in the case of a first conviction - at any time; (b) in any other case - at any time within one year after the commission of the offence by the individual. (2) Notwithstanding any provision in any law of the Commonwealth passed before the commencement of this Act and providing any shorter time for the commencement of the prosecution, any prosecution for an offence against the law may be commenced at any time within one year after the commission of the offence. (3) Where by any law of the Commonwealth any longer time than the time provided by this section is provided for the commencement of a prosecution in respect of an offence against that law, a prosecution in respect of the offence may be commenced at any time within that longer time. 13 Section 15B was enacted in 1992. Prior to this, s 21 of the Crimes Act provided general time limits on the bringing of certain prosecutions. I return to s 21 later in these reasons. 14 All of the ASIC Act offences charged carry maximum penalties of considerably more than 150 penalty units. The application of s 15B(1A) therefore means, the applicant submitted, that there is no time limit on the bringing of the present set of charges, and none are statute barred. 15 As developed by the applicant in oral submissions, the work that s 12GB(6) has to do is work which is not applicable to the present charges, being charges against a corporation and covered by s 15B(1A). Rather, the work of s 12GB(6) is to extend the time in which a prosecution of a particular contravention of certain provisions of Subdivision D of Division 2 of Part 2 of the ASIC Act (ss 12DB to 12DN) might be brought against an individual. By s 15B(1)(b) of the Crimes Act, the time in which such a prosecution might be brought is limited to within one year after the commission of the offence. The applicant submitted s 12GB(6) has the facultative effect of extending this limit to three years. 16 It was not suggested by senior counsel for the applicant that there was any other facultative operation for s 12GB(6). Outside its contended effect on s 15B(1)(b) in respect of individuals, the ultimate position of the applicant was that s 12GB(6) does no further work. In relation to corporations, s 15B(1A) of the Crimes Act applies in its terms, and there is no time limit on the bringing of prosecutions for offences against s 12GB(1) (and now, s 12GB(1AA)). In other words, it is s 15B(1A) of the Crimes Act which is the lead provision (see Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 at [70]) in terms of ascertaining when a prosecution may be commenced for offences against s 12GB(1), thus reading these provisions in the Crimes Act as part of a wider legislative scheme for the prosecution of criminal offences under the ASIC Act. 17 In support of her submissions about the provisions having a facultative effect, the applicant relied upon the following elements. (a) Textual considerations, in that the operative modal verb in the provision's text is simply "may", not "must", or "may only". (b) Purpose, in that Part 2 of the ASIC Act concerns consumer protection, and the purpose of the offence provisions in achieving general and specific deterrence would be best advanced by a construction that does not confine the time period within which a prosecution might be brought. Contraventions of Subdivision D may take a long time to detect and investigate. The applicant submitted there "is no apparent purpose served by permitting a person bound by the ASIC Act to escape prosecution after three years". (c) Context, in that: (i) The applicant contrasted the text of s 12GB(6) with the (present) text of s 12GBC(2) and s 12GBA(2), each of which use the term "must", although s 12GBA(2) previously used the term "may". The applicant also highlighted the general purpose of s 12GBC as a civil penalty provision and therefore as a provision which is "generally" subject to express limitation periods, in contrast to provisions imposing criminal liability. Further, s 12GB(6) is not a provision conferring a power to bring proceedings, coupled with conditions, which is how the applicant described s 12GBC, relying on Moshinsky J's description in Sadie Ville Pty Ltd v Deloitte Touche Tohmatsu (No 3) [2018] FCA 1107; 357 ALR 695 at [111]. (ii) The role of s 15B(1A)(a) is put in the applicant's written submissions at [20] as a further contextual matter but, as the argument developed in oral submissions, it became clear that s 15B(1A) was much more than that. In writing the applicant submitted that s 15B(1A): gives effect to, and reflects, an evident intent of the Parliament to allow corporations to be prosecuted at any time where their alleged offending crosses a certain threshold of seriousness. In oral submissions, senior counsel confirmed this was not a contextual consideration, but in fact this provision was said by the applicant to be the applicable provision for the offences created by s 12GB(1) in relation to the conduct of corporations. (iii) The applicant also compared the context of s 12GB(6) with that of the offence provisions in Division 7 of Part 3 of the ASIC Act, which deal with offences committed in the course of investigations by the Australian Securities and Investments Commission, including investigations into potential offences under Division 2 of Part 2. Those Division 7 offences are, the applicant submitted, covered by the terms of s 15B(1)(b) and a one-year time limit. 18 Senior counsel for ME Bank picked up on the somewhat late emphasis in the applicant's submissions on s 15B of the Crimes Act. He submitted: I don't want to seize on words of Mr Robinson, but at one stage in his argument, he said that [the applicant's] construction was that there is actually no time limit by virtue of section 12GB(6), but then his position changed to [that,] where there was a time limit of less than three years, [s 12GB(6)] extended it to three years. That concession is correctly made by my friend, but once it's made, for reasons I will explain, the argument really slips away, and it ultimately ends up being not coherent, and I will explain that to your Honour. 19 Senior counsel for ME Bank submitted, by reference to the attribution and liability provisions in s 12GH, that an examination of how s 15B might apply as between an individual offender as a principal (s 15B(1)), a corporation (s 15B(1A)) and an individual with accessory liability (s 15B(1B)) demonstrated the fallacy in the applicant's approach. On the applicant's argument, the only work for s 12GB(6) to do is in relation to an individual charged as a principal offender. In that situation, the time limit for a prosecution under s 12GB(1)(b) would be extended to three years. Yet, by force of s 15B(1A) and (1B), there would remain no time limit for a corporation, and for an individual with accessory liability. ME Bank submitted that would be an irrational outcome, and one not explained or justified by the applicant. 20 ME Bank submitted the proper construction of s 12GB(6) is that it imposes a restrictive time limit of three years for the prosecution of offences against s 12GB(1). It contended this construction brings consistency to the enforcement and remedy provisions in Division 2 as a whole. The criminal and civil penalty regimes applicable to breaches of s 12GB are cognate. The legislative scheme is that criminal proceedings are to have priority and must be brought within three years. After that time and within six years, civil penalty proceedings may be brought. In the event of a conflict, s 12GBB makes detailed provision, prioritising the criminal proceedings. That is how the provisions ought to be reconciled and read. 21 Further (and relevantly to the charges against the accused here), s 12GB both imposes penalties for an offence under s 12DB(1)(g) and imposes a limitation period in respect of proceedings for them. ME Bank contended this reveals a legislative intention that the time limit in s 12GB(6) operates specifically in respect of the offences to which s 12GB(1) applies. 22 ME Bank emphasised the legislative history of s 12GB(6), and its predecessor in s 79(6) of the Trade Practices Act 1974 (Cth) (TPA), itself a time limit introduced subsequent to the introduction of s 79. It submitted s 79(6) was expressly intended to operate as a limit on the time in which a prosecution could have been brought under Part VC of the TPA (the consumer protection provisions) given the legislative backdrop of the general limitation period imposed by s 21 of the Crimes Act (as it then was), being a limit of one year. In other words, s 79(6) operated as a restrictive limit, but extended the operable time from one to three years. ME Bank contended that nothing of substance changed when these provisions were translated into the ASIC Act.

Resolution 23 It has been observed on many occasions that constructional choices can seldom be resolved by examining decided cases about other legislative provisions: see Robert Bosch (Australia) Pty Ltd v Secretary, Department of Industry, Innovation, Science, Research and Tertiary Education [2012] FCAFC 117; 206 FCR 92 at [71], cited in SDCV v Director-General of Security [2021] FCAFC 51 at [174]. 24 It can be accepted that it is possible for Parliament to use language of the kind used in s 12GB(6) so as to achieve the objective of extending a time limit found elsewhere in the same legislative scheme, or in another, applicable, legislative scheme. In other words, it can be accepted as a matter of principle that Parliament could, in the ASIC Act, legislate to modify a time limit which was applicable by reason of the Crimes Act. Indeed, both parties in substance contended that Parliament had done just that in s 12GB(6). It is simply that the applicant contended the legislative modification was narrower and inapplicable to the present prosecution, thus not displacing the general provision in s 15B(1A) of the Crimes Act, whereas ME Bank submitted the modification was more fundamental, and was intended to displace the operation of s 15B as a whole, not just in relation to corporations. 25 I consider that ME Bank's submissions should be accepted, and I have concluded that the proper construction of s 12GB(6) is that it imposes a fixed outer time limit within which any criminal prosecution for contraventions of the relevant part of Subdivision D of Division 2 of Part 2 of the ASIC Act (ss 12DB to 12DN) must be brought.

Legislative history 26 I agree with the submissions of ME Bank that the legislative history of s 12GB(6) is significant. It forms an important part of the context of the present provision. 27 Both parties accepted that Division 2 of Part 2 of the ASIC Act had its origins, albeit in different form and with less complexity, in the TPA. As summarised in Quikfund (Australia) Pty Ltd v Airmark Consolidators Pty Ltd [2014] FCAFC 70; 222 FCR 13 at [28]-[30], the financial services aspects of the TPA were taken across into the ASIC Act: In 1998, significant changes were made to the statutory scheme relating to consumer protection concerning the supply of financial services. This was achieved by the enactment of the Financial Sector Reform (Consequential Amendments) Act 1998 (Cth) (the FSR Consequential Amendments Act). The apparent purpose of these changes, which was confirmed by the terms of the Supplementary Explanatory Memorandum to the Financial Sector Reform (Consequential Amendments) Bill 1998 (Cth) (the FSR Explanatory Memorandum) was to shift regulatory responsibility for financial services and financial products from the Australian Competition and Consumer Commission (the ACCC) to the Australian Securities and Investments Commission (ASIC). ASIC was to have sole regulatory responsibility for consumer protection in relation to financial services. This regulatory change was effected in two ways. First, specific provisions dealing with the regulation of conduct relating to financial services and the supply of financial services were inserted into the Australian Securities and Investments Commission Act 1989 (Cth) (the 1989 ASIC Act). Part 1 of Sch 2 to the FSR Consequential Amendments Act inserted (inter alia) Pt 2 Div 2 into the 1989 ASIC Act. Many of the provisions in Pt 2 Div 2 were derived from counterparts in Pt V of the TPA. The inserted provisions included s 12DA, which proscribed misleading or deceptive conduct in relation to financial services in essentially the same terms as s 52 of the TPA; s 12DB, which proscribed false or misleading representations in connection with the supply or possible supply of financial services in essentially the same terms as s 55A of the TPA; and s 12ED which, in similar but not identical terms to s 74 of the TPA, implied into contracts for the supply by corporations of financial services a warranty that the services would be rendered with due care and skill and would be reasonably fit for the purposes made known by the consumer. The second way that the FSR Consequential Amendments Act sought to effect the regulatory shift from the ACCC to ASIC was to remove the supply of financial services from the sphere of operation of Pt V of the TPA. 28 In 2010, the TPA's generic fair trading and consumer protection provisions were transferred to the Australian Consumer Law (ACL), which had previously only contained provisions relating to unfair contract terms. The TPA was also renamed the Competition and Consumer Act 2010 (Cth) and changes were enacted to the ASIC Act and the Corporations Act 2001 (Cth), to keep the consumer protection provisions consistent across the suite of the Commonwealth's legislation. A time limit expressed in the same terms as s 79(6) of the TPA was enacted in s 212 of the ACL: see [42] below.

The TPA provisions and s 21 of the Crimes Act 29 Section 79 of the TPA, as enacted, provided: 79. A person who contravenes a provision of Part V other than section 52 is guilty of an offence punishable on conviction - (a) in the case of a person not being a body corporate - by a fine not exceeding $10,000 or by imprisonment for a period not exceeding 6 months; or (b) in the case of a person being a body corporate - by a fine not exceeding $50,000. 30 So, for example, at the time it was enacted, s 79 applied to conduct covered by s 53 of the TPA, which proscribed the making of certain kinds of false or misleading statements about goods and services. 31 Section 79 did not prescribe any time limit for the bringing of prosecutions (compare s 77 below, in relation to civil penalty proceedings). It was not in dispute that the time limit for criminal prosecutions was at this stage prescribed by then s 21 of the Crimes Act, which provided: (1) A prosecution in respect of an offence against any law of the Commonwealth may be commenced as follows: - (a) where the maximum term of imprisonment in respect of the offence in the case of a first conviction exceeds 6 months - at any time after the commission of the offence; (b) where the maximum term of imprisonment in respect of the offence in the case of a first conviction does not exceed 6 months - at any time within one year after the commission of the offence; and (c) where the punishment provided in respect of the offence is a pecuniary penalty and no term of imprisonment is mentioned - at any time within one year after the commission of the offence. (2) Notwithstanding any provision in any law of the Commonwealth passed before the commencement of this Act and providing any shorter time for the commencement of the prosecution, any prosecution for an offence against the law may be commenced at any time within one year after the commission of the offence. (3) Where by any law of the Commonwealth any longer time than the time provided by this section is provided for the commencement of a prosecution in respect of an offence against that law, a prosecution in respect of the offence may be commenced at any time within that longer time. 32 There was a clear distinction drawn between crimes punishable by more than six months' imprisonment and crimes punishable by a lesser sentence or a pecuniary penalty; a prosecution could be brought at any time for the former, and within one year of the offence for the latter. Despite the use of the word "may", the one-year time limit was construed as a "hard" time limit. In Hollis v ABE Copiers Pty Ltd [1979] FCA 58; 41 FLR 141 at 144, Lockhart J said: The date or dates on which the representations or statements are said to have been made is not without significance, as the prosecution must be commenced within one year after the commission of the alleged offences. If the representations or statements were made before 29th November, 1977, the informations would be bad: see s. 21 of the Crimes Act 1914 (Cth.), which requires a prosecution to be commenced at any time within one year after the commission of the offence. See also Thompson v Riley McKay Pty Ltd (No 3) [1980] FCA 119; 31 ALR 507. 33 Consistently with authorities such as Hollis, the additional and significant point which should be made here is that the use of "may" in s 21 of the Crimes Act as it was then was clearly not intended to mean that the time limits for which that section provided were entirely optional. Rather, accommodating the existence of a prosecutorial discretion, the use of the word "may" must be construed as operating on an applicable time limit present elsewhere, and extending it. In Hollis and Thompson, the Court did not see any other provision to which some facultative effect could be given by the use of the word "may", and s 21 of the Crimes Act was construed to mean what it said. 34 In relation to civil penalty proceedings, the time limit was imposed by s 77 of the TPA, which provided: (1) The Attorney-General or the Commission may institute a proceeding in the Court for the recovery on behalf of Australia of a pecuniary penalty referred to in section 76. (2) A proceeding under sub-section (1) may be commenced within 6 years after the contravention. 35 The time limit for the bringing of a civil penalty proceeding in relation to a contravention of the then consumer protection regime was accordingly six years. It was not suggested by the applicant that the use of the word "may" in this provision meant compliance with the six-year limit was optional, nor that the word had any facultative effect.

The amendments to s 79 of the TPA in 1986 36 In 1986, s 79 of the TPA was amended and subs (6) was inserted, which provided: A prosecution for an offence against sub-section (1) may be commenced within 3 years after the commission of the offence. 37 ME Bank submitted that this subsection is "clearly the genesis" of s 12GB(6), relying in part on the contents of the explanatory memorandum to the Trade Practices Revision Bill 1986 (Cth): The current 12 month time limit on prosecutions which is imposed by s.21 of the Crimes Act 1914 has proven unduly restrictive because any delay in an offence coming to light or in the investigative process because of, for example, the complexity of the matter, will normally be fatal to the institution of prosecution proceedings. Accordingly, s.79 is also being amended to provide a 3 year time limit for the commencement of prosecution proceedings for a contravention of Part V (see new sub-s.(6)). 38 I accept the propositions at [27]-[29] of ME Bank's written submissions that the amendment introducing s 79(6) is a relevant illustration of legislative intention to facilitate a longer period of time for the commencement of criminal prosecutions than that allowed under s 21 of the Crimes Act, but to do so by imposing an outer time limit of three years. That is, in s 79(6) the use of the word "may" had a facultative sense and effect, because it was facilitating an extension of the restrictive outer limit of one year in the Crimes Act. However, the use of the word "may" was not intended to confer any wider power on the prosecuting authorities to commence a prosecution at any time they chose. 39 This intention is clear enough from the context of the amendment and the previous (accepted) operation of s 21 of the Crimes Act on s 79 of the TPA, as disclosed in the authorities to which I have referred. The text of s 79(6), read with the previously applicable text of s 21 of the Crimes Act, in particular that both provisions use the term "may", is consistent with this meaning. On no view could it be said that the introduction of s 79(6) was intended to produce the result that a prosecution under s 79 could be commenced at any time after the alleged commission of the offence. Rather, Parliament was setting a new outer limit of three years, to modify the otherwise applicable outer limit of one year. 40 While ME Bank's submissions also sought support in some exchanges in Senate debates that accompanied the introduction of the Bill to amend s 79, I place no weight on such exchanges. They may reflect the views of individual senators about the effect of the proposed amendments, but they do no more than that, unlike an explanatory memorandum which is, at least, intended to capture Parliament's intention at a more objective level. As Edelman J observed in Unions NSW v New South Wales [2019] HCA 1; 264 CLR 595 at [169]: A search for the purposes or intended aims of the legislature involves a construct used to determine the meaning of the words used by that legislature. It is not a search for subjectively held purposes of any or all of the members of the Parliament that passed the law.

The introduction of s 12GB of the ASIC Act in 1998 and s 212 of the ACL in 2010 41 As the Full Court explained in Quikfund, by operation of the Financial Sector Reform (Consequential Amendments) Act 1998 (Cth), s 79(6) of the TPA became s 12GB of the newly-renamed Australian Securities and Investments Commission Act 1989 (Cth), and remained in the same form through the introduction of the current ASIC Act in 2001. The explanatory memorandum to the Bill which became the 1998 amending Act described Schedule 2 to the amending Act, in which s 12GB was introduced, as being intended to "largely replicate the provisions of the Trade Practices Act". It also noted that: The Trade Practices Act also includes a sophisticated system of enforcement provisions and other supporting provisions … To the extent that those provisions are also needed by ASIC to enable it to perform its new consumer protection functions in relation to financial services, those provisions will be replicated in the ASIC Act (Subdivisions A, B, G and H). 42 ME Bank submitted, and I accept, that by the Trade Practices Amendment (Australian Consumer Law) Act (No 2) 2010 (Cth), the time limit imposed by s 79(6) was also carried into the consumer law regime as s 212 of the ACL, which provides: A prosecution for an offence against a provision of this Chapter may be commenced at any time within 3 years after the commission of the offence. 43 Section 212 appears in Chapter 4, which sets out offences under the ACL. A table in the explanatory memorandum to the Trade Practices Amendment (Australian Consumer Law) Bill (No 2) 2010 (Cth) entitled "Comparison of key features of new law and current law" directly relates s 212 of the ACL to s 79(6) of the TPA, albeit that there appears to be a typographical error by which the content of s 212 is referred to as the content of s 213.

The renumbering and amendment of the Crimes Act provisions 44 By s 35 of the Crimes Legislation Amendment Act (No 2) 1989 (Cth), the Crimes Act was in part renumbered and s 21 became s 15B. No reason for the renumbering and relocation of the sections was provided in the explanatory memorandum. 45 In 1992, s 15B was amended by s 21 of the Crimes Legislation Amendment Act 1992 (Cth), as part of a suite of amendments intended to provide a penalty unit system as recommended by Sir Harry Gibbs in the Review of Commonwealth Criminal Law (Final Report, 1991). The existing subs (1) was repealed and replaced with subss (1)-(1B), in a form that is relevantly similar to the current provisions. The explanatory memorandum to the Bill noted in relation to the clause that became s 21 of the amending Act: This clause amends and clarifies section 15B of the Act which provides a regime to determine the time in which a prosecution may be commenced for an offence. Proposed subsection (1) merely reenacts the present provision where the offender is an individual. For individuals other than those who fall within subsection (1B), a prosecution may be commenced at any time if the maximum penalty is or includes imprisonment for more than six months, and in any other case, at any time within one year after the commission of the offence, The amendment will ensure that, where an offence is committed by a corporation, the level of pecuniary penalty will determine the time for the commencement of the prosecution. Currently the limitation period for prosecution of corporations is also based on the prescribed period of imprisonment even though that cannot be imposed on a corporation. This does not recognise that the seriousness of offences committed by corporations can only be judged by the maximum pecuniary penalty available particularly where the offence can only be committed by a body corporate. Where an individual (such as a company director) is charged with aiding and abetting in relation to such an offence committed by a corporation the prosecution for that individual may commence at the time appropriate to the corporation. The time for commencement of corporate prosecutions outlined in subsection (1A) is based on the level of pecuniary penalty imposed. A prosecution may be commenced at any time where the maximum penalty for the offence includes a fine of more than 150 penalty units. The amount of 150 penalty units derives from the formula in subsection 4B(2) of the Act which converts a term of imprisonment into a pecuniary penalty and then by multiplying by five in accordance with the provision in subsection 48(3) for pecuniary penalties imposed on corporations. Where the penalty does not exceed 150 penalty units the prosecution may be commenced at any time within one year after the commission of the offence. The proposed new subsection (1B) provides for the situation where an individual is prosecuted for an offence arising under section 5 of the Act or the aiding and abetting provision of another Commonwealth Act in relation to an offence committed by a corporation. In that case, subsection (1B) provides that a prosecution may be commenced within the same time as applies to the corporation under subsection (1A). 46 The introduction of s 15B and especially subs (1A) is the critical juncture for the parties' submissions. The applicant contended that from this point onwards (including, relevantly, the present ASIC Act charges against ME Bank), the general operation of s 15(1A) applies and there is no outer time limit on the commencement of criminal proceedings, because of the maximum penalties for the offences concerned. In other words, Parliament's intention was to introduce a general limitation regime for corporations based around the size of the penalty, with no limitation period at all if s 15B(1A)(a) applied. It is "implausible", the applicant contended, that Parliament ever thought a shorter time period ought to apply to offences under the ASIC Act and the ACL. 47 In contrast, ME Bank contended that the general amendments to the Crimes Act in s 15B should not be construed as introducing such a fundamental change to requirements for the commencement of criminal prosecutions in respect of contraventions of Division 2 of Part 2 of the ASIC Act, especially given the express and deliberate reforms to s 79 of the TPA through the introduction of s 79(6) and the carrying over of this provision into the ASIC Act in s 12GB(6) (in 1998), and into s 212 of the ACL (in 2010).

What can be drawn from the legislative history? 48 The applicant submitted that ME Bank's emphasis on the legislative history of the provisions was misplaced. I do not agree. The outline above illustrates that the context of the present provisions includes their predecessor provisions, and, critically, the relationship between the prohibition and contravention provisions in the consumer protection legislation at various stages, and the imposition of criminal responsibility through the Crimes Act. The chronology of the various amendments is also significant. 49 The role of legislative history in the Court's interpretive task was described in Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; 250 CLR 503 at [39]: The statutory text must be considered in its context. That context includes legislative history and extrinsic materials. Understanding context has utility if, and in so far as, it assists in fixing the meaning of the statutory text. Legislative history and extrinsic materials cannot displace the meaning of the statutory text. 50 In any event, the principal view I take is that the legislative history to which I have referred above does no more than confirm the construction I consider to be correct, having regard to the text and context of s 12GB(6), and the purpose or objective sought to be achieved in the imposition of criminal liability for contraventions of the consumer protection provisions of the ASIC Act in relation to financial services. As I explain below, the applicant's proposed construction flies in the face of the text of the provision and requires words to be read in, to such an extent that it produces a meaning which the words themselves cannot reasonably bear: see Esso Australia Pty Ltd v Australian Workers' Union [2017] HCA 54; 263 CLR 551 at [52]. 51 Alternatively, if there is genuine ambiguity about the construction of s 12GB(6) and there is a constructional choice to be made, as the applicant submitted, then the legislative history assists in determining which of the two possible meanings is the correct one. It is not only permissible, but necessary, to examine the context of the provision in a way which includes its legislative history, and the legislative history of the other provisions said to operate on it.

The meaning of s 12GB(6) at the time of ME Bank's conduct 52 The text of s 12GB(6) cannot be understood in isolation. The terms of s 12GB(1) in particular are important. Section 12GB(1) relevantly provided: (1) A person who: (a) contravenes; or (b) aids, abets, counsels or procures a person to contravene; or (c) induces, or attempts to induce, a person whether by threats or promises or otherwise, to contravene; or (d) is in any way, directly or indirectly, knowingly concerned in, or party to, the contravention by a person of; or (e) conspires with others to contravene; a provision of Subdivision D (sections 12DA to 12DN) other than section 12DA, is guilty of an offence punishable on conviction: (f) in the case of a person who is not a body corporate - by a fine not exceeding 2,000 penalty units; or (g) in the case of a person who is a body corporate - by a fine not exceeding 10,000 penalty units. 53 Section 12GB(1) creates and imposes criminal liability in relation to conduct covered by part of Subdivision D of Division 2 of Part 2 of the ASIC Act (ss 12DB to 12DN). The imposition of liability is comprehensive in the sense of including accessorial liability and conspiracy. In the imposition of criminal liability, the provision does not distinguish between a principal and an accessory in terms of, for example, imposing liability only on principals. It intends to cover a wide range of persons involved in the contravening conduct. It then expressly picks up, in subss (1A) and (1B), aspects of the Criminal Code Act 1995 (Cth) dealing with accessories and conspiracy. 54 In its use of "person", s 12GB(1) captures both individuals and corporations: see ASIC Act s 5A; Acts Interpretation Act 1901 (Cth) s 22(1)(a). The provision then imposes different penalties, depending on whether the contravener is a natural person or a corporation. 55 In its text, subs (6) does not distinguish at all between a person with principal liability and a person with accessorial liability, or co-conspirators. It speaks only of "an offence against subsection (1)". That is properly understood as an offence against any part of subs (1). Subsection (6) also does not distinguish between natural persons and corporations. Instead, it focuses on the offending conduct. In respect of all of the conduct, and all of the potential offenders, covered by subs (1), the text of s 12GB(6) contemplates that a prosecution "may" be commenced within three years. In other words, a single time limit is imposed. The use of word "within", meaning up until or inside a period of three years, is consistent with a three-year period from the contravention being an outer and restrictive time limit. 56 The use of the word "may" in this context does not suggest the time limit is optional. At the time of ME Bank's conduct, s 12GBC also used "may" in respect of civil penalty proceedings, and this is despite the agreed position that, in respect of civil penalty provisions, there was no possibility of any implied picking up of time limits in any other legislation, as there is on the applicant's case with the Crimes Act for criminal liability. Where this leads, in my opinion, is to the conclusion that, at the relevant time, when s 12GBC(2) used the word "may", it nevertheless did so in a way which meant six years was the outer time limit. That construction is supported by the use of the word "within". Otherwise, s 12GBC(2) would be nothing more than a legislative suggestion, and that cannot be the correct meaning in the context of a civil penalty prosecution, where clarity and certainty are important features. Prosecution would otherwise be at the whim of the prosecuting authorities. 57 Further, textually s 12GB is self-contained in its operation. It contains the offence-creating terms, the punishments and the time limits. Considerable justification would be required to see such a self-contained provision as hinging on the terms of s 15B of the Crimes Act, which is a general provision extending to all laws of the Commonwealth. This factor becomes more persuasive when, as I explain below, the applicant's submissions are understood as giving s 12GB(6) a narrow and differential operation dependent on which part of s 15B of the Crimes Act is said to be engaged. 58 On the construction I consider correct, the difference between firm outer limits of three and six years for criminal and civil liability respectively is also rational, and harmonious, as senior counsel for ME Bank submitted, the former having been deliberately extended from one to three years - not by an amendment to the Crimes Act but by the express introduction of a time limit into s 79 of the TPA (being s 79(6)). That is where the extension stopped. 59 In 1998, when s 12GB(6) was introduced into the Australian Securities and Investments Commission Act 1989 (Cth), s 15B of the Crimes Act was already enacted, having been introduced in 1992. Yet as I have explained, what s 12GB(6) did was, relevantly, carry over the terms of s 79(6) of the TPA. There was no suggestion in the legislation itself, expressly or implicitly, that the applicability of s 15B was being restored to these financial services offence provisions. 60 The final matter of some significance in the analysis is the apparently differential operation of s 15B of the Crimes Act, if the submissions of the applicant are accepted. Senior counsel for ME Bank made this point early in his oral submissions, and I accept it is a contextual indication that the construction for which the applicant contended should not be preferred. That is because the applicant's construction introduces some irrationality into the scheme, depending on the identity of the putative offender and the nature of their conduct. 61 On the applicant's submissions, the work which s 12GB(6) has to do is narrow. It is to extend the time limit for the bringing of a criminal prosecution for contraventions of Subdivision D of Division 2 of Part 2 (ss 12DB to12DN) against an individual, as principal. That is because by s 15B(1)(b), the time limit in the Crimes Act is otherwise one year (since the maximum penalty is not imprisonment for more than six months, but rather a financial penalty - see s 12GB(1)(f) (as it applied at the time of the relevant conduct)). Prosecutions against a body corporate as principal do not need to be extended because, if the maximum penalty is more than 150 penalty units (as here), they can be brought at any time: see s 15B(1A)(a). Likewise for accessorial liability, where the penalty is more than 150 penalty units: see s 15B(1B)(a). 62 Therefore, on the applicant's submissions, the only work for s 12GB(6) to do is to extend the time for a prosecution against an individual principal offender to three years. That is also the consequence of the application of s 15B(3), on this argument. 63 Where that leaves the state of affairs is, as ME Bank submitted, somewhat irrational. An accessory can be prosecuted at any time. So can a corporation. Yet a principal individual offender cannot, and an outer time limit of three years is imposed. 64 Thus, even if one ignores what I consider to be the bigger obstacle to the applicant's construction (that s 12GB(1) deals with all categories of offenders, principals and accessories, and is self-contained with time limits expressed to be applicable to any "offence against subsection (1)"), there is a differential and irrational outcome in the time limits for prosecutions under s 15B of the Crimes Act. I do not consider, with respect, that the applicant could sensibly explain this difference when confronted with it in oral argument. 65 The applicant submitted that to make the constructional choice for which ME Bank contended would introduce serious disharmony between the ASIC Act provisions and the general operation of s 15B of the Crimes Act. She submitted (at [20] of her written submissions): It is relevant to note, therefore, that s 15B(1A)(a) of the Crimes Act 1914 (Cth) provides that there is no time limit for the institution of criminal charges against corporations where the maximum penalty for an offence is more than 150 penalty units. The maximum penalty for a corporation for an offence against s 12GB(1) at the relevant time was 10,000 penalty units. This is important because s 15B(1A)(a) gives effect to, and reflects, an evident intent of the Parliament to allow corporations to be prosecuted at any time where their alleged offending crosses a certain threshold of seriousness. That threshold is set at the level of 150 penalty units. Here, the maximum penalty for an offence against s 12GB(1) by a corporation was 10,000 penalty units. It would be discordant for the Parliament to speak so divergently as to confine prosecutions of an offence with a maximum penalty of 10,000 penalty units to a three year period while otherwise contemplating that prosecutions of corporations for other offences can occur at any time so long as the maximum penalty is at least 150 penalty units. Such discord should be avoided if a harmonious interpretation can be achieved. 66 I accept that s 15B(1A) of the Crimes Act does evince a general intention by Parliament that corporations can be prosecuted for an offence under a law of the Commonwealth at any time if the maximum penalty is more than 150 penalty units. That is precisely what s 15B(1A)(a) states. As the extrinsic material demonstrates, there was a legislative choice made to set those thresholds, and to have them reflect the seriousness of the alleged offending. Similar legislative choices are apparent in s 15B(1) and s 15B(1B), with different thresholds set. 67 The enactment of s 15B of the Crimes Act predated the movement of the financial services provisions from the TPA to the ASIC Act. The specific provisions in the ASIC Act were enacted (and indeed, relevantly preserved from the TPA) to deal with specific financial services offences. Parliament must be taken, in 1998, to have been cognisant of the generalised time limit provisions in s 15B of the Crimes Act, which had been enacted in 1992. If there had been an intention to preserve the application of s 15B(1A)(a), in my respectful opinion, Parliament would have said so in s 12GB(6), but it did not.

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.

Conclusion 89 While it can be accepted that a period of three years is a relatively short time in which to prosecute a complicated set of allegations about the delivery of financial services by an accused such as ME Bank, on the other hand the imposition of criminal responsibility is a most serious matter. The issue of time needed for complex prosecutions is a matter for Parliament. Just as it addressed this issue with the introduction of s 79(6) into the TPA, and carried this through to s 12GB(6), it is able to do so again, if three years is seen as an inadequate period in which to bring a prosecution. 90 The separate question should be answered in favour of ME Bank's construction. I certify that the preceding ninety (90) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Mortimer.

Associate: Dated: 15 December 2021 Annexure A - Statement of agreed facts