From: Jeannie Paterson
<jeanniep@unimelb.edu.au>
Sent: Wednesday 14 August 2024 12:42
To: Robert Stevens; Hoggard, Nicholas; Vaclav
Janecek; Jonathon Moore KC; Kayleen Manwaring; Matthew Hoyle; Neil Foster;
obligations@uwo.ca
Subject: Re: HCA on unconscionable conduct and
accessory liability
Indeed - the explanatory memo for the civil
penalty provisions in the Australian Consumer Law was quite forthright about
the criminal provisions being underused and indeed too difficult to prosecute.
Nonetheless, Australian courts describe the
purpose of the civil penalty as deterrence not punishment. But it has also been
observed that courts use precisely the same reasoning in calculating civil
penalties as they do for criminal penalties – even using ‘just desert’ and
‘intuitive synthesis’ arguments familiar from criminal law. (Karen Yeung has
written on this). The point has been much debated - Bant
et al Punishment and Private Law; Kayis, Gluer and Walpole, Law
of Civil Penalties
I like Nicholas’s point
about the reasoning being a little circular – through doesn’t criminal
prosecution have consequences for some office holders..?
Jeannie Marie Paterson | The
University of Melbourne
Professor of Law (Consumer Protection and Emerging Technology)
Fairness, Transparency and Coherence (FTC) in Consumer and Credit
Protection Project | Melbourne Law School
Director of the Centre for Artificial Intelligence and Digital Ethics |
Faculty of Engineering and Information Technology
The University of Melbourne
https://law.unimelb.edu.au/centres/caide
https://law.unimelb.edu.au/about/staff/jeannie-paterson
From: Robert
Stevens <robert.stevens@law.ox.ac.uk>
Date: Wednesday, 14 August 2024 at 9:29 PM
To: Hoggard, Nicholas <Nicholas.Hoggard@lawcommission.gov.uk>,
Vaclav Janecek <dt21561@bristol.ac.uk>,
Jeannie Paterson <jeanniep@unimelb.edu.au>,
Jonathon Moore KC <jpmoore@vicbar.com.au>,
Kayleen Manwaring <kayleen.manwaring@unsw.edu.au>,
Matthew Hoyle <MHoyle@oeclaw.co.uk>,
Neil Foster <neil.foster@newcastle.edu.au>,
obligations@uwo.ca <obligations@uwo.ca>
Subject: [EXT] RE: HCA on unconscionable conduct and accessory liability
External email: Please exercise caution |
“Civil penalties” in the UK (and presumably elsewhere)
are a way of creating regulatory offences without all the tiresome procedural
and other protections for the accused that apply in the criminal law. It is
unsurprising that international courts look straight through such re-labelling.
Governments, of course, are very keen on them.
From: Hoggard, Nicholas
<Nicholas.Hoggard@lawcommission.gov.uk>
Sent: Wednesday, August 14, 2024 12:22 PM
To: Vaclav Janecek <dt21561@bristol.ac.uk>;
Jeannie Paterson <jeanniep@unimelb.edu.au>;
Jonathon Moore KC <jpmoore@vicbar.com.au>;
Robert Stevens <robert.stevens@law.ox.ac.uk>;
Kayleen Manwaring <kayleen.manwaring@unsw.edu.au>;
Matthew Hoyle <MHoyle@oeclaw.co.uk>;
Neil Foster <neil.foster@newcastle.edu.au>;
obligations@uwo.ca
Subject: RE: HCA on unconscionable conduct and accessory liability
I think the civil/criminal distinction can be somewhat
circular, amounting to little more than a question of whether (in England &
Wales) it falls within the purview of the DPP/Crown Prosecution Service or
whether it is described as an “offence”. The European Convention on Human
Rights takes a much more purposive approach to the definition of criminal,
which has been held to include various categories of (for example) tax
surcharges (ie penalties). Contempt of court is another good example of a regime
that is not “criminal” stricto sensu (particularly civil contempt, but even
“criminal contempt” falls wholly outwith the criminal justice system) – but
that is definitely a criminal offence for the purposes of Art 6 of the ECHR.
Best wishes
Nick
Dr Nicholas Hoggard, Lawyer
Homeland Security Group | Home Office
Law Commission | Ministry of Justice
Mobile: 07706 716 099
Email: nicholas.hoggard@lawcommission.gov.uk
nicholas.hoggard@homeoffice.gov.uk
From: Vaclav Janecek
<vaclav.janecek@bristol.ac.uk>
Sent: 14 August 2024 12:20
To: Jeannie Paterson <jeanniep@unimelb.edu.au>; Jonathon
Moore KC <jpmoore@vicbar.com.au>; Robert
Stevens <robert.stevens@law.ox.ac.uk>; Kayleen
Manwaring <kayleen.manwaring@unsw.edu.au>; Matthew Hoyle
<MHoyle@oeclaw.co.uk>; Neil Foster <neil.foster@newcastle.edu.au>; obligations@uwo.ca
Subject: RE: HCA on unconscionable conduct and accessory liability
Dear Jeannie,
And what exactly would constitute a civil penalty
under the UK DPA 2018? I am not sure I follow where you are going with this
example…
Best wishes,
Václav
From: Jeannie Paterson
<jeanniep@unimelb.edu.au>
Sent: Wednesday, August 14, 2024 12:15 PM
To: Jonathon Moore KC <jpmoore@vicbar.com.au>; Robert
Stevens <robert.stevens@law.ox.ac.uk>; Kayleen
Manwaring <kayleen.manwaring@unsw.edu.au>; Matthew Hoyle
<MHoyle@oeclaw.co.uk>; Neil Foster <neil.foster@newcastle.edu.au>; obligations@uwo.ca
Subject: Re: HCA on unconscionable conduct and accessory liability
Eg the Data Protection Act 2018.
Jeannie Marie Paterson | The
University of Melbourne
Professor of Law (Consumer Protection and Emerging Technology)
Fairness, Transparency and Coherence (FTC) in Consumer and Credit
Protection Project | Melbourne Law School
Director of the Centre for Artificial Intelligence and Digital Ethics |
Faculty of Engineering and Information Technology
The University of Melbourne
https://law.unimelb.edu.au/centres/caide
https://law.unimelb.edu.au/about/staff/jeannie-paterson
From: Jonathon
Moore KC <jpmoore@vicbar.com.au>
Date: Wednesday, 14 August 2024 at 9:08 PM
To: Robert Stevens <robert.stevens@law.ox.ac.uk>, Kayleen Manwaring <kayleen.manwaring@unsw.edu.au>, Matthew Hoyle <MHoyle@oeclaw.co.uk>, Jeannie Paterson <jeanniep@unimelb.edu.au>, Neil Foster <neil.foster@newcastle.edu.au>, obligations@uwo.ca <obligations@uwo.ca>
Subject: [EXT] Re: HCA on unconscionable conduct and accessory liability
External email: Please exercise caution |
Although perhaps not as widespread as in Australia,
doesn’t the UK also have civil penalties, without the usual protections of the
criminal law?
Not that I favour the regime…
Ninian Stephen Chambers | Room 1 | Level 38, 140 William St,
Melbourne VIC 3000
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From: Robert
Stevens <robert.stevens@law.ox.ac.uk>
Date: Wednesday, 14 August 2024 at 8:24 pm
To: Kayleen Manwaring <kayleen.manwaring@unsw.edu.au>, Matthew
Hoyle <MHoyle@oeclaw.co.uk>,
Jeannie Paterson <jeanniep@unimelb.edu.au>,
Neil Foster <neil.foster@newcastle.edu.au>,
"obligations@uwo.ca"
<obligations@uwo.ca>
Subject: Re: HCA on unconscionable conduct and accessory liability
ie a punitive sanction without any of the procedural protections of the
criminal law, but with a different label?
From:
Kayleen Manwaring <kayleen.manwaring@unsw.edu.au>
Sent: Wednesday, August 14, 2024 11:11:09 AM
To: Matthew Hoyle <MHoyle@oeclaw.co.uk>;
Jeannie Paterson <jeanniep@unimelb.edu.au>;
Neil Foster <neil.foster@newcastle.edu.au>; obligations@uwo.ca <obligations@uwo.ca>
Subject: Re: HCA on unconscionable conduct and accessory liability
It does, Matthew, but this is not a criminal remedy under the ACL,
rather it's a civil penalty.
Sent from my brain
From: Matthew Hoyle <MHoyle@oeclaw.co.uk>
Sent:
Wednesday, August 14, 2024 7:39:38 pm
To:
Jeannie Paterson <jeanniep@unimelb.edu.au>; Neil Foster
<neil.foster@newcastle.edu.au>; obligations@uwo.ca <obligations@uwo.ca>
Subject:
RE: HCA on unconscionable conduct and accessory liability
Does s.224 not permit
the imposition of “pecuniary penalties” for breach of s.21, as a provision of
Part 2-2?
Matthew Hoyle
Barrister
One Essex Court
This message is confidential and
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From: Jeannie Paterson
<jeanniep@unimelb.edu.au>
Sent: Wednesday, August 14, 2024 10:15 AM
To: Matthew Hoyle <MHoyle@oeclaw.co.uk>; Neil Foster
<neil.foster@newcastle.edu.au>; obligations@uwo.ca
Subject: Re: HCA on unconscionable conduct and accessory liability
.
Jeannie Marie
Paterson | The University of Melbourne
Professor of Law (Consumer Protection and Emerging Technology)
Fairness, Transparency and Coherence (FTC) in Consumer and Credit
Protection Project | Melbourne Law School
Director of the Centre for Artificial Intelligence and Digital Ethics |
Faculty of Engineering and Information Technology
The University of Melbourne
https://law.unimelb.edu.au/centres/caide
https://law.unimelb.edu.au/about/staff/jeannie-paterson
From: Matthew
Hoyle <MHoyle@oeclaw.co.uk>
Date: Wednesday, 14 August 2024 at 7:04 PM
To: Neil Foster <neil.foster@newcastle.edu.au>, obligations@uwo.ca <obligations@uwo.ca>
Subject: [EXT] Re: HCA on unconscionable conduct and accessory liability
External email: Please exercise caution |
Thanks Neil. Even by
the standards of consumer statutes, criminal and civil liability by reference
to “unconscionability” is pretty radical! Our legislation is slightly more
specific, prohibiting “misleading” and “aggressive” practices.
On the “knowingly
concerned” element, one might compare it to the English decision on unlawful
means conspiracy in Racing Partnership [2020] EWCA Civ 1300. The CA, relying on
both civil and criminal cases, held that it was not necessary for the defendants
to know the means they had agreed to deploy were unlawful in order for them to
be liable, provided they know all the facts which make the acts unlawful. There
is also no defence of honestly believing (eg based on legal advice) that the
steps you have agreed to take are lawful.
Matthew Hoyle
Barrister
One Essex Court
This message is
confidential and may be privileged. If you believe you have received it in
error please delete this email and immediately inform the sender.
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From: Neil
Foster <neil.foster@newcastle.edu.au>
Sent: Wednesday, August 14, 2024 3:03:12 AM
To: obligations@uwo.ca <obligations@uwo.ca>
Subject: ODG: HCA on unconscionable conduct and accessory liability
Dear Colleagues;
I thought some might be
interested in this decision from the High Court of Australia today: Productivity
Partners Pty Ltd v Australian Competition and Consumer Commission; Wills v
Australian Competition and Consumer Commission [2024] HCA 27 (14 August
2024) http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/2024/27.html .
The issues concern a
statutory prohibition on unconscionable conduct (s 21 of the Australian
Consumer Law("ACL") provides that persons must not, in trade or
commerce, in connection with supply of services, "engage in conduct that
is, in all the circumstances, unconscionable"), and the accessory
liability of a director/manager where a company is found to have engaged in
such conduct. The facts involve an education provider in effect deliberately
taking on students who it knew would probably not succeed, for the purpose of
getting funding for those students.
There are a number of
different decisions from members of the court on these issues (apart from a
joint judgment from Gageler CJ and Jagot J, all the other 5 members of the
court write separately), which range over how to define “unconscionable” in
terms of social norms, to the extent of the knowledge required for a company
officer to be an accessory, and issues around how a “system” may be
unconscionable. The work of colleague Elise Bant is extensively cited, and
other ODG colleagues Rachel Leow and Jeannie-Marie Paterson also are mentioned.
For my part I found of
particular interest the reference of Steward J to the historical origins of
equity’s standards in the background of Christianity – see para [297], while
acknowledging of course that “religious-based concepts of conscience have since
the seventeenth century been
replaced with
particular written rules, based on precedent” ([300]). I discuss the background
of the Western legal system in the Christian world-view in my course on “Law
and Religion”.
That to one side, there
are lots of interesting things in the judgments about how to apply a statutory
standard of unconscionability in the modern world.
Regards
Neil
NEIL FOSTER
Associate Professor, School of Law and
Justice
College of Human and Social Futures,
University of Newcastle, NSW
T: +61 2 49217430
E: neil.foster@newcastle.edu.au
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