Victoria Police v Gebrehiwot - [2019] VMC 12

IN THE MAGISTRATES’ COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Case No: K10009996
J13100474

TATE MCCUTCHEON
AND

BRETT BUTTERWORTH[1] (VICTORIA POLICE)

Informants

TADDIS GEBREHIWOT

Accused

[1] Proceedings numbered K10009996 (McCutcheon) and J13100474 (Butterworth).

MAGISTRATE:	MAGISTRATE MACCALLUM
WHERE HELD:	MELBOURNE MAGISTRATES’ COURT[2]
DATE OF HEARING:	17 MAY 2019
DATE OF DECISION:	5 JULY 2019
CASE MAY BE CITED AS: MEDIUM NEUTRAL CITATION:	VICTORIA POLICE V GEBREHIWOT [2019] VMC012

[2] Decision handed down at the Ringwood Magistrates’ Court, 5 July 2019.

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CATCHWORDS - Sections 38 and 39 of the Fines Reform Act 2014 (Vic) - Statutory time limit for commencement of criminal proceedings - Statutory interpretation.

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APPEARANCES:	COUNSEL	SOLICITORS
For the Prosecution	S. Payne	Victoria Police Prosecutions
For the Accused	G. Cafarella	Victoria Legal Aid

HER HONOUR:

Issues for determination

The Accused, Taddis Gebrehiwot, is charged with:

at Footscray on 8 August 2013, behaving in an offensive manner in a public place, namely Nicholson Street, contrary to section 17(1)(d) of the Summary Offences Act 1966; [3] and
at Footscray on 11 August 2013, being drunk and disorderly in a public place namely Irving Street, contrary to section 14 of the Summary Offences Act.[4]

[3] Informant McCutcheon.

[4] Informant Butterworth.

This ruling concerns the legal meaning of sections 38 and 39 of the Fines Reform Act 2014 (Vic) (“the FRA”). The issue for determination is whether the charges have been brought within the statutory time limit imposed by the FRA. This is a question of statutory interpretation.
Section 37(1)(b) of the FRA states that the Director may, after conducting an enforcement review,[5] cancel the enforcement of the infringement fine and refer the matter back to the enforcement agency. Within 21 days of making a decision on the enforcement review, the Director must if the enforcement of the infringement fine is cancelled under section 37(1)(b), serve written notice of the enforcement cancellation on the applicant and the enforcement agency.[6]

[5] Defined in section 3 as “a review by the Director under section 35”.

[6] Section 37(2)(b).

It is not disputed that on 16 August 2018, Fines Victoria sent to Victoria Police a notification of enforcement cancellation pursuant to section 37(2)(b) of the FRA. The Defence submits that Victoria Police were, upon receipt of the notice of the enforcement cancellation[7] required to commence proceedings against the Accused within 90 days of the date of the enforcement cancellation notice, as provided for in section 38(1) of the FRA. The 90-day time period expired at midnight on 14 November 2018. Accordingly, it is submitted by Defence that Victoria Police failed to commence proceedings within the required time limit, the charge sheets having been signed and filed on 26 November 2018[8] and 29 December 2018.[9]

[7] Defined in section 3 as “a decision made by the Director under section 37(1)(b)”.

[8] Informant Butterworth.

[9] Informant McCutcheon.

Victoria Police submit that sections 38 and 39(1) of the FRA, when read together, allow proceedings to be commenced within six months of service by the Director under section 37(2)(b) of the enforcement cancellation notice. It is submitted that upon receipt of the notification of enforcement cancellation on 16 August 2018, Victoria Police were required to within 90 days of the date of that notice decide to take one of the steps set out in section 38(1)(a). It elected to withdraw the infringement notice and commence a proceeding for the alleged offences by filing charge-sheets under section 38(1)(a)(iii). Victoria Police provided notice to the Applicant on 12 October 2018 in relation to both matters as required by section 38(1)(b). Proceedings were commenced by the signing and filing of charge sheets on 26 November 2018 and 29 December 2018. Victoria Police submit that this occurred within the six-month time period allowed for by section 39(1) of the FRA.
The Prosecution has conceded that if the Court rules that the charges have not been brought within the statutory time frame, the charges should be dismissed.
The Defence has conceded that if the Court rules that the charges have been brought within the statutory time frame, the Accused will enter pleas of guilty to both charges.

Undisputed matters

The following background matters and timeline are not in dispute.
In relation to the first charge, it is alleged that at approximately 10pm on 8 August 2013, the Accused was observed by police urinating against a wall on the corner of Nicholson Street and Chambers Lane in Footscray. He was arrested and given an infringement notice (No. 00108174 3) by Senior Constable McCutcheon.
In relation to the second charge, it is alleged that on 11 August 2013 at approximately 8.16pm, the Accused was arrested and transported to Sunshine Police Station after being observed by police to be intoxicated at “Sunny Nguyen Bakery” in Irving Street, Footscray. He was subsequently issued with an infringement notice (00108176 5) by Sergeant Butterworth for being drunk and disorderly.
On 29 November 2017, the Accused with the assistance of the Inner Melbourne Community Legal Centre, made an application to Fines Victoria for enforcement review on the basis of special circumstances pursuant to section 32 of the FRA. The special circumstances application was based on his homelessness, mental health issues and alcohol and substance abuse. That application also concerned several other infringements the Accused had received which are not relevant to the present proceeding.
On 16 August 2018, Fines Victoria sent Victoria Police a notification of enforcement cancellation pursuant to section 37(1) of the FRA. That letter stated that Mr. Gebrehiwot’s application for enforcement review had been considered and it was determined that there were reasonable grounds for cancellation of the Infringement numbers set out in the letter based on special circumstances. The letter stated further that the enforcement agency had ninety days to decide whether to:

withdraw the infringement notices and take no further action;
withdraw the infringement notices and issue Mr. Gebrehiwot with an official warning;
withdraw the infringement notice and serve Mr. Gebrehiwot with a charge and summons to have the offences heard in the Magistrates’ Court –

and to notify the Applicant in writing of their decision.

On 17 August 2018, Fines Victoria notified the Accused that the enforcement of his fines had been cancelled. The letter states Fines Victoria had determined that there were sufficient grounds for the cancellation of the fines and that Victoria Police had been served with the enforcement cancellation notice. The letter repeats the statutory time frame for the next steps to be taken by Victoria Police and states that Victoria Police would inform the Accused in writing of their decision.
On 12 October 2018, Victoria Police served on the Accused two documents entitled “Infringement Withdrawal Notice - Intention to Proceed Via Court.” The letters state in respect of the infringements the subject of this proceeding, that a review had been conducted by Victoria Police in accordance with section 38 of the FRA, the infringements withdrawn and that it was intended that court proceedings would be instituted against the Accused in respect of the alleged infringements.
The charge sheets were signed and filed on 26 November 2018[10] and 29 December 2018.[11]

[10] Informant Butterworth.

[11] Informant McCutcheon.

Relevant legislation

The purpose of the FRA is set out in section 1 which provides:
“The main purposes of this Act are—
(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.”

Section 3 of the FRA relevantly provides:

“enforcement agency has the same meaning as it has in the Infringements Act 2006.”
“enforcement cancellation means a decision by the Director under section 37(1)(b).”
“enforcement review means a review by the Director under section 35”.

Section 3 of the Infringements Act 2006 provides:

“enforcement agency, in relation to an infringement offence, means—
(a)     a person or body authorised by or under an Act to take proceedings for the infringement offence in respect of which the infringement notice or official warning was issued or served; or
(b)     a person by whom, or body by which, a person or body referred to in paragraph (a) is employed or engaged to provide services if the taking of the proceedings referred to in that paragraph would occur in the course of that employment or in the course of providing those services; or
(c)     a prescribed person or body or person or body which is a member of a prescribed class of person or body;”

It is not disputed that Victoria Police is an enforcement agency for the purposes of the FRA.

Part 4 of the FRA governs “enforcement review”. It provides:

Part 4—Enforcement review

Application of Part
(1)This Part does not apply to a registered infringement fine to which any of the following provisions apply—
(a)sections 89A to 89D of the Road Safety Act 1986;
(b)section 95 of the Transport (Safety Schemes Compliance and Enforcement) Act 2014;
(c)sections 61A and 61BA of the Marine (Drug, Alcohol and Pollution Control) Act 1988.
(2)This Part does not apply to a registered infringement fine to which any of the following provisions apply if the person was unaware of the infringement notice to which the fine relates having been served and that service of the infringement notice was not by personal service—
(a)section 67 or 89B of the Road Safety Act 1986;
(b)section 219A of the EastLink Project Act 2004;
(c)section 96 of the Transport (Safety Schemes Compliance and Enforcement) Act 2014;
(d)section 61B of the Marine (Drug, Alcohol and Pollution Control) Act 1988;
(e)section 87A of the Melbourne City Link Act 1995.
(3)This Part does not apply in respect of a registered court fine.

Application for enforcement review
(1)A person served with a notice of final demand may apply to the Director for review of the decision by the enforcement agency to serve the infringement notice and to enforce the infringement fine[12] under this Act if the person believes—
[12] Defined in section 3 as “an infringement penalty and any penalty reminder notice fee.”
(a)that the decision—
(i)was contrary to law; or
(ii)involved a mistake of identity; or
(b)that special circumstances apply to the person, unless—
(i)the special circumstance referred to in the application is family violence; and
(ii)the person has made an FVS application; or
(c)that the conduct for which the infringement notice was served should be excused having regard to any exceptional circumstances relating to the infringement offence; or
(d)that the person was unaware of the notice having been served and that service of the infringement notice was not by personal service.
(2)An application under subsection (1) may be made by a person acting on behalf of a person who has a registered infringement fine with the consent of the person who has the registered infringement fine.
(3)An application under subsection (1)—
(a)must be in writing; and
(b)must state the grounds on which the decision should be reviewed; and
(c)must provide the applicant's current address for service of the notice under section 37(2) of the outcome of the enforcement review.
(4)An application for enforcement review must not be made if—
(a)the seven-day notice has expired; or
(ab)a person has waived the unexpired period of the seven-day notice under section 36 of the Sheriff Act 2009; or
(b)a person has become a declared director; or
(c)an attachment of earnings direction or an attachment of debts direction has been made; or
(d)a land charge has been recorded; or
(e)property has been seized under a vehicle seizure and sale notice; or
(f)an infringement fine has been paid.

Limit on applications for enforcement review
(1)Subject to subsection (1A), an application made under section 32(1)(a), (c) or (d) may only be made once in relation to any one infringement offence in respect of the applicant.
(1A)An application referred to in subsection (1) must not be made if an application referred to in subsection (2) has been made in relation to the infringement offence.
(2)An application made under section 32(1)(b) may be made twice in relation to any one infringement offence in respect of the applicant.
(3)An application made under section 32(1)(d) must be made within 14 days of the applicant becoming aware of the infringement notice.
(4)The Director must refuse an application made under section 32(1)(d) if the person served has not updated that person's authorised address (within the meaning of section 181) within 14 days of changing address.
Request for additional information
(1)The Director may request in writing from an applicant for enforcement review any additional information that the Director requires to conduct the review.
(2)The applicant—
(a)must provide the additional information within 14 days of service of the request for additional information by the Director; or
(b)may request in writing an extension of time to provide the additional information, if additional time is required.
(3)If the applicant requests additional time under subsection (2)(b), the Director may—
(a)grant an extension of time not exceeding 3 months from the service of the original request for that information to be provided; or
(b)refuse to extend the time for the provision of the additional information.
(4)If the Director grants an extension of time under subsection (3)(a), the Director must inform the applicant in writing of the period of the extension.
(5)If an applicant fails to provide the information requested under subsection (1) to the Director within the time required (including any extended period), the Director—
(a)may conduct the enforcement review without the additional information; or
(b)if the applicant provides the additional information to the Director out of time may—
(i)accept that late information; and
(ii)conduct the enforcement review with that late information.
Enforcement review
(1)On an application for enforcement review, the Director must—
(a)review the decision to serve an infringement notice on the person; and
(b)determine whether enforcement of the infringement fine under this Act should proceed.
(2)The Director must conduct the enforcement review within a reasonable time.
Conduct of enforcement actions during enforcement review
(1)While the Director is conducting an enforcement review—
(a)any enforcement action that had already been applied before the application for enforcement review was received by the Director may continue to be applied until the enforcement review is complete; and
(b)the Director or any other person must not apply any further enforcement action that had not already been applied before the application for enforcement review was received until the enforcement review is complete.
Outcome of enforcement review
(1)After conducting an enforcement review, the Director may—
(a)confirm—
(i)the decision of an enforcement agency to serve an infringement notice; and
(ii)that enforcement of the infringement fine under this Act should proceed; or
(b)cancel the enforcement of the infringement fine and refer the matter back to the enforcement agency.
(2)Within 21 days of making a decision on the enforcement review, the Director must—
(a)if the decision of an enforcement agency is confirmed under subsection (1)(a), serve written notice of the infringement confirmation on the applicant; or
(b)if the enforcement of the infringement fine is cancelled under subsection (1)(b), serve written notice of the enforcement cancellation on—
(i)the applicant; and
(ii)the enforcement agency.

Enforcement 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.
(2)If the Director serves an enforcement cancellation on an applicant for enforcement review under section 32(1)(d)—
(a)the registration of the infringement penalty as an infringement fine is cancelled; and
(b)any additional fees and costs that have been added to the infringement penalty under this Act or the Infringements Act 2006 or the regulations under either Act are waived; and
(c)the Director must refer the matter back to the enforcement agency to be dealt with in accordance with the Infringements Act 2006.
Example
The enforcement agency may withdraw the infringement notice, issue an official warning, file a charge-sheet in relation to the offence, issue a new infringement notice or enter into a payment plan with a person. See the Infringements Act 2006.

38ANotice to Director on filing charge-sheet following enforcement cancellation
If an enforcement agency commences a proceeding by filing a charge-sheet under section 38(1)(a)(iii), the enforcement agency must advise the Director in writing of that commencement.

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.
(1A)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 by filing a charge-sheet is extended by 6 months after the date of that service.
(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.
Time to pay or enter payment arrangement if infringement confirmation served
(1)An applicant who is served with an infringement confirmation must—
(a)pay the registered infringement fine; or
(b)apply to pay the registered infringement fine under a payment arrangement; or
(c)be the subject of an application to the Director for a work and development permit.
(2)The applicant must perform an action or be the subject of an application referred to under subsection (1) within 21 days of written notice of the infringement confirmation being served or enforcement action may be taken.

Other powers of review not affected
Nothing in this Part limits the power of the Director or an enforcement agency to review a decision to serve or enforce an infringement notice on any basis other than those specified in this Part.

Criminal Procedure Act 2009 (“CPA”)

The CPA regulates the commencement of criminal proceedings. Section 5 of the CPA states:

“ 5       How a criminal proceeding is commenced
A criminal proceeding is commenced by—
(a) filing or signing a charge-sheet in accordance with section 6; or
(b)    filing a direct indictment in accordance with section 159; or
(c)     a direction under section 415 that a person be tried for perjury.”

Section 6 of the CPA states:

“6Commencement of a criminal proceeding in the Magistrates' Court
(1)A criminal proceeding is commenced—
(a)by filing a charge-sheet containing a charge with a registrar of the Magistrates' Court; or
(b)if the accused is arrested without a warrant and is released on bail, by filing a charge-sheet containing a charge with a bail justice; or
(c)if a summons is issued under section 14, at the time the charge-sheet is signed.
Note
A criminal proceeding against a child is commenced in the same manner in the Children's Court: section 528 of the Children, Youth and Families Act 2005.
(2)If a charge-sheet is filed in accordance with the method prescribed by the rules of court for electronic filing, the requirements of sections 8(1) and 9(1) of the Electronic Transactions (Victoria) Act 2000 are taken to have been met.
(3)A charge-sheet must—
(a)be in writing; and
(b)be signed by the informant personally; and
(c)comply with Schedule 1.
Note
Section 18 requires an informant to nominate an address for service of documents and other details. That information may be included on a charge-sheet.
(4)The informant may include a request for a committal proceeding in a charge-sheet containing a charge for an indictable offence that may be heard and determined summarily.”

Section 7(1) of the CPA provides the time limits for the commencement of summary offences:

“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.”

Principles of Statutory Interpretation

The principles of statutory interpretation relied on the by the parties are not in dispute. It is convenient to restate them.
It was held in Project Blue Sky v Australian Broadcasting Corporation[13] that the duty of the Court is to give the words of the statute the meaning that the legislature intended. In undertaking that inquiry, Project Blue Sky establishes that the Court must construe the relevant legislation in a manner that is consistent with the language and the purpose of all of the provisions in the statute. Further:
[13] (1998) 194 CLR 355.
Section 35 of the Interpretation of Legislation Act (Vic) 1984 is in accordance with the common law purposive approach to statutory construction. It provides:
`Principles of and aids to interpretation
In the interpretation of a provision of an Act or subordinate instrument -
(a)a construction that would promote the purpose or object underlying the Act or subordinate instrument (whether or not that purpose or object is expressly stated in the Act or subordinate instrument) shall be preferred to a construction that would not promote that purpose or object; and
(b)consideration may be given to any matter or document that is relevant including but not limited to—
(i)all indications provided by the Act or subordinate instrument as printed by authority, including punctuation;
(ii)reports of proceedings in any House of the Parliament;
(iii)explanatory memoranda or other documents laid before or otherwise presented to any House of the Parliament; and
(iv)reports of Royal Commissions, Parliamentary Committees, Law Reform Commissioners and Commissions, Boards of Inquiry or other similar bodies.’
Section 35 permits a court to refer to extrinsic materials in the exercise of statutory construction. The extrinsic materials are not, however, a substitute for a close examination of the text, but may be useful in understanding the purpose or objective underlying the legislation. The High Court in Saeed v Minister for Immigration and Citizenship[18] emphasized that statutory objectives are not to be equated with legislative intention.[19]

[18] Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 26-59.

[19] Ibid, paragraph 34.

Defence submissions[20]

[20] The following is a summary of the Defence oral and written submissions filed with the Court on 17 May 2019, with reference to the authorities relied by the Defence in those submissions.

As stated above, the Defence submit that Victoria Police were required to commence proceedings against the Accused within 90 days of the date of the enforcement cancellation notice, as required by section 38(1) of the FRA. The 90-day time period expired at midnight on 14 November 2018.[21] It is submitted that accordingly, Victoria Police failed to commence proceedings within the required time limit, the charge sheets having been signed and filed on 26 November 2018 and 29 December 2018.
[21] Interpretation of Legislation Act 1984 (Vic) section 44.
The Defence submits that the plain and ordinary language of section 38 establishes that enforcement agencies are required to act within the 90-day time limit because:
a.section 38 uses mandatory language. It states that enforcement agencies must act within 90 days of the enforcement cancellation notice. Accordingly, if the enforcement agency wishes to have the matters heard by the Court, section 38(1)(a)(iii) requires that the agency both withdraw the infringement notice and commence a proceeding by filing a charge sheet;
b.section 38(1) does not support the Victoria Police submission that section 38 requires only that an enforcement agency withdraw the infringement notice and give the accused person notice of the action that will be taken under section 38(1)(a). The requirement that the enforcement agency notify an accused under section 38(1)(b) is a requirement that exists in addition to the requirement that the agency both withdraw the infringement notice and commence a proceeding by filing the charge sheet within 90 days.
The Defence submit that its interpretation of section 38 is supported by a plain reading of section 39 because:
a.the operation of section 39(1) is made contingent upon compliance with section 38(1). Section 39(1) states that “if an enforcement agency withdraws an infringement notice and commences a proceeding for the alleged offence by filing a charge-sheet under s 38(1)(a)(iii)” (emphasis added), the period during which a proceeding may be commenced is extended by 6 months from the date of the enforcement cancellation notice. Section 39 is therefore not enlivened unless a charge sheet has been filed in accordance with section 38, which explicitly imposes a 90-day time limit;
b.there is no actual conflict between sections 38(1) and 39(1) because the purpose of section 39(1) is not to extend the 90-day time limit. Instead, section 39(1) exists to displace section 7(1)(a) of the CPA, which would otherwise frequently statute bar the proper operation of Part 4 and section 38(1);
c.the Court should strive to give effect to every provision of an Act, and that where two constructions are possible the Court should prefer the one that gives meaning to both.[22] The Accused’s interpretation gives purpose to both sections 38(1) and 39(1); section 38(1) imposes the relevant time limit for commencement, whilst section 39(1) addresses the CPA.
[22] Commonwealth v Baume (1905) 2 CLR 405, 414; R v Berchet (1690) 1 Show KB 106; 89 ER 480, 108.
In the alternative, the Defence submits that if the Court is of the view that there is a conflict between sections 38 and 39, it should be resolved by determining the ‘hierarchy’ of the provisions. This involves an assessment of which is the leading provision, and which is the subordinate provision.[23] The Defence submit that the words and structure of the provisions clearly indicate that section 38 is the empowering provision because section 38 refers to a mandatory timeframe, stating that enforcement agencies must take the action described in section 38(1) within 90 days. The fact that section 39(1) requires the enforcement agency to have first acted under section 38(1)(a)(iii) also supports a conclusion that section 38(1) is the leading provision. Section 39, on the other hand, does not involve any mandatory requirement, noting only that the period during which a proceeding may be commenced is extended.
[23] Project Blue Sky, 70.
The Defence submit that the extrinsic material supports their interpretation because it establishes that one of the primary purposes of the FRA was to introduce a shortened enforcement period,[24] to make the process and access to justice quicker and easier for people with fines,[25] and to reduce the inefficiencies and uncertainty of existing enforcement mechanisms.[26] It was submitted that the time period was initially 28 days, and was then amended to 90 days on the basis that it was optimistically short. The Explanatory Memorandum states that:
“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.”[27]
[24] Explanatory Memorandum, Fines Reform Bill 2014 (Vic).
[25] Explanatory Memorandum, Fines Reform Bill 2014 (Vic), background.
[26] Hansard, Legislative Assembly, 8 May 2014, Ms Asher (Minister for Innovation), p 1553.
[27] Explanatory Memorandum, Fines Reform and Infringements Act Amendment Bill 2016 (Vic), cl 22 (emphasis added).
The Defence submits that the “opt-in” nature of the scheme is also relevant. The FRA requires enforcement agencies to “opt-in” to have matters referred to Court after Fines Victoria has determined that special circumstances apply. It was submitted that in such cases, Parliament’s intention is for there to be a presumption that matters will not proceed to court after they have been determined administratively. It was noted in the second reading speech that:
“Significantly, the bill will require enforcement agencies to ‘opt-in’ to prosecute a matter if the director determines that enforcement using the administrative model is not appropriate. This significant change to current practice will help to ensure that only matters that should be prosecuted enter the court system.”[28]
[28] Hansard, Legislative Assembly, 8 May 2014, Ms Asher (Minister for Innovation), p 1555.
The Defence submit that the time limit for filing charges is effectively the mechanism by which the opt-in system is effected, which supports approaching the time limits strictly.
Finally, the Defence submits that where legislation is capable of being given more than one interpretation, the Court should resolve the matter in favour of the accused in order to prefer the interpretation that does not extend any penal category.[29]
[29] R v Adams (1935) 53 CLR 563, 567-568.

Prosecution submissions[30]

Primary submission

[30] The following is a summary of the Prosecution oral and written submissions filed with the Court on 17 May 2019, with reference to the authorities relied by the Prosecution in those submissions.

The primary submission of the Prosecution is that by application of rules of statutory interpretation, no conflict exists between the two provisions and that the time in which proceedings must be commenced is six months from the date of service of the enforcement cancellation.
In support of this proposition, that Prosecution submits that:
a.it is a fundamental principle of statutory interpretation that Parliament intends all statutory provisions to have some meaning and effect. That meaning and effect must accord with the text, the relevant statutory context, and advance the legislative purpose;[31]
[31] Project Blue Sky Inc at 381-2. Australian Investment & Development Pty Ltd v Commissioner of State Revenue [2019] VSCA 69 at 76.
b.it is generally presumed that Parliament does not include in a statute a provision which has no purpose. The Court’s task is to ascertain the meaning of each statutory provision that is relevant to the matter before the Court and to give effect to it. This means, in the context of this case, that, unless a contrary parliamentary intention is shown, the Court must endeavour to give effect to both sections 38(1) and 39(1) of the Act;
c.the proper interpretation of section 38(1)(a)(i)-(iii) when read in light of section 38(1)(b), is that the obligation on an enforcement agency is to simply withdraw the infringement notice within 90 days and notify the applicant of the decision. That obligation is common to each of the options comprised in section 38(1)(a)(i)-(iii);
d.in the case of sections 38(1)(a)(ii) and (iii), there are added powers to either issue an official warning or commence proceedings;
e.no time frame is specified for the issuing of a warning pursuant to section 38(1)(a)(ii);
f.section 39 of the FRA therefore must be read as applying to a decision made pursuant to section 38(1)(a)(iii) namely, that the time period for actually commencing the proceeding, as opposed to notifying the applicant of what the decision is, is extended to six months from the date of the notice;
g.the meaning contended for by the Defence would leave section 39(1)(a) of the Act with no role to play and would, in effect, be redundant, offending this general presumption and the surplusage rule; and
h.this interpretation is supported by a plain reading of the language used.
The Prosecution made the following further submissions.

Specific reference to section 38(1)(iii) in section 39.
a.Section 39 makes specific reference to the procedure of filing a charge sheet under section 38(1)(iii) for “that” offence.

Section 39(2)
b.Section 39(2) states that subsections (1) and (1A) have effect despite section 7(1) of the CPA 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. (Emphasis added). Section 38 (1)(iii) constitutes “any other provision of any Act “within the meaning of section 39(2). Accordingly, applying the provisions of section 39(2), section 39(1) will have effect despite the provisions of section 38(1)(iii) by a simple application of section 39(2).

Headings

c.The Prosecution submits that the heading of section 39 supports the interpretation for which it contends. It is submitted that section 36(2A) of the Interpretation of Legislation Act 1984 provides that a heading to a section in an Act forms part of that Act. The above interpretation is consistent with the heading used in section 38 which states “Enforcement agency must withdraw infringement notice if Director serves enforcement cancellation” and the heading to section 39 states “Extended period for commencing proceeding for offence”.

Surplusage

d.A further rule of statutory interpretation is that a Court must strive to give effect to every word of a provision and every provision of an Act.[32] Where two constructions are open, a construction which avoids surplusage is to be preferred. This rule reflects the general propositions that an Act is to be construed as a whole and the proposition that it is “improbable that the framers of legislation could have intended to insert a provision which has virtually no practical effect.[33] In that situation… “one should look to see whether any other meaning produces a more reasonable result.”[34]

e.It is submitted that the Court were to prefer the interpretation urged upon it by the Defence, this would result in section 39(1) having at the very least “virtually no practical effect” indeed if not, absolutely no practical effect whatsoever. Accordingly, the Prosecution submits that by reason of this rule, any inconsistency between section 38(1)(iii) and 39(1) should be read in favour of the latter section.

Legislative history and amendments to the Act

[32] Commonwealth v Baum (1905) 2 CLR 405; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 and Plaintiff M70 v Minister for Immigration and Citizenship [2011] HCA 32 at 97.

[33] Minister for Resources v Dover Fisheries Pty Ltd (1993)116 ALR 54.

[34] Momcilovic v The Queen [2011] HCA 34 at 423.

The Prosecution submits further that the legislative history of sections 38 and 39 demonstrates that Parliament turned its’ mind to the interpretation for which it contends because:
a. when the Act was first enacted, the time period stated in section 38(1) was 28 days;
b. pursuant to section 22(2) of the Fines Reform and Infringements Acts Amendment Act2016, the time period was altered to 90 days and the word “receives” was substituted by “serves”;
c.     the Explanatory Memorandum to the Fines Reform and Infringements Acts Amendment Act 2016 states in relation to the amendment to the time period in section 38: “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);[35]
[35] Explanatory Memorandum, Fines Reform and Infringements Acts Amendment Bill 2016, clause 22.
d. this clarifies that the obligation pursuant to section 38 is to simply make a determination and communicate that to the accused;
e. pursuant to section 24(1) of the Fines Reform and Infringements Acts Amendment Act 2016, the word “notification” was substituted by “service”;
f. pursuant to section 24(2) of the Fines Reform and Infringements Acts Amendment Act 2016, section 39(1A) was inserted into the Act;
g.    the Explanatory Memorandum to the Fines Reform and Infringements Acts Amendment Act 2016 states:
“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”.[36]
h. The Prosecution submits in conclusion that the same explanation applies to the rationale behind the Parliament enacting section 39(1) and supports the contention that section 38(1) applies to the decision making and notification process whereas section 39(1) relates to the actioning of the decision if it is a decision to commence proceedings.
i.      The Prosecution submit that the Second Reading Speeches for both the 2014 Act and the 2016 Act offer no assistance in this matter.

Alternative submission

[36] Ibid, clause 24.

The Prosecution submits in the alternative that if the Court concludes that there is a conflict on the face of the two sections, then that conflict must be resolved and the Court must determine which provision prevails. It is submitted that the provisions of section 39(1) of the Act prevail over the provisions of section 38(1)(iii) of the Act hence, the proceeding was commenced within time permitted by law. The Prosecution refers to relevant authorities in its’ written submissions which I have considered.

Analysis and ruling

I have considered all of the verbal and written legal submissions of the parties. For the reasons set out below, the proper construction of sections 38 and 39 of the FRA is that contended for by the Prosecution.

On a plain reading, there is no conflict between sections 38 and 39. The proper interpretation of section 38 is that once served with the enforcement cancellation notice, the enforcement agency must decide to do one of the things listed in section 38(1)(a)(i)-(iii) and notify the Applicant of the enforcement agency’s decision within 90 days.
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.
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.
The favoured construction is supported by the language of the surrounding provisions. Section 39(2) states that subsections (1) and (1A) have effect despite section 7(1) of the CPA 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 38(1)(a)(iii) falls within the phrase “any other provision of any Act” in section 39(2). The two provisions speak harmoniously to each other on a plain reading.
The headings of sections 38 and 39, which form part of the Act,[37] support the favoured interpretation in that they clearly communicate that the provisions have separate but harmonious purposes. Section 38 is entitled “Enforcement agency must withdraw infringement notice if Director serves enforcement cancellation” reflecting the decision-making process. Section 39 is entitled “Extended period for commencing proceeding for offence”, reflecting the extended period in which proceedings may be commenced.
[37] Section 36(2A) of the Interpretation of Legislation Act 1984.
The preferred construction is sensible and promotes the predominant objective of Part 4 of the FRA which is to provide a consistent, efficient and accessible process for the management of court and infringement fines.[38]
[38] Explanatory Memorandum, Fines Reform Bill 2014 (Vic), “Background”.
The Defence submit that Parliament’s intention was that the enforcement process would operate on an “opt-in” basis to have matters referred to court after Fines Victoria has determined that special circumstances apply. It was submitted that the presumption that matters will not proceed to court after they have been determined administratively, supports approaching the time limits strictly. This argument must be rejected on the basis that a plain reading of the legislation does not support it. It is also misconceived. The question is not about whether or not the time limits should be construed strictly. It is: what is the correct time frame for commencing a criminal proceeding following the service of the enforcement cancellation notice?
The Defence have pointed to the mandatory language of section 38 and the permissive language of section 39 in supporting its’ arguments. The mandatory language in section 38 does not advance the Defence argument. The argument is misconceived as the question is not whether the step taken is mandatory or permissive. It is: what is the correct time frame for commencing a criminal proceeding following the service of the enforcement cancellation notice? This argument also neglects the presence of section 39. The permissive language of section 39 is a reference to the discretionary nature of the decision by the enforcement agency to bring proceedings.
The Defence have submitted that where language is capable of supporting more than one interpretation, the Court should prefer the interpretation that does not extend any penal category. The preferred interpretation does not extend any penal category. It extends the time frame within which criminal proceedings may be brought.
Finally, there are no unjust, ambiguous or absurd outcomes arising from the preferred construction. No issues of unfairness arise for people who have participated in the enforcement review process. The construction does not result in an unreasonable lengthening of the enforcement review process and it does not render the enforcement review process more difficult for people with fines to access. If anything, it gives them more time to consider their legal position.
The parties have advanced various interpretations of the secondary reading speeches of the Minister, the legislative history of the provisions and the explanatory memoranda to the bills in support of their contentions. Case law emphasises that choices between competing interpretations permit, but do not require the consideration of extrinsic materials.[39] It is not necessary in my view to resort to the extrinsic materials to assist with the construction of the sections, as Parliament’s intention can be distilled from the clear statutory language. Nevertheless, I agree with the Prosecution that the legislative history and amendments to the Act support the preferred interpretation. The Prosecution submissions have comprehensively set out those relevant arguments. In particular, the Explanatory Memorandum to the Fines Reform and Infringements Acts Amendment Bill 2016 uses the word “determination” when it describes the decision-making process under section 38(1)(a)(iii), clarifying that the enforcement agency’s obligation under section 38 is to make a determination and communicate it to the Accused.
[39] Project Blue Sky, paragraph 69, citing Dixon CJ in Commissioner for Railways (NSW) v Agalianos (1955) 92 CLR 390 at 397.
Several other provisions in the FRA expressly refer to section 7 of the CPA and other acts or instruments providing for the period during which proceedings must be commenced. Section 18 operates to preserve the effect of section 17 which creates an extended period of six months for registration of infringement fines. Section 21(3) preserves the effect of section 21(2) which extends the period within which the enforcement agency may decide that enforcement of the infringement is not appropriate under section 20 by six months. Section 55(2) preserves the effect of section 55(1) which extends the period during which proceedings may be commenced by six months in circumstances where a person is subject to a payment arrangement. None of the above provisions refer to a separate time frame in which a determination must be made to institute proceedings. Beyond noting the consistent extension period of six months for the institution of proceedings, these provisions do not assist with the interpretation of sections 38 and 39.
1. For all of these reasons, I conclude that the proper construction of sections 38 and 39 is that:
2. This construction of the provisions arises harmoniously and naturally from the plain meaning of the provisions which are not in conflict with each other. Having made that ruling, it is not necessary to rule on the alternative submissions of the parties which set out which principles of statutory interpretation the Court should apply in deciding which of the provisions is the leading one and which one is the subordinate provision.
3. Based on this ruling, I understand that the Accused will now enter pleas of guilty in relation to both charges.

M.E. MACCALLUM, MAGISTRATE, 5 JULY 2019