Agreed Civil Penalties & Barbaro v The Queen

The High Court looks set to decide whether the principles set out in Barbaro apply to agreed civil penalties after granting the Commonwealth special leave earlier today.

The decision appealed from is Director, Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCAFC 59. The Commonwealth had leave to intervene in those proceedings before the Full Federal Court.

In that matter the Full Federal Court concluded that the principles in Barbaro v The Queen applied in the context of civil penalty provisions. This had a major impact in relation to civil penalty proceedings under the Fair Work Act and also negotiated settlements between regulators and professional people.

It will be interesting to see whether the High Court limits the principles in Barbaro to a criminal context and in turn permits civil regulators to resume the practice of agreeing penalties with persons or entities who contravene civil penalty provisions.

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