The High Court has today published its decision in Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate; Construction, Forestry, Mining and Energy Union v Director, Fair Work Building Industry Inspectorate [2015] HCA 46 (Commonwealth v Fair Work).

The decision finally settles a controversy that began almost immediately upon the High Court’s publication of Barbaro v The Queen1 (Barbaro)

The plurality of French CJ, Kiefel, Bell, Nettle and Gordon JJ in Commonwealth v Fair Work explained2 Barbaro as authority for the proposition that the: “practice of criminal prosecutors nominating a quantified range of sentences that the Crown considered as open to be imposed in the circumstances of each case … was wrong in principle…”

In Commonwealth v Fair Work the plurality noted3 that since Barbaro, “several judges at first instance have expressed diverse views as to whether Barbaro applies to civil proceedings.”4 Today, the High Court held it did not.5

A minor difference between the cases

Barbaro was concerned with submissions advanced solely by the Crown. Commonwealth v Fair Work, like so many other civil penalty cases, arose in the context where the parties had in fact ‘agreed’ an appropriate penalty and were asking the Court to make consent orders to impose that penalty.

Fixing civil penalties where the parties are agreed

The Court refers favorably to two earlier Full Federal Court decisions in support of the proposition that when the parties have agreed a civil penalty that they are asking the Court to impose, the court is not bound by the figure suggested by the parties. The court asks “whether their proposal can be accepted as fixing an appropriate amount” and for that purpose the court must satisfy itself that the submitted penalty is appropriate.6 The Court is not tasked with determining the range of potentially appropriate penalties, and then determining whether the proposed penalty is within that range.

The Court repeatedly emphasises that the question is whether the proposed penalty is an appropriate penalty. It is clearly accepted that there is no one appropriate penalty in any given case.7

Submissions on civil penalties where the parties are NOT agreed

Although it was strictly unnecessary, the Court also addressed the issue whether it is appropriate for regulators to make recommendations on quantum of penalty otherwise than on a joint (agreed) basis. That is, for instance, whether following a contested trial at which the Court has found that a contravention of a civil penalty provision has occurred, it is open to a regulator to submit that the appropriate penalty is either X, or is between X and Z. Following Barbaro, such a submission is never appropriate from the Crown in the context of a criminal sentencing. In Commonwealth v Fair Work the Court implicitly found such submissions may be appropriate in civil penalty proceedings.8

For more information

The following are all references to the joint judgment:

The key statutory provisions are addressed at [6], [17] and [64].

A tight analysis of Barbaro can be found at [34] to [37].

The nub of the plurality’s reasoning emerges at [46] and following. In particular at [51] where it is said: Contrary to the Full Court’s reasoning, there are basic differences between a criminal prosecution and civil penalty proceedings and it is they that provide the “principled basis” for excluding the application of Barbaro from civil penalty proceedings.

At [58]: Subject to the court being sufficiently persuaded of the accuracy of the parties’ agreement as to facts and consequences, and that the penalty which the parties propose is an appropriate remedy in the circumstances thus revealed, it is consistent with principle and, for the reasons identified in Allied Mills, highly desirable in practice for the court to accept the parties’ proposal and therefore impose the proposed penalty.

At [65]: if a court is disposed not to impose the agreed penalty, it may be appropriate to give the parties an opportunity to withdraw their consent or otherwise be heard.

What does it mean for Proceeds of Crime and Confiscations matters

The Criminal Property Confiscation Act 2000 (WA), its interstate counterparts and the federal Proceeds of Crime Act 2002 all provide that their proceedings are civil, that applicants bear the onus, that issues are to be determined on the balance of probability and that the civil rules of evidence and procedure apply.9 Confiscations and Proceeds of Crime matters clearly have more in common with civil penalty proceedings than they do with criminal proceedings.

Interestingly s 316 Proceeds of Crime Act 2002 (Cth) goes one step further and expressly provides for the making of consent orders without consideration of the matters that the court would otherwise consider in the proceeding. No such provisions were contained in the legislation under consideration in Commonwealth v Fair Work.

I don’t consider there to be any serious doubt that a confiscations authority and a property owner can agree a compromise that includes consent orders for partial forfeiture.

  1. (2014) 253 CLR 58; [2014] HCA 2. []
  2. At [34]. []
  3. At [38]. []
  4. At [40] and [41] their Honours noted the relevant intermediate appellate consideration of the same issue. []
  5. In separate reasons Gageler and Keane JJ at [68] and [79] agreed with the plurality. []
  6. Namely NW Frozen Foods and Mobil Oil. See [48] of the judgment. []
  7. See [28], [57] to [66]. []
  8. At [60]. []
  9. CPCA: s102; POCA: ss 315, 317 []