Director of Public Prosecutions (Cth) v Keating [2013] HCA 20

Director of Public Prosecutions (Cth) v Keating [2013] HCA 20

Section 66A of the Administration Act did not create a duty for the purposes of s 4.3(b) of the Criminal Code (Cth) prior to the date the Act received Royal Assent, so omission to inform cannot be a physical element for s 135.2(1) charges in that period; however, notices issued under ss 67(2) and 68(2) were capable of creating a duty for s 4.3(b), and intentional failure to comply with these notices could amount to 'engaging in conduct' under s 135.2(1)(a) if all factual elements are proved.

Parties
Informant: Director of Public Prosecutions (Cth); Defendant: Kelli Anne Keating; Intervener: Attorney-General of the Commonwealth; Intervener: Attorney-General for the State of South Australia
Jurisdiction
Australia
Judgment Date
08 May 2013
Procedural Posture
Criminal Stated Case / Answering Reserved Questions, Remitter to Magistrates' Court
Outcome
Questions in the stated case answered; cause remitted to Magistrates' Court of Victoria.
Legal Topics
Offences Against the Commonwealth, Physical Elements of Criminal Liability, Omission as Conduct, Legal Duty to Act, Presumption Against Retrospectivity
Criminal Law Administrative Law Constitutional Law Offences Against the Commonwealth Physical Elements of Criminal Liability Omission as Conduct Legal Duty to Act Presumption Against Retrospectivity

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Parties

Director of Public Prosecutions (Cth)

Informant

Kelli Anne Keating

Defendant

Attorney-General of the Commonwealth

Intervener

Attorney-General for the State of South Australia

Intervener

Procedural Posture

Criminal Stated Case / Answering Reserved Questions, Remitter to Magistrates' Court

Legal Issues

  1. 1 Whether s 66A of the Social Security (Administration) Act 1999 (Cth) created a duty for the purpose of s 4.3(b) of the Criminal Code (Cth) prior to receiving Royal Assent
  2. 2 Whether notices issued under ss 67(2) and 68(2) of the Administration Act created a duty for the purposes of s 4.3(b) of the Criminal Code (Cth)
  3. 3 Whether the retrospective operation of s 66A is invalid for infringing separation of powers

Ratio Decidendi

Section 66A of the Administration Act did not create a duty for the purposes of s 4.3(b) of the Criminal Code (Cth) prior to the date the Act received Royal Assent, so omission to inform cannot be a physical element for s 135.2(1) charges in that period; however, notices issued under ss 67(2) and 68(2) were capable of creating a duty for s 4.3(b), and intentional failure to comply with these notices could amount to 'engaging in conduct' under s 135.2(1)(a) if all factual elements are proved.

Court Disposition

Questions in the stated case answered; cause remitted to Magistrates' Court of Victoria.

Orders

  • Questions in the stated case dated 19 December 2012 answered as specified.
  • Each party to bear its own costs of the stated case.