Transport Workers' Union of Australia v Registered Organisations Commissioner

Transport Workers' Union of Australia v Registered Organisations Commissioner - [2018] FCAFC 203 - FCAFC 2018 case summary — Zoe

[11]

The proceeding before the primary judge 9 The respondent (the Commissioner) made the following allegations against the TWUA in his amended statement of claim: (1) The TWUA contravened s 231(1) of the Registered Organisations Act by failing to keep for seven years a copy of its register of members as it stood on 31 December in 2009, 2010, 2011 and 2012 (in respect of its members in NSW); and on 31 December 2013 (in respect of its members in WA). (2) The TWUA contravened s 172(1) on 20,907 occasions between 12 May 2003 and 2 September 2014 by failing to remove from its register of members the names of 20,907 non-financial former members in NSW by the required dates. (3) The TWUA contravened s 231(2) by failing to keep a copy of the part of its register of members containing the details of members eligible to vote in an election for officers in its Queensland branch held in November 2010 as it stood on the prescribed day for seven years after that day. (4) Alternatively to (3), the TWUA contravened s 235(2) by failing to cause a copy of its register of members in respect of members in the Queensland branch as it stood on the prescribed day for the November 2010 election to be made available to an authorised person. 10 In its amended defence, the TWUA admitted the first and second of these allegations (the admitted allegations), but denied the third and fourth allegations (the denied allegations). Accordingly, the matter proceeded to a trial upon the denied allegations and a hearing on penalty and declaratory relief in respect of the admitted allegations. 11 The primary judge heard evidence and submissions concerning the denied allegations and concluded that the Commissioner had not established any contravention of s 231(2) or s 235(2) of the Registered Organisations Act. This appeal, accordingly, is not concerned with the denied allegations. 12 In respect of the admitted allegations, the parties filed an amended statement of agreed facts which, relevantly, confirmed the TWUA's admission of the allegations of contraventions of s 172(1) and s 231(1). 13 The TWUA relied upon the affidavits of four witnesses, one of whom (Nicholas McIntosh, an assistant secretary of the Transport Workers' Union of New South Wales (TWU NSW)) was required for cross-examination in relation to the admitted allegations. 14 The principal grounds of the appeal concern the primary judge's rejection of submissions that were made by the Commissioner and accepted by the TWUA. Those submissions concerned the number of contraventions that were alleged and the number of penalties that should be imposed. It is necessary to set out some lengthy extracts from the submissions in order to understand the positions that the parties contended for. 15 The Commissioner's written submissions stated: 58. As to how to treat the "course of conduct" contraventions (that is, the section 231(1) contravention, which relates to 5 separate instances of conduct that each amount to a contravention, and the section 172(1) contravention, which relates to almost 21,000 instances of conduct that each amount to a contravention), the Applicant submits that an analogy can be drawn with the treatment given by the Court to a "rolled-up" offence in Commonwealth Director of Public Prosecutions v Nippon Yusen Kabushiki Kaisha [2017] FCA 876 (3 August 2017) (from [205]). As Wigney J stated (at [207]): In sentencing for a rolled-up charge, the Court is required to assess the criminality of an offender's conduct as particularised. The issue for the Court on sentence is the criminality disclosed by the offence, not the number of charges: R v Knight [2004] NSWCCA 145 at [25]-[26]. The more contraventions or episodes of criminality that form part of the rolled up charge, the more objectively serious the offence is likely to be: R v Richard [2011] NSWSC 866 at [65(f)]; R v Glynatsis [2013] NSWCCA 131; 230 A Crim R 99 at [66]; R v De Leeuw [2015] NSWCCA 183 at [116]. That said, the maximum penalty for the rolled-up charge is the maximum penalty for one offence, not the aggregate of the penalties for what could have been charged as separate offences: R v Richard at [105]; R v Donald [2013] NSWCCA 238 at [85]. … 60. The Applicant stresses that the pleadings do not charge each potential contravention as a separate contravention. It is intended that this table would simply quantify, in objective terms, the objective seriousness of the Respondent's conduct in relation to the 20,907 contraventions of section 172(1) of the RO Act. To use the words used by Wigney J, this figure is simply "the aggregate of the penalties for what could have been charged as separate [contraventions]". 61. Accordingly, the Applicant submits that: a. the five separate contraventions of s231(1); ... c. the 20,907 contraventions of s172(1); should be treated as separate instances of contravening conduct but that within the section 231(1) and section 172(1) contraventions, a simple count of the number of contraventions within the pleaded contravention requires the Court to conduct an assessment of the seriousness of each of those contraventions in order to form a view as to the objective seriousness of the offending. … 67. In this context, the Applicant submits that the appropriate penalties for the Respondent ought to be as follows: a. for the five separate contraventions of s231(1), a penalty in the range of approximately 90% of the maximum penalty; and … c. for the 20,907 contraventions of s172(1), a penalty in high range of 100% of the maximum penalty. … 69. While lower separate penalties may be appropriate if each contravention was considered separately, the amounts referred to above are appropriate given that the contraventions of s172(1) are proposed to be dealt with as a single course of conduct, notwithstanding the 20,907 admitted contraventions of the RO Act. 70. In these circumstances, the Applicant submits that penalties close to the maximum penalty for each contravention are appropriate taking into account the "totality" principle. (Underlining added.) 16 In his opening, counsel appearing for the Commissioner before the primary judge said: Just in relation to that, in a technical sense, the applicant could have filed the 21,000-odd summonses in this matter and we took the view that they should be all put together in the one summons, but they are in fact 21,000-odd breaches of section…172(1) of the Registered Organisations Act, and in that regard, your Honour, I've sought in my written submissions to assist your Honour in how to determine - how to work out an appropriate penalty in circumstances where a number of contraventions, in this case almost 21,000, have been effectively rolled up into one charge. 17 In its written submissions, the TWUA submitted that it should be relieved from any liability for its contraventions pursuant to s 315(2) of the Registered Organisations Act or, alternatively, that pecuniary penalties in the lower part of the applicable range should be imposed. The submissions noted: 53. The Commissioner accepts in its submissions that the five contraventions of s 231(1) and the multiple contraventions of s 172(1) should be treated as courses of conduct and a single penalty imposed with respect to those contraventions. That is clearly the correct approach having regard to the principles set out in Construction, Forestry, Mining and Energy Union v Williams (2009) 191 IR 445 and Construction, Forestry, Mining and Energy Union v Cahill (2010) 194 IR 461. … 55. In the circumstances, the TWU submits that (if the Court considers it appropriate to impose pecuniary penalties), the penalties should be as follows: (a) A single penalty with respect to the contraventions of s 231(1) at the lower end of the range. … (c) A single penalty with respect to contraventions of s 172(1) at the lower end of the range. 18 In his closing submissions, counsel for the TWUA noted: Those are the matters that I would seek to raise in relation to the 231(1) contraventions. As I have said in the written submissions...it appears to be accepted that there ought be one penalty imposed in relation to those contraventions. 19 Counsel for the TWUA later added: As I say, what's sought by the applicant, as we apprehend it, is one penalty with respect to the 231(1) contraventions and one penalty with respect to… the failure to remove names from the register in New South Wales, and we accept that the maximum penalty in each respect would be the $51,000 amount. 20 It is common ground that the primary judge did not advert to any possibility that more than one penalty might be imposed in respect of the contraventions of each of s 172(1) and s 231(1) of the Registered Organisations Act.

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The findings of the primary judge 21 The primary judge's reasons commenced by dealing with the disputed allegations, finding that the TWUA had not contravened s 231(2) or s 235(2) of the Registered Organisations Act. His Honour then proceeded to consider the question of pecuniary penalties and declarations in respect of the admitted contraventions. 22 His Honour noted that the breaches of s 231(1) admitted by the TWUA were that its NSW branch had failed to keep for seven years a copy of its register of members as it stood on 31 December 2009, 2010, 2011 and 2012; and that its WA branch had failed to do so as at 31 December 2013 (Primary Judgment (PJ) [24]). His Honour also noted that the TWUA had admitted contraventions of s 172(1) in relation to its NSW branch and that "the number of contraventions ultimately pursued by the Commissioner in his written submissions was 20,907 and I propose to act on that number" (PJ [25]). 23 The primary judge considered the evidence of Mr McIntosh. His Honour found that there are two legally separate organisations operating in NSW: one is the TWU NSW, which is registered under State legislation; and the other is the NSW branch of the TWUA. Mr McIntosh gave evidence that there are operational overlaps between the two NSW entities. The TWUA also maintains a national office (PJ [34]). 24 The primary judge accepted Mr McIntosh's evidence that the NSW contraventions of s 231(1) of the Registered Organisations Act had occurred through the inadequacy of the TWUA's computer system. The membership records were overwritten by new data each day. This meant that although there was a record of the register on 31 December each year, it could only be accessed on that day or until it was next updated. The system did not allow the TWUA to capture point-in-time data. Since it had not kept hard copies of the register as it was on 31 December in the relevant years, it had failed to keep the records as required (PJ [39]). 25 The primary judge accepted Mr McIntosh's evidence that the NSW branch of the TWUA did not know that it was required to keep a copy of the register of members as at 31 December each year. There was no such obligation on the TWU NSW under State legislation and his Honour inferred that the primacy of that entity's affairs over those of the NSW branch of the TWUA went some way to explaining the problem (PJ [41]). 26 His Honour accepted that the problem in NSW had been rectified and that, from September 2013, a new system had been implemented, which keeps a copy of the register as at 31 December automatically. Further, a copy is kept in multiple locations to ensure that it is always available. His Honour also noted, in relation to s 172(1) of the Registered Organisations Act, that, since 2014, there has been a system in place which automatically removes from the membership rolls a member who has been non-financial for 32 months (PJ [42]). His Honour noted that the TWUA has also put in place a system, which requires each branch secretary to declare that the record-keeping requirements under the Registered Organisations Act have been complied with (PJ [44]), and accepted that this is a systematic way of ensuring that the contraventions will not happen again (PJ [46]). 27 In relation to the contravention of s 231(1) by the WA branch, the primary judge noted that a copy of the register of members as at 31 December 2013 had been unable to be located. There was evidence that the database did not allow a copy of the register as at 31 December 2013 to be produced (PJ [48]). Why the software was deficient and who knew what in the WA branch was not revealed. However, his Honour drew the inference that the breach was not deliberate and the most likely explanation was the software deficiency (PJ [49]). His Honour accepted that a new system was implemented in 2017 that has the capacity to produce a copy of the register as at 31 December each year, and that both an electronic snapshot and a hard copy of the register are kept (PJ [50]). 28 As to s 172(1) of the Registered Organisations Act, the primary judge stated that contraventions between 12 May 2003 and 2 September 2014 were "alleged and admitted". His Honour said that it was "not disputed" that there were 20,907 non-financial members purged by the NSW branch of the TWUA from its register on 2 September 2014. His Honour stated that "the precise contraventions were as follows" and then set out a table describing the numbers of breaches committed during particular time periods (PJ [54]). This amounted to a finding that the TWUA had committed 20,907 offences against s 172(1). 29 His Honour noted the explanation given by Mr McIntosh that the NSW branch of the TWUA was unaware of its obligation under s 172(1). The practice of the TWU NSW was not to remove non-financial members from the register, but to encourage them to become members again (PJ [55]). His Honour inferred that what was done in relation to the membership of the TWU NSW was mirrored by the NSW branch of the TWUA (PJ [56]). 30 His Honour said it was "faintly suggested" that the reason why the TWUA had left non-financial members on its register was to bolster its membership so as to increase its influence in delegate numbers within the Australian Labor Party. His Honour considered that this was a distraction which need not be resolved because on either view, the action of the TWUA was deliberate. His Honour thought it did not matter much whether the members were not purged so that they could be tempted back into the fold, or to instead bolster the position of the TWU NSW inside the Australian Labor Party. His Honour said the point was that the action was deliberate; but that was not to say that s 172(1) was itself breached deliberately (PJ [57]-[58]). 31 His Honour found that senior managers in the national office of the TWUA were aware of s 172 in the period from 2003 to 2013, but did not accept that it was open to infer that the NSW branch of the TWUA was aware of s 172 in that period. His Honour concluded that this was not a case, therefore, where it could be said that the NSW branch disobeyed s 172 knowing that it was doing so (PJ [70]). 32 The primary judge went onto consider a number of factors relevant to the imposition of pecuniary penalties under the following headings.

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Whether there was a single course of conduct 55 The primary judge noted that the Commissioner had submitted in relation to s 172(1) that the Court should "treat the 20,907 contraventions as a single episode of misconduct but impose the maximum penalty" (his Honour must be taken to have been referring here to the maximum penalty for one contravention) (PJ [105]). 56 His Honour noted that the figure of $335,703,000 was the totality of the penalty which could potentially be imposed (PJ [106]). His Honour then referred at [108]-[110] to the course of conduct principle described in Construction, Forestry, Mining and Energy Union v Cahill [2010] FCAFC 39: 108 One must ask, therefore, whether there is an interrelationship between the legal and factual elements of the 20,907 contraventions of s 172. Plainly, the legal elements are identical. In one sense, the factual elements are identical in that each contravention consists of a failure to remove a non-financial member from the register. But one needs to probe a little deeper. Why was each non-financial member not removed over the 12 year period? 109 It follows from what I have said above that the decision not to remove the non-financial members from the register was done deliberately with a view to being in a better position to persuade them to become financial in the future. But it was done in ignorance of what s 172(1) required. I conclude that this is a case where the legal and factual elements of the 20,907 contraventions are interrelated. The conduct which is to be punished is the conduct of deliberately not removing non-financial members from the register over a 12 year period. 110 I am not bound to treat all 20,907 contraventions of s 172 as a single contravention (although the Commissioner submitted I should). Instead, the Court is but guided by the course of conduct principle. In this case, I do not agree with the Commissioner's submission. It is true that, often enough, it will be appropriate to punish a single course of conduct as if it were a single contravention. But the underlying and predominant theme is that it is the level of wrongdoing which is ultimately the controlling factor. I take into account that it will often be appropriate to treat course of conduct cases as involving a single contravention. However, this is a case where I propose to depart from the principle. The objective wrongdoing of deliberately not removing non-financial members for 12 years because of a failure to acquaint oneself with one's legal obligations is, in my opinion, high. It could have been much worse if I had accepted that the NSW Branch of the TWUA was actually aware of s 172. But even so, this is a large systemic failure deriving from an unacceptable ignorance of the TWUA's legal obligations. Nor, as I note elsewhere, is one dealing here with a small outfit in which such a failing might be explained sympathetically by the size of an office. This is the national union for transport workers in a country the physical size of the United States. The conduct revealed falls far short of what can be expected from such an important union. 57 The primary judge then went onto consider the course of conduct principle in relation to the contraventions of s 231(1) of the Registered Organisations Act: 111 It is appropriate in my view to treat the s 172 and s 231 contraventions separately since they arise from separate failures. 112 It is arguable that the four contraventions of s 231 by the NSW Branch constitute a single course of conduct as they arise from the same failure, viz, a failure to be aware of the statutory obligation. However, to treat all four contraventions as if they were a single contravention would not, in my opinion, capture the full extent of the wrongdoing. I therefore propose to treat them as separate contraventions. The contravention of s 231 by the WA Branch is, however, an unrelated single contravention.

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Conclusion 60 The primary judge concluded that the appropriate penalties to be imposed were as follows (PJ [115]): 61 His Honour then considered the totality principle, concluding that the proposed penalties fitted the overall degree of wrongdoing involved (PJ [116]). 62 His Honour rejected the TWUA's submission that the Court should exercise the power under s 315(2) of the Registered Organisations Act to relieve the TWUA from liability (PJ [117]). It may be noted that this submission was not renewed in the appeal. 63 The Commissioner sought the making of declaratory orders. His Honour noted that, although the TWUA had queried their utility, these declarations were not opposed. His Honour considered that there was utility in granting declaratory relief that had the effect of setting out the basis on which liability had been found and the basis for the penalty imposed. Accordingly, his Honour decided to make the declarations sought by the Commissioner (PJ [118]). 64 The primary judge made orders in the following terms (PJ [120]): 1. DECLARES that in contravention of subsection 231(1) of the Fair Work (Registered Organisation) Act 2009 (Cth) ('RO Act'), the Respondent failed to keep a copy of the register of members as it stood on each of the following dates: (a) 31 December 2009 in respect of the New South Wales Branch of the Respondent (the NSW Branch); (b) 31 December 2010 in respect of the NSW Branch; (c) 31 December 2011 in respect of the NSW Branch; (d) 31 December 2012 in respect of the NSW Branch; and (e) 31 December 2013 in respect of the Western Australia Branch of the Respondent. 2. DECLARES that in contravention of subsection 172(1) of the RO Act (and equivalent provisions of the predecessor legislation), on each of 20,907 occasions, the Respondent failed to remove from its register of members the names and postal addresses of each of 20,907 persons who had not paid their membership dues for a continuous period of 24 month since the amount became payable, within the ensuing 12 months. 3. ORDERS the Respondent to pay a civil penalty of $271,362.36 to the Commonwealth within 21 days hereof. 65 Despite his Honour's reasons referring to a number of pecuniary penalties, the order ultimately made was expressed as imposing a single penalty.

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The grounds of appeal 66 The amended notice of appeal relies upon the following grounds: 1. The Appellant was denied procedural fairness by reason of the Court below not disclosing that it proposed to depart from the position of both parties that a single penalty should be imposed for the contraventions of s 172(1) of the Fair Work (Registered Organisations) Act 2009 (Cth) (and the equivalent provisions of preceding legislation) by the Appellant. 2. The Appellant was denied procedural fairness by reason of the Court below not disclosing that it proposed to depart from the position of both parties that a single penalty should be imposed for the five contraventions of s 231(1) of the Fair Work (Registered Organisations) Act 2009 (Cth) by the Appellant. 2A. The Court below erred in imposing a penalty with respect to s 172(1) of the Fair Work (Registered Organisations) Act 2009 (Cth) in excess of the maximum penalty for one contravention in circumstances in which the Commissioner presented the contraventions as a "rolled-up charge" rather than charging each potential contravention as a separate contravention. 3. The Court below erred in not accepting the position of the parties that a single penalty should be imposed for the contraventions of s 172(1) of the Fair Work (Registered Organisations) Act 2009 (Cth) (and the equivalent provisions of preceding legislation) in circumstances in which it was found that legal and factual elements of the contraventions were interrelated, the contraventions did not involve conscious disobedience, the record-keeping deficiencies had been remedied and the consequences of the contraventions were no more than neutral. 4. The Court below erred in not accepting the position of the parties that a single penalty should be imposed for the four contraventions of s 231 (1) of the Fair Work (Registered Organisations) Act 2009 (Cth) in New South Wales in circumstances in which it was found that legal and factual elements of the contraventions were interrelated, the contraventions arose by reason of oversight, the record-keeping deficiencies had been remedied and no adverse consequences of the contraventions had been identified. 5. The Court below erred in failing to reduce the total penalty to be imposed with respect to the contraventions of ss 231(1) and 172(1) of the Fair Work (Registered Organisations) Act 2009 (Cth) by application of the totality principle. 6. The total penalty imposed of $271,362.36 is manifestly excessive in light of findings made by the Court below. (Underlining omitted.) 67 If the first two grounds are upheld, then it will be necessary to resentence the TWUA. That course would mean that it becomes unnecessary to specifically determine Grounds 3-6. However, it would remain necessary to determine Ground 2A as that ground, if successful, could affect the resentencing.

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The submissions 68 As to Grounds 1 and 2 of the amended notice of appeal, the TWUA contends that the parties each submitted before the primary judge that a single penalty should be imposed with respect to the contraventions of s 231(1) and a further single penalty should be imposed with respect to contraventions of s 172(1) of the Registered Organisations Act. The TWUA submits that the Court rejected that common position and imposed five penalties in respect of the contraventions of s 231(1) and a further penalty in respect of the contraventions of s 172(1). 69 The TWUA submits that it was entitled to assume that the Court would decide the case on the basis of the common position. The Court gave no indication prior to judgment that it did not accept that position. The TWUA submits that it was therefore denied the opportunity to address upon the question of whether it was open or appropriate for the Court to impose multiple penalties. It submits that this was a denial of procedural fairness. 70 As to Ground 2A, the TWUA submits that the Commissioner presented his case concerning s 172(1) on the basis of a single "rolled-up charge", rather than charging each potential contravention as a separate contravention. It submits that the maximum penalty for a "rolled-up charge" is the maximum penalty for one offence, not the aggregate of the penalties for what could have been charged as separate offences. The TWUA submits that given the single charge, it was not open to the Court to impose a penalty in excess of the maximum penalty for a single contravention of s 172(1). In oral submissions, senior counsel for the TWUA succinctly expressed the argument as "one charge, one penalty". 71 The TWUA acknowledges that the Commissioner did not plead or submit that the separate contraventions of s 231(1) were presented as a "rolled-up charge". However, it submits that a single penalty ought to have been imposed for the five contraventions as they arose from a single course of conduct. 72 The Commissioner submits that there was no denial of procedural fairness involved in the primary judge's conclusion that more than one penalty should be imposed in respect of the contraventions of each of s 172(1) and s 231(1). The Commissioner submits that the parties did not agree on a particular penalty and that it was open to the primary judge to reject the submissions of the parties as to whether the conduct in question constituted a single course of conduct. The Commissioner submits that a submission as to a "sentencing factor", such as a single penalty, by the prosecuting party, even if accepted by the opposing party, does not compel the Court to accept it. 73 The Commissioner submits further that the submissions made before the primary judge, properly construed, were not in the nature of an agreed position. It is said that, to the contrary, the Commissioner submitted that the Court was required to conduct an assessment of the seriousness of each of those contraventions in order to form a view as to the objective seriousness of the offending. 74 The Commissioner also submits that there was no denial of procedural fairness because the appellant was given the opportunity to make, and did make, submissions on the question of whether there should be a single penalty. The Commissioner submits that a Court should not be required to in effect "traverse" a submission put by a party to a proceeding in order that the party might be put on notice that a submission made by that party will not necessarily be accepted. In oral submissions, the Commissioner added that because it was open as a matter of law for the Court to reach a view that a single penalty should not be imposed, there was no obligation on the primary judge to put the appellant on notice that the Court might depart from that common position. 75 The Commissioner submits that even if there was a denial of procedural fairness, a new trial should not be ordered because the Full Court would inevitably reach the same conclusion as the primary judge. 76 As to Ground 2A, the Commissioner submits that the appellant mischaracterises the Commissioner's case as presented before the primary judge. He submits that the reference to "rolled-up charges" was only "by way of analogy" to assist the Court in its deliberations, rather than a concession as to there being a single course of conduct. Further, the Commissioner submits that the more contraventions or episodes of criminality that form part of the "rolled-up charge", the more objectively serious the offence is likely to be, by reference to Commonwealth Director of Public Prosecutions v Nippon Yusen Kabushiki Kaisha [2017] FCA 876; 254 FCR 235 at [207]. In addition, the Commissioner had referred to the five separate contraventions of s 231(1) and submitted that the Court was required to conduct an assessment of the seriousness of each of those contraventions in order to form a view as to the objective seriousness of the offending. 77 The Commissioner submits that regardless of how his position at first instance may be characterised, the Court was not bound to accept that position. Further, even if the contraventions can properly be characterised as arising from a single course of conduct, the Court was not obliged to apply a single penalty if it would fail to reflect the seriousness of the contraventions. 78 The Commissioner indicated that in the event that the Court considered that it was necessary to resentence the TWUA, he relied upon the submissions made at first instance.

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Whether there was a common position that a single penalty should be imposed for the contraventions of s 172(1) and a single penalty imposed for the contraventions of s 231(1) 82 The TWUA submits that before the primary judge there was a common position between the parties as to the number of penalties that should be imposed. The Commissioner argues that his submissions, properly construed, were not in the nature of an agreed position and that, to the contrary, the Commissioner submitted that his Honour was required to conduct an assessment of the seriousness of each of those contraventions in order to form a view as to the objective seriousness of the offending. 83 It is necessary to begin by considering the "course of conduct" principle and the submissions made to the primary judge concerning the principle. It was in that connection that the question of the number of penalties arose. 84 The use of the phrase "course of conduct" can be, as the Court said in Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Non-Indemnification Personal Payment Case) [2018] FCAFC 97 at [31], "problematic". A section such as s 557(1) of the Fair Work Act 2009 (Cth) may give it statutory meaning. Outside such a statutory context, its proper function is, as the Court said in that case at [31]: … to ensure that, having regard to the circumstances (factual and legal), a party is not penalised twice for the same conduct. (Citations omitted.) 85 The singular phrase should not be simplistically adopted to transform multiple contraventions into one contravention, or, necessarily impose one penalty by reference to one maximum amount. 86 In Australian Competition and Consumer Commission v Yazaki Corporation [2018] FCAFC 73; 357 ALR 55, the Full Court said the following at [231]-[236]: 231 As observed recently by Beach J in Australian Competition and Consumer Commission v Hillside (Australia New Media) Pty Ltd trading as Bet365 (No 2) [2016] FCA 698 at [24]-[25]: … the "course of conduct" principle does not have paramountcy in the process of assessing an appropriate penalty. It cannot of itself operate as a de facto limit on the penalty to be imposed for contraventions of the ACL. Further, its application and utility must be tailored to the circumstances. In some cases, the contravening conduct may involve many acts of contravention that affect a very large number of consumers and a large monetary value of commerce, but the conduct might be characterised as involving a single course of conduct. Contrastingly, in other cases, there may be a small number of contraventions, affecting few consumers and having small commercial significance, but the conduct might be characterised as involving several separate courses of conduct. It might be anomalous to apply the concept to the former scenario, yet be precluded from applying it to the latter scenario. The "course of conduct" principle cannot unduly fetter the proper application of s 224. 232 This statement was approved by the Full Court in Australian Competition and Consumer Commission v Reckitt Benckiser (Australia) Pty Ltd [2016] FCAFC 181; 340 ALR 25 at [141] per Jagot, Yates and Bromwich JJ and in Australian Competition and Consumer Commission v Cement Australia Pty Ltd [2017] FCAFC 159 at [425] and [426] per Middleton, Beach and Moshinsky JJ. 233 Further, in applying the course of conduct principle the statutory context in which the contraventions occurred must be considered. For instance, the Act contains no equivalent of s 557 of the Fair Work Act 2009 (Cth). In Cement, the Full Court made the following observations: 431 We consider that the course of conduct principle must be informed by the particular legislative provisions relevant to these proceedings. In particular, we consider that weight must be given to the fact that the legislature has deliberately and explicitly created separate contraventions for each of the making of, and giving effect to, a contract, arrangement or understanding that restricts dealings or affects competition: ss 45(2)(a) and 45(2)(b). 432 This statutory structure is relevant because it will often be the case that the making of, and giving effect to, a contract, arrangement or understanding will involve overlapping or homogenous conduct. The Court should be wary that it does not undermine this explicit distinction by applying the course of conduct principle too liberally in such circumstances. 234 The "course of conduct" or "one transaction" principle means that consideration should be given to whether the contraventions arise out of the same course of conduct or the one transaction, to determine whether it is appropriate that a "concurrent" or single penalty should be imposed for the contraventions. The principle was explained by Middleton and Gordon JJ in Construction, Forestry, Mining and Energy Union v Cahill [2010] FCAFC 39; 194 IR 461 at [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. (Emphasis omitted.) 235 As Middleton and Gordon JJ further explained in Cahill, even if the contraventions are properly characterised as arising from a single course of conduct, a judge is not obliged to apply the principle if the resulting penalty fails to reflect the seriousness of the contraventions. 236 The course of conduct principle has some overlap with the totality principle, at least to the extent that the aim is to avoid a penalty being imposed which is not proportionate with the offending conduct: see Mill v The Queen [1988] HCA 70; 166 CLR 59 at 63. 87 One of the errors of the primary judge in Yazaki found by the Full Court was to find multiple contraventions to be the product of two courses of conduct and thus to determine penalties by reference to two maximum penalties. 88 It can be accepted that, in Construction, Forestry, Mining and Energy Union v Williams [2009] FCAFC 171; 262 ALR 417 (Williams) at [31], the Full Court said: In the present case, it is appropriate to take the single course of conduct into account by imposing separate fines for the two offences which when aggregated would represent a single penalty appropriate to punish the single course of conduct concerned. Fixing an amount of fines that when taken together represent a single penalty appropriate to punish the one course of continuing conduct begins from the premise that the maximum penalty for all of the contravening conduct that comprises a single transaction, but constitutes two separate offences, is to be treated, in effect, as $110,000 for the Union and $22,000 for Mr Mates: cf Mornington at [18] (per Gyles J) and at [47]-[49] (per Stone and Buchanan JJ). 89 The Full Court in Australian Building and Construction Commissioner v Construction Forestry, Mining and Energy Union (The Agreed Penalties Case) [2017] FCAFC 113; 254 FCR 68 at [133] noted this passage from Williams. 90 That there can be one penalty from multiple contraventions was recognised by The Agreed Penalties Case. In some cases it is plain that thousands of contraventions (even if they can be calculated) cannot meaningfully be individually dealt with: Australian Competition and Consumer Commission v Coles Supermarkets Australia Pty Ltd [2014] FCA 1405. Sometimes parties come with an agreed position that one penalty appropriately reflects the penalty for all contraventions. This is not, however, a function of a course of conduct limiting the penalty to one contravention (which the multiple contraventions are not) or limiting the penalty for multiple contraventions to one penalty by reference to one maximum penalty. The task is to evaluate the conduct and its course (called a course of conduct) and assess what penalty is, or penalties are, appropriate for the proven contraventions. 91 Central to the above is the recognition that the imposition of penalties must be informed by the particular legislative provision. Absent the relevant application of a provision such as s 557(1) of the Fair Work Act, the task is to evaluate the considerations informing the contraventions (factual and legal) in order to impose appropriate penal relief that does not punish twice for the same conduct. To use a phrase such as "a course of conduct" may imply that there is such an abstracted concept to be found, and once found it implies a single contravention or a single maximum penalty. That is the danger of the phrase. Rather, it is necessary (in the absence of a statutory enquiry such as in s 557(1)) to examine all the conduct and enquire how its course and its explanation factually and legally informs the imposition of penal orders, in particular to avoid double punishment. We see nothing in Williams or The Agreed Penalties Case that was intended to displace the need to consider the statute in question and to recognise that the object of the course of conduct principle is to avoid double punishment. 92 It may be said that the language used by the Commissioner in his submissions to the primary judge (set out at [14]-[15]) about the application of the course of conduct principle lacked precision and consistency. However, reading those submissions as a whole demonstrates that four relevant propositions were advanced by the Commissioner. The first was that the TWUA had committed multiple contraventions of s 172(1) and of s 231(1) (as will be discussed in more detail in relation to Ground 2A). The second was that the contraventions of s 172(1) should be regarded as a single course of conduct and the contraventions of s 231(1) should be regarded as a separate single course of conduct. The third was that a single penalty should be imposed for the contraventions of s 172(1) and a single penalty should be imposed for the contraventions of s 231(1). The fourth was that the single penalty for the contraventions of s 172(1) should be the maximum penalty for one contravention ($51,000) and the single penalty for the contraventions of s 231(1) should be 90% of the maximum. 93 The TWUA's position before the primary judge (set out at [16]-[18]) was that it concurred with the first three aspects of the Commissioner's submissions. The parties' submissions only departed (relevantly) as to the amounts of the two penalties that should be imposed, the TWUA contending that the penalties should be "at the lower end of the range". 94 Therefore, the TWUA's submission that there was a common position between the parties that a single penalty should be imposed for the contraventions of s 172(1) and a single penalty should be imposed for the contraventions of s 231(1) must be accepted. That position reflected a concession by the Commissioner in favour of the TWUA.

[34]

Whether the primary judge departed from the common position 95 The Commissioner submits that his Honour did not accept that the s 172(1) contraventions arose from a single course of conduct, nor that the s 231(1) contraventions arose from a single course of conduct. 96 In our view, the primary judge's reasons must be construed as accepting that the s 172(1) contraventions constituted (accepting the limitations of the phrase, see [110] of the primary judgment at [56] above and in the discussion above) a single course of conduct, but declining to impose only a single penalty because of the seriousness of the conduct (or, to use his Honour's words, "the level of wrongdoing"). His Honour noted that it was arguable that the four contraventions of s 231(1) by the NSW branch of the TWUA arose from one course of conduct without deciding the issue, but considered that the seriousness of the conduct required that more than one penalty be imposed. His Honour regarded the single contravention of s 231(1) by the WA branch unrelated to the NSW contraventions. 97 The order made by the primary judge was ultimately expressed as imposing a single penalty of $271,362.36. However, it is apparent from his Honour's reasons that this amount was the aggregate of five penalties in respect of s 231(1) and a number of penalties in respect of s 172(1). The penalties in respect of s 231(1) were: $5,000 for each of the 2010 and 2011 contraventions; $15,000 for the 2012 contravention; and $23,181.18 for each of the 2013 and 2014 contraventions. Each of those amounts was 45% of the maximum penalty applicable at the relevant date. 98 In respect of the contraventions of s 172(1), the primary judge assessed what was expressed to be a single penalty of $200,000. Those contraventions occurred between 12 May 2003 and 30 July 2015, when the maximum penalty for a single contravention ranged between $11,000 and $51,000. The minimum number of penalties required to make up the $200,000 was four, but His Honour may well have imposed more, since the vast majority of contraventions occurred when the maximum penalty was $11,000. The amount of $200,000 must have consisted of a number of penalties of unspecified magnitude and number. 99 It follows that the primary judge did depart from the parties' common position that a single penalty should be imposed for the contraventions of s 172(1) and a single penalty should be imposed for the contraventions of s 231(1).

[37]

The content of the obligation of procedural fairness here 103 It is necessary to consider the content of the obligation of procedural fairness in the circumstances of the case and, in particular, whether that obligation required the primary judge to give notice to the TWUA of any intention or inclination to depart from the common position. 104 The Commissioner submits that it is well established that a court may decline to act upon a concession made by the applicant in a pecuniary penalty proceeding. The submission continues that the parties must be taken to be aware of that, and to be aware that they should make submissions on the basis that any concession may not be accepted. The Commissioner argues that, therefore, the TWUA had, and in fact took, the opportunity to make submissions as to why only a single penalty should be imposed in respect of each set of contraventions. 105 It is true that the Court is not obliged to accept a joint proposal by the parties to impose a single penalty for multiple contraventions where it is not persuaded that such a course is appropriate in the circumstances of the case: The Agreed Penalties Case at [145]-[146], [148]-[149]. However, the Commissioner's submission is answered by the recent judgment of the High Court in DL v The Queen [2018] HCA 32; 92 ALJR 764. In that case, a majority of the NSW Court of Criminal Appeal had made factual findings contrary to those of the primary judge despite the prosecutor's concession that the factual findings were not challenged. Their Honours said at [39]: Leeming JA was right to say that the Court of Criminal Appeal was not bound by the prosecutor's concession. Notwithstanding the adversarial nature of criminal proceedings, the public interest in the sentencing of offenders is such that the sentencing judge (or the appellate court in the case of re-sentencing) is not constrained by any agreement between the parties as to the appropriate range of sentence or by concessions made by the prosecutor. Where, however, the judge (or the appellate court in the case of re-sentencing) is minded not to act on a concession made by the prosecution, the failure to put the offender on notice of that inclination and give him or her an opportunity to deal with the matter by evidence or submissions will ordinarily be a miscarriage of justice. In the absence of such an indication, it will be reasonable for the offender to conduct his or her case upon the understanding that the concession will be accepted and acted upon by the court. It was an error to hold that the appellant had had ample opportunity to be heard on all aspects of his appeal. (Citations omitted). [See also Pantorno v The Queen (1989) 166 CLR 466 at 473-474, 482; Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Broadway on Ann Case) [2018] FCAFC 126 at [114]-[116]]. 106 An application for a pecuniary penalty proceeding is a civil proceeding, not a criminal proceeding: The Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate [2015] HCA 46; 258 CLR 482 (The Civil Penalty Case) at [53]. As the Full Court said in Flight Centre Limited v Australian Competition and Consumer Commission (No 2) [2018] FCAFC 53; 356 ALR 389 at [71]: Sentencing in crime and fixing the appropriate civil penalties are both evaluative processes linked to the circumstances of the offending or contravention. The differences between the two fields of criminal sentencing and imposition of civil penalties may be necessary to recognise in individual cases and may sometimes be important. The overwhelming relevance of deterrence (specific and general) in the imposition of civil penalties may exclude such factors as denunciation and retribution. But the flagrancy or other feature of conduct which may be seen to be relevant to the seriousness of the contravention will find its place in understanding the degree of deterrence that is necessary to be reflected in the size of the penalty. 107 There are, however, similarities that make the cited passage from DL v The Queen relevant to pecuniary penalty proceedings. In a pecuniary penalty proceeding, like in a criminal proceeding, the court is not bound to act upon a concession made by the applicant or an agreement made between the parties: The Civil Penalty Case at [48]. However, like in a criminal proceeding, it will be reasonable for a contravener to conduct his or her case in a pecuniary penalty hearing upon the understanding that a concession or agreement will be accepted and acted upon by the Court. That is because a pecuniary penalty hearing is an adversarial contest in which the issues and the scope of possible relief are largely framed and limited as the parties may choose: The Civil Penalty Case at [53], [103]. It follows that, contrary to the Commissioner's submission, a contravener cannot be expected to call evidence or make submissions against the mere possibility that a concession or agreement (especially one that fundamentally informs the structure of the whole proceeding) may not be accepted by the Court. 108 Whilst hard and fast rules may not be useful (fairness as a general concept being the touchstone), in this case, the common position of the parties as to the structure of the sentencing task, or, in other words, the concession made by the Commissioner, was, or embodied, an approach to the task of sentencing; departure from which required notice. The primary judge assessed multiple penalties for the TWUA's contraventions of each of s 172(1) and s 231(1) of the Registered Organisations Act. The failure of the primary judge to inform the parties of any inclination or intention to depart from that common position denied the TWUA the opportunity to make submissions as to why his Honour should not take that course. That was a denial of procedural fairness.

[39]

Ground 2A: Whether it was open to the primary judge to impose more than one penalty in respect of s 172(1) of the Registered Organisations Act 112 Ground 2A asserts that the primary judge erred in imposing a penalty with respect to s 172(1) that was in excess of the maximum penalty for one contravention in circumstances where the Commissioner had presented the contraventions as a "rolled-up charge" rather than charging each potential contravention as a separate contravention. The TWUA submits that as only one contravention of s 172(1) was "charged", it was beyond the power of the primary judge to impose more than one penalty. 113 The TWUA's submission relies upon the Commissioner's submissions to the primary judge that "the pleadings do not charge each potential contravention as a separate contravention" and "a number of contraventions, in this case almost 21,000, have been effectively rolled up into one charge". 114 The submissions made to the primary judge about the "rolled-up charge" are confusing. It is necessary to examine what the case law has explained is meant by that expression and how that compares to what was said in the Commissioner's submissions. 115 In the Agreed Penalties Case, the Full Court, in the course of deciding that a single penalty may be imposed for multiple contraventions where that is agreed or accepted as being appropriate by the parties, said at [147]: It is also consistent with the practical and pragmatic approach that is sometimes taken in criminal sentencing cases involving multiple offences, where the prosecutor presents an indictment that contains a single "rolled-up" count or charge that in fact alleges multiple transgressions. Such a single charge would, if challenged by the accused, be considered to be duplicitous and impermissible, however a guilty plea may be accepted in relation to such a rolled-up charge and a single sentence imposed. Importantly, however, where the Crown, with the consent of the accused, presents an indictment with a single rolled-up count that involves multiple contraventions, the maximum penalty is the maximum penalty for one offence only. (Citations omitted.) 116 It may be seen that the Full Court drew an analogy between the imposition of a single pecuniary penalty for multiple offences and the imposition of a sentence for a "rolled-up" charge in a criminal proceeding for the limited purpose of demonstrating that the former was a practical and pragmatic course. The Full Court did not suggest that imposing a single pecuniary penalty for multiple contraventions is the same thing as sentencing for a "rolled-up" charge. It is not. Our earlier discussion makes this plain. The latter involves a single charge in which several discrete offences are bundled together, so that there can only be a conviction for a single offence: see Best v The Queen [2015] VSCA 151; 46 VR 196 at [66]; R v Jones [2004] VSCA 68 at [13]; R v Beary [2004] VSCA 229; 11 VR 151 at [14]. In contrast, the former involves the making of allegations that a contravener has committed multiple contraventions, the admission of multiple allegations, and a finding by the Court that multiple contraventions have been committed. The equivalent in a criminal context would be where an offender is convicted upon multiple charges; not a single charge as in the case of a "rolled-up" charge. 117 In this case, the amended statement of claim alleged that the TWUA contravened s 172(1) of that Registered Organisations Act by failing to remove on 20,907 occasions the names of non-financial former members in NSW by the required dates from its register of members. That allegation was admitted by the TWUA, accompanied by an assertion that the contraventions arose from a single course of conduct and should be treated as one contravention for the purposes of any penalty in its amended defence. The primary judge understood the amended statement of claim to allege, and the amended defence to admit, that there were 20,907 contraventions of s 172(1). His Honour made a finding that there were 20,907 contraventions. That finding was then reflected in the second declaration made by the primary judge. The form of that declaration was not opposed before the primary judge and is not challenged in the appeal. Therefore, it is clear that the Commissioner alleged in the amended statement of claim, the TWUA admitted, and the primary judge found that there were 20,907 offences committed against s 172(1). 118 In contrast to the amended statement of claim, the Commissioner's written submissions before the primary judge were inconsistent as to whether there was a single contravention or whether multiple contraventions of s 172(1) were alleged. At one point, the submissions referred to "the section 172(1) contravention, which relates to almost 21,000 instances of conduct that each amount to a contravention". The submissions continued that "an analogy can be drawn with the treatment given by the Court to a "rolled-up" offence in Commonwealth Director of Public Prosecutions v Nippon Yusen Kabushiki Kaisha". In a passage emphasised by the TWUA, the submissions said that the Commissioner "stresses that the pleadings do not charge each potential contravention as a separate contravention." Later, and inconsistently, the submissions said "the 20,907 contraventions of s172(1)...should be treated as separate instances of contravening conduct". The submissions also said "the contraventions of s172(1) are proposed to be dealt with as a single course of conduct, notwithstanding the 20,907 admitted contraventions of the RO Act." In oral submissions, counsel for the Commissioner said "a number of contraventions, in this case almost 21,000, have been effectively rolled up into one charge". 119 The Commissioner's submissions before the primary judge failed to reflect an understanding of the distinction between the imposition of a single penalty for multiple contraventions against a pecuniary penalty provision and the imposition of a sentence for a "rolled-up" charge in a criminal proceeding. As we have said, the former involves allegations, admissions and findings of multiple contraventions, whereas the latter involves a conviction for a single offence only. The Commissioner's conflation of the two concepts is perhaps demonstrated by his reliance upon Commonwealth Director of Public Prosecutions v Nippon Yusen Kabushiki Kaisha, which was not concerned with sentencing for a pecuniary penalty offence, but with the criminal offence of giving effect to a cartel provision contrary to s 44ZZRG(1) (now renumbered s 45AG) of the Competition and Consumer Act 2010 (Cth). 120 The Commissioner's submissions to the primary judge referred to contraventions "rolled up into one charge". The expression "charge" is usually used to describe a formal accusation that a person has committed a criminal offence: see R v Rider [1954] 1 WLR 463 at 465; R v Rademeyer (1985) 1 NSWLR 285 at 288. While that expression has been used in the past in some civil contexts (e.g. s 11(3) of the Divorce Rules 1949 (Vic) prescribed certain service requirements "where a petition presented by a wife charges adultery with a named person…": see Southam v Southam [1950] VLR 203 at 204-205), that usage has fallen into disuse and is inapposite to describe an allegation in a pleading for a civil offence. The submission that the Commissioner was attempting to make was that only a single penalty should be imposed for the multiple contraventions of the relevant civil penalty provisions. In making that submission, the Commissioner's references to a "rolled-up...charge" inaptly sought to apply a concept taken from the criminal law to a civil proceeding. This is another example of the danger of conflating the criminal law into the task of imposing civil penal penalties in particular statutory contexts: Flight Centre at [71]. 121 The statement in the Commissioner's submissions that "the pleadings do not charge each potential contravention as a separate contravention" may be understood as saying that only a single contravention of s 172(1) was alleged in the amended statement of claim. However, that is inconsistent with other aspects of the Commissioner's submissions and contradicted by the amended statement of claim itself. The primary judge found that multiple contraventions were alleged and admitted. The primary judge was not bound to sentence the TWUA on the basis that only a single contravention of s 172(1) had been alleged when that was contrary to the fact. It was open to his Honour to impose more than one penalty. 122 It follows that the resentencing is not required to be conducted on the basis that the Full Court is bound to impose only one penalty for the contraventions of s 172(1) of the Registered Organisations Act.

[40]

Resentencing 123 It is necessary to resentence the TWUA for its 20,907 contraventions of s 172(1) and its five contraventions of s 231(1) of the Registered Organisations Act. We should emphasise that this is not an exercise in review of the primary judge's orders as either excessive or inadequate. We propose to reach our own views, guided by the findings, and taking into account the views, of the primary judge. 124 In a criminal proceeding, an appellate court is required to form its own view of the appropriate sentence when resentencing: DL v The Queen at [9]; Kentwell v The Queen [2014] HCA 37 252 CLR 601 at [35]. The appellate court's determination of the appropriate sentence is usually made on the basis of the material before the sentencing judge and the primary judge's unchallenged factual findings: DL v The Queen at [9]; Carroll v The Queen [2009] HCA 13; 254 CLR 259 at [24]; Betts v The Queen [2016] HCA 25; 258 CLR 420 at [14]. A similar approach is taken to resentencing in a pecuniary penalty proceeding: see Australian Competition and Consumer Commission v Cement Australia Pty Ltd [2017] FCAFC 159; ATPR 42-557 at [573]; Australian Competition and Consumer Commission v Yazaki Corporation at [246], [250]. 125 The primary judge's factual findings have not been challenged, although in several respects the TWUA submits that the Full Court should draw different inferences and reach different conclusions. In particular, the TWUA submits that the Full Court should take a more favourable view of its contrition and cooperation and that only a single penalty should be imposed for the contraventions of s 172(1) and a single penalty should be imposed for the contraventions of s 231(1). 126 The Commissioner does not depart from his submissions before the primary judge. That means that the Commissioner concedes that a single penalty should be imposed for the contraventions of s 172(1) and a single penalty should be imposed for the contraventions of s 231(1). It is clear that we are not bound by that and that that was clear to the parties in debate. 127 The primary judge considered that the TWUA's degree of cooperation with the Commissioner was "mediocre", and that this reflected a level of contrition that was "at the lower end of the scale". His Honour appeared to give significant weight to the TWUA's failure to call former branch secretaries to explain how the contraventions arose and the absence of a comprehensive statement of agreed facts. However, the TWUA did call Mr McIntosh, whose evidence was accepted by the trial judge, so calling the former branch secretaries would not have affected the ultimate findings. Further, the evidence is silent as to why not all the facts were agreed, so it cannot be concluded that the lack of a more comprehensive statement of agreed facts reflected a lack of cooperation or contrition by the TWUA. It is equally likely that the Commissioner refused to agree upon facts ultimately found in favour of the TWUA. In circumstances where the TWUA put in place comprehensive measures soon after the discovery of the offences to avoid their repetition and admitted the contraventions as early as it could (as the primary judge found), we would assess its level of contrition and cooperation as more than "mediocre" and more aptly described as "of substance". 128 Like the primary judge, we consider that the offences against s 172(1) of the Registered Organisations Act can be described as a single course of conduct. The four contraventions of s 231(1) by the NSW branch of the TWUA arose from a single course of conduct in that the contraventions arose from the same fault, namely the inadequacy of the computer system. But the contraventions in New South Wales went on for four years. The single cause of the multiple contraventions raises the question as to what is the appropriate penalty for those four contraventions that avoids double punishment; it does not answer that question. 129 The offence by the WA branch arose from a separate fault arising from a different computer system in a different branch and should be treated separately. 130 The overwhelming sentencing factor in this case is general deterrence. As the objects set out in s 5 of the Registered Organisations Act make clear, registration confers rights, privileges and protections upon registered organisations. However, those advantages come with serious obligations, including obligations to keep accurate records about their membership. It is important that registered organisations should understand that those obligations must be complied with and that non-compliance will attract substantial penalties. 131 Whilst ignorance of compliance may explain, it does not excuse. Registered organisations should have it made clear to them the importance of record-keeping of members. We broadly agree with the primary judge's views as to seriousness, set out at [110]-[112] of his Honour's reasons (see [56]-[57] above). 132 It is a particularly serious feature of the contraventions of s 172(1) that the offending, which was deliberate in the sense that the non-financial names were deliberately kept on the register, extended over a period of 12 years due to the ignorance of that provision by senior management in the NSW branch. Further, the contraventions of s 231(1) due to the inadequacy of the TWUA's computer systems over an extended period must be regarded as serious. However, as the primary judge found, the contraventions were not a deliberate flouting of the law, and that must be taken into account. 133 Specific deterrence assumes little relevance in this case as the TWUA has put in place systems to ensure that the contraventions will not happen again. 134 There is no evidence of actual harm or loss as a result of the contraventions, although there certainly existed the potential for members and other persons to be misled as to the number of members that the TWUA had during the relevant periods. The level of cooperation and contrition shown by the TWUA has been, as we have said, of substance. 135 Whilst we consider that the s 172 contraventions and s 231 contraventions can be explained by single factors and in that sense described as single courses of conduct, they revealed repeated and serious contraventions over 12 and 4 years respectively. 136 In relation to the contraventions, the maximum penalties were set out at [43]-[44] above. 137 Taking into account the relevant maximum penalties, the overwhelming importance here of general deterrence, and the serious and on-going nature of the breaches, but also taking into account all the other factors to which we have referred, including in particular, the explanatory causes of the contraventions that are capable of expression as courses of conduct, we would impose penalties reflecting a seriousness across the board of 40-45% of the maximum for all of the s 231 contraventions. Such a range takes into account and recognises the commonality of cause in the four contraventions in New South Wales and the one isolated contravention in Western Australia but gives weight to the seriousness (as explained) of the contraventions and to the necessary general deterrence. This would put this range in tabular form as: New South Wales contraventions 31/12/09 $4,400 $4,950 1/1/10 31/12/10 1/1/11 $4,400 $4,950 31/12/11 1/1/12 $13,200 $14,950 31/12/12 1/1/13 $20,000 $22,950 Total $42,000 $47,800 Western Australia contravention 31/12/13 1/1/14 $20,400 $22,950

[41]

138 The above should not be seen to suggest some false certainty in the evaluative task. It perhaps illustrates or underpins the attitude of the Commissioner. For our part, giving proper weight to the way the Commissioner approached the matter (which would undoubtedly have incorporated his view of necessary deterrence), to the principle of totality, to ensuring no double punishment, to vindicate fully our view of general deterrence, and to recognise the seriousness of the extended length of time of the contraventions in New South Wales, we would impose a combined penalty of $48,000 for the four s 231 contraventions of the New South Wales Branch, which can be viewed as comprised of four constituent sums that would individually lead to the imposition of one sum of $48,000, based on the considerations above. For the Western Australian contravention we would impose a penalty of $20,000. 139 These penalties are broadly in line with the approach of the primary judge. 140 The contraventions of s 172 are more difficult to assess. An across-the-board percentage range is of little assistance. Further, the relevant maximum amounts set out at PJ [92] ([44] above) provide no real guide, other than to indicate that the deliberate conduct (albeit not intended to contravene the Act) is viewed by Parliament as very serious. It is conduct that was explained by a single, but continuing cause. We do not think that a penalty for a one year maximum (or $51,000) is adequate for the purpose of deterrence. On the other hand, we do not consider $200,000 imposed by the primary judge is warranted for the purpose of general deterrence. Taking into account the number of contraventions, the extraordinary length of time, the seriousness of the matter, and the need for general deterrence to require registered organisations to be fully aware of their responsibilities, we would impose penal relief in the order of $100,000 for the s 172 contraventions. The question arises as to the form of that penal relief in accordance with the statute and the number of contraventions and the explanatory course of conduct. The number of contraventions and the three relevant maximum penalties make it, to a degree, artificial to rationalise a total appropriate sum, taking into account all relevant factors, including general deterrence and totality, by reference to separate contraventions. We consider that a balance is to be struck by imposing three penalties each of a relevant maximum: $11,000 (for the 12 May 2003 to 28 June 2012 contraventions); $33,000 (for the 29 June 2012 to 27 December 2012 contraventions); and $51,000 (for the 28 December 2012 to 30 July 2015 contraventions). This takes account of our view as to the course of conduct and the seriousness and duration of the contraventions. 141 The appeal will be allowed. Order 3 of the orders made by the primary judge will be set aside. That order will be replaced with an order that the TWUA pay the penalties described above to the Commonwealth within 28 days of this order. I certify that the preceding one hundred and forty-one (141) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Chief Justice Allsop and Justices Collier and Rangiah.

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