Commonwealth v Director, Fair Work Building Industry Inspectorate; Construction, Forestry, Mining and Energy Union v Director, Fair Work Building Industry Inspectorate

The High Court has allowed two appeals against a decision of the Full Federal Court on civil penalty provision ranges and the effect of the High Court’s decision early last year in Barbaro v The Queen [2014] HCA 2, in which the Court held that prosecution submissions on appropriate sentencing ranges are merely opinions and not submissions of law. Following unlawful industrial action by the second and third respondent unions, the first respondent, the building industry employment regulator, sought to impose civil penalties for that contravention. This led to an agreement between the respondents that $150,000 would constitute the total pecuniary penalty and that, subject to the discretion of the Court, that amount was ‘satisfactory, appropriate and within the permissible range in all circumstances’. A three-member Full Federal Court, exercising its original jurisdiction (rather than deciding an appeal from a lower court decision: see at [8]–[9]), held that in determining the appropriate penalty the prior agreement between the regulator and the unions was not binding on the court, and that the lack of detail on the seriousness of misconduct require that a judge fix an appropriate civil penalty (see at [251]–[254]).

The Court unanimously allowed both appeals. The joint judgment (French CJ, Kiefel, Bell, Nettle and Gordon JJ) held that the decision in Barbaro does not apply to civil penalty provisions and that a court can receive and accept an agreed or other civil penalty submission. The joint judges rejected the Full Court’s reasoning (at [46]):

Middleton J and McKerracher J were correct in their view that there is an important public policy involved in promoting predictability of outcome in civil penalty proceedings and that the practice of receiving and, if appropriate, accepting agreed penalty submissions increases the predictability of outcome for regulators and wrongdoers. As was recognised in Allied Mills and authoritatively determined in NW Frozen Foods, such predictability of outcome encourages corporations to acknowledge contraventions, which, in turn, assists in avoiding lengthy and complex litigation and thus tends to free the courts to deal with other matters and to free investigating officers to turn to other areas of investigation that await their attention.

The joint judges held that there was a principled basis for distinguishing criminal prosecutions and civil penalty proceedings that supported not extending Barbaro‘s operation to the latter, in particular that criminal proceedings aim at convictions for offences whereas civil penalty proceedings precisely avoid criminality, that the latter involved considerations of public interest in compliance as opposed to punishment, and that the imposition of criminal punishment is a wholly judicial matter whereas in civil proceedings parties can and often do agree on consequences and remedies sought (see [51]–[57], and see [59]–[64] on differences). While there may be exceptions to this general rule, there is no principled reason why civil penalty proceedings should be treated as an exception: [58]. Gageler J agreed with the joint judgment that Barbaro should not be applied in civil penalty proceedings, but noted, contrary to the submissions of the amici curiae in this matter, that the reasoning of the plurality in Barbaro is ‘best understood as having gone no further than to recognise a qualification to the common law duty of a prosecutor to assist a criminal court to avoid appealable error, founded on a consideration of legal policy.’: at [77]. Keane J also agreed with the joint judges, but added comments on the civil penalties procedure at issue and their difference from the criminal procedures at issue in Barbaro (see at [103]ff).

High Court Judgment [2015] HCA 46
Result Appeals allowed
High Court Documents FWBII
Full Court Hearing [2015] HCATrans 259 13 October 2015
Special Leave Hearing [2015] HCATrans 149 18 June 2015
Appeal from FCAFC [2015] FCAFC 59 1 May 2015
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About Martin Clark

Martin Clark is a PhD Candidate and Judge Dame Rosalyn Higgins Scholar at the London School of Economics and Political Science and Research Fellow at Melbourne Law School. He holds honours degrees in law, history and philosophy from the University of Melbourne, and an MPhil in Law from MLS. While at MLS, he worked as a researcher for several senior faculty members, was a 2012 Editor of the Melbourne Journal of International Law, tutor at MLS and various colleges, a Jessie Legatt Scholar, and attended the Center for Transnational Legal Studies Program.