Settlement practices in Australia: The
distinction between civil and criminal penalties
Linda Evans and Alexander Vial
(2016) 44 Australian Business Law Review 300
The High Court’s recent decisions in Barbaro v The Queen (2014) 253 CLR 58;  HCA 2; and Commonwealth v Director, Fair Work Building Industry Inspectorate (2015) 90 ALJR 113;  HCA 46; do not sit comfortably with Australia’s parallel criminal and civil cartel provisions in Pt IV of the Competition and Consumer Act 2010 (Cth). On the one hand, the Australian Competition and Consumer Commission is able to negotiate a settlement with a party to a cartel in civil penalty proceedings and then make application for a resolution order to give effect to the agreement. In such circumstances, it will be for the judge to decide whether the agreed civil penalty is appropriate in the circumstances and, if it is, a resolution order will be made. On the other hand, the Commonwealth Director of Public Prosecutions is impeded in reaching settlements with a party to a cartel – potentially for the same conduct – because, on a strict reading of Barbaro, it is unlawful for the Director to put to the judge a numerical statement on what the sentence should be. This article explores some of the bases for the distinction, considers some of the practical consequences of the distinction, and questions the underlying principles.
Not freely available online