Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union & Anor [2017] HCATrans 202 (17 October 2017)

Last Updated: 17 October 2017

[2017] HCATrans 202

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M65 of 2017

B e t w e e n -

AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER

Appellant

and

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION

First Respondent

JOSEPH MYLES

Second Respondent

KIEFEL CJ
GAGELER J
KEANE J
NETTLE J
GORDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 17 OCTOBER 2017, AT 10.16 AM

Copyright in the High Court of Australia

MR T.M. HOWE, QC: May it please the Court, I appear with MR C.J. TRAN, for the appellant in that matter. (instructed by Sparke Helmore)

MS R.M. DOYLE, SC: May it please the Court, I appear with MS J.D. WATSON, for the respondents in that matter. (instructed by Slater & Gordon)

KIEFEL CJ: Yes, Mr Howe.

MR HOWE: Your Honour, the issue presented to the Court might be described as a relatively tardy but important point of statutory construction. The manner in which the appellant frames the issue is as follows: whether or not the relevant provision in question – section 545(1) of the Fair Work Act 2009 – empowered the Federal Court to order the CFMEU, the first respondent herein, not to indemnify one of its officials in respect of a pecuniary penalty order made against that particular official in circumstances where the court was satisfied of three significant matters.

Firstly, of course, both the official and the Union were co-contraveners and were parties, substantive parties, in the civil remedy proceedings. Secondly, the primary judge was satisfied that the contraventions committed by each of the two respondents involved deliberate, collusive and mutually reinforcing conduct on their part of a longstanding kind.

And thirdly, the primary judge was satisfied that if a non-indemnification order were not made, both contraveners, separately and together, would regard the penalty imposed upon the union official as a mere cost of doing business, thereby substantially harming, if not altogether extinguishing, the ability of the court to impose a penalty of effective deterrence in line with the principal objective of the statutory scheme of civil penalties under the Fair Work Act.

GAGELER J: So which of those three - or which combination of those three factors is essential to the existence of the power?

MR HOWE: At the very least we would say that the requirement for appropriateness with respect to any order made under section 545 would ordinarily require that a party compelled not to indemnify be not only a substantive party but wrongfully bound up in the commission of the conduct in respect of which a civil penalty is imposed on its official and we would think ordinarily the touchstone for the making of a non-indemnification order would be the preservation of the court’s ability to impose an effective penalty. So, one could never say never but ordinarily one would think that each of the second and third agreements - - -

KIEFEL CJ: The third matter that you have identified is the one most clearly directed to deterrence, which was the basis upon which the primary judge dealt with the matter.

MR HOWE: Exactly so.

KIEFEL CJ: The other two then stand as having what connection with the purpose of the order?

MR HOWE: The first matter distinguishes the case from the making, for instance, of a non-indemnification order against a non-party. Certainly we would accept that before any such order could be made against a non-party at the very least that non-party would have to be wrongfully involved, complicit in the commission of a contravention by the particular individual respondent and we would say ordinarily no such order again could be justified against a non-party absent the third factor. It is perhaps distinctly the third factor which operates as the touchstone.

KIEFEL CJ: That is perhaps specific deterrence - I should probably revisit this if, as you say, they are to be viewed as co-contraveners. You are talking about deterrence to both the official and the CFMEU.

MR HOWE: Exactly so.

KIEFEL CJ: That was a point that I think her Honour took as well.

MR HOWE: Exactly so.

KIEFEL CJ: So it is operating at both a specific and a general level.

MR HOWE: It is. Before one could discern the need for effective deterrence against a non-party, one would expect the need for them to be wrongfully bound up in the commission of the deterrence otherwise they are, for all intents and purposes, an innocent non-party. If they wished, for instance, to make a gift to the particular union official but they had not in any way, shape or form been bound up wrongfully in the commission of the wrongdoing then it may be that you would need some additional feature before the Court would be justified in making a non-indemnification order against that non-party.

The touchstone, in our submission, would ordinarily be, in the case of non-parties, not simply the need to preserve the integrity of the court’s processes, but consonant with jurisprudence developed in the context of inherent and implied powers and powers such as section 23. If they are to be exercised against non-parties, one would ordinarily expect to be able to find some public interest with respect to the administration of justice which would support the making of an order.

Indeed, in relation to these broad powers, Justice Gageler in Weinstock v Beck suggested that when these kinds of broad powers are given to a court they are ordinarily preconditioned on judicial satisfaction that the making of the order will not occasion substantial injustice whether the subject of the order is a party or a non-party, and that is a worthwhile prism through which the exercise and we say the existence of the power can be analysed.

Indeed, your Honours, to come to or to anticipate a submission which I will develop in due course, we say that protection of the integrity of the processes of the Court and act in consonant with the interests of the administration of justice in ensuring that substantial injustice is not occasioned are, of course, limiting factors in one sense, that this Court has noted that the limiting factors play an unusual role because once they are allowed for they are the very reasons for giving these broad conferrals of power a wide interpretation, a liberality of construction in terms which the language permits.

The reason for that is in one sense, of course, exercising the power for the purpose of preserving the integrity of the Court’s processes and ensuring the avoidance of substantial injustice and locating the order in some interest in the administration of justice may be seen at first blush to be limiting factors but because the powers are imposed on a court which is required to act judicially and which is comfortable with the evaluation necessary to weigh all of those various factors and to act consonant with them that in and of itself consistent with jurisprudence in this Court supports what we say is then a very broad approach to the conferral of the powers.

GORDON J: But limited by the focus through the requirement that a person must have contravened a relevant provision.

MR HOWE: Exactly so. The simple penalty – the power to impose a pecuniary penalty is limited to a person who is a contravener. That proposition is not true with respect to the general civil remedy provision contained in section 545. In fact - - -

GORDON J: I think you draw – I think there is a distinction drawn between you and the respondent because the respondent seeks to put it on the basis, I think, that the subject matter is that the person - - -

MR HOWE: Yes. Could I just say that in response to the matters which I developed in short compass just now, the respondents would style the issue differently. They contend that no matter what the circumstances, no matter what harm might be occasioned to the standing and integrity of the Court’s processes, no matter how egregious the conduct of the contraveners might be, the relevant provision does not ever permit a court, or in this case, the Federal Court, to make a non-indemnification order.

GAGELER J: Mr Howe, sorry, if you look at the terms of section 545(1), the Court needs to consider the order appropriate that, if satisfied that a person has contravened, who is the person for the purposes of your submission? Is it Mr Myles? Is it the Union? Does it have to be both?

MR HOWE: Well, it may not have to be both but, we submit, that in this case what the Court knows is that both respondents were contraveners and they were not only contraveners but co-contraveners. They were each complicit and collusive in a joint endeavour which was deliberately aimed at the commission of the contraventions and, according to the primary judge, pursued by them on the basis of a shared understanding that in the event of any pecuniary penalty imposed on the union official the likelihood was indemnification thereby treating the penalty as a cost of doing business.

So in terms, we would say to your Honour Justice Gageler that section 545(1) is broad enough to permit the making of an ancillary or consequential order against someone other than the contravener, so a third party might come within the rubric of section 545(1). But that is not true in relation to section 546, which deals with the actual imposition of the pecuniary penalty which is one distinct form of civil remedy provision and the court is only empowered to impose a pecuniary penalty on the person who is the contravener.

NETTLE J: Why do you need to go that far? The Union is a contravener.

MR HOWE: Exactly so.

NETTLE J: The order is made against the Union, that is squarely within 545 subject to other considerations, is it not?

MR HOWE: Yes. We are just, as it were, identifying a point of contradistinction between the reach of subsection (1) and (2). We absolutely accept what your Honour puts to me, namely, that it is not part of the facts of this case because there is no non-indemnification order made against a third party.

GAGELER J: The Union has contravened a civil remedy provision, is that so?

MR HOWE: Exactly so.

KIEFEL CJ: By reason of the conduct of the officer, that is how it is stated in the orders made.

MR HOWE: Exactly so, but not merely by reason of him, as it were, acting in an official capacity perhaps on a mistaken belief as to his actual authority. Rather, the primary judge’s findings went further and her Honour held that the union official, the second respondent, was actually acting in concert with the Union. There was a shared purpose.

GORDON J: But you do not need to go that far on your submission though, do you?

MR HOWE: Well, it is a very significant feature. We think that perhaps a - - -

GORDON J: Significant or essential to your argument?

MR HOWE: Significant. We do not say essential to our argument, we do not say that. But we say that it is a material fact finding of fact by the primary judge which is a convenient or a powerful lens through which to test the proposition contended by the respondents, namely, no matter what the particular circumstances, there is never any power for a court to not only protect the integrity of its own processes but its own standing, because here there was a finding by the primary judge that both respondents had, in effect, engaged in longstanding defiance of court orders and had thumbed their noses at the court. Now, once one is - - -

GORDON J: Does that matter go to the existence of the power or the exercise of it?

MR HOWE: Well, we would say it goes to the existence of the power. I will develop this in due course but we say that, even in the context of implied powers and certainly in the context of powers such as section 23, it has been recognised by this Court in a large number of cases that, when one is in the terrain of the court needing to vindicate its authority and protect itself from miscreant behaviour by a litigant or even a non-litigant, then courts are able to tap into the well of powers available to them.

Now, the outer reaches or the boundaries that apply to the existence of that power to make self-protective orders might be the subject of uncertainty and is better left to elucidation by reference to individual facts and circumstances but we certainly say that here her Honour did locate this behaviour by each of the respondents at the level of implications for the standing and authority of the court because of the longstanding pattern of defiant behaviour on their part. I will take your Honours to the findings in due course.

GAGELER J: Mr Howe, so the person is the Union and he - you were just then addressing what makes this order or an order of this kind appropriate. Now, I think there is maybe a disconformity between the third of the factors that you mentioned in your opening remarks and what you have just identified about a longstanding history. On one view, you are simply saying that it is appropriate because it assists in the vindication of the order separately made under section 546 - at least that is one understanding of your submission - - -

MR HOWE: Yes, your Honour.

GAGELER J: - - - but this is a much wider vindication of what the authority of the court, or something, that you are moving onto at this point?

MR HOWE: Your Honour, we would be content to locate it in the first proposition that your Honour articulated, namely, it was necessary for the court to vindicate its authority by imposition of an effective deterrence so as to discourage the ongoing commission of this kind of defiant, deliberately unlawful, behaviour; that would be sufficient for our purposes. Could I take it that your Honours are sufficiently aware of the background facts as not to require me - - -

KIEFEL CJ: I think you can, yes.

MR HOWE: Thank you. Could I, at this point then, just mention one important aspect of the decisional history? Your Honours will see the orders actually made by the primary judge at appeal book pages 114 and 116. I will be very brief on this. Your Honours will see, it is order 13 which is the non-indemnification order at issue. The making of that order was the subject of appeal by the respondents before the Full Court below. The notice of appeal appears at appeal book page 121. All your Honours need to know for present purposes is that the first ground related to the existence of power to make the non-indemnification order and the second and third grounds assumed the existence of power and went to the exercise of discretion and the other grounds are not relevant for present purposes.

The Full Court dealt with the first ground of appeal, so the upshot is both parties agree that if the appellant succeeds in these proceedings, the appropriate dispositive order is that the matter be remitted back to the Full Court for consideration of the outstanding grounds of appeal that were not reached and they were not required to be reached because the Full Court, having found that there was absolutely no power at all, did not need to consider whether or not there was some miscarriage in the exercise of the power.

Could I now ask your Honours then to go to the two provisions of essential relevance. I would just ask your Honours to note that the provision that was contravened by each of the respondents here was section 348. It is perhaps convenient for your Honours to just go to that section before I take you to sections 545 and 546.

Your Honours will see that the terms of section 348 deal with quite serious conduct because it prohibits, in effect, the making of threats by a person “with intent to coerce” another “to engage in industrial activity”. The engaging in industrial activity here was, of course, the joint venturers acceding to the request by the two respondents to allow a CFMEU delegate on site.

That provision is deemed to be a civil remedy provision in a convoluted way but ultimately it depends on item 11 in section 539 of the Act, which basically provides that section 348 is a civil remedy provision, a contravention of which takes one to the provisions I will now take your Honours to, namely, sections 545 and 546.

Very quickly, because these are somewhat obvious points and they appear in our submissions, the Court will see that section 545(1) commences as a conferral of power on particular courts and it is a narrower range of courts than those who are given power to make pecuniary penalty orders and the power is expressed broadly, namely, those courts:

may make any order –

so that expression is of wide amplitude, but the discretion is subject to a precondition, which is stated, namely:

the Court considers appropriate if the court is satisfied that a person has contravened, or proposes to contravene, a civil remedy provision.

Your Honours will note immediately notes 2 and 4, together with some other provisions referred to in our written submissions, where the reach of powers available under subsection (1) are specifically confined in particular ways. We say that is emblematic of the fact that the legislature has directed its mind to any limitations on the conferral of power and in particular cases has determined that there will be some constraint or confinement and we say that speaks to the fact that one should not ordinarily, as it were, supplement the legislative scheme by discerning a limitation particularly when it is unexpressed.

If your Honours go to subsection (2), the important opening words are that the whole of what is provided in subsection (2) does not limit the generality of subsection (1) and, of course, the particular orders enumerated there are inclusive or illustrative only. But the one we would particularly ask your Honours to go to is in paragraph (a) of subsection (2):

an order granting an injunction, or interim injunction –

so this applies to final or interlocutory relief:

to prevent, stop or remedy the effects of a contravention –

Now, the expression “the effects of a contravention” is wider than a contravention per se. So the court is given powers to deal with the effects of a contravention and may make orders to “prevent, stop or remedy” those effects, not simply the contravention. We just ask your Honours to take into account a couple of possible scenarios. Say if, during the course of proceedings, it came to light that the union official was being provided some form of financial assistance by the Union that facilitated the threatened or proposed commission of the contravention. We say paragraph (a) would permit an injunctive order.

Say again, if it came to light that there was either a contract or an arrangement or an understanding between the union official and the Union who are both parties that in the event of the imposition of the pecuniary penalty the union official would be indemnified. We say in those circumstances the court might well suspend the operation of that contract, memorandum or understanding in order to send notice, for instance, to innocent third parties whose willingness to participate in commercial activity might be chilled by the commission of the – or the threatened contravention.

Now, if those sorts of powers can be made prospectively to deal with the need for deterrence and which go to the financial arrangements between the co-contraveners or the two parties who are threatening a contravention, we say that supports the fact that ex post facto if it only emerges after the commission of the contraventions that there has been this longstanding practice of indemnification which was facilitative of the commission, the deliberate commission of contraventions by the union official, the court has available to it a non-indemnification power of a kind that is closely related to the sort of power that would be available at a prospective level under subparagraph (2)(a).

GAGELER J: Is order 13 an injunction?

MR HOWE: Your Honour, we think it does operate as a matter of substance as an injunction. It operates to injunct the Union, or to prohibit the Union from directly or indirectly indemnifying the official. We say that as a matter of all intents and purposes, it can be regarded as a prohibitive injunction.

NETTLE J: Statutory injunction, it is a statutory injunction - - -

MR HOWE: Of the prohibitive kind.

NETTLE J: - - - as opposed to an equitable injunction.

MR HOWE: Yes, your Honour.

NETTLE J: It is to stop a contravention, that is to say, fear of one that would occur if the union officer believed that he could, without feeling the sting of the penalty, go ahead and commit another offence, is that it?

MR HOWE: In this particular case, her Honour was primarily concerned with achieving the deterrent effect of the statutory scheme but your Honour rightly raises an extra ingredient that might exist which is useful to have regard to – what if, in the circumstances before the primary judge, there was evidence that the actual contraventions committed by the two respondents had had a chilling effect upon the willingness of innocent third parties to participate in ongoing tasks referable to the particular project.

NETTLE J: I was thinking more that the judge appears to have had in mind that the non-indemnification order would deter Mr Myles from committing another offence of the kind he was convicted of.

MR HOWE: Exactly so, and also had in mind that it would have a deterrent effect on the Union. But in the example I just posed to the Court, one would see how that example when you add the need for an antidote to the chilling effect which the contraventions had already had upon innocent, commercial parties, one could see that that would be located within the express and explicit terms of paragraph (2)(a) because a non-indemnification order would then be made in order to remedy the effects of the contraventions actually committed.

So, that is just another illustration of how there is no bright line, formulaic principle which applies here to the effect that under no circumstances can a non-indemnification order be made and we submit that the legislature cannot have intended when it enacted section 545 to preclude the court from making orders of these kinds which are genuinely referable to protection of the public interest which underpin the need for deterrence, specific and general, including with respect to the effects of a contravention which might impact upon innocent third parties.

GAGELER J: Mr Howe, I am sorry to be nitpicking with the statutory language but if you look at paragraph 545(2)(a), it refers to “a contravention”. Is that limited to the contravention that is referred to in section 545(1) or can it be any contravention?

MR HOWE: Your Honour, it might be that there is, as it were, not simply a synergy but a co-extensive operation as between subsections (1) and (2) such that it is the one and the same contravention which is spoken of. That issue, in our submission, is one which requires resolution one way or another in order to sustain the existence of power in the case.

KEANE J: In relation to 545(2)(a) it depends, I suppose, whether you read it as being to grant an injunction to prevent a contravention, or to stop a contravention, or to remedy the effects of a contravention or you read it to prevent the effects of a contravention, to stop the effects of the contravention or to remedy the effects of the contravention.

MR HOWE: We would think the distributive approach which in here is in the second of the two interpretations raised by your Honour would be the preferable one.

KEANE J: In any event, this has not been – this issue, this particular issue of construction has not been dealt with by either of the courts below.

MR HOWE: Exactly, and does not arise, in our submission, for adjudication, let alone standards and impediment to my client succeeding in the appeal. Could I just ask your Honours to note as well, in relation to orders under section 545, if your Honours go to subsection (4)(a) your Honours will see that the orders are available on the court’s own initiative during the proceedings, all on application. Again that is a distinction with orders in the succeeding provision; pecuniary penalty orders can only be made on application. In any event, it is emblematic again of the straining on the part of the legislature to give the court real traction in relation to dealing with miscreant conduct. Could I ask your Honours next to - - -

KEANE J: Well, it certainly indicates that the legislature has in mind the importance of the court vindicating or ensuring the efficacy of its own orders.

MR HOWE: Exactly so. It is not dependent upon one of the substantive parties invoking the jurisdiction or the power conferred by section 545. Could your Honours next go very briefly to section 546 and your Honours will see the point I made again. It introduces itself as a conferral of power on courts but only on application and it is with respect to a particular form of civil remedy, namely, a pecuniary penalty, which is obviously financial and again it is subject to a precondition that the court must consider it appropriate.

Pecuniary penalty orders can only be made against a contravener, not a third party; clearly enough, and then your Honours will see that there are statutory maxima expressed in subsection (2) and then there is an important provision which we say is never successfully grappled with by the respondents here, in subsection (5). It is an avoidance of doubt provision but it is important nonetheless and it provides that:

a court may make a pecuniary penalty order in addition to one or more orders under section 545.

Now, that bespeaks an intention on the part of the legislature that the two powers operate, perhaps in an integrated way but certainly in a complementary way and both powers appear of course in Part 4-1 which is entitled “Civil remedies”.

While your Honours have the Act before you, if I could ask your Honours to go to section 564, just to note this, namely, again for avoidance of doubt, nothing in the Act, including the provisions to which I have taken your Honour obviously enough, limits the Federal Court’s powers under various sections including section 23 which your Honours will be familiar with, without the need to go to, which confers upon the Federal Court, jurisdiction to make such orders as are considered appropriate.

Could I come at this point to paragraph 4 in the appellant’s oral outline and can I indicate that it looks like a formidably large number of passages in the judgment of the primary judge, to which I propose to take your Honours. I can complete that task, I believe, in 15 or 20 minutes only. It is an important task and if I should run out of time I can certainly deal with all of what is put in paragraph 8 of the oral outline in very short compass if necessary just by adopting the matters that we put in our written submissions in-chief and in reply.

So, at this point could I ask your Honours to turn to the reasons of the primary judge in the appeal book. What I propose to do is to take your Honours to various passages which deal with the first and second dash points in paragraph 4 of the outline. I will deal with those together and then I will come back and separately take your Honours to various references which deal with the fact that her Honour grounded the non-indemnification order here explicitly on the need for specific and general deterrence.

Could I ask your Honours to go first to the court book at page 86, in particular to paragraph 101. Your Honours will note in particular the second sentence in paragraph 101 on appeal book page 86:

The respondents –

that is each of them:

having made their point –

note the reference to “their point”:

with conduct and threats on 16 May and having caused considerable disruption . . . took a deliberate decision to return to the site to apply further coercive pressure to the joint venturers.

Then in paragraph 103 on the next page, your Honours will see that there are various references in that paragraph to the respondents conduct being:

intended to have only one purpose –

and the respondents having an intention:

to cause each of those outcomes –

outcomes which the respondents, that is each of them together:

intended their conduct to produce.

In paragraph 104 immediately following, in the second line there is a reference to:

both respondents (and the CFMEU’s other responsible officers) well knew the conduct was unlawful, and did not care . . . the respondents’ behaviour in relation to these contraventions is a continuation, or repetition, of the behaviour exhibited in relation to –

an earlier case which involved Mr Myles, the second respondent here, and the same Union. Later on in that paragraph there is a reference to the respondents’ behaviour, that is, each of the respondent’s behaviour, being a repeated tactic on their part. Then if your Honours go to page 88 of the appeal book, paragraph 108, there is a repetition to the respondent’s repeatedly engaging:

in the same kind of conduct –

which her Honour considered was deliberate and knowingly unlawful. Then in the next paragraph her Honour made findings that:

neither the CFMEU –

as a separate entity from Mr Myles, nor Mr Myles himself, as an official of the Union, cared about the lawfulness of what they were doing. Toward the end of paragraph 109 on appeal book page 89, there is a reference in the fourth-last line to:

the respondents’ activity arose from nothing other than a continued drive for greater industrial power.

The next paragraph a reference to “the deliberate nature of the respondents’ conduct”, so this is not a case simply of, for instance, a union official mistaking their actual authority and acting pursuant to a parent authority and thereby, as a result of the operation of the statute exposing the Union itself to the commission of a contravention. This is a very different fact situation that her Honour is adverting to.

Your Honours will see in paragraph 113, the second line of that paragraph, there is a reference to “the CFMEU (and its officer, Mr Myles)” deciding – that is each of them – to engage in the conduct. Then your Honours will see on appeal book, page 95, in paragraph 135 at about line 15 on the page – so about five lines from the bottom of paragraph 135:

The behaviour proven against both respondents in this case seems to be a speciality of the CFMEU.

Then if your Honours go to appeal book, page 97, in paragraph 140, so the first three lines on that page:

the only available inference is that there is a conscious and deliberate strategy employed by the CFMEU and its officers to engage in disruptive, threatening and abusive behaviour –

et cetera. Then, the next paragraph, the second sentence:

Indeed, the individuals involved are often part of the CFMEU hierarchy, as is the case with Mr Myles.

He was, I think, a vice president of the division of the first respondent. Then her Honour said:

Rather, the evidence suggests this ongoing behaviour is tolerated, facilitated and encouraged by all levels of the organisation.

So that is a finding that the first respondent conferred actual authority upon the second respondent to engage in the behaviour, and clearly enough her Honour considered it a joint and deliberate endeavour. Then your Honours will see in paragraph 142, again four lines from the bottom of that paragraph:

Rather it seems to me to be part of a deliberate and calculated strategy by the CFMEU to engage in whatever action, and make whatever threats, it wishes, without regard to the law –

Then there are important findings at the top of appeal book page 100 – this is in paragraph 155 where her Honour makes reference to the “respondents’ attitude”. This is both respondents, not simply the second respondent whose actions bind the Union, but the:

respondents’ attitude that the end justifies the means, makes the contraventions very serious because of the respondents’ deliberate disregard for the law.

Then you will see an important finding at the end of that paragraph, which is made with respect to each of the respondents:

That conduct itself has an aspect of the respondents thumbing their noses at the system, including at the courts.

Now, we do not say that is a necessary finding here to justify the order because we say it would have been justified by reference to the need for specific and general deterrence but we do say it is an additional ingredient which courts customarily are jealous to protect themselves against that level of defiance.

Then, your Honours will see appeal book page 101, paragraph 160, her Honour was concerned, in particular, with the sense of impunity shown by Mr Myles which she described as “particularly concerning”. So that is a clarion call for the need for some special deterrence with respect to him and her Honour had earlier identified that this was the fifth occasion in a number of years when he had engaged in coercive conduct of the kind in question, not just contraventions of other provisions of the Act but the making of threats with an intention to coerce.

Then, your Honours will see at the very bottom of page 107 and over the top at page 108 her Honour refers to “a contumelious disregard for the law” and then their respective histories of contraventions confirm that characterisation. In that sense, there are some parallels with the conduct under consideration by the Full Court in the Australian Building Case.

Now, that is a reference back to a case dealt with by the primary judge at paragraph 182 and that was a case which concerned deliberate defiance of the law and of the courts. So, her Honour is, as it were, identifying some extraordinarily relevant conduct so far as the Court is concerned when it comes to consider what appropriate orders ought be made under section 545. Then, your Honours will see on page 109 about fifth line from the top, this is in paragraph 190, fourth line:

While there was no direct evidence of whether the CFMEU would or intended to pay any penalty imposed on Mr Myles, I am satisfied on the balance of probabilities that will occur if orders of the kind sought by the applicant are not made.

Then, at the end of that same paragraph her Honour noted that Mr Myles:

was not concerned about the possibility of bearing personal financial responsibility for the consequences.

Now, having, as it were, traversed those particular findings which we say are the prism or form part of the prism through which the question of construction should be analysed, could I come to her Honour’s treatment of the need for specific and general deterrence and before doing that can I just ask your Honours to note that in the respondents’ submissions – their written submissions at paragraph 52, they submit that the primary judge did not seek to justify her orders by reference to the need for effective deterrence.

So, could I just, at this point, then ask your Honours to go to appeal book page 101 and I took your Honour to the last sentence of paragraph 60 on this question of deterrence - can I ask your Honours to note the second-last sentence in paragraph 160 concerning:

a particular need for considerations of general, and most importantly, specific deterrence –

Then, if your Honours go to appeal book page 108 and if your Honours go to paragraphs 189 and 190, your Honours will see the last two lines of paragraph 189 and the first three lines of paragraph 190 deal specifically with this topic. Then there is express reference to the point which Justice Nettle raised earlier in paragraph 191 - I think your Honour the Chief Justice also raised that point - the first sentence which deals with not only achievement of deterrence against Mr Myles but also in relation to the Union.

Then importantly, if your Honours turn the page to 110 at the appeal book and go down to the bottom of the page to paragraph 196, your Honours will see the whole of the first sentence there, so her Honour is basically saying that attainment of real deterrence will not be possible here unless a non-indemnification order is made and then your Honours will see the finding at the end of that paragraph concerning the, in effect, shared understanding of the respondents which treated pecuniary penalties as a cost of doing business which your Honour said was the prism through which payment of penalties is seen.

GORDON J: Do you accept that paragraph 196, where her Honour sets out after the considerations of deterrence, in effect the other three matters, is a relevant summary of where her Honour ultimately reached? At paragraph 196, page 110, her Honour deals with the need:

to give any real effect to the principles of specific deterrence –

and then her Honour goes on and explains the three factors which in effect informed that view. Do you accept that is an accurate summary?

MR HOWE: It is. We think there are other factors as well and of course the Court need not concern itself with whether or not the particular factors identified by the primary judge were actually made out on, or supported by the evidence. That will be an issue that the Full Court will determine, if the appeal is allowed on the question of power but the particular ingredients, as it were, and the availability of them, is not so much to the point. It is her Honour’s ultimate finding with respect to the need for deterrence which we say sheds light on the question as to existence of power or not.

GORDON J: But that it is what her Honour says in the second line. She says:

to give any real effect to the principles of specific deterrence –

So, it is explaining why the order is necessary, why it is appropriate.

MR HOWE: That is right, that is right. We think as well that her Honour had regard to other factors such as how longstanding the joint enterprise was between the CFMEU and its officials and the history of particular contraventions and so on.

GORDON J: But is not that what her Honour sets out at paragraph 196? They are the three things her Honour is referring to.

KIEFEL CJ: I think her Honour described these three matters as consistent themes in her reasons.

MR HOWE: Yes. We would just shy from them being an exhaustive encapsulation of the multifactorial elements that fed into her Honour’s ultimate conclusions and your Honours will see, for instance, in paragraph 198, she identifies perhaps a slightly different or nuanced element:

that the CFMEU is willing to pay the penalties of its individual officers can only suggest ongoing condonation of their unlawful conduct.

Then finally, if your Honours could turn to page 112, the last three lines of the paragraph at the top of that page:

The order is made against a party to the proceeding and is made expressly to serve the purposes of specific and general deterrence, which have central roles to play in regulatory schemes.

Those three lines could be regarded as an ultimate encapsulation of the point at which her Honour arrived, having regard to the individual aspects of her Honour’s reasoning.

GAGELER J: Do those three lines also capture what is sufficient to make the order appropriate within the terms of the statute or is there more to it?

MR HOWE: No. In respect of these two respondents, we submit that those three lines were sufficient because, absent a non-indemnification order, her Honour had found that the objectives of the statutory regime and specific and general deterrence would not be achieved, would not be fulfilled.

Her Honour was, in effect, saying that when the legislature conferred the power in section 545, and of course the power conferred also on the court by section 23, it cannot have been intended that the court would be left powerless to deal with aberrant behaviour which not only amounted to deliberate contraventions but then treated pecuniary penalties as a cost of doing business. We say that on ordinary principles those last three lines would, in the circumstances, be sufficient to permit the exercise of power on the basis that it was appropriate to do so.

GAGELER J: Before we got to those last three lines, you took us to a lot of particular findings of fact made by her Honour. Were you also telling us that they would be up for grabs if the matter goes back to the Full Court to determine ground 2 of the appeal?

MR HOWE: At least many of them will because I think there is an overarching ground of challenge – it might be in the notice of appeal grounds to be to the effect that her Honour wrongly concluded that it was reasonably necessary to impose the non-indemnification order in order to achieve specific and general deterrence. So that seems to be a grab bag that may permit the respondents to, as it were, challenge various aspects of the findings that I have taken the Court through and which supported the arrival point set out by her Honour in that last paragraph .

That is why we say that we are here concerned not with whether this particular order ultimately was appropriate because the Court should, in effect, consider that question here by reference to the findings which the primary judge has made and which at this point are not disturbed and they were not doubted, let alone contradicted by anything said in the Full Court. It is just that they have not been the subject of consideration yet by the Full Court.

So if the Court accepts our submission that power exists but only preconditioned upon a proper satisfaction by the primary judge as to the appropriateness of the order, then the necessary outcome is remittal back to the Federal Court for the respondents’ allegations of defects in her Honour’s reasoning to be adjudicated by the Full Court in due course.

NETTLE J: Was this course of deciding only one ground by consent or was it of the court’s own motion to choose to leave the other grounds out?

MR HOWE: I think the latter, your Honour.

NETTLE J: It was fully argued below, just not decided fully.

MR HOWE: Yes, your Honour, that is right. Could I come now to some important aspects of context? I would indicate upfront that so far as paragraph 8 of the oral outline is concerned I propose to simply rely upon our written submissions and that will give me sufficient time to complete the oral submissions concerning paragraphs 5(b), (c) and 6 and 7.

Now, in relation to the proper construction of section 545, I do not propose to say anything more in relation to text-based considerations. I have taken your Honour through the provisions, but there are some important aspects of context which fall for consideration and which were not adverted to at all by any of the members of the Full Court, and the first aspect of context is that when the power in section 545 was conferred on the Federal Court in 2009 when this Act was enacted, that conferral took place against the background of established jurisprudence with respect to the amplitude of two sets of powers, the implied powers which the Federal Court had, and secondly, the express statutory power in section 23.

Your Honours will know that with respect to implied powers there are various decisions of this Court to the effect that where an express power is conferred here, the imposition of a pecuniary penalty under section 546, even without section 545 or even without section 23, the Federal Court would have an implied power to ensure that the express power conferred by section 546 would be effectively exercised and if that warranted – if that made reasonably necessary the making of a non-indemnification order, then the court would have had a store of implied powers to draw upon to make ancillary and consequential orders in order to ensure the effective discharge of the jurisdictional power conferred on it by section 546.

We have given your Honours reference to a number of cases in our written submissions. A couple we would ask your Honours to have particular regard to are Pelechowski v Registrar, Court of Appeal (NSW) 198 CLR 435 – there is no need for your Honours to go to it, but your Honours will recall that there the exercise of implied power was found to be beyond what the District Court could do, but only because it went further than was reasonably necessary because it gave the applicant for the injunctive orders an unwarranted preferential treatment as against other creditors.

But the court did not deny that if the order had been appropriately crafted and reasonably adapted to what was necessary to effectively preserve the subject matter of the proceedings and allow the court’s powers to be properly exercised, then implied power would have been available.

The second case, again which your Honours need not go to, is PT Bayan Resources TBK v BCBC Singapore [2015] HCA 36; 258 CLR 1. Now, that concerned the inherent power of the West Australian Supreme Court but, with respect, the same principles generally apply in the case of implied powers.

Our short point, your Honours, is that given the existence – the pre-existence of implied power, if the making of a non-indemnification order was reasonably necessary, then there was implied power in the Federal Court to make the order such that when section 545 was enacted as a conferral of the power, it is improbable, if not wholly strange, that the legislature intended to exclude from the ambit of that power a similar analogical kind of power directed to the preservation of the integrity of the expressly conferred power.

We say the same is true when one has regard to section 23 and your Honours know that it uses language which is significantly similar because a conferral of power to make dispositive orders is expressed or constrained only by reference to judicial satisfaction as to appropriateness, and we say that the jurisprudence – the established jurisprudence which was in place when section 545 was enacted, indicated that courts take a very wide, broad approach to section 23.

Could we just give your Honours reference to one case only - Patrick Stevedores v Maritime Union of Australia No 3 [1998] HCA 30; (1998) 195 CLR 1. I will not ask your Honours to go to particular paragraphs but there is the plurality judgment at paragraph 35 which we would ask your Honours to have regard to in due course and also the observations of her Honour Justice Gaudron at paragraph 127 in that case.

There are other cases which we have set out in our written authorities such as Cardile and Jackson v Sterling Industries and so on. Of course, section 23 does support the making of orders against non-parties but that is not an issue which we say arises here.

We readily accept, of course, that dispositive powers such as those conferred by section 23 and by section 545 are limited by purpose. There is no doubt about that, but her Honour did not stray beyond a purposeful approach. Her Honour referred to the agreed penalties. This case in this High Court which was handed down following the earlier case of Barbaro, that is Director, Fair Work Building Industry Inspectorate [2015] HCA 46; (2015) 258 CLR 482, and your Honours will remember that all seven members of this Court in that case accepted that the primary, if not the whole purpose of civil penalty and civil remedy regimes was to attempt to put a price on contravention that is sufficiently high, and we would say effective, to deter repetition by the contravener and by others who might be tempted to contravene the Act.

Now, her Honour had regard to that purpose. She did not stray beyond proper regard to purpose and, we say, that the limitation on these sort of powers which derives from purpose do not warrant a finding such as that arrived by the Full Court here as to the complete absence of any power. Indeed, we say, the purpose of the conferral of the power supports the existence of the power to make a non-indemnification order.

The next contextual matter that we would ask your Honours to go to which, in our submission, again supports a very broad reading and, again, it was not adverted to at all by any member of the Full Court is, of course, that here the context is the conferral of power upon a court rather than an executive official. That has been regarded in a long line of cases in this Court as being of real significance to the question of construction and there are a number of reasons for that.

The first and main reason is that this Court has found that statutory provisions conferring powers on courts should be construed broadly and this Court has said it is inappropriate to interpret such provisions by imposing limitations which are not found in the expressed words of the conferring provision. Now, that is often referred to as the Shin Kobe Maru principle of construction derived from a decision of this Court in The Owners of Shin Kobe Maru v Empire Shipping Co Inc. I will not ask your Honours to go to it but the reference is (1994) 181 CLR 404. There are resounding statements in a number of other cases, in particular, the passage at page 421 in that report.

But in subsequent cases one can find quite a large number of resounding endorsements of that proposition together with three closely related propositions which tie into it. I will list the three propositions and then take your Honours to two cases only which I will ask your Honours to go to. The three propositions closely tied to the Shin Kobe Maru proposition are these. First, possible abuses of court power go to the validity of the individual exercise of the power in the particular case, not to the existence or otherwise of the power in question. That is a general principle. Chief Justice Gleeson referred to it in Forge’s Case by saying:

Possible abuse of power is rarely a convincing reason for denying its existence.

That is Forge v ASIC [2006] HCA 44; (2006) 228 CLR 45 at page 69, paragraph 46. That is the first principle. The second closely related principle is that difficulties locating the outer boundary of a broad power conferred upon a court should be resolved by reference to the facts and circumstances of the individual case understood in the light of accepted principle, not by resort to broad, formulaic negative propositions such as this power does not allow and can never allow orders X, Y, Z.

The third broadly related principle is that the conferral of a power on a court is not to be narrowed by reference to what has been called extreme examples and distorting possibilities, a number of which did occupy their Honours who comprised the Full Court below. What about if a spouse wants to make a gift of the sum of money to cover the pecuniary penalty? Can a spouse be the subject of a non-indemnification order? What if the individual union official wants to borrow from a bank which was not involved at all, presumably, in the underlying contravention? Could a non-indemnification order be made against the bank? And so on.

We think that those kinds of scenarios are capable of fairly ready answers in most cases but it may be that in particular cases there will be some uncertainty as to the outer reaches of a conferral of power by reference to particular positive examples, but we say that, in accordance with principles developed by reference to the Shin Kobe Maru proposition, that does not ordain against the existence of the power to make a particular order.

The two cases I would ask your Honours to go to are, firstly, Knight v F.P. Special Assets Ltd. (1992) 174 CLR 178. This is a case which concerned the width of a power conferred upon a court to order costs and there was no express extension of the power to deal with third parties and the issue arose as to whether the conferral of power on the court would extend to that.

There are three passages I would ask your Honours to turn to. Firstly, on page 185 in the joint judgment of Chief Justice Mason and Justice Deane, and your Honours will see the heading in the middle of that page, in a sentence commencing four lines into that paragraph, “The jurisdiction and the discretion”, right down to the bottom of the page, we would ask your Honours to have regard to all of what is said therein. It is a passage of some 10 or 15 lines, pregnant with relevant principles, none of which commended themselves to any of the members of the Full Court below.

The next passage we would ask your Honours to go to is in the judgment of his Honour Justice Dawson, if your Honours could turn to page 203. On that page, again four lines from the top, your Honours will see a sentence commencing “True it is that in general”, et cetera. So that sentence and the sentence following it. Then if your Honours go to about point 4 on the page, your Honours will see a line commencing “the proceedings”. It is the two sentences following that. The two sentences commence:

The circumstances in which it would be appropriate to award costs –

Et cetera.

GAGELER J: What are you getting out of these passages?

MR HOWE: Just the broad amplitude of the conferral of power and the fact that it should not be confined by reference to unstated limitations.

GAGELER J: Could I, Mr Howe, perhaps attempt to encapsulate what I think is the ambit of your argument about the scope of section 545(1). You are at pains to point out that the Union and Mr Myles both answered the description of a person who has contravened a civil remedy provision. In those circumstances, are you simply saying that an order that one contravener not indemnify another contravener is appropriate within the meaning of the section if the court considers that in all the circumstances such an order is appropriate to achieve the objects of specific and general deterrence.

MR HOWE: Precisely so.

GAGELER J: Are you going any wider than that?

MR HOWE: No, your Honour. Your Honour, the third and final passage in Knight’s Case - and with respect on further reflection, I do believe that the matters I took your Honours to in the judgment of Justice Dawson do not feed into these related principles; I apologise for that. The passage I intended to take your Honours to is to be found at page 205 in the judgment of Justice Gaudron and again it consists of the whole of her Honour’s reasons for judgment apart from the first sentence.

Again, it is an extraordinarily dense encapsulation of a number of relevant principles and I can tell your Honours that the whole of that part of her Honour’s judgment, which is 99 per cent of it, was referred to with approval by five members of this Court in Mansfield v Director of Public Prosecutions for Western Australia [2006] HCA 38; (2006) 226 CLR 486. Again, those are important principles of construction. We emphasise they simply were not referred to by their Honours. The next case, and it is the last one that I will take your Honours specifically to, is PT Bayan – and it is a fairly recent case - [2015] HCA 36; (2015) 258 CLR 1 and this case concerned inherent power and involved an affirmation of the reasoning in Jackson v Sterling and Patrick Stevedores to which I have made reference.

It concerned whether a freezing order in relation to a prospective foreign judgment might be within the inherent power of the Supreme Court of Western Australia and there were seven members of the Court who produced two judgments. Could I take your Honours firstly to passages appearing in the joint judgment of their Honours Chief Justice French and Justices Kiefel, as your Honour then was, Bell, Gageler and Gordon at page 18 and in particular paragraph 42 and paragraph 43.

So that works against the need for any exhaustive exposition of the outer reaches of the power. Then, on page 20, your Honours will see at paragraph 50, and in particular over the page on page 21, especially the last six lines:

The criteria . . . of the Supreme Court Rules are appropriately tailored to the exercise of that inherent power. Such issues of principle or degree as might arise in the working out of those criteria go to the exercise of that inherent power, not to its existence.

In the joint judgment of your Honours Justices Keane and Nettle, could I ask your Honours to go to page 27 and paragraph 76, and really paragraph 77 and 78 as well, if your Honours could note those; in particular the first eight lines or so of paragraph 76 deal with some of the related or analogical principles to Shin Kobe Maru.

Your Honours, that, in effect, concludes, in view of the time, what we proposed to put to the Court in relation to matters by way of supplementation or emphasis. With respect to what we say in our written submissions, your Honours will see paragraph 8 of the outline. We deal in very short compass with various matters relied upon by the respondents in favour of non-existence of power. They really are exhaustively dealt with in our written submissions in-chief and in our written submissions in reply, and so I will not deal with them in any detail at all, save perhaps in relation to the respondents’ reliance upon the principle of legality, and I will only take two minutes.

Your Honours will recall that Chief Justice Allsop resorted to the principle of legality in favour of what he discerned to be a need for clear and unmistakable language authorising specifically the making of a non-indemnification order. We say in that respect his Honour erred. We say that there are a number of decisions, including of this Court, to the effect that the principle of legality has little, if any, operation in the context of a broad conferral of power upon a court in circumstances where the legislature has chosen to precondition the exercise of the power upon the exercise of discretion such as whether an order is appropriate or not, because all of the concerns that underpin the legality principle are addressed by the requirement on the part of a court to act judicially, to give the parties procedural fairness, to act on only the basis of probative admissible evidence and, according to your Honour Justice Gageler in Weinstock’s Case, to act always on the basis that they ought not make orders which would occasion substantial injustice and the like.

When one has regard to those normal limiting principles, they truly do address the underlying matters that have generated the principle of legality which we say applies, particularly to the two other arms of government, the legislature and the Executive. There are just two particular cases we would ask your Honours to have regard to. Firstly, Lee v NSW Crime Commission [2013] HCA 39; (2013) 251 CLR 196 and in particular in the judgment of Chief Justice French at paragraph 56 in that case which is to be found at page 230. Similarly, PMT Partners Pty Ltd v Australian National Parks and Wildlife Service [1995] HCA 36; (1995) 184 CLR 301 in the joint judgment of Justices Toohey and Gummow, in particular, at page 316 where their Honours indicated that the principle of legality would apply with less vigour, if at all, in respect of conferral of powers upon a court.

We also ask rhetorically in relation to the principle of legality how it applies here in circumstances where the Court is confronted with serial, longstanding, deliberate joint endeavour directed to illegality – the attainment of illegality and the Court is searching for an antidote to that. It is a very odd application of the illegality principle that would deny the power of a court to deal with illegality.

We say that for those reasons his Honour was distracted from the essential task which was to interpret a relevant provision in line with the customary principles of interpretation to which I have taken your Honour. May it please, those are the appellant’s submissions.

KIEFEL CJ: Thank you, Mr Howe. Yes, Ms Doyle.

MS DOYLE: If the Court pleases. The respondents’ oral outline is making its way to the Court and to my learned friends. While it is doing so, can I address matters that arose this morning that are best done by taking out sections 545 and 546 again because those questions which have been raised this morning, particularly by your Honour Justice Gageler, are best addressed by having those sections in front of us and I will then move to the matters that are traversed in the outline.

One of the questions asked of my friend this morning pertained to section 545(1) and, in effect, the question was whether the reference in that section to a person was a reference to – which person it was a reference to. Can I answer it in this way? We would accept that an order under section 545(1) may be made against someone other than a contravener but we doubt, and there is no authority to support the proposition, that it could ever be made against someone who was not a party to the proceeding.

I submit that based on first principles but also on the scope of their Honour’s reasons in the Patrick Stevedores Case where your Honours might recall the principal contravener was the employer. There were a number of other parties to that proceeding, both at first instance and as it wound its way up to this Court, and at a couple of points in their Honour’s reasons the passages that have been cited equally by my friend and in our own written submissions, it is clear that the plurality and Justice Gaudron stopped short of finally determining the question whether it would ever be possible to make such a suite of orders against non-parties because it was not necessary to be traversed in that case where each of the relevant parties, the administrator, related corporate entities, et cetera, were parties to the proceeding.

But the next question that was posed this morning pertains to section 545(2)(a) and my friend was asked what the terminology “a contravention”, where found in that subsection, refers to. In our submission, there can be nothing surer than that that is a reference to the contravention or contraventions which have been proven to the Court’s satisfaction, picking up the language in 545(1), in the proceedings at hand or proceedings in issue.

There is a phrase that was skipped over a little this morning in 545(2)(a) and it is worth going to – “effects of a contravention”. I pause here to emphasise that the effects of the contravention found by her Honour the trial judge here are the disruption to a building site, most particularly of a concrete pour.

While her Honour in several passages – and my learned friend has taken you to many of them – referred to a number of other matters that clearly troubled her Honour with respect to other proceedings, other union officials, other cases before the Court and the like, the effects of this contravention, the one proven to the Court’s satisfaction on the basis of a statement of agreed facts, is the one identified elsewhere in her Honour’s reasons in much less colourful language - namely, to attendances at the site, a threat that was uttered and the disruption for a period of hours, by dint of a blockade, to a concrete pour.

I emphasise that because when the Court is turning its mind as a trial judge fashioning orders to the requirements of section 545(2)(a), what her Honour was obliged to do was consider an order of the kinds mentioned there, which would:

prevent, stop or remedy the effects of a contravention -

The Court cannot, in our submission, find proven a contravention - and then I move to my more specific language, namely, “the contravention” – at issue in the proceedings - the Court cannot find it proven as against X or X and his employer, as is the case here with respect to Mr Myles, and then use that as a springboard to (a) punish for past wrongs – that would offend all manner of sentencing principles – and (b) fashion orders which the Court regards as more likely to be capable of rendering future other, as yet unalleged, unproven contraventions likely to occur.

That is something different from deterrence. Specific deterrence is subjective, personal. The Court can assume or predict or expect or hope that a particular penalty fixed at a particular tariff will operate on the mind of a contravener but it never knows whether it does or will.

KIEFEL CJ: Ms Doyle, does it matter for the purposes of construing section 545(2)(a) that (2)(b) refers to “the contravention” in the context of compensation?

MS DOYLE: Yes, it must matter in the sense that it is curious that one would slip or move from “a contravention” to “the contravention” but it is more obvious with respect to the awarding of compensation that one would not be at large. You would only compensate somebody - - -

KIEFEL CJ: Stronger connection.

MS DOYLE: You would only compensate the victim with respect to loss they had suffered, which here would be if it had been proven that the disruption to the concrete floor had sounded in its commercial outcome. With respect to (2)(a), I am not ignoring either the word “prevent” but of course it is that sort of language that would - the MUA Court was concerned with the statutory predecessor, 298U, and it is not entirely the same but it is very similar - that would of course empower the Court on an interlocutory injunction basis to take steps or make orders to prevent, stop or remedy the effects of a contravention.

We, nevertheless, submit it must be one that is at least alleged if it be on the occasion of seeking interlocutory relief or proven if it were found if it be on the occasion of granting final relief. That is an important distinction here because, with respect, it is not clear from our appellant’s written submissions - and I confessed to still being unclear in my own mind whether or not the appellants submit that section 23 provides a freestanding source of power to make the order her Honour made or, alternatively, whether it is something different from that that the appellants contend, namely, the jurisprudence with respect to section 23 is useful because it is strikingly similar terminology and that one can then inject that learning into the scope of the word “appropriate” where found in 545.

GORDON J: What do you say we do with 564?

MS DOYLE: There can be no doubt that any power that existed in the court, conferred on the court by section 23 still exists and cannot have been cut down by 545. But my friends in their written submissions appear on the one hand to simply be drawing on section 23 as an analogue but then in their oral submissions to suggest that they appeared at one stage to go so far as to suggest that had section 545 not been enacted her Honour would have still had all the powers that were conferred by section 23 and it seemed to be implied they would have included power to make order 13.

We say either path fails. Whether it be just by confining one’s attention to section 23 as a source of freestanding power or construing 545 by means including having regard to the wealth of jurisprudence on section 23, neither of those paths will lead to a conclusion that the court has the power contended for. To borrow the language of the section 23 cases, none of them will drive one to the conclusion that this order, order 13, was necessary to render effective the exercise of the court’s jurisdiction.

In short point, the reason we submit that is the relevant exercise of the court’s jurisdiction here was to impose a fine. The nature of a fine is a requirement that money be paid into Consolidated Revenue and the court has an armoury that enables it to ensure the effective exercise of that jurisdiction. It is the court’s contempt powers.

KEANE J: That is not quite actually what 546 says. It says – sorry - - -

MS DOYLE: Section 546, your Honour, or 564?

KEANE J: No, 546 which says:

The Federal Court . . . may, on application, order a person to pay a pecuniary penalty –

So that it is not an order that money be paid into Consolidated Revenue, it is an order that a person pay. So here we have an order that CFMEU pay a certain amount and Mr Myles pay a certain amount and insofar as the ancillary order says you must pay what you must pay, that does seem to be associated with the orders that the section contemplates.

MS DOYLE: Yes. This is another point of distinction between us and the appellants. While her Honour purported to rely on section 545(1) to make the order, it is very clear from her Honour’s reasons and her Honour’s statement of her purpose in making the order, that her Honour regarded it as designed to make the penalty imposed under 546(1) more successful.

Now, I emphasise the word “successful” – that is my language, not her Honour’s – but we are at pains to submit in our papers that there is a difference between something that is necessary to render effective the exercise of the court’s jurisdiction and an order that a judge regards as being more successful with respect to the purpose of deterrence.

Now, the purpose of any penalty imposed under section 546 we do not dispute, your Honour, is general specific deterrence. The agreed penalties case tells us so and the language that your Honour has just emphasised in 546(1) does nothing to detract from that. It is an order that a person pay a penalty, and the - - -

KEANE J: So why is not an order that says you will pay the penalty and no one else, why is that not in fact the effect of the order under 546?

MS DOYLE: I need to answer that in two ways. First of all, that is not the order her Honour made. Her Honour made an order ostensibly designed to ensure that Mr Myles felt the sting of this penalty but, on its face, overtly directed to his employer, restraining it from dealing with its funds, assets and property in a manner that is perfectly lawful. The second thing I need to say so that this - - -

KIEFEL CJ: Well, at the least that is not in issue.

MS DOYLE: That is not in issue. The second thing I must say so it is not lost is that your Honour’s language now very much echoes the language of an order made by Justice Flick at first instance in the Bragdon proceeding, which travelled to the Full Court and that order did not survive and the Full Court in Bragdon expressed reservations about the extent of the power of the court to make an order in that form. To simplify the language, his Honour Justice Flick made an order to the effect that the union official in that case paid the penalty himself and not seek contribution from anyone else.

KIEFEL CJ: But that would probably exceed power because it would put the person on pain of contempt of court if they were unable to raise funds, but that is a different - - -

MS DOYLE: That could be one reason.

KIEFEL CJ: Her Honour was at pains to ensure that that did not occur in this case.

MS DOYLE: To be frank, that form of order not having survived the Full Court, but I must emphasise Justice Flick’s order fell for another reason but the Full Court expressed a number of reservations about the extent of power. In fact, the Full Court pointed to matters including the following. Their Honours doubted that the court could or should ever be involved in interrogation and supervision of such matters and, secondly, in reliance on the High Court’s decision in Lamb, noted that even though one might suspect, perhaps even with a heavy heart, that deterrence would be less successful if a contravener were able to raise the funds from its employer or from anybody else, it did not signify that deterrence had failed if an order of the type crafted by Justice Flick were not made because, for example, in Lamb where exemplary damages were awarded, the disappointed party said, but they have insurance and it will not operate as a sting with respect to them and there the High Court said, well, it does, the order nevertheless serves to mark the court’s condemnation of the conduct or, in that case, the exemplary damages still must be paid and on pain of contempt.

In Bragdon, the Full Court emphasised that it was the official, in this case, Mr Myles, who will suffer the proceeding and the outcome of any contempt proceeding if it not be paid. Even if one feels very confident it will be paid, and in this case her Honour suspected by his employer, the Full Court in Bragdon said that is not a reason to find that there is power, and there must be power in the court to make orders of the kind crafted by Justice Flick.

So, I could not answer your Honour Justice Keane’s question without noting that that path has been traversed. The Chief Justice and Justice Jessup do mention that in their reasons and the fact that her Honour the trial judge drew some comfort from what her Honour regarded as more ambivalent or described as more ambivalent remarks by the Full Court with respect to the breadth of the power, the Chief Justice and Justice Jessup doubted that the remarks of the Full Court could be read as an endorsement of the breadth of the power; indeed, suggested it went the other way.

I was just completing an analysis of section 546 and I note also that another question that your Honour Justice Gageler asked this morning was whether my friends were confining themselves to a submission that an order that one contravener not indemnify another contravener is appropriate if the court is satisfied that the order will satisfy the purpose of deterrence.

Here, with respect, we seek to unpick that proposition a little on the topic of the purpose of deterrence and in that regard we first of all ask deterrence of whom because her Honour appeared, by dint of this order, to be seeking to deter both Mr Myles, in the classic sense, specific deterrence because he will feel the pain of having to raise the money himself, but also one can glean from, as I have said, the more colourful passages of her Honour’s reasons, that another purpose was apparently to deter - query, perhaps even additionally punish or warn the Union and its other officials with respect to any intention it may have in the future with respect to contravening the law and also one discerns in her Honour’s reasons with respect to future indemnifications.

We say it is clear from the form of the order but also the reasons that her Honour puts forward for crafting it that her Honour had in mind many varied ambitious purposes, including shouting down what her Honour called the business model. That takes me back to the submission I made a moment ago, which is just because the criterion of a contravention having been proven in a proceeding and satisfied, it does not provide the Federal Court with a springboard to make orders of the two kinds that we articulate in paragraphs 2a and 2b in our oral outline.

It does not give the Court power to make an order which prohibits a person, even a person who is a party to the proceeding, or even a co-contravener, from indemnifying another contravener with respect to a penalty, where to do so is to restrain that person from using their property and funds in a manner which is not unlawful.

GAGELER J: Ms Doyle, can I just ask this?

MS DOYLE: Yes.

GAGELER J: Do you accept that deterrence is a legitimate purpose or a permissible purpose for the making of an order under section 545(1)?

MS DOYLE: It is certainly a legitimate purpose with respect to the imposition of a penalty under 546. With respect to 545(1) it is, with this caveat - and I am going to borrow from the language of Chief Justice Allsop - just because something is relevant to deterrence does not render it appropriate within the meaning of the word “appropriate” properly construed in 545(1).

I do not dispute, for example, that her Honour’s order is relevant to deterrence but we do dispute that it is appropriate to be made in reliance on section 545(1), to run through the reasons without developing them at this stage because, one, one has to construe the word “appropriate” where it is found, and it is found in a section that operates on the basis of an essential precondition, that a contravention has been found and we are straight away catapulted into a civil penalty regime where one would not, in our submission, adopt a broad beneficial reading, one would construe it narrowly in light of the fact that the entire context is a civil penalty regime.

Two, we say the Chief Justice’s reasons in the court below do disclose an entirely appropriate application of and consideration of the principle of legality, most particularly its second limb, namely one would expect clear words before there was a departure from the general system of the law, to pick up the language of the cases that invoke the second limb of the legality principle.

His Honour put it in very simple terms. The Union is permitted to use its assets and to deploy them as it sees fit. Your Honour the Chief Justice has noted that is not in issue here. There are some cases referred to in our submissions where it has been in issue; it is not in issue here. In those circumstances, one would apply that principle while undertaking the process of construction in the orthodox way, context as I said, and there are other features that suggest one should read this carefully and cautiously.

That is not to ignore Shin Kobe principle. It is just our submission that the appellant’s construction goes too far and ignores the fact that that is one principle of construction which is to give way or must be at least read in conjunction with all other relevant principles of which the principle of legality is one.

Insofar as our friends – this is moving to point 10 in our oral outline which is to identify that part of the argument – gain comfort from the jurisprudence with respect to section 23 cases, we say that takes them nowhere because there is a difference between an order that is necessary to render effective the exercise of the court’s jurisdiction and an order of the type here which her Honour the trial judge hoped, expected or perhaps even correctly predicted, would render deterrence more successful. Those are different things; different standards apply to their consideration.

The other point we make – it is, if you like by way of analogy, but we are talking about a civil penalty regime and there is a great body of jurisprudence that is developed with respect to the application of sentencing principles or penalty-fixing principles in this arena, the agreed penalties case being only one such example, we note that courts do not traditionally inquire into source of funds.

Capacity to pay is a traditional well-known sentencing criterion, and a version of it appears in section 16C of the Crimes Act (Cth), but while the courts have – and particularly the criminal courts but also those imposing civil penalties, not just in the industrial arena but the competition arena and the consumer protection arena – have regard in an orthodox way to capacity to pay, the fact that a contravener may find it relatively easy to pay a fine, whether it be because there is a beneficiary or a patron standing in the wings or because they themselves are wealthy, has not ever been seen as an aggravating factor.

In that context, I will later take you to the comments of the Court of Appeal in the Hinch decision. One thing their Honours note there is that it could lead to perverse outcomes. Someone who will find it easy to pay, are they to be imprisoned instead? Then to pick up on a point that Justice Jessup has made, both in previous decisions and on the Full Court in this matter, his Honour in a previous decision as a single judge has described this question of source of funds as a previously undisturbed can of worms and, in our submission, the Hinch decision and other criminal cases point out why. It can lead indeed to perverse results and it is not something the court traditionally interrogates for very good reason.

GAGELER J: Ms Doyle, could I just see if I captured your submission?

MS DOYLE: Yes.

GAGELER J: You accept that a court can make an order under section 545(1) for the purpose of deterring, but you say, as I understand you, that it cannot make an order under section 545(1) for the purpose of making the deterrent effect of an order under section 546 more successful.

MS DOYLE: Yes, severe or successful, they are two sides of the same coin, yes.

NETTLE J: That is because why?

MS DOYLE: Because, stepping back, the word “appropriate” must mean something, it must be given some work to do. We accept the Chief Justice’s characterisation in the court below that it means something more than merely relevant to either a contravention or purpose of deterrence. It must be something more than that.

We embrace also his Honour’s approach to this extent. One would expect to find clear words empowering this sort of – the court to make this sort of order for a number of reasons, one of which is the application of the principle of legality. Another I have not come to yet and that is that this Parliament, when it has for policy reasons taken the view that forms of indemnification ought not be permitted, has said so.

GORDON J: They have always said so in the most broad terms. In other words in all cases is not the argument here that not having, in effect, provided such a broad exclusion that one leaves open the possibility that where it is necessary for the effective exercise of the court’s power to impose a penalty that it arises?

MS DOYLE: Taking that in two parts, first, your Honour, yes, we accept and we cannot dispute that where it has been said explicitly it has been done in quite a different way, it has been done to use - - -

GORDON J: And without exception.

MS DOYLE: Yes, to say that in all cases of the following kind - and those kinds are then described - it is unlawful to and any such indemnification will be void. But to take your Honour’s second point, if what 545(1) then does is reserve to the Court the power to make such an order in only the appropriate case, we are, in a sense, back where we started but the appropriate case will be one where it is necessary to ensure the effective exercise of the court’s jurisdiction.

Here, we are very much at odds with our friends over what is the relevant exercise of the court’s jurisdiction and what renders it effective. The exercise is the imposition of a penalty on Mr Myles. If it is not paid, he is liable to contempt proceedings and all that flows from that. The question of who pays it, who pays the penalty imposed, says nothing about the effects of the contravention which were disruption to a concrete pour and a builder who was frustrated on the day in question.

NETTLE J: Not to mention the damage.

MS DOYLE: Yes, and it says nothing about whether or not the court’s jurisdiction to impose a penalty has been effective. It has been effective. The penalty has been imposed. The proceedings are concluded. The penalty must be paid and absent this order - - -

KEANE J: You keep pacifying the thing. The language is “he must pay”. It is not “it must be paid”. It is “he must pay”. That is the order made pursuant to the terms of section 546 and in this case the orders that were made were that one party should pay a certain amount and another party should pay a different amount. This order, the non-indemnification order, serves to ensure that those orders are actually carried out in their terms, not worrying about how will it operate by way of deterrent effect but just will occur in accordance with their terms.

MS DOYLE: There are two difficulties with that, your Honour. The first is that in any criminal court around the land when a fine is imposed slightly different language might be used by any magistrate or judge. Sometimes they will use passive language: a fine will be imposed in the following amount. At other times they may say, “Mr So-and-So, you will pay”.

KEANE J: That may be because, in some cases, the statute is indifferent as to who pays. It may be that in such cases it is sufficient, in terms of the language of the statute, that money be paid into Consolidated Revenue, but here the actual language of 546 contemplates an order that a nominated person pay.

MS DOYLE: The other difficulty, your Honour, though, is that order 13 – and her Honour the trial judge recognised this – does not prevent Mr Myles seeking a contribution or complete payment from any source other than the Union, his employer. It is not effective to do so. It appears that her Honour accepted, and Justice Jessup certainly would, that the court would find it impossible to supervise that, in fact, and Justice Jessup would go further and say should not.

GORDON J: Is that not why, though – just to pick up Justice Keane’s point – the three orders sit together? You have the orders for the requirement of the payment of the penalty by the Union, you have the order for the requirement of the payment of the penalty by Mr Myles and, in a sense, you have the restraint on the Union from stepping in. So one does not have any of the problems of enforcement - one has no problems of enforcement because the only one who is restrained is the Union from taking a step which is identified.

MS DOYLE: Our response to that is to submit that the word “appropriate” must have some work to do and that it does not go so far as to embrace any suite of orders or form of order that a trial judge can devise which a trial judge hopes or can confidently predict will serve to make deterrence more successful. Something more than that is injected by the inclusion of the word “appropriate”. Insofar as our friends rely on the section 23 jurisprudence, it is a higher hurdle than that. The hurdle is that the order is of a kind necessary to render the exercise of the jurisdiction effective.

In some cases that provide examples that have been shared with the Court it is prospective in the sense that in the MUA Case there was a need to do something as basic as protect the subject matter of the litigation. The High Court accepted that, if Justice North’s orders were not made, the final relief sought – namely, reinstatement of the employees – would probably be rendered nugatory because there would be no business to which they could be reinstated.

Nevertheless, the prism through which it was analysed - bearing in mind there that what was in issue was the Workplace Relations Act and a common law tort, the tort of conspiracy – the prism through which both of those were analysed was, was this set of orders necessary to ensure the effective exercise of the court’s jurisdiction when it came to the time of ordering final relief?

The other cases are different examples, and often it arises in the context of adventurous orders made in order to secure an asset or part of an asset with respect to execution, and sometimes the orders have been found to fall on the wrong side of the line. The reason, in our submission, is that the court on each occasion has carefully interrogated: are these orders necessary to ensure the effective exercise of the jurisdiction - not are they good, not would they be useful, not would they act as a very good carrot or stick - are they necessary in order to ensure the effective exercise of the jurisdiction?

While her Honour’s reasons betray an evident level of frustration with respect to what her Honour regarded as the failure in the past of deterrence of Mr Myles and the Union, in our submission those matters cannot be used to supply a gap that is not met by the standard we say applies, which is are the orders necessary to ensure the effective exercise of the jurisdiction, and in our submission they are not.

NETTLE J: The jurisdiction being under 546?

MS DOYLE: Yes, the imposition of a penalty.

NETTLE J: That, you say, is effective in terms once the order is pronounced?

MS DOYLE: Yes, because, with respect, her Honour the trial judge’s reasons tend to suggest, without saying so explicitly, that her Honour regarded the effective exercise of the jurisdiction being bringing a halt to the business model of these two contraveners which seems to generate a great deal of business coming before this Court.

Now, her Honour may well be aware of those matters, frustrated by them and entitled to recount them, but those are, with respect, just as Justice Jessup has said, matters of policy for the legislature. If the model is not working, it lies in the hands of the legislature to either inject provisions like section 199A of the Corporations Law or to inject an explicit power to make such orders on satisfaction of certain criteria, none of which we say can be discerned in the inclusion of the mere word “appropriate”, presumably borrowed from or included in the knowledge of the section 23 jurisprudence.

GAGELER J: Did her Honour purport to apply section 23?

MS DOYLE: Her Honour did refer to it and only in a couple of places. I will take your Honour to the passages. Sorry, your Honour, I will just turn up the right page - I was looking for paragraph 187 in her Honour’s reasons, which is at 107 of the appeal book. Her Honour having referred to the Australian Building Case – I will come back to that – we submit and, indeed, Justice Jessup has found that case – or remarked on appeal that case does not stand for the proposition her Honour suggests. Having referred to it, her Honour says:

There, the power of the Court could be traced either to s 31 of the Federal Court Act 1976 (Cth) or s 23 - - -

I pause to note – and I will need to develop this - in that decision their Honours do not refer to section 23. They refer to the rules of the court that then provided for contempt proceedings but I would now return to her Honour’s reasons:

The latter power is not excluded by s 545(1) of the Fair Work Act and may be available if, contrary to my opinion, s 545(1) did not authorise the making of such an order -

There are other references in passing but we take her Honour there at 187 to be saying “I have power under 545(1). If I be wrong about that, I take the view that section 23 would have furnished me with the power”. It does not appear to be revisited by her Honour to confirm that but we think that is a fair reading of her Honour’s language.

As I said at the outset it remains unclear, with respect, whether our friends strictly speaking take the same view as is evidenced in paragraph 187 or whether they rely on section 23 just as an aid to construction. In fairness, it may not matter because the submission they meet on our side of the Bar table is, we say, neither would get one there and that may be the reason why it may not matter ultimately.

NETTLE J: Can I just go back to this “appropriate” point.

MS DOYLE: Yes.

NETTLE J: In 545(1), you say it is not appropriate in the meaning of that section because it is not necessary to give efficacy to the order made under 546?

MS DOYLE: Yes.

NETTLE J: If one were not concerned with 546 but with something else, some other aspect, how would one then use the necessary analysis to say whether or not an order contemplated being made under 545(1) was appropriate?

MS DOYLE: If no penalty were in issue, your Honour?

NETTLE J: Yes.

MS DOYLE: One would - - -

NETTLE J: That is to say, to what end would it be necessary in that event?

MS DOYLE: Yes. The construction would still proceed on the following basis. The essential precondition, one would expect, has been satisfied. It has been found a person who undoubtedly has to be a party to the proceeding before the court has contravened or proposes to contravene a civil remedy provision. A judge would be informed by subsection (2) but of course, bearing in mind that it says “Without limiting subsection (1)”, so subsection (2) could provide some examples but turning to (2)(a) at least, an instructive example is, well, one which might:

prevent, stop or remedy the effects of a contravention -

Now, to use the MUA Case as a handy example, there the allegation was the direct employer of the stevedores has contravened the Act but there are other corporate players and others who may, both wittingly and unwittingly in the sense of the administrators, be about to do things that will mean the effects of this contravention ultimately will not be able to be remedied at the end of the day. So, a suite of orders is required to protect the subject matter of litigation, to protect the ongoing existence of the entity and the enterprise in which the stevedores were working.

The trial judge, putting penalty from their mind because it had not arisen at that stage and was not a question, would still need to ask itself well, is the suite of orders I am being asked to make necessary to ensure the effective exercise of the court’s jurisdiction. One would have to have regard to the pleadings, what is alleged - - -

NETTLE J: What is to prevent or punish a contravention, necessary to prevent or punish?

MS DOYLE: Yes, yes, and looking at the pleadings which no doubt would have been furnished even in early form to his Honour the trial judge in that proceeding, what is alleged, what final relief is sought – reinstatement. How can I reinstate the stevedores to a business that has fallen apart because of the things I have credible evidence are going to happen? I am not going to be able to remedy the effects of the contravention. I have jurisdiction to make orders for reinstatement but they will be rendered nugatory. These orders meet the test.

NETTLE J: If it is necessary to prevent or punish a contravention or perhaps to pay compensation for a contravention also, why is it not within the ambit of 545(1) to make an order giving better effect to an order made under 546 to punish?

MS DOYLE: That is perhaps another way of saying what their Honours in the Full Court said and that is: is it appropriate to make an order under 545(1), designed to render more severe the punishment imposed under 546.

NETTLE J: Not more severe; more effective. The severity remains the same – the dollars of the amount. That is the penalty, as you rightly point out, just to make it more effectively felt.

MS DOYLE: It may well, in the most general of terms, be likely to render deterrence of Mr Myles more successful. Her Honour said as much and one might expect that to be the case. But it remains our submission that our success with respect to a subjective criterion - has it operated in a way that makes Mr Myles feel pain and subjectively decide not to do it again - that is relevant to the question of what is appropriate but it is not sufficient.

KIEFEL CJ: It is the hallmark of deterrence, is it not?

MS DOYLE: It is.

KIEFEL CJ: That is how it operates.

MS DOYLE: That is the theory of deterrence. But the point I was trying to make inelegantly is there may be a gulf between theory and practice, and one does not ever know if it genuinely does subjectively operate on a contravener or a prospective contravener’s mind. But the theory assumes that it does and it will. So we must accept that making an order of that kind is relevant to deterrence. Our submission is that the word “appropriate” is the touchstone, though, not something as broad as “relevant to” or “in relation to”, another very traditional formula in Commonwealth legislation, which could equally have been employed but was not.

And insofar as there was a body of established jurisprudence with respect to this formulation the Court considers appropriate, it is found in the cases you have been taken to, with respect to section 23, and they operate very much on the basis that it is a higher hurdle than “in relation to”, that it means something and that the correct prism through which to see it is: is it necessary to render the exercise of the jurisdiction effective? Is it necessary to prevent abuse of the processes of the Court? Those are high hurdles indeed and that, in our submission, is the set of principles and cases to which one would have regard when casting around for an answer to Chief Justice Allsop’s question, which is: it cannot mean just “relevant to”, we need to inject meaning into the word “appropriate”.

KIEFEL CJ: When you say it is limited to render effective the exercise of the jurisdiction and you give us an example of that, an abuse of process, that is to deny the notion that one might be giving effect to the purpose of deterrence. You see that as standing apart from the effect of exercise of jurisdiction? It is all about the exercise of power, effective to its purpose, is it not?

MS DOYLE: Yes, deterrence is a purpose, if not the sole purpose, of the Court’s power to impose a penalty under section 546. We accept that. But the purpose, it has always been assumed and understood, is for fulfilled by dint of application of sentencing criteria to come to the right amount, the right amount requiring consideration of all of the orthodox criteria but also landing on an amount that the Court, furnished with that information, forms the view will be likely to be capable of providing specific and general deterrence.

That is the process the Court goes through. But just because the Court goes through that process, in our submission, does not elevate the purpose of deterrence to something that the Federal Court must be able to do in order to be able to exercise its jurisdiction. It can impose a fine and it does.

GAGELER J: One way of reading section 545(1) is that the word appropriate is linked to the contravention. So, it is such order as the Court considers appropriate being satisfied that the person has contravened. On that reading it is unlike section 23. It has got nothing to do with – well, nothing necessarily to do with jurisdiction.

MS DOYLE: That is possible, your Honour, and we have described the finding of the contravention or satisfaction of the contravention as a precondition but, nevertheless, in our submission, that necessary linkage does not uncouple it from the history of that jurisprudence. “Considers appropriate” is not an unfamiliar choice of words and it is also clear from the provision later in the same Act, section 564, that the legislature was alive to the fact that the two needed to operate together, so clearly alive to the powers conferred by section 23.

It does not undermine, in our submission, our point that the word “appropriate” must be given some work to do and even if it were confined in the manner that your Honour suggests linked to the contravention, it would still be necessary to pass it through the filter of what is necessary to ensure that this contravention is remedied rather than is it in the broadest of senses relevant to the contravention that was committed. There would still be a higher standard injected at that stage, in our submission.

NETTLE J: For example, would it be permissible, in your submission, under 545 to make an order that a penalty imposed under 546 be paid on terms?

MS DOYLE: It is our submission - I did note that it has not made its way into our submissions on the appeal but this featured more highly both at the appeal in the Full Court and on the special leave application. It is our submission that within section 546 is the power – resides the power in the Federal Court to make what we would call “facilitative orders”, namely, time to pay – permission to pay by dint of instalments and if it is not to be found there it could be found in section 23. Orders of that kind do nothing to increase the severity of the penalty imposed. They are truly facilitative in nature and they are directed towards ensuring the finding is paid.

If the contravener says, that is a large fine, I would need three months to pay it for reasons of hardship, in our submission, giving permission by a secondary order to pay in three instalments over three months, or whatever it may be, is the type of order one can readily see as being incidental to the power to impose the penalty itself.

NETTLE J: That you say comes out of 546, not 545?

MS DOYLE: Yes, out of 546.

GORDON J: Does that extend to conditional orders, that sometimes the Court makes, that X pays Z dollars but then, if it is not paid, another regime kicks in?

MS DOYLE: It may, if your Honour means orders of this kind. Is your Honour referring to partly suspended orders – for example, pay a fine of $2,000, pay $1,000 upfront and, if you are of good behaviour for another year, effectively the second $1,000 is moot?

GORDON J: It is a form of them.

MS DOYLE: Yes, it would extend to orders of that kind.

NETTLE J: That is 546, you say, again?

MS DOYLE: Yes. It would be incidental there too, in our submission.

NETTLE J: So in effect, in your submission, 546 is the sole repository of penal orders?

MS DOYLE: Yes.

NETTLE J: What is not there cannot be got elsewhere.

MS DOYLE: We say that in terms and we embrace their Honours reasons below that endorse that approach as well. Their Honours put it slightly differently. Their Honours used words as variations on the following theme: “Nothing in 545 can be used to render the effect of a penalty imposed by 546 more severe”.

GORDON J: If you put severity to one side and one looks at, for example, the order here that was made, it is not increasing severity, though, is it? There is no increase in the amount?

MS DOYLE: It is not increasing the amount; one has to accept that. I think it is fairest to say that their Honours in the Full Court used that terminology because they apprehended, correctly in our submission, that the trial judge’s purpose was to ensure that it would hurt more and I think that is how that language grew among those discussing it on appeal. But I accept the force of your Honour’s contention. It does nothing to increase the dollar amount.

GORDON J: It does not impose it?

MS DOYLE: It cannot be and it is not the order that imposes it. That is an earlier order in the suite of her Honour’s orders.

GORDON J: Yes.

NETTLE J: That is really it, is it not? Upon its proper construction, 546 is the sole repository and you are not allowed to look elsewhere.

MS DOYLE: Yes, and that is not surprising, in our submission, because one cannot forget that we are talking about a civil penalty regime where the Briginshaw standard applies, where all of those rigours, they are principally for the protection of the accused contravener attach and in this situation, where one would expect to find housed in one provision as one does, the entitlement of the Court to impose the penalty and then elsewhere a power that is directed to other types of orders that may be made.

It is our submission that one cannot amplify section 546 by drawing on 545(1). Section 545(1) is directed to the contravention. Once it is found to have been committed, the Court is empowered to make orders which will remedy the effects thereof, ensure that the person who has suffered as a result of the contravention is compensated and if what has happened to them has involved a fracturing of their employment relationship reinstatement and other orders, but what one cannot do is augment the penalty imposing power in 546 by borrowing form 545(1), in our submission.

GORDON J: Consistent with your contention in relation to suspension, conditional orders, instalments finding their source in 23 of the Federal Court Act, read with 546.

MS DOYLE: We say would be incidental to 546 and one could stop there, if we are wrong about that, read with section 23.

GORDON J: Explain to me then why it is that the order that was made here in terms directed at the Union does not fall into the same category as those in terms given it does not increase severity, does not impose a penalty, does not cause any greater severity, to pick up your language.

MS DOYLE: Yes, because – and this is quite a different argument - it finds its source in our construction argument, harking back to the principle of legality if nothing else, because it is an extraordinary order on one view. We ought not forget it is an order which restrains an entity from dealing with its assets in a manner which is not unlawful, and it does so for the express purpose of making somebody else – admittedly someone who is their employee but somebody else – suffer more.

GORDON J: Why are they suffering more? Mr Myles had a penalty imposed upon him which was set at a figure and which did not change.

MS DOYLE: Yes.

GORDON J: Is the highest you put it that he is denied a source of funding, namely the Union?

MS DOYLE: Yes, that is the highest I put it, but the way in which her Honour put it was expressly so. Her Honour expressly wanted to deny him a source while accepting, as her Honour did, that the order was not apt to deny him access to other sources, whether they be wealthy relatives or lamington drives, just a source.

Before I return to the construction arguments because a lot of attention has been devoted to section 23, it would be useful, if I may, to take the Court to the MUA Case just to make good some of the propositions that I had adverted to. Your Honours will find that, of course, in our list of authorities but it is [1998] HCA 30; (1998) 195 CLR 1. Just by way of explanation, it was provisions of the predecessor Act that the Court was concerned with here. Principally, the section pertaining to relief was section 298U(e) of the then Act. As I have said already, it is not identical to 545 but it is very similar.

Can I pick up their Honours – the remarks of their Honour at paragraph 26 to start, page 28 of the report, and because I have deployed this case with respect to a number of different principles, I will just now identify the paragraphs that go to each of them. So, at paragraph 26 you will see their Honours are talking about 298K and 298U of the Act. Moving down to the sentence that starts “Given” your Honours will see this:

Given that an application is “in respect of” contravening conduct –

that is the terminology of that provision:

and that the Court is empowered to make any order it thinks necessary to remedy the effects of the conduct, the order may be made against persons other than the person who has engaged in the contravening conduct.

This is the point that I made right at the outset of my submissions this morning:

In so far as the power of the Court under s 298U(e) is to make an order necessary to remedy the effects of contravening conduct, counsel for the appellants may well be correct in submitting that the power conferred by s 298U(e) is exercisable only when those effects have been found to exist. That is the condition upon the power to make a final order –

Now, that of course was relevant because this matter was proceeding on appeal at the interlocutory stage. Then, a little lower down:

The power to make an interlocutory order is exercised by reference to the relief finally available but that is not, or is not necessarily, to say that the power to make the final order is the source of the power to make an interlocutory order –

Now, at paragraph 27 their Honour then refer to section 23 of the Federal Court Act, reciting its terms, and then went on to say:

That power may be exercised in any proceeding in which the Federal Court has jurisdiction unless the jurisdiction invoked is conferred in terms which expressly or impliedly deny the s 23 power –

So I pause there to note, as we of course obviously accept, section 564 in the Fair Work Act has something to say about that. It reminds us that the two need to be read together and one does not cut down the other. Of course, their Honours then make the point – and although their Honours do not cite in that paragraph the decision in Thomson, it is clearly what they are getting at because it is referred to in paragraph 28, namely the point that section 23 cannot grant authority for an injunction where there is otherwise no case for injunctive relief.

That is another reason why I have accepted that perhaps the debate about whether this order was available to her Honour under section 23 or 545 may ultimately be moot because, if it were found to be available under 23, that could not be the case if it could not be supported by 545 as well.

Down at paragraph 29, there is a further analysis of the decision in Thomson and a reminder, in the sentence that starts:

Here the claims are for relief under s 298U(e) and in the tort of conspiracy.

There is then a reference to the accrued and associated jurisdiction of the court. Now, moving to paragraph 30, I just want to identify for the Court some passages in 30, 33 and 35. At 30, the Court says:

The orders which the Federal Court is authorised to make under s 298U(e) include an order to “remedy” the effects of conduct –

which is similar language to our provision here:

The final orders sought in the present proceeding include orders which undo the reorganisation of the Group –

Then I move down to the sentence that starts:

The basis on which that relief is sought is that it is necessary to remedy the reorganisation of the Group in which the employer companies, in alleged contravention of s 298K(1)(c), altered the position of the employees to their prejudice.

That being the touchstone of the contravention that was alleged under the Act:

Similar remedies are sought in reliance on the auxiliary jurisdiction of equity to prevent the commission of a tort –

So here moving to the common law claim, or the claim in equity:

or the accruing of continuing damage from a tort committed. Before examining the power of the Federal Court to grant interlocutory injunctions, that Court’s jurisdiction to grant final relief . . . should be considered.

Now, moving down to paragraph 32, I should just note that it is there that their Honours say:

Although only an employer can engage in conduct contravening [that Act], all parties to a conspiracy that the employer companies should engage in such conduct are liable as concurrent tortfeasors. If the conspiracy to perform an unlawful act is completed by the performance of the act, it is only necessary for one of the conspirators to have performed the act or to have procured the act to be performed for an action to lie against all.

There their Honours are concerned with one of the questions that was before the Court and that is can these orders be made against a non-employer? Over the page at the top of page 31 there is further analysis of that issue. Can I jump to paragraph 33:

A court whose jurisdiction is invoked in a conspiracy case has power to grant an injunction to prevent the completion or effecting of the conspiracy.

Then there is reference to the established law in relation to mandatory injunctions which I do not need to take the Court to in detail. Moving to paragraph 35, the Court returns to an analysis of section 23 of the Federal Court Act referring, of course, to Justice Deane’s well-known remarks in the Jackson v Sterling Industries Case. They point there to his Honour Justice Deane’s remark that:

“Wide though that power is, it is subject to both jurisdictional and other limits. It exists only ‘in relation to matters’ in respect of which jurisdiction has been conferred upon the Federal Court. Even in relation to such matters, the power is restricted to making of the ‘kinds’ of order . . . which are capable of properly being seen as ‘appropriate’ to be made by the Federal Court in the exercise of its jurisdiction.”

Now, with respect, a helpful statement of the question but perhaps not yet the answer. Then, their Honours go on to say:

One limitation on the powers of the Federal Court to grant interlocutory injunctions is that those powers must be exercised for the purpose for which they are conferred.

Then referring to a later passage of Justice Deane in Jackson:

his Honour said a power to prevent the abuse or frustration of a court’s process should be accepted “as an established part of the armoury of a court of law and equity” and that “the power to grant such relief in relation to a matter in which the Federal Court has jurisdiction is comprehended by the express grant to that Court by s 23 . . . But, his Honour observed -

this is still hiking back to Justice Deane in the Jackson Case:

orders must be framed “so as to come within the limits set by the purpose which [the order] can properly be intended to serve”.

Then there is an analysis of the Mareva injunction and it is described at the bottom of page 32 by their Honours as:

the paradigm example of an order to prevent the frustration of a court’s process -

It is that sort of language that I have sought to emphasise in my submissions this morning. The frustration of the Court’s processes, in our submission, is a higher hurdle than an order that will make this work better or I have thought of a better way of doing X, Y or Z. At the top of page 33, their Honours go on to say:

The moulding of an interlocutory injunction must depend upon the circumstances of each case.

Then they report an observation of Justice Brennan in the Jackson Case.

GAGELER J: This is all under the heading “Interlocutory relief” and all understandable in that context.

MS DOYLE: Yes.

GAGELER J: Absent section 545(2)(a), it would be difficult to read 545(1) as directed to interlocutory relief. The court has to be satisfied that a person has contravened, that is make a finding on the balance of probabilities.

MS DOYLE: Yes, or proposes to contravene is a rider on that.

GAGELER J: Yes. Either way you are talking about a finding of fact made on a final basis.

MS DOYLE: Yes, if one reads “proposing to contravene” as a concluded threat to contravene – is that what your Honour means?

GAGELER J: I mean a finding that a person proposes to contravene, a finding on the balance of probabilities, not a serious question to be tried.

MS DOYLE: Yes, I accept your Honour’s point, but the jurisprudence with respect to section 23 has tended to be developed through two streams – the interlocutory relief stream and the execution stream, if I could put it that way, the orders that have been made, as I said this morning, that have fallen one side of the line or the other in terms of the manner in which they have been crafted to ensure that there is an asset left against which a judgment might be executed. So they are not confined to interlocutory relief although that is where much of the debate has occurred.

Just to conclude those passages, I only wanted in addition to note for your Honours paragraphs 112 and 113 and I do not need to read them but then just to jump to her Honour Justice Gaudron’s reasons at 127 to 129 and to note, because her Honour has helpfully collected together some of the authorities there, her Honour said at paragraph 127:

One clear purpose of s 23 of the Federal Court Act is to enable the Federal Court to make orders which might otherwise be made by a superior court in the exercise of inherent jurisdiction –

and then referring to the well-travelled path of Mareva injunctions and then her Honour says just above paragraph 128:

But it is not confined to orders of that kind. As already pointed out, it extends to whatever orders are necessary to enable the Federal Court effectively to exercise its jurisdiction.

Her Honour, of course, there does not say it is extended to or might cover orders relevant to a contravention or in relation to a contravention. Her Honour brings it back to, as we say, the core concept which is necessary to enable the Federal Court effectively to exercise its jurisdiction. Then her Honour at 128 says:

Two approaches can be taken to determining whether it is appropriate –

So what questions should the court ask itself and her Honour then says, using as an example what:

may be called a “jurisdiction protection order” under s 23 of the Federal Court Australia Act. The first is to ask whether it is necessary to make an order of that kind –

So, her Honour injects the word “necessary” there:

and, then, to ask whether, having regard to the circumstances of the case, the order in question reasonably serves the purpose -

We would suggest that what her Honour is really doing there is the first question is power, is it necessary; and the second is and ought I exercise my discretion in this case to do so; if we borrowed those questions and applied them to 545. Then in 129 her Honour says for completeness:

In this case, it does not matter which approach is adopted . . . It was clearly open to [the trial judge] to conclude . . . that it was necessary –

I am jumping down a couple of lines there:

to protect the effective exercise of jurisdiction with respect to the claims made against them by making an asset preservation order -

which is her Honour’s shorthand for the suite of orders that were made to protect the continued operation of the enterprise in which the stevedores were employed.

NETTLE J: Of course, 545 is not limited to protecting jurisdiction, is it? It is a source of jurisdiction in its own right.

MS DOYLE: Section 545?

NETTLE J: Yes.

MS DOYLE: Section 545(1) is a source of jurisdiction in its own right, I accept that.

NETTLE J: It is just that you say that insofar as it is used to protect jurisdiction it cannot be used to protect the jurisdiction under 546 because that is self-contained.

MS DOYLE: Quite. We add that to protect the jurisdiction imports the notion of necessary, as her Honour Justice Gaudron suggested, not irrelevant or somewhat helpful.

I noted this morning that we sought also to rely on jurisprudence borrowed from the criminal arena and, in our submission, it is useful to look at that. It is a short point but I would like to take the Court to the Hinch decision reported in 1987 Victorian Reports - - -

KIEFEL CJ: If you are moving to another topic this might be a convenient time.

AT 12.43 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.15 PM:

MS DOYLE: Your Honours, before I turn to the decision in Hinch, I want to backtrack to one point and then answer more fully a question from Justice Keane from this morning. The backtracking is with respect to the following. This morning a number of aspects of the submissions have, with respect, blurred the concepts of jurisdiction, power and purpose of power, and I just want to go back to that and recap what our submission is in that respect.

Here, relevantly, the jurisdiction of the Federal Court is the power to decide whether there has been a contravention in this instance of section 348 of the Fair Work Act. The court has conferred on it a number of powers, most relevantly the power to impose a penalty under section 546, and the power to make orders to remedy a contravention found to have been committed, and that power is conferred by section 545.

As I have accepted a number of times in response to questions from your Honours this morning, the purpose of the power to impose a penalty, that being the power conferred by section 546, is deterrence. The purpose of the power to remedy a contravention – that is, the power conferred by section 545(1) – is to compensate the victim, vis-à-vis the effects of the contravention, or to put them back in the position in which they were, for example, an order for reinstatement.

But the debate at times this morning has proceeded on the basis of an implicit assumption that the court has so-called jurisdictional power to make orders designed to promote effective deterrence and, with respect, that is to think of matters in the wrong way. The Federal Court does not have a jurisdiction or a power to see that deterrence is done. It has a jurisdiction, rather, to determine whether a contravention has been committed and, if so, then a power under 546 to impose a penalty. In fixing that penalty, the court will have regard to the purpose of deterrence, along with any other applicable sentencing criteria which are relevant to the proper exercise of that sentencing discretion.

I say all of that because it is not the purpose of deterrence or seeing that deterrence is done or is successful that it is necessary to ensure is effective and to determine whether the court’s exercise of jurisdiction with respect to a proceeding under section 348 or whether it is power to impose a penalty under section 546 is effective, in our submission, does not invite a consideration of whether the purpose of deterrence is best or better effected or promoted by a non-indemnification order.

With respect, it is our submission that to approach the question any other way is to improperly blur the concepts of jurisdiction and power with the purpose of the power and ultimately we say the way the appellant’s submissions this morning commenced were guilty of a different type of impermissible blurring, namely between the existence of the power at all and whether it would be appropriate to exercise it in the Court’s discretion in this case.

The focus, for example, on them being co-contraveners, collusive behaviour, et cetera, may well be very relevant to the exercise of the discretion if it exists but we cavil with the proposition that it helps one to determine whether there is power at all. Pausing there, there is just one other point I wish to make about use of language like “co-contraveners”, “bound up in conduct”, and “collusive”. Of course, the Union’s liability here is parasitic, if you like, upon the acts of its employee or official, Mr Myles. While her Honour often used the phrase “the respondents did this”, “the respondents did that”, it would be obvious to your Honours that the respondent union did nothing itself. It did a lot through its actor or its agent, the natural person, Mr Myles.

KIEFEL CJ: Is it relevant that there is no offence of conspiracy effectively? There is no penalty for a contravention, only to a conspiracy?

MS DOYLE: That is right. There was no conspiracy, no allegation of being knowingly concerned running either way, either Mr Myles knowingly concerned in the Union’s contravention or vice versa. It is a straight-out example, your Honour, of natural person contravened section 348, union conceded by dint of the statement of agreed facts and the form of declarations agreed to, that it too was liable by reason of what is effectively a statutory form of vicarious liability in that Act, section 363, which fixes the Union with the actions and state of mind of its actor, its agent through whom it acts in certain circumstances.

I emphasise that because her Honour’s language is perfectly explicable. It is a convenience and of course one would refer to the respondents but it is just important to bear in mind that it is not as if they were two natural persons each determining to do X, Y and Z. One was the agent through whom a vicarious liability of a statutory type was fixed upon the Union.

NETTLE J: Why does that help you, I am sorry? Why do you make that point?

MS DOYLE: Because we do not see anywhere in her Honour’s language, in fact, the word “collusion”, but more relevantly our friends seem to be making much of what they characterise as her Honour’s finding that they were both bound up in this, they were equally to blame. One had committed the offence; so had the other, just making the point that one’s liability is only parasitic on the other.

There is nothing that one can point to that the Union did that was not in fact done by Mr Myles. That is the only point we make, that there is not to be read into her Honour’s language some powerful additional finding that this is the result of collusion between the Union and Mr Myles. How could the Union, which is a corporate type of a beast, have colluded with Mr Myles?

NETTLE J: In truth, he is the Union along with others like him.

MS DOYLE: He is, yes. That is the only point we make, that her Honour ought not be understood as having found that this is particularly egregious because two respondents were at it. They are really one and the same, is the only point I am making. Your Honour Justice Keane this morning asked whether the particular phrase in section 546, “may . . . order a person to pay a pecuniary penalty” has some significance and, in particular, whether it itself might suggest that the Federal Court is empowered to insist upon personal payment in a way that, for example, other more passively worded sentencing provisions might not.

A more full answer, on reflection, your Honour, is that it does not and that those particular words do not have any special significance, for this reason. We answer first of all by way of example by reference to another penal provision, and I think it has been provided to your associates, section 4B(2) of the Crimes Act.

I thought it would be the case and, of course, it is, your Honour, that different language is used in different statutes and here is one example relatively close to home in the sense that it comes from the Commonwealth’s criminal suite of Acts, and section 4B(2) says:

Where a natural person is convicted of an offence against a law of the Commonwealth punishable by imprisonment only, the court may, if the contrary intention does not appear and the court thinks it appropriate in all the circumstances of the case, impose, instead of, or in addition to, a penalty of imprisonment, a pecuniary penalty not exceeding –

Now, that is obviously passive language that does not operate in the same manner as that phrase in section 546 to which your Honour has drawn attention. But we say what might superficially appear to be significant in terms of the passive wording fades away when one thinks of it in these terms. There could be no question but that section 4B(2) only empowers the sentencing court here to impose a penalty on the natural person who has been convicted.

So, in that respect, the slightly different more modern, more active language in 546, we say, takes matters nowhere. It is obvious under both sections that only the contravener or the person convicted can be ordered to pay. The real question, in our respectful submission, that emerges from the debate with your Honour this morning, Justice Keane, is this: what does “to pay” mean and in answer to that question we submit in response that in criminal and civil penalty jurisprudence it has not ever been thought that any phrase like “to pay” or “order to pay” conveys a requirement that the contravener or the convicted person must, on their own, effectively from their own savings account, without contribution or assistance from any other person, pay that money.

I am going to go to Hinch in a moment with respect to that but before I do, we say therefore that section 546 does not in and of itself have the effect that unless a contravener can demonstrate that they pay the money out of their own pocket, without assistance from anybody else, they have breached both the order that imposed the penalty upon them and section 546 itself, such that they would be liable to a contempt. “To pay” has not ever, in those two streams of jurisprudence to which I have referred, been thought to convey that obligation of personal payment without assistance from any other source and it - - -

KEANE J: What about a case where you have two contraveners and provisions that fix a maximum fine for each and the orders that are made are that one of the contraveners pays X and the other contravener pays Y in respect of the same contraventions?

MS DOYLE: Yes.

KEANE J: It seems to me that is a little different from what you are putting where you just have an accused or a prisoner, a convicted person being ordered to pay. I mean, obviously in such a case, the law is not at all concerned with who pays.

MS DOYLE: No, but Hinch is an example of just that, your Honour. Mr Hinch’s then employer, the radio station, was also fined for the contempt at issue there. Perhaps if I go to it to make good that proposition, the matter of Hinch, I referred to it briefly before we broke[1987] VicRp 62; , [1987] VR 721, pertained to a contempt of the type described in the headnote with which your Honours may well be familiar, revelation of the name of an accused person on a radio transmission.

NETTLE J: One of many.

MS DOYLE: Yes, and your Honours will see that Mr Hinch was fined $25,000 in respect of two of the broadcasts and sentenced to six weeks imprisonment – this is towards the end of the headnote on the first page - and the employer, the radio station owned by MBHL, was fined $25,000 in respect of two of the broadcasts and $30,000 in respect of the third. Now, they each appealed everything; conviction and sentence and the issue arose that the sentencing judge or the trial judge had seemed to infer that Mr Hinch’s fines would be paid by his employer so he would not, if you like, feel the sting.

Can I take your Honours to the passages at 730 to 731 and Chief Justice Young towards the bottom of page 730, the second to last paragraph you will see the last sentence:

It was further said that it was not open to the learned Judge to find that the likelihood was that Hinch would not have to pay any fine imposed.

Elsewhere in the reasons it becomes clear that is because his employer might pay. The Chief Justice goes on:

The question whether Hinch would personally pay any fine imposed was not really investigated before [the trial judge]. The evidence was that Hinch’s legal costs were being paid by –

his employer, but his Honour went on:

“I see no reason to conclude that he would suffer any penalty at all by the imposition of a fine in these two cases. In fact the likelihood is that the opposite is the case. Yet, in my opinion, it is necessary to impose a penalty which will be likely to deter Mr. Hinch from further similar acts of defiance amounting to contempt of court”.

Now the Chief Justice says:

I agree in the sentiments . . . but the question whether it is probable that Hinch would personally pay any fine imposed cannot be properly investigated by the Court. There is nothing to prevent a third party from paying a fine for a person and whatever investigation is carried out by the Court, it cannot forecast the activities of third persons. Moreover, the usual reticence of the Crown from participation in the sentencing process makes the conduct of such an investigation almost impossible.

Further, the Chief Justice was not satisfied with the basis upon which the inference had been drawn in any event, there being a scarcity of evidence at first instance on that. Moving down to point 20 on page 731:

there may be circumstances in which the question who is to pay the fine is a relevant consideration -

I pause there to note the reference to Gallagher v Durack. Your Honours, time will not permit me to make all the points I wanted to make about the BLF Case and Gallagher v Durack – they are related decisions – but having looked at our written submissions over the luncheon adjournment, I am content to rest on paragraphs 58 to 61 thereof.

KIEFEL CJ: Of Gallagher v Durack?

MS DOYLE: Paragraphs 58 to 61 of our written submissions, which make all the points we would see to make about the BLF Case and Gallagher v Durack, those being related decisions with respect to a series of different contempts, which is the point that we make in our written submissions. Returning to the Hinch Case at about point 22, the Chief Justice goes on to say:

I think that in the present case the learned Judge was not entitled to take into account in fixing the amount of the fine to be imposed his assumption that Hinch would not pay it and to the extent that his Honour did so his discretion miscarried.

He then goes on to make further criticisms in that regard. Can I also just note for completeness the passages of Justice Kaye’s judgment at 748 which deal with the same topic. Your Honours will find that at about point 5 on that page - it is in similar vein, his Honour noting that there was insufficient evidence to draw that inference in the first place but, towards the end of that first longer paragraph on page 748, his Honour Justice Kaye says:

In either event the fact that in these proceedings a third party might pay a fine ordered to be paid by the appellant Hinch was not relevant to the decision whether he should be sentenced to a term of imprisonment or fined, and if fined the amount of such fine.

That harks back to some submissions I made earlier today about the potential for interrogation of source of funds to give rise to perverse results because, for example, as Justice Kaye is hinting at, if one formed the view that Mr Hinch’s employer would foot the bill entirely one might trend towards imprisoning Mr Hinch, whereas if properly exercising the sentencing discretion one might not get there or might not imprison him for so long or at all.

NETTLE J: Does Justice Kaye go that far? Surely he would allow that if one takes the view that the fine may not be a sufficient penalty, prison would be the better option.

MS DOYLE: His Honour is not foreclosing the possibility that imprisonment was the better option for Mr Hinch, just that in so determining, one ought not interrogate – having fixed an appropriate fine with regard to all of the relevant sentencing criteria, his Honour foreclosed the possibility that one would then say, but because I find Mr Hinch is not likely to pay that $5,000 or $10,000, I am going to up the period of time for which he is imprisoned to counterbalance.

GAGELER J: Ms Doyle, I may have misunderstood you this morning, but I had thought that you accepted that section 545(1) was a power that could be used for the purpose of deterrence. As I understand you now, you say that it is a power that cannot be used for the purpose of deterrence.

MS DOYLE: That is right. I am sorry if I misspoke this morning.

GAGELER J: I may have misheard.

MS DOYLE: It is 546 where the purpose is deterrence, 545 is to remedy a contravention.

KIEFEL CJ: Yes, I think you said this morning that it was relevant to the purpose of deterrence with the caveat that it is not appropriate to deter by that means, I think that is as I understood how you put it, but you are resiling from that, in any event.

MS DOYLE: Yes, to that extent, in that it may also be relevant but that is not the purpose of it. The purpose is to remedy the contravention, more particularly the effects of the contravention, that being the direct language used there.

GAGELER J: Surely 545(2)(a) could be used to make a Mareva injunction in support of an eventual order under section 546?

MS DOYLE: Yes.

GAGELER J: There is a question mark at the end of that.

MS DOYLE: Yes, it could because it may be necessary to do so, as was the case in the MUA matter, in order to ultimately be able to remedy the effects of the contravention. Without those protective orders, there would have been no employment to which they could have been reinstated is one example. But one can think of simpler commercially-based examples, I suppose, where one would not want the asset to be dissipated or spent outside of the jurisdiction, for example.

KEANE J: Do you accept, Ms Doyle, that 545 can be invoked for the purposes of making an order that renders the exercise of power in other sections throughout the Act effective? In other words, does it have a general ancillary operation, as Justice Jessup thought?

MS DOYLE: The only ancillary application or operation that we discern in it is one that is enlivened only when it has been found or proven that a person has contravened or proposes to contravene.

KEANE J: Sure.

MS DOYLE: So that that precondition narrows dramatically where it can operate. In other words, there is a lot of sections that one might contravene, but it is only if one of them is contravened that the power in 545 is enlivened. I cannot as I stand here think of any other example other than a contravention that could enliven it but, in any event, that is what the plain language requires. Did your Honour have a particular type of provision in the Act in mind?

KEANE J: Just in regard to the collocation of these two provisions, one might think that 545(1) is cast in sufficiently wide language that it can make an order - that it empowers the making of an order to make the orders authorised by the next section more effective. I mean, for example, to prevent - an order under 545(1) to prevent the disposition of assets by a person who has contravened in order to – the disposition being intended to frustrate any order that might be made.

MS DOYLE: Yes. So, for example, if the order intended to be made under 545(2)(b) is that an employee wrongly terminated be compensated, could for example, a freezing order be made to ensure that funds be available at the end of the trial to deploy or apply towards that compensation? Yes, that would possibly be so and that is probably one of the very matters towards which this was intended to be directed at the interlocutory phase.

NETTLE J: Because that is necessary to ensure that the fine is paid.

MS DOYLE: Yes, or, in that example, the compensation.

NETTLE J: That is the way you put it, is it not? It is not appropriate unless it be necessary and it is not necessary in order to make 546 penalty effective that someone else be ordered not to pay it?

MS DOYLE: That is right. So, just as the High Court counselled in Cardile, accepting this is an established part of the armoury of the Court, one would still then be very careful not to travel to the wrong side of the line in either protecting assets available for execution or, if the order was brought at the interlocutory stage, ensuring that assets were not dissipated pending resolution of the proceeding. It is a well-trodden path. It is part of the established armoury of the Court. But also it is so obviously necessary to be done in order to ensure the effective ultimate exercise of the Court’s jurisdiction.

There is a quite distinct construction argument advanced in our written submissions that I do not need to go to at length because we have traversed it in those submissions but your Honours will recall that one of our submissions runs as follows. Her Honour the trial judge fashioned these orders drawing, if you like, as an analogue upon section 199A of the Corporations Act and section 77A of the Competition and Consumer Act.

We have set out the history in brief terms of those provisions and this morning in answer to questions from Justice Gordon I identified some of the features of them and it is not necessary to traverse that at length but what we would note is that the provisions from which her Honour drew some comfort are, of course, quite different from the form of order ultimately made. Those are provisions that do not confer power on the Court to rule or order that certain indemnification arrangements or contracts are unlawful or ought not be completed, rather, they are provisions which specify the sorts of indemnification insurance arrangements and the like that are void and unlawful with respect to officers of corporations. In other words, it is not left to the Court by those sections to determine when or whether a corporation will be prohibited from indemnifying its directors, officers and managers.

The Act tells you when it will be so. It is of some significance, we say, that in that suite of provisions they do not extend, for example, to employees. The definition of officers is that in section 9 of the Corporations Act. That definition is picked up in the Competition Act. It is confined to, as one might expect, the more senior officers who participate in the decision-making of the corporation.

We say all this for this reasons. We say this same legislature, the Commonwealth Parliament, has devoted careful attention and consideration to the circumstances in which it has determined that it is appropriate to prohibit indemnification of officers of companies, and with respect one would expect express words if such a suite of powers were to be conferred on the court with respect to union officials. It is surprising that one might regard all of that learning as embodied in the mere single word “appropriate” without any of the thought, attention and carve-outs and there is some complexity and subtlety in the way in which sections 199A and 77A have developed over time. The good faith exception was inserted later in its life. Employees were at one stage captured and then excised during the early 2000s.

It is not just a matter of passing interest. In our submission, it does give life to the Chief Justice’s point on the appeal below that not only would one expect to see explicit language if such extraordinary powers were to be conferred on the Court but when the exercise of them does as it does here and that is restrain a union from doing something that is not unlawful, it does give grounds for pause and it does raise these questions.

Section 545 was introduced into this Act in 2009 and a similar previous iteration of it could be found in section 298U in the Workplace Relations Act which was enacted in 1996. But when section 545 was enacted, of course, the Commonwealth Parliament was aware both of section 199A and 77, they having been enacted in 2001 and 2006 respectively but section 199A dating back to provisions in the Companies Act as early as 1981.

The point we therefore make is that had the Commonwealth wished to replicate any version of the scheme embodied in the Companies Act in 1981 and then ultimately in the Corporations Act in 199A, it could and would, and we say should, have done so if that is what it intended to achieve, and that it would be a surprising result indeed if it could be thought that that armoury was carried along by the injection of the word “appropriate”.

Finally, your Honours, as I said, with respect to the comfort that her Honour the trial judge appeared to gain from the BLF Case and that our friends now seek to make out of the Gallagher decision, we rely on our written submissions at paragraphs 58 to 61. There is one other matter I should tidy up and that is a couple of times your Honours have sought more information about the disposition of the appeal grounds below. To complete the picture in that respect, I think it ought be noted that Justice Jessup’s reasons traverse the seven grounds of appeal in sequence and in full. They are the best place to find what happened, but in short compass ground 1 was upheld – that is the power ground and the matter we are concerned with today.

Ground 2, as my learned friend has correctly pointed out, grounds 2(a) and (b) go to the proper exercise of the discretion. Their Honours on appeal did hear full argument on that but formed the view it was unnecessary to answer. Their Honours rejected appeal grounds 3, 5, 6 and 7. We prevailed with respect to ground 4. Your Honour will find that discussed in the reasons of Justice Jessup.

That was our contention that her Honour had denied us natural justice in finding based on some accounts that were tendered that the Union routinely paid fines from money, including members’ funds and the public purpose, the public purse finding. We prevailed with respect to our complaint that we had not been heard on that and that we could and would have educed evidence to counter that.

The Chief Justice agreed in that finding but both he and Justice Jessup were of the view it could not be found that it had directly impacted upon the penalty imposed. I say all that because grounds 3 to 6 at least mean that the Full Court did traverse a number of the arguments that would be relevant to the question of when is it appropriate if there be a power, but unfortunately or otherwise the ground 2 is where that attack was most directly made. The court did not find it necessary to answer and we are ad idem that if this Court finds there is power, ground 2 will need to be rehearsed before their Honours.

GAGELER J: Does ground 2 involve any challenges to findings of fact? It is not obvious that it does, but you have argued it once before so you probably know.

MS DOYLE: Yes. I cautiously say I think that it does not but that we would intend to carry with us our victory under ground 4 with respect to facts, it appearing to have been a significant fact – one of many. But her Honour clearly treated her Honour’s conclusion that the funds that had been used to pay fines in the past were partly public funds as particularly egregious, and even though their Honours did not find it rendered the sentencing discretion as having miscarried, we would intend to submit that to the extent it bolstered her Honour’s view that it was appropriate to exercise the discretion in this case to make the non-indemnification order, her Honour was in error insofar as she relied on that erroneous finding. So that is a subtle answer but we need to be frank. We would want to carry that with us. I do not think any other factual findings would be an issue, or could be, if those other grounds of appeal had not been decided against us. If your Honour pleases.

KIEFEL CJ: Thank you, Ms Doyle. Any reply, Mr Howe?

MR HOWE: Your Honours, there are six matters in reply, most of which can be dealt with in short compass. The first concerns the issue raised by my learned friend as to state of confusion on the part of the respondents as to whether or not section 23 was relied upon as a freestanding source of power for the making of the non-indemnification order. I have to tell your Honours that is not a completely simple proposition to deal with.

The short answer is yes, although it has to be said not in vigorous terms, for reasons which I will explain. Section 23 was in fact included in the notice of appeal in respect of which a grant of special leave was made by this Court, that is, that the Full Court below erred in not finding a source of power in either section 545 or section 23. I can tell your Honours that section 23 as a freestanding source of power was also in issue before the Full Court of the Federal Court. I can give your Honours two references in that regard.

Section 23 was actually disposed of, or acknowledged, I am sorry, by Chief Justice Allsop in his judgment as being a contended for source of power, and that appears at appeal book page 130 at paragraph 3 of the Chief Justice’s judgment. The notice of appeal before the Full Federal Court is to be found at appeal book page 121 and it raised as an issue whether or not section 545 or other provision was a source of power for the making of the non-indemnification order, or words to that effect. So the issue was certainly before the Full Court and has been the subject of a grant of special leave for us to agitate in the appeal.

GAGELER J: Is there any basis on which you could win on section 23, if you lose on 545?

MR HOWE: That is a fine question, your Honour, if I may say so, with respect, and accounts for the fact that section 23, if one goes through the appellant’s written submissions, is not the subject of any extensive, freestanding treatment at all and the reason for that appears in our written submissions in-chief, in particular at paragraph 43(b). If I can give your Honours the reference to that - if I could simply explain - - -

KEANE J: But if you read 545 down as being concerned solely with orders for recompense or compensation – I mean you would have to read it down notwithstanding that subsection (2) begins “Without limiting the generality of (1)”, but if you do read it down as we are invited to, to being limited to orders for compensation or recompense and so forth or protection, then 23 would be an extra power, would it not, given that 23 is being construed to authorise orders that prevent the frustration of orders?

MR HOWE: Yes. The concern is that if section 546 wholly extracts or abstracts all and any power in the court to make any order whatsoever touching upon the whole subject of pecuniary penalties because section 546 operates as a completely exhaustive code, then that proposition would probably also apply with equal vigour to section 23, but in that event that whole construct, as it were, as an argument or premise encounters the difficulty that section 564 specifically provides, that absolutely nothing in the Fair Work Act limits the powers conferred on the Federal Court by section 23.

So we rather think the ultimate position is that the court has power under each of section 545 and section 23 and we say that that is supported by section 564 and we say that the proposition that section 545 completely and wholly robs the court of any power to make any order touching upon a pecuniary penalty is extraordinarily adventurous because it would, for instance, if that were true, prevent the court even making an interim injunction under section 545 to preserve assets with a view to enabling the recovery of the pecuniary penalty.

That interim injunction specifically authorised by section 545(2)(a) would be an order touching upon pecuniary penalties, that is preserving assets with a view to enabling the penalty to be recovered as a debt so that the processes of the court in imposing the penalty were not defeated.

So, that is a good illustration of why we say these orders cannot be approached on the basis that they somehow are wholly quarantined silos as if they appeared in quite separate pieces of legislation in circumstances where the legislature intended absolutely no interaction between them at all. We say that is contrary to the intended cohesive operation of the provisions, they are succeeding provisions and it is contrary to the principle of construction for which Project Blue Sky stands.

NETTLE J: What do you say about the proposition that it is one thing to have a Mareva to preserve a fund with which to satisfy and order that a penalty be paid because that is necessary that the penalty order have effect, whereas it is quite another thing to make an order that a third party not pay a penalty because that does not – is not necessary to give the penalty order effect. Rather than giving it effect, it seeks to enhance it and change it by increasing its sting.

MR HOWE: Your Honour introduced as an ingredient of the comparator scenario an order against a third party, in effect, preventing any payment of the pecuniary penalty. For our part, we would accept that the circumstances in which such an order might be made might be regarded as at the outer reaches and somewhat exceptional, the reason being it might be hard to envisage facts and circumstances in which it was necessary to make a Bragdon-type order.

NETTLE J: I do not mean a non-party; I mean that there is an order against the union officer that he pay a penalty of X dollars and an order made against another party who is a contravener that that other party do not pay the union officer’s penalty.

MR HOWE: Yes.

NETTLE J: That it is said against you is not necessary to give effect to the order made against the union officer that he pay a penalty; that remains. It is just not necessary. Rather, it tends to increase the sting or effect of the order against the union officer which is beyond the ambit of the power conferred by 545 and within the exclusive repository of 546.

MR HOWE: Yes. We say as to that that there is no mutual exclusivity because the effect of a non-indemnification order directed at least to a co-contravener who was acting in concert with the union official in committing the contraventions has about it a virtue which lies at the dead centre of the concern of section 546, namely, it is directed to the achievement of effective deterrence. It is not directed to enhancing, in any relevant sense, the severity of the penalty. It does not go to the maximum amounts that are set out in section 546. It does not cut across that and in our submission it is the sort of order which is necessarily available.

The respondents after all locate within section 546 all manner of incidental powers to deal with such things as time to pay, to deal with such things as conditional pecuniary penalties which might not bite if the respondent undertakes a compliance program and so on.

Now, if all of those incidental powers are abstracted from section 545 but in here as a matter of implication in section 546, so too would the power to make a non-indemnification order, in our submission, so ultimately that whole construct does not work in favour ultimately of the respondents.

NETTLE J: I am sorry, is that to say that if you are wrong about 545, nonetheless you win under 546?

MR HOWE: Exactly so. The idea that 546 includes within it a suite of – or a panoply of incidental powers such as time to pay, to make pecuniary penalties contingent on particular other orders, including orders made under section 545 for undertaking a compliance program, if that is true of the amplitude of section 546, why then, we ask rhetorically, would one not also include within the suite of incidental powers a power to impose in an appropriate case a non-indemnification order if that were reasonably necessary in order to achieve the real deterrence that the legislative schemes - - -

GORDON J: Is it real deterrence, or is it really any higher than the order is necessary to give effective exercise or ultimate exercise of the apportionment of responsibility between the two contraveners?

MR HOWE: Yes, which is - - -

GORDON J: It has nothing to do with deterrence – that is that a primary judge has made an allocation of responsibility between contravener 1 and 2 and the order is necessary to make that order effective; that allocation of responsibility effective.

MR HOWE: They are probably not disaggregated. It is by enforcing the allocation of responsibility as a mechanism for achieving the effective deterrence that is the overall purpose of the scheme. We would submit that they are, again, not antagonistic propositions. They go hand in hand.

KIEFEL CJ: But you were talking about different purposes in the examples you gave earlier, were you not, about the orders that could be made under 546 about paying by instalments or conditioning, on the one hand, and then making a non-indemnification order. The former has the purpose of achieving the payment of the penalty; the other’s purpose is you identify as deterrence.

MR HOWE: Yes.

KIEFEL CJ: Quite different.

MR HOWE: But they all share a common denominator, namely that all of those orders touch upon the making of the pecuniary penalty order and the respondents have contended for a particular carve out that consisted of an abstraction of all and any power under section 545 to make any orders touching upon the subject matter of pecuniary penalties because section 546 was an exhaustive code with respect to that entire topic.

We say that is not true. That is not how the two sections interacted. We say that they are complementary powers and they can overlap and they can both be exercised with respect to the same topic of pecuniary penalties, including by way of facilitating enforcement and effecting deterrence and the like. But if we are wrong about that, we see no warrant for including within section 546 this other panoply of implied powers but stopping short of the power to make a non-indemnification order.

We might say on this topic, your Honours, that a number of judges of the Federal Court have located the power to make time for pay orders under section 545, not under section 546. We deal with that in paragraph 43(a) of our written submissions. Now, of course, this Court is absolutely not bound by that, but we have given reference to a series of cases in our footnote 75 which do rather lend support to the notion that the natural home in terms of authority for making of time for pay orders is section 545, not section 546 which, in turn, deals only with the imposition of the obligation to pay the pecuniary penalty and the setting of quantum maxima and otherwise we say nothing else is abstracted.

Your Honour, in relation to this question of how section 545, section 23 and section 546 intersect, we would simply pause at this point to refer your Honours to the explanatory memorandum. It is dealt with in our written submissions. The particular paragraphs – there are two – are paragraphs 2212 and 2213 of the explanatory memorandum. This is on page 336 of the House of Representatives. Your Honours will see a heading above those paragraphs, “Clause 564”. Paragraph 2213 simply notes:

The clause is intended to address authorities which have held that federal industrial laws exhaustively contain the remedies available to enforce those laws.

Yet the respondents contend for the proposition that section 546 is an exhaustive and exclusive code-like treatment of the whole topic of pecuniary penalties. We say that cannot be right. Section 23 was intended to be preserved.

GAGELER J: You would not say that section 23 of the Federal Court of Australia Act is a source of power to impose a pecuniary penalty, would you?

MR HOWE: Probably not.

GAGELER J: Why not?

MR HOWE: Perhaps I should not be so definite, but, as we understand it, the development of the law has proceeded on the basis of courts not having implied or inherent powers to exact financial penalties from people and to impose fines, except perhaps as an incident of the exercise of the contempt power – that might be one exception – and then to deploy their processes to enforce those penalties and fines. Hence it has been customary, at least so far as we are aware, to locate authority to make those kinds of orders in provisions that are either expressly or impliedly authorising of those sorts of orders.

There would be a difficulty, we think, in utilising section 23 as a source of authority for the imposition of a coercive order for the payment of moneys. Perhaps under pain of being dealt with for contempt and even imprisoned in the event that the money was not paid and indeed - - -

GORDON J: You would need a debt provision, would you not, for recovery by the Commonwealth?

MR HOWE: I think that is right, your Honour. Indeed, there is a twist here because the legislation the Fair Work Act provides that a person cannot be imprisoned for non-payment of a pecuniary penalty and, of course, if one were just thrown to section 23, for instance, as an alternative source of power without reference to provisions such as 546 it would render the person potentially liable to be imprisoned for non-payment if that was a contempt of the Court.

So, your Honours, we do strenuously resist this idea that section 546 is intended to be an exhaustive prescriptive code that it distracts all and any power in the Court under section 23 or section 545 or its implied powers to make orders touching upon the topic of pecuniary penalties. Section 546 is in the barest of terms. There is nothing in its language to give that such a dramatic and unwarranted operation. It amounts to the imposition that the most significant negative implication with respect to both section 23 contrary to section 564 and the explanatory memorandum and it has likewise effect on the respondent’s construction in respect of section 545.

With respect, there is simply no warrant for introducing that. One would say: if there is a negative implication to be found in section 546, precisely what are its terms? Then one has to engage in quite an extensive redrafting of the provision, including by making exceptions with respect to perhaps time to pay and contingent orders and the like. We say that tells against this contender for negative implication based upon exclusivity and exhaustive operation.

Your Honours, can I deal briefly with the remaining points. My learned friend referred obliquely to difficulties which would attach to the Court superintending compliance with a non-indemnification order. That was actually dealt with by the primary judge in this case at appeal book page 107 in the last three lines of paragraph 186.

Her Honour did not suggest that the Court would be inveigled into any role. Rather she found that because the Union at least had responsibility to file accounts and was examinable with respect to them presumably, then there would be a basis there for some earnest consideration as to the possibility of non-compliance.

In any event, your Honours, Patrick Stevedores, at paragraphs 78 and 79, poured significant cold water on this proposition that orders should not be made unless the Court was capable of positive satisfaction as to compliance and amenability to enforcement by the Court and we submit that that applies here.

Your Honours, the third proposition is concerned with my learned friend’s submission that the word “appropriate” has work to do, and we obviously agree with that. The question is, well, what work does it have to do and, in our submission, it operates as a threshold preconditioning the exercise of power. It does not operate to exclude the availability of a power to make a non-indemnification order in all and any circumstances.

The fourth proposition concerns my learned friend’s submission that non-indemnification orders have about them some inherent aspect of being non-necessary. With respect, one should not substitute the word “appropriate” for “necessary”. Rather, one has regard to jurisprudence concerning the meaning of “appropriate” and in connection with preserving the integrity of courts’ processes this Court has held that the touchstone is one of reasonable necessity.

Now, the concept of “reasonable necessity” does not equate to absolute essentiality and so what one searches for when deciding whether an order is appropriate is whether or not there is a true and real and proper purpose that is being pursued and it is proportionate and the order is adapted and reasonably necessary to the attainment of the integrity of the court’s processes or the deterrent purposes of the legislation.

The fact that no threshold of absolute essentiality applies has been made clear by this Court in Pelechowski’s Case and it was also the subject of treatment by Chief Justice Gleeson in, for instance, Thomas v Mowbray. This area of discourse has never set the bar so high as essentiality or necessity in the strict sense.

My learned friend next then submitted that two respondents were not at it. Well, in our submission, that is not right. The first respondent is a body corporate; the second respondent, an individual officer. True it is that section 363 operated for the purposes of determining whether contraventions occurred to visit liability on the Union by virtue of the conduct of Mr Myles, his capacity as a union official but having, as it were, found the contraventions, all of those passages in her Honour’s reasons for judgment, which I took your Honours to, were directed to what remedies and what penalties were appropriate and in that respect, her Honour constantly drew a distinction between the Union acting through other officers who were its guiding mind and will, on the one hand, and Mr Myles, an individual officer. Her Honour discerned that there was this longstanding, deliberate joint enterprise of a collusive nature directed toward treating penalties as a mere cost of doing business.

Finally, could I ask your Honours to go back to the case of Hinch, to which my learned friend took the Court, and in particular to the same pages, page 730 and page 731. At the bottom of page 730, his Honour the Chief Justice is there concerned with the fact that at a factual level there was really no proper basis for any finding that the contemnor would not pay the fine, and at the top of the next page his Honour did express a concern about the court not being in a position to properly investigate that issue.

That may be true in civil proceedings where you do not have – I mean in contempt proceedings which are quite different to civil proceedings where you have multiple respondents who are alleged contraveners and co-contraveners in many instances. So we say that is a point of distinction, that proposition about an inability to investigate. That might be true of the court but, of course, in civil penalty proceedings there is an altogether independent party who is moving the court in an adversarial way.

In any event, in the relevant passage commencing at line 20, his Honour the Chief Justice actually accepted the existence of the circumstances in which the question of who is to pay the fine is a relevant consideration and there is a reference to Gallagher v Durack. We have dealt with that in our written submissions. Then his Honour went on to again refer to a mere assumption that Hinch would not pay and to doubt as to whether his Honour was taking that assumption into account to increase or decrease the penalty and so on.

With respect, we say that passage cannot possibly stand against acceptance by this High Court in Gallagher’s Case that the fact of non-payment - of apprehended non-payment of any fine which the court be minded to impose can be taken into account with a view to the court selecting a different penalty that will have effective deterrence, in that case, imprisonment as opposed to the imposition of a fine.

Finally, your Honours, on this – indeed, in the Australian Building Case [1982] FCA 131; 43 ALR 189, two members of the Full Court of the Federal Court held that it was appropriate to make an order directing the federation itself to pay the fine because there was evidence that the federation proposed to, in effect, require employers somehow to fund any fine that would be imposed.

So the court took that into account and imposed a fine and required or made an ancillary order that the fine actually be paid by the federation or an official of the federation authorised by it, excluding, as it were, the federation being able to fund payment of the fine from other sources. Indeed, the two members of the Court, one of whom was Justice Deane and I cannot remember the second, suggested that that was a model or a template that might well be adopted in circumstances where there was an apprehension of non-payment.

Could we also just give your Honours finally a reference to Perez v The Queen (1999) 21 WAR 470 and in particular to passages at page 484 in paragraph 42 wherein Justice Owen with whom Justice Wallwork agreed suggested that a possibility of someone else

paying a fine is not always irrelevant in all cases, and Justice Owen in that regard analysed Hinch. So it does not stand for the bright-line proposition invoked by my learned friend. May it please, those are our submissions in reply.

KIEFEL CJ: Yes, thank you. The Court reserves its decision in this matter and adjourns until 10.15 am tomorrow.

AT 3.15 PM THE MATTER WAS ADJOURNED