Civil Penatlies: 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 (9 December 2015), Cialis India Pharmacy.


Civil Penatlies: 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 (9 December 2015)

Written by PCC Lawyers * on 22 December 2015 . Posted in Recent Cases

Regulators in this case sought penalties of up to $150,000 from two unions following breaches of the Building and Construction Industry Improvement Act 2005 (Cth). The Full Federal Court had applied the High Court’s decision in Barbara v The Queen, in ruling that the penalty must be fixed by the court, without the assistance of a range of penalties agreed or put forward by the parties.

The High Court examined the applicability of its own ruling in Barbara, which concerned criminal sentencing, and held that different public policy considerations applied in respect of civil penalty proceedings. The ruling in Barbara was not overruled, but identified as being ‘grounded’ in the special nature of criminal proceedings as they have developed historically.

The purpose of criminal punishment consists of three elements: deterrence, both general and individual, retribution and rehabilitation. Balancing these elements in a criminal proceeding was a uniquely judicial function. In contrast, civil penalties are a method of economic regulation of business activity. They are not concerned with retribution or rehabilitation.

In contrast, allowing parties to agree to a range of penalties offered a greater level of predictability of outcome for litigants. This would encourage corporations to acknowledge contraventions and cooperate with regulators, which in turn assists in avoiding lengthy and complex litigation. This frees the courts to deal with other matters, and the investigation officers to turn to other areas of investigation.

In the civil context, the High Court held that the parties were free to propose a penalty, but the court must satisfy itself as to whether the amount submitted was appropriate.

* PCC Lawyers are a team of employment practitioners based in Sydney, with many years of combined knowledge and experience in workplace law, industrial relations, workplace investigations and training. They provide a high standard of excellence and an exceptional level of personal service to a variety of clients in the Sydney metropolitan area, Central Coast, regional NSW and interstate.

News Centre

Common themes

  • Unfair Dismissal, 46
  • Fair Work Commission, 25
  • Bullying, 24
  • employment contract 21
  • Fair Work Act 2009 (Cth) 15
  • termination 12
  • Discrimination, 12
  • Misconduct, 11
  • Sexual Harassment, 9
  • Breach of Contract, 8
  • adverse action, 8
  • FairWork Commission 8
  • Modern Awards, 7
  • industrial law 6
  • Contract, 6
  • Harassment, 6
  • Annual Leave, 6
  • Anti-bullying order, 5
  • Penalty rates, 5
  • Performance Management, 4

Subscribe to our newsletter and receive a free copy of the 2017 Edition of our E-Book

An Employer’s Guide to Australian Employment Law

Recent Cases

Liability limited by a scheme approved under Professional Standards Legislation