Civil penalties play a central role in regulation in Australia. Since the first civil penalty provisions were enacted in Australia in 1904, there has been an ever-developing corpus of cases relating to the imposition of civil penalties alongside the increasing enactment and use of civil penalty provisions. The past decade has seen three landmark decisions of the High Court of Australia directed at the fundamental principles of the law of civil penalties.
This collection of essays considers the purpose of civil penalties, the principles underpinning their imposition, and their deployment in different areas of the law as important tools of regulation and enforcement. The collection features a variety of different perspectives – judges, barristers, solicitors, academics, regulators, policy-makers and NGOs – from which it examines the doctrine of the law of civil penalties and reflects upon potential further development in this critical area of regulatory law and practice.
Foreword
The Hon Robert French AC
Introduction
Deniz Kayis, Eloise Gluer and Samuel Walpole
List of Contributors
Table of Acronyms
Table of Cases
Table of Statutes
Part 1 – Purpose, Methodology and Principles
1. The Purpose of Civil Penalties (Or, “The Road to Deterrence”)
Tim Begbie KC
2. What’s in the Box? Instinctive Synthesis in the Determination of Civil Penalties
Justice Robert Bromwich and Anna Holtby
3. Proportionality by Another Name in the Imposition of Civil Penalties
Tim Game SC and Surya Palaniappan
4. Agreed Penalties and the Court’s Discretion
Justice Michael O’Bryan and Alice Lloyd
5. Course of Conduct and Totality in Civil Penalties
Justin Gleeson SC and Kunal Sharma
6. Regulators’ Enforcement Discretions and Civil Penalties
Professor Pamela Hanrahan
7. What Must an Accessory Know? Determining the Limits of Accessorial Liability under Civil Penalty Regimes
Sarida Derrington
Part 2 – Civil Penalties in Different Spheres of Regulation
8. Civil Penalties, Company Directors and the Penalty Privilege
Dr Vicky Comino
9. Pecuniary Penalties under the Privacy Act: Damage and Deterrence
Dr Katharine Kemp and Melissa Camp
10. Deterring Homo Economicus: Civil Penalties in Competition Law
Dr Ruth C A Higgins SC
11. Civil Penalties and Other Civil Remedies in the Consumer Law Context
Deb Mayall
12. Civil Penalties in the Financial Services Sector
Nicholas Simoes da Silva and Matt Corrigan
13. Civil Penalties in Federal Environmental Regulation
Anna Reynolds, Thomas Webb, Oscar Luke and Matt Floro
14. Civil Penalties in Industrial Law
Philip Boncardo and Ben Bromberg
Part 3 – The Future of Civil Penalties
15. The Next Chapter: Civil Penalties as a Tool to Improve Political Conduct in Australia
Glenn Owbridge PSM and Nicholas Felstead
Index
Read the Foreword by The Hon Robert French AC from The Law of Civil Penalties
In conclusion, to echo what was said in the foreword by Hon Robert French AC, responsible for the list of facts and circumstances relevant to civil penalty determination known as the “French Factors”, the collection is a timely and valuable publication. The editors and contributors have covered a breadth of recent and important developments in the law of civil penalties that are deserving of greater academic attention. The collection is recommended reading for anyone with an interest in the law of civil penalties. Read full review…
Nicholas Felstead, Australian Business Law Review, 52 (2024)
This is an interesting and strong collection of fifteen essays that arrives at a peculiar point for the law of civil penalties in Australia …
… Three were particularly stimulating in their consideration of where Australia is at with civil penalties: ‘What’s in the Box? Instinctive Synthesis in the Determination of Civil Penalties’ by Justice Robert Bromwich and Anna Holtby; ‘Proportionality by Another Name in the Imposition of Civil Penalties’ by Tim Game SC and Surya Palaniappan; and ‘Course of Conduct and Totality in Civil Penalties’ by Justin Gleeson SC and Kunal Sharma. Each of those essays is engaging and articulately identifies aspects of the current approach to civil penalties, given the primacy of deterrence, that deserves reflection. In addition, Ruth Higgins SC, in her essay on civil penalties in competition law, deals with both specific and general deterrence as part of a thoughtful and nuanced blending of economic theory and moral philosophy into an analysis of Pattinson in the context of Part IV contraventions.
…This is not a textbook and the authors seek to make an argument rather than engage in a taxonomic exercise. That is a strength. The further development of the law in Australia in relation to civil penalties will be well served by this collection of many readable and stimulating contributions on the state of the law.
Michael Hodge KC, Bar News, Summer 2023
