Australian Building and Construction Commissioner v Powell

BROMBERG J: 1 This proceeding concerns four allegations of the breach of s 494(1) of the Fair Work Act 2009 (Cth) ("FW Act"). 2 Section 494(1) of the FW Act relevantly provided that an "official of an organisation must not exercise a State or Territory OHS right unless the official is a permit holder". 3 The applicant ("ABCC") alleges that the respondent ("Mr Powell") contravened s 494(1) by entering a construction site at Ringwood in Victoria ("premises") occupied by Kane Constructions Pty Ltd ("Kane") on four occasions between 21 May 2014 and 28 October 2014. At the relevant times, Mr Powell was an employee and an organiser of the Construction, Forestry, Mining and Energy Union (now the Construction, Forestry, Maritime, Mining and Energy Union). Mr Powell was an "official of an organisation" within the meaning of s 494(1) of the FW Act but not a "permit holder" within the meaning of that provision. 4 On each occasion that Mr Powell entered the premises, he did so for the purpose of assisting the duly elected health and safety representative for the premises ("HSR"), a Mr Curnow, and in response to a request made by him pursuant to s 58 of the Occupational Health and Safety Act 2004 (Vic) ("OHS Act"). Section 58(1)(f) of the OHS Act allowed an HSR to, whenever necessary, seek the assistance of any person. Section 70(1) of the OHS Act required an employer, any of whose employees are members of a designated work group, to allow a person assisting an HSR access to the workplace unless the employer considered that the person was not a suitable person to assist the HSR because of insufficient knowledge of occupational health and safety. 5 A threshold issue arose at trial as to whether, upon entering the construction site on each occasion in question, Mr Powell was exercising a "State or Territory OHS right" for the purposes of s 494(1) of the FW Act. If Mr Powell was exercising such a right, and given that Mr Powell was an official but not a permit holder, it would follow that Mr Powell contravened s 494(1) of the FW Act. The constructional issue was determined in Mr Powell's favour at first instance (Director of the Fair Work Building Industry Inspectorate v Powell [2016] FCA 1287) but on appeal, that result was reversed and the proceeding remitted to me (Australian Building and Construction Commissioner v Powell (2017) 251 FCR 470). 6 On the remittal, it is necessary for me to deal with the question of liability in accordance with the Full Court's determination that ss 58(1)(f) and 70 of the OHS Act confer a "State or Territory OHS right" within the meaning of s 494(1) of the FW Act. 7 It follows, as Mr Powell has now admitted, that he was required to have a permit under the FW Act to exercise the right conferred by s 70 of the OHS Act and, because he held no such permit, s 494(1) was contravened on each occasion that Mr Powell entered the premises. 8 The ABCC seeks declaratory relief and the imposition of pecuniary penalties.

declaration 9 The declaration sought is as follows: A declaration that the Respondent contravened s 494(1) of the Fair Work Act 2009 (Cth) (FW Act) on: a) 21 May 2014; and b) 22 May 2014; and c) 15 July 2014; and d) 28 October 2014, by exercising a State or Territory OHS right without an entry permit issued by the Fair Work Commission pursuant to s 512 of the FW Act. 10 The parties are agreed that a declaration in those terms should be made. There is utility in the making of the declaration. It has educative value and it is appropriate to formally record the basis upon which the proceeding has been resolved. I will make a declaration in the form sought.

Pecuniary Penalties 11 In order to deal with the ABCC's application for the imposition of penalties, it is necessary to set out the relevant facts in more detail. The relevant facts are agreed and have been set out in an "Amended Statement of Agreed Facts and Admissions". The following account of relevant events is based on those agreed facts.

Entry on 21 May 2014 12 On 21 May 2014, Mr Curnow contacted Mr Powell and requested that he attend the premises to assist Mr Curnow in his capacity as the HSR for the project. This was to provide assistance in relation to a safety issue relating to the correct installation of bolts used on handrail staunchings on the premises, and to Mr Curnow's concerns regarding the stability of the ground where heavy machinery was to be operating in light of recent heavy rain. 13 Mr Powell entered the premises at approximately 11AM for the purposes detailed above. When asked by a representative of Kane what he was doing on the premises, Mr Powell said "[I'm] here to assist the HSR", and he quoted s 58 of the OHS Act. Mr Powell was asked to show his permit and he replied "I don't have to as I am not attending under the FW Act". After he refused to produce a permit, Mr Powell was asked to leave the premises. Mr Powell did not leave the premises as requested and carried out the inspections of the safety issues, in the company of, and at the request of, Mr Curnow. 14 Representatives of Kane called the police who attended and spoke with Mr Powell, he advised that he was on site pursuant to a request under s 58 of the OHS Act and therefore did not require a FW Act permit. Mr Curnow confirmed to police that he had made such a request and that he wanted Mr Powell on site. The police did not remove Mr Powell from the premises. 15 Mr Powell conducted a safety walk with Mr Curnow and discussed various safety concerns with Kane representatives. Mr Powell left the premises at approximately 2:55PM. Mr Curnow requested that Mr Powell attend the following day to continue to assist him with the safety issues.

Entry on 22 May 2014 16 On 22 May 2014, Mr Powell entered the premises at approximately 8AM to assist with the safety issues. When asked by a representative of Kane what he was doing at the premises, Mr Powell said "I'm here to assist the HSR". Mr Powell was asked to show his permit and replied "[u]nder the OHS Act I don't need a permit". After he refused to produce a permit, Mr Powell was asked to leave the premises. Mr Powell refused to leave the premises. 17 A WorkSafe Victoria Inspector ("WS Inspector") attended the premises and prepared an Entry Report pursuant to s 103 of the OHS Act. Mr Powell advised the WS Inspector that he had previously dealt with ground compaction issues and was on site to provide advice to Mr Curnow. The WS Inspector informed Mr Powell, Mr Curnow and representatives of Kane that he considered Mr Powell was a suitable person to assist Mr Curnow and that Mr Curnow had the right under s 58 to seek assistance from Mr Powell. The WS Inspector advised Mr Curnow of his right to apply to the Magistrates' Court under s 70(2) of the OHS Act. 18 At 10:45AM Mr Powell was arrested by Victoria Police and removed from the premises. Mr Powell was charged with refusing to leave a private place without lawful excuse after being asked to do so under s 9(f) of the Summary Offences Act 1966 (Vic). The police subsequently withdrew all charges against Mr Powell.

Entry on 15 July 2014 19 On or about 15 July 2014, Mr Curnow telephoned Mr Powell and requested that he attend the premises to assist Mr Curnow, in his capacity as the HSR for the project, with safety concerns he had regarding scaffolding at the premises. Mr Powell entered the premises at approximately 11.10AM on 15 July 2014. When asked by a representative of Kane whether he had a permit, Mr Powell replied 'I'm here under the OHS Act". After he refused to produce any permit, Mr Powell was asked to leave the premises. Mr Powell refused to leave the premises, and carried out some inspections at the premises relevant to the safety concerns, in the company of, and at the request of, Mr Curnow. 20 Members of Victoria Police attended the premises at approximately 11AM, but referred to the earlier case against Mr Powell and refused to remove him from the premises. Mr Powell left the premises at approximately 12:00PM.

Entry on 28 October 2014 21 Mr Curnow contacted Mr Powell on 28 October 2014 and requested that Mr Powell attend the premises to assist him in his capacity as the HSR, to provide assistance in relation to safety issues as a result of damage at the premises caused by storms and high winds. On 28 October 2014 Mr Powell entered the premises at approximately 9:25AM. When asked by a representative of Kane what he was doing at the premises, Mr Powell said "I'm on site to assist the site rep with OHS issues". Mr Powell was asked to leave the premises because he did not have a permit. Mr Powell refused to leave the premises, telling representatives of Kane that he was allowed to be on the premises. Mr Powell carried out some inspections relevant to the safety issues at the premises, in the company of, and at the request of, Mr Curnow. Mr Powell left the premises at approximately 9:45AM.

The position of the parties 22 The ABCC submitted that the Court should impose a mid-range penalty for each contravention. In contrast, Mr Powell submitted that in respect of the first contravention (the entry on 21 May 2014) a penalty in the low range should be imposed, and in respect of the second, third and fourth contraventions, no penalty should be imposed at all.

Applicable principles 23 The general principles relevant to the imposition of penalties under the FW Act are well settled and are not in contest. I was referred to various authorities on whether it might be appropriate not to impose any penalty at all and also to authorities dealing with the totality principle and the question of whether several contraventions should be regarded as a single course of conduct and be penalised as one contravention. I will return to consider those particular questions later. 24 The following survey of the authorities in Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union ("Cardigan St Case") [2018] FCA 957 at [48]-[54] Bromberg J, identifies the applicable principles for the imposition of penalties pursuant to s 546(1) of the FW Act. [48] Section 546(1) of the FW Act provides no express guidance in relation to the determination of an appropriate pecuniary penalty in respect of the contravention of a civil remedy provision under the FW Act. The section simply says that the Court may make an order imposing a pecuniary penalty the Court considers is appropriate. [49] However, the authorities provide substantial guidance. The purpose of a civil penalty is primarily, if not wholly, protective to promote the public interest in compliance: Commonwealth of Australia v Director of the Fair Work Building Industry Inspectorate (2015) 258 CLR 482 (the "Agreed Penalties Case") at [54]-[55] (French CJ, Kiefel, Bell, Nettle and Gordon JJ). This objective is achieved by putting a price on contraventions that is sufficiently high to deter repetition by the contravenor and by others who might be tempted to contravene. Both specific and general deterrence are important considerations: Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCAFC 113 (the "QLD Infrastructure Case") at [98] (Dowsett, Greenwood and Wigney JJ). [50] In relation to specific deterrence, it has been frequently observed that a pecuniary penalty for a contravention of the law must be fixed with a view to ensuring that the penalty is not to be regarded by the offender or others as an "acceptable cost of doing business": Australian Competition and Consumer Commission v TPG Internet Pty Ltd (2013) 250 CLR 640 at [66] (French CJ, Crennan, Bell and Keane JJ); Singtel Optus Pty Ltd v Australian Competition and Consumer Commission [2012] FCAFC 20 at [62]-[63] (Keane CJ, Finn and Gilmour JJ). On the other hand, general deterrence is directed at sending a message to a broader audience that contraventions of the kind under consideration are serious and not acceptable: Australian Securities and Investments Commission v Southcorp Ltd (No 2) (2003) 130 FCR 406 at [32] (Lindgren J). [51] The fixing of a pecuniary penalty involves the identification and balancing of all the considerations relevant to the contravention and the circumstances of the respondent, and making a value judgment as to what is the appropriate penalty in light of the protective and deterrent purposes of a pecuniary penalty. This process has been described as an "instinctive synthesis" akin to that undertaken in criminal sentencing: Markarian v The Queen (2005) 228 CLR 357 at [51] (McHugh J); QLD Infrastructure Case at [100]. [52] A non-exhaustive list of the considerations that may be relevant when fixing a pecuniary penalty is conveniently set out in the QLD Infrastructure Case, where the Full Court identified those considerations that relate to the objective nature and seriousness of the offending conduct, and those that concern the particular circumstances of the respondent in question in the following terms: [103] The factors relating to the objective seriousness of the contravention include: the extent to which the contravention was the result of deliberate, covert or reckless conduct, as opposed to negligence or carelessness; whether the contravention comprised isolated conduct, or was systematic or occurred over a period of time; if the defendant is a corporation, the seniority of the officers responsible for the contravention; the existence, within the corporation, of compliance systems and whether there was a culture of compliance at the corporation; the impact or consequences of the contravention on the market or innocent third parties; and the extent of any profit or benefit derived as a result of the contravention. [104] The factors that concern the particular circumstances of the defendant, particularly where the defendant is a corporation, generally include: the size and financial position of the contravening company; whether the company has been found to have engaged in similar conduct in the past; whether the company has improved or modified its compliance systems since the contravention; whether the company (through its senior officers) has demonstrated contrition and remorse; whether the company had disgorged any profit or benefit received as a result of the contravention, or made reparation; whether the company has cooperated with and assisted the relevant regulatory authority in the investigation and prosecution of the contravention; and whether the company has suffered any extra-curial punishment or detriment arising from the finding that it had contravened the law. [53] In determining the appropriate penalty, the Court must also give consideration to the maximum penalty for the contravention. As the Full Court observed in the QLD Infrastructure Case at [106], there are at least three reasons for this: first, that the legislature has legislated for the maximum penalty as an expression of the legislature's policy concerning the seriousness of the prescribed conduct; second, that it permits comparison between the case under consideration and the worst possible case (where the maximum penalty can be treated as the penalty appropriate for the worst possible case); and third, that the maximum penalty provides a "yardstick" which should be taken and balanced with all the other relevant factors. [54] While giving appropriate significance to the principle of deterrence, the amount of the penalty should also be proportionate to the contravention and should not be so high as to be oppressive: Trade Practices Commission v Stihl Chainsaws (Aust) Pty Ltd (1978) ATPR 40-091 (Smithers J) at 17,896; NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission (1996) 71 FCR 285 at 293 (Burchett and Kiefel JJ); QLD Infrastructure Case at [107]. 25 The observation made at [54] of the Cardigan St Case is supported by more recent authority. 26 Three Full Courts of this Court have recently emphasised the importance of determining a penalty which is proportionate to the contravening conduct in the context of any need to take into account a contravener's prior contraventions. 27 In Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Non-Indemnification Personal Payment Case) [2018] FCAFC 97, Allsop CJ, White and O'Callaghan JJ observed (at [22]): The overwhelming importance of deterrence as the protective purpose of the penalty does not exclude the need to determine a penalty which is proportionate to the contravening conduct. The history of contravention is to be taken into account in fixing the proper level of penalty for the proportionate response to the contravention in question. Proportionality has within it the need to characterise the seriousness of the contravention. Proportionality of penal response to a contravention assessed by reference to its seriousness and gravity is an essential characteristic of the application of the statute. The penal response is for that contravention, not earlier contraventions: Veen v The Queen [No 2] [1988] HCA 14; 164 CLR 465 at 477-478. Prior contraventions may reveal an apparent disregard for the Act and the need for deterrence by a penalty at a level appropriate to achieve that objective. It is to be borne in mind, however, that it is for the conduct in question that the penalty is imposed, not for prior conduct. 28 Relying on the Non-Indemnification Personal Payment Case and the reasons of Bromwich J in Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Broadway on Ann Case) [2018] FCAFC 126, Allsop CJ, Collier and Rangiah JJ said the following in Auimatagi v Australian Building and Construction Commissioner [2018] FCAFC 191 (at [176]): It is a fundamental principle, at the core of the judicial power to impose a penalty, that the imposition is for the contravention in question. Prior contraventions, even so many and often so serious as the Union may have engaged in in the past, is a factor which may be taken into account in determining the appropriate quantum for the contravention; it cannot be taken to lead to a penalty that is disproportionate to the gravity of the instant contravention. The maximum is for the worst category of cases. 29 Endorsing the observations in the Non-Indemnification Personal Payment Case quoted above at [28], Besanko and Bromwich JJ (with whom Reeves J agreed) in Parker v Australian Building and Construction Commissioner [2019] FCAFC 56 at [339]-[348] elaborated upon the applicable principles by emphasising that: a court in imposing civil penalties is entitled to have regard to prior contravention in the exercise of its discretion, but not so as to permit such a history to be given such weight as to lead to the imposition of a penalty that is disproportionate to the gravity of the contravention that is being considered; the role of any past contravention should be no more than a prism through which to view the instant contravention; where past contraventions manifest an ongoing attitude of disobedience to the law, the heightened need for deterrence may indicate that a more severe penalty is warranted for the instant contravention; nonetheless, the penalty must still fall within the applicable range that is otherwise considered appropriate for the instant contravention. 30 The well settled principles most recently expressed in Parker call for a structured approach to the imposition of a penalty on a contravener with a history of contraventions, the object of which is to ensure that the contravener does not "suffer the fate of being sanctioned anew for past contraventions" (at [341]). First, the Court must identify the applicable range of penalties for that contravention without regard to the contravener's prior history of contraventions. Having done that, the Court should then take into account that history in assessing where, within the applicable range, the penalty should fall.

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.