Commonwealth Director of Public Prosecutions v Poniatowska: Failure to report income to Centrelink not an offence

The High Court of Australia (in Commonwealth Director of Public Prosecutions V Malgorzata Barbara Poniatowska [2011] HCA 43) has granted special leave to appeal but dismissed an appeal by the Commonwealth Director of Public Prosecutions (CDPP) against a decision of  the Full Court of the Supreme Court of South Australia (see Poniatowska v DPP (Cth) [2010] SASCFC 19), which had set aside the respondent's convictions under Criminal Code (Cth) ("the Code") s 135.2(1).

The provision of the Code the subject of the case make it an offence for a person to engage in conduct and, as a result of that conduct, to obtain a financial advantage from a Commonwealth entity, knowing or believing that they are not eligible to receive that financial advantage.

Further, s 4.1(2) of the Code defines "conduct" to include "an omission to perform an act" and "engage in conduct" as including "omit to perform an act". The Code in s 4.3(a) provides that an omission to perform an act can only be a physical element of an offence if the law creating the offence makes it so.

The respondent was charged with 17 counts of obtaining a financial advantage contrary to the provisions of s 135.2(1) and each of the charges against the respondent related to her receipt of part-payments of the Parenting Payment Single ("PPS") from Centrelink.

The charges alleged that in each case the respondent was not entitled to part-payment of the PPS because she had failed to advise Centrelink of her receipt of payments of commission from her employer. There was no allegation that the respondent was under a duty imposed by the law to advise Centrelink of having received the commission payments.

The respondent had previously pleaded guilty before the Magistrates Court in South Australia to each of the charges. She had been sentenced to 21 months' imprisonment, subject to entering a bond to be of good behaviour for two years. The respondent unsuccessfully appealed against the severity of the sentence. The Full Court of the of South Australian Supreme Court, upheld her the appeal against her convictions on the grounds that the counts did not charge offences known to law, and that the counts were deficient in their failure to identify the transaction, act or omission on which liability was said to depend. The Full Court of South Australian Supreme Court allowed the appeal and setting aside the respondent's convictions. 

The Commonwealth DPP’s application for special leave to appeal to the High Court was referred to the Full Court, where it was heard as on appeal. In that appeal the central was whether the omission to perform an act that a person is not under a legal obligation to perform may be a physical element of the offence created by s 135.2(1) of the Code. The High Court held by majority of 4 to 1 that the law creating the offence in s 135.2(1) “does not make the omission of an act a physical element of the offence, either expressly or impliedly, within the meaning of s 4.3(a) of the Code.

The effect of the decision is that a failure to notify Centrelink of a change of employment status was not a criminal offence meaning the respondents  convictions were overturned.

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