High Court of Australia

Director of Public Prosecutions (Cth) v Keating [2013] HCA 20

248 CLR 459; 87 ALJR 657; 297 ALR 394

8 May 2013

Case Number: M5/2013

Before

French CJ, Hayne, Crennan, Kiefel, Bell, Keane JJ

Catchwords

Criminal law – Physical element of offence – Omission – Defendant charged on multiple counts of obtaining financial advantage from Commonwealth entity contrary to s 135. 2(1) of Criminal Code (Cth) ("Code") – Defendant failed to advise Department of changes in income – Section 4. 3(b) of Code provided that omission to perform act could not be physical element of Commonwealth offence unless offence committed by omission to perform act that by law there is duty to perform – Whether s 66A of Social Security (Administration) Act 1999 (Cth) ("Administration Act") created duty for purposes of s 4. 3(b) of Code prior to date on which Act inserting s 66A received Royal Assent.

Criminal law – Physical element of offence – Omission – Centrelink sent notices to defendant under ss 67(2) and 68(2) of Administration Act requiring defendant to perform certain actions – Section 74 of Administration Act made it offence to refuse or fail to comply with notices in certain circumstances – Defendant did not respond to notices – Whether notices issued under ss 67(2) and 68(2) of Administration Act capable of creating duty for purposes of s 4. 3(b) of Code.

Words and phrases – "engages in conduct", "obtains a financial advantage", "omission", "omission to perform an act that by law there is a duty to perform", "presumption against retrospectivity".

Criminal Code (Cth) – ss 4. 3(b), 135. 2(1).

Social Security (Administration) Act 1999 (Cth) – ss 66A, 67(2), 68(2), 74.

Social Security and Other Legislation Amendment (Miscellaneous Measures) Act 2011 (Cth) – s 2(1), Sched 1.
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