Christian v Sawka - [2011] WASC 100

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: CHRISTIAN -v- SAWKA [2011] WASC 100

CORAM: JENKINS J

HEARD: 12 NOVEMBER 2010

DELIVERED : 15 APRIL 2011

FILE NO/S: SJA 1036 of 2010

BETWEEN: CRAIG ANTHONY CHRISTIAN
Appellant
AND
PAUL WILSON SAWKA
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE S R MALLEY
File No  :PE 24672 of 2009

Catchwords:

Criminal law - Appeal - Moving physical currency of not less than $10,000 out of Australia without a report having been given - Whether proof that an approved form of report exists is an element of the offence

Criminal law - Appeal - Moving physical currency of not less than $10,000 out of Australia without a report having been given - Meaning of 'in his or her baggage'

Legislation:

Acts Interpretation Act 1901 (Cth), s 15A
Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth), s 3, s 5, s 53(1), s 53(1)(c), s 53(2), s 53(8), s 53(8)(b), s 54, s 57, s 57(3)
Anti-Money Laundering and Counter-Terrorism Financing Rules 2006 (Cth)
Anti-Money Laundering and Counter-Terrorism Financing Rules Amendment Instrument 2007 (No 1) (Cth)
Anti-Money Laundering and Counter-Terrorism Financing Rules Amendment Instrument 2008 (No 7) (Cth)
Criminal Code Act 1995 (Cth), s 4.3, s 6.1(2), div 400
Income Tax Assessment Act 1936 (Cth), s 162(1)
Taxation Administration Act 1953 (Cth), s 8C(1)

Result:

Appeal dismissed

Category: A

Representation:

Counsel:

Appellant: Mr S A Shirrefs
Respondent: Mr A L Troy

Solicitors:

Appellant: Talbot Olivier
Respondent: Director of Public Prosecutions (Cth)

Case(s) referred to in judgment(s):

Collector of Customs (NSW) v Southern Shipping Co Ltd [1962] HCA 20; (1962) 107 CLR 279
Director of Public Prosecutions (Cth) v Buckett [2005] 1 Qd R 20
Ingram v Ingram (1938) 38 SR (NSW) 407
Knaggs v Commonwealth Director of Public Prosecutions [2003] NSWSC 3
Lacey v Attorney‑General of Queensland [2011] HCA 10
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
Victoria v The Commonwealth [1975] HCA 39; (1975) 134 CLR 81

JENKINS J: On 12 March 2010 the appellant was convicted in the Magistrates Court at Perth of moving physical currency of not less than $10,000 out of Australia without a report in respect to the transfer having been given in accordance with the Anti‑Money Laundering and Counter‑Terrorism Financing Act 2006 (Cth) (the Act) s 53. He appeals his conviction.

Grounds of appeal

The grounds of appeal are:
1.The Primary Court made an error of law in finding that, pursuant to s.53 of the Anti‑Money Laundering and Counter Terrorism Financing Act 2006, it was not necessary for the prosecution to prove that a report, in the approved form and containing such information relating to the matter being reported as specified in the AML/CTF Rules, was in existence at all material times and available to the Appellant for completion at the relevant time.
2.The Primary Court made an error of law and fact in finding that, pursuant to s.53 of the Anti‑Money Laundering and Counter Terrorism Financing Act 2006, that it was sufficient to rely upon the intent of the Appellant in relation to his completion of [an] Outgoing Passenger Card, to make out the offence as charged.
3.[Abandoned].
4.The Primary Court made an error of law and fact in finding that, pursuant to s.57 of the Anti‑Money Laundering and Counter Terrorism Financing Act 2006, the physical currency was actually in the Appellant's baggage at the relevant time.

The charge

The appellant was charged with an offence under the Act s 53(1) which alleged that on 23 December 2008 at the Perth International Airport in the State of Western Australia he:
Moved physical currency of not less than $10,000, namely $187,600 out of Australia without a report in respect to the said transfer having been given in accordance with s53 of [the Act].
The appellant pleaded not guilty and he was tried on 11 March 2010.
At the close of the prosecution evidence, defence counsel made a no case to answer submission. The magistrate found that the appellant had a case to answer. The appellant then elected not to call any evidence. After hearing submissions from counsel, the magistrate delivered ex tempore reasons for decision.

Summary of undisputed evidence and findings

On the morning of 23 December 2008 the appellant, his wife and young child were at the Perth International Airport intending to fly to Bali. They had three suitcases, which they checked in, and carry‑on bags. At approximately 7.34 am they approached customs officer John O'Sullivan in the embarkation area with their passports, outgoing passenger cards and boarding passes. Mr O'Sullivan pointed out to the appellant and his wife that at least one of the outgoing passenger cards was incomplete as it did not have a tick in either the 'yes' or 'no' box alongside the question on the back of the outgoing passenger card which asked:
Are you taking out of Australia AUD $10,000 or more in Australian or foreign currency equivalent? If answered 'yes' you must complete an International Currency Transfer Report to present with this card.
Mr O'Sullivan handed back the outgoing passenger card or cards and the appellant ticked the 'no' box. Mr O'Sullivan then referred the travelling group to customs officer Raymond Fisher who escorted the appellant to an interview room. Mr Fisher told the appellant that he was going to carry out a 'quick search' and asked if he (the appellant) was carrying any cash. The appellant put his partially open backpack onto the bench. Mr Fisher completely opened it. The appellant pulled out a quantity of cash and said:
There's $30,000 there, 10 for myself, 10 for my son and 10 for my girlfriend, split between us so I don't need to declare it (ts 11/3/10 page 22).
Earlier, the appellant's family's three checked‑in suitcases had been removed by customs officer Nathan Sullivan from the conveyor belt in the baggage area. Mr Fisher took the three bags to a CCTV camera bench area where they were placed under a camera. After a conversation with another or others, at about 7.30 am he inspected the bags. The final bag he searched was a pink, hard sided suitcase. Inside the pink suitcase Mr Fisher saw a layer of clothing. Underneath the layer of clothing he saw a towel which was wrapped around or was inside a plastic sleeve. Inside the plastic sleeve was a quantity of cash. The physical inspection of the contents of the suitcases only took about four minutes. The three suitcases were then closed with their contents inside of them and they were taken to the interview room in which the appellant was waiting.
In addition to the cash wrapped in the towel there were two other quantities of cash in the pink suitcase. Each quantity was wrapped in Christmas wrapping paper. At least one of these quantities of cash was sandwiched between other items wrapped in the Christmas gift wrapping. There was $144,250 in Australian dollars inside the pink suitcase and $43,350 in the appellant's carry‑on bag.
When interviewed, the appellant said that he owned the three suitcases, the items in the pink suitcase were his, he had packed the pink suitcase, he had completed the outgoing passenger cards, he knew that he was required to declare the money, he owned the money which he had won at the casino and he intended to give it as gifts to friends and to poor children in Bali.
Mr O'Sullivan produced in evidence a form (exhibit C) which he said was 'an example of the report that would need to be filled in should a person tick "yes" on the outgoing passenger card' (ts 12). No other form was produced, nor was there any evidence that as at 23 December 2008 any other form existed. Thus, there was evidence that a form existed as at that date but, except to the extent that it was open to be inferred, there was no evidence that the form had been approved under the Act.

The magistrate's reasons for decision

The magistrate's reasons for decision dealt with a number of issues which are not relevant on appeal. Relevant to the first and second grounds of appeal, the magistrate held that as the appellant had answered 'no' to the question of whether he was carrying more than $10,000 it would be 'rather absurd' in the circumstances to suggest that the prosecution had failed to prove that the report had not been given in the proper form. Although the appellant had later given a statement to the police to the effect that he intended to take more than $10,000 out of Australia, the magistrate said that it was clear that no declaration for that amount had been given.
Relevant to the first ground of appeal his Honour also found that once the appellant had gone past Mr O'Sullivan without declaring the money, the issue of the nature of the report was irrelevant.
Relevant to the fourth ground of appeal the magistrate said that:
Potentially the money had been taken out of the case as part of the search and was therefore not his at the relevant time. In my view, this is simply, I would say, clutching at straws. At the relevant time it was out of his control. It had been lodged and sent down for putting on the plane. He had lodged it. He had gone to the modules. The fact is that the money at all relevant times was attached to the bag. It is clear that if there was nothing found, then it simply would not have been brought up (ts 12/3/10, page 22).

Ground 1

The appellant submits that in order to prove an offence under the Act s 53(1), relevantly, the prosecution must prove:
(i)the accused took physical currency into the embarkation area and/or had physical currency in his or her baggage which in aggregate was $10,000 or more;
(ii)that there existed at the relevant time a report that complied with the Act s 53(8); and
(iii)the accused did not give such a report containing the specified information to the customs officer as soon as he or she reached the place at which the customs officers examined passports.
The respondent accepts that the prosecution did not adduce evidence that on 23 December 2008 a report existed that complied with the Act s 53(8) or that such a report was available to the appellant to be completed at any relevant time. However, the respondent says that it was unnecessary for him to prove that an approved report form was in existence or available to the appellant.
Ground 1 does not succeed because, in my opinion, the second element referred to above is not an element of the offence.

Statutory framework

In order to resolve this ground of appeal it is necessary to consider the statutory framework.
Relevantly, the Act s 53 provides:
(1)A person commits an offence if:
(a)either:
…; or
(ii)the person moves physical currency out of Australia; and
(b)the total amount of the physical currency is not less than $10,000; and
(c)a report in respect of the movement has not been given in accordance with this section.
Penalty: Imprisonment for 2 years or 500 penalty units, or both.
(2)Strict liability applies to paragraph (1)(c).
…
(8)A report under this section must:
(a)be in the approved form; and
(b)contain such information relating to the matter being reported as is specified in the AML/CTF Rules; and
(c)be given to the AUSTRAC CEO, a customs officer or a police officer; and
(d)comply with the applicable timing rule in subsection 54(1).
The Act s 5 provides that 'approved' means approved by the AUSTRAC CEO, in writing, for the purposes of the provision in which the term occurs.
The Act s 57 sets out the two situations in which a person is said to move physical currency out of Australia. Those two situations are if the person takes or sends the physical currency out of Australia. Section 57(3) effectively deems certain activities to constitute movement of physical currency out of Australia. Relevantly, s 57(3) provides that for the purposes of the Act, a person is taken to have moved the physical currency out of Australia if a person:
(a)arranges to leave Australia on an aircraft … ; and
(b)for the purpose of leaving Australia, goes towards an aircraft … through an embarkation area; and
(c)either:
(i)takes physical currency into the embarkation area; or
(ii)has physical currency in his or her … baggage; and
(d)does not give a report about the physical currency when at the place in the embarkation area at which customs officers examine passports.
Relevantly, the Act s 54 provides that the applicable timing rule for the movement of physical currency out of Australia which is to be effected by a person taking the physical currency out of Australia with the person on an aircraft and where the person, before embarking, goes to a place at which customs officers examine passports, is as soon as the person reaches that place.
The history of the AML/CTF rules referred to in the Act s 53(8) is as follows. The Anti‑Money Laundering and Counter‑Terrorism Financing Rules 2006 (Cth) (the 2006 Rules), made by the then AUSTRAC CEO, came into force on 13 December 2006. The 2006 Rules provided that for the purposes of the Act s 53(8)(b) a report in respect of a movement of physical currency into or out of Australia had to contain specified information. The 2006 Rules did not contain an approved form for the report.
On 8 December 2008 the then AUSTRAC CEO, made the Anti‑Money Laundering and Counter‑Terrorism Financing Rules Amendment Instrument 2008 (No 7) (Cth) (the 2008 Rules). The 2008 Rules repealed the 2006 Rules and amended the Anti‑Money Laundering and Counter‑Terrorism Financing Rules Amendment Instrument 2007 (No 1) (Cth) (the 2007 Rules) by inserting ch 24 which provides that for the purposes of the Act s 53(8)(b) a report in respect of movement of physical currency into or out of Australia must contain specified information. The specified information in the 2006 Rules and the 2008 Rules is substantially the same. At no time have the 2007 Rules or the 2008 Rules contained an approved form for the purpose of s 53(8). The explanatory statement to the 2008 Rules states that the purpose of the 2008 Rules was to consolidate relevant instruments into one document. The notes in the explanatory statement say that the 2008 Rules amend the 2007 Rules so as to include the 2006 Rules in the 2007 Rules.
Exhibit C has a heading of 'Cross‑Border Movement ‑ Physical Currency $10,000 or more' and it appears to be an official Australian government and AUSTRAC form. For example, it contains the Australian coat of arms and has the words 'Australian Government' and 'AUSTRAC' printed on it. However, it does not contain any statement that it has been approved by the AUSTRAC CEO, pursuant to the Act. It contains boxes in which the specified information in the Rules may be inserted. It also states that it is 'CBM‑PC(C) ‑ Form 53 (DEC2006)'.
Taking into account the statutory meaning in s 53(8) of 'report', the third element of the offence requires the prosecution to prove that an accused who moves currency out of Australia on an aircraft has not given a report in the approved form containing the information specified in the rules made under the Act to the AUSTRAC CEO, a customs officer or a police officer, relevantly, as soon as the accused goes to a place at which customs officers examine passports before the accused is to embark on the aircraft.
If there was evidence that an accused made some form of a report or gave some specified information or a report to a person the prosecution would need to prove that the report made, the information given or the person to whom the report or information was given was not the report, information or person, respectively, specified in the Act or Rules.
However, this was not such a case. The appellant, by his own admission, did not make any form of report or give any information to any person at or prior to the applicable time. In those circumstances, was it incumbent on the prosecution to prove that it was possible to provide a report in compliance with s 53(1) and (8)? Another way of looking at the issue is to ask, if the magistrate was satisfied that there was no form of report approved by the AUSTRAC CEO, would the appellant nevertheless have been guilty of the offence because he moved more than $10,000 out of Australia without, on his own admission, giving a report containing specified information to any person?

Relevant principles of construction

In determining the meaning of s 53 it is necessary to apply the principles from Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 in which the majority of the High Court said:
However, the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of the legislative provision to be read in a way that does not correspond with the literal or grammatical meaning [78]. (footnote omitted)
The Acts Interpretation Act 1901 (Cth) s 15A provides that in the interpretation of a provision of an Act, a construction that would promote the purpose or object underlying the Act (whether that person or objective is expressly stated in the Act or not) shall be preferred to a construction that would not promote that person or object. The task of a court under s 15A is to seek to discover the underlying purpose or object of the provision in question and, if possible, to adopt the interpretation of that provision that furthers the purpose or object rather than the interpretation that would not promote that purpose or object.
In Project Blue Sky, after referring to 'the canons of construction' the majority, by footnote, referred to an example of such a canon which was the presumption that, in the absence of unmistakeable and unambiguous language, the legislature has not intended to interfere with basic rights, freedoms or immunities (the principle of legality). See also Lacey v Attorney‑General of Queensland [2011] HCA 10 [43].

Construction of s 53

The appellant asserts that s 53 should be construed as implying a duty on a person moving more than $10,000 in physical currency out of Australia to give a report in accordance with s 53 but if there is no proof that there is an approved form of report there is no proof that he or she failed to comply with that duty. In other words, the implied duty in s 53 is to give a report only if there is an approved form in which to give it. This is only another way of saying that the offence in s 53 is not committed if it was impossible to comply with the reporting conditions and that the onus is on the prosecution to prove that it was possible to comply with the section.
The issue of construction is not simple but, in the end, I do not favour this interpretation of s 53.
The phrase 'has not been given' in s 53 connotes an objective criterion. Either something has been given or it has not been given. The legislature could have used words which more readily lent themselves to an interpretation which required proof that an approved form of report existed and the person had not given a report due to some fault, recklessness or negligence on their behalf. For example, courts have sometimes interpreted a requirement that a person be proved to have 'failed' to do something as requiring proof of an omission to do something by reason of some 'carelessness or delinquency'. In those circumstances, proof of an omission caused by impossibility for which the person in question is not responsible has been insufficient to prove the matter in issue: Ingram v Ingram (1938) 38 SR (NSW) 407, 410.

However, it has been said that in respect of 'fails' '[n]either in point of law nor of English usage is there a general preference for one sense over the other': Victoria v The Commonwealth [1975] HCA 39; (1975) 134 CLR 81 [13] (Mason J). Whereas I struggle to see that the same could be said of the phrase 'has not been given'. Either a report has or has not been handed over, rendered or transferred. It is difficult to interpret the phrase as meaning anything other than the omission to give a report in accordance with the section, irrespective of the reason which may have existed for the omission.
This view is bolstered by s 53(2) which provides that s 53(1)(c) is a strict liability provision. To understand the meaning of s 53(2) it is necessary to have regard to the Criminal Code Act 1995 (Cth) (the Code) s 6.1(2) which provides that:
(2)If a law that creates an offence provides that strict liability applies to a particular physical element of the offence:
(a)there are no fault elements for that physical element; and
(b)the defence of mistake of fact under section 9.2 is available in relation to that physical element.
(3)The existence of strict liability does not make any other defence unavailable.
The Code, s 4.3 provides that an omission to perform an act can only be a physical element if the law creating the offence makes it so. There is no doubt that the Act s 53 makes not giving a report in accordance with s 53 a physical element of an offence under s 53. Section 5.1 provides that a fault element for a physical element may be intention, knowledge, recklessness or negligence. The effect of the Act s 53(2) and the Code s 6.1 is that proof of not giving a report in accordance with s 53 does not require proof that an accused had any of the specified fault elements. That is, relevant to this case, it did not require proof that the appellant intentionally did not give the report, recklessly did not give the report or negligently did not give the report. The respondent was simply required to prove that the appellant did not give the report in accordance with the section. However, mistake of fact was still available to the appellant. This means that if the appellant had given a completed exhibit C to a customs officer in the honest and reasonable belief that the AUSTRAC CEO had approved its form he would not have been guilty of the offence, even if that belief was mistaken.
The appellant relies on Knaggs v Commonwealth Director of Public Prosecutions [2003] NSWSC 3 [16] and [18]. Knaggs was not a decision relating to the Act. Knaggs was charged with failing to furnish an approved form to the Commissioner of Taxation when and as required by a taxation law to do so. Knaggs' obligation to furnish the approved form arose from a taxation law which said that a person must, if required by the Commissioner, give the Commissioner, within the timeframe required and in the approved form, certain information. Adams J of the Supreme Court of New South Wales found that proof of the approval of the Commissioner of the relevant form was an element of the offence [16]. His Honour found that the failure of the prosecution to allege in the information the Commissioner's approval of the relevant form [16] and the failure of the prosecution to prove that the Commissioner had approved the relevant form meant that Knaggs' appeal must succeed.
This is a different case to that of Knaggs. In Knaggs the taxation law imposed a duty on Knaggs to furnish information on an approved form. If Knaggs failed to do so he committed the offence of failing to furnish an approved form. Whereas, in this case the Act did not impose a duty on the appellant to make a report by way of an approved form. What the Act did was to make it an offence to move more than $10,000 out of Australia without giving a report in an approved form.
The distinction between the two situations, although fine, is as follows. If a law imposes a duty on someone to provide information on an approved form and the person is then charged with failing to provide that information then it may be regarded as an element of the offence to prove that there was an approved form; that is, that it was possible in law and fact for the accused to perform the duty.
On the other hand, if a law imposes no obligation on a person to furnish information on an approved form but does say that an offence will be committed if a person does a voluntary act without complying with the condition that he or she provides information on an approved form then, in my view, it is only necessary for the prosecution to prove that the accused did the act without complying with the condition. Proof of the omission to provide the information on an approved form may be proved in a number of different ways but it does not necessarily involve proof that it was legally possible to provide the information. I am of the view that it may be proved by evidence that it was impossible in fact and law to provide the information on such a form.
The rationale for the distinction between the two situations is that if the law places an obligation on a person to do something and makes it an offence for them not to do so, then it would be unfair to hold that the person has committed a criminal offence if compliance with the obligation or duty is an impossibility, this is particularly so if it is an impossibility because of the failure of a public officer to do something, such as to approve a form. In other words, the prosecution must prove that compliance with the duty was legally possible. This principle is summarised in the maxim that the law does not compel an impossibility: Collector of Customs (NSW) v Southern Shipping Co Ltd [1962] HCA 20; (1962) 107 CLR 279, 291. However, I note that in that case Dixon CJ thought that the obligation under consideration was absolute, barring an 'Act of God'.
Whereas, if the law permits a person to do an act on certain conditions and makes it an offence to do that act if those conditions are not met it is, generally speaking, not unfair to hold that the person has committed a criminal offence if they do the act without complying with the conditions, even where compliance with the conditions is an impossibility. In other words, there is an absolute obligation to satisfy the conditions before the act can be lawfully performed. In that situation, it is not unfair to require a person not to act unless certain conditions are met if he or she is not under a duty or obligation to the act. In this case the relevant act is moving more than $10,000 in physical currency out of Australia.
However, I acknowledge that the classification of the statutory provisions which purport to impose duties, a breach of which is punishable by penal sanctions, requires a consideration of the language of the statute, its subject matter, objects and the consequences for persons who may be held to have failed to comply with the duties. If injustice would follow from holding that a person had committed an offence for doing an act without complying with a duty which it was impossible for him to comply with, it will be necessary for the prosecution to prove that compliance was possible. On the other hand, where the law does not impose an obligation on a person to do something but merely conditions the doing of an act then it would generally not be unfair to make the person subject to a criminal sanction for doing the act without complying with the conditions, even where those conditions are a legal impossibility. It is always open to the person in this latter situation simply not to do the act and thereby, avoid criminal liability.
The legality principle must also be considered. The appellant says that the Act should be interpreted in the same way the taxation laws were interpreted in Knaggs because the law does not generally make it an offence for someone to take $10,000 or more in physical currency out of Australia. In other words, he submits that a person has a right to take such a sum of money out of the country as long as he or she complies with the conditions in the Act s 53. He says that Parliament must have intended that it would be possible for a person to comply with those conditions. He submits that the Act s 53 should not be interpreted as interfering with that right.
In my opinion, there is no right to take $10,000 or more in physical currency out of Australia. Relevantly, the Act permits a person to take such sums out of Australia as long as he or she provides an approved report. The appellant did not provide me with any reason why it was so necessary for people to be able to take such sums of physical currency out of Australia on their person or in their baggage that the offence should be construed as requiring proof that it was possible to comply with the statutory conditions for doing so.
The stated objects of the Act include the fulfilment of Australia's obligations to combat money laundering and the financing of terrorism and to address those matters which are said to be 'of international concern': the Act s 3. A note to s 3 says that those objects are achieved by, among other things, requiring information to be given to the AUSTRAC CEO and by allowing certain other agencies to access the information. The Act defines money laundering to mean conduct which amounts to an offence against the Code div 400 or a corresponding offence in another jurisdiction. An offence against div 400 includes offences relating to dealing in proceeds of crime. Dealing in proceeds of crime includes exporting money if it is used in the commission of, or used to facilitate the commission of, an offence against an Australian law.
There is nothing in the Act to indicate that the object of the Act is to hinder or prevent the cross‑border movement of physical currency for legitimate social or business purposes. Nevertheless, it is clear that the objects of the Act cannot be achieved in respect of the cross‑border movement of physical currency unless movements of all significant sums of physical currency are monitored through a reporting process. The construction of s 53 propounded by the appellant would jeopardise the achievement of the objects of the Act as it would mean that a person could take $10,000 or more in physical currency out of Australia without giving a report of any sort, unless there was proof that an approved form of report was inexistence. In my opinion, the achievement of the objects through the reporting process is of such importance that it outweighs any supposed 'right' or interest of an individual to take a large sum of physical currency out of Australia. The Act s 53(1) should be construed accordingly.
Another case referred to by the parties is Director of Public Prosecutions (Cth) v Buckett [2005] 1 Qd R 20. The Queensland Court of Appeal in Buckett found that a magistrate was right to dismiss charges that alleged that a taxpayer had failed to furnish a return of income to the Commissioner when and as required pursuant to a taxation law to do so contrary to the Taxation Administration Act 1953 (Cth) s 8C(1). Section 8C(1) then relevantly provided that a person who refused or failed, when and as required under or pursuant to a taxation law to do so, to furnish a return or any information to the Commissioner or another person to the extent that that person is capable of doing so was guilty of an offence.
The obligation to provide the return arose under the then Income Tax Assessment Act 1936 (Cth) s 162(1) which said that every person shall furnish to the Commissioner if required to do so by him 'in the manner and within the time required by him' a return of income. By notices given pursuant to s 162, the Commissioner required the relevant taxpayers to provide returns for certain years and other information and required the information to be 'in the approved form'. It was common ground that there were no approved forms for the relevant years.
Chesterman J held that s 162(1) did not empower the Commissioner to require taxpayers to furnish information in an approved form. Consequently, his Honour held that the notices did not express a requirement 'under or pursuant to a taxation law' as required by s 8C(1) and s 8C(1) did not make non‑compliance with the notices an offence (page 31, lines 40 ‑ 50).
The reasoning in Buckett does not apply directly to this offence because proof of an offence under s 53 does not depend on proof that the AUSTRAC CEO made a demand for an approved report under or pursuant to his statutory power. The essence of the decision in Buckett is that because proof of the offence required proof that under or pursuant to a statutory power the Commissioner required the taxpayer to do something and that there was a failure to comply with the requirement, the Commissioner's requirement had to be within his statutory power.
For these reasons, ground 1 has not been made out. The magistrate did not err in finding that it was not necessary for the respondent to prove that a report in the approved form and containing such information relating to the matter being reported as specified in the 2008 rules was in existence at all material times and available to the appellant for completion at the relevant time.

Ground 2

Ground 2 is a subset of ground 1. It complains that when dealing with the 'no case' submission the magistrate said that in his opinion, it would be 'absurd' to suggest that the respondent had failed to prove that a report had not been given in the proper form given that the appellant had admitted that he intended to take more than $10,000 in physical currency out of Australia. The appellant submits that the magistrate substituted proof of his (the appellant's) intent for proof that he had not given a report in accordance with s 53. As I have found against the appellant in respect of ground 1, this ground must also fail. The respondent was neither obliged to prove the appellant's intention in regards to the money and neither was he required to prove that an approved form was in existence and available to the respondent at the relevant time. The magistrate's comment about the appellant's intent appears to have been an error but it did not result in a substantial miscarriage of justice.

Ground 4

The appellant submits that s 57(3)(c)(ii) and (d) requires a person to have physical currency in his or her baggage at the time at which he or she is required to give a report at the place in the embarkation area at which customs officers examine passports.
He says that the evidence in the Magistrates Court established that at the time at which he was required to give a report, that is at about 7.34 am, customs officer Sullivan who then had physical custody of the pink suitcase had already removed the three items containing the physical currency from the suitcase and placed them on to a bench. Thus, the appellant submits that at the relevant time there was no physical currency in the pink suitcase or in his baggage.
The appellant concedes that he had more than $40,000 physical currency in his carry‑on luggage. This amount of cash would be sufficient to prove the commission of the offence. However, the exact amount of money that the appellant is convicted in respect of is relevant to both the question of penalty and other related matters.
In dealing with the issue of fact, the magistrate said that 'potentially the money had been taken out of the case as part of the search and was therefore not [the appellant's] at the relevant time' (ts 12/3, page 22). This appears to be commensurate with a finding by the magistrate that he could not be satisfied beyond reasonable doubt that the balance of the cash was physically within the pink suitcase at the time the appellant was standing in front of customs officer O'Sullivan at passport control. I will determine this ground of appeal on this version of the facts.
His Honour said that:
At the relevant time it was out of his control. It had been lodged and sent down for putting on the plane. He had lodged it. He had gone to the module. The fact is that the money at all relevant times was attached to the bag. It is clear that if there was nothing found, then it simply would not have been brought up (ts 12/3, page 22).
It is not clear whether his Honour was referring to the pink suitcase or the money when he referred to 'it' being out of the appellant's control and having been 'sent down for putting on the plane'.
The appellant submits that to prove an offence against s 53 it is not sufficient that the physical currency be 'attached to the bag'. He says that the physical currency is required to be 'in' the person's baggage in accordance with s 57(3)(c)(ii).
The first thing to determine in this case is what the legislature meant by the phrase 'his or her baggage'. 'Baggage' is not defined in the Act. The Shorter Oxford English Dictionary relevantly defines 'baggage' to mean 'bundles, packs; … the collection of property in packages that a traveller takes with him on a journey; luggage'. Relevantly, the Macquarie Dictionary defines baggage to mean 'luggage, especially as for transportation in bulk' and 'any luggage'.
A bag is a receptacle for carrying something. Baggage is a broader term which encompasses not only the receptacle or bag, but also the contents of the bag. In my opinion, it does not matter that the money may have been out of the pink suitcase at the time the appellant approached officer O'Sullivan. In my view, there is no doubt that at that time the physical currency which had been in the suitcase was part of the appellant's baggage, because it was part of his checked in property which he was taking with him to Bali.
The matter can be tested in this way. If the money had never been in the pink suitcase but the appellant had checked it in as a separate item to be placed in the cargo hold of the plane which was to fly him, his family and their checked in property to Bali, it could not be said that it was not part of his baggage because it was not in a suitcase or other travel bag. The physical currency which the appellant checked in, was part of his baggage, whether it was in the pink suitcase or out of it.
Neither did the physical currency cease to be part of the appellant's baggage because it was interfered with by a customs officer. It was still part of his baggage which he had consigned for transportation by air to Bali.
This ground of appeal has not been made out.

Conclusion

For the foregoing reasons, the appeal is dismissed.