Following yesterday’s post – Spent convictions and paramedic registration (April 23, 2019) I was asked:
What is the rule regarding Civil Offences? I am nearly finished my Paramedical Degree, however did lose my driver’s license many years ago. I know this is considered civil, not criminal and it was over 10 years ago so officially it could be “spent” (I am in WA).
That question reveals a common misunderstanding – that traffic matters are not criminal. This is what Lord Aitken sitting in the Privy Council said of criminal law (Proprietary Articles Trade Association v Attorney-General For Canada [1931] A.C. 310):
Criminal law connotes only the quality of such acts or omissions as are prohibited under appropriate penal provisions by authority of the State. The criminal quality of an act cannot be discerned by intuition; nor can it be discovered by reference to any standard but one: Is the act prohibited with penal consequences? Morality and criminality are far from co-extensive; nor is the sphere of criminality necessarily part of a more extensive field covered by morality – unless the moral code necessarily disapproves all acts prohibited by the State, in which case the argument moves in a circle. It appears to their Lordships to be of little value to seek to confine crimes to a category of acts which by their very nature belong to the domain of “criminal jurisprudence”; for the domain of criminal jurisprudence can only be ascertained by examining what acts at any particular period are declared by the State to be crimes, and the only common nature they will be found to possess is that they are prohibited by the State and that those who commit them are punished.
That’s a long way of saying that you can’t look at conduct and determine from the nature of the conduct whether it’s criminal or not. What makes something criminal is that it is prohibited and the consequences are punishment rather than, say, the payment of compensation. But civil penalties exist and they look like crimes. Distinguishing between them can be difficult. In Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd (2013) 216 CLR 161 Hayne J said (at [136]-[138]):
… proceedings are distinguished according to whether or not they seek the conviction of the defendant for an offence…
Seeking to obtain the conviction of a person accused of contravening written or unwritten law lies at the heart of the criminal process… Absent statutory provision to the contrary, a conviction should not be recorded except where the requisite elements of the contravening conduct are established beyond reasonable doubt.
In Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate [2015] HCA 46 French CJ, Kiefel, Bell, Nettle and Gordon JJ said ([52]-[53]):
A criminal prosecution is an accusatorial proceeding which is governed by the fundamental principle that the burden lies in all things upon the Crown to establish the guilt of the accused beyond reasonable doubt and by the companion rule that the accused cannot be required to assist in proof of the offence charged.
Civil penalty proceedings are civil proceedings and therefore an adversarial contest in which the issues and scope of possible relief are largely framed and limited as the parties may choose, the standard of proof is upon the balance of probabilities and the respondent is denied most of the procedural protections of an accused in criminal proceedings.
What follows from all of that is an offence is criminal if:
- There is prohibited conduct;
- The consequence of that conduct is punishment or a ‘conviction’;
- The case must be proved by the Crown; and
- The burden of proof is ‘beyond reasonable doubt’.
If you think of traffic matters they are clearly criminal. There is prohibited conduct, the consequence is punishment and if the matter is dealt with by a court it will be heard in the court’s criminal jurisdiction, it will be prosecuted by the police or a public prosecutor and the burden on the Crown is to prove the case beyond reasonable doubt. Many people want to think traffic matters are not ‘criminal’ as they don’t meet their test of seriousness (and might I suggest because many people commit traffic offences but don’t want to think of themselves as criminals). That is however the point of Lord Aitken’s speech – the moral nature of the conduct in no way defines whether the consequences of that conduct are criminal or not.
Traffic matters can, in most cases, be dealt with by traffic infringement notices, they don’t have to go to court. Payment of an infringement notice is, generally, not an admission of guilt and does not equate to a prosecution – see Traffic infringements and paramedic registration (October 10, 2018). If an infringement notice is paid, subsequent criminal prosecutions are stayed. That is not however the case in Western Australia.
Tasmania, Western Australia and Victoria (with respect to drink-driving infringements, drug-driving infringements or excessive speed infringements) provide exceptions to the rule that the payment of a fine is not a conviction. Tasmania says that a person who pays an infringement notice is ‘taken to have been convicted of the offence’ (Monetary Penalties Enforcement Act 2005 (Tas) s 20). Western Australia says that the payment of a penalty notice is not a conviction (Fines, Penalties and Infringement Notices Enforcement Act 1994 (WA) s 24) unless it relates to an offence under a road law in which case the payment of the fine is taken to be a conviction ‘for the purposes of the Road Traffic (Authorisation to Drive) Act 2008 section 16(1)(a)…’ (s 26). Arguably it is a conviction for the purposes of the Road Traffic (Authorisation to Drive) Act 2008 not the Health Practitioner Regulation National Law but a prudent applicant would disclose it. It is unlikely to have an impact on a paramedic’s registration unless they were recklessly driving an ambulance at the time.
What are the implications for my correspondent?
First my correspondent is wrong. Traffic offences are not ‘considered civil’; they are criminal.
If my correspondent went to court and a magistrate or judge ordered, after a trial or a plea of guilty, that the licence was cancelled then that is a criminal conviction and must be disclosed regardless of how long ago it occurred – Health Practitioner Regulation National Law ss 77, 79, 135 and s 5 definition of ‘criminal history law’.
In every jurisdiction other than Tasmania and Western Australia an applicant who has received and paid Traffic Infringement Notices and lost his or her licence because they acquired too many demerit points and the relevant licensing authority cancelled their licence then that is not a criminal conviction because there were no criminal proceedings. In that case the licence was cancelled by administrative action. Because it is not a criminal conviction ‘spent conviction’ legislation. Equally, because there was no conviction the Paramedicine Board’s Criminal History Registration Standard won’t apply as there is no criminal history.
In WA payment of a Traffic Infringement Notice does equate to a conviction with the consequence that it should be disclosed regardless of how long ago it occurred – Health Practitioner Regulation National Law ss 77, 79, 135 and s 5 definition of ‘criminal history law’.
Australian Emergency Law 
By this logic professional disciplinary proceedings are criminal ( albeit administrative ) in that they involve prosecution and penalty ( fines can apply). However the civil standard of proof is applied. Do you think that’s fair?
Professional proceedings are not criminal. If they were dealt with in criminal courts and the crown had to prove the case beyond reasonable doubt and the consequence was a conviction then they would be criminal. That they are not heard in criminal courts, the burden of proof is not beyond reasonable doubt and the consequence is not punishment so they are not criminal. I have just reported on the decision in Medical Board of Australia v Dr Christopher Kwan Chen Lee [2019] TASHPT 3. The Health Practitioners Tribunal said (at [50]-[51]):
I am not quite sure what you mean Greg. I know when I get my Police Report it states emphatically that I do not have a Criminal Record, but it does say that my DL was disqualified over 10 years ago. Can you please tell me what you mean? I don’t mean that as a defensive question, I just don’t quite understand your comment. And I ask this because I am more than likely going to be doing humanitarian work overseas than in Western Australia as a Paramedic, but I am wondering if the only service provider in WA would ever accept me with my loss of license. I’d appreciate any feedback.
I know that disciplinary matters are not criminal, although they do acknowledge a punitive component to any penalties. My comment was not directly related to your case but to how the term “criminal” (with its demand for “beyond reasonable doubt” proof, was linked to punishment. The anomaly is that the consequences for the accused practitioner can be several orders of magnitude greater than a traffic fine but the standard of proof is much less, being the balance of probabilities.
Yes and that’s the point of the quote from Lord Aitken. A traffic matter is a criminal offence but it has a very small penalty. We know it’s a criminal offence because it’s heard in a criminal court and proof beyond reasonable doubt is required. We know a disciplinary matter is not a criminal offence as it’s not heard in a criminal court, the required proof is ‘on the balance of probabilities’ and as the quote from Medical Board of Australia v Dr Christopher Kwan Chen Lee [2019] TASHPT 3 says the objective is patient protection not punishment. The potential impact of the court’s orders is not the defining issue as Aitken says. There are other precedents that do say if gaol is a possibility then a matter has to be criminal but short of that civil penalties can indeed be very high.
As Aitken says ‘the domain of criminal jurisprudence can only be ascertained by examining what acts at any particular period are declared by the State to be crimes’. A thing is a crime because the state chooses to regulate it by the criminal law. No other standard or test applies. That some crimes carry lesser penalties than other non-crimes that are dealt with in other ways is not an anomoly per se, it’s different horses for different courses.