Construction, Forestry and Maritime Employees Union v Canberra Contractors Pty Ltd [2025] FCA 440

Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2017) 254 FCR 68; [2017] FCAFC 113

Australian Building and Construction Commissioner v Pattinson (2022) 274 CLR 450; [2022] HCA 13

Australian Competition and Consumer Commission v Cement Australia Pty Ltd (2017) 258 FCR 312; [2017] FCAFC 159

Australian Competition and Consumer Commission v Reckitt Benckiser (Australia) Pty Ltd (2016) 340 ALR 25; [2016] FCAFC 181

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Registered Organisations Commissioner (2020) 283 FCR 404; [2020] FCAFC 232

Construction, Forestry, Maritime, Mining and Energy Union v Fair Work Ombudsman (Boggo Road Cross River Rail Case) [2023] FCA 507

Construction, Forestry, Maritime, Mining and Energy Union v Richard Crookes Constructions Pty Ltd [2022] FCA 992

Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2016] FCA 413

Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37

Transport Workers' Union of Australia v Registered Organisations Commissioner (No 2) (2018) 267 FCR 40; [2018] FCAFC 203

The primary purpose of any civil penalty regime is to ensure compliance with the statutory regime by deterring future contraventions: Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate [2015] HCA 46; (2015) 258 CLR 482 (Agreed Penalties Case) at [24]. Civil pecuniary penalties are "primarily if not wholly protective in promoting the public interest in compliance [with the statute]": Agreed Penalties Case at [55] and [59], [68], [110], see also Australian Building and Construction Commissioner v Pattinson [2022] HCA 13; (2022) 175 ALD 282 (Pattinson (High Court)) at [15]˗[16], [43], [45]. The principal object of a pecuniary penalty is directed to deterrence. That is, specific deterrence of the contravenor and, by that example, general deterrence of other would-be contravenors: Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2018] HCA 3; (2018) 262 CLR 157 at [116].

The process of assessing a penalty is guided by a consideration of a number of well‑accepted factors: Kelly v Fitzpatrick [2007] FCA 1080; (2007) 166 IR 14 at [14], and see Trade Practices Commission v CSR Ltd [1990] FCA 762; (1991) ATPR 41‑076 at 52,152-52,153; ; at ‑[65]. It is important to remember that those lists of factors are judicial descriptions of likely relevant considerations applicable to the task of coming to the appropriate penalty, and such lists are useful as long as they "do not become transformed into a rigid catalogue of matters for attention": ; at ; at [19]. Relevant factors in a case of this nature include:

The principle of totality requires the Court to make a "final check" of the penalties to be imposed on a wrongdoer, considered as a whole, to ensure that the total penalty does not exceed what is proper for the entire contravening conduct: Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd [1997] FCA 450; (1997) 145 ALR 36 at 53, citing Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59.

(2017) 258 FCR 312

(2016) 340 ALR 25

(2020) 283 FCR 404

(1936) 55 CLR 499

(2014) 252 CLR 601

(2018) 267 FCR 40

(2015) 258 CLR 482

(2018) 262 CLR 157

(2007) 166 IR 14

(2008) 177 IR 306

(2008) 165 FCR 560

(1997) 145 ALR 36

(1988) 166 CLR 59

(2022) 274 CLR 450

(2017) 254 FCR 68