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Kulawiec, Joshua --- "Double Jeopardy in the Regulatory State" [2001] ALRCRefJl 14; (2001) 78 Australian Law Reform Commission Reform Journal 60


Reform Issue 78 Autumn 2001

This article appeared on pages 60– 62 & 74 of the original journal.

Double jeopardy in the regulatory state

By Joshua Kulawiec*

Double jeopardy is an ancient common law principle that protects individuals from being tried more than once for the same offence. It was traditionally restricted to criminal proceedings to shield a defendant from repeated attempts at conviction by the all-powerful state, as a matter of fairness. However the judiciary and legislature have struggled to decide whether or not, and to what extent, this safeguard of justice should also apply in civil, administrative and disciplinary proceedings.

The issue of the scope and application of the double jeopardy principle is important to resolve in the face of an eroding division between criminal, civil, and administrative penalties, and the proliferation of new regulatory offences under federal legislation. Certain offenders are exposed to out-of-court administrative proceedings, parallel proceedings and double punishments.

One issue relevant to double jeopardy concerns whether the offences subject to criminal or civil proceedings, or the acts that caused the offences, are the same or similar enough to warrant protection. In criminal proceedings, double jeopardy protection applies not just to identical offences but where ‘the essential elements of the offences under comparison establish that the accused has previously been in a relevant peril of conviction’.1

In civil, administrative and disciplinary proceedings, a limited form of double jeopardy protection is available through the doctrines of abuse of process and issue estoppel. These doctrines stress the public interest in finality and fairness in litigation.2

There is no clear test applying to civil and administrative proceedings. Rather, the courts have applied tests that variously grant the protection against proceedings to ‘substantially the same offences’ or only to ‘identical offences’.

Where double jeopardy principles are recognised in federal legislation imposing criminal, civil or administrative penalties, there is a variety of tests. The widest statutory provisions extend protection against double jeopardy to ‘relevant offences’,3 offences of ‘similar character’4 and offences of the ‘same nature’.5 Narrower provisions protect against double jeopardy for ‘substantially the same conduct’,6 and against the ‘same contravention’7 or the ‘same act’.8

The case law outlined below exemplifies the different applications of double jeopardy principles in civil, administrative and disciplinary proceedings, and explains the related concept of parallel proceedings and double punishment.

Civil & administrative proceedings

Double jeopardy can apply in civil proceedings that either precede or follow criminal, administrative, or disciplinary proceedings. While civil law disputes require resolution in a court of civil jurisdiction, administrative proceedings are undertaken and penalties imposed by an administrative body, without the need for court intervention.9

The validity of administrative penalties, which followed criminal proceedings, was analysed by the Supreme Court of Tasmania in Evans v Strachan (No 2).10 Evans sought the making of a control order against Strachan, a former licensed fisherman, in accordance with the Living Marine Resources Management Act 1995 (Tas).11 Strachan had numerous convictions for breaches of fisheries legislation in Tasmania and Victoria. In March 1997, Strachan was convicted of seven offences contrary to Tasmania’s Sea Fisheries Regulations, sentenced to six months’ imprisonment and fined. The following month, he was imprisoned for a further four months and fined a further amount for violating licensing requirements under s 60 of the Act. Strachan argued that the new proceedings constituted double jeopardy because they were based on a conviction and penalty that was already met. However Justice Slicer reasoned that as the characters of the two penalties were sufficiently distinct, combined with the brief time lapse between the two, concerns about double jeopardy were eliminated.

Disciplinary proceedings

Disciplinary proceedings are instituted for a breach of the rules of an organisation of which the defendant is a member. A tribunal within that organisation generally undertakes the proceedings, without the need for court intervention. Double jeopardy does not generally apply to prevent disciplinary proceedings following proceedings for the same offence.

For example, in Bornecrantz v Queensland Bridge Association,12 a disgruntled bridge player who was disqualified from a tournament argued that he could not then be banned from the Queensland Congress of Bridge, claiming issue estoppel. Justice Chesterman rejected this argument, applying the ruling of Justice Gibbs that issue estoppel cannot arise from a ‘mere administrative decision’.13 Justice Chesterman reasoned that:

‘Mr Ward’s disqualification of the applicant was no different to a referee or umpire taking action against a player for misbehaviour. The football codes provide frequent examples of players being sent from the field and later dealt with by a duly convened committee. I am not aware of any case in which the referee’s decision was held to estop the committee from proceeding to inquire, and where misconduct was proved, to discipline the player.’14

The Barings case15 came in the aftermath of the Barings Bank collapse in the UK in the late 1990s. The UK Secretary of State for Trade and Industry sought to disqualify former directors under s 6 of the Company Directors Disqualification Act 1986 (UK). One director claimed this would infringe the principle of double jeopardy, because he had already been dismissed from ‘the same, or substantially the same charges’ made by the Securities and Futures Authority in disciplinary proceedings. The Court of Appeal in the United Kingdom rejected this argument, finding the two charges to be substantially different.

The situation may be different where the tribunal was the prosecutor of the criminal charge, the parties are thus identical, and the key issues and offences are the same.16

Parallel proceedings & double punishment

Parallel proceedings are ‘concurrent government-initiated civil, administrative and criminal proceedings’.17 Such proceedings do not appear to raise judicial concerns of double jeopardy. Justice Deane ruled in Hammond v Commonwealth of Australia that:

‘... the mere fact that proceedings are pending in a court of law does not mean that any parallel or related administrative inquiry, conducted for proper administrative purposes, constitutes an interference with the due administration of the justice in that court’.18

Parallel proceedings are more common as criminal, civil and administrative offences overlap, such as those under the Social Security Act 1991 (Cth) and the Crimes Act 1914 (Cth). For example, imprisonment coupled with recovery of overpaid benefits is not a breach of double jeopardy provided the imprisonment does not deny the offender the means of making the reparation.19

The Corporations Law prevents parallel civil and criminal proceedings, but does not prevent criminal charges being laid after a civil proceeding is finalised (even though the evidence in a civil proceeding is inadmissible in the criminal case).20

Conclusion

There is considerable uncertainty in the way that the principles of double jeopardy apply outside of criminal jurisdiction. Federal regulatory legislation is either silent on the issue or contains inconsistent formulations of the protection. The desirable scope and application of the double jeopardy principle is an important issue to resolve, given the proliferation of new regulatory offences in federal legislation and the eroding division between criminal, civil, and administrative penalties.

*Joshua Kulawiec is a final year law student at Sydney University. He recently completed an internship at the ALRC, working on the inquiry into civil and administrative penalties.

Endnotes

1. Pearce v R [1998] HCA 57; (1998) 156 ALR 684, per Kirby J at 709.

2. The Queen v Storey [1978] HCA 39; (1978) 140 CLR 364, per Barwick CJ at 373.

3. Taxation Administration Act 1953 (Cth) s 8E.

4. Broadcasting Services Act 1992 (Cth) s 214(1).

5. Trade Practices Act 1974 (Cth) s 79.

6. Environment Protection and Biodiversity Conservation Act 1999 (Cth) and the Corporations Law.

7. Superannuation Industry (Supervision) Act 1993 (Cth).

8. Telecommunications Act 1997 (Cth).

9. ALRC Consultation Paper Civil and Administrative Penalties Reference December 2000, 3.

10. [1999] TASSC 129.

11. Part 9, Division 7.

12. [1999] QSC 58.

13. Administration of Papua New Guinea v. Daera Guba (1973) 130 CLR 353, per Gibbs J at 453.

14. Note 11, para 39.

15. Barings [1998] EWCA Civ 943; [1999] 1 All ER 311.

16. A Albert ‘Statutory Professionals in Disciplinary Proceedings’ (1994) 68 LIJ 154, 157.

17. A Freiberg ‘Civilising crime: parallel proceedings and the civil remedies function of the Commonwealth Director of Public Prosecutions’ (1988) 21 Australian and New Zealand Journal of Criminology 129, 214.

18. [1982] HCA 42; (1982) 152 CLR 188, per Deane J at 206.

19. See for example Perryman v Carment (unreported, 6 March 1918) per Jacobs J.

20. See ss 1317M, 1317N, 1317P and 1317Q.


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