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Dominique Hogan-Doran SC
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Recent Hearings

Westpac v ASIC (Debit Mastercard distribution)

Dominique Hogan-Doran SC

BANKING AND FINANCE –– Australian Securities and Investments Commission Act 2001 (Cth) s 12DL –– debit cards and credit cards –– statutory prohibition on a person sending out a card to a current cardholder unless it was a "card of the same kind" and certain other conditions were met –– Westpac sent "Westpac Debit MasterCard" cards to holders of "Westpac Handycards" –– customer could only use Handycard to withdraw money from ATM or EFTPOS or to make purchases by entering personal identification number (PIN) –– Debit MasterCard card differed from Handycard because it (1) allowed customers to make purchases without entering PIN number (over internet, post or telephone) and (2) it was able to be used more widely –– Australian Securities and Investments Commission alleged that the ability to make purchases without entering a PIN increased the likelihood of fraud, thus conflicting with the consumer protection purpose of the section–– instances of fraud trivial compared to overall use –– other suggested differences did not change essential nature of cards as debit cards

STATUTES –– provision imposing criminal and civil liability –– purposive construction –– consumer protection provisions –– caution in imposing wider construction that expands meaning of criminal provision–– relevance of headings in an Act –– heading should be taken into account, but must not impose an unnaturally constricted or expanded meaning –– relevance of earlier, now repealed, legislation –– where earlier legislation was differently worded, and current legislation is clear, past legislation should not guide meaning

Held: Each card had defining characteristic that it was a debit card –– only permitted drawing of funds from customer's account, not a credit card –– Debit MasterCard card was card of the same kind as Handycard 

WORDS AND PHRASES: "of the same kind"

Acted for the Australian Securities and Investments Commission.

[2009] FCA 1506