Case: Stevens v Kabushiki Kaisha Sony Computer Entertainment [2005] HCA 58 ; (2005) 224 CLR 193
Outcome: applied
important contextual feature that must be considered in construing s 12DL is its imposition of strict criminal liability for a contravention of each of s 12DL(1) or (4). This feature cautions against (but does not always exclude) the adoption of an expansive construction of narrower, but clear words. However, as Gleeson CJ, Gummow, Hayne and Heydon JJ said in Stevens v Kabushiki Kaisha Sony Computer Entertainment [2005] HCA 58 ; (2005) 224 CLR 193 at 210-211 [45] : "... in choosing between a relatively broad and a relatively narrow construction of legislation, it is desirable to take into account its penal character. The present litigation does not arise from the institution of criminal proceedings under the offence provisions now contained particularly in s 132 of the Act. However, a person who makes or sells a circumvention device (s 132(5B)) is liable to imprisonment for not more than five years (s 132(6A)). An appreciation of the heavy hand that may be brought down by the criminal law suggests the need for caution in accepting any loose, albeit "practical", construction of Div 2A itself." (emphasis added) The initial prohibition in s 12DL(1) applies to an issuer of a card (by dint of s 12DL(3)) sending one or other of the two cards defined in s 12DL(5), unless the person sends the card in accordance with s 12DL(2). When the chapeau to s 12DL(2) refers to "the card", it identifies the particular card sent to which s 12DL(1) applies. That is, "the card" in the chapeau to s 12DL(2) is either one or other of a credit card or a debit card as defined in s 12DL(5). A significant feature of s 12DL(2)(b)(ii) is that the card sent may be in renewal, or replacement of, or in substitution for, "a card of the same kind" that has two other characteristics; first, that "a card of the same kind" had been sent previously to the person concerned and, secondly, it (the last mentioned card) had been used for "a purpose for which it was intended to be used". Additionally, the construction of s 12DL(2) favoured by the Commission would broaden the scope of the strict liability offence created by s 12DL(1) in a manner that strains the natural and ordinary meaning of "a card of the same kind" as referring to one or other of the two cards referred to in s 12DL(1). This invites a more cautious approach to the looser construction of this criminal provision than the Commission's contention: Stevens 224 CLR at 210-211 [45]; Australian Securities and Investments Commission v DB Management Pty Ltd [2000] HCA 7 ; (2000) 199 CLR 321 at 338 [34] - [35] per Gleeson CJ, Gaudron, Gummow, Hayne and Callinan JJ; and see too R v Adams [1935] HCA 62 ; (1935) 53 CLR 563 at 567-568 where Rich, Dixon, Evatt and McTiernan JJ said: "No doubt, in determining whether an offence has been created or enlarged, the Court must be guided, as in other questions of interpretation, by the fair meaning of the language of the enactment, but when that language is capable of more than one meaning, or is vague or cloudy so that its denotation is uncertain and no sure conclusion can be reached by a consideration of the provisions and subject matter of the legislation, then it ought not to be construed as extending any penal category ." (emphasis added)