The federal court recently delivered a judgment which found Centrelink’s ‘robodebt system’ to be unlawful, ordering the federal government to pay the legal costs of a social security recipient who challenged a debt notice that was issued to her in error.
A flawed scheme
The robodebt software uses ‘debt-averaging’ to determine whether a recipient owes a debt, calculating their average fortnightly income based on their annual tax return figure.
One of the issues with the software is that it fails to make adequate allowances for those who work on a part-time, casual or seasonal basis, and those who claim benefits for part of the tax year only.
This fundamental flaw has resulted in thousands being issued with debt notices in error, and vigorously pursued under threat of further action.
The scheme has had serious financial and emotional consequences for many innocent people, driving some into depression and even towards suicide.
Extortion is defined as “obtaining something, especially money, through force or threats”, and some have described the robodebt regime as a state-sanctioned extortion scheme; as it essentially involves a government department obtaining money to which it is not entitled through threats of legal action.
But what is the legal definition of extortion in New South Wales?
And when does extortion become a criminal offence?
Extortion in New South Wales
There is no specific crime of ‘extortion’ in New South Wales.
However, a number of offences encompass the act of “obtaining something… through force or threats”.
These offences include blackmail, demanding property with intent and stealing with menaces.
Blackmail in NSW
Section 249K of the Crimes Act 1900 (NSW) prescribes a maximum penalty of 10 years in prison for the crime of blackmail, which is where a person makes any unwarranted demand with menaces with the intention of:
- obtaining a gain or causing a loss, or
- influencing the exercise of a public duty.
The maximum increases to 14 years where the person threatens to commit a serious indictable offence, which is any offence that carries a maximum penalty of at least five years’ imprisonment.
Examples of serious indictable offences include larceny (stealing), assault occasioning actual bodily harm, robbery etc.
Section 249L explains that a demand with menaces is ‘unwarranted’ unless the person believes that he or she has reasonable grounds for making the demand and reasonably believes that the use of the menace is a proper means of reinforcing the demand.
‘Menaces’ is defined by section 249M to include:
- an express or implied threat of any action detrimental or unpleasant to another person, and
- a general threat of detrimental or unpleasant action that is implied because the person making the unwarranted demand holds a public office.
The section makes clear that a threat against an individual does not constitute a menace unless it would cause:
- an individual of normal stability and courage to act unwillingly in response to the threat, or
- the particular individual to act unwillingly in response to the threat and the person who makes the threat is aware of the vulnerability of the particular individual to the threat.
Further, a threat against a Government or body corporate does not constitute a menace unless it would:
- ordinarily cause an unwilling response, or
- cause an unwilling response because of a particular vulnerability of which the person making the threat is aware.
In any event, it is immaterial whether the menaces relate to action to be taken by the person making the demand.
Section 249N defines the terms ‘gain’, ‘obtaining a gain’, ‘loss’ and ‘causing a loss’.
A ‘gain’ is defined as any gain in money or other property, whether temporary or permanent, and includes keeping what one has.
‘obtaining a gain’ includes obtaining a gain for oneself or for another person.
A loss is a loss in money or other property, whether temporary or permanent, and includes not getting what one might get.
‘causing a loss’ includes causing a loss to another person.
And finally, section 249O defines ‘public duty’ as a power, authority, duty or function:
- that is conferred on a person as the holder of a public office, or
- that a person holds himself or herself out as having as the holder of a public office.
Demand property with intent in NSW
Section 99 of the Crimes Act sets down a maximum penalty of 10 years in prison for the offence of demanding property with intent to steal, which is where a person:
- Demands property from another person
- Does so with the intention to steal the property, and
- Uses menaces or force in the exercise of the demand.
For the purposes of the section, it is immaterial whether the menace involves violence or injury.
The maximum penalty increases to 14 years in prison where the offence occurred in the company of another person or persons.
Stealing with menaces in NSW
Section 149 of the Crimes Act imposes a maximum penalty of 14 years in prison for any person who steals property in dwelling house with menaces, which is where a person:
- Steals property from another person
- Does so in a dwelling house, and
- Thereafter uses any menace or threat to any person in the dwelling house.
A ‘dwelling house’ is defined as including:
- any building or other structure intended for occupation as a dwelling and capable of being so occupied, although it has never been so occupied,
- a boat or vehicle in or on which any person resides, and
- any building or other structure within the same curtilage as a dwelling-house, and occupied therewith or whose use is ancillary to the occupation of the dwelling-house.
The following defences apply to each of the above offences:
In the event that evidence of any of these defences is raised, the onus shifts to the prosecution to then prove beyond reasonable doubt that the defence does not apply.
If the prosecution is unable to do this, the defendant is entitled to an acquittal.
Extortion in Commonwealth Law
The Criminal Code Act 1995 (Cth) is the primary piece of criminal legislation that applies across Australia.
Like the NSW Crimes Act, the Criminal Code Act does not contain a specific offence of extortion.
However, and also like the NSW Act, it does contain a number of offences which deal with situations where individuals make demands with menaces.
These offences include:
- Intentional foreign interference under section 92.2, which carries a maximum penalty of 20 years in prison,
- Reckless foreign interference under section 92.3, which comes with a maximum of 15 years in prison,
- Unwarranted demands of a Commonwealth public official under section 139.1, which comes with a maximum of 12 years, and
- Unwarranted demands made by a Commonwealth public official under section 139.2, which also comes with a 12 year maximum penalty.
The section 139 offences require the unwarranted demand to be made with ‘menaces’, which is where a person makes a demand in circumstances where he or she:
- Does not believe there are reasonable grounds for making it, and
- Does not reasonably believe that the use of menaces is a proper means of reinforcing the demand.
So, does anywhere in Australia have an offence of ‘extortion’?
Queensland has a discrete offence of ‘extortion’, which is contained in section 415 of the state’s Criminal Code of 1899.
The section is titled ‘Extortion’ and prescribes a maximum penalty of 14 years in prison for any person who, without reasonable excuse, makes a demand with the intention to gain a benefit for any person or to cause a detriment to any other person, in circumstances where the demand contains a threat to cause a detriment to any other person.
The maximum penalty increases to life imprisonment where the threat causes, or would be likely to cause, serious personal injury to another person or substantial economic loss in an industrial or commercial activity conducted by another person or entity.
The section makes clear that a threatening letter can be sufficient to establish the offence.
Going to court for an extortion offence?
If you are going to court for a criminal offence, call Sydney Criminal Lawyers® anytime on (02) 9261 8881 to arrange a free first conference with an experienced criminal defence lawyer, who will take the time to advise you of your options and the best way forward, and fight to ensure you receive the optimal outcome.