Civil penalties

AER v Pelican Point Ltd [2023] FCA 1110

A regulator sought declarations that Pelican had under-reported the electricity it could produce on a given day.  Pelican argued that any doubt or ambiguity in the civil penalty provisions should be resolved in its favour.  Besanko J (at [680]) agreed generally2.

This is similar to criminal situations where, if real ambiguity persists after the ‘modern approach’ is applied, it is resolved in favour of the accused3.  This means that, if at the point of returning to the text ambiguity remains, then and only then may the scales be tipped.  This additional step is secondary and is not to be applied ‘mechanistically’.  The old rule about reading penal provisions strictly has lost its impact.

This principle is from Episode 102 of interpretation NOW!


2 Pelican Point [2023] FCA 1110 (113), cf Yazaki [2018] FCAFC 73 [68].

3 R v A2 [2019] HCA 35 [52], cf Grajewski [2017] NSWCCA 251 [55].