Critics say new crimes of ‘impersonating’ federal agencies are poorly drafted

By Stephen Easton

Wednesday November 22, 2017

The proposed addition to the criminal code is poorly drafted, argues a Melbourne law professor, who finds its wording unnecessarily strange, lazy, confusing and potentially ambiguous. A Senate inquiry ignored him and waved it through.

A suite of new criminal offences related to “impersonating” Commonwealth-funded bodies have been quickly rubber-stamped despite concerns about poor legislative drafting, with neither major party willing to stand up for jokers who poke fun at the federal government.

The proposed law was inspired by what the Turnbull government labelled the “Mediscare” before it referred the opposition to the Australian Federal Police over election campaign messages it said were deliberately made to look like they came from Medicare administrators.

The way it is drafted, however, has satirists worried about where they stand.

Critics — and there were no supporting submissions — pointed out the bill could lead to people facing charges when they never intended to trick anyone, when they caused no demonstrable harm, and even in cases where nobody was actually misled.

Some protection is granted for freedom of political communication and specifically for “conduct engaged in solely for genuine satirical, academic or artistic purposes” but it’s the words “solely” and “genuine” that are causing a lot of the consternation.

Government and opposition senators dismissed the whole issue and ran the quickest inquiry possible, while the Greens Senator Nick McKim argued: “The amendments proposed are unnecessary, have not been sufficiently justified, will unreasonably fetter freedom of political expression and silence many satirists.”

Satirical comedy producers at The Juice Media recently revealed the protectors of our national symbols don’t distinguish obviously comedic impersonations from more nefarious kinds (and perhaps this is what prompted the small company’s video producer Giordano Nanni to make a submission to the inquiry).

The company was asked to stop using “an Australian Government logo, which contains the Commonwealth Coat of Arms” because the public servants involved thought it was not obvious enough that its “Honest Government Adverts” were not really made by the government.

By the time the video producers received the letter from the National Symbols Officer, however, they had already been using their own modified version of the Coat of Arms for quite some time (while the government-funded version of the same gag on SBS show The Feed continued with the real one). Even so, The Juice Media modified its version even further, adding the message “not the real logo” to the fake Coat of Arms (pictured).

Nanni, a PhD-qualified historian when not making funny videos, points out the common law doesn’t provide much guidance on what is genuinely academic, satirical or artistic. When political in nature, one might argue such acts of expression never have a sole purpose; inspiring protest and changing people’s minds are quite often the explicit goals.

Perhaps these philosophical debates are best kept out of criminal trials, but even though it would be easy to remove “solely” and “genuine” from the text, the committee doesn’t think it’s a problem. More detailed calls for fairly simple and sensible amendments from legal experts were also rejected with minimal explanation by the Senate’s Legal and Constitutional Affairs Committee after a month-long inquiry with no public hearing.

Unclear purpose

Pretending to be a public official is already a crime and there are also existing penalties for fraud and the like which criminalise common scams of this nature. The Minister for Justice, Michael Keenan, hasn’t explained exactly who is committing what crimes and getting away with it.

The minister says the problem is that “impersonating a Commonwealth entity, company or service may not be appropriately prosecuted” under the current law. Keenan says there’s a need for clarity around the circumstances in which “a person pretending to be, or acting on behalf of, a Commonwealth body” is committing a crime.

Legal critics suggest the bill would actually create more confusion rather than more clarity, but the committee’s majority report simply accepts and repeats Keenan’s ministerial assertions.

The report adds that the minister’s new offences must be fine, because they “almost mirror the current offences for impersonating a Commonwealth official, including the form in which the proposed exemption has been articulated”.

The only other point in defence of the bill is that it sailed right past other politicians on the Joint Parliamentary Committee on Human Rights and the Senate Scrutiny of Bills Committee, with nary a trouble.

University of Melbourne law professor Jeremy Gans makes a good point in his submission: “The Bill’s modest purpose could have been achieved simply by inserting the words ‘or body’ after ‘official’ throughout existing s.148.1.”

The exemption in the existing law on impersonating an official might be identical but copy-and-paste is not exactly a good drafting principle either. In this case, the new crime would cover a much broader range of conduct, so it makes sense to look at how well it protects normal rights.

Gans explains in his submission how the new law is much broader than the existing one in six important ways.

“First, it does not require that the accused ‘impersonate’ or ‘represent’ anything. Rather, it applies if the accused but merely does anything at all that would or reasonably could ‘result’ in a representation. For example, it would cover an accused whose conduct merely gives another person (or could give another person) a particular impression.

“Second, it does not require a ‘false’ representation, but rather merely that someone is reasonably capable of getting the wrong idea.

“Third, it does not require intentional or knowing falsehood or deception, but rather (by operation of s5.6 of the Code) only that the accused was aware of a substantial (and unjustified) risk that someone else would or reasonably could get the wrong idea. …

And so on. “These extensions are especially significant in combination,” he goes on to explain in a direct and detailed challenge to the committee’s only substantial argument for waving the legislation through, which remains unanswered.

Critics like Gans and Australian Lawyers for Human Rights also argue the exemption for satire, art and academic work should be more substantive to make it absolutely certain where the new law definitely will not apply. The way it is drafted is “weird” and completely unnecessary, in the professor’s view.

ALHR suggested the relevant clause that protects free speech in the Racial Discrimination Act is much easier for courts to interpret, for example.

Odd, indifferent, lazy and bizarre: the effects of poor drafting

Gans is standing up for the accidental, unintentional impersonators as well, arguing they should not be treated the same as those who intentionally deceive:

“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.”

The lines between state and federal agencies, or public and private health practitioners, are often confused. Companies and other organisations, as well as their various brand names and services, are sometimes mistaken for parts of the government as well, especially if they have words like “national” in the name.

Gans says a court could apply the penalties to “an employee of the National Australia Bank who realises that a customer (e.g. a foreign tourist) could reasonably think the bank was owned or run by the Australian government” or a state public servant who is aware that someone might think their agency is federal.

The idea that these people would even be prosecuted might sound absurd, but well-drafted legislation does not even give rise to such suggestions. As Gans goes on, he describes this bill as “oddly and indifferently drafted” and so “convoluted” in parts that its “bizarrely complex” results would confuse a jury, while the exemption is “lazy drafting” that asks people to accept a “silly, confusing” concept that could also be legally ambiguous.

The committee didn’t address any of these concerns specifically in its extremely brief concluding remarks.

The proposed offence can also be aggravated by intent to achieve a gain, cause a loss, or alter “the exercise of a public duty or function” through the act of impersonation, and this wording has been questioned as well.

ALHR thinks all three of these could theoretically apply to political satirists, who might earn money, deliberately influence public policy or even cause economic losses by changing the minds of investors. To have such impact might well be their highest aspirations; they might even openly use satire as part of an organised campaign of political activism.

The cursory inquiry only happened because the Senate’s Selection of Bills Committee noted the criminal code, by nature, “has a significant impact on the rights and obligations of the Australian people, including potentially the ability to see them deprived of their liberty.”

That’s a good point because it is not clear what terrible crimes are currently going unpunished while on the other hand, it would be a travesty if serious charges were brought against satirists, protesters, activists, academics or people who just work for a company that sounds like it might be government-owned.

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