Criminal Code Amendment (Impersonating a Commonwealth Body) Bill 2017: The Utopia Exemption

Thursday 14 September 2017 @ 12.10 p.m. | Crime | Judiciary, Legal Profession & Procedure | Legal Research

Yesterday (13 September 2017) the Minister for Justice, Mr Keenan, introduced the Criminal Code Amendment (Impersonating a Commonwealth Body) Bill 2017 (Cth) (the Bill) into the House of Representatives. In broad terms the Bill proposes to introduce new offences and a new injunctions power to prohibit and prevent ". . . conduct amounting to false representation of a Commonwealth body".

More specifically the offences and the injunctions power to be created by the Bill will prohibit a person from falsely representing themselves to be, or to be acting on behalf of, or with the authority of, a Commonwealth body. 

Intent of the Proposed Legislation

The government argues that the intent behind the legislation proposed by the Bill is to strengthen public confidence in all communications emanating from Commonwealth bodies and that the Bill will put ". . . the criminalisation of such conduct beyond doubt, ensuring that those who create false representations in this way are captured by the law". The Bill will also provide aggrieved parties with a preventative opportunity, with respect to such conduct, in the form of a court-issued injunction.

In its explanitory material the government states that "public trust" is a key motivation:

"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."

Proposed Amendments

The Bill amends the Criminal Code Act 1995 (Cth) by altering the title of Part 7.8 to "Causing harm to or obstructing Commonwealth public officials and impersonating Commonwealth public officials or bodies" and inserting "Division 150 - False representations in relation to a Commonwealth body". The proposed amendments: 

  • criminalise 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
  • link to the Regulatory Powers (Standard Provisions) Act 2014 (Cth)  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 also 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 proposed amendments further 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.

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. 

Effect on Legitimate Impersonation

One reaction expressed by website The Mandarin is concern over the extent to which people who for legitimate artistic, satirical or academic purposes have the need to create a fictitious government agency will be exempted from the legislation and how such matters will be determined:  

"The proposed penalties would apply even if you make up a fictitious agency, although Australians who do this 'solely for genuine satirical, academic or artistic purposes' will be exempt, as in the older legislation that outlawed tricking people into thinking you’re from the government." 

The Bill does note that it cannot override “ . . . any constitutional doctrine of implied freedom of political communication”  - referencing  Australia’s rights to freedom of speech. Where the exemptions will fall is to be seen when the legislation is enacted and applied, and it may be interesting to see, how funny or not some in Government or the Public Service find some forms of satire, for example, the ABC's hit series Utopia? 

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Criminal Code Amendment (Impersonating a Commonwealth Body) Bill 2017 including explanatory materials as reported in the TimeBase LawOne Service.

Do public servants know satire when they see it? Federal government wants stiff new penalties for impersonating agencies (The Mandarin)

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