Can a single penalty be imposed for multiple contraventions?
122 In some statutes, specific provision is made for treating multiple contraventions of a civil penalty provision as a single contravention. For example, s 557 of the Fair Work Act 2009 (Cth) provides that 2 or more contraventions of certain civil remedy provisions are to be taken to constitute a single contravention if the contraventions are committed by the same person and the contraventions arose out of a course of conduct by the person. Other statutes provide that if conduct constitutes a contravention of two or more pecuniary penalty provisions, a proceeding may be instituted against a person in relation to the contravention of any one or more of the provisions, but a person is not liable for more than one pecuniary penalty: see s 76(3) of the Competition and Consumer Act 2010 (Cth).
123 There is no such provision in the BCII Act. And, for the reasons given earlier, the word "person" in s 38 of the BCII Act must relevantly be read in the singular, meaning that when a group of persons engages in industrial action, even if it is collective industrial action, each of those persons commits a separate offence under s 38. If an industrial association, such as a trade union, through the actions of its officers, encourages or procures the individuals to engage in the industrial action, by operation of s 69(1)(b) and s 48(2) of the BCII Act the association is taken to have been involved in, and taken to have committed, each of the contraventions by each of the individuals.
124 The question arises, however, whether the Court can impose a single pecuniary penalty on the union in such circumstances, particularly in circumstances where the encouragement of the group of workers arose out of a course of conduct.
125 The Commissioner submitted that the Court could impose a single penalty for multiple contraventions of s 38 of the BCII Act where the contraventions arose from a single course of conduct by an industrial association. In the Commissioner's submission, such a course was permitted by s 49 and was supported by numerous cases where the Court had imposed single penalties for multiple contraventions of the BCII Act and other civil penalty provisions.
126 The Commissioner's submissions in relation to the construction of s 49 were either unpersuasive or wrong and must be rejected. The Commissioner's submissions concerning earlier cases where single penalties have been imposed for multiple contraventions require some further analysis.
127 In relation to the proper construction of s 49 of the BCII Act, the Commissioner submitted that s 49 simply permits a court to make "an order imposing a pecuniary penalty" upon a person "who has contravened a civil penalty provision". In the Commissioner's submission, a person who has contravened a civil penalty provision on 2 or more occasions is the subject of an order imposing a pecuniary penalty even if a single penalty is imposed in respect of the 2 or more contraventions. That may be so, but that does not answer or assist in the relevant question of construction. Section 49, in terms, empowers the Court to impose a pecuniary penalty on a defendant who has contravened a civil penalty provision. It does not provide that the Court can impose a single penalty on a defendant who has contravened a civil penalty provision on 2 or more occasions.
128 The Commissioner also drew attention to the fact that s 49 uses "permissive language", including the word "may", and cited a number of well-known cases that were said to support the proposition that it is appropriate to construe provisions which confer powers upon a court broadly and flexibly. Even accepting that such an approach to the construction of s 49 should be adopted, the language used in s 49 does not support the imposition of a single pecuniary penalty in respect of multiple contraventions. In Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2016] FCA 413 at [50], White J said the following in relation to the construction of s 546(1) and (2) of the Fair Work Act, which is in relevantly similar terms to s 49 of the BCII Act:
The terminology of subs (1) suggests that, when the Court is satisfied that a person has contravened a civil remedy provision, it is to exercise a discretionary judgment as to whether to order the payment of a pecuniary penalty. It indicates, however, that when the Court decides to impose a pecuniary penalty it does so in respect of the particular contravention which the Court has found established. That is to say, each contravention is to have its own penalty. This impression is confirmed by the terms of subs (2) which fixes the maximum penalty which may be imposed by reference to that applicable to an individual contravention.
129 The same reasoning applies in relation to s 49 of the BCII Act. White J concluded that s 546 did not allow the Court to impose a single penalty in respect of multiple contraventions of the Fair Work Act, other than in the circumstances specifically provided for in s 557 of that Act. The same conclusion would follow in the case of s 49 of the BCII Act.
130 Finally, the Commissioner submitted that to require the Court to impose separate penalties against a union in respect of the "underlying primary contraventions of each individual worker" would create significant investigative and evidentiary burdens upon the regulator. That broad assertion is difficult to accept. The Commissioner has brought these proceedings against the CFMEU and CEPU in respect of multiple contraventions of s 38 without proceeding against the individual workers who were encouraged by the unions to engage in the unlawful industrial action. The Commissioner's "investigative or evidentiary burden" in bringing these proceedings would have been the same whether the Court ultimately imposes a single penalty or multiple penalties. In any event, given the clear language of s 49, arguments based on assertions about investigative or evidentiary burdens are far from persuasive.
131 That leaves the Commissioner's arguments based on earlier cases where single penalties have been imposed.
132 In relation to cases concerning contraventions of the BCII Act, the Commissioner relied on the Full Court decisions in Construction, Forestry, Mining and Energy Union v Williams [2009] FCAFC 171; (2009) 191 IR 445; Draffin v Construction, Forestry, Mining and Energy Union [2009] FCAFC 120; (2009) 189 IR 145; and Stuart v Construction, Forestry, Mining and Energy Union [2010] FCAFC 65; (2010) 185 FCR 308. Upon close analysis, however, none of those cases support the broad proposition advanced by the Commissioner.
133 In Williams, while the Court ultimately ordered the respondents to pay single aggregate "fines", it is clear that those aggregate fines were the product of the Court imposing separate individual penalties in respect of each contravention: see in particular [31] and [35]. In fixing the separate penalties for each of the contraventions (having found that the primary judge had erred in fixing the penalties), the Court had regard to both the course of conduct and totality principles. It should also perhaps be noted that, contrary to the position taken by the Commissioner in this case, the Court in Williams considered that if a person is to be punished for two contraventions that formed part of the one course of conduct, the Court should begin from the premise that the maximum penalty is the maximum penalty for one contravention: see [31].
134 In Draffin, proceedings were commenced against the union and a number of individuals in respect of contraventions of ss 43 and 45 of the BCII Act and s 298P(2) of the Fair Work Act. It would appear that it was alleged, and the Court found, that the unions and the individuals were involved in single contraventions of each of those provisions, even though each of them "engaged in a course of conduct which was constituted by a series of separate acts which had the objective of preventing employees" from performing duties at the relevant site: see [61]. The Full Court set aside the penalties imposed by the primary judge and imposed separate penalties for each of the contraventions: see [96] and [98]-[100]. In the union's case, the Court increased the penalty imposed in respect of the contravention of s 43, but "[h]aving regard to the totality principle" did not disturb the fairly low penalties imposed by the primary judge in respect of the other contraventions: see [96].
135 In Stuart, it was relevantly alleged that the union contravened s 38 and 44(1) of the BCII Act. The Full Court found that the primary judge erred in fixing the penalties for those contraventions. In considering what penalties should be imposed, the Court found (at [84]) that the unlawful conduct constituting the contravention of s 38 was "entirely subsumed in the conduct constituting the contravention of s 44 of the BCII Act". Applying the course of conduct principle, the Court imposed a significant penalty for the s 44 contravention and did not impose a separate penalty for the s 38 contravention. That unremarkable application of the course of conduct principle is quite different to what the Commissioner proposes in this matter. In a sense, the Court did impose a penalty for each contravention, but having regard to the course of conduct principle, it determined that the penalty for the s 38 contravention should be zero because the union had already effectively been punished for the conduct constituting that contravention by the penalty imposed in respect of the s 44 contravention. There is a clear distinction between that methodology and the imposition of a single penalty in respect of both contraventions.
136 In relation to pecuniary penalties imposed under other statutes, the Commissioner relied on decisions of the Full Court in NW Frozen Foods, Ponzio, and Australian Securities and Investments Commission v Beekink [2007] FCAFC 7; (2007) 238 ALR 595. Some reliance was also placed on the decision of the High Court in TPG Internet. As with the BCII Act cases just considered, on close analysis none of those cases provide principled support for the broad proposition advanced by the Commissioner.
137 NW Frozen Foods concerned multiple contraventions of s 45 of the Trade Practices Act 1974 (Cth). The appellant admitted those contraventions and agreed with the regulator, the Australian Competition and Consumer Commission, that the appropriate penalty was a global penalty of $900,000. That agreed figure was put to the Court but rejected by the primary judge. The Full Court held that the primary judge erred in rejecting the agreed penalty. The Full Court's reasoning primarily concerned the approach that the Court should take to agreed penalties in pecuniary penalty proceedings. The Full Court found that, having regard to the principles properly applied in relation to agreed penalties, the agreed penalty of $900,000 was appropriate. Given that the penalty was agreed, no consideration was given to whether, in the absence of agreement between the parties, a single penalty could be ordered in respect of multiple contraventions.
138 Ponzio also involved an agreed penalty which had been effectively rejected by the primary judge. The agreed penalty was $6,000 in respect of multiple contraventions of the Workplace Relations Act. A majority of the Full Court found that the primary judge erred in rejecting the agreed penalty and found that the agreed penalty was within the range. It is readily apparent from the reasoning of the majority (Lander and Jessup JJ), however, that their Honours considered that, absent any agreement in relation to penalty, the proper approach would have been to commence with an assessment of an appropriate penalty for each contravention. Jessup J said (at [146]-[147]):
In a setting which did not involve an agreement on penalty, it would, therefore, be necessary to commence with an assessment of an appropriate penalty for each contravention, paying due regard to such mitigating factors as there were. In the judgments to which the trial Judge referred, it seems to have been accepted that, absent strong mitigating circumstances such as sheer inadvertence, a penalty of about $200 for each contravention of s 187AA on the facts existing on 5 and 6 August 2003 could not be regarded as excessive. On the facts of the present case, and having regard to what I have described as the conventional mitigating circumstances referred to by his Honour, I do not think that a penalty of $200 for a single contravention would have been excessive. It may not have been the penalty that I would have imposed, but on no view might it have been regarded as outside the permissible range. If that penalty had been imposed for each of the contraventions which came before his Honour, a total of $20,200 would be the aggregate result. Manifestly the application of the totality principle was then required.
The question then becomes: if a Judge were determining the appropriate aggregate penalty in the circumstances posited, could it be said that the utilisation of a discount factor of some 70% by way of application of the totality principle would still produce a final penalty figure that should be regarded as manifestly excessive? In my respectful view, the question needs only to be asked in this form for a negative answer to be obvious. It would follow that $6,000 should not have been regarded as outside the range of penalties that could have permissibly been imposed on the first respondent in the circumstances of the present case.
139 Thus, while the agreed penalty that was upheld on appeal in Ponzio was, in a sense, a single penalty for multiple contraventions, the appropriateness of that agreed penalty was approached on the basis of fixing individual penalties for each contravention, aggregating those individual penalties and then applying the totality principle to the aggregate figure.
140 In Beekink the respondents each admitted contraventions of three civil penalty provisions in the Corporations Act 2001 (Cth) which related to their statutory duties as officers of a company which was the responsible entity of a managed investment scheme. While the primary judge ultimately imposed a single pecuniary penalty in relation to each respondent, it is clear from his Honour's reasons that he arrived at the single penalty by imposing separate penalties for each of the contraventions and then reducing the aggregate penalty having regard to the totality principle. The Full Court allowed the appeal from the penalties imposed by the primary judge on the basis that they were manifestly inadequate. The Full Court did not give any consideration to the question whether it was permissible to impose a single penalty for multiple contraventions, no doubt because it was clear from the primary judge's reasoning that separate penalties were in effect imposed for each contravention, and then reduced having regard to the totality principle.
141 In TPG Internet, the High Court overturned the decision of the Full Court and restored the primary judge's orders which had the effect of grouping multiple contraventions of ss 52, 53 and 53C of the Trade Practices Act (and cognate provisions in the Australian Consumer Law: Schedule 2 to the Australian Competition and Consumer Act 2010 (Cth)) into nine classes of contraventions. The contraventions related to the publication of misleading and deceptive advertisements. When consideration is given to the reasoning of the primary judge, however, it is readily apparent that it was uncontroversial that he should not treat each publication of the contravening advertisements separately for the purposes of penalty: Australian Competition and Consumer Commission v TPG Internet Pty Ltd (No 2) [2012] FCA 629 at [71]. Importantly, however, that was because s 76E(4) of the Australian Competition and Consumer Act at that time provided that a person was not liable for more than one pecuniary penalty in respect of "the same conduct". Both parties proposed that the contraventions be grouped into separate classes representing separate courses of conduct having regard to that provision.
142 Finally, the Commissioner contended that it was "commonplace" for single judges to impose single penalties for multiple contraventions of civil pecuniary penalty provisions in a large number of statutory regimes, despite there being no provision in those regimes to explicitly authorise such an approach. It may be accepted that there are many cases where single judges have imposed single penalties for multiple contraventions of pecuniary penalty provisions. It is, however, not fruitful to attempt to analyse those cases, particularly as the Commissioner did not attempt to do so. It is sufficient to refer to two cases that received some attention in the submissions.
143 In Australian Competition and Consumer Commission v Coles Supermarkets Australia Pty Ltd [2015] FCA 330; 327 ALR 540, Allsop CJ imposed pecuniary penalties in respect of multiple contraventions of ss 18(1), 29(1)(a) and s 33 of the Australian Consumer Law arising from misleading representations made in advertisements concerning bread products sold in the respondent's stores. His Honour imposed a single penalty of $2.5 million. Importantly, however, it is clear that the joint position of the parties was that there were so many contraventions that it was not helpful to seek to make a finding as to the precise number of contraventions, or to calculate a maximum aggregate penalty by reference to such a number: see [18]. The applicant had estimated that there may have been some 85 million contraventions. His Honour accepted that the potential aggregate maximum penalty from the "vast number of contraventions" was a number well beyond what the Court would ever impose: see [82]. A similar approach was taken in the recent Full Court decision in Australian Competition and Consumer Commission v Reckitt Benckiser (Australia) Pty Ltd [2016] FCAFC 181 at [139]-[145].
144 In Registrar of Aboriginal and Torres Strait Islander Corporation v Matcham (No 2) [2014] FCA 27, Jacobson J imposed pecuniary penalties in respect of multiple contraventions of provisions of the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth). Section 386-10(1) of that Act provided that the Court could order a person to pay a pecuniary penalty if, inter alia, a declaration of contravention by the person had been made under s 386-1 of the Act. The applicant sought, and the Court made, 26 declarations of contravention by the respondent. Jacobson J made separate pecuniary penalty orders for each contravention in respect of which a declaration had been made. In its submissions in this matter, the Commissioner relied on the fact that three of the declarations that attracted separate penalties in Matcham in fact encapsulated multiple contraventions. Jacobson J accepted that a single penalty should be imposed in respect of those "compendious" declarations because that was the way the contraventions had been expressed in the statement of agreed facts and because the individual payments that constituted the contraventions were small.
145 The decisions in both Coles Supermarkets and Matcham tend to suggest that that it may be permissible and appropriate for the Court to impose a single pecuniary penalty for multiple contraventions of a civil penalty provision or provisions having regard to the approach jointly taken by the parties in the pleadings, statement of agreed facts, and submissions. In particular, where the parties jointly propose to the Court that, having regard to the particular facts and nature of the contraventions, it would be appropriate to impose a single penalty, or to group the contraventions in terms of separate courses of conduct and impose single penalties in respect of those groups, the Court may accept that proposal and order a single penalty, or single penalties in respect of groups of contraventions.
146 That approach is, in many respects, not dissimilar to the approach that the High Court has said should be taken to agreed penalty submissions in civil penalty cases: Commonwealth v Director, FWBII. Just as the Court may approve a compromise of pecuniary penalty proceedings on terms proposed by the parties, provided that the Court is persuaded that what is proposed is appropriate, the Court may also accept a proposal to impose a single penalty for multiple contraventions where it is persuaded that such a course is appropriate in the circumstances of the case.
147 It is also consistent with the practical and pragmatic approach that is sometimes taken in criminal sentencing cases involving multiple offences, where the prosecutor presents an indictment that contains a single "rolled-up" count or charge that in fact alleges multiple transgressions: Best v R [2015] VSCA 151; (2015) 46 VR 196 at [66]. Such a single charge would, if challenged by the accused, be considered to be duplicitous and impermissible, however a guilty plea may be accepted in relation to such a rolled-up charge and a single sentence imposed: R v Richard [2011] NSWSC 866 at [104]. Importantly, however, where the Crown, with the consent of the accused, presents an indictment with a single rolled-up count that involves multiple contraventions, the maximum penalty is the maximum penalty for one offence only: R v Richard at [105]; R v Donald [2013] NSWCCA 238 at [85].
148 The important point to emphasise is that, contrary to the Commissioner's submissions, neither the course of conduct principle nor the totality principle, properly considered and applied, permit, let alone require, the Court to impose a single penalty in respect of multiple contraventions of a pecuniary penalty provision. There is no doubt that, in an appropriate case involving multiple contraventions, the Court should consider whether the multiple contraventions arose from a course or separate courses of conduct. If the contraventions arose out of a course of conduct, the penalties imposed in relation to the contraventions should generally reflect that fact, otherwise there is a risk that the respondent will be doubly punished in respect of the relevant acts or omissions that make up the multiple contraventions. That is not to say that the Court can impose a single penalty in respect of each course of conduct. Likewise, there is no doubt that in an appropriate case involving multiple contraventions, the Court should, after fixing separate penalties for the contraventions, consider whether the aggregate penalty is excessive. If the aggregate is found to be excessive, the penalties should be adjusted so as to avoid that outcome. That is not to say that the Court can fix a single penalty for the multiple contraventions.
149 In an appropriate case, however, the Court may impose a single penalty for multiple contraventions where that course is agreed or accepted as being appropriate by the parties. It may be appropriate for the Court to impose a single penalty in such circumstances, for example, where the pleadings and facts reveal that the contraventions arose from a course of conduct and the precise number of contraventions cannot be ascertained, or the number of contraventions is so large that the fixing of separate penalties is not feasible, or there are a large number of relatively minor related contraventions that are most sensibly considered compendiously. As revealed generally by the reasoning in Commonwealth v Director, FWBII, there is considerably greater scope for agreement on facts and orders in civil proceedings than there is in criminal sentence proceedings. As with agreed penalties generally, however, the Court is not compelled to accept such a proposal and should only do so if it is considered appropriate in all the circumstances. It is also at the very least doubtful that such an approach can be taken if it is opposed or the proceedings are defended.