The Law of Civil Penalties

Australia Title

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.

table of content

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