3.1 The purpose of this Chapter is to canvass the principles which should govern statutory provisions which impose penalties. In the context of legislation such as the Productivity Commission Bill 1996, there are a number of principles which relate to penalties generally and others which relate specifically to the penalty of imprisonment. These principles are not always easily reconciled.

Penalties should be fair and appropriate for the particular offence

3.2 It is self evident that penalties should be fair and appropriate for each particular offence. Fairness is an expansive concept. Factors to be taken into account when deciding whether a penalty is fair or not include whether what it seeks to achieve is punishment or compliance or both; whether the action for which the person is being penalised has claimed a victim; whether the offence is one of strict liability or can only be committed with intent; and whether there is a prevalence of the behaviour being dealt with.

3.3 The Commonwealth holds that penalties should be appropriate. The Crimes Act 1914 states as a general principle that sentencing courts “must impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence”. [1] A similar principle applies to the setting of penalties, which represent one of the few forms of guidance provided by the Parliament for sentencers. [2]

3.4 There is no necessity that every apparently similar offence should attract exactly the same penalty. [3] Notwithstanding the need for consistency noted below, offences which appear similar in form may attract different penalties because of the context in which those offences operate. Parliament may consider that refusing to provide information to bodies such as the National Crime Authority or the Australian Securities Commission may constitute a more serious offence than failing to provide information to the Productivity Commission. Failing to provide information may itself constitute a less serious offence than providing false information.

3.5 Therefore, in order to ensure that a penalty is appropriate for an offence, it may be preferable that a range of maximum penalties be developed, both for offences within a particular Act, and for apparently similar offences across a number of Acts. [4] It may also be desirable that this range of penalties should provide for continuing offences (for example, the penalty imposed for a failure to provide information under the Census and Statistics Act 1905 is a daily maximum fine of $100). [5]

3.6 Another aspect of appropriateness is that penalties should reflect current attitudes and conditions and accord with the normal sentencing practice of the courts. [6]. Penalties should be reviewed periodically to ensure that they remain fair and appropriate in current circumstances. As the UK Advisory Council on the Penal System observed in 1978 in discussing penalties in that jurisdiction , “the pattern of maximum penalties has been governed by historical accident and not by any rational penal or sentencing policy”. [7]

Penalties are maximum penalties

3.7 Under Commonwealth criminal law policy, courts are provided with a general sentencing discretion. As a policy matter, minimum sentences are rarely included in legislation, and those penalties expressed in an Act are always maximum penalties rather than set penalties. [8] As such, the full penalty expressed in any particular provision of an Act will only rarely be imposed, and is made available for the worst examples of a particular offence:

Penalties should be consistent

3.8 Consistency is the main aim of criminal law policy when determining penalties. [10] This is usually expressed in the principle: like penalties for like offences. To ensure consistency, the Attorney-General's Department scrutinises proposed offence provisions:

3.9 The Department told the Committee that the penalty provisions in the Bill were within the range of penalties normally imposed for such offences.

Penalties imposed by the Bill are coercive rather than punitive

3.10 The penalties imposed by the Bill are, ultimately, designed to ensure that the Productivity Commission will operate effectively:

3.11 This poses some practical difficulties. A penalty of a severity suitable to coerce BHP or the National Australia Bank into compliance under the Bill may appear “horrendous” to others potentially affected, such as small family businesses involved in the tourist industry, who remain theoretically liable in the same way. [13]

3.12 There is a need, here, to have regard to the various objectives of punishment (which are normally seen as deterrence (both general and specific); retribution; rehabilitation; incapacitation; denunciation; restitution and wilful default). [14]

3.13 The most relevant of these to the penalty provisions in the Bill are clearly deterrence (the penalty imposed should dissuade the offender from re-offending, and should deter others from offending at all) and, to some extent, denunciation (the penalty imposed should act as a symbolic statement of society's view of the seriousness of the offence).

3.14 The Committee was advised that the penalty provisions in the Industry Commission Act 1989 (or its predecessors) had never been formally applied. However, their very existence might simply have provided sufficient general deterrence. As the Industry Commission itself continued:

3.15 The degree to which the penalties provide an appropriate `symbolic statement' of society's view of the seriousness of the offences is canvassed above.

Penalties are imposed by a court

3.16 It should be noted that the penalties under the Bill will be imposed by a court and not by the Productivity Commission itself.

Imprisonment should be a punishment of last resort

3.17 In 1988, the Australian Law Reform Commission (ALRC) produced a report on Sentencing. Having previously referred to the principle of “economy in the use of imprisonment”, [16] the ALRC went on to observe that:

3.18 The ALRC also stated that consideration should be given to eliminating imprisonment as a sanction for some offences:

Imprisonment can only apply to individuals

3.19 A gaol sentence cannot, as a matter of fact, be applicable to a corporation. It might be argued, therefore, that, in relation to legislation that is directed principally at ensuring the compliance of corporations, it might be more appropriate that the penalty provisions focus on corporate liability and provide for a significant monetary penalty.

Practical considerations govern specified terms of imprisonment

3.20 The Committee was told that, for a number of essentially practical reasons, as a matter of criminal law policy the minimum `base-level' sentence that is now included in statutes (not necessarily that is imposed) is 6 months. If an appropriate sentence falls between 6 months and 3 months, then it is better satisfied by a pecuniary penalty:

3.21 It is against these principles, as well as the comparative penalties set out in Chapter 2, that conclusions about the penalty provisions in the Bill and comparable legislation should be drawn.


[1] Crimes Act 1914, s 16A(1).

[2] ALRC, Sentencing of Federal Offenders, Interim Report, Report No 15, (1980), para 185.

[3] Transcript of Evidence, p 15 (Mr C Meaney).

[4] Transcript of Evidence, p 10 (Dr R Smith).

[5] Census and Statistics Act 1905, s 14. See also Commonwealth Electoral Act 1918, s 315(8), where provision is also made for a continuing daily penalty of $100.

[6] ALRC, Sentencing of Federal Offenders, Interim Report, Report No 15, (1980), para 194..

[7] Home Office, Sentences of Imprisonment: A Review of Maximum Penalties, Report of the Advisory Council on the Penal System, HMSO, London (1978), para 63.

[8] Crimes Act 1914, s 4D.

[9] Transcript of Evidence, pp 5-6 (Mr C Meaney).

[10] Transcript of Evidence, p 5 (Mr C Meaney).

[11] Joint Submission, p 5.

[12] Transcript of Evidence, p 12 (Dr R Smith).

[13] Transcript of Evidence, p 16 (Mr C Meaney).

[14] Joint Submission, p 12.

[15] Joint Submission, p 5.

[16] ALRC, Sentencing of Federal Offenders, Interim Report, Report No 15, (1980), para 185.

[17] See also Stewart v Collins (1992) 58 SASR 291: courts should strive to find sentences which will keep people out of prison if that is possible. The courts have said that “serious frauds on the revenue will result in custodial sentences … [which] will include a period actually be served”: R v Whitnall (1993) 42 FCR 512. However, certain mitigating circumstances may see even such sentences wholly suspended: DPP v Carter [1998] VR 601.

[18] ALRC, Sentencing, Report No 44, (1988), paras 40-41.

[19] ALRC, Sentencing, Report No 44, (1988), para 59.

[20] Transcript of Evidence, p 14 (Mr C Meaney).