Director of Public Prosecutions (Cth) v Keating

[2013] HCATrans 68

[2013] HCATrans 068

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne       No M5 of 2013

B e t w e e n -

DIRECTOR OF PUBLIC PROSECUTIONS (CTH)

Informant

and

KELLI ANNE KEATING

Defendant

FRENCH CJ
HAYNE J
CRENNAN J
KIEFEL J
BELL J
KEANE J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 3 APRIL 2013, AT 10.15 AM

Copyright in the High Court of Australia

MS D.S. MORTIMER, SC:   If it please the Court, I appear with MS K.L. WALKER and MS F.I. GORDON, on behalf on the defendant.  (instructed by Victoria Legal Aid)

MS W.J. ABRAHAM, QC:   If it please the Court, I appear with MR G.A. HILL, for the informant.  (instructed by Director of Public Prosecutions (Cth))

MR J.T. GLEESON, SC, Solicitor-General of the Commonwealth of Australia:   May it please the Court, I appear with MR R.C.A. HIGGINS and MS D.M. FORRESTER, for the Attorney-General for the Commonwealth intervening.  (instructed by Australian Government Solicitor)

MR M.G. HINTON, QC, Solicitor-General for the State of South Australia:   If the Court pleases, I appear with my learned friend, MR C. JACOBI, on the instructions of the Attorney-General for South Australia intervening.  (instructed by Crown Solicitor (SA))

FRENCH CJ:   Yes, Ms Mortimer.

MS MORTIMER:   If the Court pleases, the way in which I propose to develop the argument on behalf of the defendant is this. I want to take the Court briefly to the facts that lie underneath this controversy. Then I want to go to how each of section 66A of the Administration Act and sections 68 and 74 operate and then give an example on the facts. Then, as set out in our outline that we have handed up, I want to then turn to the two construction arguments that are raised by the questions, firstly to go to question 1, that is why section 135 of the Criminal Code (Cth), read with section 4.3(b), should not be construed as having a retroactive operation, and the second construction question, which is question 3, namely why outside section 66A there was no other contemporaneous duty provided by law for the purposes of section 4.3(b). So that is the point, if the Court pleases, about the effect of the notices under the Administration Act.

Now, if we are correct in our construction arguments, the Chapter III question, question No 2, does not arise.  We submit there is utility in the Court deciding both construction issues because, as we understand it, both in Ms Keating’s case and in many of the other prosecutions, both section 66A and the notices argument, if I might call it that, are relied on by the prosecution.  Then finally I will turn to the Chapter III argument.

So, if I may start with the facts, if the Court pleases.  Ms Keating was in receipt of a single parenting payment from Centrelink from about 20 October 2005 backdated for a few weeks to approximately 1 September 2010.  Your Honours will find the summary in the case stated facts from paragraph 5 onwards.  Ms Keating was employed part time by Channel 7 and declared a fortnightly income of $760.15 per fortnight, your Honours will find that in paragraphs 5 and 7 of the case stated.  Her income fluctuated up and down from that $760 per fortnight figure; that is agreed in the case stated at paragraph 20, and the Court has some evidence of the fluctuations in the table that appears at paragraph 22.

If your Honours look at the Court book at page 10 your Honours will see in that table the fluctuations, some of which resulted in an overpayment and some of which resulted in underpayments. Now, those periods represent the charge periods, but they, of course, then also only demonstrate the fluctuations that occurred during those periods, how often receipts were otherwise below or above the $760 is not in evidence before the Court. Now, the total sum that Ms Keating is alleged to have obtained in breach of section 135.2 of the Criminal Code is $6,292.79, your Honours will see that paragraph 26 of the case stated.

If I can take your Honours to the charges, there are two sets.  There was an initial set and then an amended set and if your Honours go to page 74 of the case stated book, your Honours will see the charges – the original ones – and then on pages 77 and 78 are the amended charges.  I want to draw your Honours’ attention, using the entry and the charge on page 78, to the language that is used because we will, during the course of argument, be spending some time dealing with what the duty was and the way that the charge is formulated is to charge Ms Keating with:

intentionally failed to advise the Department of a change in your circumstances as required by law –

and the particularisation of that is -

in that you failed to advise that your income increased and as a result of that conduct you obtained a financial advantage –

So that is the formulation of the physical element of the offence with which Ms Keating is charged.  It is agreed that there were a number of notices under the SocialSecurity Administration Act, pursuant to section 68 which were sent to Ms Keating and, that appears at paragraph 15 of the case stated.  It is expressly not agreed and I direct the Court’s attention to paragraph 18 of the case stated that Ms Keating, in fact, received any notices.  Where, in the informant’s submissions at paragraph 73, they may be read to suggest otherwise we would respectfully submit some correction needs to be made to that.

The other and remaining factual issue that I want to deal with before I take the Court to an example of the notices is that there are some submissions on the facts in relation to this case and in support of the arguments made by the government parties and, picking up also what is said in the extrinsic material, that people such as Ms Keating would have been aware of their obligation to notify Centrelink.  Your Honours will find that both in some of the arguments that are made in this case and the extrinsic material.

Now, we would submit that such factual assertions are too wide and too general because, as section 74 of the Administration Act recognises – and I will take your Honours to that in some detail when I come to the construction argument – that has a number of exclusions and exceptions.  That provision – and the scheme we would submit – inherently recognises that there may be a myriad of reasons why people receiving social security payments may not be aware of that obligation.  They may not receive the notices, they may be illiterate, they may not speak English, they may not have the intellectual capacity to understand the notice; they may simply be in such pressed circumstances that the notices do not get read.  That is why, in our submission, in section 74 one finds a number of exculpatory provisions operating to recognise that fact.

Now, all of that may or may not affect a particular prosecution, but it would be wrong in our submission to tar all recipients with the brush of deliberate fraud and perhaps especially those whose income fluctuates.  So we would simply ask the Court to disregard the breadth of some of those statements that are made.

Now, on the facts, I thought it might be helpful to take the Court to an example of how the section 68 notices operate and to do so by trying to look at how the period works under section 66A on the prosecution’s argument, and how the period works under the section 68 or section 74, the notices provisions.  I propose to take as an example the first charge period and ask your Honours to go to the table that is at paragraph 22 in the Court book.  So if your Honours look at the first charge period, the last entry on that, 2 October 2007, your Honours will see that Ms Keating’s earnings were just over $2,000 which, on the calculations, did not entitle her to any single parenting payment at all and she was in fact paid $320. 

Now, assuming that the event – as your Honours will recall from the general terms of these provisions, they are triggered by an event, the obligation to inform - so assuming the event is the receipt by Ms Keating of her fortnightly wages, and we assume we need to at the moment because there is a slight gap in some of the facts, assuming that receipt occurred about 2 October then section 66A required that Ms Keating inform the Department of the receipt of that amount within 14 days after the day on which she received it.  Now, that would take us to about 17 October so we would submit, taking this example, the duty that is purported to be imposed by section 66A would arise not before 17 October.

BELL J:   Does that rather point up another issue concerning the way the charges are framed?  One sees in paragraph 19 at page 10 of the book that:

PPS is paid fortnightly, for periods known as “entitlement periods” –

and that entitlement periods –

do not necessarily correspond to the pay periods for a given PPS recipient.

One then has a number of instances when the applicant’s gross earnings are said to be either greater or less than the amount declared in her application.  You say one looks to the event or change of circumstances for 66A to the last occasion in the period the subject of the charge.

MS MORTIMER:   No, your Honour, I am simply taking it as an example.  Every receipt of an amount where there is a change to a person’s income or an increase may trigger the obligation.  I am simply using this as an example, and perhaps I should not have chosen the last one ‑ ‑ ‑

BELL J:   No, I am seeking to understand when it is, on your understanding, that there was an advertent failure by your client to inform Centrelink of a change of circumstances.

MS MORTIMER:   Yes, your Honour, and there are really two ways to put that.  The first is that when one has a notice and within – no, I withdraw that.  In relation to section 66A that then one looks at what the event is and the event is the increase in income.  So one has to try and understand when is the person aware about the increase in income, and one assumes that is when the income is received by the person if it is received fortnightly.

CRENNAN J:   That is when the 14 days starts to run. 

MS MORTIMER:   That is when the 14 days, we would submit, starts to run under section 66A or the day after that that is so.  So that is a clearer operation than the notices because the notices are repetitive and your Honours will see from the agreed facts that it is asserted that a number was sent to Ms Keating, and there was a grant letter sent.  In the grant letter itself there is an obligation referred to about what recipients have to tell Centrelink.  So as we understand it one of the prosecution’s arguments is that this is an ongoing obligation. 

So that if in 2005 when Ms Keating started to receive her payments she gets a grant letter that says you have to do something within 14 days, then that is a continuing obligation throughout the period that she receives social security benefits.  I understand – my learned friend may correct me – but I understand that is one of the ways that the notices argument is put. So the timing issue is around the notices, but then they are received periodically, in any event, and there is a question about whether there is a new or different obligation triggered when another notice is sent.  So the timing around them is a little more difficult, but it still has the concept of a 14‑day period.

BELL J:   Is there an obligation under section 66A(2) in a circumstance such as this where the event, or change of circumstance, is the receipt of income greater or less than the amount advised in the application, a duty on each occasion to advise?

MS MORTIMER:   Yes, your Honours, because it is in the singular.  It is “an” event that might affect the payment and so that part of, in our submission, the retro act of operation of that is that reaches back to each and every event starting from the commencement of the payment of the benefit to an individual to impose a duty to the Court within 14 days of that event.

HAYNE J:   But this is to enter the maze through the gate marked 66A.

MS MORTIMER:   That is so, your Honour.

HAYNE J:   And to enter the problem by first identifying the obligation.

MS MORTIMER:   Yes, your Honour.

HAYNE J:   Why should one not begin with what is charged?  And if one goes to, for example, page 77 of the book, observe that each count is a between dates count.  Then observe that the count which is charged is a count alleging completion of the offence by a specified date.

MS MORTIMER:   Yes, your Honour.

HAYNE J:   Is that not the point from which analysis must begin – namely, whether, taking at page 77 the count numbered 4, by 4 October 2007 the offence alleged had been committed?

MS MORTIMER:   Yes, your Honour.

HAYNE J:   In particular whether there was, by no later than 4 October 2007, an advertent failure?

MS MORTIMER:   Yes, your Honour.  We would understand ‑ ‑ ‑

HAYNE J:   As if you enter the maze at the point of 66A you are beginning to make temporal assumptions which may be well founded but which are temporal assumptions that at the very least must be examined.

MS MORTIMER:   I understand that, your Honour.  We would submit that, as we understand it, the grouping of those dates is principally directed at the proof of the financial advantage – that is, over that period there is on balance a financial advantage in the offences ‑ ‑ ‑

HAYNE J:   The person drawing the charges may well have had the most powerful forensic reasons to frame the charges in the way in which they did.  But those are the charges.  That is what we have to grapple with.

MS MORTIMER:   They are.  So far as section 66A is concerned, in its retroactive operation there must be ‑ ‑ ‑

HAYNE J:   You speak of retroactive operation.  That is the point I am putting to you, Ms Mortimer; that the moment you utter that phrase you have made a number of assumptions which at the very least need to be taken out, dusted off and tested.

MS MORTIMER:   Yes, your Honour; that is what we are here for.  I understand that.

HAYNE J:   I thought so.

MS MORTIMER:   Perhaps it is not a useful exercise to delve too much into how the 14 days works through any given example, save to advert that both section 66A and the notices require a person to do something within 14 days.  One of our principal arguments in relation to section 66A is that it is not possible, if it is given a retroactive operation, for that to occur.  But I will come back to that.

Can I turn to the way that we put the first construction argument? It has these steps: firstly, to examine the terms and effect of section 66A; then, we would submit, to look to what the operation of section 135.2 of the Code is, particularly the first element, and focus on that because that is the one that the second aspect of the Code also operates on and that is section 4.3.

FRENCH CJ:   Looking at paragraph 3, I suppose, of your outline, are you putting essentially that 66A does not logically engage with 135.2?

MS MORTIMER: Well, let me put it this way, your Honour, that the operating provision is section 135.2 read with section 4.3.

FRENCH CJ:   Yes, that is where the focus has to be.

MS MORTIMER:   The question is has section 66A successfully implied into the operation of that provision a retroactive operation, as it must do, because one can look at section 66A as a freestanding provision and the construction of that, in our submission, is quite straightforward and I do not propose to spend very much time on it.  As a self‑contained provision by reason – and may I ask your Honours just to turn it up.  It is behind tab 3.  Your Honours should have a bundle of legislation that is prepared on behalf of the informant, I think.  The heading is “Index to Book of Legislation”.

Section 66A which was introduced by Act 91 of 2011 is behind tab 3 and the operating provision is section 66A(2).  That is the one that operates on people who are being paid a social security payment.  So that is the provision that confers the duty and the retroactive operation is given in two ways.  It is given firstly by section 2, under the heading “Commencement”.  Your Honours will see that that provides the date on which Schedule 1, in which section 66A is taken to have commenced, and backdates it to 20 March 2000, which is the day that the Social Security (Administration) Act commenced.

Then over the page in item 3 of Schedule 1 your Honours see an application provision which states that section 66A applies in relation to an event or a change of circumstances that occurs on or after 20 March 2000. So, with that small digression, to come back to your Honour Chief Justice French’s question, in its terms it is clear on its face that section 66A has a retroactive or retrospective operation but that, we would submit, is not enough and, indeed, is not actually the right question. The right question is is there a retrospective or retroactive operation to the offence provision and the offence provision is section 135.2 read with the definition of “engages in conduct” in section 4. That is the offence provision. That is the provision which has to have a retroactive operation in order to allow Ms Keating’s prosecution to be caught by that duty.

There is not really any more at the moment that I want to say about section 66A itself, but our submission in broad terms about section 135.2 is this. That is the law creating the offence. It adopts, in our submission, an ordinary approach to the criminal law by fastening on the time at which the conduct constituting the offence occurs and that is why, in our submission, it uses the present tense.

Your Honours will find section 135 in the extract of the Criminal Code which is behind tab 1 – it is on page 259 of this reprint – and your Honours will find the other key provision, section 4, is on pages 6 and 7 of the reprint.  Those are the two parts to have to hand, if the Court pleases.

We submit that section 135.2 supposes that the offences completed when the last of the physical elements occurs in fact – that is, it is drafted regularly, like all criminal provisions. It is an offence provision of general operation, that is, it picks up through the use of the term “engages in conduct” – I will come to that in a moment – it picks up, or is capable of picking up, a number of other laws of the Commonwealth, but it is also capable of operating on positive – on commissions across a wide spectrum of conduct, so it is a provision of general operation.

In that sense, in our submission, to see section 66A as affecting an implied amendment to it so that it can operate in one of its many applications in a retroactive way is at best an unusual construction to put on such a general provision, and it introduces a disconformity between the way it operates, that sometimes it will operate retrospectively or retroactively and sometimes it will operate prospectively, but through an implication, not through anything expressed in the text of section 135.

Now, there are, as the Court pointed out in Poniatowska, four elements to the offence in section 135.2 and the third element, the circumstance of a financial advantage being gained, is quite separate from the conduct constituting the offence and the Court made that point in Poniatowska at paragraph 35.  So the conduct constituting the offence, in our submission, is what is encapsulated in subsection (1)(a) and that involves the combination of the physical and fault elements which means, in our submission, that a person must intentionally engage in the conduct. 

That is set out in Poniatowska at paragraph 21 – I am just giving your Honours these references rather than going to that decision at the moment.  So that means that, in our submission, there must be proof that when one is talking about an omission, there must be proof that the person intentionally omits to perform an act which there is a duty to perform.

So the tense used is “is” and that is of some significance in our argument.  The other aspect, perhaps just to finish up with Poniatowska, that is important to understand is the way that the court said that section 4.3(b) – if your Honours look at section 4.3(b) and the way that it is said in paragraph 39 of Poniatowska that this is capable of being picked up or used in section 135.2 is because that phrase “engage[s] in conduct” is seen as a shorthand reference to be able, by implication, to pick up omissions where another law of the Commonwealth confers the duty to perform them.

So what this Court said in Poniatowska at paragraph 39 is that is how section 135 impliedly provides that the offence can be committed by an omission. It impliedly provides that by using that phrase, “engage[s] in conduct” it is, with respect, a slightly circular argument, but nevertheless, Poniatowska is authority for the proposition that section 135.2 is one of the offences that is capable of impliedly providing that a person can commit the offence by omission if there is, under a law of the Commonwealth, a duty to act.

Our submission is that that analysis, consistently with Poniatowska, does no more than what I have just submitted, that is, it does no more than establish that the conduct constituting the offence of obtaining a financial advantage can occur by a person failing to do what the law of the Commonwealth obliges her to do.  It opens up that as a possibility and we accept that prospectively section 66 is capable of having that operation, but the question is how much has to be done to rebut both the presumption of retrospectivity and to deal with the plain language in the text of the offence provision and we submit that doing it simply through section 66A without an amendment to either the offence provision itself, or an amendment to section 4.3(b) is insufficient to give both those provisions, which are general provisions, a retroactive operation.

We make the following points about the test. One only gets into the sphere of omissions because, as I have just submitted, section 135.2 is said to impliedly provide for the commission of an offence by omission.

So we are already in the territory of an implication that we are making, in a construction sense, an implication into section 135 to even allow it to operate in respect of omissions. Now it is said that we are to make further implications into the text of it said both, as I understand it, section 135.2 and section 4.3, to allow them to have a retroactive operation. Now, in the face of that section 4.3 which is the gateway into the offence provision uses the present tense twice and, we submit, that this textual indication is important and that the two uses of the present tense are connected. The first use that it makes in section 4.3 is that it talks about:

the offence is committed –

So that points to the question of at what point does that occur and, we submit, that the language points to the time of the conduct constituting the offence.  It is at that point that under ordinary criminal law principles at the time of the conduct constituting the offence, there should be a concurrence of the act and the intention.  So, so far we are regularly operating under the criminal law and, in our submission, section 4.3(b) is doing that.  It is looking at the time of the conduct constituting the offence and the conduct constituting the offence, we are told in the second use of the present tense in 4.3(b), is -

an omission to perform an act that by law there is a duty to perform.

So again, in our submission, consistently this is contemplating the existence of a legal duty which will concur with the failure to act and will concur with the formation of the intent.  All of which is a regular application of the criminal law.

FRENCH CJ:   If 66A(2) had finished with the words “and such duty shall be deemed to have existed on and from March 2000”, would it make any difference to your argument?

MS MORTIMER: No, your Honour, no it would not because, in some that is, the effect of the commencement provision and the application provision. So it does not make any difference. Our argument focuses on the failure to amend the offence provisions. So we submit that when one looks at that concept, the physical element in this the conduct constituting the offence which is this notion of “engages in conduct” that is the general notion that is used and put into section 135.2. That is speaking to the time at which there was an omission or a failure to do something and it looks for a legal duty to be existing at that time that is, for there to be a co‑existence of the failure and the duty. That is the plain meaning, in our submission, and I come back again to the fact that these are general provisions.

KIEFEL J:   On your submission it is the fact that the fault element cannot apply – section 66A cannot allow a fault element to apply in section 135.2 – that is the key to it.

MS MORTIMER:   That, in our submission, your Honour, supports this construction.  It is difficult to understand how the fault element is to apply – that is, we know from the provisions that the fault element is that the person must mean to engage in the conduct.

KIEFEL J:   Here the fault element is, what, intentional or recklessness?

MS MORTIMER:   No, it is intention, your Honour.

KIEFEL J:   Intention to not provide the information.

MS MORTIMER:   That would be half of it.  That was really the point, in our submission, of Poniatowska, that there has to be a duty as well.  It is a composite phrase.

KIEFEL J:   Yes, but the intention would not attach - it would not be necessary that you intend to breach a duty.  The intention would have to go with the act or omission, so it would be the intention to omit to provide the information as to change of circumstance.

MS MORTIMER:   With, in our submission, your Honour, a consciousness that the quality of what is being punished is the failure to do what you are obliged by law to do.  So, in our submission, when you mean not to do that then what you must be meaning not to do is not to advise the Department when you have a duty to do so.  So although ‑ ‑ ‑

KIEFEL J:   You are eliding two things, are you not?  The breach of duty is the legal consequence but the fault element of intention attaches to the physical element of omission.

MS MORTIMER:   Yes, your Honour, and it would be a difficult submission to say that you must be conscious of the duty.  We accept that.  What we do say is that if you take Ms Keating as an example, Ms Keating cannot in reality have meant to fail to advise the Department of an increase in income when she had an obligation to do so in 2007.  As a matter of reality, she cannot have meant to do that because the duty did not in fact co‑exist with when she formed her intention or when she performed the physical elements.  In fact it did not.

BELL J:   The significance of the duty in this context is partly to fasten on a point when one can say of a person that their conduct in not doing something is an intentional failure.

MS MORTIMER:   Precisely.

BELL J:   Absent that, one has a difficulty in characterising conduct in not doing something as having an intentional element attaching to it.

MS MORTIMER:   Certainly, in not doing something that constitutes a crime, your Honour.  That is, in our submission, one of the main themes to emerge from Poniatowska, that when one is dealing with omissions it is a composite concept.  There is a failure and the obligation.  They only work to impose criminal liability together.

KIEFEL J:   What you are saying is that duty in this context – sorry, go back a step.  That one is not speaking of the physical act of omission, but that you require a legal duty because in the context of an offence a person is intended to respond to something, there is a reaction required.  Perhaps the word “choice” is not the correct term, but a person is responding to an obligation, and that is where the intention must reside, that is the area that you were talking about.

MS MORTIMER: We are, your Honour, in the sense that that is the minimum that the law requires before the law will punish a person for an omission, and there is, in our submission, and has always been, a notion that there must be a coexistence of the failure and the duty, that they work together, and if they do not work together one has not got that element of the crime to which the intention is to be directed. In that sense, in our submission, there would need to be quite a lot of rewriting of section 135.2 and section 4.3(b) to make that clear.

KEANE J:   Ms Mortimer, I do not want to ask you to go back on this, but in relation to 4.3(b), which speaks of “the law creating the offence impliedly” providing something, my understanding of Poniatowska was that it was not concerned with 4.3(b) at all.

MS MORTIMER:   It was not, your Honour.

KEANE J:   So when 4.3(b) is talking about “the law creating the offence impliedly” providing it is talking about, in this case, 135.2.

MS MORTIMER:   Yes, your Honour.

KEANE J:   How does 135.2(1)(a) imply anything about – that an offence is committed by a failure to act?

MS MORTIMER:   Your Honour, I think to answer that I do need to take the Court to what was said, because there was something said by way of obiter about this in Poniatowska, which we have accepted as the appropriate approach, and Poniatowska is (2011) 244 CLR 408. Your Honour Justice Keane is quite right that neither of 4.3(a) nor 4.3(b) were at issue in that sense in Poniatowska, and that was part of the problem the Court identified with the argument that was put on behalf of the DPP, but at paragraph 39 – so this actually comes in the judgment after the Court has dealt with why there needs to be, but was not, a specific omission to act to be identified.

Perhaps if I can just refresh your Honours’ memory about this. Paragraph 35 of the judgment sets out – in 35, 36, 37 are really the key aspects of the Court’s reasoning process on this issue and at the last sentence of paragraph 35 the Court says that there was a problem about the way the argument was put conflating “the elements of conduct and the result” and that meant that “the need to identify a specific omission” had been overlooked. In paragraph 36 the Court goes on to make it clear that it was important to be able to identify a specific omission to perform an act, and the problem that the Court saw with the argument is expressed in paragraph 37, that there is no precise identification in section 135.2 of an omission to act.

So it does not come within 4.3(a) and there is a paragraph – I will just have that turned up there.  The Court makes it clear that 4.3(b) was disavowed.

KEANE J:   That is at 34.  So the case was entirely about the operation of 4.3(a), and the point was that 135.2(1)(a) does not make it so, does not make the omission the physical offence, the physical element.

MS MORTIMER:   That is right, your Honour, because there was no specific omission identified, and the Court contrasts the operation of section 135 with the operation of section 74 of the Administration Act, to which we will come, where section 74 of the Administration Act very clearly does make it so because that is a provision which imposes a criminal liability for failing to notify Centrelink of something. So their Honours use that as an example of a provision that does make it so.

But having said that, there is then what is said in paragraph 39 of the judgment, which is really raised to answer an argument that was put by the appellant that there may be otherwise no work to do for that expression “engages in conduct”. So the construction issue was what work does that have to do in section 135, and the answer that the Court gave is that it was a drafting technique used that could then be picked up and used throughout the Code as a way of conveying a legislative intent that an omission where there was a duty to perform the act was picked up.

So that, as we understand it, to answer your Honour Justice Keane’s question, is how it is said by the Court in Poniatowska that a provision such as section 135.2 impliedly provides. It impliedly provides by using the phrase “engages in conduct”, which then itself is defined as being capable of picking up an omission.

BELL J:   That is because of 4.1(2) in the definition of “engage in conduct”, which I think was introduced into the Act somewhat after the other provisions.

MS MORTIMER:   Yes, and that in our understanding is the import of the last sentence in paragraph 39 of Poniatowska. There is, we accept, a little circularity in that, but it does explain how one can take a drafting technique of a phrase like that and use that as a way of impliedly providing something. So we have not in our argument, in that sense, sought to quarrel with that proposition. Instead, in that sense, we submit that a regular construction of section 135.2 with 4.3 does mean that prospectively, a law of the Commonwealth can impose a duty which can be picked up by section 135.2.

That is all, in our submission, a perfectly regular operation of the criminal law.  The issues about the tenses and the co‑existence of the failure and the duty, all those matters as a matter of construction, operation and application work perfectly regularly in a prospective application but they do not with a retrospective application.  That, in a nutshell, if the Court pleases, is how we put the construction argument about that.

Now, either we are right or we are wrong about that, either there is enough force in what the informant says about how the presumption is otherwise rebutted, which we understand really comes from saying, well, look at the very clear terms of section 66A and the extrinsic material. That was what Parliament was intending to do. We must be frank about it, our argument involves inviting the Court to reach a conclusion that Parliament’s intention has miscarried and that if Parliament wants to give a retroactive operation to a general provision of the criminal law it should amend that. It must amend that provision. It must amend the offence provision because otherwise the other consequence that is introduced – and this case, in our submission, is a good example – is there is an ambulatory retroactive effect of section 135.2.

In some cases, depending on the law, the implication plus the implied retrospective effect from another law it will operate retroactively to punish and in other cases it will not.  That introduces, in our submission, a level of uncertainty and unpredictability in the operation of a criminal provision which should not lightly be countenanced on a construction basis.

BELL J:   Does it also produce this result, that if 66A has the effect for which the Director contends - there is the assumption from some of the extrinsic materials that people have received a 68 notice in the case of someone who is in receipt of a social security payment is misconceived, the duty would not depend on consideration of whether or not any notice had been received?

MS MORTIMER:   No, your Honour, that is right and that is why there is a little bit of a bet each way being had here, that is, there are two streams of argument.  The notices argument, the notices issue, was not dealt with in Poniatowska at all.  The DPP did not rely on or identify section 68 or section 74 as, in that case, a source of a contemporaneous duty but what section 66A, on our learned friend’s argument, is intended to do is to provide a freestanding duty that can be picked up by 4.3(b).  It is quite separately from the notices but there is no abandonment of the argument based on the notices.  It is probably an appropriate time for me to turn to that.

HAYNE J:   Can we strip out of your argument the reference to “retroactive” and “prospective” which are terms having more forensic advantage than analytical effect, I fear?  Does your argument, in the end, come down to this proposition?  At 4.3(b), in its application to 135.2, must be read as speaking – and speaking only – of an omission to perform an act that, at the time of the omission, was one which, by law there was a duty to perform.

MS MORTIMER:   Yes, your Honour.

HAYNE J:   And, that one cannot, textually, translate 66A into 4.3(b)?

MS MORTIMER:   In its present form that is so, your Honour.  That is not to submit that it could not have been done by some kind of amendment to 4.3.

HAYNE J:   Parliament may or may not have been able to do it otherwise.  They did not.

MS MORTIMER:   That is so.

HAYNE J:   But you cannot translate 66A into 4.3(b) without reading the last line of 4.3 as being, by law, there is or at any time, has been or will be a duty to perform.

MS MORTIMER:   Yes, your Honour, that is one formulation.  Or, is subsequently imposed a duty or a number of formulations that - yes, your Honour.

HAYNE J:   All I want to do is strip out retrospectivity as forensically important, but analytically disruptive, I think.

MS MORTIMER:   We would agree with that, your Honour, in that sense.  We submit that ‑ ‑ ‑

HAYNE J:   There is not much choice, is there, Ms Mortimer?

MS MORTIMER:   It can be a dangerous activity doing otherwise, your Honour.

HAYNE J:   Exactly, as you well know.

MS MORTIMER:   Yes.  So in that sense, your Honours, if the Court pleases, we submit, that the construction is a relatively straightforward one and there are a lot of contortions that need to be undertaken to reach the position that the informant would urge on the Court and in the context of the imposition of punishment by the criminal law that should not be done.  May I turn then to the second part of the argument, the construction argument, which is in relation to question 3, the notices argument?

FRENCH CJ:   Just before you do.  I put to you a question before about whether it would make any difference if there was an express deeming terminology.  If one extended that to 66A says you have got a duty to notify within 14 days that duty shall be deemed always to have – shall be deemed to have existed on and from March 2000 for the purposes of section 4.3 of the Criminal Code.  I am just trying to work out ‑ ‑ ‑

MS MORTIMER:   Yes, your Honour.  That is going to come ‑ ‑ ‑

FRENCH CJ:    ‑ ‑ ‑the importance of this temporal argument.

MS MORTIMER:   Yes, your Honour.

CRENNAN J:   Your concurrence point?

MS MORTIMER:   The concurrence point, yes.  At a construction level, taking the concept of “impliedly provides” then that may well come closer.  It still, in our submission, is difficult when it is located in section 66A rather than located in either the offence provision or the central definition that gives an omission its culpability because they are general provisions, your Honour.  That is one of the issues that we submit is difficult.  It means that you are applying very different constructions depending on the law that is picked up and you are only picking up the law by implication, so in all those senses, to give it a retrospective application at a construction level is something that, in our submission, is very difficult ‑ ‑ ‑

KEANE J:   Well, without talking about retrospective operation, is not the question really whether 66A can be construed as purporting to amend 4.3(b)?

MS MORTIMER:   Yes, your Honour, that is so, and if there is an express reference to section 4.3(b) in section 66A then that conclusion will be easier to reach.  That is so.

FRENCH CJ:   Now, the alternative is that it is not what it seeks to do - or what perhaps executive intention, as distinct from parliamentary intention was, was not to amend 4.3(b) but to give a particular content to the “is a duty to perform” which is ambulatory because that duty may be derived from a variety of sources and 66A was designed to create, perhaps, an additional source of a duty to perform.

MS MORTIMER:   Yes, your Honour.  We accept that that was the executive intention.  That is so.

HAYNE J:   But in deeming terms that is a true fictitious deeming.

MS MORTIMER:   It is, your Honour.

HAYNE J:   The duty did not exist, but it is now to be taken as if it existed (when it did not).

MS MORTIMER:   In order to impose punishment, that is so.  That is where, in our submission, if that is the effect we put our Chapter III argument because it is that notion of this legislation pretending that a duty existed at the time of the failure when it did not and requiring the Court to pretend that it did and that is the effect for which the informant contends.  That is why, in our submission, if that is the true construction then the Chapter III arguments are live, and if that is not the true construction then we do not need to trouble the Court with the Chapter III arguments and this case becomes a case about statutory construction. 

May I turn to question 3 and the notices argument? As we understand it the principal source – so we are now moving right away from section 66A into another silo of where a duty for the purposes of section 135 might be located.

As we understand it, the informant submits that the principal source for this duty is section 74 of the Administration Act and I will bring your Honours to that in a moment.  We do see in the informant’s submissions to this Court the raising of an argument that section 68 of the Administration Act can itself be the statutory source of the duty.  So I want to start by taking your Honours to that section, section 68 which – sections 67 and 68.  They are behind tab 2 in the materials, if the Court pleases.

CRENNAN J:   74, is it?

MS MORTIMER:   Sections 67 and 68.  As we understand it, section 67 operates because, as your Honours will see from section 67(1), there was a claim made and the claim has been granted.  Section 67(2) then empowers the secretary to provide a notice and, it is said, the notice may require a person to do certain things.  Once a person is in receipt of a benefit then section 68(2) confers a similar power.  So as we understand it, the informant says what is called in this case the grant letter, when the social security payment is first granted – is the secretary is empowered to send the letter in a form that triggers section 67(2).  Once a person like Ms Keating is in receipt of social security payments then the secretary is empowered by section 68(2) to give her notices.

If those provisions are relied on as a free‑standing imposition of a duty for the purposes of section 4.3(b), we say they are not sufficient. They are empowering provisions and then through an Administrative Act a notice is given. That is not sufficient, in our submission, to satisfy the requirements of 4.3(b). The closer argument, but only closer, is section 74 and if I can take your Honours to that. This is one that, in answer to your Honour Justice Keane’s earlier question, makes it so that is, makes an omission to act culpable. There are problems, in our submission, in both the scope and application of using section 74 and they are these. First, there is a disconformity between the punishments of section 74 and section 135.

So the informant proposes you can pick up a duty like the one in section 74, which imposes a maximum sentence of six months, and you can import it as an element of an offence that carries a maximum sentence of 12 months, which would seem to defeat in one sense the operation of section 74.  It expands it.

HAYNE J:   Why?

MS MORTIMER:   Because it then becomes used for a prosecution with twice the punishment – that exposes a person to twice the punishment.

KEANE J:   Because there are extra elements involved.  There is the obtaining of advantage, which is not required to make good the prosecution under 74.

MS MORTIMER:   I understand that, your Honour.

HAYNE J:   Section 74 may be bureaucratically convenient to have the notice on file, even though it is a nil return.

MS MORTIMER:   We accept that, but it is still picking up a provision with a specific punishment and using it in another one.  It also is picking up a provision that must be prosecuted within a year of the omission and using it on the informant’s argument to prosecute something that has occurred without a limit, so again you pick it up and you put it into 135.  You do not have to prosecute it within a year.

HAYNE J:   But would it not be the case that most duties imposed by law to which 4.3 refers are duties which are backed up by punishment for default of performance?

MS MORTIMER:   Not necessarily ‑ ‑ ‑

HAYNE J:   I agree, not necessarily, but would not the archetypical case be one where there is a duty imposed by a law?  If you do not, you can be convicted and fined $100, but it is still a duty imposed by law.

MS MORTIMER:   Your Honour, in that sense, there will be some clarity around the operation of 4.3(b), if that is so.  But can I come to our more substantial objections to the use of section 74?  They are these.  If your Honours look at section 74(3), that uses the language “does not apply”, that is, there is no duty “if the person has a reasonable excuse”.  Now, we ask how does that operate if one picks up that duty and transposes it into 4.3(b).

HAYNE J:   It gives the prosecutor a bit of a headache of proof.  Maybe the prosecutor has to prove the absence of reasonable excuse, I do not know.

MS MORTIMER:   In our submission, that, plus section 74(2), which does not remove the duty altogether but limits it in circumstances where a person is not capable of complying, both those provisions are designed to confer protections and impose limits on the circumstances in which the duty is to arise.  In that sense, it is not apposite to suggest that somehow such a qualified duty is to be picked up and used in section 4.3(b). 

Again, it requires quite a lot of modification to the language of 4.3(b) for that to occur, because 4.3(b), just to remind your Honours, talks about where there is a duty to perform an act.  In our submission, that is contemplating not a situation where the law that imposes a duty says but in some circumstances, there is not one or in some circumstances it may be a more limited duty.  It is looking at something that is clearly capable of transposition.

FRENCH CJ:   Just looking at the textual track, if you like, starting 135.2, have:

(1)A person is guilty of an offence if:

(a)The person engages in conduct; and

(aa)as a result of that conduct, the person obtains a financial advantage –

Now, that can pick up by virtue of 4.1(2), “omission to perform an act”, but it can only be a physical element under 4.3(b) if it is “an act” that by law there is a duty to perform.  Now, in this case the omission asserted is the failure to provide relevant information of change of circumstances.

MS MORTIMER:   Yes, your Honour.

FRENCH CJ:   That was a duty imposed as a result of the issuing of the notices and the operation of section 74, was it?

MS MORTIMER:   That is the informant’s argument and we submit ‑ ‑ ‑

FRENCH CJ:   Yes, but I am just wondering why that textually does not answer the description to perform an act that by law there is a duty to perform.

MS MORTIMER:   As to the first, sections 67 and 68 because the duty is not imposed by law it is imposed by the administrative act of giving a notice that is ‑ ‑ ‑

FRENCH CJ:   But that has legal consequences.  One of those is section 74.

MS MORTIMER:   Section 74, then, in our submission, is the ‑ ‑ ‑ 

FRENCH CJ:   Let us assume for the moment that gives rise to a duty.  You say it is qualified and different?

MS MORTIMER:   That is so, your Honour.  It is qualified and different and the qualifications and differences will be subverted if it is picked up and put into ‑ ‑ ‑ 

FRENCH CJ:   Well, putting aside language like subverted, an act that by law there is a duty to perform do you say that textually the failure to notify of a change in circumstances is not an act – I am sorry, the duty to notify of a change in events and circumstances does not describe the duty defined by section 74, is that ‑ ‑ ‑ 

MS MORTIMER:   Yes, your Honour, that is so.

FRENCH CJ:   So that is the textual argument.

MS MORTIMER:   There is no necessary correspondence between them because unless and until one determines the facts of any given case, particularly in relation to section 74(3), one does not know whether section 74 applies.

KEANE J:   But one does not know whether any section that imposes a duty works to impose a duty until the facts are found and is not that the basis on which 74 is operating?

MS MORTIMER:   Your Honour, in the context of 4.3(b), it requires the duty by law and, in our submission, that is looking to a more certain source for the duty than one that will apply in some circumstances and will not apply in others, and may apply to some extent and not to others.  So we submit, that there is simply a mismatch between such a qualified duty in section 74 and the kind of duty that, by law, section 4.3(b) is talking about because, it is looking, again, for a co‑existence between the act of failing to notify and the obligation to notify and is looking for those two things to co‑exist and then it is asking what the intention is in relation to that physical act. 

That is part of the steps you must take under section 135 and, all of that becomes, in our submission, a very problematic exercise when you have a duty that will not apply in some circumstances at all and may only apply to a limited extent in others.

HAYNE J:   Well, now, section 74 you are not saying is void for uncertainty, are you?

MS MORTIMER:   No, your Honour, and, on its terms ‑ ‑ ‑

HAYNE J:   Section 74 can be applied?

MS MORTIMER:   In a prosecution under section 74, yes, your Honour.

HAYNE J:   Yes and, once you have got ‑ ‑ ‑

CRENNAN J:   Do not worry about 66A?

MS MORTIMER:   They are separate arguments, your Honour, we accept that.

HAYNE J:   Once you get to the conclusion that 74 can be applied, in its terms, to the point of prosecution to conviction.  Yes, there may be a large and difficult forensic task ahead of a prosecutor and there may be a very fertile field for counsel for the defence to be tilling in the 135.2 prosecution, but is there not a duty?

MS MORTIMER:   Well, your Honour, I have made our submissions ‑ ‑ ‑

HAYNE J:   Yes.

MS MORTIMER:    ‑ ‑ ‑about why we say there is not, but if we are not persuasive about that then we accept that that is a separate source that is identified, that does not have the problems of any – if your Honour Justice Hayne will pardon me – retroactivity associated with it.  We accept that as we must, but that is a separate source that existed at the time of the failures alleged against Ms Keating.  Now that then brings me to the way that we put our argument with the constitutional question.

BELL J:   Before you get to that, can I just raise an issue arising out of the content of the notices.  If you go to page 14 of the court book, one sees a notice dated 14 October 2005 ‑ ‑ ‑

MS MORTIMER:   Yes, your Honour.

BELL J:    ‑ ‑ ‑respecting a payment period between 6 and 18 October, due on 20 October, in respect of which it is recorded, that the information that Centrelink has is that the applicant’s earnings were $760.15.  It then under the heading “What you must tell us” advises:

You must tell us within 14 days. . .if any of these things happen, or may happen.

and then it says:

If you get a Reporting and Income Statement, report you earnings or changes in circumstances on your reporting day.

MS MORTIMER:   Yes, your Honour.

BELL J:   Is there a reporting and income statement and ‑ ‑ ‑

MS MORTIMER:   There is not evidence before the Court of one and we do not understand that there is one in relation to Ms Keating, but we may be wrong about that.  My understanding, your Honour, and it is very imperfect, is that that is something that not all recipients of this benefit may have had at the time.

BELL J:   There is the reference to a reporting day.  Do we know anything about ‑ ‑ ‑

MS MORTIMER:   No, and there is an agreed fact at paragraph 17, your Honour, that says that:

Centrelink did not at any time between October 2005 and 3 September 2009 notify the Applicant that she was required to report her income to Centrelink at any specified interval, such as fortnightly.

As I understand it, your Honour, that is the function of the reporting and income statement, so it is like a reminder.  Some recipients are sent a reminder saying tell us what your income has been in the last fortnight. 

BELL J:   I see.

MS MORTIMER:   Sorry, I must correct that, that the receipt of the benefit is subject to a condition that they must report their income fortnightly and that was not a condition that was imposed on Ms Keating.  I am sorry, your Honour, it is complicated.

BELL J:   Not at all, thank you.

MS MORTIMER:   If the Court pleases, that completes all I want to develop by way of oral argument about the construction issues and that brings us to the constitutional question.  Our submission starts really with this proposition, that by reason of this Court’s decision in Poniatowska it was not possible for Ms Keating and others like her to be convicted of the offences with which they were charged. 

Now, immediately that requires a caveat around the submissions around the notices and section 74, so if we cannot make that proposition in such bald terms, if we are wrong about those provisions, and that, we accept, may have some impact on the strength of our constitutional argument because it may then be able to be said that at some time contemporaneously with the failure the failure was a breach of the law.

So we accept that that is a problem.  However, we do submit that that finding in Poniatowska was no technicality and “technicality” is a word that is used in the extrinsic material introducing section 66A and one finds it located in the informant’s submissions to this Court as well and it was not, in our submission, a technicality.  It was an application of a longstanding criminal law principle about liability for omissions.

In the case of pending prosecutions, where there was an apparent failure to supply information to Centrelink in fact, once the law was retroactively applied then satisfaction of the physical element, the “engages in conduct” element, in our submission, broke the link to avoid certain acquittal.  So in pending cases like Ms Keating’s, pending prior to Poniatowska, the introduction of section 66A with retroactive effect broke the link to, in our submission, a certain acquittal.

The mechanism that was employed in section 66A, in our submission, does involve a fiction and it is a much more acute fiction when one is dealing with an omission than when one is dealing with an act of commission.  If the Court pleases, contrary to some of our learned friend’s apprehensions about our arguments, we do not come here on this Chapter III argument to attack in general retrospective legislation.  Our attack is confined.  The target of any invalidity would only be item 3 of Schedule 1 to the 2011 amendment and section 2 of the amendment Act.  So section 66A in its prospective application is left untouched.

We confine what we submit about the Chapter III arguments to the imposition of criminal liability.  We confine it to section 66A as an example of a law which interferes with how a court decides an element of an offence and where there is, in our submission, something in the nature of a fiction created so that the court must pretend that the facts were other than they were at the time of the conduct constituting the offence.

In that sense, we do adopt the approach of both Justices Deane and Gaudron in Polyukhovich.  Both those Judges distinguished between retrospective criminal law and other retrospective law and found only the former to be incompatible.  We concentrate on the nature of judicial power in the criminal law and on the concept of what is a crime, what it means to be found guilty of something and what the function of punishment is.  In that limited sphere we submit there is no room for fiction.  The criminal law does not countenance the imposition of punishment nor admit a crime to be something that involves a fiction.  It is talking about what people actually do at the time they do it.

KIEFEL J:   Were either Justices Deane or Gaudron concerned with the notion of fiction in their reasons?

MS MORTIMER:   They were, your Honour; both of them.

KIEFEL J:   I do not mean to take you out of sequence.

MS MORTIMER:   No, your Honour.  I do propose to go to that.  I might in fact ask your Honours to turn to Polyukhovich (1991) 172 CLR now, if the Court pleases, at page 501.

HAYNE J:   Sorry, at what page?

MS MORTIMER:   Page 501. The nature of the legislation in this case was influential on all the Judges, in our submission. Can I take your Honours to an extract of that at page 541 of the judgment, in the judgment of his Honour Justice Brennan? Section 9 was the provision which created the offence of a war crime, and then there was a definition given, as his Honour reports about two‑thirds of the way down that page:

The term “a war crime” is defined by reference to another term: “a serious crime” –

which was then defined in section 6.  Your Honours will see the list of things that were then said to come within the definition of “a serious crime”, under the law of Australia and done in Australia.  It is that definition that was picked up and said to apply to a war crime, even if it was done outside Australia.  So Australian domestic law was used to identify the kinds of offences that although they, in this case, were committed by somebody that was not in Australia, said to be, and who then had no connection with Australia were nevertheless then brought in as an offence under Australian law.

In our submission, the picking up of things that were clearly offences under Australian law was very significant in particular to the reasoning of Justice Toohey, and if your Honours turn to page 690 of the report, your Honours will see under the heading “Retroactivity:  The Act”, his Honour says:

The Act is not offensively retroactive in relation to the information laid against the plaintiff –

and his Honour goes on to discuss the fact that what the plaintiff is charged with is murder.  So the nature of the conduct that was being picked up was particularly, in relation to Justice Toohey’s reasoning, in our submission, very important.  That results in the conclusion that his Honour reaches at page 692 at point 9 which is, in its terms, very narrow –

In its application to the information against the plaintiff, the Act does not offend Ch III –

and his Honour goes no further than that.  There is, in our submission, if the Court looks at Justice Toohey’s reasons – and I will not go through them in too much detail – between pages 686 through to 690, it is clear in our submission that his Honour rejects the absolute proposition that a retroactive law can never be incompatible with Chapter III.

His Honour has a much more nuanced position than that, in our submission, really based on the kind of offence provision in the legislation with which his Honour was occupied at that time.  There is nothing, in our submission, in Justice Toohey’s judgment which is inconsistent with the argument that we currently put.  All of the Justices in this case, including his Honour the Chief Justice, Justice Dawson and Justice McHugh, made allowance for some retroactive laws to be incompatible with Chapter III.  That, in itself, goes further than the High Court did in Kidman, and, as always with Chapter III, the question is where the line is to be drawn.

Justice Brennan, in our submission, although his Honour found section 9 unsupported by any head of legislative power and therefore did not directly address the Chapter III issue, his Honour’s analysis about the way there was no support in the external affairs power is informative and does not indicate that his Honour shared the absolute position of the Chief Justice, Justice Dawson and Justice McHugh and we invite your Honours to look at Justice Brennan’s analysis between pages 572 to 575 and in that part of his Honour’s judgment his Honour goes through the nature of the principle of retrospectivity in international law and extracts quite a few sources, including some of the judgments from the Nuremberg Court, which state in very absolute terms that a:

nation may not lawfully enact legislation defining a new crime and make it effective –

That is a statement of power.  Your Honours will find that extract from the Nuremberg Court on page 573, and the passage I have just referred to is about in the middle of that extract.  So, again, we submit that there is no support out of Justice Brennan’s judgment for the position taken by the three Judges whose judgments are usually referred to as in some way carrying a majority view in Polyukhovich. 

What is ‑ and we submit that the informant has not really answered this question for the Court ‑ the content of the fault element in paragraph (a) where the fault element is that a person means to omit to do that which there is a duty by law to do?  Now, my learned friend, Ms Abraham, has said a lot about what it is not, but not about what it is, and we submit that to give effect to the only circumstances in which the Code makes an omission culpable, meaning to do something must involve turning one’s mind to whether to do it, and if one turns one’s mind to whether to do it that requires some consciousness of whether you should do it, because unless it is a reaction, unless one is asking, “Should I do this?” there are an infinite number of acts that one is not doing.

The culpability – in our submission, this is the whole point of Poniatowska – only arises because the law says you should be doing something.  So in the means to fail to do something there has to be an element of conscious choice, in our submission.  Otherwise, one is really not giving effect to the law’s requirement that there be both an omission and a duty.

The second point that I want to make in terms of the construction arguments arises from something that I think Ms Abraham said in answer to a question perhaps from your Honour Justice Keane, and that was about how one should read section 4.3(a) to give it a retrospective operation.  She correctly submitted that one needs to be able to read both (a) and (b) in some consistently retrospective way, if that is how they are to work.

We accept that, but the consequence of our argument is that section 135.2 itself, would need to be amended because 4.3(a) is all about the law creating the offence making it so. So in order to give that a retrospective operation, there would have to be an amendment to 135.2. That is consistent with our argument because our argument about (b) is that there also needs to be an amendment either to 135.2 or to 4.3(b).

The third point on construction relates to the proposition that is made in the informant’s hand up outline at paragraph 14, and I ask the Court to go to that. Now, your Honours will see the heading “Section 74 defences immaterial”. Now my learned friend, as I understood her, did not develop this in oral submissions, but what we understand the contention to be there is that those exceptions and qualifications in subsection (2) and (3) of section 74 do not enter into the Prosecution under 135.2 that is a proposition that is inconsistent with the discussion that was had between myself and your Honours this morning about the way that section 74 would work in a prosecution under section 135. It appears the informant does not accept that those qualifications would have any role to play in a prosecution under section 135.2.

Finally, if the Court pleases, I just want to address what we submit are the consequences for the way the argument flows about the operation of section 74 of the Administration Act.  The existence of section 74 as a source of duty contemporaneously with an omission will not, in our submission, necessarily remove the need for the Court to determine our Chapter III argument about section 66A, not necessarily.

That is for two reasons.  Firstly, there will be prosecutions where there is no reliance on notices.  That is the point that I have drawn to your Honours’ attention in the informant’s submissions and paragraph 76, and this case has come up to the Court on that basis, that not all of these prosecutions involve notices.

Secondly, even for people who receive notices, or were sent notices, for the reasons that were developed in argument this morning, at least in discussions between myself and the Court about how section 74 might operate, a trial on the facts may end up with the proposition that there was no duty under section 74 because one of those limits or exceptions was made out.  That also means section 74 as a source must be discounted and leaves one only with the free standing duty in section 66A, and obviously so.  That is why the Commonwealth enacted it.  It is, as your Honour Justice Hayne pointed out, filling a gap, and avowedly so.

Therefore, if our first construction argument about section 135.2 is not accepted, then we do submit that the Court does need to examine whether there is any Chapter III incompatibility arising from the retrospective operation of section 66A, irrespective of section 74. That second possibility, because Ms Keating’s case is one that involves, on the prosecution’s argument notices, is a real one. That is, if the Court’s analysis about how section 74 might work against our arguments is right, then there may in fact be no duty that can be pinned against Ms Keating, which is a contemporaneous duty with the failure and the prosecution may be thrown only back on section 66A. If the Court pleases, those are the submissions in reply.

FRENCH CJ:   Thank you, Ms Mortimer.  The Court will reserve its decision.  The Court adjourns until 10.15 tomorrow morning.

AT 4.14 PM THE MATTER WAS ADJOURNED