From: Lionel Smith <lionel.smith@law.cam.ac.uk>
Sent: Wednesday 14 August 2024 15:18
To: obligations@uwo.ca
Subject: Re: HCA on unconscionable conduct and accessory liability
At the risk of piling on..I add to Paul’s note that in
Canada we (and the JCPC) have had to address this issue since Confederation in
1867, because the Constitution Act 1867, s 91(27), assigns “the criminal law”
exclusively to the federal Parliament. Meanwhile the provinces regulate
enormous numbers of things, including the roads. My recollection (from first
year law school) is that the distinction for the purposes of s 91(27) is
between ‘true criminal law’ (sounds like a TV genre?) and ‘regulatory offences’.
Malum in se and malum prohibitum are not far from centre stage here (but don’t
ask me to summarize the complex case law). Regulatory offences, however, can be
very serious and can carry jail terms. Hence s 11 of our 1982 Charter of
Rights and Freedoms, providing the procedural guarantees to which Paul
referred, is captioned ‘Proceedings in criminal and penal matters’ and
applies to ‘any person charged with an offence’ and this includes ‘regulatory
offences’.
The most disgraceful example in Canada of the
game-playing that Rob referred to is the booming business of ‘civil forfeiture’
which has been filling provincial coffers for some years. Assets that are
the proceeds of crime, or that have been used (or in one case might be used in
the future) in the commission of a criminal offence, can be forfeited to the
provincial Crown, with being proof on a balance of probabilities. Since the
proceeding is an in rem one, a civil proceeding ‘against’ the asset, it
is not a criminal proceeding and s 11 of the Charter is not engaged. I
personally can’t believe that the Supreme Court of Canada fell for that
(although the US Supreme Court did also, some years ago). Thus (to take an
example adapted from a real case) you could lose your house if your son, who
lives there as your tenant, deals or uses drugs in the house; and this, without
anyone being charged with or convicted of an offence (criminal or regulatory).
Lionel
From: Paul
Daly <paul.daly@uottawa.ca>
Date: Wednesday, August 14, 2024 at 14:24
To: Norman Siebrasse <norman.siebrasse@gmail.com>,
Jeannie Paterson <jeanniep@unimelb.edu.au>
Cc: ODG <obligations@uwo.ca>
Subject: RE: HCA on unconscionable conduct and accessory liability
As noted by
others, the ECHR jurisprudence on art. 6 addresses the distinction between
civil and criminal penalties.
For anyone
interested in this important issue, the Supreme Court of Canada has also
weighed in on the question of whether some civil penalties (known here as
administrative monetary penalties) are disguised criminal offences that attract
Charter protections. For a summary of the most recent decision, from
2015, see my note here.
From: Norman Siebrasse <norman.siebrasse@gmail.com>
Sent: Wednesday, August 14, 2024 7:56 AM
To: Jeannie Paterson <jeanniep@unimelb.edu.au>
Cc: obligations@uwo.ca
Subject: Re: HCA on unconscionable conduct and accessory liability
Attention : courriel externe | external email
As
another example, the Canadian
Competition Act provides for an "administrative monetary penalty"
of up to $10m for an abuse of dominant position (s74.1.(1)(c)), or for
prematurely closing a notifiable transaction (123.1(3)). The Act assures us it
is not criminal in nature: 79(3.3) "The purpose of an order made against a
person under subsection (3.1) is to promote practices by that person that are
in conformity with the purposes of this section and not to punish that
person."
.
On Wed, Aug
14, 2024 at 8:48 AM Jeannie Paterson <jeanniep@unimelb.edu.au> wrote:
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…
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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
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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
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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