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High Court decision - Civil Penalties

Recently, three members of Banco Chambers appeared in the High Court in an appeal to determine whether the decision of the High Court in Barbaro v R applies in the civil penalty context to prohibit the court from receiving a joint submission with an agreed penalty, or indeed any submission from a regulator which suggests a penalty figure. The decision of the Full Court of the Federal Court, which was under appeal, overturned the long standing practice of joint submissions with agreed penalties in civil penalty proceedings.

The Solicitor-General, Justin Gleeson SC, appeared for the Commonwealth with Ruth Higgins and Tim Begbie. Cameron Moore SC and Danielle Tucker appeared in the role of amici curiae.

The high Court handed down its decision on 9 December 2015, allowing the appeal and finding that the decision in Barbaro v R does not apply to civil penalty proceedings, and a court is not precluded from receiving and, if appropriate, accepting an agreed penalty submission. The judgment can be accessed here: