Criminal Liability in Regulatory Contexts Responses - Law ...

1.553 Civil penalties can be introduced in order to reduce the use of criminal law for
regulatory contraventions and to provide an enforcement regime in situations
where the criminal law is an inadequate enforcement mechanism. However, it
would be a mistake to assume that the lower evidentiary standards and burden of
proof mean that civil penalty orders will be able to be obtained easily in every
case. The data collected by the author indicates that in relation to the civil penalty
regime contained in the Australian Corporations Act 2001 (Cth) this is often not
the case. When this civil penalty regime was introduced it was intended that it
would provide ASIC with a timely and cost effective alternative to criminal
prosecutions. However, in recent years civil penalty applications have proven to
be anything but timely and cost effective. Very few procedural requirements were
imposed by the Australian courts in the early cases however increasingly, the
courts have ruled that many procedural requirements apply. This has extended
the time that civil penalty applications sit in the courts. 15 Many of these procedural
requirements have been introduced in recognition of the fact that the civil penalty
regime allows significant orders to be imposed without the protection of the
criminal rules of evidence and standard of proof. (Examples of civil penalty
applications that have taken lengthy periods of time are provided in Michelle
Welsh, ‘The Regulatory Dilemma: The Choice between Overlapping Criminal
Sanctions and Civil Penalties for Contraventions of the Directors’ Duty Provisions’
(2009) 27 Company and Securities Law Journal 370, 380.)
1.554 In summary, criminal sanctions are not appropriate for all minor regulatory
offences and should be repealed in situations where civil penalty orders can
secure appropriate levels of punishment and deterrence. In some cases civil
penalties have a greater chance of securing punishment and deterrence than do
criminal sanctions because of the civil rules of evidence and the standard of proof
that applies. Consideration needs to be given to the development of the rules of
evidence and procedure for civil penalty applications so that these applications
do not become quasi criminal. At the same time care must be taken to ensure
that adequate safeguards are put in place to protect defendants.
RSPCA
1.555 Please see concerns cited above in relation to animal welfare offences being
punished as civil measures. It is essential that the AWA is maintained in its
current form as the introduction of a regulatory regime could potentially
undermine the work currently undertaken by the RSPCA and would signify a Uturn
on an important issue of public policy.
1.556 The Society considers the AWA has a wide deterrent effect which would be
emasculated if this regime were to change, where the risk of non-compliance was
the imposition of a civil sanction. It very unlikely that the advice, education and
guidance given by RSPCA Inspectorate would be as effective in preventing or
stopping unnecessary animal suffering if the relevant legislation were decriminalised.
15 See Peta Spender, “Negotiating the Third Way: Developing Effective Process in Civil Penalty Litigation”
(2008) 26 Company and Securities Law Journal 249 for a discussion of the procedural requirements which
have been imposed by the courts in civil penalty cases.
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