Criminal prosecutions (-not) by disciplinary authorities

Updates, 13 June and 24 October 2012: See now Hagipantelis v Legal Services Commissioner of New South Wales [2010] NSWCA 79 from [23] and Legal Profession Complaints Committee v Masten [2010] WASAT 47.

Original post: The Building Practitioners Board is the Bureau de Spank for builders. It initiated an inquiry into whether a builder had breached a provision of the Building Act, 1993 (Vic.).  The provision prohibited builders from building without a permit.  Breach is a crime, but the Board is not entitled to prosecute offences under the Act, for which there is a limitation period of 3 years from the end of the building.  The Builder applied for judicial review of the decision to hold the inquiry, and the outcome is reported as Rodwell v Building Practitioners Board [2009] VCS 146.  He said that a disciplinary hearing into whether he had committed a crime was ‘a proceeding for an offence’.  If he was right, then the limitation period, which was attached to that concept, had already run, and the Board did not have the power to hold the inquiry.  Justice Hollingworth held against the builder.

The main reason her Honour so held was that the Act specifically empowered the Board at the end of an inquiry to make a finding that the builder had failed to comply with the Act: s. 179(1)(b). If it did so, it could reprimand the builder, order costs against him, fine him, require him to promise not to do things, and suspend or cancel his registration: s. 179(2).

Her Honour observed:

’29 If the builder’s argument (that the Inquiry is a proceeding for an offence) is accepted, then the Board is not even authorised to conduct a disciplinary inquiry into whether he has failed to comply with s 16(1). But, s 179(1)(b) specifically empowers the Board to make a finding that a builder has failed to comply with the Act. There would be little, if any, work for s 179(1)(b) to perform, were the builder’s argument correct. The court should, if possible, construe s 179(1)(b) so as to give it some meaning consistent with the purpose and objects of the Act.’

That conclusion would obviously be stronger if breach of every, or even most of the obligations on builders under the Act amounted to offences than if there are many obligations placed by the Act on builders breach of only some of which is a crime.  In the latter scenario, the work of sub-section (1)(b) if parliament were presumed not to have intended bureaucrats to run cases for declarations of the commission of crimes in tribunals ignorant of the criminal law where the laws of evidence do not apply would be to allow determinations to be made of breach of those obligations under the Act which do not sound in criminal liability.  I am not sure what the situation in that regard is under the Building Act, 1993.

Her Honour said:

’37 It is trite to observe that the same events may have a variety of legal consequences. For example, an act or omission may constitute a criminal offence and also give rise to civil proceedings, such as an action in damages. The same events may also have disciplinary consequences.

38 The standard of proof will vary, depending on the type of proceeding. Disciplinary inquiries into professional misconduct are not criminal proceedings, and the standard of proof is not proof beyond reasonable doubt. Nevertheless, given the nature of such proceedings and the serious consequences which they may have, the Briginshaw test applies.

39 The structure of the Act is that any failure by a builder to comply with a provision such as s 16(1) may have criminal consequences (through prosecution for an offence, brought in court by a prescribed person other than the Board) and/or disciplinary consequences (through the holding of an inquiry by the Board). A different standard of proof would apply, depending on the nature of the proceeding. Furthermore, a proceeding for an offence would be subject to the limitation period in s 241(7), a disciplinary inquiry under s 178 would be subject to no such time limit.

40 Different persons make the decision whether or not to bring the different types of proceeding. Whether one or both proceedings would be commenced would no doubt depend on the circumstances of each case.’

As Her Honour pointed out, recourse to the outcomes of other cases was of limited assistance. The question for determination was really one of statutory construction, and, as usual, the best way of construing a statute was a careful study of its stated purposes, and of the interrelationship of its provisions.  For that reason, I hesitate in making this last comment, because I have not been disciplined enough to compare the statutory regime at issue in Legal Practitioners Conduct Board v Ardalich [2005] SASC 478, which I noted here with the one under consideration by Justice Hollingworth.  But the tenor of this passage, which does not appear to have been cited to her Honour (perhaps because it was not relevant, of course) does strike up a diferent tone from that in this more recent decision:

’37. In my view, it was not appropriate for the Tribunal to embark upon some sort of quasi criminal trial, but adopting a lower standard of proof, ….

38 If the Board charges the practitioner with unprofessional conduct constituted by the commission of a criminal offence, short of an admission by the practitioner, it is incumbent upon the Board to produce evidence of the conviction of the practitioner of the offence recorded in a court exercising criminal jurisdiction.’

If I were making the law, this is how I would set it up:

  • where conduct, established on the civil burden of proof, would meet some test for conduct warranting discipline independently of the fact that, the same conduct accompanied by a sane and guilty mind, then that conduct ought to be able to be relied on as conduct warranting professional discipline, but the allegation should be the engaging in of the conduct without alleging that the conduct amounted to the commission of an offence, or breached a provision the sole purpose of which was to create an offence;
  • but where the only reason the professional’s peers would regard the conduct as wrongful is by virtue of the fact that its deliberate engaging in amounted to an offence (and the conduct did not also fall within some definition of conduct warranting discipline independently of the fact that it amounted to an offence, so that it would be alleged without reference to the offence) then a disciplinary body should not be empowered effectively to run a criminal prosecution on the civil standard;
  • no one but a criminal court should be taken to have been invested by parliament with the authority to make a finding in a case which has punitive consequences such as fines or cancellation of a professional registration (regardless of whether or not imprisonment is an option) that a professional has committed a crime (or, which is the same thing, breached a provision of an Act which creates an offence) unless parliament has shown, by clear words, that it intended such a consequence.

That is especially so where those who are subject to investigations of allegations of conduct warranting discipline often have their privilege against self-incrimination revoked, the hearings occur in tribunals which are not bound by the law of evidence, and the outcomes of the hearings — heavy fines, loss of the right to practise a profession, and (unlike defendants in criminal prosecutions) an obligation to pay the ‘prosecutor’s’ costs — may be far more serious in many ways than the typical outcome of successful prosecutions of even serious crimes (a suspended sentence of imprisonment).

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