Natalie Burgess, ‘Fiction and Certainty in Social Security Prosecutions: DPP (Cth) v Keating’ (25 July 2013).

In DPP (Cth) v Keating, the High Court ruled on four questions stated in a special case brought by the parties to a social security fraud prosecution in the Magistrates’ Court of Victoria. The defendant had allegedly failed to respond to ‘information notices’ issued by Centrelink that informed her of the need to notify Centrelink of changes in her situation that might affect her social security payments. (The parties dispute whether the defendant received the notices.) The High Court ruled that the notices were capable of creating a legal duty, such that failing to comply with them (ordinarily an omission) would amount to ‘engaging in conduct’ (a requirement of the offence). A second issue related to retrospectivity: the offence provision was inserted into the Act in 2011, but purported to apply from March 2000. The defendant’s alleged failure occurred between 2007 and 2009. The High Court ruled that the provision did not create a legal duty from March 2000 such that failing to inform the Department of changes in circumstances would amount to ‘engaging in conduct’: criminal responsibility here would relate only to a failure to do something that at the time of the failure the person was required to do.