Stamping out rubber-stamped penalties? Determining an appropriate judicial response to agreed penalties in civil penalty settlements
(2015) 43 Australian Business Law Review 48
This article examines the role of judges in relation to penalties that regulators and defendants negotiate and present to a court in a civil penalty settlement for breaches of competition and corporate law. The "favoured" Federal Court approach states that courts will accept a proposed penalty if it falls within the "permissible range" of a given case. This has recently been "challenged" by the Victorian Supreme Court of Appeal in its decision of Australian Securities and Investments Commission v Ingleby: the court called for greater judicial participation in the penalty determination process by requiring judges to treat agreed penalties as mere submissions only. The nature of judicial independence and civil penalties are explored, and an approach for judges that optimally balances the just and expedient resolution of civil penalty cases is proposed.
Not freely available online