Criminal Liability in Regulatory Contexts Responses - Law ...

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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370, 380.) 1.554 In summary, criminal sanctions are not appropriate for all minor regulatory offences and should be repealed in situations where civil penalty orders can secure appropriate levels of punishment and deterrence.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. 108
1.557 Further, the RSPCA undertakes multi-agency work, for example with Social Services, and agencies working in the fields of mental health and youth in relation to animal welfare concerns because there can be a correlation between the two issues. Thus the benefit to the general public from the work the RSPCA undertakes is wide ranging. Trading Standards Institute (TSI) 1.558 As discussed above, it's very difficult to define what a low-level criminal offence is usually what appears to be a trivial matter can lead to greater harm. TSI would welcome these measures only after detailed consultation is carried out into what the effects would be of de-criminalising defined Trading Standards offences and that information-gathering powers are retained. 1.559 Agree. QEB Hollis Whiteman Chambers Trading Standards South East Ltd 1.560 TSSE believes that whilst such a proposal is laudable, it is difficult to envisage how it can be practically introduced. Consequently TSSE is not able to support the proposal as drafted. This proposal is based upon the presumption that alternative civil penalties are available which would always be capable of securing compliance with the law. Whilst TSSE has no doubt that some offenders can be dealt with appropriately by the use of civil penalties, TSSE is also equally sure that there will be offenders for whom civil penalties are not appropriate. As such, it is vital that the option of criminal prosecution should remain, even for low level offending. Institute of Employment Rights 1.561 In relation to proposals 3 and 10, it is not clear from the Law Commission document how we could differentiate clearly between low-level and high-level criminal offences. More careful analysis is needed to inform these proposals, particularly if we recognise the scale of the potential harms to the public and the environment that corporate offending - even at ‘low levels’ - engenders. Given their ubiquity and the scale of operations of some of the largest corporations, the unique potential for economic, physical and environmental harms on the part of corporations cannot be ignored. Together the proposals may undermine the use of the criminal law against offending which engenders major risks. Already in the case of health and safety offences, there are an increasing number of offences that go unpunished in criminal law. 16 16 The figures cited in the following paragraphs are taken from Tombs, S and Whyte, D (2007) Regulatory Surrender: death, injury and the non-enforcement of law, Liverpool: Institute of Employment Rights. 109
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CRIMINAL LIABILITY IN REGULATORY CO
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1.8 The current approach of making
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1.21 We remain concerned that many
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Michelle Welsh, Monash University 1
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1.41 Looking for alternative dispos
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1.50 It is important that any regim
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1.61 Range of matters that may be s
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Raymond Schonfeld, Single Market Ve
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1.90 Sometimes appropriate to prose
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1.101 Note Commission’s point in
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1.113 Welcome Commission’s desire
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Trading Standards Institute (TSI) 1
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1.132 CP has misunderstood this imp
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1.144 There are different levels of
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1.156 We note, however, that it is
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1.167 The distinction between “tr
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1.173 Defence of due diligence: One
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Residential Landlords Association 1
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1.193 Any self regulatory scheme it
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1.201 Another issue in the case of
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“regulatory authorities should ma
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1.223 The paper says (n. 10) it is
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1.234 While for many arguments in t
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1.244 The identification doctrine i
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1.253 Decriminalising the regulatio
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1.262 The present position: Using k
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1.275 On the other, the immediately
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1.290 Another UK example of applica
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Residential Landlords Association 1
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QEB Hollis Whiteman Chambers, Justi
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RSPCA 1.845 As stated in this respo
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Central England Trading Standards A
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1.867 Due to a series of budgetary
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The Law Society 1.876 As a general
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City of London Law Society 1.886 We
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Criminal Sub-Committee of the Counc
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East of England Trading Standards A
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GC100 (association for general coun
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OFT 1.927 With regard to the fault
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The Faculty of Advocates 1.940 The
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Kingsley Napley LLP 1.952 Where the
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1.964 Work to or involving asbestos
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Local Government Regulation (LGR) 1
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1.989 There is also the situation o
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HSE 1.1000 We recognise that in gen
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1.1012 We note that generally legis
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QEB Hollis Whiteman Chambers 1.1023
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1.1033 We are however of the opinio
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Trading Standards North West (TSNW)
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Judges of the Court of Session 1.10
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Association of Chief Trading Standa
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Care Quality Commission (CQC) 1.108
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1.1094 This is an appropriate addit
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1.1105 Furthermore, there are a num
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1.1113 Should the defendant fail to
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1.1121 Both sets of regulations enf
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HSE 1.1134 Under this proposal, and
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Institute of Chartered Accountants
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Trading Standards South East Ltd 1.
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1.1171 I argue that the proposal to
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Justices’ Clerks’ Society 1.118
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East of England Trading Standards A
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PROPOSAL 16 Clifford Chance 1.1217
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City of London Law Society 1.1231 W
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1.1244 Question 3: No. Negligence b
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Central England Trading Standards A
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1.1284 Q4: We do not agree with the
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HSE 1.1296 We are opposed to this p
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Michelle Welsh, Monash University 1
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1.1312 The finding of the empirical
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1.1319 Q3: We do not agree that an
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1.1333 In that case, the Court of A
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1.1343 We have set these matters ou
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