Consideration
31 The maximum penalty for a contravention of s 494(1) by an individual at the time of the contraventions was $10,200.
32 As the principles to which I have referred require, the factors relating to the objective nature and seriousness of each of the contraventions need to be considered. The relevant considerations are common to each of the contraventions. A weighty consideration is that the contraventions occurred in circumstances where, it is agreed, Mr Powell held a genuine (albeit mistaken) belief that what he was doing was lawful.
33 The question of whether s 58(1)(f) of the OHS Act conferred a "State of Territory OHS right" within the meaning of s 494(1) and, accordingly, whether an official of an organisation was required to be a permit holder in order to exercise that right, was, at the time of the contraventions, a novel question. It was also a difficult question of law in relation to which reasonable minds could readily differ. As both the first instance and appeal judgments reveal, there was no prior authority on point and pertinent to the resolution of that question. In that context, and accepting that Mr Powell held a genuine belief that his conduct was lawful, his conduct should be regarded as mistaken rather than deliberately and knowingly unlawful. The conduct should also be regarded as isolated and unlikely to be repeated, again by reason of a mistaken belief as to the law, given that the legal position has now been clarified.
34 However, I agree with the ABCC's contention that there is no general principle that, if a person contravenes a civil penalty provision on a genuine but mistaken view on an arguable question of law, there should be no penalty. Whether or not a penalty should be imposed will always depend on all of the circumstances considered principally by reference to the need for specific and general deterrence.
35 It is well settled and not in contest that an honest and reasonable belief may be a relevant mitigating or ameliorating factor in determining whether or not a penalty is to be imposed and, if so, the extent of the penalty imposed: Ostrowski v Palmer (2004) 218 CLR 493 at [2], Gleeson CJ and Kirby J and at [85], Callinan and Heydon JJ; Flight Centre Ltd v Australian Competition and Consumer Commission (No 2) (2018) 260 FCR 68 at [63]-[64] Allsop CJ, Davies and Wigney JJ; Australasian Meat Industry Employees' Union v Australia Meat Holdings [1998] FCA 664 at 4-5 Kiefel J; Australian Competition and Consumer Commission v Oobi Baby Pty Ltd [2008] FCA 1488 at [11] Finkelstein J; SMEC Holdings Pty Ltd v Commissioner of the Australian Federal Police [2018] FCA 609 at [39] Bromwich J; Construction, Forestry, Mining and Energy Union v Hail Creek Coal Pty Ltd (No 2) [2018] FCA 480 at [15] Rangiah J; and Fair Work Ombudsman v Transpetrol TM AS [2019] FCA 400 at [128] Rares J.
36 A contravention based on a mistaken belief of the law is mitigatory principally because that circumstance is likely to either diminish or negate the need for specific and/or general deterrence. That connection is apparent from what the Full Court said in Flight Centre at [64]:
Usually a belief in the innocence of conduct that is a contravention of the statute is not an ameliorating factor. Nevertheless the object of the imposition of a penalty is substantially deterrence - specific and general. It is relevant to know that the conduct was done believing it to be innocent and knowing that the party, now disabused of its belief, will not, or is likely not to, reoffend. Specific deterrence in such circumstances is of less significance.
37 To like effect, Gordon J stated in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Telstra Corporation Ltd [2007] FCA 1607 at [18]:
Where the unlawful conduct arises out of an arguable but erroneous construction of a relevant term, and the subsequent breach cannot be characterised as demonstrating a flagrant or wilful disregard for the agreement, [the legislative purpose of general deterrence] is not furthered by the imposition of a penalty. In these circumstances, neither general nor specific deterrence is a significant factor weighing in favour of imposing a penalty.
38 A further weighty consideration relevant to the nature and seriousness of the contraventions is that Mr Powell's conduct involved little or no impact or consequence for innocent third parties. It involved no loss or damage or misbehaviour of any kind. It is suggested by the applicant that some practical inconvenience was occasioned to Kane in that its employees had to confront Mr Powell and manage his attendance. But the evidence suggests that any such inconvenience would have been slight. Balanced against that is the assistance which Mr Powell provided to the HSR with the safety issues that were dealt with on each entry. Although the evidence does not provide any clear view, the amount of time given to the safety issues by Mr Powell likely resulted in his attendances assisting rather than impinging upon the efficient operation of the construction site. Lastly, there is no suggestion that Mr Powell derived any profit or benefit as a result of the contraventions.
39 There are two further matters necessary to consider before I turn to assess what contribution to the assessment is made by Mr Powell's particular circumstances, including his past history of contravening conduct.
40 First, Mr Powell contended that some distinction is to be drawn between the first contravention, where the appropriateness of a low-level penalty was conceded, and the other contraventions. The basis for that is the contention that Mr Powell was entitled to act with a higher degree of assurance that his conduct was lawful on the second, third and fourth entries. That was said to be so because actions of public officials had sanctioned his conduct. The facts relied upon were that Mr Powell was not removed by the police on his first entry; on the second entry, the WS Inspector informed Mr Powell and Kane that he considered Mr Powell to be a suitable person to assist Mr Curnow; despite Mr Powell being arrested by police and charged on the second occasion, those charges were later withdrawn; and that police refused to remove Mr Powell after he entered for the third time.
41 Second, the ABCC contended that Mr Powell could have sought legal redress to vindicate the right that he asserted he had and, relying on observations made by Wilcox, French and Gyles JJ in Universal Music Australia Pty Ltd v Australian Competition and Consumer Commission (2003) 131 FCR 529 at [308]-[310], the ABCC contended that Mr Powell took the risk that his conduct may be unlawful and that if a person "'takes the odds', [the person] must expect serious consequences if it miscalculates".
42 Both of those competing contentions are really addressing the nature and extent of Mr Powell's honest belief that his conduct was not unlawful. Neither contention is particularly persuasive. The evidence does not really permit a proper consideration of the strength or weakness of Mr Powell's honest belief, by reference to an objective assessment, of whether the belief was justified. In any event, a more pertinent question to ask on the issue of whether specific deterrence is required is whether, with the knowledge that Mr Powell has now been disabused of his prior belief, there remains a need to deter any re-offending?
43 To my mind, it is the novelty of the contravention and the absence of any real harm which speak loudest.
44 Unlike the position of the respondent in Universal Music, Mr Powell was not a sophisticated actor pursuing commercial purposes knowingly taking a calculated risk based on legal advice. It may be safely inferred that ordinary employees like Mr Curnow performing HSR roles, have regularly required the assistance of union organisers like Mr Powell, experienced in addressing safety issues, and that such assistance has been regularly provided for many years. There is no suggestion that the ABCC, as the relevant regulator, had warned union organisers in Mr Powell's position that the conduct was unlawful. This case was the first occasion that the ABCC, as the relevant regulator, had legally pursued an organiser in Mr Powell's position including, I would presume, for the purpose of clarifying a contestable point of law.
45 In my view, a law abiding person in Mr Powell's position, having been disabused of a prior honest belief in the context of a test case such as this, would be unlikely to re-offend. A penalty to address the need for specific deterrence is unlikely to be required in that situation.
46 Nor do the circumstances support the imposition of a penalty to provide for general deterrence. Unlike the circumstances in Universal Music, there is no need to send a message to law abiding persons in like circumstances to Mr Powell. An ambiguous legal position has been clarified. It is now clear that conduct of the kind undertaken by Mr Powell is unlawful. The Court's declaration to that effect will of itself send the requisite message. The imposition of a low-level penalty will be of little or no significance.
47 The difficulty for Mr Powell is that he has an extensive history of prior contraventions of the law in relation to industrial activities in which he was involved. Those contraventions relate to conduct occurring in 2004, 2005, 2008, 2009, 2010 and 2014. There are 20 contraventions, including one contravention in 2008 involving Mr Powell exercising his statutory right of entry in an improper manner. In total, pecuniary penalties of $127,600 have been imposed upon Mr Powell for his contravening conduct.
48 Mr Powell is not in the same position as that of the law abiding person who, in the circumstances, would have been entitled to the benefit of any doubt about whether a penalty was necessary to address specific deterrence. The need for specific deterrence is obviously higher in the case of a person with a history of contravening conduct because the history reveals a greater propensity or preparedness to contravene the law.
49 As earlier stated, it is necessary that, in taking into account past contraventions, the contravener does not suffer the fate of being sanctioned anew for past contraventions. Applying the two-step process identified at [30] above, for reasons earlier expressed and in relation to the objective nature and seriousness of the instant contravening conduct, in my view, the applicable range of penalties is at the very low end of the scale. I then take into account Mr Powell's very extensive history of past contraventions in assessing where, within the applicable range, the penalty should fall. In doing that, I also take into account that Mr Powell has genuinely cooperated with the conduct of this proceeding, including by making appropriate admissions of fact and of contravention and thereby sparing the Court and the parties of the need for a further contested trial. Those matters warrant a discount. In circumstances where the contraventions were based on an honest mistaken belief, I do not regard the absence of remorse or contrition to be a weighty consideration.
50 In the circumstances, a penalty of $1000 for each of the four contraventions is appropriate.
51 Section 557(1) of the FW Act provides that certain contraventions which arise out of a course of conduct are to be taken to constitute a single contravention. That provision has no application to a contravention of s 494(1). Nevertheless, the common law course of conduct principle is applicable. Relevant authorities are discussed in Parker at [267]-[288]. The principle recognises that where there is an interrelationship between the legal and factual elements of two or more contraventions, care must be taken to ensure that the contravener is not punished twice for what is essentially the same wrongdoing.
52 As was also stated in Parker at [274], the common law principles of course of conduct and totality are closely related. Whilst they must be considered separately, they need to be considered in the context of one another.
53 The following passage, in relation to the totality principle, from Mill v The Queen (1988) 166 CLR 59 at 63 (quoting with approval from Thomas, Principles of Sentencing, 2nd Edition (1979) at 56-7, references omitted from the quote) was applied by the court in Parker (at [297]):
The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is 'just and appropriate'. The principle has been stated many times in various forms: 'when a number of offences are being dealt with and specific punishments in respect of them are being totted up to make a total, it is always necessary for the court to take a last look at the total just to see whether it looks wrong[']; 'when ... cases of multiplicity of offences come before the court, the court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences'.
The Court in Parker further noted in relation to the above (at [298]) that "[t]here is no particular formula or form of words by which a judge must conduct the necessary review."
54 Mr Powell contended that the first and second contraventions arose out of a single course of conduct. I agree. Mr Powell accessed the premises on consecutive days to address the same request for assistance made by Mr Curnow. There is, in my view, a sufficient interrelationship between the legal and factual elements of the two contraventions to enable them to be characterised as essentially the same wrongdoing. The wrongdoing comprised of Mr Powell accessing the premises for a single purpose and as a result of a single request made under s 58 of the OHS Act. That Mr Powell entered the premises twice to obtain that access, does not make the access obtained on the first entry sufficiently separate and distinct from the access obtained on the second entry, to warrant the conclusion that it was not the same wrongdoing.
55 For that reason, I would reduce the penalty which I would otherwise have imposed for each of the first and second contraventions by 50%.
56 That discounting would result in an aggregate penalty for the four contraventions of $3,000. In the application of the totality principle I need to consider whether the aggregate is just and appropriate. In assessing the totality of the wrongdoing and taking into account the repetition or overlap involved, I consider that a further reduction is warranted in order that the aggregate penalty imposed totals $2,600.
57 I will make a declaration and orders to that effect.
58 No question as to costs arises.
I certify that the preceding fifty-eight (58) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromberg.