High Court rules "social security fraud" laws cannot apply retrospectively

In 2011, the Federal Government introduced a criminal offence of failing to inform Centrelink within 14 days about a change in personal circumstances that could affect an entitlement to welfare payments. The law was said to apply retrospectively back to 20 March 2000. This week, the High Court ruled this criminal offence did not apply retrospectively. Accordingly, the applicant, a single mother who had received overpayments between 2007–2009 because her income had changed, could not be prosecuted for “social security fraud” under the 2011 law.

Article 15 of the International Covenant on Civil and Political Rights, to which Australia is a party, prohibits retrospective criminal laws because it offends the principle that a criminal law should be sufficiently clear and precise so that when a person acts they know whether their conduct could lead to criminal prosecution.

The High Court remitted the case back to the Magistrates’ Court in Victoria to determine whether the applicant’s failure to respond to notices from Centrelink in 2007–2009 requesting details of her change of circumstances could amount to “engaging in conduct” to obtain a financial advantage under existing laws in the Commonwealth Criminal Code, even if the 2011 law does not apply retrospectively.

In its media release Victoria Legal Aid, solicitors for the applicant, emphasised that many people mistakenly failed to respond to notices or did not understand what they were required to do because English was not their first language and this should not expose them to criminal liability.