Possible High Court showdown over Barbaro

A full bench Federal Court has set the stage for a showdown over whether regulatory or disciplinary bodies can submit on the appropriateness of a particular sentence.

In Barbaro v The Queen [2014] HCA 2 the Court reached the view that in criminal proceedings the prosecution should not nominate the specific sentencing result or the range within which it should fall.

Whilst binding on criminal proceedings, it was a point of contention whether this applied to quasi-criminal proceedings such as disciplinary or administrative matters. Director, Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCAFC 59, or as the much less clunky “the CFMEU case” found that many matters are often mistakenly classified as “civil”, because it is apparent they are not “criminal”.

The Court found that in reality, civil should be viewed as proceedings between private parties and any matters involving the state were bound by similar procedural rules. Citing Legal Services Commissioner v Nomikos [2014] VCAT 305 with approval:

‘Pecuniary penalties are sought by the State against its citizens, acting in and on behalf of the public interest (rather than as a litigant in its own interests). In investigating conduct that can result in a pecuniary penalty, State enforcement bodies are armed with intrusive investigative powers to identify and establish breach.  For the enforcement bodies in question, those powers are the same as, or may in some ways be more profound than, the powers they use in criminal investigations.

The various deals that are often struck between defendants and disciplinary bodies such as ASIC, ATO, AFMA, Legal Services Commissioner etc. are in fact a matter for the Court and it is inappropriate for a state body to comment on the appropriate penalty.

There are converse public policy considerations that point to the benefit of regulatory bodies being able to save time and money by facilitating cheap pleas of guilty, with a real benefit for the defendant, but the obvious flip side is that the Legislature have in fact already accounted for discounts for early pleas and other such items.

In a trifecta for Victoria, CFMEU relies on the Barbaro HC decision in contradiction of Matthew’s v R [2014] VSCA 291 in relation to non-criminal submissions.

It appears inevitable that the decision will go to the High Court and regulators and disciplinarians should be well aware of the possible implications.

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