mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Mill v The Queen [1988] HCA 70 ; (1988) 166 CLR 59
Outcome: applied
arriving at the appropriate pecuniary penalties to be imposed for multiple contraventions, a court must first assess individual penalties for each contravention. But, before finalising the civil penalty orders the Court must look at and, if need be, adjust the resulting total effect of the individual orders it is considering, so as to produce an overall set of civil penalty orders appropriate to deal with all the contraventions. In other words, the totality principle applicable in passing criminal sentences should be adapted to apply to the overall civil penalty orders imposed on a contravenor: Mill v The Queen [1988] HCA 70 ; (1988) 166 CLR 59 at 62-63 per Wilson, Deane, Dawson, Toohey and Gaudron JJ, applied in a civil penalty context by Stone and Buchanan JJ in Mornington Inn (2008) 168 FCR at 408 [91]; see too at 397-398 [42]-[45]; see also per Gyles J who dissented in the result but not on the principle's applicability at 386-387 [5]-[9]. Where contraventions are separate offences in law but are substantially contemporaneous and connected, the Court must have regard to the totality principle in fixing the individual penalties: L Vogel &amp; Sons Pty Ltd v Anderson (1968) 120 CLR 158 at 168 per Taylor, Menzies and Owen JJ. The Court must also have regard to the relative closeness of the relationship in time and character of the offences (or contraventions): Mill 166 CLR at 64. Some aspects of the totality principle are not as easily applied to pecuniary penalties as to sentences of imprisonment using the method preferred in Mill 166 CLR at 63. The High Court suggested its preference for making sentences wholly or partially concurrent, where practicable, to reflect the appropriate overall punishment in the ultimate total result rather than lowering individual sentences below what would otherwise be appropriate to reflect the fact that a number of sentences were being imposed: Mill 166 CLR at 63; RH McL v The Queen [2000] HCA 46 ; (2000) 203 CLR 452 at 457 [15] - [16] , 462-464 [32]-[34] per Gleeson CJ, Gaudron and Callinan JJ, 476 [75] per McHugh, Gummow and Hayne JJ; see too Lukatela 223 FLR at 15-16 [75]-[77] where I discussed the principle. Concurrent pecuniary penalties cannot be imposed. So the Court must consider the overall burden imposed by the set of pecuniary penalties to assess whether, in totality, the burden is greater that is warranted by the contraventions in all of the circumstances: see too s 205F(3). In fixing the penalties below I have had regard to the totality principle as explained above.
Case: Mornington Inn Pty Ltd v Jordan [2008] FCAFC 70 ; (2008) 168 FCR 383
Outcome: followed
Mornington Inn Pty Ltd v Jordan [2008] FCAFC 70 ; (2008) 168 FCR 383 at 404-405 [73] - [76] , Stone and Buchanan JJ considered the applicability to civil penalty proceedings of the common law principle of affording a discount to a sentence imposed after a plea of guilty. Stone and Buchanan JJ concluded that the rationale for providing a discount for an early plea of guilty in a criminal case did not apply neatly to a case where a civil penalty is sought and the case proceeded on pleadings. They said, that nonetheless, it should be accepted for the same reasons as given in Cameron [2002] HCA 6 ; 209 CLR 339 , that a discount should not be available simply because a respondent has spared the community the cost of a contested trial. They held that the benefit of such a discount should be reserved for cases where it can be fairly said that an admission of liability, first had indicated an acceptance of wrongdoing and a suitable and credible expression of regret, and or secondly, had indicated a willingness to facilitate the course of justice: Mornington Inn 168 FCR at 405 [76]. In arriving at the appropriate pecuniary penalties to be imposed for multiple contraventions, a court must first assess individual penalties for each contravention. But, before finalising the civil penalty orders the Court must look at and, if need be, adjust the resulting total effect of the individual orders it is considering, so as to produce an overall set of civil penalty orders appropriate to deal with all the contraventions. In other words, the totality principle applicable in passing criminal sentences should be adapted to apply to the overall civil penalty orders imposed on a contravenor: Mill v The Queen [1988] HCA 70 ; (1988) 166 CLR 59 at 62-63 per Wilson, Deane, Dawson, Toohey and Gaudron JJ, applied in a civil penalty context by Stone and Buchanan JJ in Mornington Inn (2008) 168 FCR at 408 [91]; see too at 397-398 [42]-[45]; see also per Gyles J who dissented in the result but not on the principle's applicability at 386-387 [5]-[9]. Where contraventions are separate offences in law but are substantially contemporaneous and connected, the Court must have regard to the totality principle in fixing the individual penalties: L Vogel &amp; Sons Pty Ltd v Anderson (1968) 120 CLR 158 at 168 per Taylor, Menzies and Owen JJ. The Court must also have regard to the relative closeness of the relationship in time and character of the offences (or contraventions): Mill 166 CLR at 64.
Case: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 ; (1998) 194 CLR 355
Outcome: cited
ss 205L or 205M apply, the apparent intention of the Parliament, was to exclude the use of the civil penalty order if criminal proceedings result in conviction. This is because the stamp or, possibility, of the conviction has characterised the contravention (even if only temporarily so, pending the determination of the criminal proceedings) as of a more serious kind. No doubt the civil penalty imposed would be relevant to the criminal penalty following conviction, where s 205N applies. But, s 205N must be read harmoniously with the legislative policy reflected in ss 205L and 205M: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 ; (1998) 194 CLR 355 at 381-382 [69] - [71] per McHugh, Gummow, Kirby and Hayne JJ. The Parliament conferred power on the Court to impose and to determine the amount of any pecuniary penalty: s 205F(1), (3). For many years the Court has recognised the ability of parties to such proceedings to make a joint or agreed submission as to the civil penalties to be imposed for contraventions of legislation. Agreement as to the suggested result can be reached prior to the institution of the proceedings for civil penalties, as happened here. Ordinarily, there will be savings in time and public and private expense that can be expected from parties putting forward, in a responsible manner (as they have in these proceedings) agreed contraventions and suggested penalties. The Court may reject the suggested penalty, and impose a different one. But, in the ordinary case the use of this sensible approach will result in a speedy determination of the proceedings. Such a consequence is obviously of considerable benefit to the community; a lengthy and expensive trial and possibly an appeal or appeals are averted and a just penalty is imposed. But there is another, very important benefit in the approach; it gives the wrongdoer a degree of certainty and a speedy imposition of the penalty. Where a result is uncertain, such as the outcome of a contested trial and the consequent penalty (whether a criminal sentence or the imposition of a civil penalty), it is all too human for a wrongdoer to procrastinate in the hope that something will work out favourably. But if a wrongdoer (such as a person who contravenes a civil penalty provision in legislation) can have relative assurance that, however severe, an agreed penalty is likely to be imposed promptly, that degree of certainty is a powerful spur to action.
Case: RH McL v The Queen [2000] HCA 46 ; (2000) 203 CLR 452
Outcome: cited
aspects of the totality principle are not as easily applied to pecuniary penalties as to sentences of imprisonment using the method preferred in Mill 166 CLR at 63. The High Court suggested its preference for making sentences wholly or partially concurrent, where practicable, to reflect the appropriate overall punishment in the ultimate total result rather than lowering individual sentences below what would otherwise be appropriate to reflect the fact that a number of sentences were being imposed: Mill 166 CLR at 63; RH McL v The Queen [2000] HCA 46 ; (2000) 203 CLR 452 at 457 [15] - [16] , 462-464 [32]-[34] per Gleeson CJ, Gaudron and Callinan JJ, 476 [75] per McHugh, Gummow and Hayne JJ; see too Lukatela 223 FLR at 15-16 [75]-[77] where I discussed the principle. Concurrent pecuniary penalties cannot be imposed. So the Court must consider the overall burden imposed by the set of pecuniary penalties to assess whether, in totality, the burden is greater that is warranted by the contraventions in all of the circumstances: see too s 205F(3). In fixing the penalties below I have had regard to the totality principle as explained above.
Case: Rich v Australian Securities and Investments Commission [2004] HCA 42 ; (2004) 220 CLR 129
Outcome: cited
the Parliament adopted the well recognised device of a civil penalty as a remedy for contraventions of the Act, it did not exclude, expressly or by necessary implication, the Court from having regard to objects that are not exclusively criminal such as punishment or condemnation, in addition to deterrence: see too CEPU 162 FCR at 477-479 [19]-[28]. In Rich v Australian Securities and Investments Commission [2004] HCA 42 ; (2004) 220 CLR 129 at 146 [35] Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ said that classification of proceedings as protective or penal wrongly assumed that those two objects were mutually exclusive. They held that a law may bear several characters, as may proceedings that seek relief which, if granted, would protect the public and penalise the defendant. Talk back radio and current affairs programs of the kind that Mr Laws had, occupy a significant place in commercial radio broadcasting. Presenters of such programs can exert considerable influence in shaping community views.
Case: Ryan v The Queen [2001] HCA 21 ; (2001) 206 CLR 267
Outcome: cited
chairman of the Authority, Chris Chapman, explained its reasons for commencing these proceedings in a media release. Radio 2UE relied on the media release, its dissemination and its terms as evidence of harm to Radio 2UE's reputation in respect of compliance and of its public denunciation in respect of the 13 contraventions (cf Ryan v The Queen [2001] HCA 21 ; (2001) 206 CLR 267 at 284-286 [52] - [59] per McHugh J, 303-304 [123] per Kirby J, 318-319 [177] per Callinan J). Mr Chapman said: "ACMA has taken the step of applying for civil penalty orders against 2UE, having earlier tried to address 2UE's compliance failures through other means. These latest breaches occurred at a time when 2UE had given ACMA an enforceable undertaking to improve its performance, particularly in relation to the John Laws Morning Show.... However, ACMA &#8212;and the Australian Broadcasting Authority before it&#8212; has emphasised in previous findings against 2UE that the obligation to comply with program standards lies with the licensee itself; in fact it goes to the heart of a licensee's obligations . Broadcasting licences are not given out lightly by government and convey significant benefit to those to whom a licence is granted . It is a licensee's unrelenting responsibility to manage its business, including its presenters and production staff, so as to ensure satisfactory compliance with the regulatory requirements. Company management put at real risk the retention of these licences when they allow on-air personalities or other staff to breach the rules. One consideration informing the Authority's agreement to consenting to the civil penalty order was its assessment that Fairfax genuinely accepts that proposition." (emphasis added) The grant of the licence is a privilege to use the public resource of the radio spectrum. Abuse of the privilege, by breaching a condition of a licence, attracts liability under ss 139(3) and 140A(3). The primary purpose of s 140A(3) is to protect the public by holding licensees to the standard of conduct that their licence requires them to observe. The disclosure standard addresses a particular, and insidious, means of abusing the privilege of a commercial radio broadcasting licence. That standard recognised the significant degree of influence current affairs presenters could exert in shaping community views in Australia (see s 4(1)). The more prominent the presenter, the greater the potential he or she has to exert influence in shaping community views.
Case: Secretary, Department of Health and Aging v Pagasa Australia Pty Ltd [2008] FCA 1545
Outcome: followed
parties urged that no difference in approach to fixing an agreed civil penalty was called for under the Act as compared to the approach taken under legislation such as under s 76 of the Trade Practices Act 1974 (Cth) and s 42Y of the Therapeutic Goods Act 1989 (Cth). They relied on what Flick J had said in Secretary, Department of Health and Aging v Pagasa Australia Pty Ltd [2008] FCA 1545 at [17] , [23]-[25]. He helpfully reviewed a large number of cases imposing civil penalties arising under a number of Acts: Pagasa [2008] FCA 1545 at [23] - [27] , concluding at [27]: "Although the form of words set forth in other legislative provisions may be the same or comparable to those employed in the 1989 Act, the legislative mandate that the Court " must have regard to all relevant matters " in s 42Y(3) assumes obvious importance. It is that mandate which directs attention to those more specific matters which can only be discerned from an analysis of the 1989 Act itself. Of central importance in identifying those matters which are " relevant " &#8212; and which must therefore be taken into account &#8212; are the objects and purposes of the 1989 Act." I agree with Flick J's approach to the construction of provisions like s 205F(3) of the Act. French J remarked in CSR (1991) ATPR p41-076 at 52,152 the other general objects of the criminal law apart from deterrence, namely retribution and rehabilitation, had no "... part to play in economic regulation of the kind contemplated by Pt IV" of the Trade Practices Act .
Case: Tesco Supermarkets Ltd v Nattrass [1971] UKHL 1 ; [1972] AC 153
Outcome: cited
140A(3) in terms, imposes liability directly on a licensee by requiring it not to breach a condition of its licence set out in cl 8(1) of Sch 2 to the Act. That liability is not a vicarious liability imposed on Radio 2UE for the conduct of its presenters, but a direct liability on it: Hamilton v Whitehead [1988] HCA 65 ; (1988) 166 CLR 121 at 127-128. There, Mason CJ, Wilson and Toohey JJ held that when an employee acted in the course of his or her employment he or she did so as the embodiment of the corporate employer: Hamilton 166 CLR at 127; Tesco Supermarkets Ltd v Nattrass [1971] UKHL 1 ; [1972] AC 153 at 170 per Lord Reid. Under s 140A(3) a corporation will incur liability for what its agent, Mr Laws, did or failed to do to comply with the disclosure standard. This is because Mr Laws was acting as the licensee when using its licence to broadcast his program. Mason CJ, Wilson and Toohey JJ said of a provision similar to s 140A(3) in Hamilton 166 CLR at 127 that it: "... speaks directly to the company. It is not a case of a company being made liable for an act performed by a servant of the company on its behalf. The liability imposed is direct, not vicarious. The distinction was drawn by Viscount Haldane LC in Lennard's Carrying Co Ltd v Asiatic Petroleum Co Ltd ([1915] AC 705 at p 173). Its significance is explained by Lord Reid in Tesco Supermarkets Ltd v Nattrass ([1972] AC 153 at p 170): 'I must start by considering the nature of the personality which by a fiction the law attributes to a corporation. A living person has a mind which can have knowledge or intention or be negligent and he has hands to carry out his intentions. A corporation has none of these: it must act through living persons, though not always one or the same person. Then the person who acts is not speaking or acting for the company. He is acting as the company and his mind which directs his acts is the mind of the company . There is no question of the company being vicariously liable. He is not acting as a servant, representative, agent or delegate. He is an embodiment of the company or, one could say, he hears and speaks through the persona of the company , within his appropriate sphere, and his mind is the mind of the company. If it is a guilty mind then that guilt is the guilt of the company. It must be a question of law whether, once the facts have been ascertained, a person in doing particular things is to be regarded as the company or merely as the company's servant or agent. In that case any liability of the company can only be a statutory or vicarious liability.' See also the statement of Denning LJ in H L Bolton (Engineering) Co Ltd v T J Graham &amp; Sons Ltd ([1957] 1 QB 159 at p 172). There can be no doubt, on the facts of the present case, that the respondent, in placing the advertisement and in dealing with those who replied to it, was the company. He was its managing director and his mind was the mind of the company. The company therefore was liable as a principal for the breaches of s 169 of the Code. The liability was direct, not vicarious." (emphasis added)
Case: Trade Practices Commission v CSR Limited (1991) ATPR p41-076
Outcome: applied
primary purpose of civil penalties is deterrence: Trade Practices Commission v CSR Limited (1991) ATPR p41-076 at 52,152 per French J. Hence, in assessing the penalty to be imposed, a court will consider whether, in all the circumstances relevant to be taken into account (here under s 205F(3)), others would be deterred by the penalty and at the same time the licensee will be penalised or punished appropriately. The range of relevant matters under s 205F(3) ordinarily will include (borrowing from what French J suggested in CSR (1991) ATPR p41-076 at 52,152-52,153): I agree with Flick J's approach to the construction of provisions like s 205F(3) of the Act. French J remarked in CSR (1991) ATPR p41-076 at 52,152 the other general objects of the criminal law apart from deterrence, namely retribution and rehabilitation, had no "... part to play in economic regulation of the kind contemplated by Pt IV" of the Trade Practices Act . The pecuniary penalties must put a price on the contraventions that is sufficiently high to deter repetition by Radio 2UE as the contravenor and by others who might be tempted to contravene the Act and the disclosure standard: see CSR (1991) ATPR p41-076 at 52,152 per French J. I am of opinion that there will be a substantial deterrent effect given to licensees by the penalties I will impose. The kind of contraventions that Mr Laws caused Radio 2UE to make and its inadequate attention to the requirements of compliance must be deterred if the purpose of the disclosure standard is to be upheld. I am satisfied that there will not be a repetition of Mr Laws' conduct only because he has retired from presenting his program on Radio 2UE. Radio 2UE has not had to deal with or test whether Mr Laws would now comply under its new measures. However, I am also satisfied that Radio 2UE has implemented genuine and satisfactory changes to its compliance systems that are likely to lead to compliance by its other presenters. And, I am also satisfied that no bad faith was involved on the part of Radio 2UE's management or Mr Mott. Licensees must be deterred from taking lackadaisical attitudes to compliance with their statutory and licence obligations. Takeovers and changes of control in ownership occur on a fairly regular basis in the broadcasting industry. Such events are not an excuse for a licensee to fail to comply with the Act, the disclosure standard or its licence. If Mr Mott and all the senior management were too busy to protect the very basis which generated Radio 2UE's entitlement to earn income, namely its licence, then a clear message must be sent by condign penalisation of that attitude. Such an attitude is unacceptable. It demonstrates an inattention to the public trust in commercial radio broadcasting licensees.
Case: Victoria v Australian Building Construction Employees' and Builders Labourers' Union [1982] HCA 31 ; (1982) 152 CLR 25
Outcome: discussed
Victoria v Australian Building Construction Employees' and Builders Labourers' Union [1982] HCA 31 ; (1982) 152 CLR 25 at 98 as Mason J spoke of "... the overriding importance of freedom of discussion and speech", adding "without information, there can be no meaningful discussion": see too Australian Capital Television Pty Ltd v The Commonwealth [1992] HCA 45 ; (1992) 177 CLR 106 at 139-140 per Mason CJ. It is now established that each member of the Australian community has an interest in disseminating and receiving information, opinions and arguments concerning government and political matters that affect the people of Australia. The duty to disseminate such information is the correlative of the interest in receiving it: Lange v Australian Broadcasting Corporation [1997] HCA 25 ; (1997) 189 CLR 520 at 571 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ. The media fulfil a vital role in the ability of the Australian community and, in particular, electors to engage in the discussion of government and political matters, and ss 3 and 4(1) of the Act, in part, recognise this.
Case: Wong v The Queen [2001] HCA 64 ; (2001) 207 CLR 584
Outcome: cited
assessment of a pecuniary penalty that is appropriate, having regard to all relevant factors under s 205F(3) is, like a criminal sentence, the result of the "process of instinctive synthesis" described in Markarian 228 CLR at 373-374 [36]-[37] and Wong v The Queen [2001] HCA 64 ; (2001) 207 CLR 584 at 611-612 [74] - [76] per Gaudron, Gummow and Hayne. If what is suggested by the parties as an appropriate penalty is unreasonable or plainly unjust, the court can reject it on similar principles to those used when sentences are either manifestly excessive or inadequate: cf Markarian 228 CLR at 370-371 [25]; Lukatela v Birch (2008) 223 FLR 1 at 7 [25]-[26]. In Minister for Industry Tourism and Resources v Mobil Oil Australia Pty Ltd (2004) ATPR p41-993 at 48,632 [77] Branson, Sackville and Gyles JJ said: "Just as the criminal court will take into account the prosecution's views on the appropriate sentence, so the court in the civil penalty case, as NW Frozen Foods explained, will take account of the regulator's position. But in neither case is the court relieved from the responsibility of exercising its own judgment as to the appropriate sentence (in criminal cases), or whether the proposed penalty is within the appropriate range for the contravention (in civil penalty cases). In each case, the Court should be satisfied that it is being given accurate, reliable and complete information on critical questions."