REASONS FOR JUDGMENT

Introduction

1                                             At all times relevant to this proceeding, the respondent, Mr Peter Gritsch, was employed by the Australian Federal Police (AFP) as a Federal Agent.  For the purposes of his work in the Close Personal Protection Unit (CCP Unit) of the AFP Mr Gritsch had been issued with a standard AFP service firearm, a Glock 9mm Model 17 self-loading pistol.  In the afternoon of 9 September 2008, Mr Gritsch accidentally discharged his pistol in the office at the AFP Headquarters in Canberra.  At the time a number of his colleagues were also in the office.

2                                             Comcare is a statutory authority, established under the Safety, Rehabilitation and Compensation Act 1988 (Cth) and administers the Occupational Health and Safety Act 1991 (Cth)(OH&S Act).  By application filed on 12 February 2010 Comcare alleged that Mr Gritsch was in breach of s 21(1)(a) of the Occupational Health and Safety Act 1991 (Cth) (the OH&S Act).  It sought a declaration of breach under clause 2(1) of Schedule 2 of the OH&S Act and the imposition of a pecuniary penalty of $3,000 pursuant to clause 4(1) of Schedule 2 of that Act.  On 17 September 2010 I made orders sought by Comcare and undertook to provide reasons at a later date.  These are my reasons for those orders.

The agreed facts

3                                             The parties tendered a statement of agreed facts dated 10 August 2010 and signed by their respective solicitors.  Pursuant to s 191 of the Evidence Act 1995 (Cth) evidence is not required to prove the existence of the facts in the statement and they may not be contradicted or qualified by evidence adduced for that purpose without the leave of the court.  The facts summarised in these reasons have been drawn from that statement and I have extensively quoted from it.  For ease of reading I have omitted quotations marks except in the case of long quotations.

AFP procedures for storage of pistols

4                                             The AFP procedures for storage of pistols after the completion of operational shifts required that a red plug be inserted into the chamber of the unloaded pistol.  Once this is done a red “flag” can be seen protruding from the slide of the pistol which is designed to act as a visual cue that the pistol is not loaded, that there is no bullet in the chamber of the pistol and that there is no magazine in the magazine receiver of the pistol.  Despite this cue, the red plug does not prevent a magazine being inserted in the magazine holder however AFP training and procedures prohibit a magazine being inserted in a pistol with a red plug. 

Storage of pistol on 7 September 2008

5                                             Prior to the date on which he accidentally discharged his pistol, the last date on which Mr Gritsch handled the pistol was on 7 September 2008.  On that day, after he concluded his duties at about 2.30 pm, Mr Gritsch stowed his pistol in his gun locker.  Unfortunately, in doing so Mr Gritsch did not comply with AFP procedures for the storage of pistols after the completion of operational shifts. 

6                                             On 7 September Mr Gritsch unloaded his pistol in the gun unload bay in the basement of the AFP Headquarters and inserted a red plug into the pistol.  However, contrary to the prescribed procedures, he inserted a magazine into the magazine holder of the pistol before storing it in his gun locker on the fourth floor of the AFP Headquarters.  It appears that Mr Gritsch thought that he had not fully inserted the magazine and therefore it was not possible for the bullet to progress into the chamber of the pistol.  Ultimately that belief is irrelevant as the relevant procedures are specific in prohibiting the magazine to be inserted into the holder at all.

The Glock pistol – mechanism and storage

7                                             In order to appreciate how this failure to observe AFP procedures led to the accidental discharge of the loaded pistol it is necessary to understand some aspects of the mechanism of the Glock pistol issued to Mr Grisch and the container used to store it during travel.  The fundamental point is that the Glock pistol will only discharge when there is a live bullet in the chamber and the trigger is pulled fully to the rear of the trigger guard.  The AFP procedures for handling and storing pistols are designed to ensure that these two requirements are never met unintentionally.

8                                             The Glock pistol can hold 17 bullets which are contained in a magazine housed in the magazine receiver located within the hand grip of the pistol.  The magazine contains a steel spring which is compressed by the bullets.  The pistol has a slide mechanism which feeds bullets from the magazine into the chamber of the pistol ready for firing.  As each bullet is removed from the magazine, compression of the spring decreases and it expands causing the bullets to be pushed up in the magazine ready to be slid into the chamber.  The slide operates automatically each time a bullet is fired ejecting the shell of the used bullet and feeding a new live bullet from the magazine into the chamber of the pistol.  The slide can also be manually pulled back to the rear in which case, when it returns to the forward position it causes a bullet to be positioned in the chamber.  The slide is manually pulled back in order to remove a red plug.

9                                             The container used to store the pistol for travel at the time of the incident in question was a moulded plastic container resembling a lunchbox.  In order to place the pistol in the travel container it is necessary to remove the red storage plug.  It is also necessary to fit the trigger guard around a tube that is fitted into the centre of the container.  This can only be done if the trigger was situated to the rear of the trigger guard.  This was achieved by “easing the springs” – that is by pulling the trigger of the unloaded pistol to release tension on the trigger spring thus allowing the trigger to rest at the rear of the trigger guard.  Obviously, if this manoeuvre is carried out when there is a bullet in the pistol chamber, the bullet will be discharged. 

Unintentional discharge on 9 September 2010

10                                          On 9 September 2008 Mr Gritsch commenced work at about 12.15 pm.  His duties on that day included preparation for working interstate.  For this purpose it was necessary for him pack his pistol into the container described above.    This required him to retrieve his pistol from the gun locker where he had stowed it on 7 September 2008.  At approximately 12.30pm Mr Gritsch removed the pistol from his gun locker.  At this point the red plug was still in place and the magazine was still inserted.

11                                          Mr Gritsch took the gun to a bank of desks in the centre of his work area on the fourth floor of the AFP Headquarters.  He removed the red plug by pulling the slide of the pistol fully to the rear and, after the plug had been removed, allowing the slide to return to the forward position.  Because there was a fully loaded magazine in the pistol this action caused a bullet from the magazine to be positioned in the chamber of the pistol; see [8] above.  In order to fit the pistol into the travel container Mr Gritsch needed to ‘ease the springs’ by pulling the trigger to the rear of the trigger guard as described in [9] above.  He did this with the pistol pointed downwards towards a desktop.  The result was that the gun fired a bullet which struck a portable radio battery that was on the desk and then lodged in the desktop.  On impact small fragments of metal were ‘liberated’ from the bullet.  According to the statement of agreed facts:

At the time he pulled the trigger, Mr Gritsch mistakenly believed that the chamber of the pistol did not contain a bullet and/or that the magazine was inserted in the receiver of the pistol in such a way that a bullet would not enter the chamber as a consequence of the red plug being removed from the chamber.  As such, he did not expect or intend that, by pulling the trigger, the pistol would fire.

12                                          Be that as it may, it is clear that the pistol would not have discharged if the prescribed procedures had been followed, namely if the magazine had not been inserted in the magazine holder while the pistol had a red plug in it.  Failure to follow the procedures resulted in a very serious incident which had the potential for injury or death to Mr Gritsch or any of the five other AFP employees working in the area at the relevant time.   

13                                          The office where the incident occurred was an open-plan design with work stations positioned around the perimeter of the room and a bank of desks in the centre of the room.  One colleague was seated one metre from Mr Gritsch at the time of the unintentional discharge.  Another was three metres away and a third about 12 metres away.  Two other colleagues were in the same work area in close proximity to Mr Gritsch.  One person experienced ringing in the left ear immediately following the incident but apart from this no one was injured or harmed by the incident.

Training in handling and storing pistol

14                                          The facts as agreed disclose that Mr Gritsch had received training and directions with respect to the handling and storage of the Glock pistol and was fully aware of the AFP’s requirements in relation to firearm safety.  In particular he:

1.         held an AFP Use of Force Certificate that had been issued on 6 February 2008 following his completion of use of force training.  The Certificate certified that Mr Gritsch was qualified to use the Glock pistol, amongst other use of force equipment, at the time of the incident.  This certification encompassed theoretical and practical knowledge of the Glock pistol, including knowledge of its specifications, firearm safety, physical handling and accuracy and the use of gun unload bays and loading/unloading devices;

2.         was familiar with the AFP Commissioner’s Order on Use of Force (CO3) as revised on 4 May 2007 …;

3.         had received training relation to CO3;

4.         had received a direction sent to all CPP Unit staff on 27 June 2008 which (i) advised of a requirement to use gun unloading bays for start and end of shifts in preference to the portable unloading devices and (ii) reinforced the need to comply with CO3 ‘explicitly, the safe and secure storage of firearms’;

5.         was familiar with the AFP Practical Guide on Storage of Pistols using the Storage Plug (the Practical Guide) issued on 5 March 2008. …;

6.         had undertaken online video-based training on 2 April 2008, which accompanied the Practical Guide and reinforced its procedures and requirements.

15                                          Mr Gritsch’s actions were contrary to the training and instructions he had received.  In particular they were contrary to express provisions of CO3 which required AFP employees (a) to store their standard issue handguns unloaded prior to ceasing duty; (b) to use a purpose-built gun uploading bay, or an approved portable unloading device, when unloading or loading their standard issue handguns prior to ceasing duty or commencing duty.  They were also contrary to the Practical Guide and video-based training course in that he did not treat the pistol as loaded, he inserted a magazine when the red plug was being used and he failed to check that the chamber of the pistol was clear. 

Investigations into unintentional discharge

16                                          On the afternoon of 9 September 2008, the AFP in accordance with its obligation under s 68(c) of the OH&S Act notified Comcare of the “dangerous occurrence(s)”.  An investigation into the incident by Comcare concluded that the AFP’s policies, procedures and training were appropriate and that it had not contravened any of the requirements imposed on it by the OH&S Act or by the Occupational Health and Safety (Safety Standards) Regulations 1994 (Cth).

17                                          The AFP carried out its own review by way of a Professional Standards Investigation.  Professional Standards is the functional area that maintains and develops standards within the AFP and investigates serious complaints about the conduct of employees.  This was the first time the respondent had been subject to a Professional Standards Investigation.  Prior to the incident, the respondent had been employed by the AFP for over 25 years and had an exemplary disciplinary record

18                                          The Investigation found that Mr Gritsch had contravened the standards imposed by the AFP Commissioner’s Order on Use of Force (CO3) by incorrectly storing and negligently discharging his pistol.  The consequences of the unintentional discharge and of the finding made by the Investigation were extensive.  They were set out in the statement of agreed facts as follows:

1.                  Mr Gritsch was removed from operational duty from the day of the incident (9 September 2008).  Between that date and 3 June 2009, he undertook administrative duties in the CPP Unit.

2.                  Mr Gritsch was transferred from the CPP Unit to the Security Portfolio from 3 June 2009 until 30 September 2009.  The transfer resulted in a reduction in his operational composite from 57% to 22%, which amounts to loss of payments over that period in the amount of $5,869.42.

3.                  In the period from 9 September 2008 until 30 September 2009, by reason of his removal from operational duties in the CPP Unit, Mr Gritsch was  not able to perform duties which could have attracted night shift allowances, on-call allowances and overtime allowances.

4.                  Mr Gritsch’s Use of Force Certificate was revoked during the period September 2008 until September 2009.

5.                  Mr Gritsch was required to undertake use of force training in order to requalify for a Use of Force Certificate.  Ordinarily, the 3 day Use of Force recertification training is mandatory for all officers annually.  Mr Gritsch was required to undertake this training twice in the 12-month period following the unintentional discharge, in October 2008 and again in August 2009.  He was also requird to undertake an additional 5 day training course specifically on the use of the Glock pistol, which he undertook with an intake of new AFP recruits in July 2009.

6.                  Mr Gritsch’s Use of Force Certificate was restored in September 2009.

7.                  Mr Gritsch was required to undergo counselling.  On 15 April 2009, Mr Gritsch was counselled by the National Manager, Protection and the Manager, Close Protection.  This took place in the office of the National Manager.

8.                  A record of the unintentional discharge has been placed on Mr Gritsch’s AFP disciplinary record.

Mr Gritsch returned to the CPP Unit on operational duties from 1 October 2009 until February 2010.

This proceeding

19                                          On 12 February 2010 Comcare filed an application and statement of claim in this Court.  The statement of claim pleaded that the respondent had breached s 21(1)(a) of the OH&S Act which states:

(1) An employee must, at all times while at work, take all reasonably practicable steps:

(a)        to ensure that the employee does not take any action, or make any omission, that creates a risk, or increases an existing risk, to the health or safety of the employee, or of other persons (whether employees or not) at or near the place at which the employee is at work;

20                                          Comcare further pleaded Mr Gritsch’s breach of s 21(1) was a contravention of subclause 2(1) of Schedule 2 of the OH&S Act and that consequently Comcare was entitled to a declaration of contravention and an order imposing a penalty on Mr Gritsch.  In his amended defence filed on 16 September 2010 Mr Gritsch admitted all elements of the statement of claim.  The parties also filed joint submissions in which it was agreed that a penalty of $3,000 was appropriate in all the circumstances of the case.

Conclusion as to breach

21                                          I am satisfied from the evidence before me in the form of the statement of agreed facts and from the admissions made in the defence, that in causing the unintentional discharge of his pistol on 9 September 2008 Mr Gritsch breached s 21(1)(a).  His actions that led to the incident created a risk to the safety of his fellow employees.  That risk could have been avoided by following the prescribed procedures and were thus reasonably practicable steps for him.  

Declarations

22                                          Comcare has asked the Court to make detailed declarations in relation to the breach of s 21(1).  The proposed declarations fully set out the basis on which a breach has been found and also the basis for the penalty which is imposed.  Pursuant to s 21 of the Federal Court of Australia Act 1976 (Cth) the Court has jurisdiction to make declarations of right “whether or not any consequential relief is or could be claimed”.  Clause 2(1) of schedule 2 to the OH&S Act states that if there has been a breach of (inter alia) s 21(1) of the Act the court “must make a declaration” to that effect.  In Comcare v Post Logistics Australasia Pty Ltd [2008] FCA 1987; (2008) 178 IR 200 at [21] Flick J followed a reference to this provision with a comment as to the discretionary nature of the power to make declarations conferred by the Federal Court of Australia Act and commented that the power “is not to be limited by the laying down of rules as to the manner of its exercise” and quoted the following observations of Mason CJ, Dawson, Toohey and Gaudron JJ in Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 581-2:

It is now accepted that superior courts have inherent power to grant declaratory relief. It is a discretionary power which “[i]t is neither possible nor desirable to fetter ... by laying down rules as to the manner of its exercise.” However, it is confined by the considerations which mark out the boundaries of judicial power. Hence, declaratory relief must be directed to the determination of legal controversies and not to answering abstract or hypothetical questions. The person seeking relief must have “a real interest” and relief will not be granted if the question “is purely hypothetical”, if relief is “claimed in relation to circumstances that [have] not occurred and might never happen” or if “the Court's declaration will produce no foreseeable consequences for the parties”.

[citations omitted]

23                                          It is not clear if Flick J intended that it was necessary in a case such as the present to establish the matters that ordinarily underpin a decision to grant declaratory relief independent from a finding of a breach of, in this case, s 21.  In their written submissions the parties submitted that his Honour’s comments should not be so understood.  It may be that the distinction is illusory given the importance of deterrence in issues relating to employer or employee safety.  As Flick J commented at [22]:

Given the functions entrusted to Comcare by the 1991 Act, there can be no question but that Comcare has “a real interest” in securing the relief which is sought.  Indeed, cl 5 to sch 2 of the 1991 Act expressly provides that either Comcare or an investigator may apply for a declaration of contravention.

24                                          In any event I accept the parties’ further submission that, even if this was required, the requirements would be met in this case.  In the circumstances it is not necessary for me to clarify the issue. 

Agreed facts as evidentiary foundation for declarations

25                                          It is well settled that a statement of agreed facts signed by the parties or their legal representatives and adduced in evidence in accordance with s 191 of the Evidence Act 1995 (Cth) may provide a proper evidentiary foundation for making a declaration: Minister for Environment, Heritage and the Arts v PGP Developments Pty Limited (2010) 183 FCR 10 at [30]-[36]; Secretary, Department of Health and Ageing v Prime Nature Prize Pty Ltd (in liquidation) 2010 FCA 597 at [52] and Australian Competition and Consumer Commission v Jetplace Pty Ltd [2010] FCA 759 at [52].  As the breach of s 21 was clearly established by the agreed facts, there was a proper evidentiary basis for the declarations sought by the parties.

Pecuniary penalty

26                                          A contravention of s 21 of the OH&S Act attracts a maximum penalty of 90 penalty units; OH&S Act, Sch 2, cl 4.  A penalty unit is $110 which gives a maximum penalty of $9,900; Crimes Act 1914 (Cth) s 4AA(1).  The penalty of $3,000 proposed by the parties is within the permissible range and, on that scale a penalty of $3,000 is comparatively modest. For reasons given below, however, I am satisfied that the amount proposed by the parties is appropriate. 

Significance of agreement as to penalty

27                                          Another important consideration for the Court is the fact that the parties have agreed that a penalty is appropriate and as to the amount of the penalty.  The principles relevant to the Court’s consideration of agreed penalties were outlined in NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission (1996) 71 FCR 285.  They were summarised and amplified by the Full Court in Minister for Industry, Tourism & Resources v Mobil Oil Australia Pty Ltd [2004] FCAFC 72 (Mobil Oil) at [51] as follows:

The following propositions emerge from the reasoning in NW Frozen Foods:

(i)         It is the responsibility of the Court to determine the appropriate penalty to be imposed under s 76 of the TP Act in respect of a contravention of the TP Act.

(ii)        Determining the quantum of a penalty is not an exact science.  Within a permissible range, the courts have acknowledged that a particular figure cannot necessarily be said to be more appropriate than another.

(iii)       There is a public interest in promoting settlement of litigation, particularly where it is likely to be lengthy.  Accordingly, when the regulator and contravenor have reached agreement, they may present to the Court a statement of facts and opinions as to the effect of those facts, together with joint submissions as to the appropriate penalty to be imposed.

(iv)       The view of the regulator, as a specialist body, is a relevant, but not determinative consideration on the question of penalty.  In particular, the views of the regulator on matters within its expertise (such as the ACCC’s views as to the deterrent effect of a proposed penalty in a given market) will usually be given greater weight than its views on more “subjective” matters.

(v)        In determining whether the proposed penalty is appropriate, the Court examines all the circumstances of the case.  Where the parties have put forward an agreed statement of facts, the Court may act on that statement if it is appropriate to do so. 

(vi)       Where the parties have jointly proposed a penalty, it will not be useful to investigate whether the Court would have arrived at that precise figure in the absence of agreement.  The question is whether that figure is, in the Court’s view, appropriate in the circumstances of the case.  In answering that question, the Court will not reject the agreed figure simply because it would have been disposed to select some other figure.  It will be appropriate if within the permissible range.

28                                          The Full Court in Mobil Oil at [53]-[58] made further observations as to its understanding of the propositions derived from NW Frozen Foods.  These observations reward careful reading and for completeness, and despite their length, warrant setting out here:

First, the rationale for giving weight to a joint submission on penalty is said by the Court to be the savings in resources for the regulator and the Court, as well as the likelihood that a negotiated resolution will include measures designed to promote competition.  …   Of course the arguments in favour of negotiated settlements have to take account of the fact that it is the Court that bears the ultimate responsibility for determining the appropriate penalty.

Secondly, the sixth proposition drawn from the reasoning in NW Frozen Foods does not mean, in our opinion, that the Court must commence its reasoning with the proposed penalty and limit itself to considering whether that penalty is within the permissible range.  A Court may wish to take that approach.  However, it is open to a Court, consistently with the reasoning in NW Frozen Foods, first to address the appropriate range of penalties independently of the parties’ proposed figure and then, having made that judgment, determine whether the prepared penalty falls within the range.

Thirdly, as has been noted, the appellant in NW Frozen Foods admitted contravening the TP Act and had reached agreement with the ACCC upon the facts to be put before the Court.  There was no suggestion that the admissions or statement had been tailored or modified to reflect the difficulties faced by the ACCC in proving its case.  The Full Court therefore acted on the basis of clear admissions and a detailed statement of agreed facts setting out how the contraventions had occurred.  Accordingly, the decision is consistent with the views expressed by the New Zealand High Court in Milk Corporation. Those views are, with respect, correct in principle.

Fourthly, as the Full Court in Australian Competition and Consumer Commission v Ithaca Ice Works Pty Ltd [2002] ATPR 41-851, has pointed out, the regulator should always explain to the Court the process of reasoning that justifies a discounted penalty.  In that case, the ACCC and two contravenors produced an agreed statement of facts, supplemented by affidavit evidence, but they disagreed as to the appropriate penalty.  The trial Judge had previously imposed agreed penalties on other offenders, which the Full Court apparently thought were somewhat low (at 44,543 [51]), and had taken these penalties into account in determining the appropriate penalties to be imposed on the two remaining contravenors.  The Full Court made the following observations (at 44,549 [56]):

“[w]here the Commission proposes to the Court an agreed penalty which is calculated taking into account a substantial discount from what would otherwise be considered the appropriate penalty so as to reflect a degree of co-operation, it would be desirable that the Commission disclose the process by which the discounted penalty has been arrived at.  In particular, it would be of assistance to the Court, particularly where there are other proceedings pending, to hear submissions on the range of appropriate penalties and the discount which it is proposed should be allowed to take into account the level of co-operation afforded by the offender.  Had that been done in the present case, the learned primary judge would have been able to form a view as to the appropriate range of penalty absent co-operation and have then been in the position to calculate an appropriate discount to take into account the exceptional level of co-operation afforded by QIS [one of the offenders].  It is only in this way that a comparison could properly be made between the penalty payable where the offender had offered a high level of co-operation and the penalty payable where the level of co-operation was of a lesser magnitude.”

These observations are consistent with the approach in NW Frozen Foods.  The Full Court in Ithaca Ice was plainly aware of the reasoning in NW Frozen Foods, since it considered the factors discussed in that case as relevant to the quantum of penalty.  It follows that a court considering an “agreed” penalty is entitled to expect the regulator to explain the basis on which a discount from the otherwise appropriate penalty has been calculated having regard to the contravenor’s co-operation and, for that matter, other relevant factors.  (For endorsement of this approach, see Australian Law Reform Commission, Principled Regulation: Federal Civil and Administrative Remedies in Australia (ALRC 95, 2002), pars 30.81 ff.)

Fifthly, there is nothing in NW Frozen Foods that is inconsistent with any of the following propositions:

(i)         The Court, if it considers that the evidence or information before it is inadequate to form a view as to whether the proposed penalty is appropriate, may request the parties to provide additional evidence or information or verify the information provided.  If they do not provide the information or verification requested, the Court may well not be satisfied that the proposed penalty is within the range.

(ii)        If the absence of a contradictor inhibits the Court in the performance of its duties under s 76 of the TP Act, s 13 of the Sites Act, or similar legislation, it may seek the assistance of an amicus curiae or of an individual or body prepared to act as an intervenor under FCR, O 6 r 17.

(iii)       If the Court is disposed not to impose the penalty proposed by the parties, it may be appropriate, depending on the circumstances, for each of them to be given the opportunity to withdraw consent to the proposed orders and for the matter to proceed as a contested hearing.

29                                          Ultimately, as Weinberg J commented in ACCC v Australian Abalone Pty Ltd [2007] FCA 1834 at [121], where the parties have agreed on a penalty the real question is for the court which is not to be regarded as a “rubber stamp”.  The Court must independently consider what penalty should be imposed however, as Weinberg J added at [122]:

Nonetheless, it is a fact that in the vast majority of cases where pecuniary penalties have been agreed the Court has approved those penalties.  That is because the Court is concerned only with whether the agreed penalties are within what is described as the “permissible range”.  Because the determination of a penalty is not an exact science, that range may be quite broad.  If an agreed penalty is “within the range” the Court will generally give it effect.

Factors relevant to determining the amount of pecuniary penalty

30                                          So far as I have been able to determine there have not been any decisions in relation to a breach of s 21 of the OH&S Act.  This accords with the observation to this effect by the parties in their joint submissions.  The parties submitted that assistance as to the appropriate considerations can be found in the reasons for judgment concerning employers who have been found to have breached s 16 of the OH&S Act.  Section 16 imposes obligations on employers similar to those imposed by s 21 on employees.

31                                         Section 16 was considered by Madgwick J in Comcare v Commonwealth of Australia (2007) 163 FCR 207.  His Honour observed at [123] that the principles developed in relation to the equivalent New South Wales legislation ‘provide useful, analogical, general guidance as to the approach to be taken in consideration of penalties under the Commonwealth Act’.  At [120]-123], his Honour identified a number of factors relevant to determining the amount of a pecuniary penalty to be imposed on an employer in respect of a breach of s 16.  In summary, those factors include: the maximum penalty set by the legislature; the vindication of the “social and industrial policies of the legislation and its regime of penalties”; the desirability of specific and general deterrence; the extent of the risk and the gravity of the consequences of the breach; the foreseeability of the risk and whether it was in fact foreseen; the encouragement of vigilance; and whether there was neglect of well-known precautions.  

32                                         Ultimately Madgwick J expressed the view, at [121],  that the overriding principle is that the pecuniary penalty should reflect the Court’s view of the seriousness of the offending conduct; see also Coochey v Commonwealth of Australia (2005) 149 FCR 312 at [73].   A similar approach was taken by North J in Comcare v Commonwealth of Australia (2009) 184 IR 441; 110 ALD 252 and Barker J in Comcare v John Holland Rail Pty Ltd (2009) 188 IR 415 at [137].

33                                         I accept that the factors identified by Madgwick J are also relevant to a breach of s 21 however, there may be considerable differences in the extent to which employers and employees are able to exercise control over the workplace environment.  A safe workplace requires the co-operation between the employer and the employees.  The employer generally has the ability (as well as the obligation) to organise the structural and procedural features of the workplace environment so as to safeguard the employees and, to a greater or less extent, to monitor the employees’ compliance with the safeguards.  The employees’ obligations include observing the safeguards established by the employer.

34                                         Some of the safeguards set in place by a compliant employer will not be susceptible to manipulation by employees.  An example might be the design and layout of a factory floor or the provision of appropriate equipment, training and information.  Other safety and health protections may require compliance by the employees to be effective.  An employer may provide information and training necessary for safe working practices but those precautions will not be effective if employees do not comply. 

35                                         Some aspects of compliance will be able to be monitored by the employer, for example the wearing of protective clothing.  Others are not so susceptible of monitoring by the employer.  The provision of appropriate supervision is within the employer’s obligations under s 16 however it may be impossible or impracticable for an employer to supervise every aspect of an employee’s conduct.  This is more likely to be the case with very senior and skilled employees.  In such cases the obligation of the employee comes to the fore.  It is for the employee to ensure that he or she observes the safety procedures established by the employer and exercises the skills and precautions that have been the subject of training provided by the employer.  A failure to do so will be a breach of s 21 by the employee and, depending on the circumstances, may also involve a breach of s 16 by the employer. 

36                                         The Comcare enquiry into the accidental discharge by Mr Gritsch concluded that the AFP had not breached its obligations under the OH&S Act.  It clearly found that the training and safety precautions adopted for the unloading and carriage of the weapons issued to Mr Gritsch had been adequate.  Mr Gritsch’s failure to observe those precautions resulted in the accidental discharge and was a breach of s 21.  The parties submitted that the pistol would not have fired if Mr Gritsch had taken any of the following basic precautions:

·         not inserting the magazine back into the pistol after carrying out the unload procedure;

·         not storing the pistol with the magazine inserted; and

·         checking the chamber of the pistol was clear before ‘easing the springs’.

37                                         The risk of injury or death from an accidental discharge of the Glock pistol was very high.  In the enclosed space in which Mr Gritsch was handling his pistol it was extremely high.  The risk was certainly foreseeable and had been foreseen by the AFP.  Mr Gritsch’s familiarity with the AFP’s safety precautions was such that I am prepared to infer that the risk had also been foreseen by him although, at the relevant time, it may not have been in the forefront of his consciousness.  The fact that Mr Gritsch had failed to observe the employer’s safety precautions is an aggravating factor.  The procedures and facilities necessary to avoid such an accident were provided for him.  All he had to do was observe the procedures and use the facilities. 

38                                          On the positive side, Mr Gritsch’s unblemished record over a period of 25 years must be taken into account.  It is also appropriate to consider the consequences, other than the pecuniary penalty, of the unintentional discharge for Mr Gritsch; see [18] above.  Those consequences have been severe and have affected both Mr Gritsch’s income and his career status.  It is reasonable to assume that in the comparatively small community of the AFP the unintentional discharge, its consequences and the reason for them would have been widely known especially among those who have been issued with weapons.  Given the AFP’s demonstrated commitment to safety procedures in handling weapons it is reasonable to assume that it would have ensured that this was so.  In my view, this knowledge would have an undoubted deterrent impact. 

39                                          Mr Gritsch has also co-operated fully with the investigations into the incident and subsequent proceedings including participating in interviews and making full admissions as to the contravening conduct.  In their written submissions the parties commented in particular, that Mr Gritsch had filed a defence admitting the contravention in full; had joined in filing a statement of agreed facts and in making the joint submissions.   

40                                          In NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission (1996) 71 FCR 285 at 293 Burchett and Kiefel JJ said:

It is well settled that, in the assessment of a penalty, a respondent withdrawing defences and acknowledging liability is entitled to special consideration of reduction of the amount that would otherwise be assessed.

41                                          The entitlement to special consideration does not amount to entitlement to a deduction however as Barker J recognised in Comcare v John Holland Rail Pty Ltd at [143], a discount pursuant to an admission of liability “serves public policy in that it encourages a respondent to act responsibly, and may achieve a reduction in the public resources that would otherwise be required to prosecute the proceedings against the respondent”.  Importantly, it also indicates a willingness to facilitate the course of justice; Mornington Inn Pty Ltd v Jordan (2008) 168 FCR 383 at [74] per Stone and Buchanan JJ.

42                                          The parties submitted that through his co-operation as described above Mr Gritsch had indicated an acceptance of responsibility, contrition and a willingness to facilitate the course of justice.  Without that co-operation the appropriate penalty would have been $4,000 however, it was submitted that a discount of 25% should be allowed and that therefore a penalty of $3,000 should be imposed.

43                                          In all the circumstances which I have discussed, a pecuniary penalty was appropriate in this case to signify the seriousness of the breach and the discounted amount of $3,000 was appropriate.

Associate:

Dated:         12 November 2010