DPP (CTH) v Keating [2013] HCA 20: Financial Advantage and Commonwealth Entities

Yesterday, the High Court unanimously held that a person could commit the offence of obtaining a financial advantage from a Commonwealth entity, contrary to s 135.2(1) of the Criminal Code (Cth) (Code) in the case of DPP (Cth) v Keating [2013] HCA 20.

Facts

On 7 October 2010, Ms Keating was charged with three counts of obtaining a financial advantage contrary to s 135.2(1) of the Code.  Section 135.2(1) makes 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 he or she is not eligible to receive that financial advantage.

The Commonwealth Director of Public Prosecutions alleged that from 2007 to 2009 Ms Keating failed to advise the Department of changes to her income while in receipt of a social security payment and also failed to comply with a Centrelink notice requiring that person to inform Centrelink of a change in circumstances. 

Legal Background to Decision

On 26 October 2011, the High Court handed down its decision in Director of Public Prosecutions (Cth) v Poniatowska [2011] HCA 43.  The Court held that for a person to breach s 135.2(1) by omitting to do something, the omission must be of an act that the person was under a legal duty to perform.

On 4 August 2011, a new s 66A was inserted into the Social Security (Administration) Act 1999 (CTH).  Section 66A(2) imposes a duty upon a recipient of a social security payment to inform the Department within 14 days of a change of circumstances which might affect the payment.  Section 66A is taken to have commenced on 20 March 2000.

The High Court Decision

The High Court unanimously held that a person could not breach s 135.2(1) of the Code by failing to comply with the duty imposed by s 66A at a time after 20 March 2000 but before the date on which the amendment received the Royal Assent.  The Court held that for an omission to constitute an offence under s 135.2(1), a person must have failed to do a thing that, at the time of the failure, the law required that person to do.

The High Court also unanimously rejected the proposition that a person could commit the offence by omitting to perform an act or acts that the person was not under a legal duty to perform at the time of the omission.

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