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Key decision

  • Australian Competition and Consumer Commission v Cement Australia Pty Ltd [2017] FCAFC 15

Regulatory law – civil penalties

Joint and several liability for a penalty – course of conduct principle – market harm/financial benefit – application by the Full Court itself of the principles for the imposition of a penalty

Pecuniary penalties for contraventions of statutory provisions are commonplace in Commonwealth (and state) legislation. Within the Federal Court’s jurisdiction there is substantial enforcement litigation resulting in pecuniary penalties under the Competition and Consumer Act 2010 (Cth) (‘CCA’), the Corporations Act 2001 (Cth), the Fair Work Act 2009 (Cth) (‘FWA’) and other legislation (such as the Environment Protection and Biodiversity Conservation Act 1999 (Cth)). The applicable principles for the imposition of civil penalties are well-established (in particular, the oft-cited ‘French factors’ to be applied to determining an appropriate penalty listed by French J as a Federal Court judge in Trade Practices Commission v CSR Ltd [1990] FCA 762; [1991] ATPR 41-076 at 52,152-52,153).

However, the High Court has had some important things to say in recent years in this area of the law, such as about agreed penalties (Commonwealth v Director, Fair Work Building Industry Inspectorate (2015) 258 CLR 482) and the importance of deterrence as the purpose of civil penalties (Australian Competition and Consumer Commission v TPG Internet Pty Ltd (2013) 250 CLR 640 at [65]-[66]). The High Court is currently reserved on the question of whether the Federal Court has power to order a party not to indemnify another party in respect of a pecuniary penalty order made under s 546 of the FWA (Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union & Anor, M65/2017, reserved 17/10/2017).

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