A concerted campaign by the CFMEU
65 The Director submitted that the penalties to be imposed for the contraventions of s 500 at the Lend Lease sites in this Action should reflect the circumstance that they occurred in the course of a concerted and deliberate campaign by the CFMEU and the individual respondents involving the entry of building sites without providing notices of entry. It could be inferred, he submitted, that such a campaign had been endorsed, if not initiated, by senior management within the CFMEU. He referred to a number of matters indicating the existence of the campaign.
66 First, the entries at four sites (the Flinders University site, the TAFE site, the Convention Centre site and the Adelaide Oval site) on 30 October 2013 and then again at the Adelaide Oval site on 31 October 2013, 12 November 2013 and 13 November 2013 had a close temporal proximity. In addition, the entries involved conduct of a similar kind. The Director submitted that these matters by themselves were indicative of a campaign.
67 Secondly, the Director noted that it had been the practice of CFMEU officials when exercising rights of entry at the sites previously to provide notices of entry as required by s 487 of the FW Act. See the Court's findings in [2015] FCA 1293 at [32], [129], [150] and [177]. This suggested that the entries in late October and early November 2013 without the prior provision of notices reflected a deliberate change of policy by the CFMEU.
68 Thirdly, the Director referred to statements made by some of the individual respondents which indicated that this was so. These included Mr Gava's response when asked by Mr Crabb to leave the Flinders University site, "this is the way it's done now"; Mr Gava's response to Mr Gooding at the TAFE site when told that he could not go onto the site, "we'll be doing whatever we want to do"; Mr Gava's later response to Mr Gooding, "we're not going to be filling out right of entry notices … that's come from the Secretary"; Mr Gava's statement to Mr Burgess at the TAFE site, "we've been instructed to do this by our boss, whether that's right or wrong, that's not our decision"; Mr O'Connor's response to Mr McMahon at the Convention Centre site when told an entry notice was required, "we won't be putting a notice in, we'll be going onto site anyway"; Mr Roberts' statement to Mr Ising at the Adelaide Oval site, "this is the way of the world until your managers talk to our managers"; and Mr Beattie's statement to Mr Hay at the Convention Centre site on 30 October 2013 that his conduct was "part of a national drive focused on Lend Lease".
69 Next, the Director referred to the involvement of Mr McDermott in several of the contraventions. Mr McDermott was at material times the Assistant Secretary of the Construction and General Division of the CFMEU in South Australia. As such he was one of the CFMEU's senior officials in South Australia. The Director submitted that the involvement of such a senior official was indicative of organised action.
70 Finally, the Director pointed to the circumstance that, on most occasions, several organisers attended each site, with some of those organisers coming from branches of the CFMEU other than its South Australian Branch. There was no evidence of an "innocent" purpose accounting for those organisers being in Adelaide. He submitted that this too was indicative of a concerted campaign being made in Adelaide, as it tended to confirm Mr Beattie's statement to Mr Hay that the CFMEU had a "national drive" directed at Lend Lease.
71 I consider that, subject to one qualification, the evidence strongly supports the Director's submission. I am satisfied that, in late October 2013, the CFMEU had decided upon a form of concerted action which involved deliberate entry onto Lend Lease building sites without providing a notice of entry. It is not necessary to make findings about the purpose of the campaign but I note that, on several occasions during the subject entries, reference was made, whether expressly or by implication, to the CFMEU wish that Lend Lease employ a permanent CFMEU delegate on each site. Whatever its purpose, I am satisfied that the CFMEU and its officials were engaged in a concerted campaign at Lend Lease sites in Adelaide in deliberate defiance of the requirements in the FW Act regarding the exercise of rights of entry. I agree that the conduct of the respondents on 30 and 31 October 2013 should be assessed in that light. It means that the contraventions are to be regarded as deliberate and pre-meditated. This is a significant matter of aggravation.
72 The qualification relates to the entries at the Adelaide Oval site on 12 and 13 November 2013. These entries seem to be qualitatively different from the entries on 30 and 31 October: they did not involve the attendance of multiple organisers, including organisers from outside South Australia; the conduct on those occasions appears to be different from that occurring on 30 and 31 October 2013; the entries on those dates appear to have been prompted by concerns about the cricket match which was to commence on 13 November 2013, and the entry on 13 November did not involve a contravention of s 500 at all. I am not satisfied that these entries were part of the concerted campaign by the CFMEU as alleged by the Director.
73 The respondents did not concede that their conduct at the Lend Lease building sites was the implementation of a concerted campaign. They did not, however, advance any submission to the contrary. The respondents submitted instead that, if the Court accepted the Director's submission, it should have the consequence that all of the contraventions be treated as incidents in a single course of action, and penalties imposed on that basis.
74 In my opinion, this submission should not be accepted as, to do so, would involve a misapplication of accepted principles relating to the relevance of a course of conduct or, as it is sometimes called, the "single transaction" principle. It is necessary to say a little more about the principle.
75 The judgment of Owen JA in Royer v Western Australia [2009] WASCA 139 is often cited as a convenient statement of the one transaction principle. Owen JA said:
[22] … At its heart, the one transaction principle recognises that, where there is an interrelationship between the legal and factual elements of two or more offences with which an offender has been charged, care needs to be taken so that the offender is not punished twice (or more often) for what is essentially the same criminality. The interrelationship may be legal, in the sense that it arises from the elements of the crimes. It may also be factual, because of a temporal or geographical link or the presence of other circumstances compelling the conclusion that the crimes arise out of substantially the same act, omission or occurrences.
…
[24] Because of the wide variety of circumstances in which the principle can arise it is not always easy to reconcile the way it has been applied in individual cases. But what can be detected in each case is an examination of the closeness of the interrelationship and the danger of double jeopardy in so far as punishment (not criminal liability) is concerned. In this respect, I think it is worth repeating what Wells J said in Attorney-General v Tichy (1982) 30 SASR 84, 92-93:
"It is both impracticable and undesirable to attempt to lay down comprehensive principles according to which a sentencing judge may determine, in every case, whether sentences should be ordered to be served concurrently or consecutively. According to an inflexible Draconian logic, all sentences should be consecutive, because every offence, as a separate case of criminal liability, would justify the exaction of a separate penalty. But such a logic could never hold. When an accused is on trial it is part of the procedural privilege to which he is entitled that he should be made aware of precisely what charges he is to meet. But the practice and principles of sentencing owe little to such procedure; what is fitting is that a convicted prisoner should be sentenced, not simply and indiscriminately for every act that can be singled out and brought within the compass of a technically identifiable conviction, but for what, viewing the circumstances broadly and reasonably, can be characterised as his criminal conduct. Sometimes, a single act of criminal conduct will comprise two or more technically identified crimes. Sometimes, two or more technically identified crimes will comprise two or more courses of criminal conduct that, reasonably characterized, are really separate invasions of the community's right to peace and order, notwithstanding that they are historically interdependent; the courses of criminal conduct may coincide with the technical offences or they may not. Sometimes, the process of characterization rests upon an analysis of fact and degree leading to two possible answers, each of which, in the hands of the trial judge, could be made to work justice. The practice of imposing either concurrent or consecutive sentences cannot avoid creating anomalies, or apparent anomalies, from time to time. What must be done is to use the various tools of analysis to mould a just sentence for the conduct of which the prisoner has been guilty. Where there are truly two or more incursions into criminal conduct, consecutive sentences will generally be appropriate. Where, whatever the number of technically identifiable offences committed, the prisoner was truly engaged upon one multi-faceted course of criminal conduct, the judge is likely to find concurrent sentences just and convenient."
[25] It seems to me, with respect, this is an admirable distillation of the principle. …
76 The principle has been applied in the context of industrial offences. In CFMEU v Cahill to which I referred earlier, Middleton and Gordon JJ said:
[39] … The principle recognises that where there is an interrelationship between the legal and factual elements of two or more offences for which an offender has been charged, care must be taken to ensure that the offender is not punished twice for what is essentially the same criminality. That requires careful identification of what is "the same criminality" and that is necessarily a factually specific enquiry. Bare identity of motive for commission of separate offences will seldom suffice to establish the same criminality in separate and distinct offending acts or omissions.
(Emphasis in the original)
See also, Mornington Inn v Jordan at [51].
77 From these passages, it can be seen that the single course of conduct principle is applicable when there is an inter-relationship between the legal and factual elements of two or more contraventions. As the last sentence in the quoted passage from CFMEU v Cahill indicates, "bare identity of motive" is unlikely to establish the requisite inter-relationship.
78 That observation is pertinent in the present case because the matter on which the respondents rely presently is the CFMEU's motive for the campaign. The respondents' purpose does not warrant the conclusion that everything done in pursuit of that purpose was part of a single course of conduct. The concerted campaign of the CFMEU may explain the conduct of its officials but it does not, at least by itself, provide the requisite inter-relationship between the contraventions to warrant the application of the single course of conduct principle.
79 In my opinion, it is appropriate to approach the matter on the basis discussed by Wells J in Tichy in the passage quoted in Royer, namely, by considering whether the conduct of the respondents comprising two or more contraventions can be properly characterised as constituting two or more incursions into contravening conduct and not incidents in "one multi-faceted course of [unlawful] conduct".