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4.3 Omissions

Commonwealth Criminal Code: Guide for practitioners

4.3 Omissions

An omission to perform an act can only be a physical element if:

  1. (a) the law creating the offence makes it so; or
  2. (b) the law creating the offence impliedly provides that the offence is committed by an omission to perform an act that by law there is a duty to perform.


There is no liability for omission in the absence of express or implied provision. Though liability for omissions can be implied, the scope of implication is limited.  The omission must be an omission to perform a   duty which is imposed by a law of the Commonwealth. Moral or merely contractual duties will not provide a foundation for implied liability

A host of minor offences impose criminal liability for failure to fulfil statutory duties to provide information, lodge returns and the like. Penalties are usually pecuniary.

Most federal offences are expressed in a form which is compatible with the imposition of liability for omissions. There are exceptions of course, for  some offences cannot be committed by omission: they penalise particular kinds of action, such as impersonating or threatening an official. It is common, however, to impose liability on a person who “engages in conduct” which causes some prohibited result. Other offences simply impose liability on a person “who causes” the prohibited result.43 Since “conduct” includes omissions as well as acts and since neglect of any statutory, common law or moral duty can amount to a “cause” of harm, liability for omissions is possible in these offences. It is not at first apparent what limits there might be to an expansion of criminal liability for omissions by a process of creative interpretation. However, Chapter 2 does not leave the source of the duty at large. There are two circumstances in which liability for omission will be imposed. The first is the obvious case, in which “the law creating the offence makes it so”: s4.3(a). These are the offences which require fees to be paid, returns to be made and so on. Liability for omissions does not have to be explicit however. Liability can also be imposed by implicit provision. There is a limit to implication. Liability can only arise from an “omission to perform an act that by law there is a duty to perform”: s4.3(b).  A reference to “law” in the Code is restricted in meaning to “a law of the Commonwealth”.44

It follows that the duty which provides the foundation for implied or express liability must be one imposed by Commonwealth legislation. The Code contains a number of offences of causing personal injury or death to United Nations officials and associated personnel and other offences of causing harm to Commonwealth officials.45 These offences have no application when death, injury or other harm results from omission, for there is no statutory specification of the duties which are owed to the protected class of potential victims.46 Nor does Commonwealth law specify duties to avoid causing property damage which might provide a basis for liability for offences of damaging Commonwealth property.  So, for example, cybercrime offences   of Chapter 10 National Infrastructure cannot be committed by omission.47

  1. See, for example, CC s147.1 - Causing harm to a Commonwealth official, and similar offences, which impose liability on a person who “engages in conduct” causing harm. Compare CC -Part 10.7 Computer offences, which impose liability on those “who cause” unauthorised access, modi- fication or impairment..
  2. Criminal Code Act 1995 (Cth), s4; Criminal Code – Dictionary: “law means a law of the Common- wealth and includes this Code”. The Dictionary meaning can be displaced, of course, as “context or subject matter” requires.
  3. See: CC Division 71 – Offences against United Nations and associated personnel, which provides a complete code of fatal and non fatal offences against the person; and also CC Division 147 Causing harm to Commonwealth public officials.
  4. Compare the catalogue of duties to avoid causing personal injury or death in MCC Chapter 2: Gen- eral Principles of Criminal Responsibility, Final Report 1992, 19-21
  5. Discussed MCC Ch 4 Damage and Computer Offences 2001 13-14.