Jones v Commonwealth Services Delivery Agency - [2012] SASC 106

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
JONES v COMMONWEALTH SERVICES DELIVERY AGENCY
[2012] SASC 106
Judgment of The Honourable Justice Gray
29 June 2012
SOCIAL WELFARE - OFFENCES - FALSE STATEMENTS AND FRAUD - GENERALLY
STATUTES - ACTS OF PARLIAMENT - OPERATION AND EFFECT OF ACTS - RETROSPECTIVE OPERATION - AS REGARDS VESTED RIGHTS, PAST TRANSACTIONS OR NEW RIGHTS OR LIABILITIES - GENERALLY
CONSTITUTIONAL LAW - THE NON-JUDICIAL ORGANS OF GOVERNMENT - THE LEGISLATURE - LEGISLATION AND LEGISLATIVE POWERS - LEGISLATIVE POWERS - POWER TO ACT CONTRARY TO SEPARATION OF POWERS DOCTRINE
CONSTITUTIONAL LAW - OPERATION AND EFFECT OF THE COMMONWEALTH CONSTITUTION - GENERAL MATTERS - NATURE AND SCOPE OF COMMONWEALTH POWERS - SEPARATION OF POWERS
CRIMINAL LAW - PROCEDURE - INFORMATION, INDICTMENT OR PRESENTMENT - AVERMENTS - UNCERTAINTY, DUPLICITY AND AMBIGUITY
Appeal against conviction - the defendant was convicted of having engaged in conduct and as a result of that conduct, having obtained a financial advantage for himself from Centrelink knowing or believing that he was not eligible to receive that financial advantage contrary to section 135.2(1) of the Criminal Code (Cth) - the defendant's conduct for the purposes of section 135.2(1) was an omission, he failed to inform Centrelink that he had returned to paid employment and that as a result of that failure, he dishonestly received $8,743.06 - whether the operation of section 66A of the Social Security (Administration) Act 1999 (Cth) is retroactive - whether section 66A applies to proceedings pending before an appeal court - whether section 66A should be struck down under the Kable principle - whether the enactment of section 66A has the consequence that the defendant's failure to inform Centrelink can amount to a legal element of the section 135.2(1) offence - whether the retroactive application of section 66A to the defendant's appeal against conviction caused relevant prejudice or unfairness to the defendant - whether the charge was duplicitous - whether the complaint did not adequately specify the conduct relied on by the prosecution to make out the charge - whether inadmissible opinion evidence was received by the Court.
Held: Appeal dismissed - section 66A of the Social Security (Administration) Act was intended to be retroactive - section 66A is a valid enactment of the Commonwealth Parliament and does not impermissibly interfere with, intrude into or usurp Commonwealth judicial power - section 66A should be construed as applying to completed proceedings - the enactment of section 66A, the retroactive enactment of a statutory duty, has the consequence that the defendant's failure to inform Centrelink can amount to a legal element of the section 135.2(1) offence - the retroactive application of section 66A to the defendant's appeal did not cause any relevant prejudice or unfairness such as to cause the Court to stay the proceedings - the charge the subject of the present proceedings was not duplicitous as it encompassed a single contravention which resulted in the defendant receiving a financial advantage which accumulated over a period to August 2007 - the defendant was not substantially prejudiced, or even prejudiced, by the failure of the complaint to specify the conduct relied on by the prosecution to make out the charge - there was no substance to the complaint about inadmissible opinion evidence.
Criminal Code (Cth); Social Security (Administration) Act 1999 (Cth) s 66A; Social Security and Other Legislation Amendment (Miscellaneous Measures) Act 2011 (Cth) s 2(1) and Sch 1; Fair Work (Registered Organisations) Act 2009 (Cth) s 26A; Acts Interpretation Act 1901 (Cth) s 15AA and s 15AB; Summary Procedure Act 1921 (SA) s 181, referred to.
Poniatowska v Director of Public Prosecutions (Cth) (2010) 107 SASR 578; Director of Public Prosecutions (Cth) v Poniatowska (2011) 85 ALJR 1243; Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51; R v Kidman (1915) 20 CLR 425; Polyukhovich v Commonwealth (1991) 172 CLR 501; R v Snow (1917) 23 CLR 256; Ex parte Walsh; Re Yates (1925) 37 CLR 36; Australian Communist Party v Commonwealth (1951) 83 CLR 1; Nelungaloo Pty Ltd v Commonwealth (1948) 75 CLR 495; University of Wollongong v Metwally (1984) 158 CLR 447; Australian Education Union v General Manager of Fair Work Australia & Ors (2012) 86 ALJR 595; Lodhi v The Queen (2006) 199 FLR 303; CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384; Newcastle City Council v GIO General Ltd (1997) 191 CLR 85; Nicholas v The Queen (1998) 193 CLR 173; Haskins v The Commonwealth (2011) 244 CLR 22; R v B, MA (2007) 99 SASR 384; Attorney-General of New South Wales v World Best Holdings Ltd (2005) 63 NSWLR 557; Walsh v Tattersall (1996) 188 CLR 77; Ireland v Police [2005] SASC 202; Palios Meegan & Nicholson Holdings Pty Ltd & Anor v Shore (2010) 108 SASR 31; Connor v Blacktown District Hospital [1971] 1 NSWLR 713; Olga Investments Pty Ltd v CitiPower Ltd [1998] 3 VR 485; Martin v Osborne (1936) 55 CLR 367, considered.

JONES v COMMONWEALTH SERVICES DELIVERY AGENCY
[2012] SASC 106
Civil
GRAY J:

This is an appeal against conviction.
On 4 June 2010, David Craig Jones, the defendant and appellant, was convicted following a trial in the Magistrates Court of having engaged in conduct and as a result of that conduct, having obtained a financial advantage for himself from Centrelink knowing or believing that he was not eligible to receive that financial advantage contrary to section 135.2(1) of the Criminal Code (Cth).[1]
[1] The affidavit of Michelle Louise Barnes sworn on 11 November 2011 indicates that the prosecutor “sought and was granted leave to amend the charge date on Complaint from 27 September 2006 to 11 October 2006. The end date of 15 August 2007 remained unchanged.”The amended complaint is in the following terms:
The primary issue arising in this appeal concerns retroactive legislation and the impact of such legislation on pre-existing criminal proceedings.
The Trial
It was the prosecution case that the defendant committed the offence by omission. His conduct for the purposes of section 135.2(1) was an omission to perform an act. The prosecution alleged that the defendant failed to inform Centrelink that he had returned to paid employment with Craig Arthur Pty Ltd and that as a result of that failure, he dishonestly received $8,743.06 in benefits over a period of time between October 2006 and August 2007.
More particularly, it was the prosecution case that on 27 September 2006, the defendant, following a written application for payment of Parenting Payment Partnered, in an interview informed Centrelink that he was not in paid employment. The defendant’s application was granted. Thereafter, he received fortnightly payments until 15 August 2007. The payments were made electronically into a Commonwealth Bank account nominated by the defendant.
The defendant returned to paid employment as a truck driver with Craig Arthur on or about 4 October 2006 and received his salary from 10 October 2006. It was the prosecution case that the defendant was obliged to inform Centrelink of his return to paid employment. At trial, the defendant did not dispute that he was obliged to inform Centrelink that he had returned to paid employment. The defendant failed to inform Centrelink of his return to paid employment. From October 2006 to August 2007,[2] the defendant received payments totalling $8,743.06 to which he was not entitled because of his paid employment with Craig Arthur.
[2] Agreed fact no. 12 provides: “That as a result of the defendant’s income from employment with Craig Arthur Pty Ltd not being taken into account by Centrelink for the period 27 September 2006 to 15 August 2007, the defendant was overpaid $8,743.06 of Parenting Payment Partnered.”
The defendant did not challenge any of the above asserted facts, save that it was his case that he had informed Centrelink of his return to paid employment through his wife, Tina Dianna Jones.
The Magistrate’s published reasons set out some matters of background, including the following:[3]
[3] Commonwealth v Jones [2010] SAMC 35, [3]-[12].
Much of the background to the charge is not disputed. Mr Jones was born on 19 April 1965. He was married in 2001. He and his wife have two children. Their first child was born in 2001 and their second child was born in early 2006.
Mrs Jones had been in receipt of the Family Tax Benefit (“FTB”) administered by Centrelink since the birth of the first child. She was also at relevant times in receipt of a child care benefit (“CCB”). Those benefits were paid by Centrelink into a bank account in the name only of Mrs Jones.
Mr Jones has been employed from time to time as an interstate transport driver. He was working in that capacity in the first six months or so of 2006. On 22 June 2006, he began to work as a driver for Craig Arthur. Mrs Jones had, for some time, harboured a desire to be a truck driver. She undertook tuition and obtained her heavy vehicle drivers licence on 18 September 2006. The following day she commenced employment as a truck driver with Craig Arthur.
Mr Jones ceased his work with Craig Arthur on or about 28 August 2006. He did so following discussions with Mrs Jones whereby they agreed that she would undertake paid employment and he would remain at home and care for their children.
Mr Jones telephoned a Centrelink office on 22 September 2006 and enquired as to his eligibility for assistance given his new status as a stay at home parent. He then informed Centrelink that he wished to apply for the Parenting Payment Partnered (“PPP”). An appointment was made for him to attend at a Centrelink office on 27 September 2006.
Mr Jones kept the appointment at the Torrensville office of Centrelink. He was attended by Ms Radimissis. He told Ms Radimissis that he was not working. He said that Mrs Jones was working and that he would be caring for the children.
His application for PPP was granted. Ms Radimissis said in evidence that she informed Mr Jones of various obligations that he was required to observe, including an obligation to inform Centrelink of any return to paid employment.
The PPP was paid each fortnight into a bank account nominated by Mr Jones. The account nominated was a joint account of Mr and Mrs Jones maintained with the Commonwealth Bank (“the joint account”). Payment of wages earned by Mr and Mrs Jones when they were employed respectively by Craig Arthur were also paid into the joint account.
It was an agreed fact that Mr Jones received the PPP from the 15 September 2006 to the 15 August 2007.
For reasons which are not necessary to state, Mrs Jones did not enjoy working as a truck driver. She ceased to so work on 24 October 2006. Mr Jones resumed employment with Craig Arthur on or about 4 October 2006.
The Magistrate summarised the effect of aspects of the evidence of the defendant and his wife in the following terms:[4]
In his evidence, Mr Jones agreed that he was aware that, at all relevant times, he was obliged to advise Centrelink if he should return to paid employment. He also agreed that it was his understanding that his eligibility for PPP would cease if he returned to paid employment.
In his evidence, Mr Jones said that he had requested his wife to advise Centrelink that he had resumed employment. In her evidence, Mrs Jones said that she had informed Centrelink that Mr Jones had returned to paid employment with Craig Arthur.
She said that advice had been given to Centrelink within a week or so of Mr Jones returning to work for Craig Arthur.
Each of Mr and Mrs Jones gave evidence that they assumed the payment of PPP to Mr Jones had ceased within a short time of Mrs Jones having advised Centrelink that Mr Jones had resumed paid employment. They each said that they had not become aware that in fact the PPP had continued to be paid into the joint account until so advised by their accountant in or about July 2007.
[4] Commonwealth v Jones [2010] SAMC 35, [14]-[17].
The prosecution called evidence from Aaron De Reuver, a Centrelink fraud investigator. Mr De Reuver’s evidence was based on a consideration of the files and records maintained by Centrelink. The effect of Mr De Reuver’s review of the records was that no advice had been given of Mr Jones’ return to work.
The Magistrate made the following findings beyond reasonable doubt in respect of the prosecution case:[5]
[5] Commonwealth v Jones [2010] SAMC 35, [56]-[65].
I reiterate my view that the primary significant factual matter in dispute is whether Centrelink was informed that Mr Jones had resumed employment with Craig Arthur.
I am satisfied beyond a reasonable doubt that the prosecution has established that Centrelink was not so informed. The evidence of Mr De Reuver proves beyond a reasonable doubt that Centrelink was not so informed. I have no doubt that if that advice had been given to Centrelink, it would have been recorded and acted upon. That is, payment of the PPP to Mr Jones would have ceased on, or shortly after, Centrelink was informed that he had returned to paid employment. In reaching this view, I have considered the possibility that Centrelink had been informed that Mr Jones had returned to paid employment and that the Centrelink staff member that had received that information had neglected to record it or had made some other administrative error with the result that the information did not appear in the records kept by Centrelink relating to Mr Jones.
In my view, the evidence is such that any such possibility has a very low or negligible value. Certainly I do not assign to that possibility a rating of a value that would give rise to a reasonable doubt as to proof of the relevant omission by the prosecution.
Additionally, I accept the evidence led by the prosecution as to the events concerning the attendance by Mrs Jones at the Torrensville office of Centrelink on 25 October 2006 and I accept, as accurate, the evidence of Mr De Reuver concerning the contacts from Mr Jones on 1 and 2 March 2007 and the provision to Centrelink of the SA220 form by Mr Jones on or about 17 August 2007.
That is, I accept that Mrs Jones went to the Torrensville office on 25 October 2006 and then confirmed that her TFN had been provided to Centrelink at an earlier time.
That attendance would not have been undertaken if in fact Mrs Jones had, at an earlier point in time, told Centrelink that Mr Jones had returned to paid employment with Craig Arthur on or about 4 October 2006. Mrs Jones would not have made that attendance if she then believed that payment of the PPP to Mr Jones had ceased.
I also find that Mr Jones telephoned Centrelink on 1 and 2 March 2007 and queried aspects of the payment of arrears.
He would not have done so if in fact he then believed that Centrelink had been earlier informed that he had returned to paid employment.
Similarly I accept that Mr Jones provided the completed SA220 form to Centrelink on or about 17 August 2007. I find that on that document Mr Jones falsely advised Centrelink that he was not in paid employment and that Mrs Jones was working for Craig Arthur and earning approximately $800.00 per week. As noted those assertions were not accurate. In my view there were made dishonestly.
Again, Mr Jones would not have so acted if he believed that Mrs Jones had, at an earlier point in time, told Centrelink that he had returned to paid employment with Craig Arthur.
The Magistrate addressed the evidence of the defendant and his wife. Relevantly, the Magistrate summarised the effect of the evidence of the defendant as follows:[6]
[6] Commonwealth v Jones [2010] SAMC 35, [47]-[50].
Mr Jones confirmed the details of his employment with Craig Arthur. He also confirmed the details of his successful application for the PPP.
He said that he left it to Mrs Jones to advise Centrelink of his resumption of employment with Craig Arthur in or about early October 2006. He said that he relied on Mrs Jones to attend to all such issues. He said that his primary function was to work and that Mrs Jones attended to all of the financial aspects of the household. He said that he did not have the time to attend to such matters. When he was “on the road”, he would telephone his wife from time to time. The conversations, on these occasions, were in the nature of keeping in touch and they did not discuss any matters of significance. Mr Jones said that when he was at home he would normally devote most of his time resting and preparing for his next interstate trip.
Mr Jones said that he was told by his wife that she had told Centrelink of his return to work. On that basis he believed that he had discharged his admitted obligation to advise Centrelink of any changes in his circumstances. He also assumed that payment of the PPP had ceased and he only became aware that it had continued to be paid into the joint account when so informed by his accountant in or about July 2007.
Mr Jones said that, between November 2006 and August 2007 he did not check or have any consciousness of what funds were in the joint account from time to time, as he left all such issues to be dealt with by Mrs Jones.
In respect to Mrs Jones’ evidence, the Magistrate provided the following summary:[7]
She confirmed the arrangement with her husband whereby she worked for Craig Arthur and Mr Jones stayed home and cared for the children. She also confirmed that the arrangement worked only for a short time and that she ceased work in or about early October and Mr Jones returned to work on or about 4 October 2006.
She acknowledged that Mr Jones had applied for and been granted the PPP. She also acknowledged that she knew that Mr Jones was obliged to tell Centrelink if he returned to work.
She said that when Mr Jones resumed employment with Craig Arthur she attended at the Torrensville office of Centrelink and advised that he had returned to work and that she had ceased employment. She said she told the Centrelink staff member to ‘put it back’. By that she intended that Centrelink would cease paying the PPP to Mr Jones and the payment of Centrelink administered benefits would revert to how it had been before the ‘job swap’ between herself and her husband.
She said this attendance occurred within about a week of Mrs Jones ceasing employment with Craig Arthur. Mrs Jones said that the female Centrelink staff member that attended her ‘did something on the computer and pretty much said “done”’.
Mrs Jones generally corroborated the evidence of her husband. She said that she told Mr Jones that she had informed Centrelink of his return to work. She agreed that she was responsible for managing the household income. She said that she had no awareness that the PPP continued to be paid into the joint account each fortnight between October 2006 and 15 August 2007.
[7] Commonwealth v Jones [2010] SAMC 35, [51]-[55].
The Magistrate concluded that both the defendant and Mrs Jones had each given dishonest evidence as to the allegation that Mrs Jones had informed Centrelink that the defendant had returned to paid employment with Craig Arthur and that he did so in or about early October 2006. As noted above, it was the evidence that the defendant and his wife had assumed that the payments of Parenting Payment Partnered had ceased in or about October 2006. The Magistrate rejected this evidence. In particular, he rejected their assertion that they had no awareness or knowledge or even suspicion that an amount of $371.00 per fortnight was being paid into their joint account with the Commonwealth Bank between October 2006 and August 2007. The Magistrate rejected their assertion that they did not realise that these payments had continued until they were informed by their accountant or tax advisor of that fact in about July 2007. The Magistrate made the following specific findings:[8]
[8]    Commonwealth v Jones [2010] SAMC 35, [71]-[77].
Their collective asserted unawareness for a period of more than six months that the household income was $371.00 per fortnight more than it should have been is not believable.
I reject their evidence that Mrs Jones had informed Mr Jones that she had told Centrelink of his return to work within a week or so of that occurring.
I reject the evidence of Mr Jones that he asked Mrs Jones to inform Centrelink that he had returned to work.
I find that at all relevant times Mr Jones knew that Centrelink had not been informed of his return to work. I find that at all relevant times Mr Jones knew that the PPP continued to be paid.
I do not accept that Mr Jones was as naïve regarding the finances of the household as he pretended to be when giving evidence.
I find that Mr Jones actively and consciously deceived Centrelink into believing that he continued to be the stay at home parent with Mrs Jones being the family breadwinner. That is established beyond reasonable doubt by his telephone calls to Centrelink on 1 and 2 March 2007 and by the completion and lodgement of the SA220 on 17 August 2007.
For the avoidance of doubt, I am satisfied beyond a reasonable doubt:
1.That Mr Jones knew he was obliged to inform Centrelink of any change in his circumstances, including if he should return to paid employment.
2.     That Mr Jones returned to paid employment on or about 4 October 2006.
3.     That Mr Jones failed to inform Centrelink that he had resumed paid employment.
4.     That his omission in that respect was deliberate and dishonest.
5.That Mr Jones knew that he continued to receive the PPP after he had returned to employment and he knew that he was not entitled to that continued payment.

In these circumstances, the Magistrate concluded that he was satisfied beyond reasonable doubt that the prosecution had established each element of the offence.
A review of the trial proceedings and of the Magistrate’s reasons confirms that the trial proceeded on the basis that the defendant was under an obligation to inform Centrelink that he had resumed employment. The issue at trial was whether Centrelink had been so informed. The review also confirms that it was open to the Magistrate to make the findings of fact that are recorded in his reasons and that in particular, he was entitled to reach his conclusions as to the credibility and reliability of witnesses, including his conclusion that the defendant and Mrs Jones were dishonest in their evidence.
Extension of Time
The appeal in this proceeding was lodged on 8 September 2010 and included an application for an extension of time. On 2 August 2010, the Full Court of this Court delivered its judgment in Poniatowska v Director of Public Prosecutions (Cth).[9] This decision addressed the interpretation of section 135.2(1) of the Criminal Code. The Full Court’s view, by majority, gave rise to the ground of appeal sought to be advanced before this Court in the present appeal. The majority judgment of the Full Court has been affirmed by the High Court.[10] These decisions support the proposed ground of appeal that the Magistrate erred in holding as a matter of law on his findings of fact that the defendant had committed the offence charged. It is appropriate to extend time.
The Legislation and Poniatowska
[9] Poniatowska v Director of Public Prosecutions (Cth) (2010) 107 SASR 578.
[10] Director of Public Prosecutions (Cth) v Poniatowska (2011) 85 ALJR 1243.
It is convenient at this point to set out the terms of the relevant sections of the Criminal Code. Section 135.2(1) provides:
Obtaining financial advantage
(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 for himself or herself from another person; and
(ab)the person knows or believes that he or she is not eligible to receive that financial advantage; and
(b)     the other person is a Commonwealth entity.
Penalty: Imprisonment for 12 months.
Section 4.1 of the Criminal Code defines “engage in conduct” to mean “(a) do an act; or (b) omit to perform an act”.
Section 4.3 of the Criminal Code provides:
An omission to perform an act can only be a physical element if:
(a) the law creating the offence makes it so; or
(b) the law creating the offence impliedly provides that the offence is committed by an omission to perform an act that by law there is a duty to perform.
In Poniatowska,[11] by majority the Full Court of the Supreme Court of South Australia determined that an omission to perform an act was not a physical element of a section 135.2(1) offence. The majority reasoned:[12]
[11] Poniatowska v Director of Public Prosecutions (Cth) (2010) 107 SASR 578.
[12] Poniatowska v Director of Public Prosecutions (Cth) (2010) 107 SASR 578, [27]-[29].
As previously stated, the use of the term "engaged in conduct" in s 135.2 enables that physical element of the offence to be proved by way of an omission. This follows from the definition of the term in s 4.1 of the Code. However, although it is possible to commit an offence against s 135.2 by way of omission, it is our view that the section does not itself create a legal obligation to act and not omit. In particular, s 135.2(1)(aa) does not create such an obligation. It provides for a further physical element which requires proof that the person obtained a financial benefit as a result of the conduct. This element is concerned with causation and provides no assistance as to the nature of an omission on which a charge might be based.
Ms Chapman relies on s 4.3(a) of the Code which provides that an omission can be a physical act if the law creating the offence makes it so. She argues that the law creating the offence (s 135.2) makes an omission a physical element because it picks up the definition of "omission" so that the requirements are fulfilled.
This can be tested by assuming that s 135.2 relevantly reads as follows (additional words are in bold):
"(1) a person is guilty of an offence if:
(a) the person engages in conduct or omits to perform an act; and
(aa)as a result of that conduct or omission to perform an act, the person obtains a financial advantage ... "
Even in these circumstances, in our opinion the law creating the offence (s 135.2) has not made an omission to perform an act a physical element of the offence.
[Emphasis in original.]
It was said that the concept of an omission should be read as referring to a law which identifies the omission in question in such a way as to create a duty to perform the omitted act. It was concluded that section 135.2(1) did not of itself create a relevant legal obligation for the purpose of section 4.3(a). The majority noted that the respondent, the Commonwealth Director of Public Prosecutions, did not rely on any statutory duty to perform an act. The majority observed:[13]
Ms Chapman did not rely on any provision in the Administration Act as establishing a duty of disclosure in cases such as the present. Instead she argued that the obligation was created by s 135.2 itself. It was submitted that the Code provides that the offence can be committed by way of an omission and s 135.2 is directed at conduct, including omissions, which result in a person obtaining a benefit to which there is no entitlement. It was argued that a duty is thereby created not to obtain a benefit by means of an omission.
…
In summary, we are of the view that s 135.2 does not define any duty or obligation relevant to an offence committed by way of an omission. The DPP does not rely on any notice issued to the appellant for the purpose of establishing such a duty; nor was it suggested that the duty was to be found elsewhere in the Administration Act. The approach of the Administration Act is to provide for the issuing of notices by the Department requiring information and to impose a penalty punishable by imprisonment for a failure to comply with such notices. The Administration Act does not create a separate "stand alone" obligation. We have explained why we consider that s 135.2 does not impose a relevant obligation.
[13] Poniatowska v Director of Public Prosecutions (Cth) (2010) 107 SASR 578, [21], [38].
The Commonwealth Director obtained leave to appeal to the High Court from the Full Court decision in Poniatowska.[14] On 26 October 2011, the High Court granted leave but dismissed the appeal. The Court agreed with the majority decision of the Full Court finding that the Criminal Code incorporates the general law principle that criminal liability does not attach to an omission, save the omission of an act that a person is under a legal obligation to perform. Applying that to section 135.2(1), the majority observed:[15]
…Section 135.2(1)(a) allows that the offence is one that may be committed by the omission to perform an act but the provision does not proscribe the omission of any specified act. The law creating the offence does not make the omission of an act a physical element of the offence within the meaning of s 4.3(a).
[Emphasis in original.]
[14] Poniatowska v Director of Public Prosecutions (Cth) (2010) 107 SASR 578.
[15] Director of Public Prosecutions (Cth) v Poniatowska (2011) 85 ALJR 1243, [37].
The Retroactive Legislation
It is further convenient at this point to make reference to the retroactive legislation raised in the present appeal by the respondent’s notice of contention. Prior to the delivery by the High Court of its judgment in Poniatowska,[16] the Commonwealth Parliament passed the Social Security and Other Legislation Amendment (Miscellaneous Measures) Act 2011 (Cth). It inserted section 66A into the Social Security (Administration) Act 1999 (Cth). Section 66A is in the following terms:
[16] Director of Public Prosecutions (Cth) v Poniatowska (2011) 85 ALJR 1243.
General requirement to inform of a change of circumstances etc.
Person who has made a claim
(1)     If:
(a)    a person has made a claim for:
(i)    a social security payment; or
(ii)     a concession card; and
(b)     the claim has been granted or has not been determined; and
(c)an event or change of circumstances occurs that might affect the payment of that social security payment or the person’s qualification for the concession card;
the person must, within 14 days after the day on which the event or change occurs, inform the Department of the occurrence of the event or change.
Person receiving a social security payment or holding a concession card
(2)     If:
(a)    either:
(i)a social security payment (other than utilities allowance or seniors supplement) is being paid to a person; or
(ii)     a person holds a concession card; and
(b)an event or change of circumstances occurs that might affect the payment of that social security payment or the person’s qualification for the concession card;
the person must, within 14 days after the day on which the event or change occurs, inform the Department of the occurrence of the event or change.
Person who has received a social security payment or held a concession card
(3)     If:
(a)    either:
(i)a person is not receiving a social security payment but a social security payment (other than utilities allowance or seniors supplement) has at any time been paid to the person; or
(ii)a person does not hold a concession card but has at any time held such a card; and
(b)an event or change of circumstances occurs that might have affected the payment of that social security payment or the person’s qualification for the concession card;
the person must, within 14 days after the day on which the event or change occurs, inform the Department of the occurrence of the event or change.
Interaction with notices under this Subdivision
(4)     If:
(a)a person is subject to a requirement under subsection (1), (2) or (3) in relation to an event or change of circumstances; and
(b)the person is given, or purportedly given, a notice under this Subdivision in relation to the same event or change of circumstances; and
(c)the person complies with the notice to the extent that it relates to that event or change;
the person is taken to have also complied with that requirement within the period referred to in that subsection.
(5)     Subsection (4) does not apply if the notice is given after the end of the period referred to in subsection (1), (2) or (3).
(6)     This section does not limit the power of the Secretary to give a person a notice under this Subdivision.
Section 66A sets out a statutory duty to perform an act. It places a requirement upon a person to inform Centrelink of the occurrence of an event or change of circumstances that might affect the receipt of that person’s social security payment.
The operation of section 66A is retroactive. That is clearly the intention of Parliament. Section 3 of Schedule 1 of the Social Security and Other Legislation Amendment (Miscellaneous Measures) Act provides that section 66A applies in relation to an event or change of circumstances that occurs on or after 20 March 2000. The explanatory memorandum confirms this clear intent of Parliament:[17]
[17] Explanatory Memorandum, Social Security and other Legislation Amendment (Miscellaneous Measures) Bill 2011 (Cth) 2, 6-7.
The Bill amends the Social Security (Administration) Act 1999 to insert a standalone obligation for a person to inform the Department of events or changes of circumstances that might affect the payment of a social security payment to the person or the person’s qualification for a concession card. This obligation will operate both prospectively, and retrospectively to 20 March 2000.
…
New section 66A has both prospective and retrospective effect.
New section 66A applies retrospectively to 20 March 2000, which is the date the Administration Act commenced. The purpose of applying this provision with retrospective effect is to ensure that certain criminal convictions in relation to social security fraud already made under sections of Criminal Code (such as section 135.2 of the Criminal Code) cannot be overturned on the basis that the physical element of the offence, being an omission, was not established. That is, for the purposes of section 4.3 of the Criminal Code, which provides for when an omission to perform an act can be a physical element of an offence, new section 66A provides (with retrospective effect to 20 March 2000) that a person had an obligation to inform the Department of an event or circumstance that might affect the person’s social security payment or qualification for a concession card, as set out in new subsections 66A(1), (2) and (3).
This would satisfy the requirement in paragraph 4.3(b) of the Criminal Code, by imposing retrospectively by law a legal duty to perform an act (that is, to inform the Department of an event or circumstance that might affect the person’s social security payment or qualification for a concession card). The omission by the defendant of performance of that act which by law there is a duty to perform is sufficient to establish the physical element of the offence in, for example paragraph 135.2(1)(a) of the Criminal Code: ‘the person engages in conduct’ (that conduct being the omission to perform the act of informing the Department of an event or circumstance that might affect the person’s social security payment or qualification for a concession card, as set out in new subsections 66A(1), (2) and (3)).
The Government does not lightly pursue retrospective legislation. However, in this case there are exceptional circumstances justifying retrospectivity, namely that it would not be appropriate for a significant number of prosecutions conducted from 2000 for social security fraud to be overturned on a previously unidentified legal technicality.
One of the criticisms that can be directed at retrospective legislation in relation to criminal offences is that people will be unaware that their conduct is an offence. In this case, however, the convicted persons would all have been aware that they should have informed the Department of the specified events and changes of circumstances listed in the notices given to them by Centrelink in relation to their social security payment or concession card.
In addition, the effect of the retrospective application of this provision is to confirm convictions already made. A failure to comply with the new provision is not itself an offence – it only provides a basis for establishing the physical element of certain offences under the Criminal Code. Further, the Criminal Code offences in question are not strict liability offences and include fault elements which the prosecution must prove beyond reasonable doubt.
A further consideration is that there is no circumstance in which social security fraud could be considered a legitimate activity for a person to engage in.
For all these reasons, the retrospective application of these amendments is not considered to contravene fundamental principles of fairness or due process.
It was the respondent’s contention that it was within Commonwealth legislative power to enact legislation with retroactive effect, including the creation of criminal offences.
The amending Act was introduced into Parliament and enacted between the time of the handing down of the Full Court decision and the delivery of the High Court decision in Poniatowska.[18] It was not introduced until after argument had concluded before the High Court. Neither party sought to bring the amending Act to the attention of the High Court or to make further submissions about the relevance of the amending Act to the Poniatowska[19] proceeding. The members of the Court did not consider the impact of the amending Act on the proceedings under appeal. However, the reasons of the High Court make it apparent that the members of the Court were aware of the existence of the amending legislation.[20]
[18] Director of Public Prosecutions (Cth) v Poniatowska (2011) 85 ALJR 1243.
[19] Director of Public Prosecutions (Cth) v Poniatowska (2011) 85 ALJR 1243.
[20] Director of Public Prosecutions (Cth) v Poniatowska (2011) 85 ALJR 1243, 1245 (French CJ, Gummow, Kiefel and Bell JJ), 1252 (Heydon J).
Before this Court, it was the contention of the respondent that the retroactive amendment had direct application to the within proceeding. It was contended that this should lead to the dismissal of the appeal. Counsel for the defendant submitted that the legislation properly construed did not apply to proceedings pending before a Court or more particularly, proceedings pending before an appeal Court. Counsel contended that if the legislation was not so construed, it should be struck down under the principle known as the Kable principle.[21] In particular, it was said – “[i]t is unconstitutional and invalid because it is inconsistent with the separation of judicial power, in that it involves a bill of attainder or is otherwise inconsistent with the separation of judicial power (i.e. a usurpation by the Commonwealth Parliament of judicial power)”.
[21] Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51.
In the circumstances, it is appropriate to first address the respondent’s notice of contention and the effect of the retroactive legislation.
The Construction of the Retroactive Legislation
A convenient starting point for the consideration of the retroactivity issue is the decision in Kidman.[22] In that decision, the High Court considered, inter alia, “[w]hether the Act No. 6 of 1915, so far as its provisions are retrospective, is within the competence of the Commonwealth Parliament”.[23] The effect of Kidman was summarised in the following terms by Mason CJ in Polyukhovich:[24]
[22] R v Kidman (1915) 20 CLR 425.
[23] R v Kidman (1915) 20 CLR 425, 427.
[24] Polyukhovich v Commonwealth (1991) 172 CLR 501, 538-539.
All that I have said so far in refutation of this aspect of the plaintiff's case is confirmed by the decision of this Court in R. v. Kidman. That case concerned the validity of the Crimes Act 1915 (Cth) so far as its provisions were retrospective. Section 2 of that Act added conspiracies to defraud the Commonwealth to the conspiracies which, by s. 86 of the Crimes Act 1914 (Cth), were declared to be indictable offences. Section 3 of the 1915 Act provided that the Act was deemed to have been in force from the date of commencement of the 1914 Act. The accused were indicted for conspiracy to defraud the Commonwealth under the retrospective provisions of the 1915 Act. By a unanimous decision the validity of that Act was upheld. It was specifically contended that the Parliament had no power to enact retrospective criminal laws, reliance being placed on Calder v. Bull, the argument naturally being that the 1915 Act was an ex post facto law rather than a bill of attainder.
Griffith C.J. acknowledged that an ex post facto law was forbidden by the United States Constitution but pointed out that no question of the validity of such a law could arise in the case of a legislature of plenary power. However, being of the opinion, mistakenly, that Parliament's power to enact a criminal law stemmed only from s. 51(xxxix), he concluded that this power did not extend to an ex post facto criminal law. He upheld the 1915 Act because in his opinion it did no more than re-enact the common law.
Isaacs J. observed:
There is no prohibition in the Australian Constitution against passing ex post facto laws, as there is in the American Constitution ... The prohibition to the United States apparently assumes that Congress would otherwise have had the power. Therefore, in my opinion, no distinction can be validly drawn between ex post facto laws — regarding them as criminal only — and any other kind of retroactive laws.
His Honour concluded by saying:
But the Parliament's powers are not confined to creating fear of punishment by threatening as to future acts, but extend to dealing with the conduct, which in its opinion deserves it, and so conveying the same warning and fear as a plenary Legislature within the ambit assigned to it.
Higgins J. was of the same opinion. His Honour specifically referred to the fact that the Parliament of Great Britain had, by Acts of attainder and otherwise, made crimes of acts after they had been committed and held that, in the absence of a prohibition in the Constitution, the Commonwealth had like power to enact a retrospective criminal law. Likewise, Powers J. considered that the Parliament had the same power to pass retrospective criminal laws with respect to the subject-matters committed to it by s. 51 of the Constitution as had the Imperial Parliament.
[Footnotes omitted.]

The following observations of McHugh J are also pertinent:[25]
[25] Polyukhovich v Commonwealth (1991) 172 CLR 501, 717-718.
The correctness of the decision in Kidman has not hitherto been doubted in any judgment of this Court. To the contrary, it has frequently been cited as an authority: see, e.g., R. v. Snow; Ex parte Walsh and Johnson; In re Yates; Australian Communist Party v. The Commonwealth; University of Wollongong v. Metwally. In Ex parte Walsh and Johnson, Isaacs J. said:
Whatever the Parliament enacts with respect to any of the named subject matters for any period or point of time subsequent to the establishment of the Commonwealth is, subject to any prohibition or qualification in the Constitution itself or in any controlling Imperial law, binding throughout the Commonwealth and on certain British ships beyond the Commonwealth (ss. 51 and 52 and covering s.V). Such laws may be made prospectively or retrospectively, the Commonwealth Parliament having in this respect the power of the Imperial Parliament.
In Nelungaloo Pty. Ltd. v. The Commonwealth Williams J. pointed out:
It is trite law that the powers conferred upon the Commonwealth Parliament by s. 51 of the Constitution are plenary powers of legislation as large and of the same nature as those of the Imperial Parliament itself.
…
Moreover, numerous Commonwealth statutes, most of them civil statutes, have been enacted on the assumption that the Parliament of the Commonwealth has power to pass laws having a retrospective operation. Since Kidman, the validity of their retrospective operation has not been challenged. And I can see no distinction between the retrospective operation of a civil enactment and a criminal enactment: see Kidman, per Isaacs J.
[Footnotes omitted.]
The decision in Kidman has been consistently cited with approval as McHugh J noted in Polyukhovich. [26]
[26] See for example, R v Snow (1917) 23 CLR 256; Ex parte Walsh; Re Yates (1925) 37 CLR 36; Australian Communist Party v Commonwealth (1951) 83 CLR 1; Nelungaloo Pty Ltd v Commonwealth (1948) 75 CLR 495; University of Wollongong v Metwally (1984) 158 CLR 447.
McHugh J addressed the submission that “by reason of Ch. III of the Constitution, the Parliament of the Commonwealth cannot ‘pass legislation requiring Federal Courts to act in a manner which is inconsistent with basic requirements of justice’”:[27]
In my opinion, the enactment of laws having a retrospective operation does not infringe the constitutional guarantee that the judicial power of the Commonwealth can be exercised only by courts established and judges appointed in accordance with Ch. III of the Constitution, and by such other courts as are invested with federal jurisdiction.
…
A law which creates a criminal offence but operates retrospectively is not the same as a Bill of Attainder or a Bill of Pains and Penalties. Such Bills are an interference with the exercise of judicial power. Bills of Attainder and Bills of Pains and Penalties constitute a legislative punishment "of specifically designated persons or groups": United States v. Brown. Such Bills are "legislative judgments; and an exercise of judicial power": Calder v. Bull. I think that the enactment of a Bill of Attainder or a Bill of Pains and Penalties would infringe the provisions of Ch. III of the Constitution. But the fact that the Constitution impliedly forbids the enactment of Bills of Attainder and Bills of Pains and Penalties does not mean that the Constitution prohibits the making of criminal laws having a retrospective operation. Retrospectivity is not itself sufficient to offend Ch. III of the Constitution. I cannot accept the argument that the determination of guilt or innocence is foreclosed by a criminal law which has a retrospective operation. Under such a law, it is still the jury, and not the legislature, which determines what the facts of the case are and which applies the law, as determined by the judge, to those facts for the purpose of determining whether the accused is guilty or innocent of the charge against him or her. Such a law is not an exercise of, or an interference with the exercise of, judicial power.
Kidman was correctly decided.
The Act in question in this case is not a Bill of Attainder or a Bill of Pains and Penalties. It differs from an ordinary criminal statute only in the fact that it operates retrospectively and not prospectively. It does not select a specifically designated person or group and impose a punishment on that person or group. It does not make any determination of fact. It does not adjudge any person or group to be guilty of any offence. There is not a scintilla of difference between the roles of the judge and jury in a trial under this Act and the roles of the judge and jury in a trial under a hypothetical law, in substantially identical terms to this Act, passed on 1 September 1939 and operating prospectively. The only difference between the present Act and that hypothetical law would be that the present Act makes it a legislative offence to do what was not a legislative offence at the time when it was done. That is to say, the difference is that the present Act retrospectively, and not prospectively, imposes penal sanctions on proscribed conduct. The imposition of penal sanctions on proscribed conduct, however, is an exercise of legislative, not judicial, power. Accordingly, the present Act does not interfere in any way with the judicial process or with the judicial power of the Commonwealth.
[Footnotes omitted.]
[27] Polyukhovich v Commonwealth (1991) 172 CLR 501, 719, 721-722 (McHugh J).
Following the making of submissions on this appeal, the High Court delivered judgment in Australian Education Union v General Manager of Fair Work Australia & Ors.[28] Their Honours exhaustively examined issues relating to retroactive legislation, including the circumstances in which such legislation may be invalid as an interference or usurpation of the judicial power of the Commonwealth. I have now received written submissions from the parties concerning relevant matters arising from this decision.
[28] Australian Education Union v General Manager of Fair Work Australia & Ors (2012) 86 ALJR 595.
The Court was concerned with the validity of section 26A of the Fair Work (Registered Organisations) Act 2009 (Cth). The particular question was whether section 26A operated to validate the registration of the Australian Principals Federation. But for the operation of section 26A, the registration would have been invalid. The Court upheld the validity of the legislation and its retroactive operation.
French CJ, Crennan and Kiefel JJ in their joint judgment addressed the approach to a construction of a section that was said to have retroactive effect. Their Honours noted that the general principles of common law were designed to avoid giving a retroactive effect to a statutory enactment:[29]
[29] Australian Education Union v General Manager of Fair Work Australia & Ors (2012) 86 ALJR 595, [30], [33], [35]; see also, Australian Education Union v General Manager of Fair Work Australia & Ors (2012) 86 ALJR 595, [26]-[27].
… In a representative democracy governed by the rule of law, it can be assumed that clear language will be used by the Parliament in enacting a statute which falsifies, retroactively, existing legal rules upon which people have ordered their affairs, exercised their rights and incurred liabilities and obligations. That assumption can be viewed as an aspect of the principle of legality, which also applies the constructional assumption that Parliament will use clear language if it intends to overthrow fundamental principles, infringe rights, or depart from the general system of law. …
…
The common law approach to the construction of retroactive statutes is particularly stringent in its application to statutes which are said to affect judicial decisions. The Privy Council in Lemm v Mitchell said that explicit language was required:
"to justify a Court of law in holding that a legislative body intended not merely to alter the law, but to alter it so as to deprive a litigant of a judgment rightly given and still subsisting."
Lemm v Mitchell was considered by this Court in Federated Engine-Drivers and Firemen's Association of Australasia v Broken Hill Pty Co Ltd (Second Engine Drivers Case).
…
The decision in the Second Engine Drivers Case offers little support for the AEU's argument. It was concerned with the effect of validating legislation on a pending plaint in the CCCA. The judgments, however, contain some general observations about the construction of legislation said to affect judicial decisions. Griffith CJ would have required "very clear and explicit words to validate retrospectively supposed judicial proceedings which were wholly null and void when taken". Barton J said that when two constructions of a statute are open, only one of which involves the alteration of judicially defined rights, "the construction which would alter rights already ascertained by judicial authority is not the one which the Courts will accept". On the other hand, in Mabo v Queensland, Brennan, Toohey and Gaudron JJ observed that declaratory Acts are frequently passed to overcome the effect of a judicial decision and said:
"The effect of such a statute is to change the law and the courts are thereafter bound to take the law as the statute declares it to be. If the statute declares what the law has been, the courts are commanded to decide future cases in conformity with the declaration though the circumstances to which the declaration applies occurred prior to the enactment of the statute ... The statute does not, however, affect final judgments already given pursuant to the earlier law ... The operation of a declaratory statute, like the operation of any other statute, depends upon the intention of Parliament ascertained by construction of its terms."
[Footnotes omitted.]
Against the background of these observations and the discussion of other authorities, their Honours turned to the interpretation of section 26A. In that respect the Court concluded that the language used by the Parliament was explicit and left no room for a contention that section 26A only validated purported registrations from the date upon which the section was enacted. This led their Honours to conclude:[30]
Section 26A, properly construed, applied to validate the purported registration of the APF and to treat it as always having been valid. That leaves for determination the constitutional question.
[30] Australian Education Union v General Manager of Fair Work Australia & Ors (2012) 86 ALJR 595, [40].
French CJ, Crennan and Kiefel JJ then turned to consider the claim that the section so interpreted impermissibly interfered with or intruded in the judicial power of the Commonwealth. Their Honours commenced their discussion with the following observations about the general rule:[31]
As a general rule, the Parliament of the Commonwealth, which is empowered to define the jurisdiction of federal courts and to invest the courts of the States with federal jurisdiction, cannot "direct [those] courts as to the manner and outcome of the exercise of their jurisdiction". It cannot interfere with or intrude into the exercise of the judicial power. Section 26A, however, does not purport to direct courts exercising federal jurisdiction as to the manner or outcome of its exercise. It states a rule attaching legal consequences to an entry in the Register kept under the [Fair Work (Registered Organisations) Act].
[Footnote omitted.]
[31] Australian Education Union v General Manager of Fair Work Australia & Ors (2012) 86 ALJR 595, [48].
Their Honours concluded that section 26A was a valid enactment and, in that respect, agreed with the reasons of Gummow, Hayne and Bell JJ. In particular, their Honours reasoned:[32]
… If a court exercising federal jurisdiction makes a decision which involves the formulation of a common law principle or the construction of a statute, the Parliament of the Commonwealth can, if the subject matter be within its constitutional competence, pass an enactment which changes the law as declared by the court. Moreover, such an enactment may be expressed so as to make a change in the law with deemed operation from a date prior to the date of its enactment. Section 26A was such a law. Its constitutional vice was said to lie in its effect upon the consequences of the orders made by the Full Court of the Federal Court in Lawler.
…
As the Solicitor-General submitted, it would be an impermissible interference with the judicial power of the Commonwealth if the Parliament were to purport to set aside the decision of a court exercising federal jurisdiction. There is no such interference, however, if Parliament enacts legislation which attaches new legal consequences to an act or event which the court had held, on the previous state of the law, not to attract such consequences. That was the substantive operation of s 26A. It changed the rule of law embodied in the statute as construed by the Full Federal Court in Lawler. We agree with Gummow, Hayne and Bell JJ that s 26A assumes that Lawler was correctly decided. To change that rule generally and for the particular case was within the legislative competence of the Commonwealth. The challenge to the constitutional validity of s 26A fails.
[Footnote omitted.]
[32] Australian Education Union v General Manager of Fair Work Australia & Ors (2012) 86 ALJR 595, [50], [53].
Gummow, Hayne and Bell JJ concluded that section 26A was a valid enactment:[33]
[33] Australian Education Union v General Manager of Fair Work Australia & Ors (2012) 86 ALJR 595, [78]-[79], [87], [97].
Not all forms of legislation that have an effect on pending litigation or on the rights and obligations of parties to completed litigation are necessarily invalid as a usurpation of or an impermissible interference with judicial power. As Mason J said in R v Humby; Ex parte Rooney: "Chapter III contains no prohibition, express or implied, that rights in issue in legal proceedings shall not be the subject of legislative declaration or action." Yet in Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs, three members of the Court (Brennan, Deane and Dawson JJ) said that:
"It is one thing for the Parliament, within the limits of the legislative power conferred upon it by the Constitution, to grant or withhold jurisdiction. It is a quite different thing for the Parliament to purport to direct the courts as to the manner and outcome of the exercise of their jurisdiction. The former falls within the legislative power which the Constitution, including Ch III itself, entrusts to the Parliament. The latter constitutes an impermissible intrusion into the judicial power which Ch III vests exclusively in the courts which it designates."
This Court has not often had to consider whether legislation is invalid as an impermissible interference with the exercise of judicial power in future, pending or completed litigation in federal jurisdiction. The more recent cases to which reference may be made are Humby, Australian Building Construction Employees' and Builders Labourers' Federation v Commonwealth, Polyukhovich v Commonwealth (War Crimes Act Case), Chu Kheng Lim, Nicholas v The Queen, HA Bachrach Pty Ltd v Queensland and Re Macks; Ex parte Saint.
…
At least in cases which are still pending in the judicial system, it will be important to consider whether or to what extent the impugned law amounts to a legislative direction about how specific litigation should be decided. That is, as one author has written, a balance must be struck between the recognition that the Parliament may change the law in a way that has an effect on pending proceedings (a proposition that has been described as "the changed law rule") and the recognition that the Parliament cannot direct the courts as to the conclusions they should reach in the exercise of their jurisdiction (a proposition that has been described as "the direction principle"). But again no decision is called for in this case about how such a balance should be struck in respect of legislation that affects pending litigation.
…
The AEU is right to observe that, because s 26A altered the law as it did, the APF has now and since the time at which it was purportedly registered as a registered organisation had the status of a registered organisation. The AEU is also right to observe that the effect of that law is to deny to the AEU whatever was the advantage it gained from succeeding in obtaining the issue of writs of certiorari in the Lawler matter. But s 26A is not, on either account, an impermissible interference with judicial power. Section 26A should be given effect according to its terms.
[Footnotes omitted.]
The observations of the High Court in Australian Education Union v General Manager of Fair Work Australia[34] provide clear guidance to the approach to be taken to the legislation under consideration in the present appeal. For reasons earlier expressed, the intention of the Parliament in enacting section 66A is explicit. The section was intended to be retroactive.
[34] Australian Education Union v General Manager of Fair Work Australia & Ors (2012) 86 ALJR 595.
The application of the reasons discussed above, both in the judgment of French CJ, Crennan and Kiefel JJ and in the judgment of Gummow, Hayne and Bell JJ, leads to the conclusion that section 66A is a valid enactment of the Commonwealth Parliament and does not impermissibly interfere with, intrude into or usurp Commonwealth judicial power. The legislation does not seek to strike down a judgment of the Court.
The extent of retroactive operation is itself a matter requiring statutory interpretation. A statute will only be given retroactive operation to the extent intended by the Parliament. This is to be determined by the words of the statute, construed in their full context and in accordance with the scope and purpose of the legislation.[35]
[35] Lodhi v The Queen (2006) 199 FLR 303, [25].
Section 66A “is taken to have commenced” on 20 March 2000.[36] Section 66A applies in relation to an event or change of circumstances that occurs on or after 20 March 2000.[37] Section 66A creates a duty to inform Centrelink within 14 days of that event or change of circumstances. The text of the Social Security and Other Legislation Amendment (Miscellaneous Measures) Act contains no exceptions to, and places no restrictions upon, the application of the operative date. There is no basis in the text for limiting the circumstances in which the duty arises, is enlivened or applies. There are no temporal limitations; nor are there any limitations based on the status of any proceedings. The words should be given their ordinary and every day meaning.[38]
[36] Social Security and Other Legislation Amendment (Miscellaneous Measures) Act 2011 (Cth) section 2(1).
[37] Social Security and Other Legislation Amendment (Miscellaneous Measures) Act 2011 (Cth) section 3 of Schedule 1.
[38] It is not necessary for Parliament to expressly address the question of pending (and past) proceedings in the legislation: Lodhi v The Queen (2006) 199 FLR 303, [40].
The words of the statute are to be construed in accordance with the scope and purpose of the legislation. The scope and purpose is clearly identified in the explanatory memorandum. In discovering the purpose of a statutory amendment, regard may be had to other materials including the reports of law reform bodies and explanatory memoranda:[39]
It is well settled that at common law, apart from any reliance upon s 15AB of the Acts Interpretation Act 1901 (Cth), the court may have regard to reports of law reform bodies to ascertain the mischief which a statute is intended to cure. Moreover, the modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses "context" in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means such as those just mentioned, one may discern the statute was intended to remedy. …
[Footnotes omitted.]
[39] CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384, 408 (Brennan CJ, Dawson, Toohey and Gummow JJ). Specifically in relation to explanatory memoranda, see Newcastle City Council v GIO General Ltd (1997) 191 CLR 85; Nicholas v The Queen (1998) 193 CLR 173, [191]; Haskins v The Commonwealth (2011) 244 CLR 22, [3]; see also, Acts Interpretation Act 1901 (Cth) sections 15AA, 15AB; R v B, MA (2007) 99 SASR 384, [15]-[20].

The explanatory memorandum, in addition to the earlier extracted passages, specifically refers to the decision of the Full Court of the Supreme Court of South Australia in Poniatowska and the pending decision of the High Court:[40]
For many years the Commonwealth Director of Public Prosecutions (CDPP) has prosecuted cases involving social security fraud under various sections of the Criminal Code, particularly section 135.2 ‘Obtaining a financial advantage’. These offence provisions involve, for the physical element of the offence, proving that the defendant engaged in conduct, where the relevant conduct is an omission – namely, failing to inform the Department of an event or change of circumstances that might affect the person’s social security payment or qualification for a concession card.
Section 4.1 of the Criminal Code provides that engaging in conduct includes an omission to perform an act. Section 4.3 provides that an omission to perform an act can only be a physical element of an offence if (a) the law creating the offence makes it so; or (b) the law creating the offence impliedly provides that the offence is committed by an omission to perform an act that by law there is a duty to perform.
In Poniatowska v DPP (Cth) (2010) 271 ALR 610; [2010] SASCFC 19 (Poniatowska), the full court of the Supreme Court of South Australia (majority decision) held that ‘section 135.2 does not define any duty or obligation relevant to an offence committed by way of omission’ (that is, paragraph 4.3(a) of the Criminal Code did not apply). It further noted that the CDPP had not relied on any notice issued to the defendant to establish such a duty (i.e. to inform the Department of an event or change of circumstances) and that the Administration Act did ‘not create a separate “stand alone” obligation (that is, paragraph 4.3(b) of the Criminal Code did not apply). Accordingly, the court held that the defendant ‘could not, in law, have been convicted of the offences charged’ and set aside the convictions which had been recorded against the defendant.
The Commonwealth has appealed the Poniatowska decision to the High Court, which has reserved its decision. The current position is that a large number of past convictions are at risk of being overturned on appeal on the basis of the decision in Poniatowska. Since the decision, the CDPP has adjourned or discontinued a large number of matters of this kind before the courts. The CDPP is also not commencing new proceedings of this kind, pending the determination of the appeal before the High Court.]
The CDPP did not, in past prosecutions, rely on the notices given to the person by Centrelink to establish the person was under a duty to inform Centrelink as it was understood that this was not required. It is not possible to defend past convictions appealed on the basis of the reasoning in Poniatowska by seeking to introduce such notices into evidence to establish the duty. In addition, it has become apparent that it may not be able to be proved beyond reasonable doubt that such notices have complied with the requirements of section 6A of the Administration Act during the relevant period of time.
[40] Explanatory Memorandum, Social Security and other Legislation Amendment (Miscellaneous Measures) Bill 2011 (Cth) 4-5.
If the presumption against retroactivity has a distinct operation in the case of existing proceedings, this distinct operation would arise only because of possible prejudice to reliance interests or to legitimate expectations which may be caused by legislation affecting rights and liabilities in existing proceedings.[41]
[41] Attorney-General of New South Wales v World Best Holdings Ltd (2005) 63 NSWLR 557, 570 (Spigelman CJ). It is also relevant to note that section 66A is not a penal provision.
The Social Security (Administration) Act has provided for the issuing of notices to those persons who have made a claim for or been in receipt of social security payments advising them of their obligations to advise Centrelink if specified events or changes of circumstances occur.[42]
[42] See, Commonwealth of Australia, Parliamentary Debates, Senate, 23 June 2011, 3674 (Senator Joe Ludwig); SocialSecurity (Administration) Act 1999 (Cth) sections 67, 68.
In my view, the application of the principles of statutory interpretation lead to the result that section 66A of the Social Security (Administration) Act should be construed as applying to completed proceedings.
The Elements of the Offence
The elements of a section 135.2(1) offence in the present proceedings are: that the defendant intentionally engaged in conduct; that as a result of the conduct the defendant obtained a financial advantage for himself from another person, being aware of the substantial risk that this would occur and, having regard to the circumstances that were known to the defendant, it was unjustifiable to take the risk that this result would occur; that the defendant knew or believed that he was not eligible to receive the financial advantage; and that the other person is a Commonwealth entity.[43]
[43] Director of Public Prosecutions (Cth) v Poniatowska (2011) 85 ALJR 1243, [21].
The respondent established the third element of the offence, namely, that the defendant knew or believed that he was not eligible to receive the financial advantage. This was not at issue during the trial. The defendant gave evidence as follows:
Q.And you knew that you had to change, if anything changed, you knew you had to say that to Centrelink.
A. Yes.
Q.And you knew that income is something that would affect your eligibility to receive the benefit.
A. Well if I was working, yes.
Section 135.2(1)(a) does not make an omission to perform an act an element of the offence within the meaning of section 4.3(a) of the Criminal Code.[44] However, an omission to perform an act can be an element of an offence within the meaning of section 4.3(b) of the Criminal Code if there is a statutory duty to perform the act contained in the law of the Commonwealth.[45]
[44] Director of Public Prosecutions (Cth) v Poniatowska (2011) 85 ALJR 1243, [37].
[45] Director of Public Prosecutions (Cth) v Poniatowska (2011) 85 ALJR 1243, [32], [34]-[35].
Section 66A(1) of the Social Security (Administration) Act provides the relevant statutory duty in this case. The defendant was a person who had made a claim for a social security payment, the claim had been granted and an event or change of circumstances had occurred – his return to paid employment on about 4 October 2006 – that might have affected his social security payment. He was therefore required to inform Centrelink of the occurrence of that event or change of circumstances within 14 days of it occurring. The Magistrate found that he did not do so.
As a matter of fact, it was proved that the defendant did not inform Centrelink of his return to paid employment. As a matter of law, prior to the enactment of section 66A(1) that failure to inform could not amount to an element of the section 135.2(1) offence because there was no statutory duty.
There was no suggestion at trial that the defendant’s conduct in not informing Centrelink was involuntary either in the sense that it was not the product of his will[46] or that he was incapable of informing Centrelink.[47] To the contrary, the defendant gave evidence that he relied totally upon his wife to inform Centrelink of his return to paid employment.
[46] See, section 4.2(2) of the Criminal Code (Cth).
[47] See, section 4.2(4) of the Criminal Code (Cth).
The absence of a statutory duty meant that his failure to inform could not, at the time of trial, amount to a legal element of the offence. The retroactive enactment of a statutory duty – that is, the enactment of section 66A(1) – has the consequence that the defendant’s failure to inform Centrelink, as a fact established at trial, can amount to a legal element of the offence.
Prejudice or Unfairness
The further question arises as to whether the retroactive application of section 66A to this appeal against conviction causes relevant prejudice or unfairness to the defendant.
The amendment does not affect the manner in which the trial was conducted. The trial was conducted on the basis that the defendant was required to inform Centrelink of his return to paid employment. The defendant gave evidence that he was aware that he needed to give that information to Centrelink. There was no dispute or contest about that. The only dispute or contest was whether as a matter of fact it was proved that he did not do so. This Court is not required to make any different findings of fact.
At the time of trial, the parties and the Magistrate incorrectly assumed that a failure to inform Centrelink could be a legal element of the section 135.2(1) offence. The trial proceeded and the defendant was convicted. The effect of the retroactive application of section 66A is to make that incorrect assumption correct.
Having regard to the foregoing, I do not consider that any relevant prejudice or unfairness has arisen such as to cause the Court to stay the proceedings. However, the retroactive amendments may have caused the situation calling for a merciful approach to be taken in regard to sentencing.
Further Complaints
Further complaints were advanced relating to allegations of lack of particularity in the complaint, duplicity and the admission of opinion evidence. No complaint was made at trial with respect to lack of particularity or duplicity. The absence of complaint at trial may be explained as being the result of a forensic decision by counsel appearing in the trial. No explanation was offered to this Court for the absence of complaint on these two matters. Had complaint been raised, the trial may have taken a different course. If it had been concluded that there was any difficulty with the complaint, amendments may have been allowed. It is against this background that I address these topics.
Duplicity
On the hearing of the appeal, an issue was raised as to duplicity. Before coming to discuss this question, it is relevant to point out that the case was conducted before the Magistrate on the basis that section 135.2(1) created a single offence arising from the conduct engaged in by the defendant.
In Walsh v Tattersalls,[48] the High Court considered duplicity. Gaudron, Gummow and Kirby JJ formed the majority of the Court in allowing the appeal, having concluded that the charges laid under the particular statute were duplicitous. Dawson and Toohey JJ dissented.
[48] Walsh v Tattersall (1996) 188 CLR 77.
Dawson and Toohey JJ identified the relevant principles in unexceptional terms as follows:[49]
[49] Walsh v Tattersall (1996) 188 CLR 77, 84-85.
The proscription against duplicity is succinctly stated by Archbold:
The indictment must not be double; that is to say, no one count of the indictment should charge the defendant with having committed two or more separate offences ... This rule though simple to state is sometimes difficult to apply ... Duplicity in a count is a matter of form, not evidence.
The rule has been described as one of elementary fairness, to enable the defendant to know what it is of which he has been charged or found guilty and so that he has the opportunity of making a no case submission or a sensible plea in mitigation. That duplicity is a matter of form, not a matter relating to the evidence called to support the count, is emphasised by the Court of Appeal in Greenfield. For this reason S v The Queen is, in our view, not a case of duplicity.
The proscription against duplicity was referred to by Lord Diplock in Director of Public Prosecutions v Merriman though that case concerned a joint indictment of wounding with intent to do grievous bodily harm, against the respondent and his brother. The question was whether the respondent could be convicted if the jury found he had independently committed the offence the subject of the joint charge. His Lordship said:
The rule against duplicity ... has always been applied in a practical, rather than in a strictly analytical, way for the purpose of determining what constituted one offence. Where a number of acts of a similar nature committed by one or more defendants were connected with one another, in the time and place of their commission or by their common purpose, in such a way that they could fairly be regarded as forming part of the same transaction or criminal enterprise, it was the practice, as early as the eighteenth century, to charge them in a single count of an indictment.
[Footnotes omitted.]
Kirby J, having discussed eight principles governing duplicity in criminal courts, added the following caveat as the ninth principle:[50]
A finding that the rule against duplicitous charges has been breached does not oblige the court, coming to that conclusion, to dismiss the charge. Where the defect is one of patent duplicity, the proper course is to put the complainant to an election to remove the embarrassment. Where the defect is latent and the particulars do not remove it, the court may direct further particulars; require the complainant to elect and to identify the alleged offences; and/or exercise the power to permit an amendment. If the latent defect, once exposed, suggests a risk that the accused might not have a fair trial on the charges as pleaded, the court should require correction.
[Footnotes omitted.]
[50] Walsh v Tattersall (1996) 188 CLR 77, 110.
Accepting my earlier conclusions as to the retroactive effect of the amending legislation, it follows that the defendant was obliged to inform Centrelink within 14 days of his having obtained or returned to employment. This was a material change in circumstances. That failure to inform led Centrelink to continue making payments into the defendant’s Commonwealth Bank account. In my view, the charge the subject of the present proceedings was not duplicitous as it encompassed a single contravention which resulted in the defendant receiving a financial advantage which accumulated over a period to August 2007.
The defendant has confused conduct with the result of conduct. The obtaining of multiple Parenting Payment Partnered benefits is the result of the defendant’s conduct. The fact that the defendant’s conduct resulted in him obtaining multiple benefits over a period of time does not render the charge duplicitous.
To my mind, it is relevant that no objection was raised at trial. It would appear that the first time any complaint was made about possible duplicity was during the course of the appeal process. No evidence was placed before this Court to suggest that counsel at trial had not made a deliberate and tactical decision to advise the defendant to proceed without raising any concern as to duplicity. No evidence was placed before the Court to suggest that any injustice arose in the event that the Court took the view that the charges were duplicitous.
Deficiencies in the Complaint
On appeal it was submitted that the complaint did not adequately specify the conduct relied on by the prosecution to make out the charge. Again this was a complaint not advanced during the trial. There was no suggestion at trial that the defendant was in any way embarrassed by a lack of specificity.
The trial of the present proceeding was conducted on the basis that the relevant conduct was the failure by the defendant to inform Centrelink of his return to paid employment. That was the focus of and sole issue at trial. The prosecution alleged that the defendant failed to inform Centrelink of his paid employment. The defendant gave evidence that he did not inform Centrelink but that he believed that his wife had informed Centrelink. Mrs Jones gave evidence that she did inform Centrelink. In his reasons, the Magistrate correctly identified this to be the key issue at trial and proceeded on the basis that the prosecution bore the onus of proving that the defendant failed to inform Centrelink that he had returned to paid employment.[51]
[51] Commonwealth v Jones [2010] SAMC 35, [19].
The terms of this complaint did not specify the “particular” financial advantage relied upon by the respondent. However, it was evident from the prosecutor’s opening address that the financial advantage relied upon by the prosecution was the sum of $8,743.06 which had accumulated over the period from 11 October 2006 to 15 August 2007.
A complaint is not invalid because of a defect of substance or of form. A court, including an appeal court,[52] may amend a complaint to cure a defect of substance or of form unless the defendant has been substantially prejudiced.[53]
[52] Ireland v Police [2005] SASC 202, [13].
[53] Summary Procedure Act 1921 (SA) section 181.
As noted above, it appears that at trial the defendant did not object to the complaint, make any submission about its adequacy or request further particulars. This would suggest that the defendant was well aware of the case alleged against him at trial. The defendant has not been substantially prejudiced, or even prejudiced, by the failure of the complaint to specify the matters now complained of.
Opinion Evidence
As earlier discussed, the prosecution called evidence of an officer employed by Centrelink, Mr De Reuver. A review of the transcript of evidence given in the trial discloses that objections were taken to some aspects of the evidence of Mr De Reuver. Records of Centrelink were tendered. When Mr De Reuver was questioned about these records, he drew on his experience of procedures and protocols and the meaning of entries in the records.
On the appeal, counsel for the defendant identified specific evidence being given by Mr De Reuver and then submitted that inadmissible opinion evidence was received by the Court. The transcript reveals that no objection was taken at trial to any of the evidence identified by counsel for the defendant. The witness was cross-examined at some length on the records of Centrelink and the inferences to be drawn from entries in those records.
At the outset of Mr De Reuver’s evidence, he addressed the history of his employment with Centrelink. That employment commenced in 2006 and at the time of trial he had held the position of fraud investigator for about two years. He outlined his involvement in the investigation of the defendant. He explained that in the course of that investigation, he accessed the defendant’s electronic file and printed records from that file. He explained that those records had been made by Centrelink in the course of its day to day operations.
Mr De Reuver prepared a schedule which listed the payments that had been made to the defendant and the period in which those payments were made. Counsel for the defendant had no objection to the use of the schedule stating “[t]he primary information on which this document is based will be in evidence from other sources, from the banking record etcetera”.
Mr De Reuver outlined in evidence the practices and procedures with respect to a claim for a Parenting Payment Partnered benefit. He produced copies of the standard form documents associated with such a claim. Mr De Reuver explained to the Court how such a claim would be made pursuant to the established practices and procedures of Centrelink. Interviews would be held with a person seeking a benefit and following this process a decision would be made by a regional decision maker.
From the records held by Centrelink, Mr De Reuver informed the Court of the defendant’s application, his participation in the interview and the notification to the defendant of the success of his claim. Mr De Reuver explained that the practices and procedures of Centrelink involved the giving of advice to customers of the obligation to advise of a change of circumstances within 14 days. He outlined the practices and procedures that were available to enable such advice to be given. He outlined the way in which customers would be advised in writing of the obligations, and computerised versions of original letters sent to the defendant in accordance with these practices and procedures were tendered. These computerised versions confirm that written advice had been given by the defendant to notify of change of circumstances, including return to employment.

Mr De Reuver gave evidence of the practices and procedures following a claim made by a customer and in particular, as to the nature of the records created. A review of those records revealed the customer file and history. Mr De Reuver produced extracts from the Centrelink mainframe with respect to the defendant. He explained that the practices and procedures of Centrelink included the recording in the Centrelink mainframe of all contact between Centrelink and the defendant or his partner, who was identified as his authorised representative. He explained that when contact was made by letter or phone, the standard procedures of Centrelink involved the obtaining of personal details to confirm that the person calling was properly identified.
Mr De Reuver gave evidence that he had reviewed the Centrelink records held in respect of the defendant and that there was no reference to any advice being received from the defendant’s partner of the defendant’s return to employment. He explained in detail the practices and procedures followed when a customer or authorised person called to declare income or other relevant information. He explained how, in accordance with those practices and procedures, records would be kept. His review of the Centrelink records allowed the conclusion to be drawn that there had been no relevant advices about any change of circumstances provided by the defendant or his partner.
The evidence of Mr De Reuver as to the practices and procedures of Centrelink with reference to the issues arising in the trial was admissible as both relevant and probative. The evidence allowed the trier of fact to understand the provenance of the records produced and the matters from which inferences could be fairly drawn.
In Palios Meegan & Nicholson Holdings Pty Ltd & Anor v Shore,[54] I reviewed the admissibility of such evidence. In particular, I extracted passages from multiple textbooks before setting out the following observations of Asprey JA in Connor v Blacktown District Hospital:[55]
… To prove that an act has been done, it is admissible to prove any general course of business or office, whether public or private, according to which it would ordinarily have been done, there being a probability that the general course will be followed in the particular case (see Phipson Law of Evidence 10th ed para297). In Professor McCormick's Textbook on Evidence (1954), after defining 'habit' as a regular response to a repeated specific situation, he observes, at pp341-342, that expedience and sound reason lead to the conclusion 'that evidence that an act was habitually done by X under like circumstances will be received as evidence that it was done by X on the particular occasion', and went on to point out that 'nevertheless the judge should possess the discretion usual in this field of circumstantial evidence to exclude if the habit is not sufficiently regular and uniform, or the circumstances sufficiently similar, to outweigh the danger, if any, of prejudice or confusion'. In Wigmore, Anglo-American System of Evidence in Trials at Common Law, 3rd ed, vol1, para93, it is stated that, subject to the distinctions referred to in para92 which do not affect the admissibility of the evidence in the instant case, 'the admissibility of a person's habit, usage or custom as evidence that he did or did not do the act in question may be said to be universally conceded. ... evidence of a relevant practice may be given by a person who, on a sufficient number of occasions and over a sufficient period, has regularly and uniformly performed acts, or has observed the regular and uniform performance of acts by others, under the same circumstances and upon the same occasions, so as to make it appear probable in the minds of reasonable men that, given the same circumstances and occasions, the like acts will again be performed. Such evidence, if accepted by the tribunal of fact, will enable it to draw the inference that such acts were performed by that person or those others, as the case may be, where the same occasion and circumstances for their performance have subsequently recurred at a point of time connected sufficiently closely with the continuity of acts related in the evidence.
[Footnotes omitted.]
[54] Palios Meegan & Nicholson Holdings Pty Ltd & Anor v Shore (2010) 108 SASR 31.
[55] Connor v Blacktown District Hospital [1971] 1 NSWLR 713, 721 (Mason JA concurring) as cited in Palios Meegan & Nicholson Holdings Pty Ltd & Anor v Shore (2010) 108 SASR 31, [82].
The remarks of Asprey JA were adopted in Olga Investments Pty Ltd v CitiPower Ltd[56] where the Court noted that evidence as to practice or habit was not required to be “invariable” practice, and that “normal” or “regular” practice was equally admissible.
[56] Olga Investments Pty Ltd v CitiPower Ltd [1998] 3 VR 485.
Further, in Martin v Osborne, Dixon J relevantly observed:[57]
… If an issue is to be proved by circumstantial evidence, facts subsidiary to or connected with the main fact must be established from which the conclusion follows as a rational inference. … The circumstances which may be taken into account in this process of reasoning include all facts and matters which form constituent parts or ingredients of the transaction itself or explain or make intelligible the course of conduct pursued. … the class of acts and occurrences that may be considered includes circumstances whose relation to the fact in issue consists in the probability or increased probability, judged rationally upon common experience, that they would not be found unless the fact to be proved also existed. … the acts of a party are admissible against him whenever they form a component in a combination of circumstances which is unlikely to occur without the fact in issue also occurring. The repetition of acts or occurrences is often the very thing which makes it probable that they are accompanied by some further fact. The frequency with which a set of circumstances recurs or the regularity with which a course of conduct is pursued may exclude, as unreasonable, any other explanation or hypothesis than the truth of the fact to be proved.
[Emphasis added.]
[57] Martin v Osborne (1936) 55 CLR 367, 375-376.
As I observed in Palios Meegan & Nicholson Holdings Pty Ltd & Anor v Shore, these authorities demonstrate that evidence of established practice may be relevant and probative evidence, potentially of considerable weight.[58]
[58] Palios Meegan & Nicholson Holdings Pty Ltd & Anor v Shore (2010) 108 SASR 31, [84].
In the course of his reasons, the Magistrate reviewed Mr De Reuver’s evidence. There was no complaint on the appeal of the accuracy of that review. The Magistrate made use of the documentary records from Centrelink, understanding the usual practices and procedures that led to the creation of those documentary records. He noted in particular:[59]
Mr De Reuver acknowledged that whether in fact Centrelink had a complete record of all relevant contacts with Mr and Mrs Jones was dependent on whether the protocols and procedures utilised by Centrelink had been faithfully observed by each Centrelink staff member that had received any such contact.
Mr De Reuver allowed for the possibility that human error by Centrelink staff could result in the non recording of a contact between a customer and Centrelink. Nonetheless, it was his view that the records he produced established that the advice in question had never been given to Centrelink by Mr or Mrs Jones.
[59] Commonwealth v Jones [2010] SAMC 35, [31]-[32].
It is to be accepted that, in a sense, Mr De Reuver was giving expert opinion evidence. However, properly understood, Mr De Reuver was advising the Court that he had reviewed the documentary records of Centrelink relevant to the case, had assumed that the established practices and protocols had been followed and informed the Court on that basis that the contents of those records negated any suggestion that advice that the defendant had returned to paid employment had been given to Centrelink. To my mind, so understood, the evidence was admissible. The evidence, if accepted, formed an evidentiary basis from which the Magistrate could draw relevant inferences. Nothing in the objections taken at trial suggested that this course was not open to the Magistrate. The records of Centrelink, understood in the light of the practices and procedures of Centrelink and in particular in the absence of any evidence of contact of advice of return to work, were items of circumstantial evidence on which the Magistrate was entitled to act.
When properly understood, it is a complaint about evidentiary matters being raised for the first time on appeal. To my mind, there is no substance in this complaint.
Conclusion
The appeal against conviction is dismissed. The matter is remitted to the trial Magistrate for the sentencing of the defendant.

Offence details

1.Between about the 11^th day of October 2006 and about the 15^th day of August 2007 at Adelaide or elsewhere in the said State engaged in conduct and, as a result of that conduct, obtained a financial advantage for himself from a Commonwealth entity, namely the Commonwealth Services Delivery Agency trading as ‘Centrelink’, knowing or believing that she was not eligible to receive that financial advantage; contrary to section 135.2(1) of the Criminal Code (Cth).

Particulars:
The defendant was not entitled to the said financial advantage, namely part payment of Parenting Payment Partnered, because of his income from and employment with Craig Arthur Pty Ltd.