A Nail-Biting Finish to a (Civil) Penalty Shootout: Commonwealth v Director, Fair Work Building Industry Inspectorate; CFMEU v Director, Fair Work Building Industry Inspectorate

In July 2015, the common occurrence of regulator and litigant making joint submissions regarding an appropriate range of civil penalties was ruled unlawful by the Full Court of the Federal Court. This was on the basis of the High Court’s decision in Barbaro v The Queen, where submissions regarding an appropriate range of sentences were ruled to be inadmissible opinion. In December 2015, the High Court overturned this decision and restored the status quo. This note considers the decisions of the Full Court and High Court and the two issues in greatest contention: whether principles of criminal law should be analogised to civil penalty proceedings; and whether the practice of joint penalty submissions is preferable as a matter of public policy. In particular, this note is concerned that the High Court failed to adequately address the varied criticisms raised against the practice. It considers the charge that courts merely ‘rubber-stamp’ the settled positions of the parties and proposes some steps that should be taken to address this issue.