Bills Digest no. 69, 2017–18
PDF version [356KB]
Owen Griffiths
Law and Bills Digest Section
2 February 2018
Contents
Purpose of the Bill
Background
Issues during 2016 federal and ACT
elections
Figure 1: example of bulk SMS text
messages sent on election day
Joint Standing Committee on Electoral
Matters
Electoral and Other Legislation
Amendment Bill 2017
Save Medicare websites
Committee consideration
Senate Standing Committee on Legal
and Constitutional Affairs
Senate Standing Committee for the
Scrutiny of Bills
Policy position of non-government
parties/independents
Position of major interest groups
Financial implications
Statement of Compatibility with Human
Rights
Parliamentary Joint Committee on
Human Rights
Key issues and provisions
Scope of the offences
Freedom of expression
Freedom of political communication
Satire, academic and artistic
purposes
Figure 2: screenshot from Centrelink
Fail - Honest Government Advert video (The Juice Media)
Justification for new offences
Injunctions
Figure 3: extract of The NBN
tagline, translated (The Gruen Team)
Concluding comments
Date introduced: 13
September 2017
House: House of
Representatives
Portfolio: Attorney-General
Commencement: The
day after Royal Assent.
Links: The links to the Bill,
its Explanatory Memorandum and second reading speech can be found on the
Bill’s home page, or through the Australian
Parliament website.
When Bills have been passed and have received Royal Assent,
they become Acts, which can be found at the Federal Register of Legislation
website.
All hyperlinks in this Bills Digest are correct as
at February 2018.
Purpose of
the Bill
The purpose of the Criminal Code Amendment (Impersonating a
Commonwealth Body) Bill 2017 (the Bill) is to amend the Criminal Code Act
1995 (Cth) (Criminal Code) to introduce two offences for persons
who engage in conduct which results in a representation that the person is, or
is acting on behalf of, a Commonwealth body. The Bill also allows affected
persons to seek injunctions to prohibit or prevent this conduct under the Regulatory Powers
(Standard Provisions) Act 2014 (Cth) (Regulatory Powers Act).
Background
Issues
during 2016 federal and ACT elections
During the 2016 federal election, the Australian Labor
Party (ALP) campaign included a claim that the Coalition intended to privatise
Medicare. This claim was dubbed ‘Mediscare’ by the media and was judged to have
assisted the ALP position during the election period.[1]
Aspects of the ‘Mediscare’ campaign included the distribution of cardboard
flyers containing messages which resembled Medicare cards, voice mail messages
and bulk SMS text messages.[2]
In particular, the bulk SMS text messages, sent by the
Queensland Labor Party on election day, appeared under the heading ‘Medicare’
(see Figure 1 below). Concerns were raised that the sender of the text messages
was not clearly identified and that the text messages could be confused as
originating from Medicare itself. A Queensland Labor Party spokesman confirmed
it was the origin of the text messages, but stated that the ‘message was not
intended to indicate that it was a message from Medicare, rather to identify
the subject of the message’.[3]
However, in his election night victory speech, Prime Minister Malcolm Turnbull
described the text messages as an ‘extraordinary act of dishonesty’ and
considered there was ‘no doubt the police will investigate’.[4]
Figure 1: example of bulk SMS text messages sent on election day

Source: D Lewis (@dlewis89), ‘Has anyone else received
this text message? Is Labor pretending to be Medicare?’, tweet, 2 July 2016, https://twitter.com/dlewis89/status/749077501276622848.
The matter was referred to and evaluated by the Australian
Federal Police (AFP), but no Commonwealth offences were identified.[5]
Currently, the Criminal Code makes it an offence for a person to impersonate
or falsely represent themselves to be a Commonwealth official, but not a
Commonwealth body.[6]
During the Australian Capital Territory (ACT) election in
2016, the Australian Government Solicitor wrote to the ACT Labor Party demanding
it cease distributing political pamphlets which resembled Medicare cards as the
cards were a breach of copyright.[7]
The ACT Labor Party apologised and agreed to withdraw the cards.[8]
Joint
Standing Committee on Electoral Matters
In the first interim report for its inquiry
into the 2016 Federal Election, the Joint Standing Committee on Electoral
Matters (JSCEM) considered concerns raised that ‘electoral materials were
disseminated by individuals or organisations claiming to be a Commonwealth
entity’.[9]
It noted that, when the AFP considered the matter of the ‘Mediscare’ text
messages, the AFP had found that there was no scope for a criminal prosecution because
there was no law against impersonating, or purporting to act on behalf of, a
Commonwealth entity.[10]
The JCSEM concluded that ‘impersonating, or purporting to act on behalf of, a
Commonwealth officer or an entity is unacceptable and that steps should be
taken to ensure that neither occurs in future’.[11]
It recommended that the JSCEM ‘conduct further inquiry and make recommendations
in early 2017 regarding the issues of impersonating a Commonwealth officer and
Commonwealth entity’.[12]
However, the introduction of the proposed amendments to the Criminal Code
appears to have pre-empted further inquiry into this issue.[13]
Electoral
and Other Legislation Amendment Bill 2017
The proposed offences contained in the Bill were initially
part of the Electoral
and Other Legislation Amendment Bill 2017 (Electoral Bill) introduced into
the House of Representatives on 30 March 2017. However, during the
consideration in detail stage of the debate, the Government amended the
Electoral Bill to remove the schedule concerning the criminalisation of
impersonating a Commonwealth body. The Minister for Trade, Tourism and
Investment, Steven Ciobo, did not give a reason for the amendment but noted
that ‘the government remains committed to legislating to criminalise the
impersonation of a Commonwealth entity’ and that separate legislation would
deal with this issue.[14]
The Electoral Bill, as amended, was passed.[15]
Save
Medicare websites
In November 2016, it was reported that the Australian
Government Solicitor (AGS) on behalf of the Department of Human Services (DHS)
wrote to Mark Rogers who operates a website called savemedicare.org as well as an associated Facebook
subdomain and a Twitter account.[16]
The AGS letter reportedly stated that Mr Rogers’ use of the Medicare logo on
the website was ‘misleading or deceptive and infringes [DHS’s] copyright in the
MEDICARE logo’. It demanded Mr Rogers remove all instances of the Medicare
logo and branding, any ‘deceptively similar branding’ and cancel the domain
name of the website, Facebook subdomain, and Twitter handle.[17]
Following media attention, a Getup
petition and a question to Prime Minister Turnbull during Question Time,[18]
the AGS reportedly clarified that DHS had no intention of commencing legal
proceedings against Mr Rogers.[19]
The ALP operates a similarly named website savemedicare.org.au. Media reports
indicate that the AGS also sent a letter to the ALP requesting the Medicare
logo be removed from the website, however this request was rejected by Maurice Blackburn,
the law firm representing the ALP.[20]
Committee
consideration
Senate Standing
Committee on Legal and Constitutional Affairs
The provisions of the Bill were referred
to the Senate Standing Committee on Legal and Constitutional Affairs for inquiry
and report. The inquiry
received seven submissions and no public hearings were held. In the inquiry
report, tabled on 13 November 2017, the majority of the Committee
recommended the Bill be passed.[21]
The majority report of the Committee stated:
The committee has carefully considered the information
provided by submitters—that the proposed offence may violate Australia's human
rights obligations, that the offence may go beyond its stated intention, that
there may be unintended consequences such as limiting freedom of speech and
political satire, and that the exemption should be unambiguous.
The committee has weighed these concerns with the fact that
the proposed offences almost mirror the current offences for impersonating a
Commonwealth official, including the form in which the proposed exemption has
been articulated. Additionally, the committee notes that both the Senate
Standing Committee for the Scrutiny of Bills, and the Human Rights Committee,
reported that it had no scrutiny or human rights concerns. Ultimately, the
committee is of the view that the Bill is both proportionate and necessary and
therefore recommends that the Bill be passed.[22]
Senator Nick McKim, for the Australian Greens, made a
dissenting report which recommended the Bill ‘be opposed by the Senate’.[23]
The dissenting report stated:
The Australian Greens are concerned that the Chair [Senator
Ian Macdonald] has not appropriately responded to and addressed the concerns
raised by the submitters regarding this bill.
The amendments proposed are unnecessary, have not been
sufficiently justified, will unreasonably fetter freedom of political
expression and silence many satirists.[24]
Senate
Standing Committee for the Scrutiny of Bills
The Senate Standing Committee for the Scrutiny of Bills considered
the Bill and made no comment.[25]
Policy
position of non-government parties/independents
ALP members of the JSCEM inquiry did not dissent from its
characterisation of impersonating a Commonwealth body as ‘unacceptable’.
Further, ALP members of the Senate Legal and Constitutional Affairs Committee
did not dissent from the majority report which recommended the Bill be passed.
However, in February 2017, the Shadow Attorney-General, Mark Dreyfus, was
reported as describing the efforts by the Government to criminalise tactics
like ‘Mediscare’ as ‘the longest dummy spit in Australian political history’.[26]
As noted above, the dissenting report to the Senate inquiry
into the provisions of the Bill outlined that ‘the Australian Greens believe
that this Bill is an unacceptable limitation on freedom of expression and could
potentially have a chilling effect on political communication and satire’.[27]
Position of
major interest groups
The submissions
to the Senate Legal and Constitutional Affairs Committee inquiry into the
provisions of the Bill contain a range of views. A number of submissions
expressed concerns regarding the scope of conduct covered by the new offences,
the potential impact on freedom of expression and the adequacy of the protection
of satirical, academic and artistic activities. Several, such as Electronic
Frontiers Australia, have suggested amendments to the definition of ‘conduct’
to clarify the exclusion of these activities.[28]
In contrast, the Legal Services Commission of South Australia supported the new
offences because of the harm ‘caused by scams where callers claim to represent
Commonwealth Government departments’.[29]
Financial
implications
The Explanatory
Memorandum states the Bill will have ‘no financial impact’.[30]
Statement of Compatibility with Human Rights
As required under Part 3 of the Human Rights
(Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the
Bill’s compatibility with the human rights and freedoms recognised or declared
in the international instruments listed in section 3 of that Act. The
Government considers that the Bill is compatible.[31]
Parliamentary
Joint Committee on Human Rights
The Parliamentary Joint Committee on Human Rights (PJCHR) has
listed the Bill as one which does not raise human rights concerns.[32]
However, the provisions of the Bill were originally part of
the Electoral and Other Legislation Amendment Bill 2017 (Electoral Bill). In
relation to this part of the Electoral Bill (prior to its amendment to remove
these provisions) the PJCHR highlighted that proposed subsection 150.1(4) of
the Criminal Code ‘provides that if the commonwealth body is fictitious,
these offence provisions do not apply unless a person would reasonably believe
that the commonwealth body exists’. The PJCHR considered that this ‘appear[ed]
to provide an exception to the relevant offence’. The PJCHR observed that
current subsection 13.3(3) of the Criminal Code provides that ‘a
defendant who wishes to rely on any exception, exemption, excuse, qualification
or justification bears an evidential burden in relation to that matter’. It noted:
Article 14(2) of the [International Covenant on Civil and
Political Rights] protects the right to be presumed innocent until proven
guilty according to law. Generally, consistency with the presumption of
innocence requires the prosecution to prove each element of a criminal offence
beyond reasonable doubt. Provisions that reverse the burden of proof and
require a defendant to disprove, or raise evidence to disprove, one or more
elements of an offence, engage and limit this right.[33]
The Minister’s response to the PJCHR clarified:
The Government considers that proposed subsection 150.1(4)
does not create an offence-specific defence. Rather, the condition of 'unless a
person would reasonably believe that the Commonwealth body exists' forms an
element of the offence and the burden of proof for proving that element will
sit with the prosecution. That is, there is no reversal of the onus of proof
with respect to this subsection.[34]
The PJCHR noted that ‘based on the information provided by
the minister, the measure appears to be compatible with the presumption of
innocence’. It recommended that the explanatory materials for the Electoral
Bill be amended to include this information.[35]
A statement to this effect has been included in the Explanatory
Memorandum for the Bill.[36]
Key issues
and provisions
Item 2 inserts new ‘Division 150 – False
representations in relation to a Commonwealth body’ at the end of Part 7.8
of the Criminal Code. This contains two subdivisions.
Subdivision A - Offences contains the offences of
false representations in relation to a Commonwealth body in proposed section
150.1. This includes a primary offence (proposed subsection 150.1(1))
and an aggravated offence (proposed subsection 150.1(2)).
Subdivision B - Injunctions provides that section
150.1 is enforceable under Part 7 of the Regulatory Power Act
(subsection 150.5(1)).
Scope of
the offences
As noted above, the Bill creates both a primary offence and
an aggravated offence. The primary offence in proposed subsection 150.1(1)
provides that a person commits an offence if they engage in conduct which
results in, or is reasonably capable of resulting in, a representation that the
person is a Commonwealth body or acting on behalf of, or with the authority of,
a Commonwealth body. The maximum penalty is two years imprisonment.
Under the Criminal Code offences generally consist of
physical elements (such as undertaking specified conduct) and fault elements
(such as intention, knowledge, recklessness or negligence).[37]
The offence at proposed subsection 150.1(1) does not specify fault elements. Section
5.6 of the Criminal Code sets out the fault elements that apply in such
situations. In this case, the primary offence will occur where:
- a
person intentionally[38]
engages in conduct (for example, sending an email or an SMS)
- the
person is reckless[39]
as to whether their conduct will result in, or is reasonably capable of
resulting in, a relevant false representation
- the
person is not a Commonwealth body and is not acting on behalf of or with the authority
of, the Commonwealth body, and the person is reckless in relation to
this circumstance.[40]
Section 5.4 of the Criminal Code provides that a
person is reckless with respect to a result or a circumstance if:
- he
or she is aware of a substantial risk that the result will occur or the
circumstance exists or will exist and
- having
regard to the circumstances known to him or her, it is unjustifiable to take
the risk.[41]
In relation to this issue, the Explanatory
Memorandum states:
[A] person must be reckless as to whether their conduct will
result in, or is reasonably capable of resulting in, a false
representation...This threshold captures conduct where a person does not
necessarily intend to create the relevant representation, or does not
necessarily believe the circumstance to be false, but where they are aware that
there is a substantial risk that such a representation will occur, or that the
circumstance is false, and it is unjustifiable for them to take that risk. This
threshold is necessary to ensure the offence covers false representations that,
whilst not intentional, are equally capable of undermining public confidence in
the integrity and authority of the Australian Government and are made in
circumstances where the accused is aware of a substantial risk of
misrepresentation.[42]
The aggravated offence in proposed subsection 150.1(2)
contains the same elements as the primary offence, but also requires that the
person engages in the conduct with the intention of:
(i)
obtaining a gain; or
(ii)
causing a loss; or
(iii)
influencing the exercise of a public duty or function.[43]
The maximum penalty is five years imprisonment.
A ‘Commonwealth body’ is broadly defined in proposed
subsection 150.1(7) as a Commonwealth entity, Commonwealth company[44]
or a service, benefit, program or facility for some or all members of the
public that is provided by or on behalf of the Commonwealth. The scope of the proposed
offences is further broadened through proposed subsection 150.1(3) which
provides that, for the purposes of the section, it is immaterial whether the
Commonwealth body exists or is fictitious. However, proposed subsection
150.1(4) provides the offence provisions do not apply ‘unless a person
would reasonably believe that the Commonwealth body exists’.
The Explanatory
Memorandum provides examples of ‘relevant conduct’ for the purposes of the
offences. These include:
- writing
of a letter on the letterhead (or purported letterhead) of a Commonwealth body
- sending
an electronic communication (including an email or text message) imputed to be
from or on behalf of a Commonwealth body
- taking
out an advertisement in the name of a Commonwealth body, or
- issuing
of a publication in the name of a Commonwealth body.[45]
Proposed subsection 150.1(6) provides that extended
geographical jurisdiction (Category C) applies to the offences in the new
section.[46]
Submissions to the Senate Committee inquiry into the Bill
criticised the scope of the proposed offences. In his submission, Professor
Jeremy Gans from the Melbourne Law School considered that the two proposed
offences are ‘significantly broader’ than the existing offences of
impersonating a Commonwealth officer in a number of aspects. He stated:
These extensions are especially significant in combination.
Rather than only criminalising people who deliberately impersonate a
Commonwealth body, proposed s150.1 criminalises any person who is simply aware
of a substantial risk that someone else would or could reasonably have the
impression that the person is acting on behalf of a real or fictitious
Commonwealth body, Commonwealth-controlled corporation or Commonwealth provided
service, benefit, program or facility ... The fundamental problem with s150.1 is
that it criminalises reasonable misunderstandings, rather than deception, in a
context where reasonable misunderstandings (about the role and reach of Australia’s
federal government) are absolutely commonplace (and are widely recognised as
such by all informed people.) Criminalising individuals who must operate within
that context, regardless of their intentions or honesty, is wholly
inappropriate.[47]
Similarly, Australian Lawyers for Human Rights argued that
the Bill exceeds its stated aims:
The new offence would allow imprisonment for up to 2 years
even where there is no intention to deceive and no mens rea[48] involved other than recklessness as to whether or not others may be misled.
The offence would also apply irrespective of whether or not harm has actually
been caused. It applies both in relation to actual Commonwealth entities and
fictitious Commonwealth entities. The proposed section 150.1 permits imprisonment
of persons who do not at any stage intend to persuade others that they are
acting on behalf of a Commonwealth body – and who do not necessarily mislead
anybody, particularly where the body is fictitious (as occurs in the case of
political satire)—but who might be argued to be reckless in that they were
aware of the risk that someone else could form that impression.[49]
Freedom of
expression
In the Bill’s Second Reading Speech, Michael Keenan, the Minister
for Justice, stated that ‘the Bill contains safeguards to ensure that neither
of these offences unduly limits the freedom of expression’.[50]
Despite this assurance, concerns were raised in the submissions to the Senate
Committee inquiry regarding the potential impact of the Bill on freedom of
political communication and conduct undertaken for satirical, academic and
artistic purposes.
Freedom of
political communication
Proposed subsection 150.1(5) provides that without
limiting existing section 15A of the Acts Interpretation
Act 1901 (Cth), the section ‘does not apply to the extent (if any) that
it would infringe any constitutional doctrine of implied freedom of political
communication’.[51]
A freedom of communication in relation to public and political discussion has
been found by Australian courts to be implied in the system of representative
and responsible government established by the Commonwealth Constitution.
The implied freedom operates as a constraint to legislative and executive
power, rather than as an individual right. Laws which burden this implied freedom
of political communication may be invalid if they are found not to be
compatible with the maintenance of the constitutionally prescribed system of
government.[52]
A number of submitters to the Senate inquiry highlighted the
potential burden of the new offences on political communication in Australia.
For example, Electronic Frontiers Australia stated:
Satire particularly is an essential element of public
discourse and can be a powerful tool for highlighting issues and in holding
governments to account. Any attempt by government to suppress satirical
expression is by definition an attack of freedom of expression, and may breach
the implied right to political speech, one of the few constitutional civil
liberties protections available to Australians. [53]
It is unclear to what extent the implied freedom of
political communication will prevent conduct from being treated as an offence
under the provisions of the Bill. The High Court’s interpretation of the
implied freedom of political communication has developed over time and there is
a lack of clarity concerning how it may be applied to offences in the Criminal
Code in the future.[54]
Satire,
academic and artistic purposes
As noted above, proposed subsection 150.1(7) provides
that within the section ‘conduct does not include conduct engaged
in solely for genuine satirical, academic or artistic purposes’.
In his submission, Professor Gans describes this subsection
as ‘lazy drafting’ which is ‘confusing and (perhaps) ambiguous as to which
party will bear the evidential burden on this issue’.[55]
The inclusion of ‘solely’ appears to limit the conduct that would be exempt
from the proposed new offences. Felicity Ruby’s submission to the Senate
inquiry made the point that ‘satire, like that of the Chaser and so many other
examples of Australian culture, is not “solely” for satire but also to stimulate
debate and discussion’.[56]
This point was also emphasised in the submission from
Giordano Nanni who produces a video series called Honest Government
Adverts which satirically impersonate government communications (Figure
2). He questioned:
Who decides what counts as "genuine" satire? There
is a dearth of case law on what "satire" even means in Australia and
it's hard enough to advise on the satire fair dealing exception for copyright
law, let alone when there is 2-5 years' imprisonment at stake.[57]
Mr Nanni recommended that, to ensure the Bill does not
unduly infringe on freedom of speech, the exemption in subsection 150.1(7)
should not be qualified by adjectives. He proposed it read ‘This section does
not apply to conduct engaged in for satirical, academic or artistic purposes’.[58]
Figure 2: screenshot from Centrelink Fail - Honest Government Advert video (The Juice
Media)
Source: The Juice Media, ‘Centrelink
Fail – Honest Government Advert’, online video, Facebook, 9 January 2017.
Justification for new offences
A fundamental issue in relation to the Bill is whether the proposed
criminal offences are the most appropriate regulatory approach. The Explanatory
Memorandum to the Bill suggests that there is currently a gap in the criminal
law and the new offences will ‘put the criminalisation of such conduct beyond
doubt’. It states:
It is essential that the public can trust in the legitimacy
and accuracy of statements made by Commonwealth bodies. The amendments are
critical to ensure the public has confidence in the legitimacy of
communications emanating from Commonwealth bodies, thereby safeguarding the
proper functioning of Government.[59]
However, beyond this point of principle, there is a lack of
clarity concerning the immediate need for the new offences or why other
regulatory approaches could not have been pursued. The Attorney-General’s
Department’s A
Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement
Powers recommends those proposing new criminal
offences consider a range of legislative options for imposing liability for
contravening a statutory requirement.[60] This issue was raised by Australian Lawyers for Human
Rights which submitted:
the Minister should provide some clear examples of why such a
Bill is necessary and what particular mischief it aims to confront because
neither the Explanatory Memorandum nor the Second Reading Speech provide any
such important information for such profound impositions on the freedom of speech.[61]
The Australian Government has shown that through its
copyright ownership over logos and branding (such as the Medicare logo) that it
can potentially take legal action to prevent inappropriate use, reproduction
and distribution.[62]
Notably, the Human
Services (Medicare) Act 1973 (Cth) already prohibits commercial
uses of the name ‘medicare’ or ‘Medicare Australia’ without appropriate
authorisation.[63]
This offence is punishable by a fine not exceeding 20 penalty units ($4,200),
or 40 penalty units ($8,400) in the case of a body corporate.[64]
Concerns regarding persons and organisations impersonating a
Commonwealth body have arisen in the context of recent election campaigns. The Commonwealth
Electoral Act 1918 (Cth) includes a number of offences in relation to
the conduct of persons during elections. In particular, the Commonwealth
Electoral Act provides an offence for printing, publishing or distributing
‘any matter or thing that is likely to mislead or deceive an elector in
relation to the casting of a vote’. A person convicted may face imprisonment
for six months or a fine not exceeding 10 penalty units ($2,100), or both. A
body corporate could face a fine not exceeding 50 penalty units ($10,500).[65]
Within the Commonwealth Electoral Act larger penalties (up to two years
imprisonment) are reserved for offences such as bribery.[66]
While it is not articulated in the Explanatory Memorandum, impersonating
a Commonwealth body is also a component of some instances of criminal fraud or
‘scams’. As noted above, the Legal Services Commission of South Australia
supported the Bill because of its experiences with ‘the harm caused by scams
where callers claim to represent Commonwealth Government departments’.[67]
The problem of scams, which often rely on persons being
deceived by communications which appear to be from a trusted source (such as a
Commonwealth body), has led the Australian Competition and Consumer Commission
(ACCC) to establish a dedicated website ScamWatch
to increase consumer awareness and track reports of scams. In 2016, the ACCC
noted that there were ‘a variety of threat-based scams which impersonated
government agencies’ with the most commonly impersonated agencies including the
Department of Immigration and Border Protection, Australian Taxation Office
(ATO), DHS, Centrelink and the AFP.[68]
In particular, ‘ATO scams’ accounted for the majority of threats based scams
reported to the ACCC in 2016 with over 20,000 reported and nearly $1.5 million
reported as lost by victims.[69]
Injunctions
Subdivision B of proposed Division 150 of the Criminal
Code contains proposed section 150.5, which provides that the
offence created in section 150.1 is enforceable under Part 7 of the Regulatory
Powers Act. This creates a legal framework for the use of injunctions to
enforce provisions.
The injunctions provision in the Bill appears to be the
first time an injunctions power in relation to an offence has been included in
the Criminal Code. This is reflected in item 3 of Schedule 1
which amends the Dictionary in the Criminal Code to insert a definition
of the Regulatory Powers Act.
Under proposed subsection 150.5(2) ‘any person
whose interests have been, or would be, affected by conduct’ in either of the
offences is an ‘authorised person’. An authorised person will be able to apply
for an injunction from any of the courts listed in proposed subsection
150.5(3).[70]
It is not apparent in the Explanatory Memorandum why the
Bill would provide that any affected person could apply for an injunction
rather than limiting it to the Commonwealth entities being misrepresented. The
broad definition of an ‘authorised person’ for the purposes of seeking
injunctions could lead to unintended consequences. References to, and use of,
the names and logos of Commonwealth Government entities are a common component
of Australian public discourse (see for example – Figure 3 below). The
injunctions provision may create perverse incentives for ‘affected’ persons to
seek injunctions with secondary purposes.
Figure 3:
extract of The NBN tagline, translated (The Gruen Team)

Source: The Gruen Team (@GruenHQ), ‘The NBN’s tagline,
translated’, tweet, 13 September 2017, https://twitter.com/GruenHQ/status/907917947233955840.
Concluding
comments
The Bill will introduce two offences for persons who engage
in conduct which results, or is reasonably capable of resulting, in a
representation that the person is, or is acting on behalf of, a Commonwealth
body. The scope of the proposed offences appears broader than that of the
existing offences in the Criminal Code dealing with impersonating, or
falsely representing to be, a Commonwealth officer. In particular, the fault
element applying to most elements of the offences (recklessness) increases the scope
of conduct which may potentially be captured by the proposed offences.
Concerns have been expressed that the proposed offences
could negatively impact on freedom of expression. In particular, the definition
of ‘conduct’ may insufficiently safeguard conduct undertaken for satirical, academic
and artistic purposes. The proposed injunctions power may also be controversial
through permitting ‘any’ affected person to apply for an injunction to prohibit
or prevent conduct amounting to false representation of a Commonwealth body.
Members, Senators and Parliamentary staff can obtain
further information from the Parliamentary Library on (02) 6277 2500.
[1]. D
Muller, Electoral
and Other Legislation Amendment Bill 2017, Bills digest, 101, 2016–17,
Parliamentary Library, 2017, p. 3–5; P Coorey, ‘"Mediscare"
delivers poll boost for Labor’, The Australian Financial Review, 24 June 2016, p. 1.
[2]. Ibid.
[3]. ‘Mediscare
text deceit denied’, Herald Sun, 5 July 2016, p. 7.
[4]. M
Turnbull, ‘Malcolm
Turnbull, Bill Shorten election night speeches in full’, Herald Sun,
3 July 2016.
[5]. M
Dunn, ‘Fake
texts police probe’, Herald Sun, 4 July 2016, p. 10. M Doran and U
Patel, ‘"Mediscare"
text message investigation dropped by Australian Federal Police’, ABC
News (online edition), 3 August 2016.
[6]. Section
148.1 of the Criminal Code.
[7]. H
Belot and K Lawson, ‘Fake
medicare cards and rates debate dominate final days of ACT election campaign’,
The Canberra Times (online edition), 13 October 2016.
[8]. Ibid.
[9]. Joint
Standing Committee on Electoral Matters, The 2016 Federal Election: interim
report on authorisation of voter communication,
9 December 2016, p. 5.
[10]. Ibid.,
p. 16.
[11]. Ibid.,
p. 17.
[12]. Ibid.,
p. 17.
[13]. The
JSCEM’s second
interim report (March 2017) and third
interim report (June 2017) for this inquiry have not addressed this issue
further.
[14]. S
Ciobo, ‘Second
reading speech: Electoral and Other Legislation Amendment Bill 2017’, House
of Representatives, Debates, 6 September 2017, p. 9415.
[15]. Parliament
of Australia, ‘Electoral
and Other Legislation Amendment Bill 2017 homepage’, Australian Parliament
website.
[16]. M
Farr, ‘Activist
grandfather feels legal wrath for doing what politicians have been doing for
months’, news.com.au, 23 November 2016.
[17]. H
Aston, ‘Turnbull
government threatens to sue grandfather over “save Medicare” website’, The
Sydney Morning Herald, 23 November 2016.
[18]. T
Burke, ‘Questions
without notice – Intellectual Property’, House of Representatives, Debates,
23 November 2016, p. 4153.
[19]. P
Karp, ‘Government
backs down on threat to sue campaigner for use of Medicare logo’, The
Guardian, 15 December 2016.
[20]. ‘Lawyers
despatched over Medicare logo row’, The Age, 30 November 2016, p. 5.
[21]. Senate
Legal and Constitutional Affairs Legislation Committee, Criminal
Code Amendment (Impersonating a Commonwealth Body) Bill 2017 [Provisions],
The Senate, Canberra, November 2017, p. 8.
[22]. Ibid.
[23]. Australian
Greens, Dissenting report, Senate Legal and Constitutional Affairs Legislation
Committee, Inquiry
into the provisions of the Criminal Code Amendment (Impersonating a
Commonwealth Body) Bill 2017 [Provisions], The Senate, Canberra,
November 2017, p. 10.
[24]. Ibid.
[25]. Senate
Standing Committee for the Scrutiny of Bills, Scrutiny
digest, 12, 2017, The Senate, Canberra, 18 October 2017, p. 17.
[26]. ‘Medicare
campaign ban a PM “dummy spit”’, SBS News, 16 February 2017.
[27]. Australian
Greens, Dissenting report, Senate Legal and Constitutional Affairs Legislation
Committee, Inquiry
into the provisions of the Criminal Code Amendment (Impersonating a
Commonwealth Body) Bill 2017 [Provisions], op. cit., p. 9.
[28]. Electronic
Frontiers Australia, Submission,
Senate Legal and Constitutional Affairs Committee, Inquiry into the Criminal
Code Amendment (Impersonating a Commonwealth Body) Bill 2017 [Provisions], 17
October 2017, p. 2.
[29]. Legal
Services Commission of South Australia, Submission,
Senate Legal and Constitutional Affairs Committee, Inquiry into the Criminal
Code Amendment (Impersonating a Commonwealth Body) Bill 2017 [Provisions],
12 October 2017, p. 1.
[30]. Explanatory
Memorandum, Criminal Code Amendment (Impersonating a Commonwealth Body)
Bill 2017, p. 2.
[31]. The
Statement of Compatibility with Human Rights can be found at p. 3 of the Explanatory
Memorandum to the Bill.
[32]. Parliamentary
Joint Committee on Human Rights, Human
rights scrutiny report, 11, 17 October 2017, p. 60.
[33]. Parliamentary
Joint Committee on Human Rights, Human
rights scrutiny report, 8, 15 August 2017, p. 101.
[34]. Ibid.,
pp. 102–3.
[35]. Ibid.,
p. 103.
[36]. Explanatory
Memorandum, op. cit., p. 9.
[37]. Section
3.1 of the Criminal Code.
[38]. Subsection
5.6(1) of the Criminal Code provides that, if an offence does not
specify a fault element, intention is the fault element for a physical element
of an offence that is conduct. Subsection 5.2(1) of the Criminal Code provides
that a person has intention with respect to conduct if he or she means to
engage in that conduct.
[39]. Subsection
5.6(2) of the Criminal Code provides that, if an offence does not
specify a fault element, recklessness is the fault element for a physical
element of an offence that consists of a circumstance or result.
[40]. The
fault element of recklessness applies to this physical element by reason of
subsection 5.6(2) of the Criminal Code (summarised above).
[41]. Under
subsection 5.4(4) if recklessness is a fault element for a physical element of
an offence, proof of intention, knowledge or recklessness will satisfy that
fault element.
[42]. Explanatory
Memorandum, op. cit., p. 7.
[43]. ‘Obtaining’,
‘gain’ and ‘loss’ are defined at section 130.1 of the Criminal Code.
‘Obtaining’ includes obtaining for another person and inducing a third person
to do something that results in another person obtaining. The Explanatory
Memorandum to the Bill provides that ‘the phrase “public duty or function”
should be interpreted according to its ordinary and natural meaning’ and ‘is
not intended to apply to so-called “civic duties” of private citizens, such as
voting’: Explanatory
Memorandum, op. cit., p. 8.
[44]. A
Commonwealth company as within the meaning of the Public Governance
and Accountability Act 2013 (Cth)—see subsection 89(1).
[45]. Explanatory
Memorandum, op. cit., p. 7.
[46]. Extended
geographic jurisdiction-Category C is set out in section 15.3 of the Criminal
Code. As the Explanatory Memorandum notes the offences will apply whether
or not the conduct or the result of the conduct constituting the alleged
offence occurs in Australia. A defence may be available if there is no
equivalent offence under the law of a foreign country where the conduct occurs.
The defence does not apply if the person charged is an Australian national.
[47]. J
Gans, Submission
to Senate Legal and Constitutional Affairs Committee, Inquiry into the
Criminal Code Amendment (Impersonating a Commonwealth Body) Bill 2017
[Provisions], 28 September 2017, pp. 2–3.
[48]. A
Latin legal term to describe the mental or fault element required for most
offences in order to establish criminal responsibility, Australian Law
Dictionary, Melbourne, Oxford University Press, 2011.
[49]. Australian
Lawyers for Human Rights, Submission
to Senate Legal and Constitutional Affairs Committee, Inquiry into the
Criminal Code Amendment (Impersonating a Commonwealth Body) Bill 2017
[Provisions], 12 October 2017, p. 2.
[50]. M
Keenan, ‘Second
Reading Speech: Criminal Code Amendment (Impersonating a Commonwealth Body)
Bill 2017’, House of Representatives, Debates, 13 September 2017, p.
10178.
[51]. Section
15A of the Acts Interpretation Act provides ‘[e]very Act shall be read
and construed subject to the Constitution, and so as not to exceed the legislative
power of the Commonwealth, to the intent that where any enactment thereof
would, but for this section, have been construed as being in excess of that
power, it shall nevertheless be a valid enactment to the extent to which it is
not in excess of that power’. The constitutional doctrine of implied freedom of
political communication is discussed further below.
[52]. Halsbury’s
Laws of Australia [online], ‘Freedom of Political Communication’,
Constitutional Law, Vol 90(VII)(7), [90-7200 - 90-7250]. A recent example was Brown
v Tasmania [2017]
HCA 43 where the High Court of Australia ruled that certain provisions of
the Workplaces (Protection from Protesters) Act 2014 (Tas) were invalid
as they impermissibly burdened the implied freedom of political communication.
[53]. Electronic
Frontiers Australia, Submission,
op cit., p. 2.
[54]. For
example, in Monis v R (2013) 249 CLR 92; [2013]
HCA 4 the High Court divided evenly on the issue of whether section 471.12
of the Criminal Code (which created an offence to use postal services in
a way reasonable persons would regard as offensive) infringed the implied
freedom of political communication and was therefore invalid.
[55]. Gans,
Submission,
op. cit., p. 5.
[56]. F
Ruby, Submission
to Senate Legal and Constitutional Affairs Committee, Inquiry into the
Criminal Code Amendment (Impersonating a Commonwealth Body) Bill 2017
[Provisions], 13 October 2017, p. 1.
[57]. G
Nanni, Submission
to Senate Legal and Constitutional Affairs Committee, Inquiry into the
Criminal Code Amendment (Impersonating a Commonwealth Body) Bill 2017
[Provisions], 12 October 2017, p. 1.
[58]. Ibid.
[59]. Explanatory
Memorandum, op. cit., p. 2.
[60]. Attorney-General’s
Department, ‘A
guide to framing Commonwealth offences, infringement notices and enforcement powers’,
September 2011, pp. 12–13.
[61]. Australian
Lawyers for Human Rights, Submission,
op. cit., p. 7.
[62]. K
Bowrey and M Handler, ‘Medicare
logo case shows the urgent need to update Australia’s IP laws’, The Conversation,
30 November 2016.
[63]. Human Services
(Medicare) Act 1973, sections 41C and 41CA.
[64]. Section
4AA of the Crimes
Act 1914 provides that a penalty unit is currently equal to
$210.
[65]. Section
329 of the Commonwealth Electoral Act.
[66]. Section
326 of the Commonwealth Electoral Act.
[67]. Legal
Services Commission of South Australia, Submission
to Senate Legal and Constitutional Affairs Committee, Inquiry into the
Criminal Code Amendment (Impersonating a Commonwealth Body) Bill 2017
[Provisions], op. cit., p. 1.
[68]. Australian
Competition and Consumer Commission (ACCC), Targeting
scams: report of the ACCC on scams activity 2016, May 2017, p. 17.
[69]. Ibid.
[70]. Section
119 of the Regulatory Powers Act. The relevant courts are the Federal
Court of Australia, the Federal Circuit Court of Australia, the Supreme Court
of a State or Territory and the District Court (or equivalent) of a State or
Territory.
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