High Court confirms that courts can consider penalty agreements in civil penalty proceedings

Penalty agreements between prosecutors and defendants in civil penalty proceedings are not prohibited. This means prosecutors - including WHS Regulators, the FWBC, the Fair Work Ombudsman, the ACCC, ASIC and the ATO - can enter into penalty agreements with parties who have breached civil penalty provisions, and those agreements can be produced for the consideration of the court.

This was confirmed yesterday by the High Court, which unanimously held that, in civil penalty proceedings, courts are not precluded from considering and, if appropriate, imposing penalties that are agreed between the parties.1

Yesterday's decision overturned a controversial Full Federal Court decision2 that parties' agreements on penalties are inadmissible in civil penalty proceedings. It confirms that the...