Walker v Members Equity Bank Ltd

Walker v Members Equity Bank Ltd - [2022] FCAFC 184 - FCAFC 2022 case summary — Zoe

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WIGNEY J: 1 The issue raised by this appeal concerns the proper construction of s 12GB(6) of the Australian Securities and Investments Commission Act 2001 (Cth) (ASIC Act). Section 12GB(1) of the ASIC Act creates an offence. Section 12GB(6) provided that a "prosecution for an offence against subsection (1) may be commenced within 3 years after the commission of the offence". The question is: does s 12GB(6) impose a three-year limitation period in respect of any prosecution for an offence against s 12GB(1)? Or is s 12GB(6) merely facultative or permissive, in the sense that it extends to three years any shorter limitation period that would otherwise apply by virtue of some other statutory provision, but does not impose any limitation period where the limitation period that would otherwise apply is longer than three years? 2 On 25 May 2021, the appellant, an officer of the Australian Securities and Investments Commission (ASIC), commenced summary criminal proceedings against the respondent, Members Equity Bank Ltd (ME Bank), by filing a Summons and two Informations. The Informations detailed 44 charges against ME Bank in respect of offences against ss 12DB(1)(g) and 12GB(1) of the ASIC Act and 18 charges against either s 64 or s 65 of the National Credit Code in sch 1 of the National Consumer Credit Protection Act 2009 (Cth). The proceedings are being prosecuted by the Commonwealth Director of Public Prosecutions, who also has conduct of this appeal on behalf of the appellant. It is convenient to collectively refer to the appellant and the Director as the prosecutor. 3 On 15 September 2021, the primary judge ordered the prosecutor to file and serve an Information "reflecting ongoing plea negotiations" and also made an order, pursuant to r 30.01 of the Federal Court Rules 2011 (Cth), that "the question whether any of the offences the subject of Order 1 are statute-barred by reason of s 12GB(6) of the [ASIC Act] be heard separately from any other questions". 4 The Information subsequently filed by the prosecutor in October 2021 contained eight charges. Those charges, described as charges 63 to 70, effectively 'rolled up' the charges in the earlier Informations, in the sense that each of the charges identified a number of offences which had been separately charged in the earlier Informations. The rolled-up nature of the charges is uncontentious. The charges allege that the identified offences were committed between specified dates. The offences identified in charges 63, 64 and 65, and some of the offences in charge 66, each of which were offences against s 12DB(1)(g) and s 12GB(1) of the ASIC Act, were alleged to have been committed on dates more than three years before 25 May 2021. 5 In a judgment handed down on 15 December 2021 (Walker v Members Equity Bank Ltd [2021] FCA 1554 - J), the primary judge answered the separate question in the following terms: Yes, the offences the subject of Charges 63, 64, 65 and some of the offences the subject of Charge 66 are statute-barred. Section 12GB(6) of the Australian Securities and Investments Commission Act 2001 (Cth) requires a prosecution to be commenced within three years after the commission of the offence, and no later. 6 The prosecutor filed an appeal in respect of the primary judge's judgment concerning the separate question. The sole ground of appeal is that the primary judge "erred in construing s 12GB(6) of the [ASIC Act] as requiring, in every case to which the section applies, a prosecution to be commenced within three years after the commission of an offence". No issue is taken about the fact that the answer to the question lacks clarity because it refers to "some of the offences the subject of Charge 66" being statute barred. 7 For the reasons that follow, the prosecutor's appeal must be dismissed. The separate question was correctly answered by the primary judge. The effect of s 12GB(6) of the ASIC Act, properly construed, is to create a limitation period of three years in respect of offences against s 12GB(1) of the ASIC Act. It is not open to the prosecutor to commence a prosecution for an offence against s 12GB(1) of the ASIC Act if the offence is alleged to have been committed more than three years before the commencement or purported commencement of the prosecution.

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THE RELEVANT STATUTORY SCHEME 8 Unless noted otherwise, the following discussion of the statutory scheme refers to the relevant statutory provisions in force as at September 2018, the date of the last offence allegedly committed by ME Bank. 9 The stipulated objects of the ASIC Act include to "provide" for ASIC and its functions and powers: s 1(1)(a) and (b) of the ASIC Act. ASIC's functions include those conferred on it by or under the "corporations legislation" - namely, the ASIC Act and the Corporations Act 2001 (Cth): s 5 of the ASIC Act. 10 Division 2 of pt 2 of the ASIC Act contains provisions relating to unconscionable conduct and consumer protection in relation to financial services. Subdivision D of div 2 of pt 2 contains provisions concerning consumer protection, including s 12DB(1), which relevantly provided as follows: (1) A person must not, in trade or commerce, in connection with the supply or possible supply of financial services, or in connection with the promotion by any means of the supply or use of financial services: … (g) make a false or misleading representation with respect to the price of services; 11 Subdivision G of div 2 of pt 2 of the ASIC Act deals with enforcement and remedies, including offences. Section 12GB(1) provided as follows: 12GB Offences against Subdivision D (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; (g) in the case of a person who is a body corporate - by a fine not exceeding 10,000 penalty units. 12 An offence against s 12GB(1) is a summary offence because it is not punishable by imprisonment and no contrary intention appears in s 12GB of the ASIC Act: s 4H of the Crimes Act 1914 (Cth). 13 Section 12GB(6) provided as follows: (6) A prosecution for an offence against subsection (1) may be commenced within 3 years after the commission of the offence. 14 The Crimes Act also contained provisions relating to the time for commencement of prosecutions for offences against laws of the Commonwealth. It provided as follows: 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. 15 A penalty unit as at September 2018 was $210: s 4AA of the Crimes Act. 16 The Federal Court of Australia has exclusive jurisdiction in respect of any matter arising under div 2 of pt 2 of the ASIC Act: s 12GJ(1)(a) of the ASIC Act. That includes jurisdiction in respect of summary prosecutions for offences against s 12GB(1) of the ASIC Act. 17 It is relevant to note that ASIC was also able to commence civil proceedings in respect of contraventions of provisions in sub-div D of div 2 of pt 2 of the ASIC Act. Section 12GBC(1) provided that "ASIC may institute a proceeding in the Court for the recovery on behalf of the Commonwealth of a pecuniary penalty referred to in section 12GBA". Section 12GBA provided that, if satisfied that a person had contravened a provision of, relevantly, sub-div D, the Court could order the person to pay to the Commonwealth such pecuniary penalty as the Court determined to be appropriate. Section 12GBC(2) provided that a proceeding under s 12GBC(1) "may be commenced within 6 years after the contravention". 18 The Court could not make a pecuniary penalty order under s 12GBA if the person had been convicted of an offence against s 12GB(1) constituted by conduct that was substantially the same as the conduct constituting the breach in respect of which the pecuniary penalty order was sought: s 12GBB(1) of the ASIC Act. Pecuniary penalty proceedings under s 12GBA were also stayed if criminal proceedings were started in respect of substantially the same conduct: s 12GBB(2) of the ASIC Act.

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THE ALLEGED OFFENCES 19 As previously noted, the prosecutor commenced the criminal proceedings against ME Bank on 25 May 2021 by the filing of a Summons and two Informations. The two original Informations were subsequently replaced by an Information which contained eight 'rolled-up' charges - charges 63 to 70. The charges which contained the offences which were found by the primary judge to be statute barred are charges 63 to 66, which are in the following terms: CHARGE 63 Caroline Walker of Level 7, 120 Collins Street, Melbourne, Victoria, informs the Court that between 24 April 2017 and 30 June 2017 at Melbourne, Members Equity Bank Ltd ABN 56 070 887 679 of Level 28, 360 Elizabeth Street, Melbourne, did, in trade or commerce, in connection with the supply of financial services, make false or misleading representations with respect to the price of services, contrary to sections 12DB(1)(g) and 12GB(1) of the Australian Securities and Investments Commission Act 2001 (Cth). Details of alleged offence Between 24 April 2017 and 30 June 2017, Members Equity Bank Ltd ABN 56 070 887 679 (ME Bank), in the course of providing home loan facilities to customers of ME Bank, sent 5 letters to those customers which contained a false or misleading representation to the effect that from a specified date, each customer would be required to pay interest on their loan principal at a rate which was less than the rate of interest in fact payable by that customer from that date. CHARGE 64 Caroline Walker of Level 7, 120 Collins Street, Melbourne, Victoria, informs the Court that between 1 July 2017 and 7 May 2018 at Melbourne, Members Equity Bank Ltd ABN 56 070 887 679 of Level 28, 360 Elizabeth Street, Melbourne, did, in trade or commerce, in connection with the supply of financial services, make false or misleading representations with respect to the price of services, contrary to sections 12DB(1)(g) and 12GB(1) of the Australian Securities and Investments Commission Act 2001 (Cth). Details of alleged offence Between 1 July 2017 and 7 May 2018, Members Equity Bank Ltd ABN 56 070 887 679 (ME Bank), in the course of providing home loan facilities to customers of ME Bank, sent 165 letters to those customers which contained a false or misleading representation to the effect that from a specified date, each customer would be required to pay interest on their loan principal at a rate which was less than the rate of interest in fact payable by that customer from that date. CHARGE 65 Caroline Walker of Level 7, 120 Collins Street, Melbourne, Victoria, informs the Court that between 2 September 2016 and 30 June 2017 at Melbourne, Members Equity Bank Ltd ABN 56 070 887 679 of Level 28, 360 Elizabeth Street, Melbourne, did, in trade or commerce, in connection with the supply of financial services, make false or misleading representations with respect to the price of services, contrary to sections 12DB(1)(g) and 12GB(1) of the Australian Securities and Investments Commission Act 2001 (Cth). Details of alleged offence Between 2 September 2016 and 30 June 2017, Members Equity Bank Ltd ABN 56 070 887 679 (ME Bank), in the course of providing home loan facilities to customers of ME Bank, sent 158 letters to those customers which contained a false or misleading representation to the effect that from a specified date, each customer would be required to make minimum repayments under their loan or part of their loan in an amount less than the amount in fact payable by that customer from that date. CHARGE 66 Caroline Walker of Level 7, 120 Collins Street, Melbourne, Victoria, informs the Court that between 1 July 2017 and 3 September 2018 at Melbourne, Members Equity Bank Ltd ABN 56 070 887 679 of Level 28, 360 Elizabeth Street, Melbourne, did, in trade or commerce, in connection with the supply of financial services, make false or misleading representations with respect to the price of services, contrary to sections 12DB(1)(g) and 12GB(1) of the Australian Securities and Investments Commission Act 2001 (Cth). Details of alleged offence Between 1 July 2017 and 3 September 2018, Members Equity Bank Ltd ABN 56 070 887 679 (ME Bank), in the course of providing home loan facilities to customers of ME Bank, sent 2,170 letters to those customers which contained a false or misleading representation to the effect that from a specified date, each customer would be required to make minimum repayments under their loan or part of their loan in an amount less than the amount in fact payable by that customer from that date. 20 It can readily be seen that all of the offences identified in charges 63 to 65, and at least some of the offences identified in charge 66, were allegedly committed more than 3 years before 25 May 2021, the date the proceedings were commenced. 21 The critical question is whether, as ME Bank contended, s 12GB(6) of the ASIC Act applied and imposed a "hard" limitation period of three years; or whether, as the prosecutor contended, s 12GB(6) was facultative or permissive in the sense that it operated only to extend to three years any shorter limitation period that would otherwise apply by virtue of some other statutory provision. It does not impose any limitation period where the limitation period that would otherwise apply is longer than three years. 22 If ME Bank's contention is correct, the prosecution of the offences allegedly committed more than 3 years before 25 May 2021 was statute barred by reason of s 12GB(6) of the ASIC Act. If the prosecutor's contention is correct, the prosecution of those offences was not statute barred because s 15B(1A)(a) of the Crimes Act applied to those offences, with the result that there was effectively no limitation period and s 12GB(6) did not operate to impose any shorter limitation period.

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THE JUDGMENT OF THE PRIMARY JUDGE 23 The primary judge held that s 12GB(6) of the ASIC Act applied in respect of the offences allegedly committed by ME Bank and that s 12GB(6), properly construed, "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": J [25]. The key considerations which led her Honour to that conclusion may be summarised as follows. 24 First, the primary judge considered the legislative history of s 12GB(6) of the ASIC Act (J [26]-[47]) and found that it confirmed the construction her Honour considered 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": J [50]. The legislative history is discussed later in these reasons. It suffices to note at this point that her Honour considered it significant that s 15B of the Crimes Act predated s 12GB(6): J [67]. Her Honour reasoned that if "there had been an intention to preserve the application of s 15B(1A)(a) … Parliament would have said so in s 12GB(6), but it did not": J [67]; see also J [59]. 25 Second, the primary judge considered the text of s 12GB(6) and held that "the use of [the] 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": J [55]. As for the use of the word "may", her Honour considered that, when read in context, the word "may" in s 12GB(6) "does not suggest the time limit is optional": J [56]. The relevant context included the similar use of the word "may" in s 12GBC(2), which provided the limitation period for the commencement of civil penalty proceedings. The word "may" in s 12GBC(2) was, her Honour reasoned, used "in a way which meant six years was the outer time limit" because, if that were not the case, s 12GBC(2) "would be nothing more than a legislative suggestion, and that cannot be the correct meaning in the context of civil penalty prosecution, where clarity and certainty are important features": J [56]. 26 Third, another relevant textual consideration was said by the primary judge to be that s 12GB is "self-contained in its operation" because it "contains the offence-creating terms, the punishments and the time limits": J [57]. The self-contained nature of the provision was seen to be significant because "[c]onsiderable 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": J [57] 27 Fourth, the primary judge rejected the construction of s 12GB(6) which had been advanced by the prosecutor for a number of reasons, including that it "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" (J [50]) and that it "introduces some irrationality into the scheme" (J [60]). As already noted, the prosecutor contended that s 12GB(6) was facultative and only imposes a three-year limitation period in circumstances where some other statutory provision would otherwise impose a shorter limitation period. If the provision operated in that way, the result would be that a corporation and an individual accessorial offender could be prosecuted at any time, however an individual could only be prosecuted within the three-year limitation period (see J [61]-[63), an outcome which, according to her Honour, was "somewhat irrational": J [63]. 28 Fifth, the primary judge distinguished the authorities relied on by the prosecutor. Those authorities, which are briefly addressed later in these reasons, were: Attorney-General (Cth) v Oates (1999) 198 CLR 162; Comptroller-General of Customs v Parker (2006) 200 FLR 44; [2006] NSWSC 390; Seeto v R; Evans v R [2008] NSWCCA 227. Her Honour essentially discounted the reasoning in those authorities because they concerned different provisions and different statutory contexts: see J [73], [76] and [78]. Her Honour also did not consider herself bound by some brief obiter remarks concerning s 12GB(6) of the ASIC Act at first instance in Sadie Ville Pty Limited v Deloitte Touche Tohmatsu (No 3) (2018) 357 ALR 695; [2018] FCA 1107 and by two members of the Full Court in Deloitte Touche Tohmatsu (A Firm) v Sadie Ville Pty Ltd (As Trustee for Sadie Ville Superannuation Fund) [2020] FCAFC 23.

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APPEAL GROUND AND SUBMISSIONS 29 The prosecutor relied on a single ground of appeal, being that the "primary judge erred in construing s 12GB(6) of the [ASIC Act] as requiring, in every case to which the section applies, a prosecution to be commenced within three years after the commission of an offence". 30 The prosecutor's submissions in support of that ground effectively mirrored those that were put to, but rejected by, the primary judge. 31 The prosecutor submitted, in short, that the primary judge erred because her Honour should have accepted the construction of s 12GB(6) she had advanced, which was that the three-year period in s 12GB(6) only applied in circumstances where some other legislative provision would otherwise operate to impose a shorter limitation period. In those circumstances, it was said that s 12GB(6) had the "facultative" effect of extending the limitation period to three years. The only concrete example of a case where s 12GB(6) had work to do in that regard was where there was a prosecution under s 12GB(1) brought against an individual. In such a case, s 15B(1)(b) would otherwise operate to provide a limitation period of one year. 32 The prosecutor contended, however, that s 12GB(6) did not impose any time limitation in circumstances where no other statute imposed a limitation period of less than three years. It did not impose any limitation period in the circumstances of this case because s 15B(1A)(a) applied, with the result that there was no limitation period. 33 In this Court, the prosecutor submitted, as she did before the primary judge, that a number of textual and contextual considerations supported the construction of s 12GB(6) advanced by her. 34 First, the prosecutor relied heavily on the fact that s 12GB(6) used the word "may", not "must", "must only", or "may only". The word "may", in the prosecutor's submission, "does not readily entail the result that failure to commence within 3 years will result in the prosecution being time barred". The suggestion appeared to be that, because the provision used the word "may", a prosecutor could, but need not, commence the prosecution within three years. The prosecutor also took issue with the primary judge's finding that the prosecutor's construction of the provision "flies in the face of the text of the provision and requires words to be read in". 35 Second, the construction advanced by the prosecutor was said to better achieve the purpose or object of sub-div D of div 2 of pt 2 of the ASIC Act, which was to protect consumers. The imposition of a three-year "deadline" would, so it was submitted, "defeat the protective purpose of this Part of the ASIC Act". 36 Third, the ASIC Act was said to be "remedial or beneficial" legislation, and therefore should be given a broad construction. 37 Fourth, the prosecutor maintained that the legislative history did not negate the construction she advanced. She submitted that the primary judge gave the legislative history "too much work to do in confining s 12GB(6)". 38 Fifth, the prosecutor relied on what were said to be a number of other "contextual matters". They included that the construction of s 12GB(6) favoured by the primary judge meant that ASIC has more time to bring civil penalty proceedings than it does to commence criminal proceedings for a contravention of, relevantly, a provision in sub-div D of div 2 of pt 2 of the ASIC Act. It was also said that it would be incongruous if s 12GB(6) imposed a three-year limitation period where a corporation was alleged to have committed an offence against s 12GB(1) given that the apparent legislative intention in s 15B(2) of the Crimes Act is that in general a criminal case against a corporation for an offence which carries a penalty of the magnitude of that carried by s 12GB(1) of the ASIC Act can be commenced against a corporation at any time within one year after the commission of the offence. The prosecutor also took issue with the primary judge's characterisation of s 12GB as being "self-contained" and drew attention to the fact that the general principles of criminal responsibility in ch 2 of The Criminal Code (as contained in the schedule to the Criminal Code Act 1995 (Cth)) apply to all offences against laws of the Commonwealth. 39 Sixth, the prosecutor relied on the reasoning in Oates, Parker and Seeto in respect of similar provisions in other legislation. She also relied on the apparently obiter observations of the trial judge in Sadie Ville and by two members of the Full Court on appeal in Deloitte Touche Tohmatsu. 40 Seventh, the prosecutor took issue with the primary judge's finding that the consequences of the prosecutor's construction of s 12GB(6) was irrational. The prosecutor submitted that the primary judge was wrong to conclude that the prosecution of an individual who was alleged to be an accessory to a corporation's offence against s 12GB(1) was not subject to a time limit. That was said to be because an offence against s 12GB(1)(b) of the ASIC Act (aids, abets, counsels or procures a person to contravene a provision of sub-div D) is not an "offence that is taken to have been committed because of section 11.2 or 11.2A of the Criminal Code" for the purposes of s 15B(1B) of the Crimes Act. In any event, in the prosecutor's submission, it is not irrational for an individual principal offender to be subject to a three-year limitation period, while an individual accessory to a corporation's offence is not subject to a time limit, because an individual accessory's culpability is tied to that of the offending corporation.

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Text 42 As adverted to earlier, the prosecutor relied heavily on the fact that s 12GB(6) uses the word "may", as opposed to words of obligation or command such as "must", "must only", or "shall". The suggestion appeared to be that the use of the word "may" meant that a prosecutor had the discretion, or the option, to commence proceedings within three years, but was not bound to do so. Read in that way, s 12GB(6) would amount to little more than a legislative suggestion or recommendation which a prosecutor could choose to ignore. 43 The prosecutor's reliance on the use of the word "may" in s 12GB(6) is somewhat misplaced. When read in context and in light of the legislative history and apparent purpose of the provision, the use of the word "may", as opposed to "must" or "shall", is of limited significance. 44 It may be accepted that where a statutory provision provides that a person, court or body "may" do a particular act or thing, it is generally presumed that the act or thing may be done at the discretion of the person, court or body: s 33(2A) of the Acts Interpretation Act 1901 (Cth); see also Ward v Williams (1955) 92 CLR 496 at 505; Cain v New South Wales Land and Housing Corporation (2014) 86 NSWLR 1; [2014] NSWCA 28 at [14]-[15]. The meaning of "may" in that context is sometimes said to be "presumptively permissive": Animals' Angels e.V. v Secretary, Department of Agriculture (2014) 228 FCR 35; [2014] FCAFC 173 at [52]. 45 Section 12GB(6) of the ASIC Act, however, does not provide that a person or body "may" do a particular act or thing. Nor does it confer a power on a specified person or body. The question whether a conferral of power is discretionary or instead carries with it an obligation, which is the issue considered by many of the authorities concerning the word "may", accordingly does not directly arise in the context of s 12GB(6). Rather, s 12GB(6) provided that a specified act (the commencement of a prosecution) may be done if done in a specified way or in a specified circumstance ("within 3 years after the commission of the offence"). The word "may" in that context could be said to be permissive, but only in the sense that it means that the act is permitted if done in the specified way or circumstance. It is difficult to accept that the use of the word "may" in this context means that the act in question is permitted to be done irrespective of whether it is done in the specified way, or in the specified circumstance. Indeed, such a reading of the provision would appear to denude it of any real meaning or utility. What would be the point in providing that a prosecution may, but need not, be commenced within three years? 46 As noted earlier, the prosecutor's arguments based on the fact that the word "may", as opposed to "must", is used in s 12GB(6) of the ASIC Act tended toward suggesting that the time period specified in sub-s (6) was optional, or was merely a recommendation that a prosecutor could choose to ignore. Yet, on the prosecutor's contended construction of s 12GB(6), there was at least one circumstance where the three-year time period specified in s 12GB(6) operated as a "hard" limitation period, not a mere recommendation or option. That circumstance was said to be when an offence against s 12GB(1) offence was allegedly committed by an individual and therefore, but for s 12GB(6), s 15B(1)(b) of the Crimes Act would (because the penalty for an offence under s 12GB(1) does not include imprisonment) impose a limitation period of one year. The prosecutor contended that in such a case s 12GB(6) operated to extend the limitation period to three years. The prosecutor appeared to concede that in that circumstance at least the word "may" in s 12GB(6) means "must" or "shall". That concession rather undermined the prosecutor's arguments based on the use of the word "may" in s 12GB(6). 47 The prosecutor's arguments based on the use of the word "may" in s 12GB(6) are also undermined by the use of the word "may" in an almost identical context in s 15B(1) of the Crimes Act. There could be no doubt that the limitation periods specified in s 15B of the Crimes Act are "hard" time periods, in the sense that a prosecution cannot be commenced outside the specified time periods. The predecessor provision to s 15B of the Crimes Act, s 21(1) of the Crimes Act, similarly provided that a prosecution "may be commenced" within certain specified periods and nonetheless was construed as creating a "hard" limitation period in respect of the commencement of a prosecution of a Commonwealth offence: see Hollis v ABE Copiers Pty Ltd (1979) 41 FLR 141 at 144; see also Thompson v Riley McKay Pty Ltd (No 3) (1980) 43 FLR 293; [1980] FCA 99, where an information alleging offences under s 53 of the Trade Practices Act was dismissed because the prosecution was not commenced within one year of the alleged commission of the offence, as required by s 21 of the Crimes Act. 48 Similarly, s 12GBC(2) of the ASIC Act, which provided that a proceeding for the recovery of a pecuniary penalty in respect of a contravention of a provision in sub-div D "may be commenced within 6 years after the contravention", has been construed as creating a "hard" limitation period, despite the use of the word "may": see, in particular, Deloitte Touche Tohmatsu at [71], [246]-[248]. If s 12GBC(2) did not impose a "hard" time limit, it would effectively have no work to do. It is improbable that the legislature would have intended that the word "may" meant "must" in s 12GBC(2), but that the use of the word "may" in s 12GB(6) meant that the period specified in sub-s (6) was optional, or a mere recommendation, other than in the case of the prosecution of individuals. 49 That is not to say that every provision which uses the word "may" in the context of an apparent limitation period necessary creates a "hard" limitation period. The decision in Oates would suggest otherwise. Nor is it to say that the use of the word "may" in such provisions is of no moment whatsoever. The reasoning in both Parker and Seeto ascribed some significance to the use of the word "may" in the statutory provisions considered in those cases. The decisions in Oates, Parker and Seeto are discussed in more detail later in these reasons. It suffices at this point to note that the better view would appear to be that the use of the word "may" in a provision such as s 12GB(6) is far from determinative and must be considered in light of the relevant statutory context, legislative history and purpose. 50 The final point to note in respect of the use of the word "may" is that ME Bank submitted, and the primary judge accepted, that the word "may" was used to accommodate the existence of a "prosecutorial discretion": J [33]. In ME Bank's submission, if the word "must" had been used in s 12GB(6), that would have had the effect of "mandating prosecution". That is, however, far from a compelling or persuasive explanation for the use of the word "may". The use of the word "must" in a limitation period provision could hardly be said to compel a prosecutor to prosecute any case which happened to fall within the limitation period, or denude the prosecutor of his or her prosecutorial discretion.

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Legislative history 51 As touched on earlier, the primary judge addressed the legislative history in her Honour's reasons: see J [26]-[51]. Her Honour concluded that the legislative history did no more than confirm the construction that she considered to be correct having regard to the text and context of s 12GB(6) of the ASIC Act: J [50]. 52 The prosecutor contended that the primary judge "read too much into" the legislative history and "gave it too much work to do in confining s 12GB(6)" of the ASIC Act. 53 When the legislative history is closely considered, however, the converse is in fact the case. The legislative history of s 12GB(6) is a particularly important contextual consideration in construing the provision. It offers no support whatsoever for the differential operation of s 12GB(6) suggested by the prosecutor. Rather, it supports the proposition that the predecessor to s 12GB(6) was intended to provide the applicable limitation period for all prosecutions to which the provision applied. 54 It is readily apparent that the consumer protection provisions in sub-div D of pt 2 of div 2 of the ASIC Act have their origin in the consumer protection provisions in Part V of the Trade Practices Act 1974 (Cth). Relevantly, s 53 of the Trade Practices Act, as originally enacted, provided as follows: False representations. 53. A corporation shall not, in trade or commerce, in connexion with the supply or possible supply of goods or services or in connexion with the promotion by any means of the supply or use of goods or services - (a) falsely represent that goods or services are of a particular standard, quality or grade, or that goods are of a particular style or model; (b) falsely represent that goods are new; (c) represent that goods or services have sponsorship, approval, performance characteristics, accessories, uses or benefits they do not have; (d) represent that the corporation has a sponsorship, approval or affiliation it does not have; (e) make false or misleading statements concerning the existence of, or amounts of, price reductions; (f) make false or misleading statements concerning the need for any goods, services, replacements or repairs; or (g) make false or misleading statements concerning the existence or effect of any warranty or guarantee. 55 As can be seen, s 53 of the Trade Practices Act was in relatively similar terms to the later enacted s 12DB(1) of the ASIC Act, save that s 53 concerned the supply or promotion of goods and services generally, whereas s 12DB concerned the supply or promotion of particular services, namely financial services. Section 53(e) of the Trade Practices Act was in broadly similar terms to s 12DB(1)(g) of the ASIC Act. 56 Section 79 of the Trade Practices Act, as originally enacted, provided as follows: Offences against Part V. 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. 57 The Trade Practices Act, as originally enacted, did not contain any provision which dealt with the time within which a prosecution for an offence against s 79 could be commenced. As at the time of the enactment of the Trade Practices Act, however, s 21 of the Crimes Act provided as follows: 21. (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 six 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 six 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. 58 The effect of s 21(1) of the Crimes Act was that a prosecution of an offence against s 79 of the Trade Practices Act - constituted, for example, by a contravention of s 53 - could only be commenced within one year of the commission of an offence. That is because the penalty for an offence only carried a pecuniary penalty, and therefore the limitation period in s 21(1)(c) of the Crimes Act applied. 59 It is clear that, despite the fact s 21 provided that a prosecution "may be commenced" as specified, it nevertheless imposed "hard" limitation periods. As noted earlier, in Hollis, a case concerning a prosecution of a company for an offence against s 79 of the Trade Practices Act in respect of an alleged contravention of s 53 of the Trade Practices Act, it was held (at 144) that it was necessary for the prosecution to have been commenced within one year after the commission of the alleged offences, otherwise the information would be "bad". 60 In 1986, s 79 of the Trade Practices Act was amended in two ways which are presently relevant. 61 First, s 79(1) was amended so as to provide as follows: (1) A person who- (a) contravenes; (b) aids, abets, counsels or procures a person to contravene; (c) induces, or attempts to induce, a person whether by threats or promises or otherwise, to contravene; (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 Part V other than section 52, 52A, 65Q or 65R or sub-section 65F (9) is guilty of an offence punishable on conviction- (f) in the case of a person not being a body corporate-by a fine not exceeding $20,000; or (g) in the case of a person being a body corporate-by a fine not exceeding $100,000. 62 As can be seen, s 79(1) was in broadly similar terms to the later enacted s 12GB(1) of the ASIC Act, save that it referred to contraventions of particular provisions of Part V of the Trade Practices Act as opposed to provisions in the ASIC Act. 63 Second, sub-s (6) was inserted into s 79 of the Trade Practices Act. It provided as follows: (6) A prosecution for an offence against sub-section (1) may be commenced within 3 years after the commission of the offence. 64 The explanatory memorandum to the Trade Practices Revision Bill 1986 (Cth), which among other things inserted sub-s (6) into s 79, made it plain that the new provision was intended to extend the 12-month time limit that would, by virtue of s 21 of the Crimes Act, otherwise apply to the commencement of a prosecution for an offence under s 79(1) of the Trade Practices Act in respect of a contravention of Part V of the Trade Practices Act. The explanatory memorandum stated (at [165]) that the "current 12 month time limit on prosecutions which is imposed by s 21 of the Crimes Act 1914 has proven unduly restrictive" and that s 79 was accordingly being amended to "provide a 3 year time limit for the commencement of prosecution proceedings for a contravention of Part V". There was nothing in the explanatory memorandum to suggest that, despite the use of the word "may", the period prescribed in s 79(6) was anything other than a "hard" limitation period. 65 The prosecutor submitted, in effect, that s 79(6) of the Trade Practices Act "sets a floor but not a ceiling". There is, however, nothing in the text, context, or apparent purpose of the provision to support that submission. Indeed, that submission is contradicted by the extrinsic material. There is also nothing in the text, context or apparent purpose, of s 79(6) to suggest that the three-year time period imposed by s 79(6) was only intended to apply in circumstances where a lesser limitation period would otherwise apply. Of course, when sub-s (6) was inserted, the shorter, one-year time period in s 21(1)(c) of the Crimes Act would otherwise have applied to all offences against s 79(1). There is, however, nothing to suggest that s 79(6) was intended to have a different operation should s 21 of the Crimes Act be amended at some point in the future. 66 The next relevant development concerned s 21 of the Crimes Act. In 1990, the Crimes Act was in part renumbered and s 21 became s 15B. Perhaps more significantly, in 1992 s 15B was amended by the Crimes Legislation Amendment Act 1992 (Cth) to read substantially as it does today. The text of s 15B is set out earlier in these reasons. 67 The important point to note is that s 15B(1)(b) effectively provided that the prosecution of an individual for an offence against a law of the Commonwealth, the penalty for which did not include a term of imprisonment, "may be commenced" at any time within one year after the commission of an offence. In the case of a body corporate, where the offence carried a maximum penalty of more than 150 penalty units, s 15B(1A)(a) provided that a prosecution "may be commenced" at any time. At the time of the amendment to s 15B in 1992, s 4AA provided that a penalty unit was $100. A fine of 150 penalty units was therefore $15,000. 68 The effect of the 1992 amendment to s 15B of the Crimes Act was perhaps somewhat incongruous in the case of offences allegedly committed by a corporation against s 79(1) of the Trade Practices Act constituted by a contravention of Part V of the Trade Practices Act, including a contravention of s 53. Section 79(6) provided that a prosecution for such an offence "may be commenced within 3 years after the commission of the offence". As just noted, however, the effect of the general provision in s 15B(1A)(a) of the Crimes Act was that a prosecution for a Commonwealth offence committed by a corporation, the maximum penalty for which was a fine exceeding $15,000, "may be commenced" at any time. An offence against s 79(1) committed by a corporation carried a fine well exceeding $15,000. Thus, while s 79(6) of the Trade Practices Act had been inserted so as to extend the shorter, one-year limitation period that would otherwise apply (as then provided in s 21 of the Crimes Act), from 1992 it specified a shorter limitation period than that which would otherwise apply to an offence committed by a corporation by virtue of s 15B(1A) of the Crimes Act. 69 Section 79(6) was not, however, amended in such a way as to indicate that it would not operate to impose a limitation period in circumstances where s 15B of the Crimes Act, or any other statutory provision, otherwise provided for a longer limitation period. 70 It should perhaps also be noted in this context that ss 15B(2) and (3) dealt with the interaction between the limitation periods specified in s 15B and limitation periods that may be specified in other Commonwealth legislation. Section 15B(2) in effect provided that a prosecution for a Commonwealth offence could be commended within one year of the commission of the offence even if a provision in a Commonwealth law passed before the commencement of the Crimes Act specified a shorter limitation period. Section 15B(3) in effect provided that, if another law of the Commonwealth specified a longer limitation period than that which was specified in s 15B, a prosecution may be commenced within that longer period. 71 The prosecutor submitted, in effect, that the amendment to s 15B in 1992 did not give rise to any incongruity in respect of the time limit for the commencement of prosecutions against corporations for offences against s 79(1) of the Trade Practices Act. That was because, so it was submitted, s 79(6) of the Trade Practices Act, properly construed, only ever applied (and the legislature only ever intended it to apply) in circumstances where a limitation period which was shorter than three years would otherwise apply to the prosecution of such offences. It followed, therefore, at least according to the prosecutor, that when s 15B was amended in 1992 to provide, in s 15B(1A), a longer limitation period for the prosecution of corporations for offences which carried a penalty of more than 150 penalty units, s 79(6) effectively ceased to apply to offences against s 79(1) of the Trade Practices Act which were alleged to have been committed by corporations. 72 The difficulty with that submission is that there is nothing in the relevant text, context or extrinsic material which is suggestive of any legislative intention that the limitation period created by s 79(6) of the Trade Practices Act would only ever apply in circumstances where a shorter limitation period would otherwise apply. As noted earlier, it is readily apparent that the legislative intention, at the time sub-s (6) was inserted in s 79 of the Trade Practices Act, was to provide a limitation period which was longer than that which had previously applied by reason of s 21 of the Crimes Act. It does not follow, however, that the legislative intention was that the three-year limitation period would only ever apply in circumstances where there was a shorter limitation period elsewhere which would otherwise apply, or that the three-year limitation period would effectively cease to apply if s 21 of the Crimes Act was subsequently amended to provide for an applicable limitation period of greater than three years. 73 The prosecutor also appeared to submit that the 1992 amendment to s 15B of the Crimes Act impliedly repealed, amended, or otherwise affected the operation of s 79(6) of the Trade Practices Act. That submission, if it was indeed advanced, is unmeritorious. There could be little doubt that the specific provision in s 79(6) of the Trade Practices Act overrode the more general provision in s 15B of the Crimes Act. Where there is a conflict between general and specific provisions, the specific provision generally prevails: Smith v The Queen (1994) 181 CLR 338 at 348. The amendment of s 15B of the Crimes Act in 1992 (the general provision) could not be said to have somehow affected or overridden the operation of s 79(6) of the Trade Practices Act (the specific provision) because it "is but common sense that Parliament having before it two apparently conflicting sections at the same time cannot have intended the general provision to have deprived the specific provision of effect": Smith at 348, citing Refrigerated Express Lines (Asia) Pty Ltd v Australian Meat and Livestock Corporation (1980) 44 FLR 455 at 469. 74 The next relevant legislative development occurred in 1998 as a result of the enactment of the Financial Sector Reform (Consequential Amendments) Act 1998 (Cth). The purpose of many of the changes effected by that Act was to shift regulatory responsibility for consumer protection in respect of the supply of financial services and financial products from the Australian Competition and Consumer Commission (ACCC) to ASIC: see Quikfund (Australia) Pty Ltd v Airmark Consolidators Pty Ltd (2014) 222 FCR 13; [2014] FCAFC 70 at [28]-[30]. That Act, among other things, inserted div 2 of pt 2 into the then Australian Securities and Investments Commission Act 1989 (Cth). The provisions of div 2 of pt 2 included, relevantly, ss 12DB and 12GB in essentially the same terms as they appear in the current ASIC Act. Section 12GB(6) was in the same terms as s 79(6) of the Trade Practices Act. 75 It should finally be added, for completeness, that in 2010 the Trade Practices Act was renamed the Competition and Consumer Act 2010 (Cth). Many of the general consumer protection provisions that were in Part V of the Trade Practices Act were not included in the Competition and Consumer Act but were instead incorporated in The Australian Consumer Law, which was (and is) sch 2 to the Competition and Consumer Act. For example, s 151 of the Australian Consumer Law broadly corresponds with what was previously s 53 of the Trade Practices Act. Section 212 of the Australian Consumer Law, which concerned prosecutions for an offence against any provision in ch 4 of the Australian Consumer Law, which included s 151, was in essentially the same terms as s 79(6) of the Trade Practices Act and s 12GB(6) of the ASIC Act. 76 The following points emerge from the legislative history. 77 First, as already noted, s 12GB(6) of the ASIC Act clearly has its origins in s 79(6) of the Trade Practices Act. The text of s 79(6) of the Trade Practices Act was effectively transplanted into the ASIC Act and became s 12GB(6) as part of the wholesale amendments to the ASIC Act which occurred in 1998. There is nothing to suggest that, when s 12GB(6) was transplanted into the ASIC Act as part of those amendments, it was intended to have any different operation, in respect of offences against s 12GB(1) of the ASIC Act, to the operation of s 79(6) in respect of offences against s 79(1) of the Trade Practices Act. 78 Second, it is readily apparent that the purpose of s 79(6) of the Trade Practices Act, when inserted in 1986, was to extend the limitation period that would otherwise apply to prosecutions for offences involving contraventions of Part V of the Trade Practices Act by reason of s 21 of the Crimes Act. Given the penalties for those offences at the time, the limitation period that would otherwise have applied by reason of s 21 of the Crimes Act was 12 months. Section 79(6) extended the limitation period to three years. 79 Third, while s 79(6) employed the words "may be commenced", there is nothing to suggest that the provision was intended to provide anything other than a "hard" limitation period. There was certainly nothing in the relevant explanatory memorandum to suggest that the three-year time limit was anything other than a "hard" limitation period that applied to all prosecutions for contraventions of Part V of the Trade Practices Act. There was also nothing to suggest that that the three-year limitation period was intended to only apply to certain offences, or to offences committed by certain types of offenders, such as individual offenders. 80 Fourth, s 79(6) could perhaps be said to have been facultative or permissive in the sense that it extended the limitation period that would otherwise apply to offences against s 79(1) of the Trade Practices Act by reason of the operation of the general provision in s 21 of the Crimes Act. It does not follow, however, that it imposed anything other than a "hard" limitation period, or that it applied to only some offences against s 79(1) of the Trade Practices Act. 81 Fifth, it may perhaps be accepted that the operation of s 79(6) became somewhat incongruous when the general limitation period in the Crimes Act (s 21, subsequently renumbered to s 15B) was amended in 1992. That is because s 15B(1A) provided that a prosecution of a corporation for a Commonwealth offence which carried a penalty of more than $15,000 could be commenced at any time. The penalty for an offence against s 79(1) of the Trade Practices Act by a corporation at the time well exceeded $15,000. Thus, s 79(6) specified a shorter limitation period for offences under s 79(1) than would otherwise have applied by virtue of the general provision in s 15B(1A) in respect of offences by corporations. Notwithstanding this, s 79(6) was not amended or repealed. It continued to provide a "hard" limitation period of three years in respect of prosecutions for offences against s 79(1) constituted by contraventions of Part V of the Trade Practices Act. 82 Sixth, contrary to the prosecutor's submission, there is nothing in the text, context or apparent purpose of s 79(6) to suggest that the legislative intention was to set "a floor but not a ceiling", or that the limitation period of three years would only ever apply in circumstances where there was a shorter limitation period imposed by some other legislation, including the Crimes Act. Nor is there anything to suggest that the legislative intention behind the insertion of sub-s (6) into s 79 of the Trade Practices Act was that the three-year time period would cease to apply if s 21 of the Crimes Act was subsequently amended to provide for an applicable limitation period of greater than three years. 83 Seventh, there is nothing to suggest that when div 2 of pt 2 was inserted into the ASIC Act in 1998, s 12GB(6), which essentially mirrored the terms of s 79(6) of the Trade Practices Act, was intended to have any different scope or operation to s 79(6) of the Trade Practices Act. 84 Eighth, s 15B of the Crimes Act was in force at the time s 12GB(6) was transplanted into the ASIC Act. It may be inferred that the legislature was aware at that time that s 15B(1A) provided, in respect of Commonwealth offences generally, that there was no time limit in respect of prosecutions of corporations for offences which carried a penalty of more than 150 penalty units. If, in light of the operation of s 15B(1A) of the Crimes Act, s 12GB(6) of the ASIC Act was not intended to apply to the prosecution of corporations, that could readily have been made clear. It was not. 85 Likewise, it may be inferred that the legislature was aware, at the time that s 12GB(6) was transplanted into the ASIC Act, that s 15B(1B) provided, in respect of Commonwealth offences generally, that the prosecution of an individual for an offence which did not carry a term of imprisonment could only be commenced within one year after the commission of the offence. If the time limit in s 12GB(6) was only intended to apply to offences allegedly committed by individuals, one might reasonably expect that the legislature would have made that clear or explicit. It did not. Section 12GB(6) simply mirrored the terms of s 79(6) of the Trade Practices Act. 86 Alternatively, if the legislature simply overlooked the operation of s 79(6) of the Trade Practices Act, either when s 15B of the Crimes Act was amended in 1992, or when s 12GB(6) was inserted in the ASIC Act in terms which mirrored s 79(6), that is an oversight that must be corrected by the legislature. It is not for the Court to give a strained construction to a statutory provision to correct a possible legislative oversight. 87 It is, in all the circumstances, apparent that the legislative history of s 12GB(6) does not provide any contextual support for the construction of the provision advanced by the prosecutor. Indeed, quite to the contrary. It is tolerably clear from the legislative history that s 79(6) was originally intended to provide a three-year "hard" limitation period which applied to all offences against Part V of the Trade Practices Act in lieu of the 12-month limitation period which would otherwise have applied by reason of s 21 of the Crimes Act. There is nothing to suggest that s 79(6) of the Trade Practices Act was intended to have the more restricted operation contended for by the prosecutor - that it would cease to apply if s 21 of the Crimes Act was amended to provide a longer limitation period than that which would otherwise apply by virtue of s 79(6), or that it would only continue to apply in circumstances where there was a shorter limitation period in some other legislation which would otherwise apply to offences under s 79(1) of the Trade Practices Act. There is nothing to suggest that s 12GB(6) of the ASIC Act, which essentially mirrored the terms of s 79(6) of the Trade Practices Act, was intended to have any different effect or operation to s 79(6) when it was transplanted into the ASIC Act as part of the broader amendments enacted in 1998. 88 It should finally be noted that the prosecutor submitted that the facultative purpose or effect of s 12GB(6) of the ASIC Act went beyond extending the limitation period for the prosecution of offences against s 12GB(1) that would otherwise apply by virtue of s 15B(1)(b) of the Crimes Act. Section 12GB(6) was, so it was submitted, also intended to extend any shorter limitation periods that may otherwise apply to such prosecutions by reason of any state or territory legislation. The suggestion appeared to be that, despite the fact that this Court has exclusive jurisdiction in respect of the prosecution of offences against s 12GB(1) of the ASIC Act, because prosecutions can be commenced in registries in different states and territories, different state and territory laws concerning limitation periods may nevertheless apply to such prosecutions by reason of s 79 of the Judiciary Act 1903 (Cth). 89 Three points may be made in respect of that submission. First, given the terms of s 15B of the Crimes Act, it is impossible to see how there was any scope for any state limitation law applying to prosecutions for offences against s 12GB(1) of the ASIC Act by reason of s 79 of the Judiciary Act. That is because s 79 of the Judiciary Act only applies state laws in circumstances where, relevantly, Commonwealth laws do not otherwise apply. Second, the prosecutor was unable to give any example of any state limitation law which could possibly have applied in the case of prosecutions for offences against s 12GB(1) of the ASIC Act. Third, the prosecutor was unable to point to anything in the text, context or legislative history of s 12GB(1) which was suggestive of any such legislative intention.

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Other contextual considerations 90 There are some other potentially relevant contextual considerations. A number of them have already been adverted to. 91 First, as the primary judge noted (at J [57]), s 12GB is effectively "self-contained" in the sense that it creates an offence, provides for the penalties for that offence and provides in sub-s (6) for the time period within which a prosecution for the offence may be commenced. It is, in those circumstances, unlikely that the legislature intended that the operation or effect of the limitation provision in sub-s (6) would depend on whether or not a provision in another Act, such as s 15B of the Crimes Act, may otherwise impose a lesser time limit. 92 It is true, as the prosecutor pointed out, that the general principles of criminal responsibility in ch 2 of the Criminal Code apply to offences against s 12GB(1), as they do in respect of every Commonwealth offence. It is also true that ss 12GB(1A) and (1B) expressly provide for the operation of specific provisions of the Criminal Code in certain limited respects. The application of the Criminal Code to the elements of the offences, however, does not materially detract from the relevance of the fact that, for the most part, s 12GB(1) is self-contained. There is nothing to suggest that the application of the limitation period specified in s 12GB(6) hinged on, or was intended to hinge on, whether or not a longer limitation period would otherwise apply by reason of s 15B of the Crimes Act or any other statutory provision. 93 Second, s 12GBC(2) of the ASIC Act, which was in the same sub-div of the ASIC Act as s 12GB(6), was in effectively identical terms to s 12GB(6), other than that it provided for the commencement of proceedings within six years after the contravention rather than three years. As has already been noted, s 12GBC(2) has been construed as providing a "hard" limitation period in respect of the commencement of proceedings for the recovery of pecuniary penalties for contraventions of a provision in, relevantly, sub-div D: see Deloitte Touche Tohmatsu at [71], [246]-[248]. If it did not provide for a "hard" limitation, s 12GBC(2) would have no work to do. There could be no suggestion that the operation of s 12GBC(2) was dependent on, or subject to, the potential operation of a limitation period in some other Act. It is improbable that the legislature intended that s 12GB(6) would have any different meaning or operation to s 12GBC(2) given their almost identical wording. 94 Third, the prosecutor submitted that it would be irrational for there to be a shorter period for the commencement of a criminal proceeding as compared to a civil penalty proceeding. ME Bank, however, contended that that circumstance was logical and indeed consistent with s 12GBB, which, it was submitted, indicated that criminal proceedings were intended to have priority over civil penalty proceedings. That submission appears to have been accepted by the primary judge, who described the "outer limits of three and six years for criminal and civil liability respectively" as "rational, and harmonious": J [58]. 95 It is doubtful that s 12GBB could accurately be characterised as giving criminal proceedings priority, or as reflecting a legislative intention that criminal proceedings should necessarily be commenced before civil proceedings for a pecuniary penalty. Rather, the purpose of s 12GBB(1) would appear to be to avoid a form of double jeopardy and the purpose of s 12GBB(2) would appear to be to ensure that a person facing criminal charges does not suffer prejudice as a result of having to first defend civil proceedings concerning the same subject matter. Moreover, even if it was intended that criminal proceedings were to have priority, that would not itself provide an explanation for the provision of a shorter limitation period. 96 Be that as it may, it is equally doubtful that it could necessarily be said to be irrational or anomalous for there to be a shorter time period for the commencement of summary criminal proceedings as compared to civil penalty proceedings. Fairly short limitation periods have historically, or typically, been provided for summary offences. The disparity between the limitation periods for criminal prosecutions and civil penalty proceedings is not, in all the circumstances, a contextual consideration which weighs strongly in favour of the prosecutor's construction of s 12GB(6) of the ASIC Act. Much the same can be said of the prosecutor's submission that it is difficult to see why Parliament would have intended offences against s 12GB(1) of the ASIC Act to have a three-year limitation period against the "backdrop" of s 15B(1A)(a) providing no time limit for the prosecution of corporations where the penalty exceeds 150 penalty units. 97 Fourth, ME Bank submitted that s 12GB(6) of the ASIC Act would operate irrationally if construed in the way contended by the prosecutor. The basis of that submission was as follows. 98 On the prosecutor's construction of s 12GB(6), there would be a limitation period of three years in respect of an offence against s 12GB(1)(a) allegedly committed by an individual as a principal offender. That is because s 15B(1)(b) of the Crimes Act would otherwise provide a shorter limitation period. 99 In the case of an offence against s 12GB(1)(b) allegedly committed by an individual as an aider or abettor of a contravention by a corporation, however, there would be no limitation period. That is because s 15B(1B) of the Crimes Act relevantly provided that a "prosecution of an individual for an offence … against another law of the Commonwealth dealing with aiding and abetting, in relation to an offence committed by a body corporate" may be commenced at any time where the maximum penalty for the principal offence in respect of a body corporate exceeds 150 penalty units. Section 12GB(1)(b) of the ASIC Act is a law dealing with aiding and abetting. On the prosecutor's construction of s 12GB(6), the three-year limitation period in s 12GB(6) would not apply to such an offence because the limitation period that would otherwise apply is longer than three years. 100 To make matters worse, it would, on the prosecutor's construction of s 12GB(6), be somewhat unclear what limitation period would apply in the case of an individual offender who was alleged to have committed an offence against s 12GB(1)(c) or (d) of the ASIC Act. That would depend on whether those provisions were laws dealing with aiding and abetting. 101 It would, in ME Bank's submission, be irrational for there to be different limitation periods for offences committed by an individual depending on whether the individual contravened a provision of sub-div D, or aided and abetted, or induced, a corporation to contravene a provision, or was knowingly concerned in a corporation's contravention. The primary judge accepted ME Bank's submission in that regard. Her Honour considered that it would be "somewhat irrational" if an individual who was alleged to have aided and abetted a corporation in respect of a contravention of sub-div D of div 2 of pt 2 of the ASIC Act could be prosecuted at any time, while the prosecution of an individual who was alleged to be a principal offender would have a limitation period of three years: J [63]. 102 It would, at least at first blush, appear to be somewhat odd that the prosecution of a person who is alleged to have contravened a provision of sub-div D of div 2 of pt 2 of the ASIC Act would have a time limit of three years, whereas the prosecution of an individual offender who is alleged to have aided and abetted a corporation to contravene a provision in sub-div D could be prosecuted an any time. On close analysis, however, this is not a contextual consideration which weighs strongly against the prosecutor's construction of s 12GB(6). That is because there may be cases under s 15B of the Crimes Act, which applies to Commonwealth offences generally, where the limitation period for the prosecution of an individual principal offender would be one year (where the penalty for the offence did not include imprisonment and s 15B(1)(b) therefore applied), whereas the prosecution of an individual who is alleged to have aided and abetted a corporation to commit the same offence could be commenced at any time. That would be the case where the penalty for the offence in question exceeded 150 penalty units but did not carry a penalty including imprisonment, in which case s 15B(1B)(a) of the Crimes Act would apply. 103 In any event, the anomaly between the limitation period applicable to an individual principal offender and the limitation period applicable to an individual who aided and abetted a corporation is not so great as to strongly militate against the prosecutor's construction of s 12GB(6) of the ASIC Act.

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Purpose and nature of the ASIC Act 104 The prosecutor contended that a construction of s 12GB(6) of the ASIC Act that ensures "there is a minimum amount of time to detect and investigate [offences against sub-div D], without imposing a maximum cap" would best achieve the purpose or object of sub-div D of div 2 of pt 2 of the ASIC Act, which was said to be "about consumer protection" and "prosecuting those who contravene the norms of conduct in Subdivision D". 105 It may be accepted that a construction of a provision of an Act that would promote the purpose or object underlying the Act will be preferred to a construction that would not promote that purpose or object: s 15AA of the Acts Interpretation Act 1901 (Cth) (see also s 5A(2) of the ASIC Act). The problem with the prosecutor's submission, however, is that focussing upon a general legislative purpose often does not assist, and may even be a distraction, in resolving questions of construction in respect of specific provisions in the legislation in question. As Gleeson CJ said in Carr v Western Australia (2007) 232 CLR 138 at [5]-[6], in relation to the general rule that a construction that promotes the purpose or object of the underlying Act should be preferred: … That general rule of interpretation, however, may be of little assistance where a statutory provision strikes a balance between competing interests, and the problem of interpretation is that there is uncertainty as to how far the provision goes in seeking to achieve the underlying purpose or object of the Act. Legislation rarely pursues a single purpose at all costs. Where the problem is one of doubt about the extent to which the legislation pursues a purpose, stating the purpose is unlikely to solve the problem. For a court to construe the legislation as though it pursued the purpose to the fullest possible extent may be contrary to the manifest intention of the legislation and a purported exercise of judicial power for a legislative purpose. To take an example removed from the present case, it may be said that the underlying purpose of an Income Tax Assessment Act is to raise revenue for government. No one would seriously suggest that s 15AA of the Acts Interpretation Act has the result that all federal income tax legislation is to be construed so as to advance that purpose. Interpretation of income tax legislation commonly raises questions as to how far the legislation goes in pursuit of the purpose of raising revenue. In some cases, there may be found in the text, or in relevant extrinsic materials, an indication of a more specific purpose which helps to answer the question. In other cases, there may be no available indication of a more specific purpose. Ultimately, it is the text, construed according to such principles of interpretation as provide rational assistance in the circumstances of the particular case, that is controlling. 106 Fixing upon the "general legislative purpose" also carries with it the "danger" that the text does not "receive the attention it deserves": Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) (2009) 239 CLR 27; [2009] HCA 41 at [51] (Hayne, Heydon, Crennan and Kiefel JJ). 107 It is doubtful that the ASIC Act could be said to pursue "at all costs" the general purpose identified by the prosecutor. Moreover, s 12GB(6) can reasonably be seen to be a provision which endeavours to strike a balance between competing interests: the interest of facilitating prosecutions in respect of contraventions of the ASIC Act, and the interest of persons suspected of contravening the ASIC Act being investigated and prosecuted in a timely fashion. 108 The identification of the underlying purpose of the ASIC Act does not, in all the circumstances, greatly assist in construing s 12GB(6). The prosecutor's resort to the general legislative purpose of the ASIC Act also tends to ignore both the apparent purpose of s 12GB(6) and the text of that provision. 109 The prosecutor similarly relied on the fact that pt 2 of the ASIC Act was remedial or beneficial legislation and as such should "receive as generous a construction as the actual language of [the provision in question] permits": Legal Services Board v Gillespie-Jones (2013) 249 CLR 493 at [50] (French CJ, Hayne, Crennan and Kiefel JJ). That argument, however, tends to ignore the fact that s 12GB of the ASIC Act could equally be described as a penal provision. Where a penal provision is ambiguous, the provision should generally be construed in favour of the subject, though this has been described as a rule of last resort: Beckwith v The Queen (1976) 135 CLR 569 at 576. 110 Like the prosecutor's resort to the general purpose of pt 2 of the ASIC Act, resort to the fact that pt 2 of the ASIC Act may generally be characterised as beneficial or remedial has its limits. It provides only very limited assistance to the prosecutor's proposed construction of the provision in all the circumstances. The prosecutor concedes that s 12GB(6) imposes a time limit for the commencement of prosecutions in certain cases or circumstances.

[20]

Authorities in respect of similarly worded provisions 111 As already noted, the prosecutor relied on the decisions in Oates, Parker and Seeto, as well as some brief observations made at first instance in Sadie Ville and on appeal in Deloitte Touche Tohmatsu. The primary judge was of the view that those decisions were distinguishable and did not materially assist the prosecutor's arguments: J [68]-[88]. Her Honour was right to so conclude. 112 The key decision for the purposes of this appeal is the decision of the High Court in Oates. The central issue in Oates concerned the proper construction of s 1316 of The Corporations Law (incorporated into s 82 of the Corporations Act 1989 (Cth)), which provided as follows: 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 other time. 113 It may immediately be observed that there are some similarities, and some differences, between the provision in question in Oates and the provision in issue in this case. The main similarity is that both provisions provided that a prosecution "may be" instituted or commenced "within" a certain specified period. The main difference is that s 1316 commenced with the words "[d]espite anything in any other law". Of more significance is the fact that the legislative history and mischief to which s 1316 of the Corporations Law was directed was significantly different to the legislative history and apparent purpose in issue in this proceeding. So much is apparent from the reasoning in Oates. 114 In Oates, the Australian Securities Commission (ASC) had instituted proceedings against certain persons for indictable offences under the Companies (Western Australia) Code which, for reasons it is unnecessary for present purposes to address, were taken to be proceedings for offences against the Corporations Law. Those proceedings had been instituted more than five years after the acts or omissions alleged to constitute the offences. The ASC had obtained the Minister's consent, however there was an issue as to whether the accused had been afforded procedural fairness in respect of the Minister's decision to give his consent. The High Court effectively sidestepped that issue by holding that the Minister's consent to the institution of the proceedings was not required in any event. 115 The High Court's conclusion that the Minister's consent was not required in the circumstances of the case turned on its detailed consideration of the legislative history and complex legislative scheme for prosecutions of the type in question, as well as the "mischief" to which s 1316 of the Corporations Law was obviously directed. That mischief was that, were it not for s 1316 making "other provision", s 20 of the Justices Act 1902 (WA) would have applied, with the result that numerous offence provisions in the Code which were punishable on "summary conviction" could not have been prosecuted in Western Australia unless a prosecution was commenced within a 12-month period specified in the Justices Act (WA). There was no such time limitation in respect of offences punishable on indictment. To make matters worse, were it not for s 1316, different state laws relating to limitation periods would also otherwise have applied in the case of prosecutions for offences in legislation equivalent to the Code in the other states. Section 1316 was intended to remove the perceived mischief in respect of the summary prosecution of offences in Western Australia and the other states. 116 It was essentially that consideration that led the High Court to accept the argument that s 1316 was "facultative rather than restrictive in character and [did] not impose any special limitation upon the period within which all prosecutions, whether conducted summarily or on indictment, must be commenced": Oates at [9]. Section 1316 therefore did not impose any limitation period in respect of the indictable offences with which the accused had been charged, those offences being offences which were not otherwise the subject of any limitation period under Western Australian law. 117 It may be accepted that the decision in Oates provides some support for the prosecutor's contentions concerning the proper construction of s 12GB(6) of the ASIC Act. That support is, however, quite limited. That is because the question of construction in Oates concerned a different provision within a different legislative scheme (involving both Commonwealth and state legislation), with a different legislative history to the provision in question in this case. The fact that the provision in issue in Oates commenced with the words "[d]espite anything in any other law" is significant. There could be little doubt that the High Court's reasons in Oates hinged to some extent on those words. The fact that s 12GB(6) might, as the prosecutor contended, bear a "family resemblance" to s 1316 of the Corporations Law tends to obscure and minimise the material differences in the text, context and legislative history of the two provisions. 118 Perhaps most significantly, the perceived mischief to which the provision in Oates was concerned was also materially different to the mischief to which s 79(6) of the Trade Practices Act was directed. As has already been discussed at length, s 79(6) was intended to simply extend the limitation period for all offences under Part V of the Trade Practices Act from 12 months (the limitation period that would otherwise apply by virtue of the general provision in the Crimes Act) to three years. While it could perhaps be said that s 79(6) was facultative, at least to the extent that it resulted in an extension to the limitation period that would otherwise apply, unlike the provision considered in Oates, it is tolerably clear that it was also intended to be restrictive in the sense that it nonetheless imposed a "hard" limitation period. There is nothing to suggest that the legislative intention was any different when s 12GB(6) was inserted into the ASIC Act, in effectively identical terms in respect of offences under s 12GB(1) of that Act. 119 The next decision to consider is the decision of Simpson J in the Supreme Court of New South Wales in Parker. 120 Parker concerned, in part, the proper construction of s 249 of the Customs Act 1901 (Cth) which provided as follows: Customs prosecutions may be instituted at any time within 5 years after the cause thereof. 121 It can be seen that s 249 of the Customs Act bears some similarities to s 12GB(6) of the ASIC Act. The accused in Parker had been charged with certain offences under the Customs Act, which he argued had been commenced more than five years after "the cause". He argued that the charges were statute barred by reason of s 249 of the Customs Act. Simpson J rejected that argument and held, in effect, that s 249 of the Customs Act did not impose a limitation period. 122 It is tolerably clear that, in concluding that s 249 did not impose a limitation period, Simpson J simply followed the reasoning in Oates, albeit "[s]omewhat hesitantly": Parker at [64]. Her Honour noted that the "procedural rules" of the state and territory courts in which customs offences were prosecuted applied to customs-related prosecutions. Her Honour deduced that "the purport of s 249 was to exclude and extend any limitation period of less than five years imposed by general provisions applicable to the court in which the prosecution was instituted": Parker at [65]. Her Honour did not identify any such limitation periods or explain how they might in fact apply to prosecutions for customs offences, in particular in light of s 15B of the Crimes Act. In any event, Simpson J concluded 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": Parker at [66]. 123 Her Honour also appears to have considered it to be significant that "[t]he section was not framed in the language of mandate in which one would expect a section imposing a statutory bar would be framed": Parker at [65]. 124 It might again be accepted that Parker provides some support for the prosecutor's contentions concerning the construction of s 12GB(6) of the ASIC Act. That said, Parker again concerned a different statutory provision in a different legislative scheme, with a different legislative history. 125 Moreover, with the greatest respect to Simpson J, her Honour's reasoning is far from comprehensive or persuasive. Even if it were to be accepted on the basis of her Honour's very limited description of the relevant statutory context and history that s 249 of the Customs Act was intended to "exclude and extend" any (unidentified) state or territory "procedural rules of the court" that might have imposed limitation periods in respect of the prosecution of customs offences, her Honour did not explain why s 249 should not be construed as extending any shorter applicable limitation periods to a limitation period of five years. Her Honour appears to have concluded, based simply on the reasoning in Oates and the absence of any "language of mandate", that the effect of s 249 of the Customs Act was that there was no limitation period in respect of the commencement of any customs prosecutions. What, then, was the purpose of specifying a five-year period in the section? 126 The next case to consider is Seeto, a decision of the New South Wales Court of Criminal Appeal 127 Seeto concerned the prosecution on indictment of two accused persons for offences under s 200(1) and (2) of the Police Act 1990 (NSW). Offences under s 200 of the Police Act were originally summary offences. Summary offences in New South Wales were generally subject s 56 of the Justices Act 1902 (NSW), which provided for a six-month limitation period. Section 200(3) of the Police Act, however, provided that "[p]roceedings for an offence against this section may be taken within 2 years after the act or omission alleged to constitute the offence". It appeared to be accepted that the purpose of s 200(3) of the Police Act was to extend the limitation period for offences under s 200(1) and (2) from six months - being the period which would otherwise apply by reason of s 56 of the Justices Act (NSW) - to two years. 128 The Police Act was, however, subsequently amended by the insertion of s 200(4), which provided that offences contrary to s 200 were indictable offences. There was no general time limit for the commencement of indictable offences in New South Wales other than as specifically provided by statute. The proceedings commenced against the accused in Seeto were commenced more than two years after the acts or omissions alleged to constitute the offences in question. The accused argued that the prosecution was statute barred by reason of s 200(3) of the Police Act. 129 Price J (with whom Giles JA and Rothman J agreed) held that the offences were not statute barred. His Honour considered that s 200(3) was originally facultative, in that it operated, and was intended to operate, to extend the limitation period which would otherwise apply to a summary offence under s 200(1) by reason of the general provision in the Justices Act (NSW). More significantly, his Honour concluded that s 200(3) "remained facultative and not restrictive" after s 200(4) was inserted and offence against s 200 became indictable offences and that s 200(3) "did not operate to impose a time limit upon offences which were dealt with upon indictment": Seeto at [40]. As the charges against the accused were prosecuted on indictment, the two-year time limitation did not apply: Seeto at [43]. Price J also considered (at [34] and [44]) that it was of some significance that s 200(3) used the word "may", as opposed to words of "command", and that the decision in Oates provided some support for the conclusion his Honour had reached. 130 It may be accepted that the provision which was construed in Seeto was in similar terms to s 12GB(6) of the ASIC Act. Once again, however, the wider legislative scheme and legislative history were materially different to that under consideration in this case. What appeared to be particularly significant in Seeto, if not determinative, was that the legislative history and context revealed that s 200(3) was intended to impose a limitation period only in respect of summary prosecutions, which would otherwise be subject to a significantly shorter limitation period, and was never intended to impose a limitation period in respect of prosecutions on indictment. 131 In contrast, as discussed in detail earlier, the legislative history and context in this case reveals that s 79(6) of the Trade Practices Act operated, and was intended to operate, to extend the limitation period applicable to all offences under Part V of the Trade Practices Act from 12 months (being the period that would otherwise then apply by reason of s 21 of the Crimes Act) to three years. There is nothing to suggest any different legislative intention when s 12GB(6) was later inserted, in relevantly similar terms, into the ASIC Act. 132 It remains to briefly consider the observations concerning s 12GB(6) in Sadie Ville and Deloitte Touche Tohmatsu. As for what was said by Moshinsky J at first instance in Sadie Ville, it suffices to note that his Honour simply observed (at [109]) that, having regard to the decisions in Oates, Parker and Seeto, it was "at least arguable" that s 12GB(6) was facultative and not restrictive. It is readily apparent that his Honour's observations concerning s 12GB(6) were qualified and provisional, and that the proper construction of s 12GB(6) was not a major issue in the case. 133 Much the same can be said concerning a similar observation made by Markovic and O'Callaghan JJ in the Full Court in Deloitte Touche Tohmatsu. In the course of finding that s 12GBC(2) imposed a limitation period, their Honours observed (at [248]) that the result of that construction may be that "a similarly worded provision in the same Division of the Act dealing with prosecutions, like s 12GB(6), is to be read differently". As the primary judge in the present case noted (at J [87]), it is clear that the Full Court was not "confronted" with the sorts of arguments that have been put in this matter. It is equally clear that the brief observation by Markovic and O'Callaghan JJ was fairly equivocal and did not form any part of the ratio in that case.

[21]

Conclusion concerning the proper construction of s 12GB(6) 134 The text, context and legislative history of s 12GB(6) of the ASIC Act supports the construction of the provision as creating a limitation period of three years in respect of the prosecution of offences against s 12GB(1) of the ASIC Act. The construction advanced by the prosecutor, which has the provision imposing a limitation period only in circumstances where some other statutory provision would otherwise impose a shorter limitation period, finds little or no support in the text of the provision. In particular, the use of the word "may" provides little support for that construction, particularly when the provision is read in its statutory context and in light of the legislative history. It does not suggest that the three-year time period specified in s 12GB(6) is somehow merely optional or discretionary. 135 The legislative history reveals that s 12GB(6) has its origins in s 79(6) of the Trade Practices Act. The apparent purpose of s 79(6) was to provide a three-year limitation period for the prosecution of offences against s 79(1) of the Trade Practices Act in circumstances where the limitation period that would otherwise apply, by virtue the general limitation provision in s 21 of the Crimes Act, was one year. The limitation period of three years was a "hard" limitation period that applied to the prosecution of all offences against s 79(1) of the Trade Practices Act. There was nothing in the text, context or extrinsic material relevant to s 79(6) which suggested that the three-year limitation period was only intended to apply in circumstances where a shorter time period specified in other legislation would otherwise apply, or would not apply if a longer period would otherwise apply. 136 Section 79(6) of the Trade Practices Act was not amended when s 15B of the Crimes Act (which replaced s 21) was amended to provide longer limitation periods, particularly in relation to the prosecution of corporations. Nor were any changes made when s 79(6) of the Trade Practices Act was essentially transplanted or replicated in s 12GB(6) of the ASIC Act. If that was a result of legislative oversight, it is an oversight that should be corrected by the legislature, not by the Court giving a strained meaning to the provision. 137 None of the contextual considerations relied on by the prosecutor provide a sound basis for the construction advocated by her. Nor do the authorities in respect of different limitation provisions in other statutory schemes with different legislative histories.

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