FEDERAL COURT OF AUSTRALIA

Comcare v Commonwealth of Australia [2012] FCA 1419

THE COURT DECLARES THAT:

1.    On 14 February 2010, the Commonwealth contravened clause 2(1) of Schedule 2, Part 1 of the Occupational Health and Safety Act 1991 (Cth) by reason of it having breached s 16 of that Act in that it:

(a)    failed to take all reasonably practicable steps to provide and maintain a working environment (including plant and systems of work) that was safe for Officer Cadet Minchin (OC Minchin) and without risk to his health, in particular, failing to provide an outboard motor that was adequately guarded on a rigid hull inflatable boat being used in training exercises (the Boat); and

(b)    failed to take all reasonably practicable steps to ensure the safety at work of, and the absence of risks at work to the health of, OC Minchin in connection with the use and handling of plant, in particular, failing to provide an outboard motor on the Boat that was adequately guarded.

2.    The Commonwealth entities to which the conduct related are the Australian Defence Force and the Australian Defence Force Academy.

THE COURT ORDERS THAT:

3.    The respondent is to pay to the Commonwealth of Australia within 14 days a pecuniary penalty of $210,000 for the aforesaid contravention.

4.    The respondent is to pay the applicant’s costs, such costs to be taxed if not agreed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

Introduction

1    This case raises some important issues concerning the determination of an appropriate civil pecuniary penalty under the Occupational Health and Safety Act 1991 (Cth) (the OH&S Act). It arises from a serious incident which occurred on 14 February 2010 when Officer Cadet Oliver Minchin (OC Minchin) was severely injured when he fell from a rigid hull inflatable boat (known as “Big Red”) during what is described as a “fast boat run” exercise being conducted as part of operational training carried out under the auspices of the Australian Defence Force Academy (the ADFA) on Lake Burrinjuck (the Incident). OC Minchin came into contact with the unguarded moving propeller of the boat. He suffered very serious injuries. He lost a significant amount of blood and was lucky to escape death.

2    Most of the relevant facts are set out in an amended statement of agreed facts, to which I will return shortly. The parties invited the Court to accept $190,000 as an appropriate civil pecuniary penalty. This agreed penalty was arrived at after a Court-ordered mediation conducted in November 2011. The parties also agreed on the terms of a declaratory order concerning the Commonwealth’s contravention of the OH&S Act.

3    The primary issues are:

(a)    should the Court accept the parties’ agreed civil pecuniary penalty, particularly in circumstances where it appears to have been reached on the basis of evidence concerning the ADFA’s role and responsibilities which was far more limited than the evidence ultimately placed before the Court;

(b)    in determining that issue, what significance should attach to the fact that there were several prior incidents involving propellers in military training exercises, some involving the Australian Army (the Army), while others involved the ADFA; and

(c)    the significance of the ADFA’s separate role and functions from those of the Army and other sections of the Australian Defence Force (the ADF).

Some background matters

4    The matter came on for hearing before me on 16 August 2012. Both parties had filed various affidavits and Comcare also tendered an agreed statement of facts dated 24 April 2012. It was evident that the agreed statement of facts had been finalised prior to the Commonwealth filing a detailed affidavit dated 2 August 2012 by Lieutenant Colonel Peter Davies. Lieutenant Colonel Davies has overall responsibility for the management of the Army’s interactions with Comcare concerning safety regulation. His evidence described the respective and distinct roles and responsibilities of the Army and the ADFA. Comcare indicated that it did not propose to cross-examine him.

5    In those circumstances, on 16 August 2012 I raised with the parties my concern that the evidentiary material before the Court, including the agreed statement of facts, did not sufficiently describe the ADFA’s role and responsibilities generally, nor its specific involvement and response to the Incident concerning OC Minchin. I indicated at that time that I did not consider that there was an adequate factual foundation for the Court to make an informed view as to whether or not the proposed agreed penalty of $190,000 was an appropriate figure in all the circumstances. Both parties agreed that the evidence needed to be supplemented in order to give a clearer picture of the ADFA’s position and the proceedings were adjourned to enable that to occur.

6    When the hearing resumed on 7 November 2012, the Commonwealth relied upon a detailed affidavit dated 7 September 2012 by Commodore Bruce Kafer, the Commandant of the ADFA. Commodore Kafer had sworn an earlier brief affidavit relating to the Incident, but it did not go into any detail concerning the ADFA’s role and responsibilities before or after the Incident. Commandant Kafer was cross-examined at the resumed hearing on 7 November 2012.

7    The parties also relied upon an amended agreed statement of facts dated 15 October 2012, which document took into account Lieutenant Colonel Davies’ evidence, as well as Commodore Kafer’s more detailed affidavit.

The relevant facts

8    Drawing primarily on the amended agreed statement of facts, but also having regard to the written and oral evidence adduced in the proceedings, the relevant facts and other matters appear to me to be as follows.

(a)    Some structural matters

9    Chief of the Defence Force’s responsibility for OH&S matters: By virtue of s 9(2)(b) of the OH&S Act, members of the ADF are Commonwealth employees and deemed to be employed by the Commonwealth. The Chief of the Defence Force is the “Employing Authority”, as defined in s 5(1) of the OH&S Act (see also Item 1 of Regulation 4 of the Occupational Health and Safety (Safety Arrangements) Regulations 1991 (Cth)).

10    The effect of s 10 of the OH&S Act is that duties are imposed on the Commonwealth as the employer of members of the Defence Force and that such duties are to be performed by the Chief of the Defence Force as if that was done by the Commonwealth. Under s 16(1) of the OH&S Act, the Commonwealth is obliged to take all reasonably practicable steps to protect the health and safety at work of members of the ADF. There is an express obligation imposed by s 16(2)(c) to take all reasonably practicable steps to ensure the safety at work of, and the absence of risks at work to the health of, employees (including members of the ADF) in connection with the use, handling, storage or transport of plant.

11    Structure of the ADF: The ADF is comprised of three single service arms, namely the:

(a)    Royal Australian Navy (RAN);

(b)    Australian Army (Army); and

(c)    Royal Australian Air Force (RAAF).

12    The Chief of the Defence Force is the Employing Authority for members of the ADF in each of the three single services and is the most senior permanent military officer in the ADF. The Chief of the Defence Force commands the ADF, and under the Chief of the Defence Force, individual service chiefs command their respective arms of the Defence Force. The Secretary of the Department and the Chief of the Defence Force are jointly responsible for administration of the Defence Force. Positions which report to the Chief of the Defence Force include:

(a)    the Chief of Navy;

(b)    the Chief of Army;

(c)    the Chief of Air Force; and

(d)    the Vice Chief of the Defence Force.

13    The ADFA provides military education and training and a tertiary academic program for junior officers from the RAN, the Army and the RAAF. The ADFA commenced operations in 1986.

14    Approximately 30% of junior officers undertake their initial military training at the ADFA. The remainder undertake their initial military training at the single service officer training establishments: HMAS Creswell (RAN), Royal Military College – Duntroon (Army) and Officer Training School (RAAF).

15    From about 2002 and up to 14 February 2010, the ADFA was (and continues to be) under the control of the Australian Defence College, a unit that reports directly to the Vice Chief of the Defence Force.

16    The most senior military officer at the ADFA is the Commandant. The Commandant reports to the Commander of the Australian Defence College who, in turn, reports to the Vice Chief of the Defence Force.

17    At all material times the ADFA has operated, for the most part, independently of the three single services. The RAN, the Army and the RAAF had limited influence in relation to the ADFA’s activities and training programs.

18    ADF regulation of vessels: As required by an Instruction dated 25 July 2004 which applied across all three services, each service was required to establish technical regulatory framework (TRF) systems to ensure, amongst other things, the technical integrity of vessels purchased for use by ADF personnel. Clause 11 of the Instruction noted that 'joint organisations', are to nominate and comply with a TRF developed by one of the services

19    Each of the three single services developed its own TRFs. These included provision for risk assessments in relation to vessels to be carried out as part of the procurement process. Further, the TRFs also required risk assessments to be carried out in the course of maintenance and ongoing upkeep of vessels.

20    On and prior to 14 February 2010, the RAN had in place and complied with:

(a)    BR67 – Admiralty Manual of Seamanship (issued May 1995) which prohibited an engine on a vessel to be engaged in close proximity to persons in the water; and

(b)    ABR155 Volume 2 REV 2, RAN Diving Manual – Regulations and Practical Diving Chapters which stated that an engine must not be run or a vessel must not be underway for diving operations if the propeller guard is not fitted.

(b)    The Incident

21    Officer Cadet Minchin: At all material times OC Minchin was a member of the Army and of the Defence Force with the rank of officer cadet, as specified in Item 12, Regulation 8 of the Defence Force Regulations 1952 (Cth).

22    The Year One Familiarisation Training Programme: Between 8 February and 16 February 2010, OC Minchin was required to attend, as part of his duties as a member of the Defence Force, a Year One Familiarisation Training program conducted by the ADFA at and around Lake Burrinjuck NSW (the YOFT program).

23    One of the training exercises in the YOFT program was a fast water insertion exercise. The object of the exercise was for each of the cadet officers to deliberately eject themselves from a moving boat into the water, to simulate activities used in Defence Force operations for the insertion of personnel into the water for tactical reasons.

24    The Boat: Part of the YOFT program involved training exercises using a using a 6.3 metre rigid hulled inflatable boat known as “Big Red” which was powered by a 115 horsepower outboard motor (the Boat). The Boat, and the outboard motor thereon, constituted “plant” as that term is defined in s 5 of the OH&S Act.

25    The purposes for which the Boat was purchased were:

(a)    to act as a safety boat in connection with water activities such as rowing;

(b)    to be used in teaching water insertion techniques;

(c)    to train officers, cadets and midshipmen in the operation of safety boats and power boats; and

(d)    to be used for other ad hoc water-based activities.

26    At all material times (including from its date of purchase by the ADFA on 17 May 2002), the outboard motor on the Boat was not fitted with a propeller guard of any kind.

27    The ADFA did not ensure that the Boat was subject to any TRF then existing for any of the single services prior to it being introduced into service. The Chief of the Defence Force, as the Employing Authority, was ultimately responsible for ensuring that the ADFA acted in accordance with the TRF for one of the single services in respect of the Boat prior to it being introduced into service and subsequently.

28    At no time between 2002 (when the Boat was introduced into service) and 14 February 2010, did the ADFA require that the Boat be maintained or serviced in accordance with any existing TRF for any of the major services.

29    As a consequence of the Boat being purchased outside any TRF regime that applied to any similar purchase by the Army, the RAN or the RAAF, no risk assessment processes were conducted on the Boat either at its procurement or at any time whilst it was in service up until 14 February 2010.

30    At no time during its operation between 2002 and 2010 did the ADFA give any consideration to fitting a propeller guard of any kind to the Boat.

31    The Incident: On 14 February 2010, OC Minchin took part in the fast water insertion exercise, during which the Boat was operated by Petty Officer Nikolai Rofe (PO Rofe).

32    Following the completion of the fast water insertion exercise, PO Rofe suggested a further unscheduled exercise in the Boat. A group of cadet officers (including OC Minchin) reboarded the Boat. PO Rofe then performed a series of manoeuvres, which involved the Boat travelling at fast speed frequently changing directions (Fast Boat Runs), directing the officer cadet passengers (which included OC Minchin) to maintain their hold on the Boat.

33    During one of the Fast Boat Runs, OC Minchin fell overboard, was struck by the Boat’s spinning propeller and sustained very severe injuries, including multiple fractures and deep lacerations. In the interests of OC Minchin’s privacy, it is unnecessary to spell out in detail the particulars of those severe injuries. As a result of his injuries, OC Minchin required numerous surgical procedures and extended hospitalisation.

34    OC Minchin:

(a)    returned to the ADFA on 11 June 2010 on significant medical (weight bearing and activity) restrictions;

(b)    since then has successfully completed military training exercises on an increasing basis, subject to his on-going medical restrictions;

(c)    successfully completed academic subjects from 2010 to 2012;

(d)    has been delayed in his training as a result of his injuries by approximately six months; and

(e)    continues his rehabilitation.

35    Instruction and training provided to OC Minchin:    On 14 February 2010, immediately prior to the fast water insertion exercise, PO Rofe provided a verbal “vessel safety brief” to the officer cadets, including OC Minchin (the Vessel Safety Brief).

36    Part of the Vessel Safety Brief involved PO Rofe reading the following statements from a written document:

(a)    “Keep clear of the Propeller at all times”.

(b)    “Personnel are to keep clear of the stern area (physically indicated by pointing) at all times as the propeller does not house a propeller guard”.

37    As part of the Vessel Safety Brief, PO Rofe also said words to the effect that the propeller of the Boat was unguarded.

38    Immediately prior to commencing the Fast Boat Run, PO Rofe gave a verbal briefing to the officer cadets (including OC Minchin). In this verbal briefing, PO Rofe stated that:

(a)    the same safety rules as the fast water insertion exercise applied;

(b)    the officer cadets were to maintain four points of contact (ie. both feet on the deck and holding on with both hands); and

(c)    he would give a hand signal indicating which way he would turn the Boat prior to turning the Boat.

39    Risk Assessments: On 21 January 2010 the ADFA issued an Administrative Instruction No 006/10 (the Administrative Instruction) to all participants in the YOFT program. The Administrative Instruction included a risk assessment of the fast water insertion exercise between 8 February and 16 February 2010 (the Fast Water Insertion Risk Assessment).

40    The Fast Water Insertion Risk Assessment did not contain any assessment of the risk of any injury to any officer cadet arising from being struck by a spinning propeller.

(c)     Earlier incidents

41    It is convenient now to summarise several earlier incidents which are relevant to the assessment of an appropriate civil pecuniary penalty in this matter.

42    First Incident: On 25 September 2004, Corporal Daniel Thomas Yeo, a member of the Defence Force (Army) was injured when he fell overboard from a rigid hull inflatable boat known as a “Zodiac” (Zodiac) at the Cowley Beach Queensland Training Area, whilst on an Army training exercise. His right foot came into contact with the Zodiac’s spinning 25 horsepower propeller, thereby suffering severe lacerations (the First Incident).

43    The Zodiac was fitted only with a ring propeller guard, rather than a full “cage” propeller guard.

44    Inspector Leon Thomas, an investigator employed by the applicant, was appointed under s 40 of the OH&S Act to undertake an investigation of the First Incident. He prepared a report dated 3 May 2005 (First Incident Report). A copy of the First Incident Report was provided by Comcare to the Commonwealth under cover of a letter dated 9 May 2005 to Rear Admiral Brian Adams. In that Report, Investigator Thomas recommended that the Defence Force (Army) undertake a comprehensive risk assessment in relation to, inter alia, the guarding of outboard motor propellers of all sizes, including whether the ring propeller guards in service were adequate and the availability of a more suitable method of guarding.

45    Investigator Thomas also recommended that the Defence Force (Army) consider additional suitable controls in accordance with that risk assessment, to eliminate or, if it was not possible to eliminate, minimize all risks identified with the use of motorised propellers attached to Zodiacs used by cadets (including consideration of the use of guarding), especially those used in activities where cadets do or may enter the water in the vicinity of the propellers.

46    Investigator Thomas noted that Surf Life Saving Australia (SLSA) had identified the risk of serious injury to persons in the water from improperly guarded outboard motors in rescue situations and had developed a specific policy to address the guarding of outboard motor propellers, requiring the propeller to be fully enclosed.

47    Second Incident: On 14 November 2004, Private Andrew Kenneth Clough, a member of the Defence Force (Army) was injured when he fell overboard from a Zodiac at the Cowley Beach Queensland training area, whilst on an Army training exercise. His right foot came into contact with the Zodiac’s spinning 40 horsepower propeller, thereby suffering severe lacerations and amputation of the big toe and ball of his right foot (the Second Incident).

48    The Zodiac was fitted only with a ring propeller guard, rather than a full “cage” propeller guard.

49    Inspector Thomas was again appointed under s 40 of the OH&S Act to undertake an investigation of the Second Incident. He prepared a report dated May 2005 (Second Incident Report). The Second Incident Report was provided to the Commonwealth under cover of Comcare’s letter dated 26 July 2005 to Major General Michael Evans. In that Report, Investigator Thomas again recommended that the Defence Force (Army) undertake a comprehensive risk assessment in relation to, inter alia, the guarding of outboard motor propellers of all sizes, including whether the ring propeller guards in service were adequate and the availability of a more suitable method of guarding. He also recommended that the Defence Force (Army) implement reasonably practicable controls in relation to the use of boats in such exercises.

50    Investigator Thomas noted again that SLSA had identified the risk of serious injury to persons in the water from improperly guarded outboard motors in rescue situations and had developed a specific policy to address the guarding of outboard motor propellers, requiring the propeller to be fully enclosed.

51    Third Incident: On 25 September 2006, Cadet Corporal Tess Louise Bogle (Bogle), a member of the Australian Army Cadets, was injured when she fell overboard from a Zodiac at Lake Creswood, Deongwar State Forest, Queensland, whilst attending an Army Cadet camp. Her hands came into contact with the Zodiac’s spinning 25 horsepower propeller, and she thereby suffered severe lacerations to both hands and a partial amputation of the middle finger of her right hand (the Third Incident).

52    The Zodiac was fitted only with a ring propeller guard, rather than a full “cage” propeller guard.

53    Inspector Tomos Reaburn, an investigator employed by the applicant, was appointed under s 40 of the OH&S Act to undertake an investigation of the Third Incident. Investigator Reaburn prepared a report dated 5 June 2009 (Third Incident Report). The Third Incident Report was provided to the Commonwealth under cover of Comcare’s letter dated 5 June 2009 to the Chief of Army.

54    Investigator Reaburn recommended:

(a)    that the Commonwealth, through the Chief of Army, conduct and/or review risk assessments for the use (especially guarding) of motorised propellers attached to Zodiacs utilised by cadets, especially those used in activities where cadets do or may enter the water in the vicinity of the Zodiacs, in accordance with Parts 1 and 4 of the Occupational Health & Safety (Safety Standards) Regulations 1991 (Cth) and Part 1 of the Occupational Health & Safety Code of Practice; and

(b)    in accordance with that risk assessment, the Commonwealth, through the Chief of Army, implement suitable controls to eliminate or, if it is not possible to eliminate, minimise all risks identified with the use of motorised propellers attached to Zodiacs (especially guarding) used by cadets, especially those used in activities where cadets do or may enter the water in the vicinity, to ensure compliance with Part 4 of the Occupational Health & Safety (Safety Standards) Regulations 1994 (Cth).

55    Fourth Incident: On 11 February 2009, Officer Cadet Naomi Brooks, a member of the Defence Force (Army) was injured when she exited a Zodiac at the Burrinjuck Dam, during a fast water insertion exercise conducted by the ADFA. Her leg came into contact with the side of the vessel, thereby suffering a graze (the Fourth Incident).

56    Fifth Incident: On 11 February 2009, Officer Cadet Patrick Coleman, a member of the Defence Force (RAAF) was injured when he dismounted from a rigid hull inflatable boat (RHIB) during a fast water insertion exercise conducted as part of the YOFT programme. OC Coleman was run over by a RHIB, his swimming gear became caught in the propeller and he suffered grazes to the right side of his body (the Fifth Incident).

57    Sixth Incident: On 11 February 2009, Officer Cadet Aaron How, a member of the Defence Force (RAAF), took part in training in the YOFT programme conducted by the ADFA at Lake Burrinjuck, NSW. Whilst he was swimming (with approximately 5 other cadets) across Lake Burrinjuck, an RHIB approached, its motor was then shut off but it still ran over him. He did not sustain any physical injury (the Sixth Incident).

58    The ADFA’s Response to Incidents 1, 2 & 3: None of the First, Second nor Third Incident Reports was provided, or reported upon, to the ADFA.

59    As a result of the First and Second Incident Reports, the Army briefed the Defence Materiel Organisation (DMO) to complete a safety case study (DMO Safety Case Study), which included conducting a risk assessment concerning the use of outboard motors in operational training. The DMO Case Study determined that:

(a)    the Army operational training environment was substantially different from that faced by SLSA;

(b)    cage propeller guards were not viable in Army operational training; and

(c)    modified ring guarded propellers were the most practical solution for Army operational training.

60    Following consideration of the DMO Safety Case Study, the Army determined to continue the use of ring propeller guards in conjunction with safety protocols and control.

61    The DMO Safety Case Study was not provided, nor reported upon, to the ADFA. The Chief of the Defence Force, as the Employing Authority, was ultimately responsible for ensuring that the DMO Safety Case Study was provided, or reported upon, to the ADFA.

62    Following the Third Incident Report, the Army asked the DMO to conduct a review of the extant risk appreciation for ring propeller guards and the associated technical instructions (DMO Review). The DMO Review recommended that no adjustments be made in response to the Third Incident Report. The Army revised its policy and procedures in relation to the communication of tasks and the supervision of activities and ensured that they were implemented within the Australian Army Cadets.

63    Neither the DMO Review nor the steps taken by the Army in response thereto were provided, or reported upon, to the ADFA. The Chief of the Defence Force, as the Employing Authority, was ultimately responsible for ensuring that the DMO Review was provided, or reported upon, to the ADFA, and that steps be taken to review the use of propeller guards on vessels used by the ADFA.

64    Commonwealth’s knowledge: It is significant to note that it is an agreed fact that, by reason of the First to Sixth Incidents, the Commonwealth knew that:

(a)    there was a foreseeable risk of injury arising out of the use of vessels such as the Boat or similar vessels with unguarded propellers in water-based activities and training with defence personnel; and

(b)    there was a reasonably practicable step available, being the installation of full propeller guards, to eliminate or reduce that foreseeable risk of injury.

65    The Commonwealth did not install full propeller guards on the Boat or any similar craft used by the ADFA:

(a)    after receipt of the First, Second or Third Incident Reports; or

(b)    after the Fourth to Sixth Incidents,

and did not do so until after the Incident the subject of these proceedings.

66    Nature of Risk: The parties also agreed that the risk arising from the acts and omissions of the Commonwealth was of the most serious kind and included a risk of serious physical injury, psychological trauma and death.

67    Prohibition Notice: Following the Incident, Comcare issued a Prohibition Notice dated 25 February 2010, under which the following activity was prohibited:

The use of all ADFA RHIBs with inadequately guarded propellers. Inadequately guarded propellers will include (but may not be limited to) those propellers without protective devices which prevent the propellers’ blades from inadvertently causing any form of laceration or other injury.

68    The Prohibition Notice required the Commonwealth to satisfy Comcare that adequate action had been taken to remove or reduce the risk to health and safety to ADFA members and personnel who participated in training involving RHIBs. It required a suitably qualified independent expert to be retained and make recommendations on reasonably practicable steps which were available to eliminate or minimise risks to health and safety posed by RHIB propeller blades. It also required the ADFA to implement all the reasonably practicable steps identified by the independent expert.

69    The Commonwealth fully complied with the Prohibition Notice.

70    Action by the Commonwealth after the Incident: At various times after the Incident, the Commonwealth implemented the following changes to its plant, systems and work practices at the ADFA:

(a)    ceased using the Boat for any ADFA activities;

(b)    identified and made arrangements for the Boat’s disposal;

(c)    undertook a risk assessment of the appropriate guarding to be used on all remaining ADFA vessels with outboard motors;

(d)    concluded that the most appropriate guarding was that known as the Programmed Engineering Services Australia propeller guard (PESA guards), being the same guard as had been used and were continuing to be used on SLSA boats;

(e)    endorsed the use of SLSA’s policy statement dated May 2001 on propeller safety guards for use on inflatable rescue boats; and

(f)    installed the PESA guards on all remaining powered vessels with outboard motors operated by the ADFA.

71    On 16 August 2010, the RAN provided a Minute to the ADFA Commandant which, amongst other things, concluded that:

(a)    ADFA powered craft will be used in very close proximity to persons in the water;

(b)    a propeller guard would reduce the risk of a person in the water; and

(c)    ADFA powered craft had limited performance requirements, therefore any reduction in performance due to the fitting of a propeller guard would have limited consequence.

72    It was an agreed fact that the Commonwealth fully cooperated with Comcare’s investigation of the Incident.

Agreed proposed orders and declarations

73    The amended agreed statement of facts included the following paragraphs, which contain various admissions by the Commonwealth:

On, or shortly before, 14 February 2010, the Respondent breached its duty under section 16(1) of the OH&S Act to take all reasonably practicable steps to protect the health and safety at work of its employee (in this case, Member), OC Minchin, in that it:

(a)    failed to take all reasonably practicable steps to provide and maintain a working environment (including plant and systems of work) that was safe for OC Minchin and without risk to his health, in particular, failing to provide an outboard motor on the Boat that was adequately guarded;

(b)    failed to take all reasonably practicable steps to ensure the safety at work of, and the absence of risks at work to the health of, OC Minchin in connection with the use and handling of plant, in particular, failing to provide an outboard motor on the Boat that was adequately guarded.

The reasonably practicable steps which could have been taken by the Respondent through its employing authority, the Chief of the Defence Force, which would have protected OC Minchin from or reduced his exposure to the risk of being injured from contact with the spinning outboard propeller on the Boat included the following:

(a)    to not use the Boat for any of the water based exercises (including the Fast Water insertion or the Fast Boat Runs) on 14 February 2010, in the absence of a full propeller guard being fitted to the propeller on the Boat;

(b)    to apply adequate guarding to the outboard motor propeller of the Boat prior to its use.

74    The parties jointly proposed that, if acceptable to the Court, the following declaration and orders be made:

(a)    A declaration that the Commonwealth contravened clause 2(1) of Schedule 2, Part 1 of the OH&S Act in that on or about 14 February 2010 the Commonwealth breached s 16 of the OH&S Act.

(b)    An order that the Commonwealth pay a pecuniary penalty because of its contravention of clause 2(1) of Schedule 2, Part 1 of the OH&S Act in the amount of $190,000.

(c)    The Commonwealth pay Comcare’s costs as agreed or assessed.

75    For reasons which will emerge below, I consider that some amendments are required to the proposed terms of the declaration and orders.

Summary of Comcare’s submissions

76    Comcare approached the matter on the basis that it was bound by the outcome of the Court-appointed mediation conducted in November 2011. Accordingly, it did not seek to alter the jointly proposed penalty of $190,000. Having said that, however, Comcare emphasised at the resumed hearing on 7 November 2012 that that figure was not binding on the Court. It submits that the matter is one which warrants a high penalty, given the grave objective seriousness of the contravention and the Commonwealth’s failure to address the risk.

77    The following matters are highlighted by Comcare as warranting a high civil pecuniary penalty:

(a)    the ADF’s organisational structure, reporting lines and apparent absence of any effective communication between the major services and the ADFA on OH&S matters was a significant causative factor in the failure of the Chief of the Defence Force to ensure compliance with the OH&S Act;

(b)    in particular, there was no co-ordinated approach to regulation, policy or event information-sharing;

(c)    the Chief of the Defence Force did not ensure promulgation of information about the six prior incidents involving unguarded propellers;

(d)    it is common ground that the risk which materialised in the Incident was readily apparent and may have resulted in death;

(e)    whilst the Army, the RAN and the RAAF have all developed their own TRFs, the Chief of the Defence Force failed to take any steps to ensure that any of those TRFs was adopted by the ADFA or that the ADFA developed its own TRF. This was all the more a serious failure because the ADFA’s employees were likely to be the least trained and therefore the most vulnerable to safety risks arising from the use of unguarded propellers on vessels in water-based activities;

(f)    since 2010 the RAN had recognised and addressed the inherent damage of unguarded propellers, but the Chief of the Defence Force failed to take appropriate steps to ensure that similar arrangements applied to the ADFA;

(g)    the risk of injury arising from the absence of propeller guards had been highlighted by six incidents dating back to September 2004, including three incidents which occurred on 11 February 2009 involving three ADFA cadets who came into contact with vessels with unguarded propellers in the same place as where OC Minchin was injured, Lake Burrinjuck;

(h)    despite those six earlier incidents, the Chief of the Defence Force failed to take any of the following steps prior to the Incident:

    direct that full propeller guards be installed on all boats used for training exercises across the ADF;

    discontinue the use of boats within the ADF which did not have propeller guards;

    advise the ADFA of the first three incidents; or

    disseminate to the ADFA any of Comcare’s reports and recommendations in respect of the first three incidents;

(i)    it was only after very serious injuries were sustained by OC Minchin on 14 February 2010 that the Chief of the Defence Force adopted a policy of mandating caged propellers on boats used during Army cadet training;

(j)    this was a serious contravention in circumstances where there was a high level of foreseeability of the risk of injury having regard to the following matters:

    the Chief of the Defence Force must have known the conditions in which the Boat was required to operate and that those conditions created a high foreseeability of the risk of serious injury;

    the Chief of the Defence Force’s actions (or inactions) constituted a failure to address a known or foreseeable risk; and

    the Chief of the Defence Force failed to take reasonably practicable steps to ensure the safety of the Boat’s operations; and

(k)    although the Commonwealth admits that it was aware of readily available steps to address the foreseeable risk of injury (i.e. by fitting full propeller guards), no action was taken to convey those matters to the ADFA, a failure which reflects poorly on the Chief of the Defence Force in terms of the lack of coordination and inter-communication with the ADFA as part of the ADF’s organisational structure;

(l)    taking into account the six previous incidents, there is a need for specific and general deterrence in this matter.

78    Comcare also contends that mitigating factors here include the immediate steps taken by Commodore Kafer on the day of the Incident, namely:

    cancelling all ADFA activities at Lake Burrinjuck;

    arranging for counselling of cadets and staff who were involved in the Incident;

    speaking to OC Minchin’s mother personally;

    verbally informing ADFA’s leadership;

    preparing relevant reports; and

    assisting the New South Wales Police in their investigations of the Incident.

79    Comcare also acknowledges that it is relevant to note in the Commonwealth’s favour that after the Incident the ADFA implemented the changes outlined at [70] above.

80    Comcare also draws attention to the fact that the Commonwealth generally cooperated and admitted liability (although Comcare added that this was only secondary, bearing in mind that the primary consideration in assessing penalty is the gravity of the contravention itself).

81    While Comcare acknowledges that certain remedial steps had been implemented after the Incident, it expressly rejects the Commonwealth’s claim that adequate measures are now in place to share information regarding safety incidents across different sections of the ADF (i.e. across the Army, the RAN, the RAAF and the ADFA). In particular, Comcare emphasises that there is no evidence that the Chief of the Defence Force has issued any directive or policy instruction aimed at ensuring that an effective communication and information sharing system is in place regarding OH&S matters. It submits that, absent such a directive, there is a risk that the systemic communication failures will continue.

82    Finally, Comcare submits that, while there is a risk of serious injury, if not death, in this matter, the actual injuries sustained by OC Minchin are only to be taken into account as illustrating the objective seriousness of the risk. Reliance is placed on paragraph (iv) of the Madgwick factors (see further below at [96]) in support of that submission.

Summary of Commonwealth’s submissions

83    The primary relevant points made by the Commonwealth can be summarised as follows:

(a)    because the obligations imposed by s 16 focus on risk, it is not appropriate to determine the seriousness of a contravention by consideration of the actual consequences of the particular contravention. The appropriateness of a particular penalty should be determined by the nature and seriousness of the contravention, not the consequences that result from it. Reliance is placed on Barker J’s observations in Comcare v Transpacific Industries Pty Ltd [2012] FCA 90 at [57] in support of the proposition that the seriousness of an injury is not an appropriate basis upon which to assess penalty;

(b)    the maximum penalty should not be imposed in circumstances where there was no conscious decision to flout the law;

(c)    because of its function as an initial entry training establishment, the ADFA does not sit within the developed governance and reporting structures of the major services, rather it operates separately and independently;

(d)    the previous incidents are relevant in providing evidence as to foreseeability and context, but they themselves are not the subject of any charge and Comcare was satisfied with the Commonwealth’s investigation of, and response to, the first three incidents;

(e)    the Commonwealth accepted “without reservation” that the safety systems in place at the ADFA at the time of the Incident were inadequate, but it draws attention to the following measures which were undertaken after the Incident with the aim of improving safety:

    immediately determining to implement fully enclosed propeller guards;

    promptly ceasing to perform the fast water turning exercises;

    conducting an independent audit in mid-2010 of the ADFA’s work health and safety organisation;

    in early 2011 recruiting an ADFA safety systems manager (although this position was later transferred to the Australian Defence College);

    following the transfer of the safety systems manager to the Australian Defence College, the ADFA recruited a work health and safety manager in early 2012;

    establishing a group work health and safety coordinator within the Vice Chief of the Defence Force Group (VCDF) (within which Group both the ADFA and the Australian Defence College fall). The VCDF Group was established for the purpose of providing a command and control structure for the provision of tri-service or “joint” products and services across the ADF;

    introducing an organisational risk management platform (ORM platform) to assess risk associated with a wide variety of the ADFA’s activities (including all boat activities) and develop methods for treating risks;

    requiring that, as part of the operation of the ORM platform, reference be made to resources external to the ADFA; and

    developing comprehensive “standing risks assessments” and treatments for identified risks to comply with international work health and safety standards;

(f)    a further external audit of the ADFA work health and safety system was conducted in 2012; and

(g)    compulsory training programs for all ADFA staff, midshipmen and officer cadets in relation to matters appertaining to the Work Health and Safety Act 2011 (Cth) (2011 Act) had been implemented.

84    The Commonwealth also draws attention to the fact that a protocol on communication had been endorsed in January 2012 by both Defence and Comcare. The stated aim of the protocol is to define the process of communications between Comcare and Defence (both the ADF and civilian sides) in relation to matters arising under the 2011 Act. On the specific issue of communications within the ADF of OH&S matters, emphasis is placed on the fact that, under the protocol, Defence is obliged to “circulate report findings and where applicable assess the effectiveness of corporate policy for potential organisational systemic shortfalls” (page 3 of the protocol).

85    The Commonwealth submits that the jointly proposed penalty of $190,000 is an appropriate amount and is within the permissible range (which was said to be in the “upper range” of penalties), and reiterates that there was no conscious decision to flout the law.

consideration

86    I shall now summarise the relevant statutory provisions and legal principles bearing upon the determination of an appropriate civil pecuniary penalty in the circumstances here.

The relevant statutory provisions

87    It is to be noted that the OH&S Act was replaced on 1 January 2012 by the 2011 Act. It is common ground, however, that under the transitional provisions, the OH&S Act remains the relevant legislation here (Schedule 2 of the Work Health and Safety (Transitional and Consequential Provisions) Act 2011 (Cth)).

88    Part of the statutory context is provided by the objects in s 3 of the OH&S Act, which are as follows:

(a)    to secure the health, safety and welfare at work of employees of the Commonwealth and of Commonwealth authorities and non-Commonwealth licensees; and

…

(d)    to promote an occupational environment for such employees at work that is adapted to their needs relating to health and safety; and

…

(f)    to encourage and assist employers, employees and other persons on whom obligations are imposed under the Act to observe those obligations; and

(g)    to provide for effective remedies if obligations are not met, through the use of civil remedies and, in serious cases, criminal sanctions.

89    The relevant statutory duty imposed upon an employer is contained in s 16(1), which provides as follows:

(1)    An employer must take all reasonably practicable steps to protect the health and safety at work of the employer’s employees.

90    In the circumstances of this matter, that general duty needs to be read in conjunction with s 16(2)(c), which relevantly provides:

(2)    Without limiting the generality of subsection (1), an employer contravenes that subsection if the employer fails to take all reasonably practicable steps:

    …

(c)    to ensure the safety at work of, and the absence of risks at work to the health of, the employees in connection with the use, handling, storage or transport of plant or of substances; and

…

91    The OH&S Act provides a range of civil and criminal remedies for contraventions of the OH&S Act. The remedies are set out in Schedule 2. The civil remedies include declarations of contravention (clause 2) and pecuniary penalty orders (clause 4). It should also be noted that the Commonwealth is not subject to any criminal sanctions under the OH&S Act (s 11). It is placed in a different, and seemingly more privileged, position than other employers who are covered by that legislation.

92    As noted above, the parties have an agreed position regarding the terms of the declaratory order, as well as the amount of a pecuniary penalty payable by the Commonwealth. The provisions concerning those particular remedies are set out in clauses 2 and 4 of Schedule 2, which relevantly are as follows:

2    Declarations of contravention

(1)    If a court considers that a person has breached one of the following provisions, or was involved in such a breach, it must make a declaration that the person has contravened this subclause:

(a)    subsection 16(1) (duties of employers in relation to their employees etc.);

…

(3)    A declaration of contravention made under subclause (1) must specify the following:

(a)    the court that made the declaration:

(b)    that the subclause was contravened;

(c)    any provision that the person who contravened that subclause breached or was involved in breaching;

(d)    the person who contravened that subclause;

(e)    the conduct that constituted the contravention;

(f)    the Entity, Commonwealth authority or non-Commonwealth licensee to which the conduct related.

…

4    Pecuniary penalty orders

(1)    If a court has declared, under subclause 2(1), a contravention of that subclause by a person because the person breached, or was involved in the breach of, a provision listed in that subclause, the court may order the person to pay the Commonwealth a pecuniary penalty.

93    Clause 4(2) of Schedule 2 contains a table providing the maximum penalties for breach of any of the provisions in clause 2(1), and provides that the maximum penalty for a breach of s 16(1) is 2,200 penalty points, which equates to $242,000 by virtue of the operation of s 4AA of the Crimes Act 1914 (Cth). As Madgwick J observed in Comcare v Commonwealth (2007) 163 FCR 207 at [1] (“Trooper Lawrence”), this is “a relatively low limit”.

Relevant legal principles

94    The parties substantially agreed on the relevant legal principles. There are, however, two particular matters which require some analysis. First, the relevant principles in determining an appropriate civil pecuniary penalty under the OH&S Act. Secondly, the appropriate principles in circumstances where the Court is asked to endorse the parties’ agreement as to the quantum of an appropriate civil penalty. I will deal with each of those subjects in turn.

(a)    Civil pecuniary penalty principles

95    It is to be noted that the OH&S Act does not contain any provisions which explicitly list factors to be taken into account in determining an appropriate civil pecuniary penalty. That is to be contrasted with other Commonwealth legislation imposing civil pecuniary penalties. For example, the Court has a power under the Therapeutic Goods Act 1989 (Cth) to order a person to pay a pecuniary penalty for contravening civil penalty provisions in that legislation. Section 42Y(3) of that Act provides the following guidance in determining the quantum of such a pecuniary penalty:

42Y    Federal Court may order person to pay pecuniary penalty for contravening civil penalty provision

    …

Court may order wrongdoer to pay pecuniary penalty

(2)    If the Court is satisfied that the wrongdoer has contravened a civil penalty provision, the Court may order the wrongdoer to pay to the Commonwealth for each contravention the pecuniary penalty that that Court determines is appropriate (but not more than the maximum amount specified for that provision).

Determining amount of pecuniary penalty

(3)    In determining the pecuniary penalty, the Court must have regard to all relevant matters, including:

    (a)    the nature and extent of the contravention; and

(b)    the nature and extent of any loss or damage suffered as a result of the contraventions; and

(c)    the circumstances in which the contravention took place; and

(d)    whether the person has previously been found by the Court in proceedings under this Act to have engaged in any similar conduct.

    …

96    Although the OH&S Act contains no comparable express list of relevant factors, various guidance is provided by the caselaw. Probably the leading first instance decision in this context is that of Madgwick J in Trooper Lawrence. Drawing on various decisions of New South Wales courts concerning criminal sanctions under that State’s occupational health and safety legislation, Madgwick J identified the following factors at [120] as being relevant to penalty (the so-called “Madgwick factors”):

(i)    the penalty must be such as to compel attention to occupational health and safety generally, to ensure that workers whilst at work will not be exposed to risks to their health and safety;

(ii)    it is a significant aggravating factor that the risk of injury was foreseeable even if the precise cause or circumstances of exposure to the risk were not foreseeable;

(iii)    the offence may be further aggravated if the risk of injury is not only foreseeable but actually foreseen and an adequate response to that risk is not taken by the employer;

(iv)    the gravity of the consequences of an accident does not of itself dictate the seriousness of the offence or the amount of penalty. However the occurrence of death or serious injury may manifest the degree of the seriousness of the relevant detriment to safety;

(v)    a systemic failure by an employer to appropriately address a known or foreseeable risk is likely to be viewed more seriously than a risk to which an employee was exposed because of a combination of inadvertence on the part of an employee and a momentary lapse of supervision;

(vi)    general deterrence and specific deterrence are particularly relevant factors in light of the objects and terms of the Act;

(vii)    employers are required to take all practicable precautions to ensure safety in the workplace. This implies constant vigilance. Employers must adopt an approach to safety which is proactive and not merely reactive. In view of the scope of those obligations, in most cases it will be necessary to have regard to the need to encourage a sufficient level of diligence by the employer in the future. This is particularly so where the employer conducts a large enterprise which involves inherent risks to safety;

(viii)    regard should be had to the levels of maximum penalty set by the legislature as indicative of the seriousness of the breach under consideration;

(xi)    the neglect of simple, well-known precautions to deal with an evident and great risk of injury, take a matter towards the worst case category;

(x)    the objective seriousness of the offence, without more may call for the imposition of a very substantial penalty to vindicate the social and industrial policies of the legislation and its regime of penalties.

97    The Madgwick factors have been regarded as a useful guide in determining an appropriate penalty in other first instance decisions of the Court, which include Comcare v Commonwealth of Australia (2009) 184 IR 441 (“Cadet Francis”) at [69]-[71] per North J; and Comcare v Subsee Explorer Pty Ltd (2011) 210 IR 322 at [41]-[44] per Collier J. While acknowledging the need to give paramount consideration to the terms of the legislation itself, the Full Court recently accepted that the Madgwick factors “provide a useful foundation or starting point for an assessment of a civil pecuniary penalty”, and that although there is no requirement specifically to refer to those factors, in most cases it is prudent to do so (see Comcare v Post Logistics Australasia Pty Limited [2012] FCAFC 168 at [68] and [69]).

98    There is a separate aspect of Trooper Lawrence which requires some comment in the light of the Commonwealth’s submission that the maximum penalty cannot be imposed unless there was a conscious and deliberate decision to flout the law. In Trooper Lawrence, Madgwick J expressed the view at [125] that he could not impose the maximum penalty because “there was no conscious decision to flout the law”, with the consequence that “this is not quite in the worst class of case”.

99    I respectfully agree with the observations of North J in Cadet Francis at [78] regarding Madgwick J’s remarks. In particular, I too doubt that Madgwick J was seeking to enunciate a general principle, as opposed to referring to the circumstances of the particular case before him. In my view, the maximum penalty (or an amount close to it) may well be appropriate in a particular case even though there is no conscious or contumelious decision to flout the law. I might add that it is difficult to imagine that the Commonwealth would ever deliberately flout the law. In those circumstances, acceptance of the Commonwealth’s proposition that the maximum penalty should never be imposed absent a deliberate flouting of the law, would mean that the Commonwealth would never have to bear the maximum penalty even in an otherwise extreme case. I do not accept that proposition.

(b)    Principles where parties agree on penalty

100    The relevant principles guiding a primary judge where the parties present an agreed position on the amount of a civil pecuniary penalty are helpfully provided in two decisions of the Full Court, namely NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission (1996) 71 FCR 285 at 291 per Burchett and Kiefel JJ and Minister for Industry, Tourism & Resources v Mobil Oil Australia Pty Limited [2004] FCAFC 72; [2004] ATPR ¶41-993, per Branson, Sackville and Gyles JJ. Although neither of those decisions involved the OH&S Act, I consider that the stated principles are relevant to these proceedings.

101    The principles may be summarised as follows (relying on what was stated in Mobil Oil at [51]-[60]). First, the following principles may be derived from NW Frozen Foods:

(a)    it is the responsibility of the Court to determine the appropriate penalty to be imposed in respect of a contravention of the relevant legislation;

(b)    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;

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

(d)    the view of the regulator, as a specialist body, is a relevant – but not determinative – consideration on the question of penalty;

(e)    in determining whether a 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; and

(f)    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 is appropriate if it is within the permissible range.

102    Secondly, the Full Court in Mobil Oil added the following further five considerations:

(a)    the rationale for giving weight to a joint submission on penalty relates to the savings in resources for the regulator and the Court. The savings in resources can be used by the regulator to increase the likelihood that other contraveners will be detected and brought before the courts. This has the effect of increasing deterrence. The arguments in favour of negotiated settlements have to take account of the fact that it is the Court which bears the ultimate responsibility for determining the appropriate penalty;

(b)    the sixth principle drawn from the reasoning in NW Frozen Foods set out in [101(f)] above does not mean 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 proposed penalty falls within the range;

(c)    the appellant in NW Frozen Foods admitted contravening the TP Act and had reached agreement with the regulator 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 regulator 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;

(d)    as the Full Court indicated in Australian Competition & Consumer Commission v Ithaca Ice Works Pty Ltd [2001] FCA 1716; [2002] ATPR ¶41-851, the regulator should always explain to the Court the process of reasoning that justifies a discounted penalty; and

(e)    there is nothing in NW Frozen Foods which 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 performance of its duties it may seek the assistance of an amicus curiae or of an individual body prepared to act as an intervenor under the relevant Federal Court Rules; and

(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 matters to proceed as a contested hearing.

103    Those guiding principles have been applied subsequently in cases in various statutory contexts, such as Australian Competition and Consumer Commission v Qantas Airways Ltd (2008) 253 ALR 89 at [25]-[27] per Lindgren J; Australian Competition & Consumer Commission v PRK Corporation Pty Ltd [2009] FCA 715; [2009] ATPR ¶42-295 at [20]-[27] per Jacobson J and in Australian Communications and Media Authority v Radio 2UE Sydney Pty Ltd (No 2) (2009) 178 FCR 199 at [48]-[54] per Rares J.

104    Having regard to the principles summarised above, I shall now set out the primary considerations which I have taken into account in forming the view that this matter warrants a civil pecuniary penalty within a very high range.

105    First, in my view, there was not only a foreseeable risk of serious injury or death arising from the use of the Boat in the Fast Boat Run, there was a very high foreseeable risk. Such a finding flows not only from the inherently dangerous use of a boat with unguarded propellers in such exercises, but from the fact that there had been no less than six similar incidents dating back to September 2004 which, in varying degrees, highlighted that risk.

106    Secondly, that risk was either known or ought to have been known by the Chief of the Defence Force having regard to both the factors referred to immediately above.

107    Thirdly, as is common ground, there was available a reasonably practicable step which would have protected OC Minchin (or at least reduced his exposure to the risk of being injured by coming into contact with the unguarded propeller). As the Commonwealth acknowledges, the reasonably practicable step was to only use the Boat for the relevant water-based exercises if adequate guarding was applied to the outboard motor propeller.

108    Fourth, the Commonwealth’s failure to take appropriate steps to address that highly foreseeable risk involved a fundamental systemic failure on the part of the Commonwealth. This systemic failure relates to the clear absence, prior to the Incident, of any effective regime for ensuring that relevant information relating to the occupational health and safety of ADF personnel was exchanged or made available to all relevant sections of the ADF. This fundamental systemic failure is vividly illustrated by the fact that the ADFA was not even made aware of Comcare’s reports into the First, Second or Third Incidents. In my view, it is not to the point that Comcare was content with the Army’s response to its reports on each of those Incidents. The relevant point is that, because of the failure to provide the ADFA with relevant information concerning those incidents, the ADFA was denied information which may have caused it in respect of its own relevant activities to put in place at an earlier time a reasonably practicable step which would have protected people such as OC Minchin, by installing full propeller guards. The serious deficiencies in the ADF’s internal communication system for OH&S matters is also demonstrated by the failure to advise the ADFA of matters such as the DMO Safety Case Study, the DMO Review and the Army’s response thereto. If further demonstration is required, it is also telling that at no time leading up to the Incident were any steps taken by the Chief of the Defence Force to ensure that the Boat was maintained and serviced in accordance with the TRF of any of the three major ADF services.

109    Fifthly, independently of the absence of an effective information-sharing system within the ADF generally in respect of OH&S matters, it reflects poorly on the ADFA itself that appropriate steps were not taken by it and those who were responsible for its operations to address the highly foreseeable risk illustrated by the Fourth, Fifth and Sixth Incidents, all of which directly involved the ADFA and the use of the Boat (or similar vessels) in the same (if not similar) exercises to that in which OC Minchin was engaged on 14 February 2010. It is also significant to note in this context that those three earlier incidents all involved officer cadets participating in the YOFT programme at the outset of their careers in the ADF. Of course, the ADF owes duties to take all reasonably practicable steps to protect the health and safety of all its personnel, but that duty is particularly acute when young and inexperienced cadets are required to participate in inherently dangerous activities, such as those in which OC Minchin was involved on 14 February 2010.

110    Sixthly, I consider that considerations of both general and specific deterrence are highly relevant in the circumstances here. As to general deterrence, I consider that the amount of the pecuniary penalty should be set at a level which highlights to persons who are bound by the OH&S Act and other similar legislation the need to take a responsible and proactive approach in fulfilling their obligations to provide a safe workplace.

111    In my view, the case is also an appropriate one in which to bring to bear considerations of specific deterrence. The relevance of specific deterrence is highlighted by the fact that the Incident occurred notwithstanding the knowledge which was, or ought to have been, attained as a result of the previous six incidents. For the reasons set out above, the Commonwealth through the ADF failed to have in place an appropriate regime directed to ensuring that appropriate information relating to occupational health and safety matters affecting ADF personnel was shared within all parts of the ADF. Furthermore, while some steps were taken after the Incident to address that lacuna, for reasons which will be given below, I do not consider that those steps fully or adequately address the problem.

112    On the issue of specific deterrence, I am mindful of the observations of North J in Cadet Francis at [103], where his Honour commented on the “absurdity” of ordering the Commonwealth to pay to itself a civil pecuniary penalty. In my view, however, that does not mean that, in a case such as the present, specific deterrence is irrelevant. Even where the Commonwealth is the contravener, the imposition of an appropriate pecuniary penalty can serve as a specific deterrent because the imposition of such a penalty can have ramifications beyond purely financial considerations. As the Full Court recently observed in Post Logistics Australasia Pty Limited at [63]:

Acknowledgment at a level of general principle of the relevance of general and specific deterrence in determining civil pecuniary penalties under the OH&S Act should, however, be qualified in the following two respects. First, because of the individual nature of specific deterrence, there may be good reason why that concept has no or little relevance in the circumstances of a particular case. For example, at first blush it may be difficult to see any meaningful role for specific deterrence to play in a case where the Commonwealth is the party which has contravened the OH&S Act and any pecuniary penalty must be paid to the Commonwealth, presumably into the Consolidated Revenue Fund (see, for example, Cadet Francis at [102]). However, it may be important to appreciate that the individual officer or officers of the Commonwealth with general or particular responsibility for the conduct will ordinarily be publicly associated with the penalty imposed, he or she will have to allocate scarce public funds that were not appropriated to pay such a penalty, and thus cause a reduction in what the Commonwealth department, authority or agency involved can now provide. That is, the imposition of the penalty will have an impact on the department’s, authority’s or agency’s capacity to perform its role, even if the sum is small in its overall budget. And, most importantly, the department, authority or agency will have to account to the Parliament and the public as to why it had had to pay a penalty and not use the money appropriated to it for the purposes that the Parliament intended. The impact of the penalty may vary depending on whether there is any evidence demonstrating the practical effect on internal budget allocations within the Commonwealth if the particular Commonwealth department, authority or agency is ordered to pay a civil pecuniary penalty.

113    Seventhly, I have taken into account the mitigating factors pointed to by both Comcare and the Commonwealth as outlined in [78]-[80] and [83(e)-(g)] and [84] above. I should add, however, that while various steps have been taken to address the systemic problem of not circulating relevant information within the ADF on OH&S matters, I do not believe that the protocol described in [84] above provides a full or adequate response. That is primarily because the obligation it creates upon the ADF to distribute information about OH&S matters is confined to circulating Comcare report findings. While that is a step in the right direction, it fails to address situations where Comcare has not become involved or has not generated a report. I agree with Comcare’s submission that consideration needs to be given by the Chief of the Defence Force (or an appropriate delegate) to issuing a directive or policy instruction which ensures that there is effective communication and information-sharing systems in place across all sections of the ADF in respect of OH&S matters, not just matters in which Comcare happens to become involved. In my view, the Chief of the Defence Force should ensure that a proactive approach is taken to this issue.

114    Taking into account all of the above factors, I consider that the jointly proposed penalty of $190,000 falls short of the appropriate range and I reject it. In my view, taking into account all of the matters described above, I consider that the appropriate pecuniary penalty in this case is $210,000 (representing approximately 1910 penalty units).

115    Finally, as to the terms of the proposed declaration, I propose to make a declaration in terms which more accurately reflect the relevant requirements in clause 2 of Schedule 2 of the OH&S Act and appropriately describes the nature of the Commonwealth’s contravention. There is no dispute that the Commonwealth must pay Comcare’s costs.

116    I will make orders accordingly.

Associate:

Dated:    13 December 2012