Nature, character, gravity or seriousness of the contravening conduct
37 The conduct constituting each of the Agreed Contraventions has already been described. Insofar as concerns the Agreed Contraventions that took place on 1 March 2016, the Commissioner's further amended statement of claim dated 23 September 2019 pleads - and the respondents' amended defence admits - that Raspudic, on that day, "did not allow Bernaldo or Pragnell to commence work on the Site". In doing so, the Commissioner contends - and the respondents accept - that Raspudic took, or threatened to take, action against each of Bernaldo and Pragnell that had the effect of prejudicing him in his employment with ACA Rigging.
38 It is that conduct that forms the nub (though not the totality) of the adverse action to which the Commissioner alleges that Raspudic (and, through him, the Union) subjected each of Bernaldo and Pragnell on 1 March 2016. Also relied upon to that end are the statements that Raspudic made on 1 March 2016 to each of those men (specifically, to the effect that they could not work at the Site unless or until they joined or paid money to the Union) and the exchange (and brief scuffle) that he had with Bernaldo later that morning (above, [10]).
39 What Raspudic did, or threatened to do, by way of "not allow[ing]" Bernaldo and Pragnell to work at the Site on 1 March 2016 could, perhaps, have been made clearer. The Commissioner's further amended statement of claim offers some indication (by means of particulars subjoined to the allegation that Bernaldo, Pragnell and Cullen met with Raspudic on that day for the purposes of undergoing an induction) that Raspudic was responsible for "…sign[ing] off the induction paperwork to clear people to work on the [S]ite". It is possible, perhaps likely - indeed, the same particulars appear to suggest - that CC Services, as occupier (or, otherwise, as the entity apparently in control) of the Site, required, as a condition of their being allowed to be at, remain at or perform work at the Site, that Bernaldo and Pragnell first obtain permission to that end from Raspudic. Raspudic's withholding of that permission (if that's what occurred) would amount to adverse action of the kind alleged.
40 The pleadings seem to indicate that there was more to Raspudic's conduct. They indicate - which is to say that they allege and admit - that, by the comments that he made to Bernaldo and Pragnell, by the interaction that he had with Bernaldo in the lunch room later in the morning of 1 March 2016, and by his "not allow[ing]" Bernaldo and Pragnell to work at the Site, Raspudic threatened to take action "…that had [sic: would have had] the effect, directly or indirectly, of prejudicing [Bernaldo and/or Pragnell]". How any of that conduct amounted to a threat is unclear. The withholding of some required permission to work (if that's what occurred) was not, by itself, a threat to visit upon Bernaldo and Pragnell the prejudice that the pleadings allege and admit was visited. Likewise, none of the verbal (or, in one case, physical) exchanges that took place amounted, by itself, to a threat. In each case, it could only do so if accompanied by the promise of other conduct. What that other conduct might have been is unexplored in the pleadings.
41 The scope for confusion as to what it was, precisely, that Raspudic did on 1 March 2016 makes the court's assessment of the gravity of his conduct a little more difficult than might normally be the case. Regardless, I can (and do) safely proceed on the basis that Raspudic either possessed and exercised a means of depriving Bernaldo and Pragnell of their ability or right to perform work at the Site on 1 March 2016, or else threatened some other ramification that he had the means to visit upon them with that end in mind.
42 The same mild criticism may be levelled in respect of the way in which the pleadings describe Travers's conduct. The pleadings allege and admit that Travers's exhortations to Bernaldo on 26 May 2016 were in the nature of a threat (albeit one that was implicit): he was suggesting to Bernaldo that, unless ACA Rigging agreed to pay "union rates" to its employees at the Site, he and the Union would "...take action to prevent ACA Rigging from continuing to perform its contract for services on the Site." What action he was threatening is unexplored, perhaps (if not most likely) because it wasn't clear. The conduct that Travers should be understood to have been threatening would ordinarily inform the severity or gravity or character of what he did (and, thereafter, the sanction that this court should impose in respect of it). If the means by which he was implicitly threatening to prevent ACA Rigging from working at the Site involved criminality, violence or unlawful conduct, for example, then the penalty attaching to his threat would inevitably be more severe than it would be had those means been otherwise lawful and peaceful.
43 Again, that scope for speculation about the nature of Travers's implicit threat makes the court's assessment of his conduct more difficult than is optimal. In the absence of particulars, I should prefer to proceed upon the assumption that what was threatened was nothing more than that Travers and/or the Union would exercise a degree of influence that they enjoyed over industrial relations within the Project. I do not presume that that influence, whatever it was, was the product of anything more than that Travers and the Union were industrial participants that CC Services and the other businesses that were engaged in connection with the Project generally preferred not to irritate. I do presume, though, that Travers and the Union had - and/or understood that they were perceived (including by ACA Rigging) to have had - the capacity to deliver upon what was threatened (namely, ACA Rigging's exclusion from work at the Site).
44 Those observations made, I proceed to consider the nature, gravity, character or seriousness of the respondents' conduct. What divides the parties primarily on this front is the significance (or otherwise) of the respondents' history of conduct engaged in in contravention of the FW Act (or its legislative predecessors).
45 In Australian Building and Construction Commissioner v Pattinson [2019] FCA 1654 ("Pattinson"; Snaden J), I had occasion to summarise the Union's history of conduct engaged in in contravention of the FW Act and its legislative predecessors as follows:
33 The Union's history of prior contravention of the FW Act and its predecessors is a matter of some notoriety. The Union is a "serial offender" that has, over a long period, exhibited a willingness to contravene workplace laws in the service of its industrial objectives; and one that appears to treat the imposition of financial penalties in respect of those contraventions as little more than the cost of its preferred business model.
34 In Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (Werribee Shopping Centre Case) [2017] FCA 1235, Tracey J recorded the following observations about the Union's efforts to enforce a "no ticket, no start" philosophy at Australian building sites:
25 The CFMEU is a large, asset rich, and well-resourced industrial organisation. It has regularly been involved in litigation in which it has been found to have contravened provisions of the [Fair Work] Act, including ss 346 and 348, which attract pecuniary penalties. See the non-exhaustive summary of coercion-related decisions involving the CFMEU between 2010 and 2015 in Jessup J's judgment in Australian Building and Construction Commission v Construction, Forestry, Mining and Energy Union (the Webb Dock Case) [2017] FCA 62 at [67]. It may, therefore, be taken to be well aware of the constraints imposed upon it and its members by such provisions.
26 Despite this, it has persisted in its contravening conduct. The Commissioner has provided the Court with an analysis of such cases which demonstrates that, since about 2000, the CFMEU has been found to have breached pecuniary penalty provisions on more than 120 occasions.
27 The industry of the Commissioner has identified 15 cases, since 2000, in which the CFMEU and its officials have been found to have contravened the Act and its predecessors by engaging in misconduct with a view to maintaining "no ticket no start" regimes on building sites around the country. Penalties have been imposed by this Court, the Federal Magistrates Court and the Federal Circuit Court.
28 The present case falls into this pattern of repeated disregard for the law. To adopt the language of Mortimer J in Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (No 2) [2016] FCA 436 at [142]: the misconduct forms "part of a deliberate and calculated strategy by the CFMEU to engage in whatever action, and make whatever threats, it wishes, without regard to the law, and then, once a prosecution is brought, to seek to negotiate its way into a position in which the penalties for its actions can be tolerated as the price of doing its industrial business." See also Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (Perth Children['s] Hospital Contraventions Case) [2017] FCA 491 at [83]-[90] (Barker J) and the authorities there cited.
35 The Commissioner provided a similar analysis in this case. What, in 2017, was 120 occasions is now in the vicinity of 150. There have been at least seven occasions on which the Union has been found to have contravened s 349 of the FW Act or its predecessor: Radisich v McDonald and Construction, Forestry, Mining and Energy Union [2012] FMCA 919 (Lucev FM); Radisich v Molina & Ors (No 2) [2011] FMCA 66 (Lucev FM); Stuart-Mahoney v Construction, Forestry, Mining and Energy Union & Anor (No 2) [2008] FMCA 1015 (Burchardt FM) (upheld on appeal in Construction, Forestry, Mining and Energy Union v Stuart-Mahoney [2011] FCA 56 (Ryan J)); Australian Building and Construction Commissioner v D'Arcy & Construction, Forestry, Mining and Energy Union [2019] FCCA 563 (Judge Egan); Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (The Quest Apartments Case) (No 2) (2018) 358 ALR 725 (Tracey J); Australian Building and Construction Commissioner v Moses & Ors [2017] FCCA 2738 (Judge Jarrett); Australian Building and Construction Commissioner v Barker [2017] FCCA 1143 (Judge Jarrett).
46 Raspudic is not in the same category. Prior to 1 March 2016, he had not been found to have contravened the FW Act or any of its legislative predecessors (although he has been subsequently: see Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The NewCold Picket Case) [2019] FCA 2038 (O'Callaghan J; hereafter, the "NewCold Picket Case")). Travers has twice been ordered to pay pecuniary penalties in respect of conduct engaged in in contravention of the FW Act or its legislative predecessors: John Holland Pty Ltd v Construction, Forestry, Mining and Energy Union & Ors [2009] FMCA 1248 (O'Sullivan FM); Gregor v Construction, Forestry, Mining and Energy Union & Anor [2011] FMCA 562 (Riethmuller FM).
47 The respondents acknowledge their histories. The Union, on any view, has an appalling record of contravening provisions of the FW Act (and its predecessors), particularly those that are aimed at protecting the right of employees to not join industrial associations.
48 The Commissioner submits that the respondents' histories (and the Union's in particular) should inform the court's assessment of the objective seriousness of their Agreed Contraventions. Because the respondents have the histories that they have, the Agreed Contraventions should, so the contention proceeds, be seen, objectively, to be very serious and deserving of significant penalty. He submits, in respect of the Union (whose history is, of course, considerably less flattering than those of the other respondents) that a penalty at or close to the maximum available would be appropriate.
49 The respondents (and the Union in particular) submit that their histories of prior offending - a term I use only for want of a better one - does not, or cannot properly, inform the court's assessment of the nature of their conduct in the present case, nor otherwise inflate its objective seriousness or gravity. Those histories, so the contention proceeds, should not, or cannot properly, lead to the imposition of any penalties disproportionate to the instant contraventions. To put it another way: they contend that the range within which the court might properly impose penalties in respect of the conduct that constitutes their Agreed Contraventions must be determined by reference to the nature, seriousness or gravity of that conduct, as assessed in isolation from (and without reference to) the historical context against the backdrop of which the respondents engaged in it. It is, so the contention proceeds, only once that range is identified that that historical context becomes relevant (in the sense that it informs where, within that range, an appropriate penalty lies).
50 What, if anything, the court might make of those histories in the course of assessing the nature or character or gravity or seriousness of the Agreed Contraventions (particularly those of them that were committed by the Union) has been the subject of considerable jurisprudence over the last two years. Regrettably, that body of authority has yielded conflicting views about the role that a respondent's antecedent contraventions might play in the court's assessment of particular contravening conduct.
51 In Pattinson, I had occasion (at [39]-[67]) to trace that body of jurisprudence and to identify the schism that has developed. As was there laid bare, there are some cases in which the court has accepted that a respondent's history of engaging in conduct in contravention of statutory injunctions such as those presently under consideration is apt to inform an assessment of the nature, character, gravity and/or seriousness of an instant contravention. In others, the court has held that a respondent's history of contravening conduct cannot inform the character of an instant contravention. I referred, in particular, to the three most recent full court authorities that have considered the point: Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Broadway on Ann Case) (2018) 265 FCR 208 ("Broadway on Ann"; Tracey, Logan and Bromwich JJ), Auimatagi v Australian Building and Construction Commissioner (2018) 363 ALR 246 ("Auimatagi"; Allsop CJ, Collier and Rangiah JJ) and Parker v Australian Building and Construction Commissioner (2019) 365 ALR 402 ("Parker"; Besanko, Reeves and Bromwich JJ). I accepted (Pattinson, [67]-[69] (Snaden J)) the submission that was advanced before me on that occasion - and that is advanced again on this occasion - that Broadway on Ann and Parker cannot easily be reconciled (albeit I acknowledged that that, too, was the subject of inconsistent conclusions). After acknowledging the potentially difficult position in which the court was placed on account of that apparent divergence of views, I attempted some justification of the position that I went on to adopt. In particular, I made the following observations:
71 Civil penalties have only one objective: deterrence. The court is charged, simply enough, with fashioning a penalty that serves to deter, both generally and specifically, the conduct in respect of which it is levelled.
72 If the only way to deter even the most objectively inoffensive conduct (so assessed without reference to historical context) is to impose a penalty at or approaching the maximum amount available, then the imposition of anything less would necessarily result in a failure to achieve the only object to which the imposition of civil penalties is directed. That acknowledged, it is not apparent to me how a civil penalty that is fashioned at (and not beyond) a level that is necessary in order to deter the repetition of particular conduct might ever be impugned as disproportionate to its nature or gravity (or seriousness or character). To phrase that proposition as a question: how can a penalty be disproportionate to the nature or gravity of the conduct in respect of which it is imposed if it is no more than what is necessary to achieve the only objective that its imposition is meant to achieve?
73 In NW Frozen Foods v Australian Competition and Consumer Commission (1996) 71 FCR 285, Burchett and Kiefel JJ (with whom, on this issue, Carr J agreed) said (at 293):
…insistence upon the deterrent quality of a penalty should be balanced by insistence that it "not be so high as to be oppressive". Plainly, if deterrence is the object, the penalty should not be greater than is necessary to achieve this object; severity beyond that would be oppression.
74 In Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (No 2) [2015] FCA 1462 (Jessup J), the court observed (at [8]):
If contravention of a law is visited with penal outcomes which are demonstrably inadequate to achieve the purpose of the law, it might as well not be a law at all. It is in this sense, in my view, that the principle of proportionality is amply reflected in the imposition of a penalty which takes due account of the importance of specific deterrence.
75 To speak, then, of a penalty that is disproportionate to the seriousness, nature, character or gravity of particular contravening conduct is, I think, to speak merely of a penalty that is more than what the deterrence of its repetition warrants. It is that central objective - deterrence - that remains supreme.
76 In Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Bendigo Theatre Case) (No 2) [2018] FCA 1211 (Tracey J) - a decision published on the same day as the decision in Broadway on Ann - the court explored the application of the criminal law concept of proportionality to the imposition of civil penalties. Tracey J observed (at [18]-[20]):
18 Another criminal sentencing provision which is of limited ongoing relevance in the civil context is the principle that "the maximum penalty prescribed for an offence is intended for cases falling within the worst category of cases for which that penalty is proscribed": see Veen v The Queen [No 2] (1988) 164 CLR 465 ["Veen (No 2)"] at 478 (Mason CJ, Brennan, Dawson and Toohey JJ). In R v Kilic (2016) 259 CLR 256 at 266; [2016] HCA 48 at [20] (Bell, Gageler, Keane, Nettle and Gordon JJ), the High Court said that the use of the expression "the worst category" of an offence is apt to mislead. It cautioned that "sentencing judges should avoid using the expression 'worst category' and instead, in those cases where it is relevant to do so, state in full whether the offence is or is not so grave as to warrant the maximum prescribed penalty." A case may fall within this category even if it is possible to imagine an even worse incident of the offending.
19 There are difficulties in translating this principle to the civil realm. It concentrates on the gravity of a particular criminal act and seeks to compare that act with other criminal acts.
20 Given the emphasis on deterrence in the civil regime, the maximum penalty may be appropriate for a person who has repeatedly contravened the same or similar legislative provisions despite having been penalised regularly over a period of time for such misconduct. The gravity of the offending, in such cases, is to be assessed by reference to the nature and the quality of the recidivism rather than by comparison of individual instances of offending: see Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (No 2) [2015] FCA 1462 at [8] (Jessup J). Relevant matters will include the number of contraventions which have occurred over a period, whether the ongoing misconduct is the result of conscious decisions, whether the repeated contravenor has treated the payment of penalties as a cost of doing business and whether any attempt has been made to comply with the law as declared by the Court.
77 I respectfully adopt his Honour's reasoning.
78 As can be seen from the analysis above, the authorities relevant to the present question place considerable emphasis upon the decision of the High Court in Veen (No 2). The facts of that case warrant examination. Mr Veen was a brain damaged homosexual prostitute who had a history of violent offending when affected by alcohol. In 1975, he stabbed a client to death and was convicted of his manslaughter (he was charged with his murder but a jury convicted him of the lesser crime on the ground of diminished responsibility). He was sentenced to life in prison, which the High Court, by majority (Stephen, Jacobs and Murphy JJ), later reduced to 12 years: Veen v The Queen (1979) 143 CLR 458 ("Veen (No 1)"). A short time after his release from prison, he killed another sexual partner and was again charged with murder. The Crown accepted his plea of guilty to manslaughter, again on the grounds of diminished responsibility. He was again sentenced to life imprisonment, which he again appealed (including by special leave to the High Court). The High Court, by majority (Mason CJ, Brennan, Dawson and Toohey JJ), on that occasion upheld his life sentence.
79 En route to doing so, the majority in Veen (No 2) had occasion to consider what it referred to as the "principle of proportionality" - that is, the notion that "…a sentence should be 'proportionate to the gravity of the offence' unless, perhaps, the applicant's history warrants some departure from the principle": Veen (No 2), 472 (Mason CJ, Brennan, Dawson and Toohey JJ - citing Veen (No 1), 490 (Jacobs J)). That principle was described as "firmly established in this country": Veen (No 2), 472 (Mason CJ, Brennan, Dawson and Toohey JJ). At 473, the majority explained:
It is one thing to say that the principle of proportionality precludes the imposition of a sentence extended beyond what is appropriate to the crime merely to protect society; it is another thing to say that the protection of society is not a material factor in fixing an appropriate sentence. The distinction in principle is clear between an extension merely by way of preventive detention, which is impermissible, and an exercise of the sentencing discretion having regard to the protection of society among other factors, which is permissible.
80 Later, their Honours described the following passage from the judgment of Mason J in Veen (No 1) as "an accurate statement of the law" (Veen (No 2), 475 (Mason CJ, Brennan, Dawson and Toohey JJ)):
…there is no opposition between the imposition of a sentence of life imprisonment with the object of protecting the community and the proportionality principle. The court imposes a sentence of life imprisonment on taking account of the offender's record, his propensity to commit violent crime, the need to protect the community and the very serious offence of which he stands convicted, imprisonment for life being a penalty appropriate to very serious manslaughter when it is attended by the additional factors to which I have referred.
[Veen (No 1), 369 (Mason J)]
81 Later still, their Honours settled upon the passage recited within many of the cases that are analysed above, which I replicate with my own emphases (Veen (No 2), 477 (Mason CJ, Brennan, Dawson and Toohey JJ)):
…the antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed, but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence. To do so would be to impose a fresh penalty for past offences: Director of Public Prosecutions v. Ottewell… The antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind.
82 With respect to those who take a different view (if, indeed, that is what occurred in cases such as Parker and others), I do not discern from that passage any prohibition upon the court's taking account of relevant historical context when assessing the gravity (or seriousness or nature or character) of a particular offence. To assess the gravity of an instant offence by reference to a respondent's history of similar offending is not, by itself, to impose a fresh penalty for past offences. Nor does it, without more, involve or lead to the shaping of a penalty that is relevantly disproportionate. It merely informs what is proportionate; that is to say, how serious or grave the instant contravention is. The very circumstances of Mr Veen's case illustrate the proposition: despite the similarities in his two manslaughter convictions (and despite having pleaded guilty to the latter of them), he was sentenced to 12 years' prison for the first and life in prison for the other. The life sentence that was considered disproportionate in respect of the first conviction was permissible in respect of the second.
52 In the present case, the respondents urged me not to follow the conclusion that I reached in Pattinson. They contended, instead, that the position expressed in Parker was binding upon me and was, in any event, a correct statement of the law insofar as concerns the relevance of a respondent's history of contravening conduct. The Commissioner urged the precise opposite, as of course he would.
53 In support of their contention, the respondents referred to Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Bay Street Case) (No 2) [2019] FCA 1859 (Bromberg J; "The Bay Street Case"). There, the court considered the significance of a respondent's - and, in particular, the Union's - history of contravening conduct to the setting of pecuniary penalties. His Honour made the following observations on that score:
17. I note that in his recent judgment, Australian Building and Construction Commissioner v Pattinson [2019] FCA 1654, Snaden J came to the view (at [39]-[69]) that there are two competing approaches by Full Courts of this Court as to the role of prior contraventions in the assessment of the imposition of a penalty, reflected by the reasoning of the majority (Tracey and Logan JJ) in Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Broadway on Ann Case) (2018) 265 FCR 208 and the approach of the Full Court (Besanko, Reeves and Bromwich JJ) in Parker v Australian Building and Construction Commissioner [2019] FCAFC 56.
18. The reasoning in Parker is consistent with that of the Full Court in Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Non-Indemnification Personal Payment Case) (No 2) [2018] FCAFC 117 and Auimatagi v Australian Building and Construction Commissioner [2018] FCAFC 191, referred to above at [16] and has been followed by many judges of this Court, including myself, see: Australian Building and Construction Commissioner v Hassett [2019] FCA 855 (O'Callaghan J), [Australian Building and Construction Commissioner v Powell (No 2) [2019] FCA 972] (Bromberg J), Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Laverton North and Cheltenham Premises Case) (No 2) [2019] FCA 973 (Bromberg J), Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Aldi/Altona North Case) (No 2) [2019] FCA 1667 (Bromberg J), Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (Geelong Grammar School Case) (No 2) [2019] FCA 1498 (Mortimer J), Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (Syme Library Case) (No 2) [2019] FCA 1555 (Wheelahan J) .
19. I respectfully disagree with the conclusion of Snaden J in Pattinson (at [63] and following) that the observations in Parker do not "[represent] the law as it presently stands". The Full Court in Parker relied on and applied the two principles enumerated by Mason CJ, Brennan, Dawson and Toohey JJ in Veen v the Queen (No 2) (1988) 164 CLR 465 at 477-478 that:
• the antecedent criminal history of an offender "cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence"; and
• "the maximum penalty prescribed for an offence is intended for cases falling within the worst category of cases for which that penalty is prescribed".
20. There can be no doubt that those principles state the law and are binding upon a single judge of this Court. As for the first of those principles, I understand the analysis in Parker to be emphasising that the penalty imposed must be proportionate to the gravity of the instant offence rather than proportionate to the gravity of the contravener's history of offending. In my respectful view, an approach to proportionality focused upon the gravity of the contravener's offending rather than the gravity of the instant contravention invites error.
54 Respectfully and with only one qualification, I accept what his Honour says at [18]. The authorities to which his Honour adverted toward the end of that paragraph were the "six post-Parker authorities that have considered the question" that, in Pattinson, I spent some time tracing. In all but one of those authorities, the court concluded that a respondent's history of contravening conduct was not a circumstance that could properly inform an assessment of the seriousness, gravity, nature or character of an instant contravention. The one that held otherwise was Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (Syme Library Case) (No 2) [2019] FCA 1555. There, Wheelahan J concluded (at [96]) as follows:
On the issue of the relevance of past contraventions by the CFMEU respondents and proportionality, I shall apply the principles and guidance identified in The Non-Indemnification Personal Payment Case, the Broadway on Ann case, and in Parker in the passages to which I have referred above. I accept the submission made on behalf of the CFMEU respondents that the prior record of a contravener does not permit the imposition of a penalty that is disproportionate to the offending conduct for which the penalty is to be imposed. But Veen v The Queen (No 2), the reasons of Tracey J and Logan J in the Broadway on Ann case, and the reasons of the members of the Court in Parker support the idea that past contraventions may be relevant in assessing the seriousness of the instant contraventions. A history of contraventions may affect a number of features of the instant contraventions, including whether the instant contraventions are a manifestation of a continuing attitude of disobedience to the law. For this reason, and when all the background circumstances and other features of a contravention are considered, what might in isolation and superficially be a minor contravention may take on the complexion of a much more serious contravention. And consistently with deterrence being the principal object of the imposition of civil penalties under the Fair Work Act, a history of contravention may point to a need for a more severe penalty than would otherwise be the case if there was no history of contravention. The significance of a history of contraventions may be compounded by the absence of contrition, and the absence of evidence addressing steps taken to ensure future compliance with the law. For these reasons, a severe penalty may be proportionate to what might in other circumstances be a minor contravention. Overriding these considerations is the care that should be exercised to ensure that any penalties imposed for the instant contraventions do not amount to double punishment for prior contraventions. Care in avoiding double punishment also informs other aspects of the process of fixing penalties, including whether the contraventions are part of a course of conduct, and the totality principle.
55 In Pattinson, I explained why I respectfully read Parker in a way that differs from the way in which Wheelahan J construed it (and consistently with the way that it has been applied in other authorities). I observed (Pattinson, [67]):
With respect to his Honour, I read Parker in a more constraining way: namely, as authority for the proposition that, when assessing the character (or nature or gravity or seriousness) of particular contravening conduct, the court must not take account of the contravener's history of similar conduct (above, [53]). That is the interpretation of Parker that the respondents urge upon me. By supplementary written submissions, they suggest that "[n]othing in Parker supports the view articulated at [96] in [Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (Syme Library Case) (No 2) [2019] FCA 1555] that past contraventions may be relevant to assessing the seriousness of the instant contravention." Respectfully…, that submission is a step too far. Nonetheless, I accept the broader submission as to the proposition for which Parker stands as authority. It stands, I think, consistently with the construction of Parker that Bromberg, Mortimer and O'Callaghan JJ favoured in the cases to which I have referred above (namely, [Australian Building and Construction Commissioner v Powell (No 2) [2019] FCA 972], [Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Laverton North and Cheltenham Premises Case) (No 2) [2019] FCA 973], [Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (Aldi and Altona North Case) (No 2) [2019] FCA 1667], [Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (Geelong Grammar School Case) (No 2) [2019] FCA 1498] and [Australian Building and Construction Commissioner v Hassett [2019] FCA 855]).
56 I also respectfully agree with Bromberg J that the "…reasoning in Parker is consistent with that of the Full Court in [the NIPP Case] and [Auimatagi]": see The Bay Street Case, [18] (Bromberg J; above, [53]). Parker and the NIPP Case both stand for the proposition that the penalty to be imposed in respect of a respondent's contravention of a statute should be proportionate to the conduct by which that contravention is committed. Although it wouldn't matter if I didn't, I consider that point of principle to be unanimously- and well-settled; and, in any event, unimpeachably correct. What the NIPP Case does not say, however, is that the objective seriousness of an instant contravention must be adjudged independently of a respondent's history of contravening conduct. Although there is no unanimity of view in this court, that seems to be the central ratio of Parker (and the subject of obiter in Auimatagi). It is impossible to reconcile that position with what the majority of this court held in Broadway on Ann. With the exception of Pattinson and another, more recent authority to which reference will shortly be made, that conflict is not referred to, let alone resolved, in any of the post-Parker authorities that have considered the question.
57 In The Bay Street Case, Bromberg J attempted - much as I did in Pattinson - to distil the import of what the High Court said in Veen v the Queen (No 2) (1988) 164 CLR 465, 477-478 (Mason CJ, Brennan, Dawson and Toohey JJ; "Veen (No 2)"). Again with respect, I agree with his Honour - and it is plainly the case - that the principles to which their Honours in Veen (No 2) gave voice are binding upon a single judge (and, indeed, upon full courts) of this court. I also respectfully agree, at the risk of repetition, that the task for the court in cases such as this is to fix a penalty that is "…proportionate to the gravity of the instant offence". But, for the reasons to which I adverted in Pattinson, there is no warrant to divorce a respondent's history of contravening conduct from an assessment of the objective nature, character, seriousness or gravity of an instant contravention. On the contrary, that history is a circumstance that informs the objective nature, character, seriousness or gravity of the contravening conduct in question. It does so insofar as it betrays an attitude of defiance or indifference toward the law, which in turn informs the "sting" that a court must impose if it is to have any prospect of deterring further repetition of the conduct. To observe as much is not to favour the imposition of a penalty that is "…proportionate to the gravity of the contravener's history of offending". Nothing in Veen (No 2) holds to the contrary.
58 I repeat the observation that I made in Pattinson (at [82]; above, [51]): to assess the gravity of an instant offence by reference to a respondent's history of similar offending is not, by itself, to impose a fresh penalty for past offences. Nor does it, without more, involve or lead to the shaping of a penalty that is relevantly disproportionate. It merely informs what is proportionate; that is to say, how serious or grave the instant contravention is.
59 Those conclusions align with what this court concluded in Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (Castlemaine Police Station Case No 2) [2020] FCA 202 (Anastassiou J; "Castlemaine Police"). There, this court had occasion to consider the issue that confronts me presently. Anastassiou J observed (at [13]):
The proportionality principle requires simply that such weight should not be given to prior offences as would lead to the imposition of a disproportionate penalty. There is nothing inherent in the principle of proportionality that prohibits the instant contravention from being considered in the context of a pattern of behaviour or course of conduct on the part of a particular offender, whether that course of conduct is the subject of the instant contravention or may be inferred from a history of earlier contraventions.
60 Respectfully, I agree with and adopt his Honour's observation. After considering the judgments of Tracey and Logan JJ in Broadway on Ann, his Honour then remarked (at [19]):
In my view, the reasoning by Tracey and Logan JJ is entirely congruent with the proportionality principle. The Commission's analysis of the Union's offending history provided in this case demonstrates that the Union has, as Logan J (at [69]) said, been engaged in "a lengthy and repeated pattern of unrepentant, outlaw behaviour…". Where, as in The Broadway on Ann Case and in the many cases since, including the present case, the Union continues to arrogate to itself the licence to decide if, and how, it and its officers may behave, irrespective of the relevant proscriptions of the Act, in my opinion it would be contrary to the intention of s 546(1) of the Act to determine an appropriate penalty in isolation. I respectfully reiterate what Wheelahan J (at [96]) said in the Syme Library Case:
…what might in isolation and superficially be a minor contravention may take on the complexion of a much more serious contravention.
61 Reconciling the reasoning of the majority in Broadway on Ann with the principle of proportionality, Anastassiou J concluded (at [22]-[24]):
In circumstances that may correctly be characterised as I have above, it is open for a court to conclude that the aggregation of the anterior offences should be given such weight as appropriate, even if that results in relatively minor individual instances being characterised as falling within "the worse category of case" and therefore justifying the maximum penalty. In my view, such a conclusion is not offensive to the proportionality principle. It is but a recognition that individual instances of concerted, unlawful and self-arrogated behaviour may reasonably be characterised as meeting the description of the "worst category of cases" when considered in the context of such intractable recidivism. In this context every instance of contravention may be viewed as layered upon earlier instances, such that each instance becomes part of a laminated course of conduct.
The consideration to be given to anterior offending discussed above is consistent with the majority in The Broadway on Ann Case. In particular, it is consistent with the approach to anterior offences referred to (at [77]) by Logan J:
Once the contraventions on the day, deplorable in themselves, are viewed in context, they are, in my view, of the worst possible kind.
In the absence of more recent Full Court authority that has held The Broadway on Ann Case to be "plainly wrong", I do not consider the later Full Court decisions in Auimatagi, The Non-Indemnification Personal Payment Case or Parker to have overruled The Broadway on Ann Case. As Snaden J observed (at [53]) in Pattinson:
Broadway on Ann was not referred to in Parker, let alone disavowed.
It is well accepted that a full court will follow earlier full court decisions unless found to be plainly wrong: SZEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2; 150 FCR 214 at 257 per Allsop J (as his Honour then was). See also BHP Billiton Iron Ore Pty Ltd v National Competition Council [2007] FCAFC 157; 162 FCR 234 at 253-254 per Greenwood and Gett v Tabet [2009] NSWCA 76; 254 ALR 504 at 563, 566-567 per Allsop P (as his Honour then was), Beazley and Basten JJA.
62 His Honour then considered the observations that Bromberg J made in The Bay Street Case (above, [53]), holding (at [27]):
Respectfully, for the reasons give[n] above, the two subsidiary principles as they are described by the majority in Veen (No 2) are complimentary. The latter does not preclude a consideration of the instant offence in the context of a history of anterior contraventions… It seems to me to be incongruous to take into account systematic conduct in an instant case but not give the same consideration to the systematic character of the instant contravention as may be inferred from an anterior body of offences. With respect, the risk of error apprehended by Bromberg J in the last sentence of [20] quoted above, does not arise if it is understood that the proportionality principle is the guiding constraint and the "second subsidiary principle" as described by the majority in Veen (No 2) (at 478), namely that "the maximum penalty prescribed for an offence is intended for cases falling within the worst category of cases", would be contravened, "only if the case is recognizably outside the worst category". Thus the task is one of characterisation of the instant contravention in context, where relevant giving appropriate weight to anterior contraventions. This task is a part of the broader task of "instinctive synthesis" that involves the selection of a figure that takes due account of all factors relevant to the particular case: Wong v The Queen (2001) 207 CLR 584, 611 [75]. See also Pattinson at [26] and the authorities therein referred to.
63 Again with respect, I agree. Conduct that is engaged in as the latest incarnation of a respondent's continuing history of defiance of the law is objectively more serious - and more deserving of a sterner penalty - than conduct that is unique or isolated. That is so even if, when examined in isolation from its historical context, that conduct is benign or even trivial. In fashioning a penalty that is proportionate to particular contravening conduct, it is appropriate that its nature or character be assessed against the backdrop of that historical context.
64 In the Union's case, that history is nothing short of astounding. Since 2003, it has been found, by this court and others, to have contravened industrial laws more than 160 times. Many of those occasions involved, as this one does, assertions of Union membership as a prerequisite to the performance of construction work. The Union's apparent "no ticket, no start" policy has, then, been the subject of much consideration in this court. Its consistent failure to rein in those of its officials by whose conduct that policy has been enforced over many years leads to no other conclusion than that it favours that policy over the law: Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (Werribee Shopping Centre Case) [2017] FCA 1235, [23], [28] (Tracey J).
65 It is convenient to consider the Union's Agreed Contraventions in two parts. Insofar as concerns those that arose from the events of 1 March 2016, I regard the Union's conduct - viewing it, as I do, against the backdrop of the Union's appalling history of statutory contravention - as very much of the gravest, most serious kind. As the Union has been told time and time again, "no ticket, no start" is a grotesque relic of a long-bygone era that has no place in Australia's modern industrial relations landscape.
66 The Union's conduct of 26 May 2016, although serious, is less repugnant. The evidence before the court was that Travers believed that ACA Rigging's employees were employed by a different entity and were entitled to rates of pay that had been negotiated with the Union. He was mistaken; but that properly informs the court's assessment of the nature of his conduct. That Travers was motivated by that mistaken belief makes his conduct less serious than it would have been if, for example, he had known that ACA Rigging was already paying what it was obliged to pay. It is in his reaction to his belief that the seriousness of his conduct lies. Respectfully, the submission that was advanced before me - namely, that Travers did no more than comply with an applicable dispute resolution clause - was obviously contrived. He set out to (and did) threaten ACA Rigging and leave it with no option but to comply with his demand. Rather than address his concerns rationally and lawfully, he preferred instead to use the occasion as an opportunity to demonstrate his Union's dominance over the Site. The Union has paid a significant price over a long period for having intimidated or coerced others into complying with its demands. That it would genuflect toward those same thuggish instincts in spite of that history - even when it believed that it had the law on its side - beggars belief.
67 Raspudic's position is more orthodox. In March 2016, he had not previously been found to have contravened the FW Act or its predecessors. Regardless, there can be no credible doubt that he did what he did out of fealty to his Union's policy of enforcing a "no ticket, no start" reality at the construction sites over which it wields influence.
68 As has already been stated, Travers's position, whilst not nearly as bad as the Union's, is also not flattering. He has twice been found to have acted in contravention of industrial laws - in 2009 (when he was held to have organised unlawful industrial action) and 2011 (when he was found to have contravened right of entry laws: John Holland Pty Ltd v Construction, Forestry, Mining and Energy Union & Ors [2009] FMCA 1248 (O'Sullivan FM); Gregor v Construction, Forestry, Mining and Energy Union & Anor [2011] FMCA 562 (Riethmuller FM).
69 Notwithstanding his relatively "clean" history, Raspudic's Agreed Contraventions are, nonetheless, deserving of more than a proverbial slap on the wrist. I do not accept the respondents' submissions that his conduct was "toward the lower end of the spectrum of seriousness". Raspudic has added his name to the long list of officials who have willingly signed on to the Union's unconscionable war against free association on Australian building sites. It is important that the penalties that are imposed upon him are fashioned at a level that is sufficient to deter repetition of the conduct not only by him but also by the network of other delegates and officers of the Union who might themselves be minded to enforce its archaic "no ticket, no start" philosophy. In Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union ("Cardigan Street Case") [2018] FCA 957, (hereafter, the "Cardigan Street Case") Bromberg J observed (at [65]):
…general deterrence is of particular relevance in respect of an individual who is an office holder or employee of an organisation such as the CFMMEU. The penalty imposed should be effective as a general deterrent for any other officer or employee to engage in similar contraventions. It should demonstrate to such persons that this Court will not tolerate that conduct and that significant penalties will be imposed irrespective of whether the conduct has been condoned by others including that person's employer.
I respectfully adopt his Honour's observations.
70 Travers's conduct was less egregious. If he were properly understood to have demanded that ACA Rigging pay "union rates" at the Site indifferent as to whether it was, in fact, obliged to do so, and instead as part of some assertion of Union control, then Travers's conduct might have assumed a different complexion. As it is, his conduct is more properly seen as an aggressive overreaction to a mistaken belief. It is appropriate that he should be penalised for that reaction; but I regard his contravening as less serious than Raspudic's.