The Law of Civil Penalties By Kayis, Gluer & Walpole (eds) (Federation Press, 2023)

Michael Hodge KC

This is an interesting and strong collection of fifteen essays that arrives at a peculiar point for the law of civil penalties in Australia. The decision of the High Court last year in ABCC v Pattinson (2022) 274 CLR 450 is regarded as clarifying by some and baffling and with anomalous consequences by others. The majority in Pattinson reaffirmed that the primary if not sole purpose of civil penalties is deterrence and did away with the proposition that a penalty imposed should be proportionate to the objective seriousness of the conduct constituting the contravention (under that disavowed notion of proportionality, only the most serious contravention would attract the maximum penalty). The dissent of Justice Edelman exposed some of the problematic aspects of this approach.

Pattinson necessarily dominates the collection; it is referenced in every essay and almost half of them seek at some stage to grapple with it substantively. That reflects the reality of practice in relation to civil penalties since Pattinson: dialogue between regulator and respondent in settlement negotiations and between the bench and the bar in penalty hearings is frequently concerned with what the majority said and what the consequences of those reasons might be.

The collection is divided into three parts. Part I contains seven essays addressing topics of general application to civil penalties in Australia. Part II also contains seven essays, each concerned with civil penalties in a specific sphere of regulation. There is only one essay in Part III, an intentionally provocative essay by Glenn Owbridge PSM and Nicholas Felstead suggesting the use of civil penalties to improve the standard of political conduct in Australia.

The essays that wrestle with aspects of Pattinson substantively are mostly very good. 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.

Other essays offer careful consideration of particular aspects of civil penalties either of general application (agreed penalties; regulator’s choices in bringing civil penalty proceedings; and accessorial liability) or specific spheres of regulation (including the Privacy Act, consumer protection, environmental regulation, and industrial law). That consideration of civil penalty issues in different spheres is worthwhile not simply because it is interesting to see at what point different areas of practice have arrived or are expected to arrive, but also as prompts for analogical reasoning. 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

New Chambers