FEDERAL COURT OF AUSTRALIA
Comcare v Airservices Australia [2016] FCA 418
ORDERS
NTD 18 of 2015 BETWEEN: COMCARE
Applicant
AND: AIRSERVICES AUSTRALIA
Respondent
JUDGE:
WHITE J
DATE OF ORDER:
22 APRIL 2016
THE COURT DECLARES THAT:
1.On 7 August 2011, the Respondent contravened subcl 2(1)(a) of Sch 2 of the Occupational Health and Safety Act 1991 (Cth) (the Act), by reason of it having breached s 16(1) of the Act by failing to take all reasonably practicable steps to protect the health and safety at work of…
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- AGLC
- Comcare v Airservices Australia [2016] FCA 418
- Case
- [2016] FCA 418
- Decision Date
CaseChat Overview and Summary
The court examined the seriousness of the breaches and the potential for deterrence in setting the penalty. It noted that the penalties should reflect the gravity of the breaches and their impact on public safety, while also considering mitigating factors. The court concluded that the penalty for the contravention of section 16 should reflect its severity and not be inflated by considering the contravention of section 17. The court acknowledged that the potential impact on other road users was a significant factor in assessing the gravity of the breach.
Based on its analysis, the court decided to impose a penalty for the contravention of section 16, but not for the contravention of section 17. The court found that Airservices had indeed failed to comply with sections 16 and 17 as alleged by Comcare. Consequently, the court made the declarations sought by Comcare and ordered Airservices to pay a penalty of $160,000 for the contravention of section 16, with no penalty for the contravention of section 17. Airservices was also ordered to pay Comcare's costs of the proceeding.
Orders
Orders of the court
3. The Respondent pay the Commonwealth a pecuniary penalty of $160,000 in respect of the contravention of subcl 2(1) of the Occupational Health and Safety Act 1991 (Cth) which is the subject of the first declaration herein.
4. There be no penalty imposed in respect of the contravention which is the subject of the second declaration.
5. The Respondent pay the Applicant’s costs of and incidental to the application.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
I consider it appropriate in this case to fix a penalty for the contravention of s 16. In my opinion, the penalty to be imposed for the contravention of s 16 should be that which is appropriate for that contravention: it should not be increased to take account of the fact that the same conduct also contravened s 17. I accept, however, that the potential impacts on other road users form part of the circumstances indicating the gravity of Airservices’ contravention of s 16(1).The declarations Given the structure of Sch 2 to the OHS Act just outlined, it is appropriate for the Court first to consider the declarations proposed by the parties. I will refer later in more details of the circumstances of the contraventions but indicate now that I am satisfied that it is appropriate for the Court to act on the admissions made by Airservices in its filed defence, the SOAF and the two affidavits. For the reasons which will become apparent, I am satisfied that Airservices did fail to comply with ss 16(1) and 17 of the OHS Act in the manner alleged by Comcare. Accordingly, I will make the declarations sought by Comcare. Penalty principles Several of the authorities have addressed the principles relating to the imposition of penalties under the OHS Act. It is not necessary to refer to them in detail. Instead, it is sufficient to indicate that I have had regard to Comcare v Commonwealth of Australia [2007] FCA 662, (2007) 163 FCR 207 (Trooper Lawrence) at [116]‑[123]; Comcare v Commonwealth of Australia [2009] FCA 700, (2009) 257 ALR 462 at [69]‑[71]; Comcare v Post Logistics Australasia Pty Ltd [2012] FCAFC 168, (2012) 207 FCR 178 at [56]‑[69]; Comcare v Transpacific Industries Pty Ltd [2015] FCA 500 (Transpacific Industries) at [107]‑[123]; and Comcare v Commonwealth of Australia [2015] FCA 810 at [65]‑[73]. The parties made their submissions in this matter before the High Court delivered judgment in Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate [2015] HCA 46; (2015) 326 ALR 476 (Commonwealth v DFWBII). Accordingly, both accepted that, in accordance with the decision of the Full Court in Director, Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCAFC 59; (2015) 229 FCR 331 (DFWBII v CFMEU), it was not open to them to make submissions as to the appropriate penalty, or even as to a range of penalties. Neither party sought to reopen the matter after the High Court delivered its judgment overturning the decision in DFWBII v CFMEU in order to make submissions of this kind. Although the Commonwealth v DFWBII concerns legislation other than the OHS Act, the plurality (French CJ, Kiefel, Bell, Nettle and Gordon JJ) made two observations concerning civil penalty regimes generally which are pertinent in the present context. The first is that civil penalty provisions are to be understood as part of statutory regimes by which regulators may enforce compliance with provisions having the purpose of protecting or advancing particular aspects of the public interest: at [24]. The second is that the object of civil penalties is primarily to achieve deterrence. They seek to do so by putting a price on contraventions which is sufficiently high to deter repetition by the contravenor and by others who might be minded to contravene the particular regime in the same way: at [55]. Punishment and retribution are not the purpose of civil penalties, although plainly it is the imposition of a sanction in the form of a penalty which is intended to have a deterrent effect.