The Explanatory Memo states
The Bill strengthens public confidence in all communications emanating from Commonwealth bodies and will put the criminalisation of such conduct beyond doubt, ensuring that those who create false representations in this way are captured by the law. It will also provide aggrieved parties with an opportunity to prevent such conduct through a court-issued injunction.
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.
The Bill amends the Criminal Code Act 1995 (the Criminal Code). In summary, the Bill:
- criminalises conduct amounting to a person falsely representing themselves to be, or to be acting on behalf of, or with the authority of, a Commonwealth entity or service, and
- links to the Regulatory Powers (Standard Provisions) Act 2014 (the Regulatory Powers Act) to provide a new injunction power for authorised persons to apply to a relevant Court for an injunction to restrain the same conduct.
The Bill introduces a primary offence where the person is reckless as to whether their conduct will result in, or is reasonably capable of resulting in, a false representation. These amendments also create a new aggravated offence where a person engages in such conduct with the intent to obtain a gain, cause a loss, or influence the exercise of a public duty. 7. The Bill also introduces a new injunction power to allow authorised persons to seek injunctive relief to prevent conduct amounting to a false representation of a Commonwealth body. ...
The new offences and injunction power in proposed Division 150 of the Criminal Code engage the right to freedom of expression under Article 19(2) of the ICCPR.
The right to freedom of expression, as contained in Article 19(2), includes the right to receive and impart information and ideas of all kinds in writing or in print and using any media. Article 19(3) explicitly states that this right carries with it special duties and responsibilities. Accordingly, it may be subject to certain restrictions provided that the restrictions are provided by law and are for the protection of (among other things) public order or national security.
The provisions in the Bill engage the right to freedom of expression as they prohibit false representations that a person is a Commonwealth body, or acts on behalf of, or with the authority of, a Commonwealth body. The Bill will prevent any person from imparting information and ideas that amount to such a false representation.
The provisions may amount to restrictions on freedom of expression in limited circumstances. The restrictions are objective, legitimate and proportionate because they:
- are provided for by law
- serve a genuine public interest to promote public confidence in all communications emanating from Commonwealth bodies, and
- support the right to protection of public order or national security.
These restrictions on a person's freedom of expression are justified. The offences and injunction power are provided for by law in new Division 150 of the Criminal Code, and impose penalties which mirror offences that criminalise the impersonation of Commonwealth public officials.
The offences and injunction power are necessary for protecting public order. Public order encompasses the rules which ensure the peaceful and effective functioning of society, or the set of fundamental principles on which society is founded. Representations falsely purported to be from, or on behalf of, a Commonwealth body could undermine public confidence in the integrity and authority of the Australian Government. Commonwealth departments, companies, services and programmes cannot function effectively unless recipients trust the legitimacy and lawfulness of representations emanating from them.
The offences and injunction power are a reasonable and proportionate way of achieving the aim of protecting public order. In order to commit an offence under section 150.1, a person must be reckless as to whether their conduct will result in, or is reasonably capable of resulting in, the relevant representation, and whether they, in fact, are a Commonwealth body, or act on behalf of, or with the authority of, a Commonwealth body. Negligent or accidental creation of a false representation will not be sufficient to establish the fault elements of these offences.
The offences and injunction power limit only a person's ability to make representations that falsely represent that person to be, or be acting on behalf of, or with the authority of, a Commonwealth body. The provisions do not affect genuine representations made on behalf of a Commonwealth body, or that are made with the authority of the body. They also do not impact comment or criticism about a Commonwealth body, provided this is done without falsely representing that the comment or criticism is made by or on behalf of a Commonwealth body. Further, the provisions will not impact representations made solely for genuine satirical, academic or artistic purposes. ...
. Division 150 will contain new offences to criminalise false representations in relation to a Commonwealth body. It will also contain a new injunction power to prevent conduct amounting to a false representation of a Commonwealth body. ...
New subsection 150.1(1) creates an offence where a person engages in conduct that results in, or is reasonably capable of resulting in, a false representation that the person is a Commonwealth body, or is acting on behalf of, or with the authority of, a Commonwealth body. The maximum penalty for this offence is two years' imprisonment, which mirrors the penalty for the current basic offences of impersonating a Commonwealth public official in subsections 148.1(1) and (2) of the Criminal Code.
Pursuant to this offence, 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 of recklessness applies to both the result (i.e. a representation that the person is a Commonwealth body, or is acting on behalf of, or with the authority of, a Commonwealth body) and the circumstance (i.e. the person in fact not being the Commonwealth body, or acting on behalf of, or with the authority of, the Commonwealth body).
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. These fault elements for result and circumstance mirror the elements for the current offences of impersonating a Commonwealth public official in section 148.1 of the Criminal Code.
This offence applies to a 'person', which includes both natural and legal persons. This offence relies on the definition of a 'Commonwealth body', which is set out in new subsection 150.1(7).
For the purposes of this offence, relevant conduct may include, but is not limited to:
- 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.
New subsection 150.1(2) creates an aggravated offence where a person falsely represents that the person is a Commonwealth body, or acts on behalf of, or with the authority of, a Commonwealth body, with the intention of obtaining a gain, causing a loss, or influencing the exercise of a public duty or function. The maximum penalty for this offence is five years' imprisonment, which mirrors the penalty for the current aggravated offences of impersonating a Commonwealth public official in subsections 148.1(3) and 148.2(3) of the Criminal Code.
As with the primary offence, a person must be reckless as to whether their conduct will result in, or is reasonably capable of resulting in, a false representation. Again, this threshold of recklessness applies to both the 'result' (i.e., a representation that the person is a Commonwealth body, or is acting on behalf of, or with the authority of, a Commonwealth body) and the 'circumstance' (i.e., the person in fact not being the Commonwealth body, or acting on behalf of, or with the authority of, the Commonwealth body). The rationale for applying recklessness to these elements of the aggravated offence is the same as is stated in respect of the primary offence.
The elements of the aggravated offence mirror those of the current aggravated offences of impersonating a Commonwealth public official in subsections 148.1(3) and 148.2(3).
The terms 'obtaining', 'gain', and 'loss' are defined in section 130.1 of the Criminal Code.
The phrase 'influencing the exercise of a public duty or function' in sub-paragraph 150.1(2)(c)(iii) is not intended to incorporate the definition of 'duty' in section 130.1. This is because the phrase 'influencing the exercise of a public duty or function' in sub-paragraph 150.1(2)(c)(iii) is not limited on its face to being 'in relation to a person who is a Commonwealth public official' or 'in relation to a person who is a public official'. Rather, the phrase 'public duty or function' should be interpreted according to its ordinary and natural meaning.
Consistent with its ordinary and natural meaning, the phrase 'public duty or function' is not intended to apply to so-called 'civic duties' of private citizens, such as voting.
This offence applies to a 'person', which includes both natural and legal persons. This offence relies on the definition of a 'Commonwealth body' in new subsection 150.1(7).
For the purposes of these offences, relevant conduct may include, but is not limited to:
- 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.
New subsection 150.1(3) provides that, for the purposes of new section 150.1, it is immaterial whether the Commonwealth body exists or is fictitious. Provided a person makes a false representation in relation to a Commonwealth body, it is not necessary that the specific body they purport to represent be actually in existence.
For example, conduct amounting to a person falsely representing themselves to be, or to be acting on behalf of, or with the authority of, the fictional Commonwealth Department of Alcohol and Fisheries or Ministry of Internal Security, could be criminalised under the new offences in section 150.1.
New subsection 150.1(4) provides that if the Commonwealth body is fictitious, the offences under subsections (1) and (2) do not apply unless a person would reasonably believe that the Commonwealth body exists.
This provision is intended to ensure that the offences only apply in circumstances where the Commonwealth body referred to, although fictitious, is reasonably capable of being believed to be a real Commonwealth body. This provision is intended to exclude application of the offences where the fictional body referred to is clearly not capable of being a real Commonwealth body.
For example, the offences would not apply if a person falsely represented themselves to be, or to be acting on behalf of, or with the authority of, the fictional Ministry of Silly Walks, the Australian Government Hot Dog Authority or the Commonwealth Fund for Jane's New Car, on the basis that a reasonable person would not believe such Commonwealth bodies exist.
However, the offences will apply to conduct amounting to falsely representing oneself to be, or to be acting on behalf of, or with the authority of, a fictitious Commonwealth body where a person would reasonably believe such a body exists, for example the Commonwealth Department of Alcohol and Fisheries or the Ministry of Internal Security.
New 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 subsection 150.1(4).
New subsection 150.1(4) further provides that, if the Commonwealth body is fictitious, the offences do not apply unless the condition is fulfilled. The condition is therefore a condition precedent to the offence being applicable, and forms an element of the offence to be proven by the prosecution. For example, if a person falsely represents they are the Ministry for Hot Dog Appreciation - a fictitious Commonwealth body - no offence is committed unless the prosecution can prove that a member of the public would reasonably believe that the Ministry for Hot Dog Appreciation in fact exists.
New subsection 150.1(5) provides that new section 150.1 does not apply to the extent (if any) that it would infringe any constitutional doctrine of implied freedom of political communication. This section is not intended to limit the operation of section 15A of the Acts Interpretation Act 1901.
New subsection 150.1(6) applies extended geographical jurisdiction (category C) to the offences created by new section 150.1. This means that offences relating to the impersonation of a Commonwealth body will apply whether or not the conduct or the result of the conduct constituting the alleged offence occurs in Australia. However, a defence may be available if there is no equivalent offence under the law of a foreign country where the conduct occurs. This defence does not apply if the person charged is of Australian nationality.
This extension of geographical jurisdiction is consistent with the approach taken under existing offences of impersonating a Commonwealth public official in section 148.1 of the Criminal Code.
New subsection 150.1(7) inserts a new definition of 'Commonwealth body' that applies to the offences under new section 150.1. This item also introduces a new definition of 'conduct' that applies to the offences under section 150.1.
The new subsection provides that a 'Commonwealth body' means a Commonwealth entity; or a Commonwealth company within the meaning of the Public Governance, Performance and Accountability Act 2013; or a service, benefit, program or facility provided by or on behalf of the Commonwealth.
According to the Dictionary to the Criminal Code, a Commonwealth entity means the Commonwealth and a Commonwealth authority, which includes a body established by or under a law of the Commonwealth (with certain exceptions specified in the definition). 'Commonwealth' means all parts of the Commonwealth, including departments of state and other non-corporate Commonwealth entities.
A Commonwealth company within the meaning of the Public Governance, Performance and Accountability Act 2013 means a Corporations Act 2001 company that the Commonwealth controls. It does not include subsidiary companies. Some examples of a Commonwealth company are NBN Co Limited and Aboriginal Hostels Limited.
Paragraph 150.1(7)(c) is intended to be interpreted broadly as any service, benefit, program or facility for some or all members of the public that is provided by the Commonwealth, whether under a law of the Commonwealth or otherwise. The terms 'service', 'benefit', 'program', or 'facility' are intended to have their ordinary and natural meaning. Some examples of a Commonwealth service are Centrelink and Medicare.
This item also stipulates that, for the purposes of new section 150.1, the term 'conduct' does not include conduct engaged in solely for genuine satirical, academic or artistic purposes.
