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Criminal Code Amendment (Impersonating a Commonwealth Body) Bill 2017



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ISSN 1328-8091

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BILLS DIGEST NO. 69, 2017-18 2 FEBRUARY 2018

Criminal Code Amendment (Impersonating a Commonwealth Body) Bill 2017 Owen Griffiths Law and Bills Digest Section

Contents

Purpose of the Bill ............................................................... 3

Background ......................................................................... 3

Issues during 2016 federal and ACT elections ....................... 3

Figure 1: example of bulk SMS text messages sent on election day ........................................................................... 3

Joint Standing Committee on Electoral Matters ................... 4

Electoral and Other Legislation Amendment Bill 2017 ......... 4

Save Medicare websites ........................................................ 4

Committee consideration .................................................... 5

Senate Standing Committee on Legal and Constitutional Affairs ...................................................................................... 5

Senate Standing Committee for the Scrutiny of Bills .............. 5

Policy position of non-government parties/independents ..... 5

Position of major interest groups ......................................... 5

Financial implications .......................................................... 6

Statement of Compatibility with Human Rights .................... 6

Parliamentary Joint Committee on Human Rights .................. 6

Key issues and provisions..................................................... 7

Scope of the offences .............................................................. 7

Freedom of expression ............................................................ 9

Freedom of political communication .................................... 9

Satire, academic and artistic purposes................................ 10

Figure 2: screenshot from Centrelink Fail - Honest Government Advert video (The Juice Media) ...................... 10

Justification for new offences................................................ 10

Injunctions ............................................................................. 11

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.

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Figure 3: extract of The NBN tagline, translated (The Gruen Team) ........................................................................ 12

Concluding comments ....................................................... 12

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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

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.

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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

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.

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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

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.

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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

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.

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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 intentionally38 engages in conduct (for example, sending an email or an SMS)

• the person is reckless39 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:

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.

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(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 company44 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:

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.

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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

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.

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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

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.

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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.

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.

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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.

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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