Remarks upon the launch of Civil Penalties in Australia
Federal Court of Australia, Melbourne
It gives me great pleasure to speak at the launch of Civil Penalties in Australia[2] by Matthew Peckham, Cam Truong KC, Ian Latham and Amanda Storey. The book is thoroughly researched, clearly expressed and of immense practical value for practitioners and Judges alike. The authors are all barristers – at either the Victorian Bar or the New South Wales Bar – and their professional experience informs their treatment of this important subject. The book is well written and of a high standard, and I congratulate the authors on their achievement in bringing this project to fruition.
The subject of civil penalties has, to date, generally been dealt with in a piecemeal fashion in textbooks on civil procedure or on particular subject-matter areas, such as employment law, consumer law, competition law and corporations law.[3] Civil Penalties in Australia is a comprehensive textbook on the subject of civil penalties, bringing together the relevant case law and principles, whether developed in the context of one regime or another. That the principles are generally applicable across the board is apparent when one considers some of the recent High Court judgments relating to civil penalties.[4]
The structure of the book is clear and logical. After an introductory chapter discussing some important principles, and a chapter outlining the major civil penalty regimes, the book has a chapter on each of the following topics:
- statutory investigations (chapter 3);
- the liability phase of a civil penalty proceeding (chapter 4);
- the penalty phase of such a proceeding (chapter 5);
- relief other than monetary penalties (chapter 6);
- evidentiary issues in civil penalty proceedings (chapter 7);
- infringement notices (chapter 8);
- attributing conduct and liability (chapter 9); and
- private litigation and civil penalty proceedings (chapter 10).
The book will be of great utility for lawyers who practice in the area of civil penalties, no matter how experienced, because it identifies all of the cases on a particular issue and contains a clear, brief discussion of the key cases.
For example, an issue of some complexity that arises not infrequently in the context of civil penalty proceedings is the privilege against self-exposure to a penalty. The topic is introduced at the level of principle in Chapter 1,[5] and then considered in detail in Chapter 4 (the chapter concerned with the Liability Phase).[6] At the end of that chapter there is a helpful table that summarises the operation of the penalty privilege in relation to each of the key procedural steps in a trial.[7]
The authors also discuss and explain the key developments in this area of law. In particular, the authors discuss the issue that emerged around 2014-2015 as to whether the court could receive agreed proposed penalties. This was a significant issue after the High Court decided Barbaro v The Queen, which held in a criminal context that the practice of inviting prosecution submissions on the available range for sentencing should not be followed. In the civil penalty context, the issue was resolved by the High Court in Commonwealth v Director, Fair Work Building Industry Inspectorate,[8] known as the Agreed Penalties Case, with the High Court holding that the court can receive and, if appropriate, accept, submissions from the parties on a proposed agreed penalty.[9]
A more recent, important development in this area is the judgment of the High Court in Australian Building and Construction Commissioner v Pattinson.[10] As the authors write, in this case “the High Court again emphasised the primacy of deterrence, and sharpened yet further the distinctions between civil penalties and criminal punishment”. [11]
In the chapter on the Penalty Phase, the authors set out all of the factors that may be taken into account in determining the appropriate penalty and discuss each of them. As you know, these factors are often referred to as the “French factors”. I can think of many instances where a case name is used as a shorthand reference for the doctrine or principle it stated or established. But I cannot think of another example of a Judge’s name being used in this way. However, that is surely appropriate, given the contribution that Justice French – later, of course, Chief Justice French – made in this area of law. Fittingly, the authors describe his Honour’s judgment in Trade Practices Commissioner v CSR Ltd[12] - decided in 1991 – as “arguably the single most influential decision on civil penalties”.[13]
To conclude, I can do no better than quoting from the foreword by Justice Edelman. His Honour describes this as an “outstanding work” and writes that the authors have provided a “beautifully structured, clear, and comprehensive work”. Justice Edelman writes that Civil Penalties in Australia is “an invaluable work that will be of enormous utility to any student, practitioner or judge” who seeks to navigate this area.
Once again, I congratulate the authors on their work.
[1] Judge, Federal Court of Australia.
[2] Civil Penalties in Australia (LexisNexis, Australia, 2025) (Civil Penalties).
[3] See also Kayis, D, Gluer, E, and Walpole, S (eds), The Law of Civil Penalties (Federation Press, NSW, 2023).
[4] See, eg, Commonwealth v Director, Fair Work Building Industry Inspectorate (2015) 258 CLR 482. Although decided in the field of employment law, the principles are of general application.
[5] Civil Penalties, [1.66]-[1.67], [1.120]-[1.157].
[6] See, eg, [4.34]-[4.36] (in relation to concise statements), [4.41]-[4.54] (in relation to pleadings).
[7] Civil Penalties, [4.199].
[8] (2015) 258 CLR 482.
[9] See the discussion in Civil Penalties, [1.58]-[1.64]. See also [5.201]-[5.220].
[10] (2022) 274 CLR 450.
[11] Civil Penalties, [1.47].
[12] (1991) ATPR 41-076; [1990] FCA 521.
[13] Civil Penalties, [5.10].
