Keating v Director of Public Prosecutions (Cth)

[2012] HCATrans 346

[2012] HCATrans 346

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne       No M74 of 2012

B e t w e e n -

KELLI ANNE KEATING

Applicant

and

DIRECTOR OF PUBLIC PROSECUTIONS (CTH)

Respondent

Application for removal

HAYNE J
HEYDON J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 14 DECEMBER 2012, AT 9.30 AM

Copyright in the High Court of Australia

MS D.S. MORTIMER, SC:   If it please the Court, I appear with my learned friends, MS K.L. WALKER and MS F.I. GORDON, for the applicant.  (instructed by Victoria Legal Aid)

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

HAYNE J:   Yes, Ms Mortimer.

MS MORTIMER:   If the Court pleases, this application for removal is made to ask this Court to resolve constitutional and construction questions which arise in a large number of prosecutions for offences against section 135.2 of the Criminal Code in respect of overpayments to recipients of social security benefits.

HAYNE J:   Are the constitutional points ones which would require the Court to revisit Polyukhovich?

MS MORTIMER:   Our principal argument, your Honour, is that that case can be distinguished on the basis that it did not concern a law which criminalised conduct which was not already in some sphere of the law criminal, so in that sense we say that the arguments are different.

HAYNE J:   Yes.

MS MORTIMER:   We do submit that if the Court is of the view that Polyukhovich has either on its own terms – which we do not agree with – or subsequently been viewed by this Court as authority for the proposition that even in those circumstances the Parliament can retrospectively impose criminal liability, then we do submit that it should be reopened and reconsidered.

HAYNE J:   Yes.

MS MORTIMER:   Can I deal first with the criteria in terms of removal before I turn to the arguments?  Your Honours, the evidence is on behalf of Victoria Legal Aid that there are 52 prosecutions in which this issue is involved, and the evidence on behalf of the Commonwealth – that is in Victoria – is that there are 330 prosecutions nationally that involve these issues and about 350 Centrelink briefs prosecute which are currently not being proceeded with ‑ ‑ ‑

HAYNE J:   Now, do they all raise the notice point?  Do they all raise this third point?

MS MORTIMER:   They do not.  So far as the Commonwealth’s submissions tell us, they do not all raise that notice point.

HAYNE J:   Do we get to the constitutional point if the notice point is resolved against you?  You can see where I am going.  Is this the vehicle?

MS MORTIMER:   Your Honour, we submit it is the vehicle because at the moment the Commonwealth’s position is that it intends to press prosecution of these people under both and they are said to be alternatives, so either the duty is to be found in the new provision, 66A, or the duty is to be found in the notices, and the Commonwealth is not abandoning either of those.  The evidence is vague about in which prosecutions the notice ground is going to be pressed, but it is clear from the evidence, in our submission, that it is pressed in a number of them and it is pressed in this one.

HAYNE J:   Yes.

MS MORTIMER:   The Commonwealth accepts that these questions had implications not only for prosecutions that are currently pending, but also for convictions that have already been secured.  The other point that, in our submission, supports the grant or an order for removal is that the parties have substantially agreed facts.  Your Honours have a copy of the document that we have produced today behind tab 1 in the book, and the parties, I think it is fair to say, are confident that we are able to put before the Court by way of agreement all the facts that are necessary for these points to be determined.

HAYNE J:   With a view to what, to there being a stated case – a case stated by a single Justice?  If part or all of the matter is removed in you would say that there can and then should be a case stated by a single Justice?

MS MORTIMER:   That would be one option, your Honour.  The other option, it seems to us, which is available under the rules, is for a special case, for the parties to state a special case, but either way we would submit that we could on the basis of the agreed facts and perhaps with some modification to the questions as they are currently articulated, identify the questions and provide a suitable vehicle for the Court to determine these matters.  There is a great deal of urgency about this because of the number of prosecutions that are being held up because of it.

Now, the arguments that we put forward, if the Court pleases, are these.  We have two construction arguments which go to different aspects of the applicant’s prosecution, one to whether 66A is an effective amendment to do what the Commonwealth asks it to do and, secondly, to the notices.  If we are correct about our first construction argument then the constitutional question does not arise, but that, in our submission, does not diminish the importance of this as a vehicle for removal because the effect of the Court finding in our favour on the construction argument is that these prosecutions would all have to be dismissed.  Those charges would have to be dismissed because the situation that this Court declared – obtained in Poniatowska – would prevail.  So that is why we submit that our first construction argument still provides a suitable and appropriate vehicle for this prosecution to be removed.

Can I take the Court briefly to the terms of section 66A, which your Honours will have behind tab 4 in the folder?  The first point to note, which is important to both of our construction arguments, both the notice argument and the first construction argument, is that the amendments that were proposed to rectify the problem identified by the Court in Poniatowska have only been amendments made to the social security legislation. There have been no amendments to the law creating the offence, that is, section 135.2. That is very important to understand our first and third construction arguments.

What these amendments have done, as your Honours will see by section 66A(2) is to impose a duty on a person within 14 days after an event occurs to report the change to the Department.  This provision, by section 2 of this amending legislation, is to take effect from 20 March 2000.  There then seems to be out of an ‑ ‑ ‑

HAYNE J:   What is the provision that works that ‑ ‑ ‑

MS MORTIMER:   The commencement provision in section 2 of the amending legislation.

HAYNE J:   Yes, thank you.

MS MORTIMER:   Then out of an abundance of caution, in section 3 there is an application provision which expressly states that section 66A as inserted by the schedule applies to an event or a circumstance that occurs in or after 20 March 2000.  So in these circumstances, the factual position is this.  We had a charge brought in 2010, and in the prosecution of that charge the Commonwealth will assert that the effect of this provision is from August 2011 a duty has been imposed on Ms Keating to inform Centrelink from 31 May 2007 of an increase in her income. 

That is the effect this provision has; it imposes a duty that is in fact incapable of performance by the person on whom it is imposed, and it is imposed four years after the conduct said to constitute the omission and one year after the charge has been brought.  Now, if I can turn to our first construction argument and ask your Honours to go to tab 3 where your Honours ‑ ‑ ‑

HAYNE J:   With a view to demonstrating what, that the point is arguable, the point is – we are not here to debate the final question – what is the point you are trying to persuade us of immediately?

MS MORTIMER:   Immediately, that all these three points that we raise are arguable, your Honour, because that is the only difference as we apprehend it between the parties at the Bar table.  The Commonwealth otherwise concedes everything and then sits on the fence, it seems to us, and says, well, they are not very good arguments otherwise this would be a removal by consent.

HAYNE J:   You may think so.

MS MORTIMER:   I will move on, your Honour.

HAYNE J:   Yes.

HEYDON J:   Why is it contrary to Chapter III?

MS MORTIMER:   It is only contrary to Chapter III if we are wrong about our construction argument, and the argument there is that it creates a fiction, and it invents a duty and imposes that duty on a person in circumstances where the law is punishing a person for an omission, and it invents that duty, imposes it retrospectively when it in fact cannot be performed, and it removes from the Court, in our submission, the ascertainment of whether the person was able to perform that duty, because that question is answered by the legislation. 

It can only be answered in one way by the legislation because the time for the performance of the duty has well passed.  So we say that is the kind of interference or infringement that this Court should consider whether there is an infringement of Chapter III.  What we know from the authorities, in our submission, is this, that there is no decision of this Court, the ratio of which is that the Commonwealth can criminalise conduct that was not criminal in any sense at the time at which it was committed.

HAYNE J:   That is to state a proposition at a very high level of abstraction.  I am not sure how useful that level of abstraction is.  The point, as I would understand you to make it, is that, what?  The statute creates a duty after the event.  The duty is one which requires performance within time.  Time has passed.  Where do we go ‑ ‑ ‑

MS MORTIMER:   So the statute completes the physical element of the offence.

HAYNE J:   Yes.  Where do we go from that observation, that the statute, as you put it, completes the physical element?  What is the difficulty, the Chapter III difficulty, that is presented by that observation?

MS MORTIMER:   Well, the Court then in terms of the physical element is not ascertaining the guilt or innocence of the party at all.  The statute has done that.  There is nothing that the person can do.  It is an argument, in our submission, that is all the stronger because this is a circumstance that deals with omissions, and the whole concept in the criminal law of imposing liability for an omission does depend very strongly on the identification of a duty and it has, so far as we can ascertain, never been decided that those two things, the omission and the duty, can occur at different times – be completely separated in time.

HAYNE J:   Well, that seems to me to be an argument which distilled comes to an attainder argument.  It becomes an argument that by legislation the word “deem” at once takes you off into difficult areas, but the legislation by providing that there has been an omission which has occurred, though at the time it was not, seems to be the circumstance on which you fasten.

MS MORTIMER:   There are a number of ways in which the infringement or usurpation can be characterised, and one of the features of all judgments of this Court that deal with Chapter III infringements is that there is a variety of characterisations of this.

HAYNE J:   Yes, because there is a variety of facts that are at stake.

MS MORTIMER:   That is so, your Honour, but here, to take the way that Justice Gaudron put it in Polyukhovich, there is an invention of a fact, and the fact that is invented is that the person failed to perform the duty that the statute imposed on them, and that is invented by the retrospectivity.

HAYNE J:   Where do I find that in Justice Gaudron’s opinion in Polyukhovich?

MS MORTIMER:   It is at page 705.  The passage starts at the bottom of 704 and goes to the top of 705.

HAYNE J:   Do you say that this Act presents the question of whether the Parliament has, as Justice Gaudron put it:

perfected its intention of declaring –

not an act in this case, but an omission in this case to be an omission contrary to the criminal law?

MS MORTIMER:   Precisely, your Honour, and the course of the proceedings demonstrates that because the Court finds in Poniatowska it is not criminal to do what Ms Keating has done because there is no duty, and the Commonwealth by this legislation picks up and declares retrospectively, well, there was a duty four years ago, and in that sense it perfects a crime, the physical element of a crime, that was that this Court held was not available.  That is precisely the kind of invention, in our submission, that Justice Gaudron is talking about there.

Now, because, in our submission, there has been no case before this Court that has come close to a consideration of the relationship between Chapter III and this kind of retrospective legislation – Nicholas goes nowhere near it, Nicholas is about evidence and procedural issues in that sense – because there has been no case, and because the principles about the infringement or interference with Chapter III are fluid and do depend very much on the circumstances we submit that this is an important question that the Court should decide.

I do not want to be heard to say, however, by concentrating on the constitutional argument that our first construction argument is not our best argument because, in our submission, it is a very good argument because of the failure to amend section 135.2 of the Criminal Code.  What the Criminal Code shows – can I just briefly take your Honours to those provisions which your Honours will find behind tab 3? 

The Commonwealth relies – section 135.2 is in the same form it was in in Poniatowska – the Commonwealth must rely on section 4.3(b) because “the law creating the offence”, subsection (a), has not been amended to impose a duty. So the Commonwealth must rely on (b), and the Commonwealth must show that the law creating the offence, that is, section 135.2, impliedly provides that the offence is committed by an omission.

Now, in circumstances where there has been no amendment to the law creating the offence there is no ascertainable connection between section 66A in the social security legislation and this; put that together with the construction principles one would usually apply to imply in retrospectivity, and we submit that it is impossible to imply into section 135.2 an implication to impose a duty.

That provision has not changed, and there is no ascertainable connection between that provision and the social security legislation.  We

submit the Commonwealth is in no better position than it was in in Poniatowska, it simply has not achieved its aim, and we submit with further development that construction argument puts paid to this issue, but if we are wrong about that then we do press significantly the constitutional issue.

HAYNE J:   Yes.

MS MORTIMER:   The notice argument, in our submission, if the Court is otherwise persuaded that this is an appropriate vehicle for removal, then the notice argument ought also be removed. The whole proceeding should be removed so that that argument can be raised because it is pressed by the prosecution as a true alternative. Essentially, it involves, from our perspective, the same argument as our first one, that is, without an amendment to section 135.2 you cannot grab duty out of a disconnected piece of legislation and implant it into the law creating the offence. Those are the submissions on behalf of the applicant, if the Court pleases.

HAYNE J:   Yes, thank you, Ms Mortimer.  Yes, Ms Abraham.

MS ABRAHAM:   As your Honours will appreciate from our written submissions, while we accept this is a matter of importance, that is because of the difficulties that have occurred as a result of the application being made and the cases that are, in effect, in the wings.

HAYNE J:   It is all the applicant’s fault.  Yes, we know that, Ms Abraham.

MS ABRAHAM:   What we do say is there is no merit in the arguments put.  Your Honours, one needs to bear in mind what section 66A, the amending provision, actually does.  In my submission, my friend’s argument is based on a misconception.  All section 66A does is means that the offence under 135.2, that first element, is capable of being committed by omission.  It says nothing factually about whether this accused or any accused has in fact committed the offence, or any element of it, because it does not – as my friend seems to suggest – it does not establish the physical element because it does not establish that as a matter of fact there was no notification by this applicant to Centrelink of the change of circumstances.  So every element, physical and fault, is still for the Court to decide.  So in my submission, the arguments of my friend in terms of the construction are misconceived.

HAYNE J:   Is it a necessary part of demonstrating contravention of 135.2 to demonstrate that the accused person failed in performance of a duty, in a case of this kind, of course, I am speaking?

MS ABRAHAM:   In my submission, the person has to fail to commit an act which, in fact, there was a duty to commit.  In our submission, one does not need to know there is a duty ‑ ignorance of the law, with respect.

HAYNE J:   That I understand, but is it a necessary step for the prosecution to demonstrate existence of a duty to report changes to Centrelink?

MS ABRAHAM:   Under 4.3(b), yes, in light of Poniatowska, and 4.3(a).  Obviously, the section itself, 135, does not establish or create a duty.

HAYNE J:   Does 66A, according to the construction advanced by the prosecution, impose a duty of that kind?

MS ABRAHAM:   Yes.

HAYNE J:   Is the duty imposed by 66A one which required performance within 14 days of the occurrence of the change of circumstance?

MS ABRAHAM:   That is how the section is phrased, yes.

HAYNE J:   How is that different from the case considered or mentioned by Justice Gaudron in Polyukhovich making the changes that are necessary to take account of this being an omission case rather than a performance case?

MS ABRAHAM:   In my submission, all that has occurred in 66A is, in effect, correcting – I do not mean to minimise it ‑ ‑ ‑

HAYNE J:   The Court’s decision in Poniatowska, no.  Correcting what, Ms Abraham?

MS ABRAHAM:   Well, I was going to use the word “technicality” but that is probably not the right word.

HAYNE J:   No.

MS ABRAHAM:   All the prosecutions were conducted, as your Honours know, under the assumption that 135.2 did create the duty, and as your Honours are aware, notices are given under 67 and 68 of the Act – that is the Administration Act – and your Honours have seen from the agreed facts how many notices were given here.  Those notices were not relied on in Poniatowska because there was no need.  What has occurred simply, in my submission, is that 66A has been enacted to create a stand‑alone – if I can call it that – obligation which did not, absent the notices, exist at the time.

Nonetheless, in my submission, it is quite clear, given the nature of the subject matter, that any recipient of social security benefits would have been under no misapprehension because of the notices that they are automatically given that there is a requirement to notify of the change of circumstances, because one does not simply get Centrelink and get it forever regardless of the change of circumstances; it is dependent on the amount of money, for example, one is earning. 

So, at the time the offence was committed, in my submission, there is no doubt that persons accepting Centrelink benefits were aware that it would be wrong not to inform Centrelink of details which will affect or might affect their benefits.  So, in our submission, when one is properly considering the interpretation of 66A it is not, with respect, doing anything extraordinary, it is not directing the Court to do anything, it is the Court that is deciding the facts in relation to each given case. 

In my submission, 66A should be given its ordinary and natural meaning, that is, it does have retrospective effect back to 20 March 2000, and of course, if one turns to each of the elements of the offence in relation to 135.2 the offence could never be proved unless the accused or the applicant intended to not inform Centrelink in circumstances where they were reckless as to whether they would get an advantage, they did get an advantage and they knew and believed or believed they were not entitled to that advantage.  So unless all those facts could be proved, in my submission, the offence is not made out and so, in my submission, it does not have the effect contended for by my friend.

In relation to the arguments as to the validity, in my submission, my friend’s arguments do in fact challenge the correctness of Polyukhovich.  There are more relevant distinguishing features between Polyukhovich, Kidman, indeed Nicholas and this case and, in my submission, there is no basis on which to reargue or reopen that decision.  So, in my submission, whilst we accept, of course, as I have made clear, the matter is of importance – sorry, one matter I have omitted.  The 67 and 68 notices is question 3 on the application.  It is clear that they have only been involved in a few prosecutions and, indeed, it is obvious they probably would not be able to be relied on in past conviction prosecutions because they were never proved in the trial in the first place, and so 66A clearly is of significance.

With respect, it is hard to imagine that, for example, my friend’s argument on ground 2 could be considered without a consideration of the scope and extent of 67 and 68 and their meaning because my friend puts her argument on the basis, well, it just was not criminal.  Well, if 67 and 68 have the meaning that we say it does, well, clearly, it was criminal at the time, and it is simply another form of a stand‑alone, in effect, obligation, it is not done by the provision of notices, so some aspect of that argument and

66, 67 and 68 will necessarily, I imagine, be part of ground 2.  The whole extent might not be, but some.

Your Honours, as I said, in our submission, it is affecting a number of cases; we accept that.  Can I indicate there is one superior court decision at the moment?  That is Jones.  It is a single judge of the Supreme Court in South Australia ‑ it is in the bundle of materials ‑ by Justice Gray who considered that a constitutional issue did not consider that ground 1 or ground 3 not being relevant, that being a prior conviction case and, indeed, permission has been sought to go to the Full Court in South Australia on that matter; it is listed for directions pending the outcome of this application.

Can I also indicate just in practical terms that whilst there is, one would have thought, some guidance from Jones in relation to the interpretation of 66A, there are at least two magistrates who on the construction point distinguish it on the basis of it being a prior conviction as opposed to current proceedings and there are appeals pending in relation to those matters in different jurisdictions.  The matters having to come from the Magistrates Court make it somewhat difficult to get to an intermediate appellate court.  Those are my submissions.

HAYNE J:   Thank you, Ms Abraham.  Yes, Ms Mortimer.

MS MORTIMER:   I have nothing in reply, if the Court pleases.

HAYNE J:   Yes.  The Court will adjourn to consider the course it will take in this matter.

AT 10.01 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.04 AM:

HAYNE J:   There will be an order for removal of the whole of the cause now pending in the Magistrates Court.  Is there any reason why the matter should not come on for directions before a single Justice in Melbourne at 9.30 on Tuesday next?

MS MORTIMER:   No, your Honour, there is no reason.  From our perspective, there is no reason.

HAYNE J:   Yes, very well.  Is there any other order that need be made?

MS MORTIMER:   No, your Honour.

HAYNE J:   I should say, for the purposes of that single Justice matter, come bearing gifts of draft stated cases or special cases, as the case is thought appropriate, preferably filed by no later than 4 o’clock on Monday, but there we are.  The weekend comes, Ms Mortimer.

MS MORTIMER:   What else is the weekend for, your Honour?

HAYNE J:   Exactly, Ms Mortimer.

AT 10.05 AM THE MATTER WAS CONCLUDED