McDonald v Australian Building and Construction Commissioner

Federal Court of Australia (Full Court)|2011-03-08|Before: Jagot JJ

The appeal be dismissed.
The appellants pay the respondent's costs of the appeal, as agreed or taxed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court's website.

IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION WAD 283 of 2010

THE CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION

AND: AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER

JUDGES: NORTH, MCKERRACHER, JAGOT JJ DATE: 8 MARCH 2011 PLACE: PERTH

THE APPEAL 1 In this appeal the appellants contend that the pecuniary penalties the primary judge imposed on them for contraventions of the Building and Construction Industry Improvement Act 2005 (Cth) (the BCII Act) should be set aside and lesser penalties imposed. 2 The first appellant is Joseph McDonald. Mr McDonald is an employee and officer of the second appellant, the Construction, Forestry, Mining and Energy Union (the CFMEU). 3 On 23 July 2010 the primary judge made declarations as follows: 1. That the industrial action undertaken on 15 July 2009 by building employees engaged on the City Square Project conducted by Brookfield Multiplex Constructions Limited was unlawful industrial action which involved a contravention of s 38 of the BCII Act. 2. By his conduct on that day, the [first appellant] was involved in the contravention within the meaning of s 48(2)(a) and (c) of the BCII Act and by the operation thereof is treated as having himself contravened s 38 of the BCII Act. 3. By the operation of s 69(1)(b) of the BCII Act, the conduct of the [first appellant] is taken also to be the conduct of the [second appellant]. 4 On 3 September 2010, and consequential on reasons for judgment published on the same day (Australian Building & Construction Commissioner v Construction, Forestry, Mining and Energy Union (No 2) (2010) 199 IR 373), the primary judge imposed penalties under s 49(5) of the BCII Act of $8,000 on the first appellant, Mr McDonald, and $40,000 on the second appellant, the CFMEU. The maximum penalty to which each was exposed was $22,000 and $110,000 respectively. 5 The appellants seek to set aside those penalties on five grounds said to identify errors of principle by the primary judge. The grounds may be summarised as follows: Ground 1: Failing to take any or any proper account of the motive for the contravening conduct and of the conduct not being an especially serious instance of contravention of s 38 of the BCII Act. Ground 2: Imposing a penalty calculated at 36% of the maximum penalty, which was an incorrect approach and did not take any or any proper account of the opportunistic (rather than deliberate) nature of the contravening conduct, the appellants' genuine concern for workers' safety, and the primary judge's own characterisation of the conduct as falling at the lower end of the scale of seriousness. Ground 3: Imposing the same percentage penalty on the second appellant as on the first appellant, and thereby failing to take any or any proper account of the appellants' different circumstances and relative degrees of responsibility, as well as the different considerations of general and specific deterrence applying to each appellant. Ground 4: Failing to suspend the penalty imposed on the first appellant on the impermissible basis that the contravention was serious, and in circumstances where the contravention was accepted as falling towards the lower end of the scale of seriousness. Ground 5: Imposing manifestly excessive penalties on each appellant. 6 The essential principles for review of a decision on penalty were not in dispute between the parties. Accordingly: - (i) an appeal of this kind is an appeal against a discretionary decision, (ii) it follows that an appellate court is not free to substitute its own decision on penalty for that of the primary judge merely because it disagrees with the penalty the primary judge imposed, (iii) before appellate intervention is permissible, an error or errors of principle must be identified in or apparent from the primary judge's decision, (iv) errors of principle include considering irrelevant matters, failing to consider relevant matters, and acting on mistaken facts, (v) even if no specific error of principle is identified, such error may be apparent from a manifestly excessive or inadequate penalty, being a penalty which is unreasonable or plainly unjust on the facts, and (vi) the mere attribution of varying degrees of weight to relevant matters by the primary judge does not involve any error of principle (see Construction, Forestry, Mining and Energy Union v Cahill (2010) 194 IR 461 (Cahill) at [28]-[30] citing, amongst other decisions, House v The King (1936) 55 CLR 499 (House) at 505).

GROUND 1 7 The appellants contend that, although the primary judge referred in his reasons to the motive for and seriousness of the contravening conduct, "the penalties imposed do not reflect any taking into account of the two relevant considerations of motive and lower level of seriousness". This proposition is said to follow from the trial judge's findings that: - (i) the motive for the contravention was a genuine concern about occupational health and safety, being the least serious of the four "industrially-motivated" purposes identified in s 36(1) of the BCII Act (at [30]-[37] of the primary judge's reasons), and (ii) while not able to be characterised as falling at the lowest end of the scale of seriousness, the contravening conduct was "less serious than it might otherwise have been" (at [80]), leading to the ultimate conclusion that the contraventions "fall towards the lower end of the scale of seriousness" (at [119]). Having made these findings, the primary judge imposed penalties of $8,000 and $40,000 respectively on the first and second appellants (equating to 36% of the maximum penalty to which each was exposed, being a penalty of $22,000 for Mr McDonald and $110,000 for the CFMEU). According to the appellants these penalties, which exceed one third of the maximum penalty, are inconsistent with the finding that the contraventions fall towards the lower end of the scale of seriousness. This inconsistency, the appellants submit, is also exposed by comparing the penalties to those imposed in two other matters identified in a table forming part of the appellants' written submissions. The table records as follows: Case First Appellant Second Appellant Duration Leighton Contractors Pty Ltd v CFMEU & Ors $30,000 16 breaches= $1,875 per breach $90,000 18 breaches = $5,000 per breach 11 months (2006) 164 IR 375 Rolling strikes 1-3 days' duration at a time Temple v Powell $1,500 1 breach $12,000 1 breach 48 hr strike (2008) 169 FCR 169

8 All aspects of this ground of appeal confront insuperable difficulties. 9 Insofar as this ground (and other grounds) contend that the primary judge failed to take "proper" account of a matter, the appellants acknowledged in oral submissions that the ground must be treated as an aspect of ground 5 (manifestly excessive penalty). If not so treated, the contention of failure to take "proper" account of a particular matter could not rise above a mere complaint about the weight which the primary judge ascribed to that matter; and, as previously noted, the ascription of weight is incapable of justifying appellate intervention in respect of a discretionary discretion. 10 The remaining aspect of this ground - the alleged failure to take any account of the nominated matters - cannot be sustained in the face of the primary judge's reasons. 11 First, as to the motive for the contravening conduct, the primary judge's reasons expressly accepted the appellants' submissions on that issue at [37]. In accepting those submissions, moreover, the primary judge said (also at [37]) that they "should be taken into account when assessing penalty." 12 Having identified other considerations also relevant to penalty, the primary judge applied the process of "instinctive synthesis" (Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith (2008) 165 FCR 560; [2008] FCAFC 8 (Australian Opthalmic Supplies), Gray J at [27] and Graham J at [55]) which he identified as appropriate at [10] of the reasons for judgment. The appellant makes no complaint about the application of that process, which requires consideration to be given to all the circumstances relevant to the contravention. As required by that process, the primary judge properly directed himself at [111] to have regard to the observations he had already made about "the factors that are relevant to penalty and in particular [his] assessment of them in this case". 13 In synthesising those various factors for the purpose of imposing penalties on the appellants, the primary judge confirmed his acceptance of the motive for the contraventions at [115] in these terms: I have little doubt, as I have found in the primary judgment, that the strike action was motivated by the purpose of securing the one outstanding subcontractor's commitment to safety, that of Form 700. 14 This said, the primary judge continued at [116] as follows: However, the strike action cannot be condoned on this basis. As the ABC Commissioner points out, under the Union Collective Agreement 2008-2010 it is possible to adopt a dispute settlement procedure. Plainly no thought was given to this way forward. In that regard, the unlawful industrial action may be seen, at the least, as opportunistic. 15 The primary judge thus accepted the appellants' submissions about motive and weighed that fact with all other relevant considerations in determining the appropriate penalty. It follows that the reasons of the primary judge exclude any possible conclusion of failure to take any account of the motive for the conduct. 16 Second, and contrary to the appellants' case, the primary judge gave extensive consideration to the seriousness of the contravention. At [26] the primary judge characterised the contravention as "serious", despite accepting that "much more serious conduct can be imagined". At [80] the primary judge said he did not think it reasonable to characterise the conduct as falling at the lowest end of the scale (as the appellants had submitted), but accepted that the conduct, by reason of its opportunistic nature, was "less serious than it might otherwise have been". 17 As part of the process of instinctive synthesis, the primary judge rejected the submissions of both the appellants and the respondent about penalty at [112] in these terms: In the result I do not view the contravention of the CFMEU and Mr McDonald, the first and third respondents as being, as submitted by the Commissioner, at the bottom of the higher range of the scale. However, nor do I accept that this is a case in which the penalty should reflect conduct which is characterised as being at "the lowest" end of the scale. 18 At [119] the primary judge said: In the circumstances of this case, ultimately I consider the contraventions of the third respondent and the first respondent fall towards the lower end of the scale of seriousness. 19 At [120] the primary judge expressly acknowledged that: It is important that the Court, in imposing penalty, not only have regard to the level of seriousness of contravening behaviour in this case, but also prior examples of contravening behaviour… 20 The balancing of all of these considerations informed the ultimate imposition of penalties, as the primary judge's reasons at [121] disclose. There it was said that: Here, having regard to all relevant factors the prior contravening behaviour of the CFMEU I would impose a penalty which is at the higher end of the lower end of the scale. I consider a fine of $40,000 (36% of the maximum) is appropriate. As to the third respondent, Mr McDonald, I would impose a fine of $8,000 (36% of the maximum). I consider a total of $48,000 to be an appropriate general and specific deterrence in the circumstances of this case. 21 Accordingly, the reasons of the primary judge also exclude any possible conclusion of failure to take any account of the level of seriousness ascribed to the contravening conduct. 22 Third, the alleged inconsistency between the primary judge's findings and the penalties in fact imposed is unsustainable. According to the appellants a penalty of 36% of the maximum falls within the middle of the scale and thus the penalties imposed are inconsistent with the primary judge's conclusion that the penalties should be "at the higher end of the lower end of the scale". This submission is defeated by the terms of [121] of the primary judge's reasons. The primary judge, within a single paragraph, chose to describe the penalties imposed ($8,000 and $40,000) in various ways, including as "at the higher end of the lower end of the scale". It must be inferred that the primary judge considered this to be an accurate description of whereabouts in the range those penalties fell. The fact that the appellants consider that they fall within the middle of the scale is immaterial. The description "at the higher end of the lower end of the scale" was open to the primary judge. The description is incapable of creating any inconsistency with the penalties in fact imposed. 23 The appellants' reliance on the penalties imposed in other cases is also misconceived. In Hili v The Queen; Jones v The Queen (2010) 85 ALJR 195 (Hili) the High Court (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ) said: [48] Consistency is not demonstrated by, and does not require, numerical equivalence. […] [49] The consistency that is sought is consistency in the application of the relevant legal principles. 24 While this observation concerned federal offences, the underlying principle emerges from the nature of the sentencing discretion. As observed in Hudson v The Queen [2010] VSCA 332 (Hudson) in a joint judgment of the Victorian Court of Appeal (Ashley, Redlich and Harper JJA): [29] "Like" cases can only, at best, provide a general guide or impression as to the appropriate range of sentences. […] [31] A detailed examination of "like" cases to implicitly suggest that a particular sentence is the correct one or that the sentence should fall within a very narrow band, is not permissible. 25 As the respondent observed, this impermissible approach is inherent in the appellants' contentions in this appeal. The approach, the respondent submitted further, is peculiarly inapt in the case of penalties for contravention of industrial laws. The number of prior cases is small, and the cases themselves are all highly fact-dependent. In its written submissions the respondent identifies the key features which can be said to distinguish the cases on which the appellants rely from the present case. These submissions expose the flaw in this aspect of the appellants' submissions, and show why the respondent's submissions in this regard must be accepted: [12] The appellants' approach is also faulty because, in making a crude comparison with the "per breach" penalties in the earlier cases involving each of them, no recognition is given to the totality principle and related "course of conduct" issues that applied in both prior cases: see Leighton Contractors Pty Ltd v CFMEU [2006] WASC 317; (2006) 164 IR 375 at 390-1 [70]-[76]; and Temple v Powell [2008] FCA 714; (2008) 169 FCR 169 at 186 [56] to 91 [78]. While a court is required to start by ascertaining a penalty which is appropriate for each contravention, it must also have regard to the total or overall penalty being imposed: see Pearce at 623-4 [45] [Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57]; see also Mill v The Queen (1988) 166 CLR 59 at 63 in relation to the totality principle more generally and Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith (2008) 165 FCR 560 in relation to the application of that principle to proceedings of this kind. Moreover, in Leighton, the respondent intervened and submitted that the penalties proposed and agreed upon between the parties were inadequate. [13] The application of the totality principle often has the effect of creating lower penalties per contravention than would be appropriate for a single contravention in isolation (Mill at 63), which is expressly and precisely what happened in the prior Leighton case involving the appellants (see Leighton at 390-1 [70]) and is implicit in the result in Temple v Powell when regard is had to all the factors taken into account at 186 [56] to 91 [78] in fixing the final penalties imposed. The option of partial concurrency is not available for non-custodial penalties, which leaves only the alternative approach referred to by the High Court in Mill at 63.3 of lowering individual penalties to ensure the overall penalty is appropriate. When this has happened, extracting individual or per breach penalties for comparison with the penalty imposed in a single contravention case is largely meaningless. [14] In any event, the cases of earlier contraventions referred to by the appellants appear to be relied upon to suggest that prior lenient penalties imposed on them create some kind of future penalty expectation, with only incremental increases to be anticipated should further contraventions take place. There does not appear to be any authority or even principled reasoning that would support such an approach by a sentencing court. Prior leniency does not bind the discretion of a sentencing judge. 26 For these reasons ground 1 of the appeal must be rejected. The principles discussed, however, are equally relevant to many of the other appeal grounds. including ground 5 (manifestly excessive penalties).

GROUND 2 27 The appellants contend that the primary judge impermissibly attributed a percentage of the maximum penalty as a form of tariff for certain conduct. As the respondent submitted, the appellants' contention is not supported by a fair reading of the primary judge's reasons. 28 It may be acknowledged that it is generally wrong to "look first to a maximum penalty, and to proceed by making a proportional deduction from it" (Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [31]). This must be so given that "[s]entencing is not a process that leads to a single correct answer arrived at by some process admitting of mathematical precision" (Pearce v The Queen (1998) 194 CLR 610 at [46]). 29 The primary judge, however, committed no such error. To the contrary, the primary judge expressly rejected any notion of a precisely calculated tariff. After identifying the maximum penalty for each appellant at [8], the primary judge acknowledged that the task was one of instinctive synthesis rather than application of a rigid checklist (at [10]). The primary judge reminded himself (at [11]) that: The courts also warn against comparing the case the subject of the assessment with any other particular case so as to derive from it the amount of penalty (or tariff) to be fixed: NW Frozen Foods Pty Ltd v Australian Consumer and Competition Commission (1996) 71 FCR 285, at 295; Australian Ophthalmic Supplies, Graham J at [56]-[57] and Buchanan J at [87]. 30 At [12]-[14] the primary judge referred to the observations of Merkel J in Finance Sector Union of Australia v Commonwealth Bank of Australia (2005) 147 IR 462 at [72] to the effect that increased penalties for contraventions of industrial laws have changed the sentencing landscape - but did so in the context of a general discussion of the need to avoid both undue regard to so-called "comparable" cases (at [11]) and "slavish application" of a "rigid catalogue" of relevant considerations (at [15]). There cannot be any suggestion that the primary judge, having identified the correct approach, then in truth departed from it. 31 The primary judge demonstrated the same type of caution at [64] when assessing the prior records of the appellants in these terms: …it seems to me that where prior contravening conduct is constituted of the same primary elements, then some regard may be had to it. But it may become a difficult, and not a terribly worthwhile exercise, to try to undertake a full analysis comparing present and past findings of contravention. 32 At [66], consistent with this cautious approach, the primary judge said: Overall, while it seems to me that it is appropriate that I should regard the information submitted in Table A and Table B by the ABC Commissioner I should also be mindful of the cautionary words of Branson J [in CFMEU v Coal & Allied Operations Pty Ltd (No 2) [1999] FCA 1714; (1999) 94 IR 231 at 232, cited by the primary judge in [58]], when doing so. Primarily, I consider the prior contraventions identified by the respondents to be the most relevant. 33 When the reference to 36% of the maximum in [121] of the reasons is read in the context of that paragraph, and of the reasons as a whole, it is apparent that it cannot be said that the primary judge adopted an impermissible approach. The primary judge imposed the penalty which appeared to him to reflect all of the relevant circumstances of the case consistent with the process of instinctive synthesis which said he intended to apply at [10] and about which the appellants make no dispute. The mere fact that the primary judge identified the penalties imposed as equating to 36% of the maximum does not transform his process of reasoning from a permissible to an impermissible one. This aspect of ground 2 of the appeal is incapable of being sustained on a fair reading of the primary judge's reasons. 34 The second aspect of this ground is also unsustainable. The appellants contend that the 36% tariff failed to take any (or any proper, as to which see above at [9]) account of three identified matters. This contention, however, is also inconsistent with a fair reading of the primary judge's reasons. The matters, as noted, are the opportunistic nature of the contravention (in contrast to it resulting from a deliberate strategy); the motive of a genuine concern for safety; and the characterisation of the contravention as falling towards the lower end of the scale of seriousness. The discussion relating to ground 1 above demonstrates that the primary judge took full account of those matters. Each one, as required, was weighed by the primary judge along with all other relevant circumstances. Those circumstances included the primary judge's findings (with which the appellants take no issue) that: - (i) the unlawful industrial action involved a real potential for loss (at [46] and [118]), (ii) Mr McDonald fully appreciated the consequences of his actions (at [78] and [117]), and (iii) Mr McDonald, and through him the CFMEU, appreciated that the action would have a real effect on the construction program (at [113]). The primary judge imposed the relevant penalties in light of the whole factual context, which included the three matters identified by the appellants in this ground of appeal. It follows that the contention that the primary judge failed to take any account of those three matters cannot be accepted.

GROUND 3 35 The appellants contend that the imposition of the same percentage of the maximum penalty on each of them involved error in that the primary judge failed to consider the different circumstances of the contravention by each, their differing degrees of culpability, and the different considerations of general and specific deterrence to which each was subject. As the respondent submitted, whilst not expressed as such, ground 3 is a complaint about parity in the penalties based on an implicit assumption that the opportunistic nature of Mr McDonald's actions (which did not flow from any CFMEU strategy) rendered the CFMEU less culpable than Mr McDonald in the overall circumstances. As noted, the primary judge imposed a penalty of $8,000 on Mr McDonald and $40,000 on the CFMEU. Given the different maximum penalties to which each appellant was subject, both penalties equate to 36% of the maximum. However, as discussed in relation to ground 2, the primary judge did not arrive at these penalties by reference to a percentage figure. 36 As the respondent submitted, the principal answer to the appellants' contention on this issue lies in the statute. Section 69(1) of the BCII Act does not deem the CFMEU to be liable for Mr McDonald's conduct. Section 69(1) of the BCII Act provides that Mr McDonald's conduct "is taken to be conduct of" the CFMEU. Given this form of deeming provision, the primary judge was entitled (and, indeed, required) to treat the objective circumstances of the contraventions as being the same for each appellant. As the respondent put it, by s 69(1), everything Mr McDonald did, the CFMEU is also taken to have done. In this context, the CFMEU is taken to have acted in the same opportunistic (rather than strategic) manner as Mr McDonald. The proper analysis (which is inherent in the primary judge's approach) is thus that the starting-point in relation to both appellants - the contravening conduct of Mr McDonald and the CFMEU - is the same. Other circumstances may then provide a rational basis for imposing a different penalty; but in the present case, there were no circumstances permitting a rational distinction to be made. The lack of any industrial strategy on the part of the CFMEU was not relevant in this respect. It was already inherent within and thus accounted for the primary judge's characterisation of Mr McDonald's (and thus, by s 69(1), the CFMEU's) conduct as opportunistic. 37 Similarly, as is apparent from the primary judge's reasons at [119]-[121], no particular factor, including the prior records of Mr McDonald and the CFMEU, gave rise to any material point of distinction necessitating or rationally permitting a different treatment of each in terms of general and specific deterrence. The primary judge accepted the appellants' submission that the prior record of a large organisation such as the CFMEU must be treated with caution (at [58]). The appellants acknowledged the same two prior matters as being relevant prior conduct in relation to each of them (Leighton Contractors Pty Ltd v Construction, Forestry, Mining and Energy Union (2006) 164 IR 375 and Temple v Powell (2008) 169 FCR 169) (at [60] and [63]). The primary judge considered that "some regard" may be had to prior contraventions if the contraventions involved the "same primary elements", but described a full comparison as potentially difficult and possibly "not worthwhile" (at [64]). The primary judge concluded that, while it was appropriate to have regard to the information about prior contraventions (with the contraventions acknowledged as relevant by the appellants being "the most relevant"), it was necessary to be cautious. In the circumstances, the primary judge was not bound to conclude that there were different considerations of general and specific deterrence applicable to Mr McDonald and the CFMEU. More generally, there could be no "justifiable sense of grievance" (Lowe v The Queen (1984) 154 CLR 606 at 610) on the part of either appellant having regard to the penalty imposed on each. 38 As the respondent submitted, the appellants' contention that Mr McDonald and the CFMEU ought to have been penalised as if they were co-offenders cannot be reconciled with the express terms of s 69(1). In the case of co-offenders, the contribution of each to the offence (that is, the objective conduct of each representing their participation in the offence) may be different. Section 69(1) - which provides that the conduct of (in this case) Mr McDonald is taken to be the conduct of (in this case) the CFMEU - precludes that possibility. The objective circumstances of the contravention, by dint of the statutory provision, are necessarily the same. From that starting-point, the relevant question is whether there is any rational point of distinction between the two. For the reasons given above, that question was rightly answered in the negative. 39 It is also the case that the primary judge's reference to a total penalty of $48,000 being "an appropriate general and specific deterrence in the circumstances of this case" (at [121]) must be read in context. As disclosed by the reasons in [120]-[121], the primary judge fixed the penalties for each appellant in the context of each contravention having regard to general and specific deterrence. This is clear from the primary judge's acknowledgement at [120] that general and specific deterrence had to be considered in relation to each appellant. Having fixed the appropriate penalty for the contravention by each appellant, the primary judge then considered the total penalty and concluded it was also appropriate when considered as a single sum (at [121]). This approach is consistent with general principle and discloses no error.

GROUND 4 40 The first aspect of this ground of appeal depends on the proposition that the primary judge was not entitled to consider the seriousness of the contravention when he decided not to suspend the penalty against Mr McDonald (see the reasons for judgment at [122]). 41 Dinsdale v The Queen (2000) 202 CLR 321 (Dinsdale), on which the appellants relied, provides no support for this proposition. Dinsdale involved consideration of a specific statutory provision precluding the imposition of a custodial sentence unless it was decided that the other nominated options (including a suspended sentence) were not appropriate. Further, the power to suspend a sentence was limited by statutory conditions. In any event, the discussion of the development of the law relating to suspended sentences in the judgment of Kirby J in Dinsdale does not support the appellants' proposition. As stated at [81] of Kirby J's reasons: There is a line of authority in Australian courts that suggests that the primary consideration will be the effect such an order will have on rehabilitation of the offender, which will achieve the protection of the community which the sentence of imprisonment itself is designed to attain. But most such statements are qualified by judicial recognition that other factors may be taken into account. The point is therefore largely one of emphasis. 42 At [84] Kirby J said: In my view, to limit the exercise of the discretion to suspend a sentence of imprisonment by reference wholly, mainly or specially, to the effect which suspension would have on rehabilitation of the offender would constitute an error. 43 For similar reasons the appellants' reference to spent convictions under s 45 of the Sentencing Act 1995 (WA) is beside the point. Section 45 is a specific statutory power enabling the making of spent conviction orders if certain criteria are satisfied. The fact that an offence not being characterised as trivial does not exclude such an order being made is immaterial to the question whether, in this case, the primary judge was entitled to have regard to the seriousness of Mr McDonald's contravention in deciding not to suspend his penalty. 44 The primary judge in the present case was not required to disregard the seriousness of Mr McDonald's contravention when considering whether or not to suspend his sentence either by statute or by any recognised principle of law. For this reason it cannot be the case that the seriousness of the contravention was not a proper basis for the primary judge's refusal to do so. The same reasoning undermines the appellants' suggestion in written submissions that Mr McDonald's prior contraventions were irrelevant to the discretion to suspend the sentence. The appellants provide no authority to support that proposition. Nor do they make reference to any statutory provision or principle which would support it. 45 The second aspect of this ground of appeal is an impermissible challenge to the merit of the primary judge's decision not to suspend Mr McDonald's sentence. The fact that the contravention was by no means the most serious which can be imagined (which the primary judge acknowledged) did not preclude the primary judge from exercising his discretion against suspension of the penalty. The appellants' complaint goes no higher than the fact that the primary judge had a power to suspend the sentence but refused to exercise that power in the circumstances of the case. 46 The third aspect of this ground of appeal involves the suggestion (not articulated in the notice of appeal but raised in written submissions) that suspension of a penalty "can have a rehabilitative effect which the learned Judge did not consider". If this is a complaint that the primary judge failed to consider a relevant matter, with the consequence that the penalty imposed on Mr McDonald must be set aside, the complaint must fail. With the consent of the parties the primary judge made his decision in relation to penalty based on written submissions (see the reasons for judgment at [2]). The appellants were free to make any submission they saw fit in respect of the suspension of penalties. Their submission was limited to the bald proposition that the penalty against Mr McDonald should be wholly suspended for 12 months. The submission did not identify any reason why the discretion to suspend should be exercised in Mr McDonald's favour. It did not refer to any prospect of rehabilitation, and did not refer to any evidence, from Mr McDonald or otherwise, about the potential rehabilitative effect of a suspended sentence. 47 Given the potentially wide range of considerations relevant to the exercise of the discretion on this issue, it is not open to an appellant in Mr McDonald's position to suggest that the primary judge erred merely by not expressly referring to rehabilitation when considering the suspension of the penalty. In other words, nothing in the nature of the discretion to be exercised in the circumstances of this case elevated the issue of potential rehabilitation from a matter that the primary judge might have considered to a matter that he was bound to consider. In any event, and as the respondent submitted, the primary judge concluded that specific deterrence of Mr McDonald was a relevant factor (at [120]), which is inconsistent with the notion that the penalty should be suspended on the basis of Mr McDonald's prospects for rehabilitation. Having decided specific deterrence was necessary, the primary judge was not bound to act on an inconsistent assumption that Mr McDonald could be rehabilitated so as not to contravene the BCII Act again by suspending the requirement for payment of the penalty.

GROUND 5 48 The appellants' contention that the penalties are manifestly excessive cannot be sustained. 49 The basic problem for the appellants is that which Heydon J indentified in Hili at [76]-[77] in these terms (citations omitted): [76] […] Mere excessiveness or inadequacy will not reveal that there is an error of either an identifiable or an unidentifiable nature. The difficulty which the principles in House v R create for appellants in sentencing appeals - whether defendants complaining of "manifest excessiveness" or the prosecution complaining of "manifest inadequacy" - is that they give sentencing judges "a wide measure of latitude which will be respected by appellate courts." […] [77] Sentences must be reasonably consistent. But it does not follow that disparities between them may not exist. Within the boundaries of reason, and leaving aside the special instance of co-offenders, where marked disparity renders sentences vulnerable on appeal, it cannot be said that any particular disparate sentence is necessarily wrong merely because it is disparate. Indeed, even within a single jurisdiction, one court, while bound by whatever this court or the intermediate appellate court for that jurisdiction has held to be the correct legal principles (statutory or common law), may arrive at sentencing results in particular cases which are different from those reached by earlier courts in that jurisdiction without being open to appellate reversal or criticism for "error" merely because of those differences. 50 For this reason, the appellants' submission that consideration of other decisions disclosed that the penalties the primary judge imposed were "so far outside the range" of penalties imposed for a contravention extending over a single day only that they were manifestly excessive is misconceived. The other decisions to which the appellants referred (being those the respondent had initially identified for the primary judge as potentially relevant) are few in number. They exhibit a wide variety of factual circumstances. They do not form a proper foundation for the identification of "a very narrow band" (Hudson at [31]) - an impermissible exercise in any event - outside of which the primary judge's penalties are said to fall. The appellants' submissions, in truth, are inconsistent with the process of instinctive synthesis which the primary judge applied after a detailed and careful examination of all of the facts (facts, it might be said, which were well known to the primary judge following a contested hearing on liability and his publication of detailed reasons for judgment in that regard: see Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2010) 187 FCR 293). 51 Nothing in the circumstances of the case (said by the appellants to be unique but described by the primary judge at [115] as no more than "a little unusual"), the relative gravity of the conduct involved or other decisions renders either penalty unreasonable or plainly unjust (House at 505, cited in Cahill at [50]). As Middleton and Gordon JJ said in Cahill at [51]: The ground of manifest excess will only succeed where it can be shown that the sentence was "wholly outside the range of sentencing options available" to the sentencing judge: see Dinsdale 202 CLR 321 at [6] and [59]; Carroll [v The Queen] 254 ALR 379 at [7]; [R v] Abbott 170 A Crim R 306 at [13]; R v Boaza [1999] VSCA 126 at [42]. 52 The penalties the primary judge imposed are not unreasonable or plainly unjust. They do not sit wholly outside the range of penalties available in the circumstances of the case. In the context of the primary judge's overall findings, the penalties imposed were not only reasonably open but properly reflected the primary judge's assessment of the objective seriousness of the conduct and the subjective circumstances of Mr McDonald and the CFMEU.

CONCLUSION 53 For the reasons set out above the appeal must be dismissed with costs. I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices North, McKerracher and Jagot.

Building and Construction Industry Improvement Act 2005(Cth)

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