High Court allows agreed civil penalty submissions with regulators

On 9 December 2015, the High Court of Australia delivered its decision in Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate; CFMEU v Director, Fair Work Building Industry Inspectorate (CFMEU)1 (see judgment here).

The High Court unanimously set aside the Full Court decision and reinstates in excess of twenty years of authorities relating to the ability of parties, such as the ACCC, ASIC and the ATO, and those that are the subject of civil prosecutions to make joint submissions to the Court about the appropriate pecuniary penalty or range of penalties that should be imposed.

FULL COURT DECISION

The Full Bench of the Federal Court concluded that:

"the public interest in the imposition of pecuniary penalties... leads to the conclusion that the fixing of the amount of such a penalty is a matter for the Court, and that the parties cannot, by agreement, bind it" 2. In doing so, the Full Court applied the recent High Court decision Pasquale Barbaro v The Queen, Saverio Zirilli v The Queen3 (Barbaro) that related to penalty recommendations in criminal matters.

For further detail about the Full Court decision please see our previous Corrs in Brief article "Where to now for agreed civil penalty outcomes following the CFMEU and Barbaro decisions?" that can be accessed here.

HIGH COURT DECISION

Barbaro not to be applied and penalty submissions allowed in civil proceedings

In setting aside the Full Court's decision and the application of Barbaro in civil proceedings, the High Court identifies...