REASONS FOR JUDGMENT
1 On 13 March 2009, I made findings that the respondents had each contravened s 43 of the Building and Construction Industry Improvement Act 2005 (Cth) ("the BCII") in two respects: Williams v Construction, Forestry, Mining and Energy Union [2009] FCA 223. I have now heard the parties on the final orders which should be made, and on the question of costs. These reasons deal with those matters. They should be read together with my reasons of 13 March 2009.
2 The first matter concerns the penalties, if any, which should be imposed on the respondents for the contraventions to which I have referred. There were two such contraventions. First, I found that the respondents had procured a stoppage of work on the site on 31 July 2006 with intent to coerce Kane to employ a person as a building employee, or to engage a person as a building contractor, in the role of a labourer with occupational health and safety responsibilities and as a peggy on site. Secondly, I held that the respondents had threatened to procure further stoppages on the site with the same intent. Each contravention is such as would attract a maximum penalty of $110,000 in the case of the first respondent, the Union, and $22,000 in the case of the second respondent, Mr Mates.
3 The task of the court is "to fix a penalty which pays appropriate regard to the circumstances in which the contraventions have occurred and the need to sustain public confidence in the statutory regime which imposes the obligations": Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith (2008) 165 FCR 560, 580 [91] per Buchanan J. The conduct of the respondents on 31 July 2006 was, in my view, squarely within the general class of conduct with which s 43(1) of the BCII Act is, as a matter of policy, concerned. Mr Mates (in his role as a representative of the Union) visited the site and procured a stoppage of work in circumstances where, as would have been apparent to him, important construction work was interrupted. He did so with the intent of coercing Kane in the respects indicated above. He was acting in the course of his employment as an organiser of the Union, and there was no suggestion in the evidence that the Union disapproved of his actions.
4 Counsel for the respondents submitted that the contraventions found to have occurred in this case should be regarded as towards the less serious end of the spectrum. First, it was said that there was no extreme or reprehensible industrial conduct (such as violence, damage to property, or the like) involved here. I accept that there was no such conduct, but its absence does not, in my view, justify the placement of the contraventions at the lower end of the spectrum of seriousness. Even absent such conduct, the present contraventions remain, as I have said, squarely within the range of conduct which it is the concern of s 43 to proscribe.
5 Secondly, it was said that, subjectively, Mr Mates' concern was with the health and safety of the workers on the site, and that his insistence on the employment of a labourer was his way of ensuring that the deficiencies in the condition of the site, as he perceived them, were addressed. It was put that these factors were mitigatory, or at least should set the case apart from one in which the employment of additional labour was demanded with no colourable justification. Counsel for the applicant submitted that the respondents' submissions failed to recognise the essence of Mr Mates' wrongdoing, which was that, however strongly-felt were his reservations about the condition of the site, he sought to rectify the matter by recourse to coercion. I think there is some substance in each of these submissions, the difference between them being a matter of perspective.
6 It is, of course, not only legitimate but important that union officials in the building industry maintain a concern with on-site health and safety. The BCII Act itself recognises the importance of the subject, but it does so in a limited way: a stoppage of work on account of a worker's reasonable concern about an imminent risk to his or her health or safety is excluded from the definition of "building industrial action" under Ch 5 of the Act, but there is no corresponding exclusion from the operation of s 43. I consider that the explanation for the difference is to be found in the circumstance that s 43 is concerned only with action taken with a particular intent. If someone in the position of Mr Mates took action with the intent only of protecting his or her members from exposure to an imminent risk to their health or safety, the section would not have been contravened. But that was not the present case.
7 I have held, in effect, that Mr Mates did not have reasonable grounds to suppose that the workers on site could only be protected by a cessation of work. Indeed, in procuring a stoppage of work, Mr Mates' intent was to coerce Kane. While I recognise the importance of a workplace which is safe and without risks to health, I consider it no less important that such issues, when they arise and become matters of controversy, be resolved according to procedures established for the purpose (as existed in the present case). Thus I substantially accept the case put on behalf of the applicant that Mr Mates had no need to procure a stoppage of work on 31 July 2006 even if he did hold the concerns that he expressed in his evidence, and that the source of those concerns should not be regarded as mitigatory apropos the inherent seriousness of his conduct.
8 Thirdly, it was said on behalf of the respondents that the work stoppage on the site was of short duration and that there was no evidence of any loss having been sustained by Kane as a result. It seems that work did not resume on the site until 2 August 2006, and that two days' work (save for the unloading of the steel) were lost. There was no evidence that any person suffered financial loss as a result of the stoppage. Mr Chambers gave evidence that the client would not "pursue" Kane for any losses resulting from the stoppage. In the circumstances, I do not consider that the seriousness of the stoppage, or the losses arising from it, should be regarded as aggravating factors in the fixing of penalties. On the other hand, I would not regard the absence of evidence of loss as mitigatory. The work scheduled to be done on 31 July 2006 was the erection of structural steel and would, to someone in the position of Mr Mates, have appeared to be on the critical path (which it was). I am not prepared to depreciate the inherent significant of the stoppage - as a means of placing illegitimate pressure on Kane - by reason only that there was no evidence of any resulting financial loss.
9 Counsel for the respondents made a number of other points in his very comprehensive submissions, but they were, if I may so observe with respect to him, based on isolated observations by Judges in individual cases, each concerned with its own facts. While I have considered them, I do not propose to rehearse them in these reasons as they do not, in my view, affect what would otherwise be the appropriate penalties to be fixed in the present case.
10 The next submission by counsel for the respondents concerned the inter-relationship between the two contraventions (the stoppage and the threat) which have been found in the case of each of the respondents. It was submitted that the second contravention in each case should not be separately penalised, on the basis that what was involved here was a single "course of conduct", relying in this respect upon the discussion of the subject in the joint reasons of Stone and Buchanan JJ in Mornington Inn Pty Ltd v Jordan (2008) 168 FCR 383, 396-401, [41]-[58]. In the course of those reasons, their Honours said (at 396-397 [41]):
The appellant argued, however, that 'Mr Barry engaged in one multifaceted course of applying duress to bring about the signing of the AWA' so far as Ms Thompson was concerned. The argument relied upon observations of Gleeson CJ in Johnson v The Queen (2004) 78 ALJR 616; 205 ALR 346 at [4]-[5] ('Johnson') where the Chief Justice cited with approval observations of Wells J in Attorney-General (SA) v Tichy (1982) 30 SASR 84 at 92-3 which included the following:
'Where there are truly two or more incursions into criminal conduct, consecutive sentences will generally be appropriate. Where, whatever the number of technically identifiable offences committed, the prisoner was truly engaged upon one multi-faceted course of criminal conduct, the judge is likely to find concurrent sentences just and convenient.
Although, factually, Mr Mates was in a sense engaged in a single course of conduct on 31 July 2006, that conduct had two elements which s 43 recognises as separate and which were, qualitatively, distinct in the impact they may be presumed to have had on Kane. That is to say, Mr Mates sought to coerce Kane in two ways. By procuring stoppage of work he placed immediate pressure upon Kane and, necessarily, demonstrated his capacity and preparedness to do so. By threatening to procure later stoppages, he asserted, in effect, control over when work would resume on the site, and in what circumstances. In its coercive effect, the threat should be viewed as additional to, and not merely as a continuation of, the conduct involved in procuring the stoppage as such.
11 The next matter for consideration is the relevance of prior contraventions of s 43 or of similar statutory proscriptions. Counsel for the applicant drew the court's attention to a number of previous occasions upon which the Union (and in one case Mr Mates) had been found to have contravened s 43, or another provision, of the BCII Act, or a provision of the Workplace Relations Act 1996 (Cth) ("the WR Act") which, according to counsel, proscribed similar conduct to that proscribed by s 43. Ordered by reference to the date or dates upon which the conduct occurred, those occasions were the following:
January/February 1999 Contravention of s 298P(3) of the WR Act: Hamberger v CFMEU (2000) 103 IR 249.
October 2002 Contravention of s 170NC of the WR Act: Alfred v CFMEU (unreported, NSW District Court, 30 March 2004)
November 2002 Contravention of s 298P(3) of the WR Act: Hadgkiss v Blevin [2004] FCA 697.
April 2003 Contravention of s 170NC of the WR Act: Alfred v Walter Construction Group Limited [2005] FCA 497.
August 2003 Contravention of s 187AB(1)(a) and (b) of the WR Act: Cruse v Multiplex Limited [2007] FCA 2015, and on appeal [2008] FCAFC 179.
August 2003 Contravention of s 187AB(1)(a) and (b) of the WR Act: Ponzio v B & P Caelli Construction Pty Ltd [2006] FCA 1221, and on appeal (2007) 158 FCR 543.
October 2003 Contravention of s 170 NC of the WR Act (and s 45D of the Trade Practices Act 1974 (Cth)): A & L Silvestri Pty Ltd v CFMEU [2007] FCA 1047.
May 2004: Contravention of s 187AB(1)(a) and (b) of the WR Act: Cahill v CFMEU [2008] FCA 495.
October 2004: Contravention of s 170NC of the WR Act: Martino v CFMEU and Maher (unreported, Magistrates Court of Victoria, 10 May 2006).
May 2005: Contravention of s 298SC(c), and s 170NC, of the WR Act: Cruse v CFMEU [2008] FCA 1267.
October 2005: Contravention of ss 38 and 43 of the BCII Act: Stuart-Mahoney v CFMEU [2008] FCA 1426.
February 2006: Contravention of s 43 of the BCII Act: Cahill v CFMEU (No 3) [2009] FCA 52.
In each of the above instances, the Union was found to have contravened the provision or provisions referred to. In addition, in the most recent instance (that of February 2006), Mr Mates was found to have contravened the provision referred to.
12 The applicant's reliance upon previously-found contraventions of the BCII Act or other legislation raises four general questions for consideration:
(a) Is the court either entitled or obliged to have regard to prior contraventions at all, and if so, for what purpose?
(b) In the case of contraventions of provisions other than s 43 of the BCII Act, are those contraventions relevant to the consideration of penalties in the present case, which involved contraventions of that section?
(c) Is it proper to have regard to previous contraventions found to have occurred in States or Territories other than Victoria, where the contraventions in the present case did occur?
(d) May the court have regard to contraventions which occurred prior to 31 July 2006 (when the contraventions in the present case occurred), or is the court limited to contraventions in relation to which findings had been recorded before that date?
13 The first question is answered by the following passage from the judgment of Mason CJ, Brennan, Dawson and Toohey JJ in Veen v The Queen [No 2] (1988) 164 CLR 465, 477-478:
There are two subsidiary principles which should be mentioned. The first is that the antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed, but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence. To do so would be to impose a fresh penalty for past offences: Director of Public Prosecutions v Ottewell [1970] AC 642 at 650. The antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind. Counsel for the applicant submitted that antecedent criminal history was relevant only to a prisoner's claim for leniency. That is not and has never been the approach of the courts in this country and it would be at odds with the community's understanding of what is relevant to the assessment of criminal penalties.
That is to say, subject to the maintenance of proportionality, prior contraventions should be regarded as relevant to the extent that they show that the instant contravention is "an uncharacteristic aberration" or whether, by contrast, they show that that contravention manifests "a continuing attitude of disobedience of the law".
14 In pressing for a negative answer to the second question, counsel for the respondents drew my attention to the following passage in the judgment of Le Miere J in Leighton Contractors Pty Ltd v Construction, Forestry, Mining and Energy Union (2006) 164 IR 375, 389-390 [67]:
In relation to the first defendant, the schedule refers to eight proceedings against the first defendant between 2000 and 2006. The contraventions established in those proceedings are of a different nature than the contraventions now being considered and did not involve contraventions of the Act. In Construction, Forestry, Mining & Energy Union v Coal & Allied Operations Pty Ltd (No 2) (1999) 94 IR 231 at 232 Branson J listed a number of matters that are relevant to penalty in relation to contraventions under Pt XA of the WR Act. One matter her Honour considered was whether the respondent had previously been found to have engaged in conduct in contravention of Pt XA of that Act. In my view, that is the correct approach. It is not appropriate to consider all contraventions of any industrial legislation by any Branch of the first defendant anywhere in Australia. The first defendant is a very large organisation that operates throughout Australia. Branches, Divisions, officers and representatives of the first defendant are involved in dealings with employers in relation to industrial matters every day. It is inappropriate to take account of conduct of the first defendant through various Branches, Divisions and officers or representatives that is of a different character than the contravening conduct in question and are contraventions of different legislation.
It was said that the following passage from the judgment of Tracey J in Stuart-Mahoney v Construction, Forestry, Mining and Energy Union [2008] FCA 1426, [44] was authority for much the same proposition:
This consideration is derived from the decision of Branson J in Coal & Allied Operations. In the present case, the applicant invites the Court to have regard to previous contraventions by the CFMEU of the WR Act in determining the appropriate penalty for the CFMEU's contraventions of the BCII Act. Similar previous conduct demonstrates that the respondent has a history of engaging in the particular conduct in question, that the penalties previously imposed were insufficient to deter the respondent from re-engaging in that conduct and that the respondent has failed to take adequate steps to prevent further contraventions. Conduct which is of a different character does not assist this assessment see: Leighton Contractors Pty Ltd v Constructions, Forestry, Mining and Energy Union (2006) 164 IR 375 at [67]. Similar conduct which has been found to contravene other legislative provisions will have potential relevance. In this case, any previous contraventions of the provisions of Part 9 of the WR Act which relate to unlawful industrial action and coercion are relevant in determining the appropriate penalty.
Both Tracey J and Le Miere J referred to the judgment of Branson J in Construction, Forestry, Mining and Energy Union v Coal & Allied Operations Pty Ltd (No 2) (1999) 94 IR 231. In fixing penalties for contraventions of what was then Part XA of the WR Act, Branson J said (at 232 [8]):
The following matters, which are not intended to comprise an exhaustive list, seem to me to be considerations to which the Court may appropriately have regard in determining whether particular conduct calls for the imposition of a penalty, and assuming that it does, the amount of the penalty:
(a) The circumstances in which the relevant conduct took place (including whether the conduct was undertaken in deliberate defiance or disregard of the Act).
(b) Whether the respondent has previously been found to have engaged in conduct in contravention of PtXA of the Act.
(c) Where more than one contravention of PtXA is involved, whether the various contraventions are properly seen as distinct or whether they arise out of the one course of conduct.
(d) The consequences of the conduct found to be in contravention of PtXA of the Act.
(e) The need, in the circumstances, for the protection of industrial freedom of association.
(f) The need, in the circumstances, for deterrence.
15 There are, in my view, several difficulties with the approach for which the respondents contend in the present case. Insofar as they rely upon Coal & Allied, it is clear that the considerations referred to by Branson J were not intended to be exclusive. Her Honour's judgment could not, in my view, be read as implying that contraventions arising otherwise than under the particular Part of the Act in question might not, in appropriate circumstances, be relevant to penalties. The second difficulty relates to the extract set out above from Leighton Contractors. There, Le Miere J expressed his views rather categorically, and in terms with which, with respect, it would be difficult to disagree. I would accept that it would not be appropriate to consider all contraventions of any industrial legislation, including contraventions which were of a character quite different from those presently under consideration. For example, under s 230(2) of Schedule 1 to the WR Act, a registered organisation must, within 28 days after a person becomes a member of the organisation, enter that person's name and postal address in the register of members. That is a civil penalty provision, contravention of which exposes the organisation to a maximum penalty of 100 penalty units: see s 306(1) of the Schedule. One can readily appreciate why such contraventions, for instance, ought not normally to be taken into account for the purposes of fixing a penalty for a contravention of s 43 of the BCII Act. The reason is obvious: they would be irrelevant to the matters which, according to the judgment of the High Court in Veen, might appropriately guide the exercise of the court's discretion.
16 There is, however, no reason, in point of principle or of policy, why contraventions, of themselves having the potential "to show whether the instant [contravention] is an uncharacteristic aberration or whether the [respondent] has manifested in his commission of the instant [contravention] a continuing attitude of disobedience of the law", should be excluded from consideration simply because they arose under legislation different from that presently before the court. What is important, in my view, is the quality of the conduct in each case, and the relevance of the conduct to the norms of industrial behaviour which the instant legislation seeks to establish or support. In this respect I agree with the views expressed by Tracey J in Stuart-Mahoney.
17 In the present case, the prior contraventions on which the applicant relies are those of ss 38 and 43 of the BCII Act, and of ss 170NC, 298P(3) and 187AB of the WR Act (as those provisions were numbered at the relevant times). Each of those provisions of the WR Act was concerned with resort to coercion to compel another person to act in a way which was, presumptively, against his or her own interests and which, necessarily, involved an outcome which the legislative provision in question viewed with disfavour. There is, in my opinion, a close similarity between these provisions and the one with which I am presently concerned. Contraventions of the former should not be excluded from present consideration simply on the ground that they arose under legislation different from that now before the court.
18 Turning to the third question, counsel for the respondents submitted that "prior contraventions of another autonomous division and/or branch of the first respondent should not be taken into account". He relied in this respect upon the passage of the judgment from Le Miere J in Leighton Contractors to which I have referred above, and upon the following passage in the judgment of Dowsett J in Temple v Powell (2008) 173 IR 189, 209 [63]:
The respondents submitted that in a large organisation such as the CFMEU, with autonomous state branches, it is not necessarily appropriate to treat conduct by all branches throughout the country as relevant past conduct for the purpose of fixing a penalty in connection with the unlawful conduct of one branch. There is substance in that submission. Whether previous misconduct is relevant to fixing a penalty is a question of logic. In some cases a pattern of conduct across the country may suggest a nationwide plan of action or a national culture of misconduct. In other cases it may appear that a particular branch or geographical region has acted alone in adopting a plan of action or has developed a particular culture.
On the other hand, counsel for the applicant drew my attention to the following passage in the judgment of Gyles J in A & L Silvestri Pty Ltd v Construction, Forestry, Mining and Energy Union [2008] FCA 466, [13]:
Ultimately, union officials will act in accordance with the policies of the union. An official of one geographic or industry branch will observe the manner in which policies are applied by the federal body in relation to other branches. These various cases illustrate that the federal body has not been effective in ensuring that officials act in accordance with the law. I note that there is no evidence of offending officials (including Lane) suffering any serious disciplinary penalties.
While I agree with Dowsett J that the question whether previous misconduct is relevant to fixing a penalty is a question of logic, to the extent that his Honour's judgment is to be read as suggesting that conduct of the officials of another division or branch should be regarded as relevant only where there was "a nationwide plan of action or a national culture of misconduct", or that such conduct should never be regarded as relevant where the other division or branch "has acted alone in adopting a plan of action or has developed a particular culture", I would not, with respect, accept either such limitation. For reasons which follow, I am attracted to the approach taken by Gyles J in Silvestri.
19 The starting point, of course, is that an organisation registered under the WR Act is a single incorporated body, present wherever it has divisions, branches or other internal components. In a case such as the present, where the unlawful acts in question are the direct doing of an employed organiser acting within the scope of his or her employment, the organisation would be responsible therefor according to normal principles. Where the BCII Act applies, the situation is covered also by s 69, which attributes to the building association itself the conduct of the employee. In the present case it was uncontroversial that s 69 had the effect of making Mr Mates' conduct also the conduct of the Union. Neither was it submitted that the Union itself was not appropriately regarded as the relevant actor in each of the circumstances in which a prior contravention is now relied on by the applicant, whether or not a provision such as s 69 then applied (which it did: see the provision which is now s 826 of the WR Act).
20 Turning specifically to the matter of the relevance of prior contraventions, the basic question is whether they have the potential to which I referred in par 16 above. In the context of a corporate respondent with a presence in different States, I consider it to be almost self-evident that prior contraventions in State A have at least the potential to answer in the negative the question whether a particular contravention in State B is an uncharacteristic aberration. It may be aberrant of the officials in State B, but it need not be aberrant of the corporation itself. Both the BCII Act and the WR Act are relevantly concerned with the conduct of organisations, and I consider that the deterrent effect of a penalty would be significantly compromised if the court were obliged to turn a blind eye to a prior contravention merely because it occurred in a different division or branch of an organisation.
21 The respondents' case on this question was based on the proposition, said to be apparent from the rules of the Union, that the Union consisted of a series of autonomous divisions and branches. I shall turn to a consideration of the correctness of that proposition in a moment, but, assuming it to be correct, I do not accept that it follows that prior contraventions by the Union through the agency of one division or branch should never be regarded as relevant to the fixing of a penalty for unlawful conduct by the Union done through the agency of another division or branch. How the Union - or any incorporated body - organises itself internally is a matter for its own members. Some bodies employ a highly centralised system of control. Others vest the real decision-making power in divisions, branches or, indeed, groups of members at the workplace. In the latter case, however, no less than in the former, it is the body itself which acts when the internal group or individual having generic responsibility for the relevant area of activity does something with legal consequences. In the case of trade unions, if ever there was any doubt about that proposition, it was laid to rest by Heatons Transport (St Helens) Ltd v Transport and General Workers' Union [1973] AC 15. And just as a union may not, by a judicious decentralisation of authority, avoid responsibility for things done by its servants or agents acting within the scope of their authority, neither, in my view, can a union (or, for that matter, any like body) by the same process render irrelevant to the matter of fixing penalties its own prior contraventions merely by reason that they were committed in some other section, division or branch of the larger body.
22 As it happens, the contention that the prior contraventions on which the applicant relies were done in compartments of the Union which were truly autonomous (in the presently relevant sense that I should regard the Union itself as being effectively powerless in the matter) does not withstand examination. Under the rules of the Union, the primary basis of association is that of membership of the Union itself. Within the Union, both divisions and branches are established. The divisions are established "on a basis of industry or occupation", and each division is to have branches "along a geographic, occupational or area basis" which are called "divisional branches". All of the prior contraventions which are presently relevant were committed within the Construction and General Division of the Union. That division has divisional branches in all the States, and in the Australian Capital Territory. The conduct of Mr Mates in the present case occurred in Victoria. Of the previous contraventions listed in par 11 above, one (Hamberger) was committed in Queensland, four (Alfred v CFMEU, Hadgkiss, Walker Construction and Silvestri) were committed in New South Wales, and the balance were committed in Victoria. Presumably the individual actors involved in each case were employees, officials or members of the Union within the relevant divisional branch of the Construction and General Division.
23 Under the rules of the Union, the "supreme governing body" of the Union is the biennial National Conference. Subject thereto, there is a National Executive which has the "care, control, superintendence, management and administration in all respects of the affairs, business, national funds and property of the Union". And there is a National Executive Committee which has like powers, subject to the National Executive. Notwithstanding these provisions, it is provided that each division "shall have autonomy to decide matters which do not directly affect the members of another division", with respect to, amongst other things, "the industrial interests of its members". However, my attention was drawn to no rule which gave the divisional branches of the Construction and General Division autonomy within that division. Indeed, the rules of the division provide that "the supreme governing body of the Division shall be the Divisional Conference", and that "all divisional branches … shall for all purposes be and remain an inseparable part of the division by which they are established".
24 Counsel for the respondents relied upon a rule (in the rules of the Union) which, he submitted, had the effect of giving branches of the Union control over the investment and disposition of moneys received by them which is independent of other organs within the Union. I accept that to be so, but the rule in question is concerned with branches as such, which appear to be different from divisional branches. Further, the existence of local control over property and funds does not, in my view, compel the conclusion that the industrial conduct of members attached to those branches is not still the conduct of the organisation itself, and conduct for which the organisation should bear responsibility when the stage arrives that prior contraventions are being taken into account. However that aspect may be, at least on the industrial axis, there seems to be little or no autonomy for the divisional branches of the Construction and General Division within the division itself.
25 For the above reasons, I consider that the five prior contraventions relied upon by the applicant which involved conduct in places outside Victoria are not disqualified from consideration merely by reason of that circumstance.
26 Turning to the fourth question, in contending that the only prior contraventions which could be taken into account were those in respect of which a finding had been recorded before 31 July 2006 (the date of the contraventions in the present case), counsel for the respondents relied upon the following passage in the judgment of Branson J in Alfred v Walter Construction Group Limited [2005] FCA 497, [13]:
The third respondent has previously been found to have engaged in conduct in contravention of s 170NC of the Act. That contravention occurred on 15 October 2002. However, the relevant judgment of the District Court of New South Wales was published after the date of the conduct with which this proceeding is concerned. For this reason I do not consider it appropriate to fix the amount of the penalty to be imposed on the basis that the third respondent engaged in the contravening conduct after having been found to have earlier contravened s 170NC. However, nor do I consider it appropriate to mitigate the penalty otherwise appropriate on the basis that the contravening course of conduct on the Site was an isolated instance of contravening conduct entirely uncharacteristic of the third respondent.
It will be seen at once that the words of Branson J give no support for the submission made on behalf of the respondents. Her Honour said that she would not fix a penalty on the basis that the third respondent (in that matter) "engaged in the contravening conduct after having been found to have earlier contravened s 170NC". Branson J did not say that it was inappropriate to fix the penalty on the basis that the respondent had previously engaged in conduct which contravened the section.
27 The position for which the respondents contend is contrary to the authority of the Full Court of the Supreme Court of South Australia and of the Queensland Court of Criminal Appeal. In The Queen v McInerney (1986) 42 SASR 111, King CJ said (at 111-112):
[T]here is no rule of law which precludes a sentencing court from taking into account in an appropriate way and for appropriate purposes offences in respect of which there has been a conviction between the time of the offence for which the sentence is being imposed and the time of sentence, whether those offences have been committed before or after the current offence.
It will be noticed that his Honour dealt also with the situation (which is not presently relevant) in which the prior offence had been committed after the current offence. It is clear that his Honour's words apply to a situation in which the prior offence occurred before the current offence, but was the subject of a conviction recorded after the commission of the current offence. As to that situation, his Honour said (at 113):
Where the other offences have been committed before the commission of the immediate offence, their relevance is clear in the generality of cases. The offender has committed the offence not as a first offender but as a person whose character is affected by previous offending. He must be sentenced against the background of his record: Director of Public Prosecutions v Ottewell (1968) 52 Cr. App. R. 679. The effect of the prior offences is more cogent if they have been the subject of conviction before the immediate offence. In such cases, the offender has committed the immediate offence notwithstanding the formal judgment and condemnation of the law in respect of the earlier offences and notwithstanding the warning as to the future which the conviction experience implies.
Giving the main judgment in McInerney with which the Chief Justice also agreed, Cox J undertook a comprehensive examination of the authorities, and concluded that the sentencing court would "look at all relevant aspects of a defendant's behaviour up to the time when he is sentenced" (at 121). It was only a 1972 judgment of the Full Court itself - Rainbird v Samuels (1972) 4 SASR 187 - that cast any doubt upon that principle. Ultimately, Cox J (with the agreement of King CJ and Bollen J) held that Rainbird v Samuels should be regarded as having been overruled. Likewise, in R v Aston (No 2) [1991] 1 Qd R 375, 382, Cooper J, with the assent of the other members of the Queensland Court of Criminal Appeal, said: "Evidence of convictions and the sentences imposed for offences committed both before and after the offence for which sentence is to be imposed is both relevant and admissible when the sentencing discretion is to be exercised."
28 Counsel for the respondents also argued, in the alternative, that conduct for which a finding of a contravention had not been recorded before 31 July 2006 should be given less weight than conduct for which a finding of a contravention had been recorded before that date. He relied in this respect upon the observation of King CJ in McInerney (included in the passage set out at par 27 above) that the effect of prior offences was "more cogent" if they had been the subject of a conviction before the commission of the immediate offence, and on the observation of Cox J in the same case (at 124) that the existence of a prior conviction "adds a significant dimension". I accept this distinction, and shall apply it in the present case.
29 The overall position with respect to the contravention of s 43 constituted by the procurement of the work stoppage on 31 July 2006, then, is this. The contravention fell squarely within the range of conduct which s 43 proscribes, and had what I might call, perhaps inelegantly, a mid-range seriousness. The events surrounding the contravention appear to have been unremarkable, and generally devoid of any mitigating or aggravating circumstances. At the time of the contravention, the Union had previously been found to have contravened provisions of the WR Act which I accept to be relevant for present purposes on four occasions - in Hamberger (December 2000), Alfred v CFMEU (March 2004), Hadgkiss (June 2004) and Walter Construction (May 2005). At that time, the Union had in fact contravened relevant provisions on the eight further occasions mentioned on the list in par 11 above, albeit that findings were made only subsequently. The impression I get from this history of contraventions is that the conduct of Mr Mates in the present case was, for the Union as contravenor, not an aberration. Indeed, the history tends to suggest that the Union has, with respect to anti-coercion and similar provisions of industrial laws, what the High Court in Veen described as "a continuing attitude of disobedience of the law". The circumstances do, in my view, make specific deterrence a matter of particular importance in the fixing of a penalty in the present case.
30 All of the considerations to which I have referred in my reasons above lead me to the view that penalties of $75,000.00 and $60,000.00 would be appropriate for the Union's contraventions of s 43 constituted by the stoppage and the threat, respectively. I do, however, consider that a total penalty of $135,000.00 would be disproportionate in the light of the close relation between the contraventions in point of time, context and purpose. Applying the totality principle, I do not believe that a total penalty of more than $100,000.00 should be imposed. To give effect to that principle, I propose to impose penalties on the Union of $55,000.00 and $45,000.00 respectively.
31 Save with respect to prior contraventions, the reasoning set out above applies also in the case of Mr Mates. As it happens, in the last matter on the list in par 11 above, a finding of three contraventions of s 43 of the BCII Act was made against Mr Mates on 5 February 2009. The conduct in question occurred in February 2006. Although singular, these findings demonstrate at least that the conduct of Mr Mates on the site on 31 July 2006 was not an aberration for him. In all the circumstances I consider that penalties of $11,000.00 and $9,000.00 would be appropriate for Mr Mates' contraventions of s 43 constituted by the stoppage and the threat, respectively. Again, however, I consider that a total penalty of $20,000.00 would be disproportionate in the light of the close relation between the contraventions in point of time, context and purpose. Applying the totality principle, I do not believe that a total penalty of more than $15,000.00 should be imposed. To give effect to that principle, I propose to impose penalties of $8,250.00 and $6,750.00 respectively.
32 The only remaining matter concerns the question of costs. The applicant alleged four contraventions of the BCII Act, and was successful in establishing two. On that basis, counsel for the respondents submitted that there should be no order as to costs. Counsel for the applicant submitted that it would in any event have been necessary, in order to understand the context for the purposes of deciding such issues as Mr Mates' intent, to call evidence about the whole dispute, including that which related to the events, and conversations, of 28 July 2006. He sought an order for costs in favour of the applicant. I consider that there is substance in each of these submissions. It would have been quite unrealistic to have attempted to deal with the applicant's allegations about Mr Mates' conduct on 31 July 2006 without carefully considering the lead-up events which occurred on 28 July 2006. On the other hand, there were undoubtedly aspects of the proceeding which related only to allegations of wrongful conduct on 28 July as such. Giving appropriate credit for those respects in which the respondents succeeded, but rejecting the submissions made on their behalf that the costs of the proceeding were incurred by the parties equally with respect to the points on which they succeeded and failed, I consider that justice would be done by requiring the respondents to pay one half of the applicant's costs.
I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jessup.