the High Court’s clear statement of principle as to proportionality as that term is
understood in the criminal law, and it having no role to play in fixing a civil penalty.
87. The third principle, which is that the power to impose an appropriate penalty must be
exercised reasonably, is uncontroversial. The power in s 546 to impose a pecuniary
penalty that a court considers “appropriate” must be exercised such that any penalty that
is imposed “... strikes a reasonable balance between deterrence and oppressive severity”:
ABCC v Pattinson at [41] (Kiefel CJ et al).
88. The fourth and fifth principles concern recidivism. The fifth principle that recidivism
does not permit the imposition of a penalty at or near the maximum cannot be accepted
as an accurate statement of principle in light of the High Court decision in ABCC v
Pattinson.
89. Insofar as the fourth principle is directed at consideration being given to all the
circumstances of the case, including personal circumstances of the contravenor, the
extent and weight to be given to those personal circumstances of the contravenor will
vary with the case. The circumstances of the contravention of s 47 of the BCIIP Act,
which prohibits a person organising or engaging in an unlawful picket, is relevant to the
objective seriousness of the contravening conduct and must be seen against the main
object of that Act, which includes ensuring that building work is carried out fairly,
efficiently and productively: s 3 of the BCIIP Act.
The Union and Mr Sutherland’s supplementary submissions (R1, R2 SS)
90. In their supplementary submissions, the first and second respondents submit that ABCC
v Pattinson involved the imposition of the maximum penalty informed by factual
circumstances involving a repetition of similar conduct having occurred for the same
reasons which had been sanctioned by civil penalties in a series of earlier matters
occurring over many years.
91. The public interest protected, in this case by s 47 of the BCIIP Act, is in ensuring that
building work is carried out fairly, efficiently and productively. I consider that other
instances of contravention, whether of the BCIIP Act or other industrial legislation, with
the same or similar objects to the BCIIP Act, and which are designed to protect the same
or similar public interests, are relevant to both specific and general deterrence, as well as
to the objective seriousness of the contravention when determining an appropriate
pecuniary penalty. To hold otherwise is to place an interpretation of the High Court’s
majority judgment in ABCC v Pattinson which is not open. Accordingly, I do not accept
the submission that the determination of an appropriate penalty is limited by
considerations of the same specific, or even factually similar conduct on prior occasions.
92. Against that background, the first and second respondents’ supplementary submission
that deterrence here is to be directed at ensuring that the particular unlawful conduct
that occurred in the context of the lawful protest not re-occur cannot be accepted: R1 R2
SS at [14]-[18].
93. That, of course, does not mean that the power in s 546 of the FWA in fixing an
appropriate penalty is to be exercised oppressively.
SOP Act
94. Although in this section of the reasons I am dealing with the first and second
respondents’ submissions, it is convenient to deal with the further written submissions
filed by all respondents dealing with the relevance of the SOP Act.
95. The respondents submit that the SOP Act is not relevant to these proceedings. Apart
from relevance, the submissions filed by the sixth and eighth respondents refer to the
operation of the SOP Act. I deal with the operation of the SOP Act later in these reasons.
96. The Union and Mr Sutherland submit that there are three reasons why the SOP Act is
not relevant. First, they submit that the factual basis for the determination of the
appropriate pecuniary penalty is found in the further amended statement of claim
(FASoC) and the admissions made by the first and second respondents in the amended
defence (R1, R2 AD). Consequently, they submit that the factual basis does not permit
any conclusion to be drawn adverse to the first and second respondents with respect to
the engagement of the SOP Act.
97. I do not accept that the factual basis does not permit an adverse conclusion to be drawn
against the first and second respondents with respect to the engagement of the SOP Act.
That is because the First and Second Respondents admit: