Before the High Court : Commonwealth v Director, Fair Work Building Industry Inspectorate: The End of Penalty Agreements in Civil Pecuniary Penalty Schemes?

In the upcoming case of Commonwealth v Director, Fair Work Building Industry Inspectorate, the High Court will determine whether submissions as to agreed penalty should be permitted in the context of civil pecuniary penalty proceedings. In this column, we identify three questions that the High Court will consider. First, does a strict distinction exist between civil and criminal proceedings, or do civil penalty proceedings defy neat classifications as one or the other? Second, is a submission on agreed penalty a submission of law, a material fact or an inadmissible and irrelevant expression of opinion? Third, do submissions on agreed penalty undermine the independence and proper role of the court? We argue that, in light of Barbaro v The Queen, it is likely that the Court will overturn existing practice by radically restricting the role of agreed penalties in civil penalty proceedings