23 December 2008

An Act of Canned Ham

> DomPost: "Kiwi spammer gets hefty fine" We should not be proud of the (first) $100,000 "fine" imposed on a spammer this week. Don't get me wrong. I hate spam. But the penalty regime within the Unsolicited Electronic Messages Act 2007 has worried me for some time. Basically it enacts a criminal penalty regime - maximum $200,000 fine (or $500,000 if a company), search warrants, infringement notices, etc - but then calls it a "civil liability" regime. Notably, the usual protections of the criminal law - including the high burden of proof - are excluded by section 49:
49 Applicable rules, procedure, and standard of proof The proceedings under sections 45 and 46 are civil proceedings to which the usual rules of the court, rules of evidence, and procedure for civil proceedings apply (including the standard of proof).

In my view, that's bad, for obvious reasons. Less obvious fish-hooks include things like different (vis reduced) entitlement to legal aid for civil proceedings.

The Bill of Rights vet touched on the problem of criminal penalties in drag but summarily concluded that any breaches of rights, including the minimum standards of criminal procedure, were justified. I'm not so convinced.

This approach is a dangerous precedent. Perhaps something worthy of Law Commission consideration.

1 comment:

David Farrar said...

The Legislation Advisory Committee had similiar concerns. If I recall my suggestion was a civil regime for lower level offending (small fines) and a criminal regime for the big time operators like Atkinson. That would also allow possible sentences beyond just fines.

IIRC the Government thought two regimes would be too difficult and opted for civil for everything.

Course Outline

Lord Justice Lawton in Maxwell v Department of Trade and Industry [1974] 2 All ER 122 said:

"From time to time ... lawyers and judges have tried to define what constitutes fairness. Like defining an elephant, it is not easy to do, although fairness in practice has the elephantine quality of being easy to recognise. As a result of these efforts a word in common usage has acquired the trappings of legalism: 'acting fairly' has become 'acting in accordance with the rules of natural justice', and on occasion has been dressed up with Latin tags. This phrase in my opinion serves no useful purpose and in recent years it has encouraged lawyers to try to put those who hold inquiries into legal straitjackets.... For the purposes of my judgment I intend to ask myself this simple question: did the [decision-maker] act fairly towards the plaintiff?"

This course examines the elephantine concept of fairness in the law, along with other contemporary legal issues.

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