Gebrehiwot v McCutcheon
[2020] VSC 109
•11 March 2020
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2019 03976
| TADDIS GEBREHIWOT | Appellant |
| and | |
| TATE McCUTCHEON and BRETT BUTTERWORTH | First Respondent Second Respondent |
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JUDGE: | KENNEDY J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 17 February 2020 |
DATE OF JUDGMENT: | 11 March 2020 |
CASE MAY BE CITED AS: | Gebrehiwot v McCutcheon |
MEDIUM NEUTRAL CITATION: | [2020] VSC 109 |
JUDICIAL REVIEW AND APPEALS – Appeal from Magistrates’ Court pursuant to s 272(1) of Criminal Procedure Act2009 (Vic) – Decision of Fines Victoria to cancel enforcement of an infringement notice following review – Written notice of cancellation served on Victoria police – Decision of Victoria Police to commence proceedings – Whether proceedings commenced within applicable time limit under ss 38 and 39 of the Fines Reform Act2014 (Vic) – Appellant’s construction gives no practical effect to s 39 – Proceeding commenced within time – Appeal dismissed – R v A2 (2019) 93 ALJR 1106; Project Blue Sky Incv Australian Broadcasting Authority (1998) 194 CLR 355 applied.
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APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Kathleen Foley | Victoria Legal Aid |
| Joel Tito | ||
| For the Respondents | Helen Spowart | Victoria Police |
HER HONOUR:
Mr Taddis Gebrehiwot (‘the appellant’) seeks to appeal orders made in the Magistrates’ Court of Victoria on 5 August 2019 on a question of law pursuant to s 272 of the Criminal Procedure Act2009 (Vic) (‘CPA’).
The question of law raised is whether charges brought against the appellant were brought within the statutory time limit imposed by the Fines Reform Act 2014 (Vic) (‘FRA’). In particular, the proceeding raises a construction question arising from the interaction between ss 38 and 39 of that Act.[1]
[1]An earlier submission that the appeal was out of time was not maintained. See Respondent’s Outline of Submissions, 9 December 2019, 3 [24].
The grounds relied upon by the appellant are as follows:
1.The Magistrates’ Court misdirected itself and erred in its construction of s 38(1) of the FRA by concluding that s 38(1)(a) of the FRA requires an enforcement agency to decide to do one of things listed in s 38(1)(a)(i)-(iii) and notify the appellant of their decision within 90 days;
2.The Magistrates’ Court misdirected itself and erred in its construction of s 39(1) of the FRA by concluding that s 39(1) extends the statutory timeframe within which an enforcement agency may bring proceedings for an alleged offence by six months after the date of service of a notice of enforcement cancellation given under s 37(2)(b) of the FRA; and
3.The Magistrates’ Court erred in concluding, based on its erroneous construction of ss 38(1) and 39(1) of the FRA as set out in grounds 1 and 2, that the charges against the appellant were brought within the statutory time limit imposed by the FRA.
However, as fairly acknowledged by the appellant, the single question to be resolved was: what was the applicable time limit to commence a proceeding after service of notice of an enforcement cancellation under s 37(2)(b)(ii) of the FRA?
Background
On 8 August 2013 the appellant was issued with an infringement notice by the first respondent for the offence of behaving in an offensive manner in a public place.
On 11 August 2013 the appellant was issued with an infringement notice by the second respondent for the offence of being drunk and disorderly in a public place.
On 29 November 2017 the appellant made an application for what was then called revocation pursuant to s 65(1)(c) of the Infringements Act 2006 (Vic) (‘IA’). The application was a ‘special circumstances’ application made on the basis of homelessness, mental health issues, and alcohol and substance abuse. As that application had not yet been assessed when the FRA came into full effect on 31 December 2017,[2] the application was thereafter considered by the Director of Fines Victoria (‘Director’) as an enforcement review application made pursuant to s 32(1)(b) of the FRA.
[2]Victoria, Gazette: Special, No S 443, 19 December 2017, 1.
By notice dated 16 August 2018 Fines Victoria served Victoria Police with notice of enforcement cancellation under s 37(2)(b)(ii) on the basis that special circumstances had been found to apply (‘the relevant notice’).
On 17 August 2018 Fines Victoria notified the appellant via his then-solicitors, Inner Melbourne Community Legal, that enforcement of the appellant’s fines would be cancelled.
On 12 October 2018 Victoria Police sent two letters to the appellant, courtesy of Inner Melbourne Community Legal, to notify him under s 38(1)(b) that the infringement notices issued to him by the first and second respondents (‘respondents’) had been withdrawn, and that court proceedings would be instituted against him.
The charge sheets in respect of the two summary offences were then signed and filed on 26 November 2018 and 28 December 2018. This was outside the 90 day period from the date of the relevant notice (referred to in s 38(1)(a)(iii)) but within the time period of six months after the date of service of the relevant notice (referred to in s 39(1)).
Submissions were made to the Magistrate on 17 May 2019 in relation to this issue. She ruled that the charges were brought within the requisite statutory timeframe of six months and provided formal reasons for this decision on 5 July 2019 (‘the Reasons’).[3]
[3]Victoria Police v Gebrehiwot (Melbourne Magistrates Court, Magistrate MacCallum, 5 July 2019) (‘The Reasons’).
Subsequent to that ruling, the appellant entered pleas of guilty.
On 5 August 2019, a Judicial Registrar then found the matters proven but dismissed them under s 76 of the Sentencing Act 1991 (Vic).
Statutory provisions[4]
[4]These are based on version 16 which Counsel agreed was correct for the relevant provisions in this case: Transcript of Proceeding, 17 February 2020, 13.
The FRA provided for the appointment of the Director to provide for the collection and enforcement of infringement fines and court fines to replace the Infringements Court.
The Explanatory Memorandum to the Fines Reform Bill 2014 (‘the 2014 Explanatory Memorandum’) relevantly provided:[5]
The Bill will underpin a streamlined administrative system with uniform processes for the collection and enforcement of fines in Victoria. It will allow for the introduction of consistent and efficient processes for the management of court and infringement fines, and will improve the accessibility of that service for the community.
[5]Consideration may be given to such extrinsic materials under s 35 of the Interpretation of Legislation Act1984 (Vic).
As highlighted by the appellant, the new regime also created an ‘opt-in process’ wherein the enforcement agency needed to actually make a decision to prosecute a matter if the Director determined that enforcement using the administrative model was not appropriate.[6] This was to help ensure that only matters that should be prosecuted entered the court system.[7]
[6]Victoria, Parliamentary Debates, House of Assembly, 8 May 2014, 1555 (Ms Asher).
[7]Ibid.
Section 1 of the FRA sets out the Act’s ‘main purposes’ as follows:
1 Purposes
(a)to provide for the appointment, powers and functions of the Director, Fines Victoria; and
(b)to provide for the collection of court fines and infringement fines by the Director, Fines Victoria; and
(c)to provide for the enforcement of court fines and infringement fines under one Act; and
(d)to make amendments to the Infringements Act 2006 and the Sheriff Act 2009 and to make consequential amendments to other Acts. (bolding omitted)
Part 4 of the FRA is directed to ‘enforcement review’. By s 32(1), a person who has been served with a notice of final demand in relation to an infringement notice may apply to the Director for review of the decision by the enforcement agency to serve the infringement notice.[8] One of the grounds for applying for review is where the person believes that ‘special circumstances’ apply.[9]
[8]It was generally accepted that Victoria police was an ‘enforcement agency’ under s 3 of the IA.
[9]By s 3 of the FRA, ‘special circumstances’ has the same meaning as it has in the IA. Pursuant to s 3 of the IA, ‘special circumstances’, in relation to a person, means a mental or intellectual disability, disorder, disease or illness or a serious addiction to drugs, alcohol or a volatile substance which resulted in an inability to understand that their conduct constituted an offence or to control that conduct; or homelessness or subjection to family violence resulting in an inability to control conduct that constituted an offence.
By s 35 of the FRA, after the Director receives an application for enforcement review, the Director must review the decision and determine whether enforcement of the infringement fine under the Act should proceed. However, s 35(2) provides no precise time for the conduct of such a review save that the Director conduct such a review within ‘a reasonable time.’ Other delays may also occur during the review process, including by reason of requests for additional information (under s 34).
There are then two possible outcomes of an enforcement review:
(a) Under s 37(1)(a) the Director may confirm the decision of the enforcement agency to serve an infringement notice, and that the enforcement should proceed; or
(b) Under s 37(1)(b), the Director may cancel the enforcement of the infringement fine and refer the matter back to the enforcement agency.
If the Director cancels enforcement of the infringement fine under s 37(1)(b), s 37(2)(b) provides that she/he must serve a notice of enforcement cancellation on the applicant and the enforcement agency within 21 days of making of the decision.
An enforcement agency served with a notice of enforcement cancellation then has a discretion in relation to whether the underlying infringement offence is prosecuted. What happens next, and the timeframe, is governed by ss 38 and 39 of the FRA which relevantly provide:
38Enforcement agency must withdraw infringement notice if Director serves enforcement cancellation
(1)An enforcement agency that is served notice of an enforcement cancellation must, within 90 days of the date of that notice—
(a) do one of the following—
(i)withdraw the infringement notice and take no further action;
(ii)withdraw the infringement notice and issue an official warning;
(iii)withdraw the infringement notice and commence a proceeding for the alleged offence by filing a charge-sheet; and
(b)notify the applicant of the enforcement agency’s decision….
39 Extended period for commencing proceeding for offence
(1)If an enforcement agency withdraws an infringement notice and commences a proceeding for the alleged offence by filing a charge-sheet under section 38(1)(a)(iii), the period during which a proceeding for that alleged offence may be commenced is extended by 6 months after the date of service by the Director under section 37(2)(b) of enforcement cancellation.
…
(2)Subsections (1) and (1A) have effect despite section 7(1) of the Criminal Procedure Act 2009 or any other provision of any Act or other instrument providing for the period during which any proceeding must be commenced for an offence alleged to have been committed.
Section 7(1) of the CPA[10] makes provision for the applicable time limits for the commencement of summary offences and provides:
[10]Pursuant to s 4 of the IA, the IA, FRA, CPA and Magistrates Court Act 1989 (Vic) are to be read together and construed as one.
7 Time limits for filing a charge-sheet
(1)A proceeding for a summary offence must be commenced within 12 months after the date on which the offence is alleged to have been committed except where—
(a) otherwise provided by or under any other Act; or
(b)the accused gives written consent, and the DPP or a Crown Prosecutor consent, to the proceeding being commenced after the expiry of that period.
Section 5(1)(a) further states that a criminal proceeding is commenced by filing or signing a charge-sheet in accordance with s 6.
Magistrate’s ruling
After a thorough identification of the relevant principles and identification of submissions, the Magistrate accepted the construction of ss 38 and 39 advanced by Victoria Police.
In doing so her Honour rejected the suggestion that there was any conflict between ss 38 and 39 saying as follows:
43.Section 39(1) is to be read as applying to the decision under section 38(1)(a)(iii) and specifically refers to that provision. In doing so, section 39(1) clearly distinguishes between the extended time period for commencing a proceeding for the alleged offence, as opposed to the time frame for notifying the Applicant of what the enforcement agency’s decision is, which is the function of section 38. If the enforcement agency decides to commence a criminal proceeding, section 39 operates to extend the statutory time frame for the enforcement agency to bring proceedings for the alleged offence by six months after the date of service by the Director under section 37(2)(b) of the enforcement cancellation.
44.I do not accept the Defence submission that the purpose of section 39 is not to extend the time limit, but rather to displace section 7(1)(a) of the CPA which would otherwise operate to statute bar many proceedings. This construction would in reality leave section 39(1) with no practical effect. That interpretation does not produce a sensible result, as it creates two different time frames that apply to the same action of bringing a proceeding. Where a construction raises more questions than it resolves, it is not a harmonious reading of the text and must be rejected in favour of the construction which offers a harmonious outcome.
She found that the favoured construction was supported by the language of the surrounding provisions, as well as their headings. She further found that the preferred construction promoted the predominant object of pt 4 of the FRA which was to provide a consistent, efficient and accessible process for management of court and infringement fines.[11]
[11]The Reasons (n 3) 20 [47].
Her Honour rejected a submission that supported approaching the time limits strictly, finding that the question was not about whether or not the time limits should be construed strictly, rather it was what was the correct timeframe for commencing a proceeding following service of the relevant notice.[12] In dealing with the suggestion that the mandatory language of s 38 and permissive language of s 39 supported the defence position, Her Honour determined that the permissive language of s 39 was a reference to the discretionary nature of the decision by the enforcement agency to bring proceedings.[13] She further rejected a suggestion that the preferred interpretation extended any penal category, noting that it extended the timeframe within which proceedings may be brought.[14] She further found that there were no unjust, ambiguous or absurd outcomes arising from the preferred construction.[15]
[12]Ibid 20 [48].
[13]Ibid 20 [49].
[14]Ibid 20 [50].
[15]Ibid 20 [51].
Her Honour did not consider it necessary to resort to extrinsic material to assist with the construction of the provisions as Parliament’s intention could be distilled from the clear statutory language.[16] However, the use of the word ‘determination’ in the Explanatory Memorandum to the Fines Reform and Infringements Acts Amendment Bill 2016 clarified that the enforcement agency’s obligation under s 38 is to make a determination and communicate it to the accused.[17] She concluded:
54.For all of these reasons, I conclude that the proper construction of sections 38 and 39 is that:
a. section 38 requires the enforcement agency to make a decision within 90 days as to which of the actions in section 38(1)(a)(i)-(iii) it is going to take, and to notify the applicant of the agency’s decision; and
b. section 39(1) operates to extend the date within which the proceedings for the alleged offence referred to in section 38(1)(a)(iii) may be commenced by six months after the date of service by the Director of the enforcement cancellation notice.
[16]Ibid 20 [52].
[17]Ibid 20 [52].
Given her construction of the provisions arose harmoniously and naturally from the plain meaning of the provisions, it was not necessary to rule on the alternative submission of the defence that there was a ‘conflict’ (i.e. it was not necessary to consider which of the provisions was the ‘leading’ one).[18]
[18]Ibid 20 [55].
Principles
The principles to be applied in construing a statute require consideration of the ordinary and grammatical meaning of the words used, taking into account both context and legislative purpose.[19]
[19]State of Victoria v Thompson [2019] VSCA 237, [27].
The relevant principles were recently summarised by Kiefel CJ and Keane J in R v A2[20] where their Honours highlighted that context is to be understood in its widest sense and included surrounding statutory provisions and the statute as a whole.[21] It also extended to the ‘mischief’ which that statute intended to remedy.[22]
[20](2019) 93 ALJR 1106.
[21]Ibid 1117 [33] (Kiefel CJ, Keane J).
[22]Ibid.
However, the text of a statute remains important such that a very general purpose may not detract from the meaning of the words of a provision.[23] A court construing a statutory provision must also strive to give meaning to every word of the relevant provision.[24]
[23]Ibid 1117 [36] (Kiefel CJ, Keane J).
[24]Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 (‘Project Blue Sky Inc’), 382 [71] (McHugh, Gummow, Kirby, and Hayne JJ); Australian Investment & Development Pty Ltd v Commissioner of State Revenue [2019] VSCA 69 (‘Australian Investment & Development Pty Ltd’), [64]; Plaintiff M70 v Minister for Immigration and Citizenship (2011) 244 CLR 144 (‘Plaintiff M70’), 192 [97] (Gummow, Hayne, Crennan and Bell JJ).
Submissions
Appellant’s submissions
The appellant put the case in two ways. The primary way was that there was no conflict between ss 38 and 39. The alternative put was that s 38 was the primary provision if there was a real conflict.
In supporting his primary case, the appellant highlighted that the first feature to note about s 39 was that it was contingent upon compliance with s 38(1)(a)(iii). Thus it commenced by providing for an enforcement agency to withdraw an infringement notice and commence a proceeding for the alleged offence ‘by filing a charge sheet under s 38(1)(a)(iii)…’. Accordingly, the text of s 39(1) made clear that the extended period was not enlivened unless a charge sheet had been filed in accordance with s 38(1) which explicitly imposed a 90 day time limit.
It was further submitted that s 39 would still have a purpose, namely a purpose of extending the time limit for commencing a proceeding for a summary offence ‘for the purposes of s 7(1)(a) of the CPA’. This construction was supported by s 39(2) which expressly refers to s 7 thus emphasizing the connection between the two provisions. The mischief that s 39 seeks to address is therefore non-compliance with the CPA which an enforcement review can cause given the time lapse involved in an application and the review process .
Support for the appellant’s construction was said to be found in the extrinsic material. The appellant highlighted that amendments were made to s 39 by s 24 of the Fines Reform and Infringements Act 2016 (Vic). Notes to cl 24 of the accompanying Explanatory Memorandum (‘2016 Explanatory Memorandum’) stated:
Clause 24 amends section 39(1) of the Fines Reform Act 2014 to correct a cross-reference consequential upon the proposed amendment to section 37(2) made by clause 21 of the Bill.
The clause also inserts a new section 39(1A) which provides that if the Director serves an enforcement cancellation in circumstances referred to in section 38(2), the period during which a proceeding for the alleged offence may be commenced is extended by 6 months after that date of service. The amendment is necessary to ensure that enforcement agencies are able to commence proceedings for an alleged offence following an enforcement cancellation by the Director even if 12 months or more has elapsed since the date of the alleged offence.
This was said to be consistent with the idea that s 39 was directed to the s 7 issue, i.e., it was emphasizing the connection between s 39 and the time limit contained in s 7 of the CPA.
The appellant further referred to notes to cl 22 of the 2016 Explanatory Memorandum - which related to amendments to s 38 - and read:
The clause also removes the reference to ’28 days’ in section 38(1) and replaces it with a reference to ‘90 days’. The effect of this amendment is to extend the period of time, following notification of an infringement fine enforcement cancellation, within which an enforcement agency must take the actions set out in section 38(1)(a). This extension is a response to concerns by enforcement agencies that the current period of 28 days is not sufficient to allow a determination to be made as to whether, in particular, to withdraw an infringement notice and commence a proceeding for the alleged offence by filing a charge-sheet. (emphasis added)
The appellant submitted that it was telling and consistent with the appellant’s construction of ss 38 and 39 that the 2016 Explanatory Memorandum was referring to a new 90 day period rather than a six month period. Thus there would be no need for the 90 day period if you already had six months to commence a proceeding.
The appellant submitted that the Magistrate wrongly limited the purpose of s 38 in paragraph 43 of the Reasons to setting out a timeframe for notification to an applicant of a decision. Thus, the 90 day time period not only applied to notification, but to the three other different actions in s 39(1)(a) which the enforcement agency needed to ‘do.’
The appellant further rejected the Magistrate’s suggestion that his construction would leave s 39 with ‘no practical effect’ and submitted that the practical effect of s 39 was to extend the period for commencing a proceeding for the alleged offence for the purposes of s 7 of the CPA.
The appellant also denied that his construction ‘creates two different time frames’ to the same action of bringing a proceeding. Rather, he submitted that the timeframes were directed to two separate purposes.
Thus, the first purpose (reflected in s 39) was to ensure that the hearing of a charge was not barred by s 7. This was technical in nature and not directed at any particular party or their actions. Rather, s 39(1) automatically ‘resets the clock’ from a legal point of view and operates to displace s 7(1) of the CPA so that there is no bar on a proceeding being commenced if more than 12 months has elapsed since the date of commission of the offence.
By way of contrast, the second timeframe (in s 38) has a separate purpose and requires the enforcement agency to act. Its objective was to provide adequate time for an enforcement agency to take appropriate action in response to an enforcement cancellation notice. Thus the timeframe imposed by s 38 was not directed at a technical purpose but a practical one, namely, to compel an enforcement agency within 90 days to charge an applicant; withdraw the infringement and issue a warning; or withdraw the infringement and take no further action.
In oral submissions, Counsel fairly conceded that the consequence of the appellant’s construction was that three months of the six month timeframe contained in s 39 will have ‘no work to do’.[25] She further provided no explanation as to why s 39 would provide for a time period which was never to be utilised.
[25]Transcript of Proceeding, 17 February 2020, 27.
However, the submission was that the two different periods were directed to the two different purposes (outlined above). It was also submitted that, if the purpose was to extend the time limit contained in s 38, then it ought to be included as part of s 38. Further that the alternative construction did not take into account the mandatory language of s 38 which contained the word ‘must’ and required people to ‘do’ things.
The appellant’s alternative submission was that if there was any conflict between s 38 and s 39 - for example, because there were two different applicable time limits - then s 38 ought to be seen as the ‘leading provision’ after a determination of the hierarchy of the provisions pursuant to Project Blue Sky Inc v Australian Broadcasting Authority.[26]
[26](n 24) 381-2 [70] (McHugh, Gummow, Kirby and Hayne JJ).
The appellant submitted that this was appropriate given the contrast between the mandatory language contained in s 38 (of ‘must’) and the permissive language in s 39 (of ‘may’). The opening words of s 39 also required the enforcement agency to have first acted under s 38(1)(a)(iii). It was again emphasized that, although s 38 imposed mandatory obligations, s 39 did not impose a mandatory timeframe on a party to take any action but simply ‘reset the clock.’
The submission was said to be supported by the extrinsic materials which demonstrated that one of the primary purposes of the FRA was to introduce a shortened enforcement period and to make the process quicker and easier.[27] The appellant also submitted that there was nothing to suggest that it took three months to lay charges once the decision had been taken to issue proceedings.
[27]Explanatory Memorandum, Fines Reform Bill 2014, 1; Victoria, Parliamentary Debates, House of Assembly, 8 May 2014, 1553-5 (Ms Asher).
Finally, the appellant submitted that a penal category ought not be extended. Given the respondents’ construction had the effect of delaying the process by up to three months, and given delay constitutes its own form of punishment, the time frame in s 38 ought to be preferred to the extent it conflicted with the time frame in s 39.
Respondents
The respondents submitted that no conflict existed between the two provisions, and that the time in which proceedings must be commenced is six months after the date of the relevant notice.
The respondents submitted that Parliament intended all statutory provisions to have meaning and effect. Further, that if the respective sections were to be interpreted in the way contended for by the appellant, s 39(1)(a) would have no role to play and would be redundant. More particularly, some three months of the period of the extended time provided for in s 39 would never be utilised.
In written submissions the respondents suggested that s 38(1) obliged the enforcement agency to withdraw the infringement notice within 90 days and notify the applicant of the decision though no time frame was specified for the issue of a warning under s 38(1)(a)(ii). However, in oral submission it was accepted that the warning would also have to be given within 90 days.
They also submitted that s 39(1) would have effect despite the provisions of s 38(1)(a)(iii) which constituted ‘any other provision.’
The respondents’ approach was also said to be consistent with the heading to s 39 as well as being consistent with cl 22 of the 2016 Explanatory Memorandum which made it clear that the obligation under s 38 was focused on the decision or ‘determination.’ Further, that cl 24 of that memorandum suggested that s 39 related to the actioning of the decision if there was a decision to commence proceedings.
The respondents also submitted that the issue of a proceeding did involve extra work (including that the informant would have to be satisfied that the facts of the alleged offences were made out) and claimed that their approach did not derogate from the extrinsic materials because it set a certain time frame. They also emphasized that the relevant extra time was only three months, which did not generally derogate from efficiency principles.
In oral submission, the respondents accepted that if a charge was laid within one month of the notice, but the offence was committed many years before, then the overarching provision was s 39 which permits an extension up to six months so the maximum period in which a charge may be laid is six months after service of the notice.
It was also submitted that there would be duplicity involved in reading s 39 as requiring the filing of a charge sheet in circumstances where one had already been filed.
In relation to the appellant’s alternative submission, the respondents submitted that the use of ‘despite’ in s 39(2) suggested that Parliament had made it abundantly clear that s 39 was the leading provision and s 38(1)(a)(iii) subordinate to it. Further, they again emphasized that a construction ought to be avoided if a provision is thereby given no practical effect.
Analysis
In terms of the appellant’s submissions, ground 1 is without merit since section 38(1)(a) of the FRA does require an enforcement agency ‘to decide to do one of [the] things listed in s 38(1)(a)(i)-(iii) and notify the appellant of their decision within 90 days.’
The real complaint appears to be that the provision also obliges the enforcement agency to ‘do’ the actions specified (including commence proceedings) within 90 days. This may be so if s 38 is read in isolation. However, this does not of itself address the real issue in this case, which turns on the inter-relationship between s 39 and s 38 insofar as it relates to the commencement of a proceeding. It was this inter-relationship which is addressed at paragraph 43 of the Reasons wherein the Magistrate considered, only after reading the two provisions together for the purposes of this case, that the function of s 39 was directed to extending time to commence a proceeding, while the function of s 38 was concerned with notification of the decision to commence.
I accept that the respondents’ construction means that there is potential for a further three month delay from the date of any determination under s 38 (which must have taken place given the notification under s 38(1)(b)). There was insufficient evidence before the court to consider whether this was unnecessary as alleged by the appellant. However, in circumstances where there may be a significant delay attributable to the review process (which is of an uncertain length), the provision of a further three months for the actual act of laying charges does not appear to be significant.
The suggestion that an extension of time may have been provided within s 38 does not assist the appellant in determining the meaning of s 39. As highlighted already, s 38 must be considered in the context of the relevant surrounding statutory provisions which clearly include s 39 (which cross references s 38).
Returning to the task of statutory construction in this case I accept that, consistent with the 2014 Explanatory Memorandum, the general purpose of pt 4 included to introduce a consistent and efficient process for the management of infringement fines. Beyond that, however, the generalised statements in those materials do not greatly assist either party.
Insofar as cl 22 of the 2016 Explanatory Memorandum is concerned, I accept the submission of the respondents that, if anything, it appeared to be focused on increasing the 28 days to 90 days so as to allow a ‘determination’ to be made as to whether to withdraw an infringement notice and commence a proceeding. It does not expressly relate to the actual act of commencing the proceeding as opposed to the decision to commence.
I do accept, consistent with cl 24 of the 2016 Explanatory Memorandum, that a purpose of s 39 is to extend the time for commencing a proceeding for the purposes of s 7 CPA. However, the real issue is whether s 39 also operates so as to extend the time period set for commencing a proceeding under s 38(1)(a)(iii). I consider that it does so operate for the following reasons.
First, unless it does so operate , as fairly conceded by the appellant, three months of the six month period in s 39(1) would have no meaning and effect. Thus, for example, if the proceeding was commenced at any time after the relevant 90 day period (after date of service of the relevant notice) s 39 would have no application at all. This is contrary to the principle that a court must strive to give meaning and effect to every word of a statute.[28] Instead, I consider that the specification of a six month period ought to be given some practical effect.
[28]Project Blue Sky Inc (n 24) 382 [71] (McHugh, Gummow, Kirby, and Hayne JJ); Australian Investment & Development Pty Ltd (n 24) [64]; Plaintiff M70 (n 24) 192 [97] (Gummow, Hayne, Crennan and Bell JJ).
Secondly, the legislature has clearly contemplated s 38(1)(a)(iii) in the opening words of s 39 and has expressly provided for a different time period of six months in respect of the action of filing a charge sheet. I do not accept that the opening words of s 39(1) require an enforcement agency to commence the proceeding within 90 days. Rather, the natural and ordinary meaning of s 39(1), when considered as a whole, including the heading,[29] is that the enforcement agency will have the full extended period of six months to commence a proceeding.
[29]Pursuant to s 36(2A) of the Interpretation of Legislation Act1984 (Vic), headings form part of an Act.
Thirdly, the respondents’ construction is supported by the clear words of s 39(2). This provides that subs (1) will have effect ‘despite’ s 7 of the CPA ‘or any other provision of any Act …’ This clearly evinces an intention that the enforcement agency has an (enlarged) six month period for commencing a proceeding notwithstanding s 38(1)(a)(iii).
Finally, as I have noted already, I did not find the extrinsic materials cited assisted the appellant. Having considered the various materials, I accept that the provisions are generally designed to provide for a new system for enforcement of fines which works efficiently and consistently. However, I consider that this purpose is promoted by the existence of a clear and consistent time frame applied for the filing of a charge sheet of six months after service of a cancellation notice.
I consider that ss 38 and 39 can work together pursuant to the construction I have adopted. Thus, where proceedings are brought within 90 days of the relevant notice, (under s 38(1)(a)(iii)), s 39 operates to validate such a commencement ‘despite’ s 7 of the CPA (i.e. even if proceedings are brought outside the 12 months period after commission of the offence). Where proceedings are brought after the period of 90 days, but within the relevant six months, s 39 also operates ‘despite’ s 38(1)(a)(iii).
The uniform and certain period of six months (in s 39) can therefore apply to all proceedings, including those brought within s 38.
The provisions can thereby work harmoniously with each other such that there is no ‘conflict’ involved. This means that it is unnecessary to consider the appellant’s alternative submission.
In any event, even if there was a conflict, the express language of s 39(2) suggests that s 39 would be the ‘leading provision’ which applies ‘despite’ any other provision. I also do not consider that the cases cited as to penal categories assist the appellant given a three month extension does not alter the actual ambit of the offence.[30]
[30]Cf. R v Adams (1935) 53 CLR 563, 568 (Rich, Dixon, Evatt and McTiernan JJ); Waugh v Kippen (1986) 160 CLR 156, 164 (Gibbs CJ, Mason, Wilson and Dawson JJ).
However, it is unnecessary to consider the alternative submission further given no conflict arises on a correct construction of the provisions.
It follows that the Magistrate did not err in her construction of s 39(1) by finding that this provision extended the timeframe within which the proceeding could be brought to six months after the date of the relevant notice (ground 2).
There was further no error in finding that the charges were brought within the statutory time limit imposed by the FRA (ground 3).
Conclusion
The appeal will be dismissed.
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