Hector L MacQueen CBE FBA FRSE 

Emeritus Professor of Private Law

University of Edinburgh Law School

Old College 

South Bridge

Edinburgh EH8 9 YL

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By way of very high level outline, at a federal level, Australian regulatory law has, depending on the statute, both civll penalty provisions and criminal offences. Some norms are both civil penalty provisions and criminal offences. Others are only one or the other, or require different elements to be proved to be a criminal offence. 



I agree with you, Nicholas. I am personally not convinced about a clear distinction at almost any time in England, but some other systems claim to have a good one. The test Granville Williams found ultimately the best we could do turned largely on procedure. But at point here, we remain binary in our procedures and our courts. Many other systems have "administrative offences" or similar, which are not exactly criminal or civil. We have never formally and thoroughly done that, though we have toyed around the edges. But there are times when we hold the flaming torch of something being criminal as being important, and lawyers certainly reach for that as a clear case often, even if there's not a clear foundation for its distinction or importance. In my view it's almost like many of us feel a need for the distinction to be there and to work but have never had to make it work properly...

 

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From: Hoggard, Nicholas <Nicholas.Hoggard@lawcommission.gov.uk>
Sent: Wednesday, August 14, 2024 1:21:35 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 <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

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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

  

T: +61 416869181

E: jeanniep@unimelb.edu.au   

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

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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…

 

JONATHON MOORE KC | Barrister

 

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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?

 

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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

 

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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

 

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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

 

Rest assured there is no criminal liability for unconscionable conduct under the Australian Consumer Law, only civil liability.

(The statutory prohibition on unconscionable conduct is closest to undue influence element of aggressive commercial practices in s 7 of the Consumer Protection from Unfair Trading Regulations 2008.)

.

 

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

  

T: +61 416869181

E: jeanniep@unimelb.edu.au   

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

 

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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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