Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate [2015] HCA 46

Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate [2015] HCA 46

Barbaro v The Queen does not apply to civil penalty proceedings. The practice of receiving and, if appropriate, accepting agreed penalty submissions in civil penalty matters is lawful; the court, while not bound by the parties' submission, may adopt an agreed penalty if satisfied it is appropriate on the evidence and facts. Civil penalty proceedings are distinguishable from criminal proceedings, owing to their civil character, the role of the parties, and the non-retributive deterrent purpose of such penalties.

Parties
Appellant in B36/2015: Commonwealth of Australia; Respondent in B36/2015 and B45/2015: Director, Fair Work Building Industry Inspectorate; Appellant in B45/2015, Respondent in B36/2015: Construction, Forestry, Mining and Energy Union; Appellant in B45/2015, Respondent in B36/2015: Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU); Amici Curiae in B36/2015: C A Moore SC with D M Tucker
Jurisdiction
Australia
Judgment Date
09 December 2015
Procedural Posture
Civil Penalty Appeal / High Court Appeal on Questions of Principle (on Appeal From the Federal Court)
Outcome
Appeal allowed
Legal Topics
Civil Penalties, Procedure – Submissions as to Agreed Penalty, Application of Barbaro V the Queen to Civil Penalty Proceedings
Employment Law Practice and Procedure Civil Penalties Procedure – Submissions as to Agreed Penalty Application of Barbaro V the Queen to Civil Penalty Proceedings

Case Brief

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Parties

Commonwealth of Australia

Appellant in B36/2015

Director, Fair Work Building Industry Inspectorate

Respondent in B36/2015 and B45/2015

Construction, Forestry, Mining and Energy Union

Appellant in B45/2015, Respondent in B36/2015

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU)

Appellant in B45/2015, Respondent in B36/2015

C A Moore SC with D M Tucker

Amici Curiae in B36/2015

Procedural Posture

Civil Penalty Appeal / High Court Appeal on Questions of Principle (on Appeal From the Federal Court)

Legal Issues

  1. 1 Whether submissions as to agreed penalty are permissible in civil penalty proceedings
  2. 2 Whether Barbaro v The Queen applies to civil penalty proceedings under the Building and Construction Industry Improvement Act 2005 (Cth)

Ratio Decidendi

Barbaro v The Queen does not apply to civil penalty proceedings. The practice of receiving and, if appropriate, accepting agreed penalty submissions in civil penalty matters is lawful; the court, while not bound by the parties' submission, may adopt an agreed penalty if satisfied it is appropriate on the evidence and facts. Civil penalty proceedings are distinguishable from criminal proceedings, owing to their civil character, the role of the parties, and the non-retributive deterrent purpose of such penalties.

Court Disposition

Appeal allowed

Orders

  • In each matter, appeal allowed.
  • Set aside paragraph 1 of the order of the Full Court of the Federal Court of Australia made on 1 May 2015.