agreed pecuniary penalties and declaratory relief
17 The Court has the power to impose civil penalties for contraventions of civil penalty provisions by virtue of s 306 of the FWRO Act. In the case of bodies corporate, of which the HSU is one, not more than 300 penalty units. At the time of the contraventions, a penalty unit was $110, and consequently the maximum penalty is $33,000 for each contravention.
18 It is not unusual for parties to submit agreed civil penalties to the Court in cases like this where the facts have been agreed.
19 Whether or not a court should accept agreed civil penalties has recently attracted controversy with the Court of Appeal of the Supreme Court of Victoria in ASIC v Ingleby [2013] VSCA 49 criticising the approach taken by the Full Federal Court in NW Frozen Foods v Australian Competition and Consumer Commission (1996) 71 FCR 285 and the Minister for Industry, Tourism and Resources v Mobile Oil Australia [2004] FCAFC 72.
20 I considered the authorities in ACCC v AGL Sales [2013] FCA 1030 [12] - [44]. Relevantly for present purposes I concluded that:
[42] …provided the Court has, as it should, an overall view of the considerations relevant to the making of appropriate orders, being given any indication of an agreed position on penalty can be of assistance. This assistance could be given preferably by the providing of an 'agreed range', or by separate submission of the parties. In asking whether an agreed figure falls within the range of penalties reasonably available does not mean the court does not need to consider independently the appropriate penalty. It must do so in order to determine whether the range is in fact appropriate. As no one precise penalty figure is necessarily the only appropriate figure, the court will often consider the matter in terms of a permissible range in arriving at a final penalty. Of course, no agreed position, whether it be to a range or agreed figure, can be binding on the court.
[43] I do not believe, despite the comments made by the various justices in the Victorian Court of Appeal, that the reasoning adopted in NW Frozen Foods and Mobil Oil fetters the power of the court to determine the appropriate penalty. Nevertheless, the comments by the justices of the Court of Appeal are a useful reminder of the onerous responsibility placed upon a court in determining the appropriate orders.
21 I adopt what I said in ACCC v AGL Sales with respect to the imposition of agreed civil penalties in the present case.
22 With the above in mind, when the parties have agreed on a penalty, the Court must assess if the penalty is appropriate.
23 I have examined the Agreed Statement of Facts and Admitted Contraventions and believe that it sets out the facts, breaches and admissions sufficiently for me to assess the pecuniary penalty.
24 The principal purpose for the imposition of a financial penalty is deterrence: to deter the contravening party from repeating its contraventions, and more generally deterring others who may have contemplated engaging in similar conduct: Singtel Optus Pty Ltd v ACCC (2012) 287 ALR 249 at [41] and [62]-[64].
25 There are innumerable factors a court must consider when determining an appropriate pecuniary penalty: see for example the factors articulated by Tracey J in Kelly v Fitzpatrick [2007] FCA 1080 at [14].
26 It is important to appreciate that each of the contravened provisions are key to achieving the relevant statutory objectives, including setting standards to "encourage the efficient management of organisations and high standards of accountability of organisations to their members" (s 5(3)(c)).
27 Furthermore, ss 253 and 254 promote transparency and accountability in the financial management of organisations. The information that is required to be provided by these provisions enables the members of an organisation to understand the true financial position of the organisation, such that members are in a position to exercise appropriate control over the management.
28 Mitigating factors include the fact that the two contraventions both arose out of the failure to lodge statements concerning the 2006-2007 financial year; the HSU partially complied with its obligations; and the HSU has been contrite and cooperative, as indicated by joining in the Statement of Agreed Facts and Admitted Contraventions.
29 I have considered the maximum penalties available. I am content that the civil penalty of $22,500 acts as both a deterrent and is appropriate for the contravening conduct. It follows that I am satisfied that the penalty is appropriate and within the permissible range of penalties for breaches of the kind made by the HSU.
30 The parties have also agreed the declarations substantially in the form I propose to make.
31 The Court has discretion to make declarations pursuant to s 21 of the Federal Court of Australia Act 1976 (Cth).
32 I am content that the declarations properly identify the contravening conduct, and making the declarations registers the Court's disapproval of the contravening conduct.