Does the punishment need to fit the crime when sentencing for civil penalties?


In Australian Building and Construction Commissioner v Pattinson & Anor [2022] HCA 13, the High Court found that when sentencing for breaches of civil penalty provisions, the principle of proportionality, a well-recognised sentencing constraint in criminal law, has no part to play. The civil penalty imposed may therefore be disproportionate to the nature, gravity and seriousness of the contraventions in question. The High Court’s decision to depart from the criminal law approach was said to be justified because proportionality in a retributive sense was inconsistent with deterrence, which is the primary objective of civil penalties.  The ruling sees the resolution of an issue that had been the subject of conflicting decisions in the Federal Court.  It has immediate and obvious ramifications for repeat offenders of workplace laws, such as the CFMMEU which was the contravener in this particular case, but is that the extent of its reach?

Rachel Doyle SC, Matthew Follett and Ben Bromberg are three counsel who appeared in ABCC v Pattinson at various stages throughout its path to the High Court and will present on the case. They will track its path through the Federal Court, recount the competing arguments presented by the parties and examine the rationale that led to this defining decision. There will now be a new sentencing dynamic in the industrial relations realm and in other fields where civil penalties play a prominent role, such as competition and corporate law.  

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