The Commonwealth
166 At paras 3 - 6 of its written submissions, the Commonwealth submits, concerning the decision in Barbaro that:
properly understood, the decision does not prevent a court from having regard to "proposed" agreements and submissions as to penalty amounts;
the "proper starting point" is to consider the "Parliamentary choice" of pecuniary penalties (and other civil regulatory relief) as the means of securing compliance with the law;
when the reasoning in Barbaro is considered against that statutory background, it can be seen to be inapplicable to civil cases involving the imposition of pecuniary penalties; and
this Court should not establish a principle "along Barbaro lines" to preclude the making of submissions as to appropriate penalty amounts because, to do so would, "undermine Parliament's objective of securing deterrence through pecuniary penalties, would overturn considered judicial practice and would create difficulties in civil regulatory practice and civil proceedings more generally".
167 The main thrust of the Commonwealth's argument is that to apply the decision in Barbaro to this case would be contrary to Parliament's intentions in enacting the BCII Act. One might have expected that such a submission would be supported by references to the relevant provisions of the BCII Act which are said to disclose those intentions. However surprisingly little was said about that topic.
168 Part II of the Commonwealth's submissions is headed "Civil Regulatory Practice and Principles". It extends over more than 20 pages and contains 61 paragraphs. Paragraph 11 is as follows:
The statutory provisions underpinning the civil regulatory regime in the present case, and those administered by other Commonwealth regulators, reveal a Parliamentary intention that:
11.1. a specialist regulator be tasked with securing compliance with provisions intended to protect and advance particular aspects of the public interest relevant to that regulator's functions;
11.2. the regulator be able to secure that compliance by a range of mechanisms, including bringing civil proceedings which will sometimes be an alternative to criminal prosecution;
11.3. in so doing, the regulator must determine the particular objectives it considers to be important in a given matter (eg deterrence, protection, reform, compensation) and then make specific application to the Court for one or more remedies which it considers appropriate to secure those objectives (eg pecuniary penalties, disqualification, injunctions, compensation orders);
11.4. the regulator's pursuit of those remedies thereafter be undertaken by it as a civil litigant in accordance with the ordinary rules, requirements and practices of civil litigation; and
11.5. all of the above occur without preventing the Court from carrying out its discrete function in each case of deciding whether the forms of relief sought should be granted and in what terms.
169 We make five observations concerning those submissions. First, the Commonwealth seems to assume that statutory regulatory regimes take a common form which can be derived from legislation including, but not limited to, the BCII Act, and that such other legislation may guide the Court in considering the parliamentary intention concerning the BCII Act. We doubt the correctness of that proposition. In dealing with the Commonwealth's submissions, we will, at some points, necessarily adopt this generic approach. However, in the end, this case must be decided by reference to the BCII Act, and not to other, unrelated legislation.
170 Secondly, the various propositions are generally unsupported by references to specific provisions of the BCII Act or any other legislation. Thirdly, it seems to be implied in para 11.3 that the regulator, by choosing to seek particular relief, determines the direction which the proceedings will take. In a sense, that may, in theory, be true. However the proceedings will involve proof of the relevant breach or breaches and the Court's consideration of, and determination as to appropriate penal and other orders. The Court may well decide that orders proposed by the regulator are inappropriate. This may lead the regulator to seek different orders from those initially claimed. Provided that procedural fairness is afforded to the respondent, there is no reason why such other relief should not be granted. There is no doubt that the regulator may seek the imposition of a pecuniary penalty. If it were to choose to limit the amount of the penalty sought, it may be arguable that the rules of procedural fairness would limit the order which the Court could make, in which case the penalty imposed might not be that fixed by the Court as the appropriate penalty. We understand it to be accepted that the regulator cannot limit the amount to be awarded by the Court. Hence it would probably be inappropriate for the regulator to seek, in its application, to limit the amount of the penalty sought. We consider that para 11.3 of the submissions says nothing relevant concerning the matters presently under consideration.
171 Fourthly, para 11.4 asserts that after the regulator has commenced proceedings, it conducts them, "as a civil litigant in accordance with the usual rules, requirements and practices of civil litigation". This seems to be inconsistent with the proposition that submissions may contain the regulator's opinions. Finally, it is easy to assert that a regulator's preferred practice does not prevent the Court from performing its duty. However Barbaro is based upon the proposition that to offer an opinion as to sentence or sentencing range may well do so, and may also adversely affect public perceptions of the judicial process.
172 A rather more precise consideration of the relevant terms of the BCII Act appears at para 19 of the submissions as follows:
The central features of the particular statute in question here, [the BCII Act] … are consistent with, and support, the general propositions developed below. Those features, as relevant for present purposes, include:
19.1. It was enacted to achieve public interest regulatory objectives in relation to the building industry through (inter alia) promoting respect for the rule of law, ensuring accountability for unlawful conduct and providing effective investigation and enforcement: see s 3.
19.2. An industry-specific regulator was established (the Australian Building and Construction Commissioner) with a wide range of functions including monitoring and promoting compliance, investigating contraventions, instituting and intervening in proceedings and assisting, representing and educating industry participants: see ss 9-10.
19.3. It created a range of legal obligations, requiring and preventing certain conduct in the context of building industry [sic]: see eg ss 28, 38, 43, 44, 45 and 46.
19.4. It gave the regulator a wide range of powers to investigate and publicise non-compliance (see Chapter 7, Part 2 and s 67) and to bring and intervene in proceedings (see ss 71 to 73).
19.5. It enabled the regulator and other persons to bring civil proceedings to obtain a variety of different forms of relief including injunctions, pecuniary penalties, compensation, and other orders considered to be appropriate: see ss 39 and 49.
19.6. It made provision to ensure that the taking of such civil regulatory action could not prejudice or expose a person in relation to criminal proceedings for the same conduct: see ss 50 and 51.
173 Amongst other helpful suggestions as to how the Court might avoid falling into error, the Commonwealth suggests that we should start with, "the fundamental proposition that the manner in which powers are to be exercised depends upon the construction of the statute conferring the power". We agree. The Commonwealth then makes general observations about the breadth of functions which may be undertaken by regulators in their respective areas of operations. At para 21 the Commonwealth submits that:
Accordingly, when they come to be litigants in civil proceedings, a number of 'characteristics' of civil regulators can be identified as having been provided for by Parliament:
21.1. They are, for the reasons just given, parties with extensive background, experience and specialist expertise in the relevant sphere of activity.
21.2. In some cases regulators are given explicit statutory power to take administrative action which results in similar consequences or burdens as may be imposed by a court in a civil regulatory proceeding. These include, for example, imposing penalties on contraveners, disqualifying persons from directorships, and imposing requirements to rehabilitate wrongdoing. This can be contrasted with the action of finding and punishing criminal guilt, which is an exclusively judicial function (see paragraph 79.1 below).
21.3. Regulators are charged, by Parliament, with securing compliance and are thus explicitly identified as a proper applicant for relief in Court proceedings. Accordingly, their very function in the proceeding is to seek to secure orders and relief to protect the public interest in relation to that area of regulation. Thus, while the interests they seek to advance in the litigation are public not private ones, they are nonetheless required by Parliament to be a party with an active and specific interest in the particular outcome sought.
21.4. Like any party to a civil proceeding, regulators engage and instruct lawyers to act on their behalf. There is no single 'prosecuting' agency which appears for civil regulators. They are rather represented by solicitors and counsel and, at the Commonwealth level, operate under the ordinary arrangements for Commonwealth legal services. Those lawyers conduct the proceedings in accordance with that conventional lawyer/client relationship. While they must, of course, observe all relevant statutory, professional and other obligations, they act at all times for the regulator and under its instructions, rather than providing some more general, free-standing, public role.
21.5. Regulators must themselves observe model litigant obligations. However, suggestions that a civil regulator owes some separate or additional obligation of fairness, or that it owes duties akin to that of a prosecutor, have been questioned by the High Court, which has pointed to difficulties arising in relation to such suggestions.
21.6. While acting as a model litigant, the Commonwealth has the same rights in a civil proceeding as any other civil litigant. Thus Parliament, by choosing to secure public interest objectives through civil rather than criminal processes, can be seen to have intended to place the regulator on a substantially equivalent footing to other civil litigants.
(Footnote references have been omitted.)
174 These general propositions are supported by only limited statutory references. In any event as we have already suggested, generalized references to pecuniary penalty regimes, other than that established by the BCII Act, may be unhelpful. At numerous points in its submissions, the Commonwealth takes this generalized approach. In the interests of brevity, we will not, again, repeat our doubts about its helpfulness. In paras 21.4, 21.5 and 21.6, the Commonwealth asserts that the regulator is in the same position as any other litigant. However this case, at least in part, arises out of the proposition that because of a regulator's duties and experience in performing those duties, it should be permitted to offer opinions in the course of submissions, notwithstanding the absence of any evidentiary basis for such submissions. We discuss this matter below.
175 The Commonwealth submits that Parliament has chosen to establish a pecuniary penalties regime, rather than a system of criminal punishment, in order to utilize civil, rather than criminal procedures. We accept that the use of the word "civil" in the phrase "civil penalty" indicates that the civil standard of proof will apply. We accept that generally, proceedings seeking the imposition of pecuniary penalties are conducted as civil proceedings. However ss 48 and 49 of the BCII Act confer jurisdiction on numerous State and Commonwealth courts. Hence the procedure to be adopted in any application for the imposition of a pecuniary penalty will be the procedure prescribed by the rules of the court in which the proceedings are brought.
176 The Commonwealth submits that by providing for civil regulatory proceedings Parliament engaged ss 37M and 37N of the Federal Court Act. Section 37M(1) provides:
The overarching purpose of the civil practice and procedure provisions is to facilitate the just resolution of disputes:
(a) according to law; and
(b) as quickly, inexpensively and efficiently as possible.
Section 37M(3) provides that the "civil practice and procedure provisions" are to be interpreted and applied so as to promote the overarching purpose. Any power conferred, or duty imposed by any such provision is to be exercised or carried out in the way which best promotes the overarching purpose. The provisions in question are those contained in the Federal Court Rules 2011 and any provision as to the practice and procedure of the Court contained in the Federal Court Act or in any other Act. Section 37N provides that the parties to civil proceedings are to conduct those proceedings in a way which is consistent with the overarching purpose.
177 We make two points about this submission. First, the over-arching purpose includes, rather than overrides the fundamental requirement that proceedings be resolved in accordance with law, in this case, pursuant to s 49 of the BCII Act and any other relevant provisions of that Act. Section 49 is, primarily, a grant of jurisdiction and power. It is not really a provision with respect to the practice and procedure of the Court. Hence any power or duty conferred by it is not affected by s 37M(3). Secondly, we do not understand the parties to point to any provision with respect to practice and procedure which falls for consideration in this case. It is concerned with more important matters.
178 The Commonwealth submits that Parliament has given the Director the responsibility for choosing, in a particular case, appropriate relief from the suite of relief available under the BCII Act. It is said that in the case of a pecuniary penalty, the principal purpose to be achieved is deterrence. The submission then addresses other purposes of punishment, referring to observations made by Lander J in Ponzio (supra) at [93]. We have previously dealt with the Commonwealth's criticism of his Honour's comments.
179 Finally, the Commonwealth identifies, "[a] well-established practice of making submissions as to penalty". It is said that, "Parliament expects civil regulators to play a central role in identifying and pursuing specific relief which they consider desirable and appropriate". Of course, Parliament must accept and expect that courts will deal with matters within their jurisdiction in a way which is judicially appropriate. In the context of the BCII Act, Parliament has done nothing more than confer upon various courts, jurisdiction to impose pecuniary penalties, and authorize the Director to apply for such imposition. We see no statutory authority for extending to the Director, as a party, any role or entitlement beyond those to be fulfilled or enjoyed by any other party to civil proceedings.
180 The suggestion of a special role for a regulator in court proceedings highlights a fundamental difficulty with which the Commonwealth must deal in opposing the application of the decision in Barbaro to pecuniary penalty proceedings under the BCII Act. That decision is based upon a well-established understanding as to the permissible content of submissions in both civil and criminal proceedings. In submissions, counsel addresses the relevant law and the facts as they appear from the evidence. He or she cannot seek to supplement the evidence by opinions, whether they be his or her own, or those of the party for whom he or she appears. Further, the judge can only act upon the law and the evidence. Thus there is no point in offering an opinion. These rules apply to all legal proceedings, civil or criminal. In the end, this proposition underlies the decision in Barbaro.
181 The Commonwealth submits that it is consistent with "this central Parliamentary intention" and long established practice that civil regulators and respondents make submissions as to proposed orders. It further submits that such submissions are not as to range of penalties, but as to, "amounts which, in the submissions of the party, would have appropriate deterrent value, for reasons typically explained in some detail by reference to relevant facts, principles and, to the (often limited) extent relevant, the outcomes in comparable cases". It is said that there are "sound public policy reasons" for the practice, "policy" here meaning, "as a desirable outcome provided for by, or at least rendered available under, the terms of the statutory regimes in question". At para 66 the Commonwealth submits that:
Put shortly, an inability to make such submissions would tend to impede the prospects of settlement of the many civil regulatory cases which currently proceed on an agreed basis. This in turn would result in many more cases going to a contested hearing, placing a significantly greater burden on the resources of the parties and the Court. It would also tie up resources of regulators that would otherwise be available to serve the public through securing greater compliance. Thus the making of submissions as to proposed penalty amounts strongly furthers the underlying Parliamentary purpose of such penalties, that of securing deterrence.
Other reasons for the practice are said to be:
to demonstrate in a "clear and tangible way" the relative seriousness of the misconduct in question;
to simplify the explanation of relevant principles;
that the capacity to make such submissions forms an important part of negotiations and mediation; and
that such a practice assists in ensuring that a respondent receives a "procedurally fair hearing".
These considerations would arguably justify a similar approach in criminal proceedings, although the term "mediation" is not generally used in that context. Such an approach would, of course, be inconsistent with the decision in Barbaro. In any event, a "submission" as to the deterrent effect of a particular penalty is an opinion.
182 To some extent, these submissions assume that application of the decision in Barbaro to pecuniary penalty proceedings will limit the regulator's opportunity to make submissions. This is simply incorrect. The parties are entitled to make submissions as to the relative seriousness of the relevant misconduct and to explain the relevant principles. They may also refer to comparable decisions. The point in Barbaro is that the prosecution may not offer an opinion as to the length of any sentence, or the range within which it should fall. If the reasoning in that case is applicable for present purposes we cannot ignore that reasoning simply because it may make negotiation and mediation easier. The Commonwealth also submits that the making of submissions as to penalty or range will facilitate the provision of procedural fairness to the offenders. We see no reason to doubt that this objective can be observed by other, commonly employed means.
183 The Commonwealth submits that the practice of making submissions as to agreed penalty or range of penalties does not restrict or undermine the independence of the Court's ultimate discretion as to penalty. It is said that where the parties make competing submissions, the Court often accepts neither. This submission says little or nothing about public perceptions of the Court's role or the involvement of the prosecution in fixing the quantum of any penalty. It says nothing about the public interest in the open administration of justice, and it says nothing about the extent to which such submissions may tend to limit the discretion conferred upon the judge as explained in Barbaro. These risks cannot be discounted or dispelled simply by paying lip-service to the principle of judicial independence.
184 The Commonwealth submits that the "central question" arising out of the reasoning in Barbaro is whether the High Court intended that its "observations" be treated as "broad statements of principle" to be applied to the pecuniary penalty regime as well as to criminal sentencing. That proposition misstates the obligation which a court, appellate or otherwise, has concerning the views of an ultimate court of appeal. We do not seek to identify the High Court's intentions. Rather, we consider their Honours' meaning. We agree that judicial reasons must be understood in context. However that does not mean that statements of principle should be taken as only relating to the fact situation under consideration. By definition, a statement of principle has a degree of generality about its operation. Its operation will not be limited to the facts of the case in which it is stated. There are degrees of generality. Whether or not a principle, enunciated in one case, applies in another is a matter of judgment. Its applicability or otherwise is not to be determined by reference to a broad assertion that one case or class of cases is the same as, or different from another case or class. Although we accept that practices applicable in criminal sentencing may not necessarily be applicable to proceedings for the imposition of pecuniary penalties, it does not follow that the principles which underlie the practices adopted in criminal proceedings are irrelevant to the proper practices to be adopted in such proceedings. In the area of penalties, there are many similarities between civil and criminal proceedings. The applicability or otherwise of the decision in Barbaro to the pecuniary penalty regime under the BCII Act can only be determined by identifying and evaluating considerations which militate for and against such application.
185 The Commonwealth submits that, "neither the ratio nor [any] seriously considered dicta in Barbaro require a departure from the Full Court's established approach in the area of pecuniary penalties". We do not consider it to be our role, or that of the parties, to evaluate the High Court's language to determine whether a particular statement has been "seriously considered" or not. We certainly see no aspect of the decision in Barbaro which we would treat as not having been seriously considered. We acknowledge that the decisions in NW Frozen Foods and Mobil have stood for a long time and have been frequently applied. However, prior to the decision in Barbaro it was a wide-spread, and well-established practice for prosecutors to proffer sentencing ranges. See MacNeil-Brown at [50] - [53].
186 At para 76 of the Commonwealth's submissions it is said that if Barbaro prevents a regulator from making submissions as to the appropriate pecuniary penalty, it "would substantially undermine the capacity of regulators to protect the public interest", thereby undermining, "the very parliamentary purposes evidenced by the civil regulatory provisions". We have previously discussed the "evidence" said to support these submissions. We are inclined to conclude that it contains a certain amount of hyperbole. In any event, in determining the appropriate penalty to be imposed, the Court is responsible for protection of the public interest.
187 At paras 77 - 82, the Commonwealth makes various assertions about alleged differences between criminal and civil proceedings. We acknowledge that criminal proceedings are not in all respects the same as proceedings in which a regulator seeks the imposition of a pecuniary penalty. However we do not see that a list of alleged differences is of much assistance when it is unaccompanied by any consideration of similarities, and when there is no explanation of the ways in which identified similarities and differences militate in favour of, or against the applicability of principles developed in one area to the other. At para 78.3 of its submissions, the Commonwealth seeks to distinguish between criminal and civil proceedings upon the basis that in criminal proceedings, the prosecution must establish criminal "fault". It submits that civil penalty provisions, "usually carry no such underlying requirement". At its base, this submission really goes no further than saying that in civil proceedings, criminal guilt need not be proven. In that form, the proposition is virtually meaningless.
188 However it may be that the Commonwealth is referring to the distinction between "physical elements" and "fault elements" which are aspects of criminal liability under the Commonwealth Criminal Code. The concept of "fault element" reflects the common law notion of mens rea. Fault elements include intention, knowledge, recklessness and negligence. The Commonwealth may be submitting that in pecuniary penalty proceedings, the regulator need not usually prove such matters. The submission overlooks the fact that in the present proceedings, the Director relies upon s 48(2)(c) of the BCII Act. In Yorke v Lucas (1985) 158 CLR 661 at 668 - 671, the majority of the High Court (Mason ACJ, Wilson, Deane and Dawson JJ) held, concerning a similar provision, that it, "requires a party to a contravention to be an intentional participant, the necessary intent being based upon knowledge of the essential elements of the contravention". Reliance upon provisions such as s 48(2) is quite common in pecuniary penalty proceedings. We do not see how para 78.3 of the Commonwealth's submissions can support its submission that the decision in Barbaro should not be applied in these proceedings.
189 In para 79, the Commonwealth makes numerous, quite obvious statements concerning aspects of criminal proceedings, concluding that a judge must choose the appropriate penalty from amongst a wide range of available options. It implies that the civil regulator limits the available choice by the way in which it frames its prayer for relief. We have previously dealt with this matter. Further, we are concerned with the procedure to be followed in cases in which the regulator has chosen to seek pecuniary penalties. It is irrelevant that the regulator may have chosen not to seek such penalties.
190 Paragraph 79.5 confuses the regulator's right to seek a pecuniary penalty and the Court's duty to fix the amount of such penalty. By conferring upon the Court the jurisdiction to impose pecuniary penalties, Parliament chose not to confer that power on the regulator, or accepted that it could not do so. In the absence of any provision to the contrary, we must assume that Parliament intended that the regulator would be in the same position as any other litigant. The regulator may choose the remedies which it seeks, but the Court must, in the exercise of its discretion, decide whether to grant such relief. In particular, it must fix the amount of any pecuniary penalty to be imposed.
191 At para 80 the Commonwealth suggests that the prosecution's role in criminal proceedings is a basis for distinguishing such proceedings from proceedings for the imposition of pecuniary penalties. As we have previously observed the decision in Barbaro arose in the context of a submission concerning the prosecution's duty, but the decision was to the effect that making a submission as to range or specific outcome was no part of that duty. The reason for this conclusion was that such a submission would be an expression of opinion. The High Court also identified other policy considerations which make such a submission undesirable. We see nothing in the majority's reasoning which would limit its relevance to prosecution submissions as to sentence, or exclude its application to cases in which counsel seeks to advance an opinion as to the exercise of a discretion to impose a penalty.
192 It is submitted, correctly, that in Barbaro the High Court was primarily concerned with submissions as to "range". It is also correct to say that at least part of the High Court's concern arose out of the perceived difficulty in formulating a range which takes account of the various relevant considerations, and of explaining how that process has been performed in a particular case. We agree that submissions may be made as to the orders which are appropriate in a particular case. However we consider that where a penalty is sought, the process involved in fixing the amount of the penalty involves the same instinctive synthesis as that which occurs in the sentencing process.
193 Intuitively, one might think that offering a view as to the precise outcome is more likely to be unacceptable than the suggestion of a range. On the other hand, it might be argued that whilst a range prescribes an upper and lower limit, thus restricting the exercise of the discretion, a specific figure may be either accepted or rejected. If rejected, then the matter is at large. However such an approach would be somewhat unrealistic. If one side proposes a specific figure, it seems likely that, absent agreement, the other side will also do so. One figure will be higher than the other, so that a range will emerge. If the penalty imposed is beyond the range so set, appeal would seem likely. Further, the Court might well be seen as considering the appropriateness of the suggested penalties rather than fixing the penalty. It is true that, as was observed in NW Frozen Foods, there is no one correct figure for a pecuniary penalty. Nor, in the absence of any mandatory sentence, is there any one correct sentence in criminal proceedings. Those propositions do not lead to the conclusion that the parties, or either of them, should be able effectively to limit the bounds within which the penalty or sentence should fall, or nominate a penalty or sentence for the Court's consideration. It is the imposition of the Court's view as to the appropriate penalty which the BCII Act authorizes.
194 Finally, as we have previously observed, the majority in Barbaro at [39] clearly excluded both submissions as to range and as to ultimate outcome. We see no reason for reading that paragraph as applying only to submissions as to range, as was suggested by the Commonwealth at paras 85 and 86 of its submissions.
195 At paras 88 - 98, the Commonwealth submits that the effect of the decision in Barbaro "should not be extended". Concerning those submissions, we observe that:
As to para 88, the similarities between the sentencing process and that involved in imposing a pecuniary penalty indicate that the majority's view in Barbaro should be adopted for present purposes.
As to para 89, we do not propose to alter any practice of the Court, other than by reference to the decision in Barbaro.
As to para 90, we find in the BCII Act, no "strong Parliamentary intention" as to the role of the Director in proceedings for the imposition of a pecuniary penalty, other than as a party. Nor do we find any indication that a particular procedure is to be applied, or not applied in proceedings conducted under the BCII Act.
As to para 91, we do not propose to depart from existing practices unless led to the conclusion that we should, primarily by reference to the decision in Barbaro, which decision, itself, has led to the displacement of a well-established practice in sentencing proceedings, if not in Victoria, then in other jurisdictions.
As to paras 92, 93 and 94, which deal with the alleged inconvenience and cost of any change in practice, such submissions could also be made concerning criminal proceedings. Whilst acknowledging that there may be some temporary inconvenience in any change of practice, we doubt whether it will be as disruptive as is suggested.
As to para 95, if the regulator's views are relevant, presumably because they are matters of expert opinion, they should be put before the Court in the form of evidence, by consent or otherwise.
As to para 96, the limitation is upon offering opinions and, perhaps more broadly, making submissions which are not based on the evidence. The capacity of a professional advocate should not be under-estimated or under-utilized. When these matters are kept in mind, the Commonwealth's submission has no substance.
As to para 97, we again suspect a touch of hyperbole. An award of compensation for damages will reflect evidence of loss. The duration of any restraining injunction or disqualification will depend upon the purpose to be served, such matters no doubt having been addressed in the relevant evidence.
The reference to costs is a little delphic. Costs are awarded by way of reimbursement, the basis for calculation generally depending upon the conduct of the proceeding.
As to para 98, the Commonwealth assumes that a submission need not be based on evidence, and that any opinion expressed in submissions may be weighed by reference to the quality and comprehensiveness of those submissions. Neither assumption is correct. There is, of course, a difference between the expression of an opinion and the identification of inferences which a court might draw from the available evidence.
196 At paras 99 - 107 the Commonwealth deals with cases in which the decision in Barbaro has been considered. We deal with those cases elsewhere in these reasons.
197 We should point out that it is not clear whether, for present purposes, the Commonwealth distinguishes between submissions as to an agreed penalty and a penalty proposed by the regulator. Nor is it clear whether it distinguishes between such submissions and submissions as to a range. We are also unsure as to whether the Commonwealth submits that a respondent, as well as the regulator, may also make submissions as to such matters.
198 There is another difficulty inherent in the Commonwealth's submissions. The regulator's suggested role would result in the development of sentencing information which would be specific to the pecuniary penalty regime in question, and entirely independent of other pecuniary penalty regimes and criminal sentencing. In practice, there will be many occasions on which parallels can be drawn between unlawful conduct in respect of which a pecuniary penalty is to be imposed, and similar conduct which has been previously punished under other pecuniary penalty regimes or the criminal law. The public might reasonably expect that such conduct would be treated consistently, regardless of the penal regime under which the misconduct is to be punished. The Court, but not an individual regulator, will be well placed to deal with this potential problem. It highlights the need to avoid the development of different ranges of penalties, based on agreements between regulators and offenders, rather than penalties imposed by the courts.