By Anthony Lo Surdo SC and Conor Bannan -
Snapshot
- In Commonwealth v Director, Fair Work Building Industry Inspectorate [2015] HCA 46, the High Court unanimously allowed an appeal from the Full Federal Court judgment in Director, Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (2015) 229 FCR 331.
- The Court found that the differences between a criminal prosecution and civil penalty proceedings provide a principled basis for excluding the application of the sentencing principles in Barbaro v R in civil penalty proceedings.
- A court considering a civil penalty is therefore permitted to take into account submissions on agreed penalties or, in the case of a contested penalty hearing, on the appropriate penalty or range of penalties.
On 9 December 2015, the High Court of Australia delivered judgment in Commonwealth v Director, Fair Work Building Industry Inspectorate [2015] HCA 46 (Fair Work), unanimously allowing an appeal from the Full Federal Court judgment in Director, Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (2015) 229 FCR 331 (CFMEU) delivered on 1 May 2015.
CFMEU had, albeit temporarily, revolutionised the landscape for civil penalty proceedings.
In CFMEU, the Full Court of the Federal Court of Australia had concluded that the sentencing principles articulated in Barbaro v R (2014) 253 CLR 58 (Barbaro) also applied in civil penalty proceedings. This meant that it was not open to regulators to make submissions as to the quantum of a penalty to be imposed, and that the well-established practice of submitting agreed penalties for approval by the Court was impermissible. That conclusion has been overturned by the High Court in Fair Work.
