Director of Public Prosecutions (Cth) v Keating

The Director of Public Prosecutions (Cth) appealed to the High Court of Australia concerning charges laid against Kelli Anne Keating. Keating was charged with obtaining financial advantage from a Commonwealth entity contrary to s 135.2(1) of the *Criminal Code* (Cth). The dispute centred on whether Keating's failure to advise the Department of changes in her income constituted the physical element of the offence, specifically an omission to perform an act that she was by law required to perform.

The High Court was required to determine two primary legal issues. First, whether s 66A of the *Social Security (Administration) Act 1999* (Cth) created a duty for the purposes of s 4.3(b) of the *Criminal Code* (Cth) prior to the date on which the Act inserting s 66A received Royal Assent. Second, whether notices issued to Keating under ss 67(2) and 68(2) of the *Social Security (Administration) Act 1999* (Cth) were capable of creating a duty for the purposes of s 4.3(b) of the *Criminal Code* (Cth).

The Court reasoned that s 66A of the *Social Security (Administration) Act 1999* (Cth) did not create a duty for the purposes of s 4.3(b) of the *Criminal Code* (Cth) from 20 March 2000, as it had not yet received Royal Assent and therefore could not impose a legal duty retrospectively. However, the Court held that notices issued under ss 67(2) and 68(2) of the *Social Security (Administration) Act 1999* (Cth) were capable of creating a duty for the purposes of s 4.3(b) of the *Criminal Code* (Cth). The Court found that s 74(1) of the *Social Security (Administration) Act 1999* (Cth) imposed a legal obligation to comply with such notices to the extent that the recipient was capable of doing so, subject to having a reasonable excuse. The limitations on this duty did not negate the existence of a legal obligation.

The High Court answered the questions in the stated case. It determined that s 66A of the *Social Security (Administration) Act 1999* (Cth) did not create a duty for the purposes of s 4.3(b) of the *Criminal Code* (Cth) from 20 March 2000. Conversely, it found that the notices issued to Keating were capable of creating such a duty. The Court ordered that each party bear its own costs of the stated case and remitted the matter to the Magistrates' Court of Victoria.