Negotiating agreed penalties with regulators is OK, says High Court

Regulators and the businesses they regulate can avoid lengthy court proceedings and negotiate an agreed set of facts and a proposed penalty, following a decision by the High Court this morning (Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate [2015] HCA 46).

Going to court is expensive for all parties, so regulators have often, in appropriate cases, tried to limit the amount of court days by negotiating agreed sets of facts and penalties, including pecuniary penalties, with the business. These agreed facts and penalties were, until the case in the Federal Court last year presented to the court in joint submissions. The court does not accept these blindly; it considers them, but is free to reject them and set its own penalty.

In...