Case: Minister for Industry Tourism and Resources v Mobil Oil Australia Pty Ltd (2004) ATPR p41-993
Outcome: applied
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." Their Honours had emphasised earlier in their reasons that in civil penalty proceedings the view of the regulator, as a specialist body, is a relevant but not determative consideration on the question of penalty, adding ( Mobil (2004) ATPR p41-999 at 48,626 [51(iv)]): "In particular, the views of the regulator on matters within its expertise (such as the ACCC's views as to the deterrent effect of a proposed penalty in a given market) will usually be given greater weight than its views on more "subjective" matters." In Australian Competition and Consumer Commissioner v Qantas Airways Ltd (2008) 253 ALR 89 at 107-108 [25]-[27] Lindgren J identified 11 propositions relating to the fixing of penalties under the Trade Practices Act as flowing from the decisions in NW Foods [1996] FCA 1134 ; 71 FCR 285 and Mobil (2004) ATPR p41-993 (and these were recently applied by Jacobson J in Australian Competition and Consumer Commission v PRK Corporation Pty Ltd [2009] FCA 715 at [20] - [24] ). These included the propositions that: the Court is not obliged to commence its reasoning with the level of the agreed penalty and limit itself to considering whether that penalty is within the range; the Court is entitled to address the question independently at the outset of its reasoning; the admissions and agreed facts should not be approached as if they had been "tailored or modified to reflect the difficulties faced by the [regulator] in proving its case"; the regulator should always explain to the Court the process of reasoning said to justify a discounted penalty. Radio 2UE argued that the joint submissions had identified the Authority's concern about Mr Laws' inappropriate attitude to the disclosure standard and the failure by Radio 2UE to comply with it, but submitted that there were substantial mitigating factors warranting a lower penalty. Radio 2UE argued that there was a public interest in bringing the litigation to a speedy resolution resulting in savings of resources for the Authority and the Court: Mobil (2004) ATPR p41-993 at 48,624 [41] and 48,627 [53]. However, as Branson, Sackville and Gyles JJ said there, arguments in favour of the negotiation of settlements have to take account of the fact that it is the Court that bears the ultimate responsibility for determining the appropriate penalty: Mobil (2004) ATPR p41-993 at 48,627 [53]. 2. The nature and extent of the contraventions: s 205F(3)(A) The parties submitted that the 13 contraventions related only to Mr Laws' program and not to any other programs broadcast by Radio 2UE. They pointed to the fact that Mr Laws ceased to be an on-air presenter for Radio 2UE following his retirement on 30 November 2007. And, the parties submitted that it was relevant that Fairfax Media acquired Radio 2UE on 9 November 2007 and that only the last four contraventions occurred after that time and then on the last day of Mr Laws' career. The Authority argued that Mr Laws' commercial agreements were recorded on the register and there were various on-air disclosures even though not all of them were compliant with the disclosure standard. It argued that Mr Laws has now retired and there was no specific deterrent necessary for his conduct. It argued that the new compliance regime adequately addressed the concerns arising from the previous regime. The Authority noted that Radio 2UE had not deliberately engaged in the conduct and had taken steps to prevent it. It accepted that Radio 2UE had acted bona fide, even if it had been ineffectual, in seeking to regulate Mr Laws.