C2015/4723, Transcript of Proceedings [2015] FWCTrans 493 (26 August 2015)

TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009 1052292

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SENIOR DEPUTY PRESIDENT HAMBERGER
DEPUTY PRESIDENT LAWRENCE
COMMISSIONER LEE

C2015/4723

s.604 - Appeal of decisions

Perkovic v Director of the Fair Work Building Industry Inspectorate
(C2015/4723)

Melbourne

10.01 AM, WEDNESDAY, 12 AUGUST 2015

PN1

SENIOR DEPUTY PRESIDENT HAMBERGER: Yes, can we have the appearances, please.

PN2

MR BORENSTEIN: If the Commission pleases, I seek permission to appear for the appellant with Mr Bakri.

PN3

SENIOR DEPUTY PRESIDENT HAMBERGER: I might just - I think the issue of permission to appear has been dealt with and it's been granted. So thank you.

PN4

MR BORENSTEIN: Thank you.

PN5

MR O'NEIL: If the Commission pleases, I appear for the respondent.

PN6

SENIOR DEPUTY PRESIDENT HAMBERGER: Thank you.

PN7

MR BORENSTEIN: If the Commission pleases, we filed an outline of submissions in accordance with the directions which the Commission had previously issued and we rely on those submissions and I seek this morning to elaborate on those submissions and also make response to the submissions that have recently filed on behalf of the director.

PN8

As the Commission will be aware, this appeal arises out a decision that Gostencnik DP which was handed down on 19 June of 2015 on an application that was made by the director under section 510. May I take it that the Bench have familiarised themselves with that decision. The relevant parts of section 510 are set out in paragraph 12 of the decision conveniently.

PN9

The Commission will see that the section requires the Commission to make a decision to either revoke or suspend an entry permit in certain circumstances and the relevant circumstance for today's case is paragraph (d) of subsection (1) which was that permit holder, that is the appellant, Mr Perkovic, was ordered to pay a pecuniary penalty under the Act, in relation to a contravention of this part by the permit holder.

PN10

That paragraph was satisfied by reason of a pecuniary penalty being imposed by White J in respect of a contravention of section 500 by Mr Perkovic, in company with a number of other officials of the CFMEU. That contravention took place in 2004 and the judgment is in the appeal book and I will make reference to it shortly.

PN11

The requirement under subsection (1) is conditioned by subsection (2) on a decision by the Commission that suspension or revocation would not be harsh or unreasonable in all the circumstances, and then if that condition is satisfied and the Commission moves to decide as between revocation and suspension, the Commission has also to fix a ban period, which is a minimum suspension period which is referred to subsection 4 and in the present case the relevant period is three months under paragraph (a), and although that is described as a suspension period, you will see in subsections (5) and (6) that in making an order either to suspend or ban, a ban period must be nominated or determined and that ban period has to be no shorter than the suspension period.

PN12

In the present case, the Deputy President determined to revoke Mr Perkovic's permit and impose a ban period, which was 2 January 2017; that is, a period which extends a year beyond the date when Mr Perkovic's permit would otherwise have expired and been up for renewal.

PN13

Now, the basic factual background in the matter is set out in paragraph 2 and following of our outline. It essentially indicates that Mr Perkovic is an employed organiser. I can add that he became an employed organiser approximately a year before the relevant incident in 2014. He received a right of entry permit on 17 January and I think that should be in the outline. We've got 17 January 2015, but the correct date is 2013 so that the permit expires three years later on 16 January 2016.

PN14

The incident which has given rise to all of this disputation occurred on 7 May 2014 at a building site in Adelaide. Mr Perkovic and a number of other officials from the local branch of the union entered on site and failed to comply with right-of-entry provisions in terms of showing rights of entry and so on, and all of them were subjected to contravention proceedings in the Federal Court for contravention of section 500.

PN15

The circumstance of Mr Perkovic differed from the circumstance of the other officials in one particular respect, which has received close attention which is that he had an altercation with a Mr Lyon who was a inspector on the site - Mr Flynn, I'm sorry - on the site. The altercation lasted for approximately 30 seconds. It was recorded on video by a second inspector. It was an altercation which, as you have no doubt seen from the decision of Gostencnik DP was one in which Mr Perkovic approached very closely to the inspector and engaged in a very abusive tirade for about 30 seconds and then walked away.

PN16

As a result of Mr Perkovic's activities on that morning at the site and the others, the Federal Court - White J in the Federal Court handed down a decision on 23 December 2014 in which he found the contraventions by each of the officials was established and he imposed a series of penalties. The penalties for the other officials ranged between $1010 and $4000, and Mr Perkovic's penalty was $5000 on the basis that he had engaged in the additional aggravating activity.

PN17

That represented approximately 50 per cent of the maximum penalty that was applicable to the offence. It should be said that that was the first and only civil penalty that Mr Perkovic has ever been subjected to prior to that time and since that time.

PN18

SENIOR DEPUTY PRESIDENT HAMBERGER: In his long career.

PN19

MR BORENSTEIN: In his long career.

PN20

SENIOR DEPUTY PRESIDENT HAMBERGER: As an organiser.

PN21

MR BORENSTEIN: Very intense career though. I mention that, your Honour, because particularly one of the other officials was a senior official of the local branch, Mr McDermott and he had had a number of other contraventions, to his credit, and nonetheless the penalty which he received was less than the first-time penalty of Mr Perkovic. It's a matter which will be mentioned later on. It was referred to in passing by the Deputy President in his decision.

PN22

The present appeal stems, as I said before, from an application that was made by the director in March of this year for the revocation or suspension of Mr Perkovic's application. The application was made under section 507 and section 510. As things transpired, the section 507 application fell away and the Deputy President dealt with the matter under section 510.

PN23

There was an initial debate about the jurisdiction of the Deputy President to engage in that. The Deputy President resolved that and that's no longer an issue between the parties. Then we have the decision of the Deputy President which you have before you, which is 19 June of 2015.

PN24

Now, you will have seen from the outline of submissions that there are a range of significant issues which the appellant wishes to raise in this appeal. The most significant issue is the function of section 510 in the scheme of this part of the Act and in the Act generally, I suppose.

PN25

That's a significant matter because there is no explicit explanation of the function to be performed or the purpose to be achieved under section 510. It's a matter that has not been the subject of a Full Bench consideration previously, so far as we are aware and we understand the respondents agree with that.

PN26

It's a matter that goes centrally to the proper exercise of the Commission's jurisdiction and beyond that has potential constitutional ramifications and I explain that very briefly. It will be seen from the submissions that we say that it's no part of the function under section 510 to penalise or further penalise the individual permit holder.

PN27

The imposition of penalties is a judicial function to the extent that it may be considered that section 510 permits or authorises the exercise of the revocation power as a de facto penalty exercise. There are serious questions which arise as to whether that contravenes the constitution in terms of judicial function versus non-judicial function.

PN28

For that reason, and consistent with the Act's interpretation you would seek to interpret the section in a way that gave it validity rather than invalidity. This is all trite law, obviously, but then going to the next step, if you then interpret the section in that way, then a purported exercise of the power under the section, which is in effect the imposition of a penalty, would again offend against the power which the Commission properly has.

PN29

So I give you that thumbnail sketch of the proposition to underscore the importance of the issue that we seek to raise as our primary ground - our first ground - in the appeal and it's a ground that justifies or warrants the attention of the Full Bench because it goes to questions of jurisdiction and potentially beyond, and so we say it's clearly a matter that would justify the grant of permission to appeal.

PN30

We have given in paragraph 9 of our outline a reference to another Full Bench decision of CFMEU v Bechtel, which was a case under section 505 of the Act and in that case too the Full Bench took the view that because this was a matter that involved the proper extent of the powers under section 505 and hadn't been previously considered by the Full Bench, it was a proper case to grant permission to appeal.

PN31

Now, we have prepared folders of cases in accordance with the practice note. If it's convenient, we hand them up and without going to it at the moment, can I just tell your Honours that the Bechtel case is at tab 11 and the paragraph in Bechtel is paragraph 39.

PN32

So we say that it's a matter of considerable importance and it is also a matter of public interest, in the sense that if we are right and there has been a significant injustice done to Mr Perkovic then for those reasons again we say that permission to appeal should be granted.

PN33

Now, our friends dispute that permission to appeal should be granted and at paragraph 4(a) of their outline of submissions they suggest that the matter doesn't raise any issue of importance and general application or any new or novel point. We would direct the Commission's attention to the contrary submission which our friend has made when applying for permission to appear on 28 July 2015, and at paragraph 3 of that application, or that submission, they say that:

PN34

The appellant's grounds of appeal raise complex and important issues regarding the operation of section 510, a provision which has been considered by the Commission only on limited previous occasions at first instance. Further, to the respondent's knowledge, issues such as those identified in the grounds of appeal have not been considered by the Full Bench in the Commission.

PN35

Then they go on at paragraph 6:

PN36

The issues regarding the exercise of discretion are complex matters, which together with the limited judicial consideration of the issues being ventilated would be more efficiently responded to if the respondent was legally represented.

PN37

So the submissions in support of leave to appear or permission to appear paint a picture which is consistent with what we are submitting to the Commission in terms of the importance of the case and the more recent change of tune, we say, should be put to one side and that the matter should be given permission to proceed as an appeal.

PN38

The issue on appeal are two or can be divided up into two broad categories. The first of them is that the Deputy President proceeded on an error of principle or error of law and the second goes to the discretion exercised in terms of the duration of the ban that was imposed in consequence of the revocation.

PN39

Both of those decisions - both of those errors, alleged errors, are errors which arise under the explanation in the old case of House v The King; that is the proceeding on a wrong principle and the second being a decision which is unreasonable or plainly unjust. You will find House v The King at tab 10 of the folder and the passage that is cited appears at 505 at the top of the page and starting at line 3 in the joint judgment of Dixon, Evatt and McTiernan JJ where their Honours say:

PN40

It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or relevant matters to guide affect him, if he mistakes the facts, if he doesn't take into account some material consideration then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his, if it has the material for doing so.

PN41

And then they go on,

PN42

It may not appear how the primary judge has reached the result embodied in his order.

PN43

In other words, you may not be able to point your finger at a particular type of error of the kind that their Honours previously identified, but they say that:

PN44

If upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure to properly exercise the discretion which the law opposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion should be viewed on the ground that a substantial wrong has, in fact, occurred.

PN45

Now, that last part is the part that we rely upon in terms of the challenge to the extent of the ban period under the second ground of the notice of appeal.

PN46

So then turning to the first ground of the appeal, as we point out in the particularisation of the ground in the notice of appeal is that there was error because the Deputy President took the purpose of the section as being or including to condemn or punish the permit holder, but he found to distinguish between the decision to suspend or revoke the permit from the decision as to the length of the ban to be imposed on the differing considerations that apply to each of the decisions and that he failed to exercise either of the discretions under the section for the purpose of facilitating or encouraging the offending permit holder to lawfully exercise right of entry under the Act.

PN47

Now, in our submissions we have dealt with those three, because they overlap to a significant degree in one series of submissions, and we start by pointing out that it is necessary in the outset to determine the purpose of section 510. The reason for that is that section 510 gives the relevant member of the Commission a number of discretions to exercise, but it does not identify with any specificity the considerations that are to be taken into account when considering - when exercising the discretion.

PN48

At paragraph 17 of the outline, we have set out a passage from the judgement of Mason J as he then was in the Peko‑Wallsend case. The relevant extract is reproduced at tab 9, but the passage we want to rely on is conveniently there at paragraph 17 and you will see that his Honour said in this passage, which has been approved numerous times since then, talking about the fact is that a decision‑maker is bound to take into account, he says:

PN49

What factors a decision-maker is bound to consider in making the decision is determined by construction of the statute conferring the discretion. If the statute
expressly states the considerations to be taken into account, it will often be necessary for the court to decide whether those enumerated factors are exhaustive
or merely inclusive. If the relevant factors - and in this context I use this expression to refer to the factors which the decision-maker is bound to consider - are not expressly stated, they must be determined by implication from the subject matter, scope and purpose of the Act.

PN50

Now, in our submission that last sentence applies directly in this case when we are considering section 510, because apart from the provisions of subsection (2) which say that you don't revoke or suspend if it would be harsh or unreasonable, there is no guidance as to the circumstance - as to the choice to be made between suspension or revocation.

PN51

There is no guidance in terms of how you determine the extent of the ban period, although there is a minimum set, and even in terms of deciding harsh or unreasonable there is really no guidance given by the statute, so it really underscores the necessity of looking at section 510 in its context in the legislation and seeking to discern from the subject matter the scope and purpose, what factors should be taken into account.

PN52

Similar comment to the one by Mason J was made in the High Court in the well-known case of Coal and Allied at paragraph 19 and that's at tab 6 of the folder, but I don't need to take the Bench to that at the moment.

PN53

So we say that you need to have a look at the purpose and objects of the section in the part of the act in which it is found. At paragraph 22 of our outline we have extracted a passage from the judgment of Boulton J the re Parker case where his Honour was doing something similar and his Honour stated that

PN54

Part 3-4 establishes a framework for officials of unions to enter premises that balances the rights of unions, employees, occupiers of premises and employees

PN55

And that's to be found in section 480 and that,

PN56

The legislation seeks to do this by conferring rights of entry on union officials to enter premises and exercise various powers and by prohibiting certain conduct by permit holders providing remedies in the event of contraventions and allowing the Commission to take action against permit holders who have misused their rights.

PN57

In terms of the construction of section 510, the accepted principles of statutory construction which were explained by the High Court in Project Blue Sky need to be applied and one of those important principles is that the various provisions of the statute need to be interpreted so that they provide a harmonious whole in the legislation and also with a view to giving each of the provisions some work to do.

PN58

In other words, you seek to avoid a situation or a construction of the statute which results in giving a statute - a provision - nothing to do, because the function which you attributed to it is already covered by some other piece of the statute.

PN59

Now, applying that approach, it is significant to note that in part 3-4 there are a number of provisions which control the exercise of right of entry by permit holders. There are a number of prohibitions specified. Section 500 is one of those. Those prohibitions are designated by the legislature as civil remedy provisions.

PN60

Contravention or conduct which contravenes the prohibitions as part of the balancing of rights between unions and occupiers and employers et cetera - part of that balancing is the legislative framework where contravening conduct is penalised by a court under the civil remedy provision. As I said earlier, Mr Perkovic was caught up in that process and the process was applied to him and he was punished for his contravening conduct.

PN61

Bearing that in mind, it is significant to recognise the matters or give attention to the matters which trigger the jurisdiction under section 510. Those matters are all related to the occurrence of contraventions of right of entry prescriptions in part 3-4 or analogous provisions in state and territory laws. In each of the cases the triggering act or the triggering occurrence is one which would result in sanctions being applied - penal sanctions being applied in other tribunal's or courts before the matter ever arises in front of the Commission.

PN62

So if that is accepted, then the question that arises in terms of the Commission's role under section 510 is what additional purpose the legislature had in mind for this section when it has already made explicit provision for punishment for the particular conduct. Consistent with what the High Court said in Project Blue Sky, you would not readily a tribute to the legislature and intention to duplicate the process that occurs under the penal provisions, and that's quite apart from the constitutional considerations which I mentioned.

PN63

The other aid to discerning the purpose of section 510 is to consider its place juxtaposed to the other provisions dealing with the issue of permit application - entry permits. So you may start of the beginning of a process by looking at section 512 and I'm not sure why the Act has not put them in chronological order, but there you go.

PN64

But section 512 is the start of the process and in section 512 a permit applicant has to demonstrate to the Commission's satisfaction that they are a fit and proper person to hold a permit and the Commission has to take into account the permanent qualification matters in section 513, and they range through a range of matters far broader than the matters that trigger section 510, but they do include the same matters as in section 510 and in particular the imposition of pecuniary penalties for contraventions of the Fair Work Act.

PN65

It may be deduced that the permanent qualification matters appear to represent what the legislature nominates as the matters that bear on the suitability of permit holders - of permit applicants as fit and proper persons. Under section 515 the Commission can, when it considers the section 512 application, impose conditions on an entry permit.

PN66

There was some lack of clarity for awhile recently about how section 515 operated in conjunction with section 512, but the Full Court of the Federal Court has recently resolve that and has held that you can impose conditions under section 515 which together with the considerations under section 512 can make a person a fit and proper person. So that's now been resolved.

PN67

But again, the imposition of conditions under section 515 is to be by done by reference again to the permanent qualification matters in section 513. Once a permit is issued, the permit holder may have the permit effected under sections 507, 508 and 510.

PN68

Now, under section 510 the Commission can suspend, revoke or impose conditions on a permit, but again based on consideration of the permit qualification matters in section 513. So under section 510 the focus is again on determining or exercising the power by consideration to whether the permit holder in question is a fit and proper person, because you are applying the same tests as under section 512, referencing 513.

PN69

Then you come to section 508 and 508 can be exercised against an organisation as a whole, or its officials - officials plural - if there has been a miss use by the organisation of officials of their entry rights and the examples in subsection (4) demonstrate that it's referable to various acts of disruptive behaviour. Again, you may discern that the attention is on whether they remain fit and proper persons to exercise right of entry.

PN70

So our submission is that the sections which surround section 510, dealing with issue of permits and effecting of permits are all concerned with the suitability or the continuing suitability of a permit holder to exercise the entry rights. They are not concerned with the imposition of penalties or sanctions. They may take the imposition of penalties on permit holders by other tribunals into account, but there is no indication that they are intended in any way to impose additional sanctions or penalties.

PN71

Our submission is that the conclusion to be drawn from this examination of the sections - this cluster of sections - is that they are all designed to encourage or induce compliance with the right-of-entry scheme by restricting or conditioning the use of right of entry for a period thought to allow sufficient time for a recalcitrant permit holder to correct their ways, rehabilitate themselves if you like, so that they may satisfy the fit and proper person test again. We say that section 510 should be seen as part of that scheme, juxtaposed as it is to the other sections.

PN72

We say that may be underscored by the fact that section 510 is triggered explicitly to acts of contravention of various provisions for which penalties and other sanctions have been already applied by other tribunals.

PN73

Now, our complaint about the decision of the Deputy President is that he did not, in his reasons for decision, attend to or examine the purpose of section 510 in this way; did not identify, can I say, the purpose of section 510 at all. It's our submission, in the broad, that that affected the way in which he analysed the circumstances of the case and determined the outcome.

PN74

Now, it's correct that at paragraph 16 of the Deputy President's decision he looks at what is described in the heading of that paragraph as the exercise of power under section 510, and he refers to the judgement of Boulton J in Parker and in paragraph 17 he identifies the factors in a non-exhaustive list which Boulton J proposed as matters to be taken into account relevant to the exercise of the power under section 510.

PN75

You will see that they include the objects of the Act; the nature and gravity of the underlying; the impact that revocation or suspension of the entry permits might have on the organisation, whether training has been undertaken and the general character evidence.

PN76

Now, all of those matters are consistent with our hypothesis and submission about the function which section 510 is designed to serve. The nature and gravity of the underlying contravention is clearly important if the Commission is going to make a decision about what the prospects are of the individual changing his or her ways and over what period of time that might reasonably be expected to occur.

PN77

The impact of the revocation and suspension comes up under subsection (2), the harsh or unreasonable test. The training by the permit holder is again consistent with our hypothesis that it is an indicator of the likelihood that the particular permit holder will conduct himself or herself in an appropriate way thereafter, and the general character evidence again goes to that same issue.

PN78

So all of these factors are factors which may be called in aid of the construction for which we argue, but we will be submitting that the way in which the Deputy President sought to approach the task was skewed in the sense that the - taking, for example, example the second point in pr paragraph 17, the nature and the gravity of the underlying contravention.

PN79

His Honour took that into account not in the way in which we argued for but to the severity of the orders which he made and in terms that indicate or suggest that he regarded the function under section 510 as being a function of sanctioning or punishing for the gravity of the contravention, and he directed attention to the training, which I will take you to a moment, on the basis that it was a potential mitigating factor, the sort of thing which you might consider in a penalty hearing under a contravention proceeding in the court, rather than a pointer to the likelihood of proper behaviour at some point in the future.

PN80

COMMISSIONER LEE: Sorry, can I just - I just need to try and understand what your point is, Mr Borenstein.

PN81

MR BORENSTEIN: Of course.

PN82

COMMISSIONER LEE: So you are saying that - because it's clear that it was part of your submissions below that the decision of Boulton J in Parker was appropriate to look at.

PN83

MR BORENSTEIN: Yes.

PN84

COMMISSIONER LEE: But what you are putting now is that it's appropriate to consider gravity in determining whether to suspend or invoke, but not to determine - not as part of determining how long the suspension or revocation should be; that you draw some line there that - - -

PN85

MR BORENSTEIN: I do. Perhaps I can explain it this way, our submission about the purpose that's to be served by section 510 is for the member of the Commission to make a decision about the orders that would be necessary, obviously based on some guess work, but the orders which I thought to be necessary to allow a particular individual to resume behaviour in the way in which the Act requires. So you would look at training, you would look at the behaviour of the individual over a period of time since the contravention and so on to get some indication of the mindset of the individual.

PN86

Part of the process and the reason why you would look at the nature and gravity of the underlying contravention is that that has to be a factor if you are looking to see what the prospects are for - I called it rehabilitation a few moments ago. You obviously have to look at what the person did in the first place, because that informs what the prospects are for rehabilitation and perhaps how long it would be required.

PN87

So if, for example, Mr Perkovic had gone to the site on this day and he'd run up and down the building site and he'd jumped on a number of inspectors literally and had engaged in damage to property and so on, and so on, that would be an extremely grave situation and you would want to be satisfied to a significant degree that Mr Perkovic wouldn't repeat that sort of behaviour and you would look at all the circumstances that were put before you and you would determine perhaps that it might take longer for him to get over that that is the contravention had been something minor, say for example that he had not given a form, but otherwise had behaved himself on the site.

PN88

So that's why the gravity and circumstances of the contravening behaviour are relevant in terms of prognosticating what is required to return the individual permit holder to proper conduct. The other side of the line there is the way in which a sentencing court looks at that - looks at the gravity and the nature of the conduct. It's doing it for a different reason; it's doing it for the reason of punishing and so obviously the more severe the conduct, the greater the penalty and it also looks at it in terms of deterrence being a function of the penalty that is being imposed.

PN89

Now, that's the function of the court and although the court is looking at the same thing; that is, the nature and the gravity of the contravening conduct, it is doing it for a different purpose and, as we say, if it is accepted that it's no part of the function of the Commission under section 510 to sanction or punish then you can recognise - and we see it from the judgement of White J - that he did look at the nature and gravity of it and he did impose a penalty which was designed to deter.

PN90

So that function has been done and it's been done by the court, and it's been done by the court in the way in which the legislature intends under section 500.

PN91

We now move across to section 510. The fact that the court has acted triggers the jurisdiction under paragraph (d) - - -

PN92

COMMISSIONER LEE: Yes, I understand jurisdictional point.

PN93

MR BORENSTEIN: Yes, but that is the distinction that I am trying to emphasise.

PN94

DEPUTY PRESIDENT LAWRENCE: Yes, all right. Just while we've interrupted you, Mr Borenstein, step back a minute a bit. Of the six officials who were involved in this incident in Adelaide, four of them - I think this is right, but someone will correct me if I've got it wrong - four of them with the subject of proceedings before Boulton J and that led to, essentially, a six-month suspension, I think - - -

PN95

MR BORENSTEIN: For one of them.

PN96

DEPUTY PRESIDENT LAWRENCE: By consent, essentially.

PN97

MR BORENSTEIN: Yes.

PN98

DEPUTY PRESIDENT LAWRENCE: The fifth one, Mr Sloane - I know this because I dealt with it - Mr Sloane who was a New South Wales branch official was again the subject of an agreement between your clients and the FWBC, where the suspension that was agreed was suspended, if you like - it was a suspended sentence, really.

PN99

So that leaves Mr Perkovic, who we are now dealing with and, in essence, certainly the Deputy President came to the view, having taken account of all of those matters that are there and balanced those things, that I think in summary that the real defining difference was the incident that took place that you have already referred to. Is that a fair summation?

PN100

MR BORENSTEIN: I think the court said as much. The court, in fact, said he was one of the - - -

PN101

DEPUTY PRESIDENT LAWRENCE: Mr Flynn, sorry. Mr Flynn it was.

PN102

MR BORENSTEIN: The court said as much and, basically, drew the distinction between Mr Perkovic and the others almost entirely on the basis of that additional incident between him and Mr Flynn. He was not the leader of the group, Mr McDermott was the senior official on the site. He was just one of the organisers and this incident occurred and that distinguished his position from the others. So what you say is right. We seek to make that point under the second ground of the appeal.

PN103

DEPUTY PRESIDENT LAWRENCE: But I suppose having listed the matters that might be taken into account in paragraph 17, it seems to me that - and you will no doubt go to this - that the Deputy President did go through each of those issues and deal with them in an exercise of his discretion, so you need to satisfy us that that was an unreasonable analysis that he undertook, I suppose.

PN104

MR BORENSTEIN: Well, but you see, the argument that we wish to advance is that he went to each of those matters, but as I explained to the Commission a moment ago, he went to them for a different purpose. He want to them and I will take you through the relevant paragraphs, but he went to them to underscore the severity of the behaviour, the egregiousness of the behaviour and, reading his decision and his reasons, the Deputy President was concerned to fix a period and to give a revocation which was in response - which was directed only as a response to what had happened instead of identifying and then serving the purpose which we have tried we would this morning.

PN105

DEPUTY PRESIDENT LAWRENCE: But he had the task of exercising the power under section 510. That was the task that he had. He had to revoke or suspend, given the circumstances, and then he had to consider whether he was required to do that, because he was satisfied it would be harsh or unreasonable to do it.

PN106

MR BORENSTEIN: Well, if I could put this is a rhetorical question, would it be acceptable if the Deputy President had said "Under section 510 I am required, subject to the harsh or unreasonable, to suspend or revoke and then fix the ban period. I am going to revoke and fix the ban period as punishment, retribution, sanction for this behaviour." Now, that would be unacceptable, and it would be unacceptable as a matter of law with respect, because the discretions which he has have to serve a purpose; they have to be confined in some way.

PN107

SENIOR DEPUTY PRESIDENT HAMBERGER: Except - I'm not quite clear - where do you say in his decision - I mean, you accept that the gravity of the conduct is a relevant consideration.

PN108

MR BORENSTEIN: Yes.

PN109

SENIOR DEPUTY PRESIDENT HAMBERGER: He considered the gravity of the conduct. Where do you say that he said, "The reason I am considering the gravity of the conduct is because I think he should be punished for how badly he behaved." He doesn't say that, does he?

PN110

MR BORENSTEIN: He does not use the words - - -

PN111

SENIOR DEPUTY PRESIDENT HAMBERGER: So you want us to infer that that's - - -

PN112

MR BORENSTEIN: What I would like to do is to take you to the various passages which we complain about and ask you to infer that that was the purpose which he was pursuing. If you are against us on that, then you are against us on that.

PN113

SENIOR DEPUTY PRESIDENT HAMBERGER: Okay.

PN114

MR BORENSTEIN: But that's our submission and I am happy to go to that immediately, and explain to you - and I am happy to take you to immediately. Now, at paragraph 23, the Deputy President recounts that the union submitted that the CFMEU - this is about halfway through, about five or six line down:

PN115

The CFMEU and Mr Perkovic had been sanctioned by the Federal Court in relation to Mr Perkovic's contravention, which was his first offence and which occurred over 12 months ago. Moreover, the CFMEU and Mr Perkovic submitted that there has not been a further contravention of Mr Perkovic's obligations under Part 3-4 of the Act and so a revocation or suspension of the permit would serve little purpose in safeguarding the rights of occupiers of premises and employees.

PN116

Then we emphasis the next part:

PN117

I accept that the various matters identified are relevant, but I do not accept that the mere passage of time and the absence of any further contravention results in there being purpose in suspending or revoking the permit for the purpose of safeguarding the rights of occupiers of premises or employees. This would ignore the gravity of the contravention, the particular nature of contravening conduct and the fact that Mr Perkovic has not shown, either before the court or in proceedings before me, any remorse or contrition nor offered any statement of regret - -

PN118

SENIOR DEPUTY PRESIDENT HAMBERGER: But isn't that exactly the opposite of what you were contending? To me, that you could say that's - I mean, putting it in a crude sense you say, "Look, what this is about" - it's about saying - take this as a metaphor, you know, "We've got somebody who has committed criminal conduct. We're trying to protect the community from further criminal conduct, so we will take them off the streets."

PN119

And, "We are not punishing them for that purpose, we're just doing it to protect" - well, in this case it is to protect - it's for the purpose of safeguarding the rights of occupiers of premises or employers. So it, if you like, protecting people from being subject to this kind of behaviour in future.

PN120

Now, that's not a punishment, that's about protecting those people's interests, which is a legitimate object of these provisions - - -

PN121

MR BORENSTEIN: Well, but you can say the same thing - - -

PN122

SENIOR DEPUTY PRESIDENT HAMBERGER: No, but there can be two - - -

PN123

MR BORENSTEIN: - - - of someone in prison. You can say that - - -

PN124

SENIOR DEPUTY PRESIDENT HAMBERGER: Okay. Well, you could say - yes, indeed you could - - -

PN125

MR BORENSTEIN: - - - we are protecting the public, but we are not punishing.

PN126

SENIOR DEPUTY PRESIDENT HAMBERGER: Yes, exactly, but you might do - that is not about punishment. That might be about saying, "We are doing this to protect people from these people's potential for future behaviour." Now, if they have committed something serious, you might feel it's appropriate to "take them off the streets" for longer. That's not about punishing them. Well, it's not obviously about punishing them.

PN127

MR BORENSTEIN: Well, but - my point really is this, your Honour, it's - one has to be careful about drawing that distinction because, as I said a moment ago, you could just as easily say that sentencing someone to a term of imprisonment - putting them in prison isn't punishment, it's protecting people who are outside from this person. So one has to be careful about that - - -

PN128

SENIOR DEPUTY PRESIDENT HAMBERGER: It could be both. It could be both.

PN129

MR BORENSTEIN: But my point, really, about this particular provision and the way in which the Deputy President has gone about it is that under this section, there is no indication of the parameters of the discretion.

PN130

So even if you do what your Honour says and you say, "Well, this man has engaged in this sort of unacceptable behaviour - extremely unacceptable behaviour - and we need to protect occupiers, and so the easiest way of protecting occupiers is to just take away permit." Now, you could do that. You could do that, absolutely.

PN131

SENIOR DEPUTY PRESIDENT HAMBERGER: You could theoretically - - -

PN132

MR BORENSTEIN: But then the question that then arises is that the purpose which the section has in mind, pure and simple that if somebody has misbehaved, you take away their permit. If you say "No, well, there are some cases where you take it away for longer and some cases or less," then the next question that arises is, "Where is the guidance for the decision about whether it's longer or shorter? What are the factors that you take into account?"

PN133

SENIOR DEPUTY PRESIDENT HAMBERGER: But he actually identifies some relevant factors here, and they are not factors I think you would disagree with. I mean, they're that - you know, the gravity of the contravention - - -

PN134

MR BORENSTEIN: Sure.

PN135

SENIOR DEPUTY PRESIDENT HAMBERGER: The nature of the conduct and the lack of any kind of remorse or contrition, or any statement of regret. Because they are all factors, at least arguably, that are relevant to the likelihood of the person doing it again, aren't they? That certainly seems to be what he's basing it upon.

PN136

MR BORENSTEIN: That's so - - -

PN137

SENIOR DEPUTY PRESIDENT HAMBERGER: So if he had done something minor, you might say, well, look, it's pretty unlikely that he is going to do it again or, in fact, if he did it again it wouldn't matter that much because it was relatively minor, whereas if you done something much more serious, which is what is the case here, we should take away - not as a question of punishment, but as a question of logic, if the purpose or one of the purposes of these provisions is to safeguard the rights of occupiers of premises.

PN138

MR BORENSTEIN: But the safeguard that you are doing is to safeguard them from a repetition of that sort of behaviour.

PN139

SENIOR DEPUTY PRESIDENT HAMBERGER: Yes.

PN140

MR BORENSTEIN: And that may be the point your Honour is making.

PN141

SENIOR DEPUTY PRESIDENT HAMBERGER: Yes.

PN142

MR BORENSTEIN: We accept that, but what we say has to be built into that is a judgment about - a judgment which takes into account factors which point to the likelihood of recurrence - - -

PN143

SENIOR DEPUTY PRESIDENT HAMBERGER: But he does as well. He didn't just rely on the gravity. If you just relied on gravity and there was some other evidence - so for example, if there was evidence from Mr Perkovic that he was clearly able to demonstrate that he understood, if you like, the error of his ways and wasn't going to do it again, and you could feel confident that that was actually to be taken seriously, that kind of evidence, well, that would definitely be a relevant factor. He refers to that - well, he refers to the absence of it.

PN144

MR BORENSTEIN: He does do that, but the thing that we are, with respect, disappointed about in that analysis is that he focuses on the lack of expressions of contrition which are also matters which the court - I mean, it echoes what was said in the court - I mean, it echoes what was said in the court and that's fair enough. But he focuses on that and then he pushes to one side the evidence of the actual behaviour.

PN145

So in other words - because he says the fact that he's been of good behaviour for 12 months since this contravention and has not been in trouble since the contravention, it is not a matter that he places any great weight on. And the fact that he has done the training again is not a matter that he places great weight on, and he says, "I do that because the matter was so serious and there has been no expression of contrition." Now, one might well say, "Acts speak louder than words."

PN146

SENIOR DEPUTY PRESIDENT HAMBERGER: No, but there's a balancing - there's a balancing. You look at the passage of time and, in fact, we're not talking about a very long period of time.

PN147

MR BORENSTEIN: Well, we're talking about over 12 months with a man has not been in trouble.

PN148

SENIOR DEPUTY PRESIDENT HAMBERGER: You would be pretty worried if someone was in court every six months.

PN149

MR BORENSTEIN: Well, of course not, but it's clearly - I mean, it is clearly a matter that we would say should have been at the forefront of the assessment of whether there's going to be a repeat occurrence.

PN150

SENIOR DEPUTY PRESIDENT HAMBERGER: But it's a relevant factor - he didn't say it wasn't a relevant factor, he said he weighed up a range of factors and isn't that the very point, that that's the - in these kinds of matters, that's what the decision-maker has to do; they have a range of factors, they have to weigh them up. There's no formula - there is in this area no established formula for how you weigh them up, it's a question of judgement and, you know, reasonable people might disagree on the weighting, but generally on appeal you don't go back and say, "Well, I might have weighted - this Bench might have weighted the factors differently."

PN151

MR BORENSTEIN: No - - -

PN152

SENIOR DEPUTY PRESIDENT HAMBERGER: And I guess that's the question if - if he was considering an irrelevant factor, if he was considering or he wasn't considering a relevant factor, those are obviously appealable errors potentially, but the fact that he gave more weight to one factor than other people might, that's probably not an appealable error.

PN153

MR BORENSTEIN: Your Honour, this question about what you do when there is a complaint about the failure to give weight, the general answer to those sort of complaints is the one that your Honour made. Mason J in the Peko‑Wallsend case said that sometimes where there is a failure to give proper weight to a significant matter, that the decision can be challenged on the grounds of an unreasonable outcome; so House v the King test.

PN154

We would say the way in which his Honour has dismissed the significance of the period of - I call it good behaviour, but we can call it whatever you like. The period since the contravention when this man has not been the subject of any complaint and the fact that he took his - - -

PN155

SENIOR DEPUTY PRESIDENT HAMBERGER: Well, he hasn't been found guilty of - he hasn't been - - -

PN156

MR BORENSTEIN: As far as we know, he hasn't been charged with anything.

PN157

SENIOR DEPUTY PRESIDENT HAMBERGER: Right.

PN158

MR BORENSTEIN: Is a matter which requires more weight than the weight that is given to it in 23. Again, his Honour focuses between paragraphs 27 and 31 on the gravity of the offence and that's okay as part of an overall analysis, but we say that has been the focus and has distracted his Honour from the function which we say is to be served under section 510.

PN159

Then at paragraph 44, again he re‑emphasis the lack of any expressions of contrition or remorse. Again we say that that is a consideration which is elevated to a position of significance which is unwarranted, particularly when it fails to be balanced against the behaviour since the occasion of the contravention. Then at the bottom of page 18 of the decision in paragraph 54, at the end he says:

PN160

I have taken into account the absence of any evidence of remorse or contrition, particularly as concerns the Flynn‑Perkovic incident. I acknowledge that Mr Perkovic has recently undertaken training, but for the reasons earlier given, this fact without more does not persuade me that it should affect the length of the ban period that I propose to impose.

PN161

SENIOR DEPUTY PRESIDENT HAMBERGER: I'm not saying training is not a relevant consideration, but if you look at the kind of conduct he was found to have committed, this isn't something you need to be trained - I mean, this is the thing. You've got to look at the nature of the contravention. This wasn't because he got some technical rule wrong that he could have been trained about.

PN162

MR BORENSTEIN: No.

PN163

SENIOR DEPUTY PRESIDENT HAMBERGER: The kind of behaviour he engaged in, any reasonable person would realise is not the kind of conduct you should engage in while exercising a right of entry. You know, the idea that training in itself - I don't know enough about the details about the training, but it's not really obvious that that's something that is going to be corrected by training. If you've got the rules wrong, that would be corrected by training.

PN164

MR BORENSTEIN: I can't tell your Honour what is involved in the training.

PN165

SENIOR DEPUTY PRESIDENT HAMBERGER: It's pretty unlikely you need to be trained to be told not to behave like that.

PN166

MR BORENSTEIN: I assume that the training involves some training about how you're supposed to behave yourself on the site.

PN167

DEPUTY PRESIDENT LAWRENCE: It's training run by the ACTU as part of the course to pass the fit and proper person test in the first place. I think the Deputy President's point is that this wasn't a technical breach and it's really a question of the nature of the behaviour, I think.

PN168

SENIOR DEPUTY PRESIDENT HAMBERGER: If it was a breach that was - you know, he refused to show his permit and he may not have fully understood that this is something he had to do, you could say that's the kind of thing that, you know, you would take a different approach to.

PN169

MR BORENSTEIN: The point your Honour makes is obviously correct.

PN170

SENIOR DEPUTY PRESIDENT HAMBERGER: The training is potentially a relevant consideration, but you've got to look at it in the context of the nature of the contravention, which is what the Deputy President did.

PN171

MR BORENSTEIN: But the point I was going to make here, apart from the training, is that there is no reference here to the period that has passed since the date of the contravention during which time this man has not been in trouble; in paragraph 54.

PN172

SENIOR DEPUTY PRESIDENT HAMBERGER: Okay.

PN173

MR BORENSTEIN: Paragraph 54 is dealing with the ban period, which again in our submission underscores the point we make about the inadequate attention which his Honour has given to that. We would say that if you're looking to the likelihood of reoffending, that's an important matter to take into account. Then there are similar comments that are really framed in terms of a sanction or punishment that will be found in paragraphs 56 and 57. I've made the point we seek to make.

PN174

The sanctioning of the conduct is really a theme that you discern from the way in which his Honour has approached the matter. On that basis, it's our submission that his Honour has fallen into error. Can I just respond briefly to some of the points which our friend makes in the submissions for the respondent. I'm reminded also - and we've got this in our outline of submissions at paragraph 45 - at paragraph 50, his Honour refers to the incident with Mr Flynn. Your Honour will see that he takes up the point which your Honour, the Presiding Member, raised with me:

PN175

The Flynn‑Perkovic incident stands in stark contrast to Mr McDermott's conduct so as to warrant not only condemnation, but the effective imposition of a requirement that in the future the CFMEU will need to persuade the Commission that Mr Perkovic is a fit and proper person to hold an entry permit.

PN176

Again, it's an insight into the thinking of the Deputy President. Part of his thinking is that he needs to do something which expresses condemnation of the behaviour and we say that that also colours the approach. Now, his Honour there refers to the requirement that the CFMEU should be required to satisfy the fit and proper person test. One of the matters which we say should have been taken into account and perhaps given more prominence, is the fact that this man's permit was due to expire some seven months or so after the date of the decision.

PN177

Now, we would have thought, particularly having regard to what the Deputy President said in paragraph 50, that that was a significant factor which should have influenced the duration of the ban period if the function was truly one of seeking to protect occupiers against a repeat performance of the conduct. It would have served that function because the very point that his Honour makes that the union would have then had to go back to the Commission and then satisfy the Commission by reference to all the section 513 matters which are more extensive - that Mr Perkovic was by then someone that could be considered a fit and proper person.

PN178

That would have been a judgment that would have been made seven months down the track. There would have been another seven months of workplace experience that could have been drawn on to inform the decision, but although the Deputy President identified that as something which he thought was worthy of providing for, it's not clear why or how he decided that the ban period should extend for a year beyond that period.

PN179

In relation to our friend's submissions, we just have a few points to make. The submissions seem to seek to excuse or justify the process of punishment as part of the function of section 510. To that end, at paragraph 30, reference is made to the judgment of the Victorian Court of Appeal in Quinn's case. Quinn's case was a case brought before the Law Institute of Victoria for professional misconduct by a solicitor in Victoria. It came to be determined under the Legal Profession Act in Victoria. Under that Act, it was necessary for a charge to be laid and to be brought before the Legal Profession Tribunal.

PN180

The tribunal was, under its statute, explicitly authorised and empowered to impose a fine of up to $50,000 by way of penalty for professional misconduct. In our submission, having regard to the statutory framework that underpinned the judgment of the court in Quinn and having regard also to the fact that the state tribunal was not constrained in the same constitutional way as the Commission, we say that the discussion in Quinn really doesn't add anything to an understanding of the role of the Commission under the Fair Work Act.

PN181

SENIOR DEPUTY PRESIDENT HAMBERGER: It's qualified immediately in the respondent's submissions.

PN182

MR BORENSTEIN: Yes.

PN183

SENIOR DEPUTY PRESIDENT HAMBERGER: "Accepting the purpose of the suspension and ban period is not punitive."

PN184

MR BORENSTEIN: Yes. In any event, we say that it oughtn't to be read or oughtn't to be taken in any way as opening the door to a punitive function under section 510.

PN185

SENIOR DEPUTY PRESIDENT HAMBERGER: Yes.

PN186

MR BORENSTEIN: I don't have any further submissions to make in relation to our ground 1. We do seek to make some submissions in relation to ground 2. Ground 2 is that on the facts and circumstances, the period of the revocation ban of over 18 months was plainly unjust or unreasonable in all the circumstances. I read to the court the passage in House v the King and we rely on that. We rely on the circumstances which we've set out in paragraph 49 of our outline as pointing to the factors which make the decision one which should be regarded as unreasonable or plainly unjust.

PN187

The first one is the period during which Mr Perkovic was free of complaint after the contravention. The second is that the period of the ban is significantly in excess of the period that would otherwise have been applicable to Mr Perkovic, particularly having regard to the fact that the incident with Mr Flynn lasted some 31 seconds, according to the video. There was no suggestion that he had engaged in such behaviour either before or since that time.

PN188

The training course, we have already discussed. The effect on the ability to represent his members - and we understand the comments that the Deputy President made about that, but, nonetheless, the circumstances are that Mr Perkovic will be unable to service them in the way he had previously. In paragraph (g), we draw attention to the outcome of the treatment of the other people involved in that, which Deputy President Lawrence has adverted to. he longest ban period was a suspension of six months. The decision here, the ban period, is the harshest order that has been made by the Commission under section 510 to the present time.

PN189

At paragraph 50, the Deputy President - in terms of the treatment of the other participants in attendance at the site on the particular day, the submission we make is that there needs to be some degree of attention to parity of outcomes in relation to co‑contraveners, if you like, engaged in an undertaking of this kind. Can we direct the court's attention to tab 4 of the folder, to the joint judgment of Dawson and Gaudron JJ in the case of Postiglione v R [1997] HCA 26; [1997] 189 CLR 295. At page 301, their Honours explain what is meant in the law by the parity principle. About halfway down the page, the Commission will see they say that:

PN190

The parity principle upon which the argument in this court was mainly based is an aspect of equal justice. Equal justice requires that like should be treated alike but that, if there are relevant differences, due allowance should be made for them. In the case of co‑offenders, different sentences may reflect different degrees of culpability or their different circumstances. If so, the notion of equal justice is not violated.

PN191

On some occasions, different sentences may indicate that one or other of them is infected with error. Ordinarily, correction of the error will result in there being a due proportion between the sentences and there will then be equal justice. However, the parity principle, as identified and expounded in Lowe v the Queen, recognises that equal justice requires that, as between co‑offenders, there should not be a marked disparity which gives rise to a justifiable sense of grievance.

PN192

If there is, the sentence in issue should be reduced, notwithstanding that it is otherwise appropriate and within the permissible range of sentencing options.

PN193

What their Honours are saying there is that even though the sentence on a particular offender might be appropriate in the circumstances, a question of disparity may call for that sentence to be reduced even though standing alone it may be justifiable.

PN194

Discrepancy or disparity is not simply a question of the imposition of different sentences for the same offence. Rather, it is a question of due proportion between those sentences, that being a matter to be determined having regard to the different circumstances of the co‑offenders in question and their different degrees of criminality.

PN195

The different circumstances involved in this case, namely, the fact that Savvas was the principal organiser in both conspiracies and that Postiglione rendered significant assistance to police and prosecuting authorities, clearly require that Postiglione receive a markedly lesser sentence than that imposed on Savvas.

PN196

Now, his Honour looked at this not in those terms, but looked in the question of comparison between the treatment of Mr Perkovic and Mr McDermott. At paragraph 55, he says:

PN197

I have earlier noted the difference in the penalty amounts imposed by the court on Mr Perkovic and Mr McDermott in Stephenson. In effect, the difference is 20 per cent. Given that Mr McDermott's ban period is six months, it might be thought that a ban period of 8 and a half months - being 20 per cent more than six months - might be appropriate. In my view, that is too simplistic an approach and does not give sufficient weight to the gravity of Mr Perkovic's conduct towards Mr Flynn.

PN198

Moreover, it ignores the fact that the level of Mr McDermott's penalty was in part determined because this was not the first occasion on which he had contravened industrial legislation. In contrast, this was Mr Perkovic's first contravention. This puts the relative penalty level in a different context and, as I have earlier indicated, a multiplicity of factors, only some of which are relevant here, are taken into account by a court in fixing on an appropriate penalty.

PN199

The analysis which is contained in that section really then begs the question of how, from a situation where in terms of the orders and the agreed ban periods for Mr McDermott, the order that his Honour makes here is more than three times - - -

PN200

SENIOR DEPUTY PRESIDENT HAMBERGER: I think one of the problems is that the order in relation to Mr McDermott was by consent. I'm always sort of a bit worried about ever thinking that you can start trying to draw, you know, logical conclusions based on something where there has been consent to a particular level of penalty.

PN201

MR BORENSTEIN: It's the consent of the regulator, but it must carry some additional weight for that.

PN202

SENIOR DEPUTY PRESIDENT HAMBERGER: Possibly.

PN203

DEPUTY PRESIDENT LAWRENCE: I'm sure the regulator would agree with that. I don't know that a court does.

PN204

MR BORENSTEIN: Well, to use the colloquialism, the regulator is not often regarded as a soft touch.

PN205

SENIOR DEPUTY PRESIDENT HAMBERGER: There could be all sorts of reasons why people consent to something.

PN206

MR BORENSTEIN: Well, of course. That's right. What we say is that if you look at the penalty that the court imposed having regard to the nature of the Flynn incident and even taking that into account, it was not greatly in excess of Mr McDermott's. Even if you allow for the fact that Mr McDermott's penalty was perhaps inflated because he had been previously involved in conduct, nonetheless to go from there to a penalty which is - in relation to Mr Perkovic's ban period - three times as great, is a large step up and one that really raises a question about whether it is a reasonable penalty to have imposed.

PN207

His Honour's attention was directed to a decision of Boulton J in Parker's case. Mr Parker was also given a six‑month suspension - I'm sorry, Mr Mitchell it is. Mr Mitchell was a gentleman who was prosecuted under the Act for driving - Parker is in tab 14. He was brought to the Commission under section 510 on the basis that he had been found guilty of contravening a pecuniary penalty provision for right of entry. He had been penalised by the court and, under section 510, Boulton J imposed a - - -

PN208

DEPUTY PRESIDENT LAWRENCE: I think he got three months actually.

PN209

MR BORENSTEIN: - - - suspension of three months.

PN210

DEPUTY PRESIDENT LAWRENCE: Three months, yes.

PN211

MR BORENSTEIN: Yes. The conduct that he engaged in was to drive a vehicle at a gate on a site behind which I think a management person was standing, so that he was putting the management person in direct danger. Notwithstanding that and notwithstanding the penalty that was imposed by the court, he was given a suspension of three months.

PN212

Now, we're not saying that Mr Perkovic should be given a suspension of three months, but what we do say is that in the scheme of the other people who were involved in the visit to the site in Adelaide with Mr Perkovic on the relevant day being given the level of penalty which they were given under section 510 and looking at the sort of penalty which Boulton J saw fit to impose on Mr Mitchell in the Parker case, again it puts the decision in this case right out on its own. We say that that's a strong indication that there has been a miscarriage of the discretion. It's miscarried on the parity principle.

PN213

It's miscarried because it's so far out of the range of previous decisions and, for that reason, we say that the Commission should find that there was error in the discretion in relation to the fixing of the ban period. If bench is of that view, then potentially the bench has two possible courses to take. One is to send it back for re‑determination of that matter. The other is for the bench to have regard to the materials which are in the appeal book, which are the same materials that the Deputy President had, so that you are in the same position as he is and to determine an appropriate ban period as part of the decision on the appeal. Unless there is anything else I can assist the bench with, they are the submissions we make.

PN214

SENIOR DEPUTY PRESIDENT HAMBERGER: We might just have a short adjournment for about five minutes or so.

SHORT ADJOURNMENT [11.25 AM]

RESUMED [11.33 AM]

PN215

SENIOR DEPUTY PRESIDENT HAMBERGER: Mr O'Neil?

PN216

MR O'NEIL: May it please the Commission, I rely first of all on my written submissions and don't propose to follow the structure of those, but rather to address matters that have arisen this morning. With respect to ground 1, if I can put it at a high level, the submission seems to be the purpose of section 510 is not punishment. So much is accepted. The Deputy President purported to - or in some way imposed a punishment and that is clearly in contest, and it is in contest essentially for three reasons.

PN217

Firstly, because despite the, with great respect, valiant efforts of our friends to put out textual references to that, they are just not there. The Deputy President says nothing about punishment and the references that have been pointed out to the bench, in my submission, simply don't support even an implication of punishment. Secondly, there is a specific reference to this argument in the transcript of the proceedings where the Deputy President accepted that punishment was not the purpose of what he was doing.

PN218

Thirdly, my friends rely on the absence of specific references - if I understand how it was put this morning - to the purpose of what section 510 is about and the purpose of what the Deputy President was doing. In response to that, we say, well, the main reason for that is because he adopted what he was asked by them to do at first instance. That is, he took the factors that Boulton J had listed in Parker, as he had been asked to do by the applicant, and he applied those factors.

PN219

This argument as put today, that he should have spelled out that it was done for the purpose of - if I can put it very broadly - future matters rather than the punishment as to what happened in the past, was not I don't think explicitly put in those terms to him and so that explains why he doesn't then spell it out in the way that it's now said he should have. In any event, it's clearly implicit in the way that he did deal with the matter that that was what he was doing.

PN220

In terms, first of all then, of the textual references to punishment that have been relied on both in the written submissions and today, as I understand it, paragraph 23, with respect, there is nothing at all in the language of that paragraph that refers to punishment or even condemnation. It's simply a matter of the Deputy President setting out submissions that have been made and his response to them. In particular, the complaint that was made this morning about this paragraph, as I understand it, is the over‑emphasis on the absence of rules and contrition and the lack of weight put to the good behaviour period.

PN221

With respect, if my friends are right that the future is what this should be about rather than punishment for what has happened in the past - and, on a general level we agree that they are - then all the more reason to focus on the lack of remorse and contrition as distinct from the gravity of the underlying conduct; keeping in mind of course that they are very closely connected. As my friend Mr Borenstein accepted in exchange with Commissioner Lee, you have to look at the seriousness of the conduct and, in my submission, also the quality of the conduct.

PN222

That is that distinction that was brought out by Deputy President Lawrence and also the Senior Deputy President in relation to the training, that is about ticking the boxes of when you can enter and when you can't, as distinct from behaviour like we're considering in this matter, which was of such an egregious nature in any context, not just a context where in this particular case Mr Perkovic was present as a result of an entry onto a work site.

PN223

Returning to the point about remorse and contrition, in my submission, the Deputy President is doing no more in the several passages where that comes up than paying attention to the future and looking at what are the objective issues that arise as to the suitability of this person going forward. They are, firstly, that high level of gravity. That doesn't seem to be, in the end, in dispute that it was a highly grave breach, albeit that examples can be thought of that might even be more serious.

PN224

Then the absolute stark lack of anything whatsoever - leaving aside the training which I'll deal with in a moment - by way of indication from Mr Perkovic that he wasn't going to do this again, that can be contrasted with the other - I don't want to use the term "offenders", but the others involved in the matters before White J, who had all expressed contrition to White J. Also Mr Mitchell in the Parker matter, who had given evidence about the effect of matters on him and, more fundamentally for this point, called character evidence before Boulton J.

PN225

In my submission, to the extent that my friends are right about the focus on the future, that explains any mathematical distinction between any other penalty that has been put before this full bench and this matter. That is, this is the only one where there has been no evidence of contrition or character put forward at all. Can I, on that point, advise the bench in terms of what happened with the other matters. The matter before Boulton J, which resulted in the conciliated outcome, Mr Bolton and Mr McDermott received six‑month suspensions and Mr Vitler a three‑month suspension.

PN226

We say the clear distinction that I have just outlined would justify the difference, but, in any event, we say that that should not be used as a precedent - being a conciliated outcome - and that if the fact that the regulator has consented to a particular outcome in a particular case is used as a precedent in future cases, that's going to discourage the regulator from taking part in conciliated outcomes in appropriate cases. In our submission, those should be put to one side.

PN227

The matter of Smart was heard before Watson VP on 28 May this year. That was contested. The positions of the parties were, from the director, a three‑month ban was sought, Mr Smart sought that there be no ban and that three‑month ban was upheld. If we can compare Mr Smart's penalty from White J of $1000 and the fact that the circumstances of Mr Smart's breach were that he was present on site for eight minutes, it was accepted that he had a legitimate purpose under section 484 of the Act, there was no suggestion that he was hindering or obstructing anybody from doing their work and that he had a passive role, then we have a five times disparity in the fine and a six times disparity in the outcome. There's no disparity there of any moment, in my submission, in any event.

PN228

In my submission, the parity arguments that are put really don't take matters any further, but I do note in any event in respect of Postiglione, as I understand that case, the two offenders in question had been charged with the same offence, albeit that they had different roles and different mitigating factors attaching to them; so the parity in question was for doing the same thing essentially. It was a conspiracy in relation to drugs.

PN229

In any event, the High Court has made it clear in the two cases that are cited in my written submissions, Wong and Hili, and also indeed in Barbaro, that it is consistency of principle rather than consistency of outcome that is the primary aim of achieving consistency in sentencing. I've gone off my structure a little bit. I was dealing with textual indications. In paragraph 50, in my submission, first of all as I said in the written submissions, condemnation does not mean the same thing as punishment. Secondly, in context, in paragraph 49 the Deputy President has been dealing with what White J did and then says -

PN230

so as to warrant not only condemnation, but the effective imposition of a requirement that in the future the CFMEU will need to persuade the Commission that Mr Perkovic is a fit and proper person.

PN231

That can be read, in my submission, as referring to what White J had done in any event; that is, punishments imposed by White J. Then the Deputy President, turning to his task, which is the future and when it might come about that the CFMEU would need to persuade the Commission that Mr Perkovic is a fit and proper person.

PN232

Could I point out again - and it wasn't pressed orally this morning - there is a ground of appeal, or sub‑ground to ground 1, which asserts that the Deputy President didn't appropriately distinguish between the three parts of what he had to do under section 510. First, assess whether it was harsh or unreasonable to impose a suspension. Secondly, decide between revocation and suspension. Thirdly, assess the ban period.

PN233

It's clear, in any event, firstly, that those three matters are separated in the reasons; the first running from paragraph 23 to paragraph 45, the second from 46 to 50 and the third from 51 to 58. In any event, it seems to be accepted by my learned friends correctly that the factors are almost the same in each case. To the extent that there is any overlap between what is considered in each, there is no error in that.

PN234

Your Honours, without I hope gratuitously returning to the subject matter of what Mr Perkovic did, which no doubt you are well aware of, the submission was made that this incident only took 30 seconds and that is correct, but that 30 seconds was time enough for Mr Perkovic - this is at paragraph 56 of White J's judgment, to say, "Do you want an effing photo, you effing piece of shit. You're just about having a heart attack. You're shitting yellow, you piece of shit. Go eff - brush your teeth next time, you piece of shit, all right? You effing coward. I'd effing take you to school, You effing piece of shit." He didn't say "effing".

PN235

This was done with them so close that their stomachs were almost touching and is described by White J as provocative, bullying and intimidating, and it was evident that he sought to belittle and humiliate. This was egregious conduct. Again, that is White J's words, your Honour. To the extent that seriousness was a relevant factor for the Deputy President, as it was and as my friend has accepted that it was, that is reflected in the ban period and appropriately so, in my submission, remembering again there being no indication beyond training of any contrition. We do in fact have evidence of the content of the training. That is in the appeal book at tab 7, exhibit number 3.

PN236

SENIOR DEPUTY PRESIDENT HAMBERGER: Have you got a page - - -

PN237

MR O'NEIL: Page 191.

PN238

SENIOR DEPUTY PRESIDENT HAMBERGER: Thank you.

PN239

MR O'NEIL: This was produced, as I understand it, at the hearing before the Deputy President after my predecessor had made a written submission that there was no evidence about what the content of the training was. Perhaps at 193, there is a short summary of what is covered in that training, but essentially it is about what the Act says. It is not about appropriate - and this is no criticism of the training. That's what it should cover.

PN240

SENIOR DEPUTY PRESIDENT HAMBERGER: No. It's what you would expect it to be about, yes.

PN241

MR O'NEIL: But it's not about standards of behaviour. It's about matters which, with respect, Mr Perkovic should have been well aware, anyway, as a permit holder under the Act. That training was undergone almost six months after White J's decision and only a week or so before the hearing before the Deputy President. With respect, to have given that more than token weight would have been an error in any event.

PN242

It showed no more than an effort to educate oneself in terms of compliance with the Act. It certainly says nothing about the possibility, for example, of Mr Perkovic lawfully entering on another occasion, remembering on this occasion his entry was unlawful. He hadn't provided a 487 notice. He refused to produce his permit, et cetera - but misbehaving on that future occasion.

PN243

Again, the good behaviour period, in my submission, was not a matter which on its own deserves significant, if any, weight. If it had been combined with some persuasive evidence in terms of contrition or at least future intention not to behave in a similar manner, then it might be called on in support of the prospect that Mr Perkovic was going to behave better in future; but on its own it was of very little predictive value, in my submission.

PN244

I've just had drawn to my attention - and rightly so - that in our submissions below at paragraph 23, we did refer to the six‑month suspensions as being relevant to - or at least potentially relevant to the Deputy President's decision. In the end, whether that's right or not, we say they are clearly distinguished by the aggravating behaviour and the lack of contrition.

PN245

If I could just deal with a couple of short points in response to my learned friend's submissions. In terms of the constitutional issue, we say it simply doesn't arise and the reason that we say again the permission to appeal shouldn't be granted, is because the Deputy President simply didn't purport to impose a punishment here. What, with respect, my friend's submissions failed to distinguish between is - perhaps that's unfair, but failed to spell out, is the difference between a purpose of punishment which, in my submission, there is no evidence of in this case whatsoever and the result of punishment which is inherent in the nature of this sanction.

PN246

It is inescapable that if a suspension period is to be imposed, there will be some punitive effect on the recipient in the sense that it might limit his ability to do his job. There is no actual evidence in this case of course of that being the case in practice, but in different circumstances - and the prison example was used. In Victoria at least, we have what are called extended supervision orders which are not about punishment, but they do involve people being locked up because they are considered such a danger to the community; that they can't be safely released.

PN247

Now, those are not punishments, but they may have a punitive effect. The same applies at least potentially to suspensions under section 510. That fact does not change that their purpose is not punitive. To the extent that the reference to Quinn's case was taken to be a submission that a punitive purpose would have been legitimate, that's not our submission and there is no evidence that there was one.

PN248

The issue of weight and in particular a complaint about the lack of weight being put on the two matters of the good behaviour period and the training, it's clear that matters of weight are not House v the King errors. Given the agreement that House v the King error has to be shown here, the fact that this bench might or might not have put different weight on the matters referred to is not relevant, his Honour the Deputy President took them into account. He gave them the weight that was within his discretion and there is therefore no House v the King error. If it please the Commission, those are my submissions.

PN249

SENIOR DEPUTY PRESIDENT HAMBERGER: Thank you.

PN250

MR BORENSTEIN: Can I respond briefly, please?

PN251

SENIOR DEPUTY PRESIDENT HAMBERGER: Yes.

PN252

MR BORENSTEIN: In relation to the submission which our friend makes about Barbaro, Barbaro is contained in our folder at tab 1. The passage to which our friend refers in the written submissions is at page 74, paragraphs 40 and 41. Now, my friend refers to the final sentence in paragraph 40 which talks about consistency that is sought in sentencing between courts. The Full Court of the High Court says there:

PN253

Consistency of sentencing is important, but the consistency that is sought is consistency in the application of relevant legal principles, not numerical equivalence.

PN254

Then they go on to refer to Hili and then it becomes apparent, when you read the next paragraph, that what they're talking about is evidence about ranges of penalties for particular types of offences. Barbaro was a case in which the High Court was addressing the function of prosecutors in making submissions to a sentencing judge about the penalties that were to be imposed.

PN255

Now, this had been a long-standing practice and the High Court in Barbaro's case put an end to that practice, and precluded it from happening; but what they were talking about and the sort of submissions that they were talking about are submissions about the range for an armed hold‑up or the range for a murder or the range for a dangerous driving. Now, the submission which we made to the court in reliance on Postiglione is a different submission. That is a submission based on parity and that was not dealt with by Barbaro, so we maintain that submission.

PN256

In relation to the second matter that we want to respond to, our friend took you the evidence in the appeal book of the test for right of entry. We simply give the court a reference to page 202 of the appeal book which sets out a summary of the prohibitions on conduct of a permit holder, which include informing the permit holder that he must not intentionally hinder or obstruct any person, et cetera.

PN257

The final matter that I wanted to respond to, if the Commission pleases, is this question about what the Commission does when there is a complaint about insufficient weight being given to a matter. Unfortunately, in our folder we have given you an extract of the judgment of Mason J - this is at tab 9 - which sets out the passage which we've extracted in our outline about the sort of matters which a tribunal is required to take into account when there is an unconfined discretion.

PN258

The extract that we have given you unfortunately ends at page 40 of the report. As luck would have it, there is a further discussion on page 41 which answers the point which our friend made at the end and if I could simply ask the Commission to refer to it in its own time. It's at the top of the page. It's the first paragraph on the page and Mason J says:

PN259

In the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision‑maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power. I say "generally" -

PN260

says Mason J -

PN261

because both principle and authority indicate that in some circumstances a court may set aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to a relevant factor of no great importance. The preferred ground on which this is done, however, is not the failure to take into account relevant considerations or the taking into account of irrelevant considerations, but that the decision is manifestly unreasonable.

PN262

That is a submission I made earlier and your Honours will find that at page 41 of Peko. They are the only matters which I seek to raise in reply.

PN263

SENIOR DEPUTY PRESIDENT HAMBERGER: We will reserve our decision.

ADJOURNED INDEFINITELY [12.01 PM]