On Monday, the High Court fast tracked a special leave application for an appeal by Malgorzata Poniatowska (transcript here). Malgorzata first made headlines when she won a record breaking sexual harassment payout from Hickinbotham's Real Estate for some seriously derogatory comments made by her employer. Unfortunately for her, the Commonwealth Government must follow Federal Court rulings because she was promptly charged with failing to report her income from her employment to Centrelink. She originally pleaded guilty to 17 charges of obtaining a financial advantage, but she then appealed to the Full Court of the South Australia Supreme Court, who - surprisingly to most - set aside the convictions: Poniatowska v DPP (Cth)  SASCFC 19.
Doyle CJ and Duggan J found that liability for an omission under the Criminal Code requires a legal duty, as is the case at common law. Their Honour's said that no legal duty had been identified by the prosecution and that therefore the complaints could not be sustained.
Obviously, this decision disrupts a great deal of Centrelink prosecutions around Australia, given that "obtaining a financial advantage" is the principal weapon in the Centrelink prosecutions' arsenal. And whilst common lawyers tend to abhor codification of legal rules that departs from well established common law traditions, as Sulan J said in dissent, the intention of the Parliament was clearly directed at capturing offences of this very type. It's a difficult question and, accordingly, at the High Court hearing on Monday, Hayne J fast tracked the case to the November special leave sittings where, I suggest, it will be likely to receive leave. Watch this space.
7 hours ago