CONCLUSION
88 In the circumstances, the determinations by the trial judge concerning the imposition of penalties (or in the case of Mr Allen, the failure to do so) should be set aside. It falls to this Court to determine appropriate penalties.
89 As the trial judge recognised, both specific and general deterrence are significant considerations when fixing penalties for contraventions of legislative provisions such as those under consideration. Penalties will serve as a deterrent only if they are fixed at a meaningful level.
90 Relevantly, the purpose of s 43 of the BCII and s 298P of the WR Act was to prevent coercive conduct intended to prejudice employees and employers who elected to have their relationship regulated by industrial instruments of their choosing. The Union sought to prevent employees engaged under AWAs from working on a site on which some of its members were employed. It was not prepared to countenance such a possibility and was prepared to, and did, resort to unlawful coercive conduct to prevent it. This was but another example of what Lander J described in Ponzio at [110] as "a calculated indifference" on the part of the Union and its officials to statutory provisions which were introduced to curb such conduct.
91 As already noted, the appellant, at trial, relied on eighteen prior instances of relevant conduct by the Union which had led to the imposition of civil penalties. The common feature of these earlier cases was that they involved unlawful industrial action with a view to pressuring employers and workers to take action or make concessions demanded by the Union.
92 Although, in each of the cases, the impugned conduct had occurred wholly, or in substantial part, prior to the presently relevant events, the penalty hearings in most of them post-dated November 2005. We cannot therefore, and do not, proceed on the basis that, when the Union committed the present contraventions, it did so in the knowledge that Courts had considered all similar earlier conduct by it to have contravened industrial legislation. That prior similar conduct, however, does have relevance to our present task as indicating a propensity, on the part of the Union, to engage in proscribed conduct. The weight to be attached to this consideration will not be as great where the prior similar conduct had not led to the imposition of a penalty before November 2005: cf R v McInerney (1986) 42 SASR 111 at 113 and 124.
93 The principle of parity of sentencing requires us to have regard to the penalties imposed on Walton by Ryan J. His Honour imposed a penalty of $40,000 for Walton's contravention of s 45 of the BCII Act and $10,000 for its contravention of s 298K of the WR Act. The penalties were agreed on between the parties. Nonetheless, Ryan J was not bound by the agreement and would have been free to impose a different penalty had he regarded the agreed sum as being unduly lenient or severe: see NW Frozen Foods at 295. For the reasons which we have already given, we consider that the conduct of the Union was more reprehensible than that of Walton.
94 The Union has expressed no contrition for its conduct.
95 Some credit must be allowed for the fact that the Union, albeit at a late stage of the pre-trial process, was prepared to admit that it had contravened particular statutory provisions and subscribed to an Agreed Statement of Facts.
96 In the circumstances we consider that the appropriate penalty to impose for the Union's contravention of s 43 of the BCII is $50,000. Having regard to the totality principle we are not disposed to disturb the penalties imposed by the trial judge in respect of the contraventions of s 45 of the BCII Act and s 298P of the WR Act.
97 No prior misconduct is alleged against any of the individual respondents. Like the Union they are entitled to the benefit of their admissions and willingness to be parties to the Agreed Statement of Facts. Their admitted contraventions constituted serious breaches of the legislation. They acted deliberately. They succeeded in forcing Walton and Monjon to act in a way they would not have otherwise done to the detriment of Monjon and its employees. They have expressed no remorse for what they did. Although the offending conduct of the individual respondents differed, we do not consider it appropriate to discriminate between them in fixing penalties. Mr Allen was the person who was most actively involved at the worksite. He was, however, relatively junior in the Union hierarchy. Mr Benstead and Mr Oliver knew what Mr Allen was doing but made no attempt to direct him, as they should have done, to desist. On the contrary, they encouraged him to act in contravention of the law.
98 We consider that the appropriate penalties for their contraventions of s 43 of the BCII Act should be:
· Mr Allen - $8,000;
· Mr Benstead - $8,000; and
· Mr Oliver - $8,000.
99 The penalties for their contravention of s 45 of the BCII Act should be:
· Mr Allen - $1,250;
· Mr Benstead - $1,250; and
· Mr Oliver - $1,250.
100 The penalties for their contravention of s 298P of the WR Act should be:
· Mr Allen - $750;
· Mr Benstead - $750; and
· Mr Oliver - $750.
101 We consider it appropriate to suspend half of each of the penalties imposed on the individual respondents for a period of 12 months on conditions similar to those imposed by the trial judge.
102 The penalties (save for the suspended portions) should be paid into Consolidated Revenue within 30 days of the date of the orders being made.
103 The respondents sought to tender the media release of the Acting Australian Building and Construction Commissioner for the purpose of demonstrating that the penalties imposed by the trial judge were not, as claimed by the appellant, manifestly inadequate. We have not found it necessary to deal with the appellant's submission that the penalties imposed at trial were manifestly inadequate. It is not, therefore, strictly necessary for us to rule on the admissibility of the affidavit on which the respondents sought to rely (to which the press release was exhibited) or the answering affidavit filed on behalf of the appellant. We do, however, consider that the material was inadmissible.
104 The media release post-dated the primary judge's reasons but the Court has a discretion to receive it as further evidence under s 27 of the Federal Court of Australia Act 1976 (Cth) ("the FCA Act"). Nevertheless, the ordinary requirements for the exercise of the discretion to receive fresh evidence include a requirement of cogency of the evidence to be adduced: Orr v Holmes (1948) 76 CLR 632 at 642 per Dixon J (as he then was); Council of the City of Greater Wollongong v Cowan (1955) 93 CLR 435 at 444 per Dixon CJ. The views of a regulator on the question of penalty may be of assistance to a judge, but they are not determinative of the question which must always be one for the Court having regard to the circumstances of the particular case: NW Frozen Foods at 290 per Burchett and Kiefel JJ. It follows in our view that the statement in the media release does not meet the test for admissibility under s 27 of the FCA Act.
I certify that the preceding one hundred and four (104) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Goldberg, Jacobson & Tracey .