FEDERAL COURT OF AUSTRALIA

Registered Organisations Commissioner v Australian Hotels Association [2019] FCA 1516

ORDERS

THE COURT DECLARES THAT:

1.    In contravention of s 189(2) of the Registration and Accountability of Organisations Schedule of the Workplace Relations Act 1996 (Cth) the Respondent failed to lodge prescribed information with the Industrial Registry of the Australian Industrial Relations Commission, within the prescribed time or at all, concerning an election for Queensland Branch Delegates to the National Board of the Respondent due to be conducted in 2004.

2.    In contravention of s 189(2) of the Registration and Accountability of Organisations Schedule of the Workplace Relations Act 1996 (Cth) the Respondent failed to lodge prescribed information with the Industrial Registry of the Australian Industrial Relations Commission, within the prescribed time or at all, concerning an election for Queensland Branch Delegates to the National Board of the Respondent due to be conducted in 2005.

3.    In contravention of s 189(2) of the Registration and Accountability of Organisations Schedule of the Workplace Relations Act 1996 (Cth) the Respondent failed to lodge prescribed information with the Industrial Registry of the Australian Industrial Relations Commission, within the prescribed time or at all, concerning an election for Queensland Branch Delegates to the National Board of the Respondent due to be conducted in 2006.

4.    In contravention of s 189(2) of the Registration and Accountability of Organisations Schedule of the Workplace Relations Act 1996 (Cth) the Respondent failed to lodge prescribed information with the Industrial Registry of the Australian Industrial Relations Commission, within the prescribed time or at all, concerning an election for Queensland Branch Delegates to the National Board of the Respondent due to be conducted in 2007.

5.    In contravention of s 189(2) of the Registration and Accountability of Organisations Schedule of the Workplace Relations Act 1996 (Cth) the Respondent failed to lodge prescribed information with the Industrial Registry of the Australian Industrial Relations Commission, within the prescribed time or at all, concerning an election for Queensland Branch Delegates to the National Board of the Respondent due to be conducted in 2008.

6.    In contravention of s 189(2) of the Registration and Accountability of Organisations Schedule of the Workplace Relations Act 1996 (Cth) the Respondent failed to lodge prescribed information with the Industrial Registry of the Australian Industrial Relations Commission, within the prescribed time or at all, concerning an election for Queensland Branch Delegates to the National Board of the Respondent due to be conducted in 2009.

7.    In contravention of s 189(2) of the Fair Work (Registered Organisations) Act 2009 (Cth) the Respondent failed to lodge prescribed information with the Fair Work Commission, within the prescribed time or at all, concerning an election for Queensland Branch Delegates to the National Board of the Respondent due to be conducted in 2010.

8.    In contravention of s 189(2) of the Fair Work (Registered Organisations) Act 2009 (Cth) the Respondent failed to lodge prescribed information with the Fair Work Commission, within the prescribed time or at all, concerning an election for Queensland Branch Delegates to the National Board of the Respondent due to be conducted in 2011.

9.    In contravention of s 189(2) of the Fair Work (Registered Organisations) Act 2009 (Cth) the Respondent failed to lodge prescribed information with the Fair Work Commission, within the prescribed time or at all, concerning an election for Queensland Branch Delegates to the National Board of the Respondent due to be conducted in 2012.

10.    In contravention of s 189(2) of the Fair Work (Registered Organisations) Act 2009 (Cth) the Respondent failed to lodge prescribed information with the Fair Work Commission, within the prescribed time or at all, concerning an election for Queensland Branch Delegates to the National Board of the Respondent due to be conducted in 2014.

11.    In contravention of s 189(2) of the Fair Work (Registered Organisations) Act 2009 (Cth) the Respondent failed to lodge prescribed information with the Fair Work Commission, within the prescribed time or at all, concerning an election for Queensland Branch Delegates to the National Board of the Respondent due to be conducted in 2016.

12.    In contravention of s 189(2) of the Registration and Accountability of Organisations Schedule of the Workplace Relations Act 1996 (Cth) the Respondent failed to lodge prescribed information with the Industrial Registry of the Australian Industrial Relations Commission, within the prescribed time or at all, concerning an election for Delegates to the State Board of the Queensland Branch of the Respondent due to be conducted in 2003.

13.    In contravention of s 189(2) of the Registration and Accountability of Organisations Schedule of the Workplace Relations Act 1996 (Cth) the Respondent failed to lodge prescribed information with the Industrial Registry of the Australian Industrial Relations Commission, within the prescribed time or at all, concerning an election for Delegates to the State Board of the Queensland Branch of the Respondent due to be conducted in 2005.

14.    In contravention of s 189(2) of the Registration and Accountability of Organisations Schedule of the Workplace Relations Act 1996 (Cth) the Respondent failed to lodge prescribed information with the Industrial Registry of the Australian Industrial Relations Commission, within the prescribed time or at all, concerning an election for Delegates to the State Board of the Queensland Branch of the Respondent due to be conducted in 2007.

15.    In contravention of s 189(2) of the Fair Work (Registered Organisations) Act 2009 (Cth) the Respondent failed to lodge prescribed information with the Fair Work Commission, within the prescribed time or at all, concerning an election for Delegates to the State Board of the Queensland Branch of the Respondent due to be conducted in 2009.

16.    In contravention of s 189(2) of the Fair Work (Registered Organisations) Act 2009 (Cth) the Respondent failed to lodge prescribed information with the Fair Work Commission, within the prescribed time or at all, concerning an election for Delegates to the State Board of the Queensland Branch of the Respondent due to be conducted in 2011.

17.    In contravention of s 230(1)(c) of the Registration and Accountability of Organisations Schedule of the Workplace Relations Act 1996 (Cth) the Respondent failed to keep a list of the holders of offices in the Queensland Branch of the Respondent when it failed to change that list, in 2005, to reflect that Mr Bossard had ceased to be a Vice President of the Branch and Mr Goode had commenced to be a Vice President of the Branch.

18.    In contravention of s 233(2) of the Registration and Accountability of Organisations Schedule of the Workplace Relations Act 1996 (Cth) the Respondent failed to lodge, within the prescribed time, a notification with the Industrial Registry of the Australian Industrial Commission of the fact that the Respondent had, on or about 16 February 2006, changed the list of officers it was required to keep under s 230(1)(c) of the said Schedule, to reflect that Mr Bossard had ceased to be a Vice President of the Branch and Mr Goode had commenced to be a Vice President of the Branch.

19.    In contravention of s 230(1)(c) of the Registration and Accountability of Organisations Schedule of the Workplace Relations Act 1996 (Cth) the Respondent failed to keep a list of the holders of offices in the Queensland Branch of the Respondent when it failed to change that list, in 2006, to reflect that Mr Stewart had ceased to be President of the Branch, Mr McGuire had commenced to be President of the Branch and Mr White had ceased to be a Vice President of the Branch.

20.    In contravention of s 233(2) of the Registration and Accountability of Organisations Schedule of the Workplace Relations Act 1996 (Cth) the Respondent failed to lodge, within the prescribed time, a notification with the Industrial Registry of the Australian Industrial Commission of the fact that the Respondent had, on or about 22 February 2007, changed the list of officers it was required to keep under s 230(1)(c) of the said Schedule, to reflect that Mr Stewart had ceased to be President of the Branch, Mr McGuire had commenced to be President of the Branch and Mr White had ceased to be a Vice President of the Branch.

21.    In contravention of s 230(1)(c) of the Registration and Accountability of Organisations Schedule of the Workplace Relations Act 1996 (Cth) the Respondent failed to keep a list of the holders of offices in the Queensland Branch of the Respondent when it failed to change that list, in 2008, to reflect that Mr Goode had ceased to be a Vice President of the Branch and Mr Ferguson had commenced to be a Vice President of the Branch.

22.    In contravention of s 233(2) of the Registration and Accountability of Organisations Schedule of the Workplace Relations Act 1996 (Cth) the Respondent failed to lodge, within the prescribed time, a notification with the Industrial Registry of the Australian Industrial Commission of the fact that the Respondent had, on or about 30 January 2009, changed the list of officers it was required to keep under s 230(1)(c) of the said Schedule, to reflect that Mr Goode had ceased to be a Vice President of the Branch and Mr Ferguson had commenced to be a Vice President of the Branch.

23.    In contravention of s 230(1)(c) of the Fair Work (Registered Organisations) Act 2009 (Cth) the Respondent failed to keep a list of the holders of offices in the Queensland Branch of the Respondent when it failed to change that list, in 2011, to reflect that Mr Dellar had ceased to be Secretary/Treasurer of the Branch.

24.    In contravention of s 233(2) of the Fair Work (Registered Organisations) Act 2009 (Cth) the Respondent failed to lodge, within the prescribed time, a notification with the Fair Work Commission of the fact that the Respondent had, on or about 11 May 2012, changed the list of officers it was required to keep under s 230(1)(c) of the said Act, to reflect that Mr Dellar had ceased to be Secretary/Treasurer of the Branch.

25.    In contravention of s 230(1)(c) of the Fair Work (Registered Organisations) Act 2009 (Cth) the Respondent failed to keep a list of the holders of offices in the Queensland Branch of the Respondent when it failed to change that list, in 2014, to reflect that Mr Paine had ceased to be a Vice President of the Branch, Mr Armstrong had commenced to be a Vice President of the Branch, Mr Deery had commenced to be a Vice President of the Branch, and Mr Condon had commenced to be Secretary/Treasurer of the Branch.

26.    In contravention of s 233(2) of the Fair Work (Registered Organisations) Act 2009 (Cth) the Respondent failed to lodge, within the prescribed time, a notification with the Fair Work Commission of the fact that the Respondent had, on or about 16 February 2015, changed the list of officers it was required to keep under s 230(1)(c) of the said Act, to reflect that Mr Paine had ceased to be a Vice President of the Branch, Mr Armstrong had commenced to be a Vice President of the Branch, Mr Deery had commenced to be a Vice President of the Branch, and Mr Condon had commenced to be Secretary/Treasurer of the Branch.

27.    In contravention of s 230(1)(c) of the Fair Work (Registered Organisations) Act 2009 (Cth) the Respondent failed to keep a list of the holders of offices in the Queensland Branch of the Respondent when it failed to change that list, in 2015, to reflect that Mr Ferguson had ceased to be a Vice President of the Branch.

28.    In contravention of s 233(2) of the Fair Work (Registered Organisations) Act 2009 (Cth) the Respondent failed to lodge, within the prescribed time, a notification with the Fair Work Commission of the fact that the Respondent had, on or about 27 March 2016, changed the list of officers it was required to keep under s 230(1)(c) of the said Act, to reflect that Mr Ferguson had ceased to be a Vice President of the Branch.

29.    In contravention of s 230(1)(c) of the Fair Work (Registered Organisations) Act 2009 (Cth) the Respondent failed to keep a list of the holders of offices in the Queensland Branch of the Respondent when it failed to change that list, in 2016, to reflect that Mr White had ceased to be Senior Vice President of the Branch, Mr Deery had ceased to be a Vice President of the Branch and commenced to be Senior Vice President of the Branch, Mr Douglas commenced to be a Vice President of the Branch and Mr Fitzgibbons commenced to be a Vice President of the Branch.

30.    In contravention of s 233(2) of the Fair Work (Registered Organisations) Act 2009(Cth) the Respondent failed to lodge, within the prescribed time, a notification with the Fair Work Commission of the fact that the Respondent had, on or about 30 March 2017, changed the list of officers it was required to keep under s 230(1)(c) of the said Act, to reflect that Mr White had ceased to be Senior Vice President of the Branch, Mr Deery had ceased to be a Vice President of the Branch and commenced to be Senior Vice President of the Branch, Mr Douglas commenced to be a Vice President of the Branch and Mr Fitzgibbons commenced to be a Vice President of the Branch.

THE COURT ORDERS THAT:

1.    The respondent pay the following penalties to the Commonwealth within 28 days of the date of this order:

(a)    $4,000 in respect of each contravention referred to in paragraphs 1 to 9 above;

(b)    $18,500 in respect of the contravention referred to in paragraph 10 above;

(c)    $19,500 in respect of the contravention referred to in paragraph 11 above;

(d)    $6,500 in respect of each contravention referred to in paragraphs 12 to 16 above;

(e)    $2,750 (in total) in respect of the contraventions referred to in paragraphs 17 and 18 above;

(f)    $2,750 (in total) in respect of the contraventions referred to in paragraphs 19 and 20 above;

(g)    $2,750 (in total) in respect of the contraventions referred to in paragraphs 21 and 22 above;

(h)    $2,750 (in total) in respect of the contraventions referred to in paragraphs 23 and 24 above;

(i)    $12,750 (in total) in respect of the contraventions referred to in paragraphs 25 and 26 above;

(j)    $13,500 (in total) in respect of the contraventions referred to in paragraphs 27 and 28 above;

(k)    $13,500 (in total) in respect of the contraventions referred to in paragraphs 29 and 30 above;

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

REASONS FOR JUDGMENT

O’CALLAGHAN J:

INTRODUCTION

1    The applicant (the Commissioner) seeks declarations and civil penalty orders arising from contraventions of the Fair Work (Registered Organisations) Act 2009 (Cth) (and its predecessor, the Registration and Accountability of Organisations Schedule of the Workplace Relations Act 1996 (Cth)) (the FWRO Act) by the respondent (the AHA), as pleaded in his Amended Statement of Claim dated 12 April 2019 (the ASOC).

2    The AHA is an organisation of employers registered under the FWRO Act. It services and represents employers of labour in the licensed hotels and accommodation industries throughout Australia. The registered rules of the AHA provide for the establishment of branches of the AHA, including relevantly the Queensland Branch (or Branch), the conduct of which is central to this proceeding.

3    By its Amended Defence dated 24 April 2019, the AHA admits to:

(a)    contravening s 189(2) of the FWRO Act by failing to lodge prescribed information in relation to elections for officers of the AHA on 16 occasions between 2003 and 2016;

(b)    contravening s 230(1)(c) of the FWRO Act by failing to update its list of the names, postal addresses and occupations of the persons holding offices in the organisation, upon changes to the identity of such persons on 17 occasions between 2005 and 2016; and

(c)    contravening s 233(2) of the FWRO Act by failing to lodge notification of changes made to the record required to be kept under s 230(1)(c) on 17 occasions between 2006 and 2017.

4    The Commissioner seeks the imposition of pecuniary penalties upon the AHA pursuant to s 306 of the FWRO Act, and declarations, pursuant to s 308(1) of the FWRO Act and s 21(1) of the Federal Court of Australia Act 1976 (Cth).

5    The admitted contraventions span a period of approximately 14 years, between 2003 and 2017. Over that period, the location of s 306(1) within the statute has twice changed, and its terms have been twice amended.

6    At all relevant times up to 26 March 2006 (referred to in the ASOC as Period 1), s 306 was located within Schedule 1B (the “Registration and Accountability of Organisations Schedule”), and the statute was then entitled the Workplace Relations Act 1996 (Cth).

7    At all relevant times between 27 March 2006 and 30 June 2009 (referred to in the ASOC as Period 2) s 306 was located within Schedule 1 of that Act.

8    At all relevant times from 1 July 2009 (referred to in the ASOC as Period 3 and Period 4), s 306 was located within the body of the statute, which from that date became entitled the FWRO Act.

9    At all relevant times up to 28 June 2012 (that is, throughout Period 1 and Period 2, and continuing into Period 3), s 306(1) provided:

In respect of conduct in contravention of a civil penalty provision, the Federal Court may make an order imposing on the person or organisation whose conduct contravened the civil penalty provision a pecuniary penalty of not more than:

(a)    in the case of a body corporate – 100 penalty units; or

(b)    in any other case – 20 penalty units.

10    At all relevant times between 29 June 2012 and 1 May 2017, s 306(1) provided:

In respect of conduct in contravention of a civil penalty provision, the Federal Court may make an order imposing on the person or organisation whose conduct contravened the civil penalty provision a pecuniary penalty of not more than:

(a)    in the case of a body corporate – 300 penalty units; or

(b)    in any other case – 60 penalty units.

11    Section 306(1) had been amended, to the above effect, by Items 7 and 8 of Schedule 1 of the Fair Work (Registered Organisations) Amendment Act 2012 (the 2012 Amending Act). The transitional provisions which applied to that amendment provides that the new maximum penalty applies to any pecuniary penalty orders “made on or after” the date on which the amendment commenced. See 2012 Amending Act, Item 10 of Schedule 1. The amendment commenced on 29 June 2012.

12    The section was again amended on 2 May 2017. At all relevant times since then, s 306(1) has provided:

In respect of conduct in contravention of a civil penalty provision, the Federal Court may make an order imposing on the person or organisation whose conduct contravened the civil penalty provision a pecuniary penalty of not more than:

(a)    in the case of a body corporate – 5 times the pecuniary penalty specified for the civil penalty provision; or

(b)    in any other case – the pecuniary penalty specified for the civil penalty provision.

13    At all relevant times since 2 May 2017, the FWRO Act has specified, with respect to each of the civil penalty provisions at ss 189(2), 230(1)(c) and 233(2), a pecuniary penalty of 60 penalty units. The specified pecuniary penalty appears, in each case, by way of a note subjoined to that civil penalty provision.

14    The phrase “penalty unit”, as appearing in the FWRO Act, has the meaning given by s 4AA(1) of the Crimes Act 1914 (Cth) (presently $210), and given effect to any Act by s 2B of the Acts Interpretation Act 1901 (Cth).

15    The value of a penalty unit has changed three times between 2003 to 2017. At all relevant times up to 27 December 2012, the value of a penalty unit was $110. Between 28 December 2012 and 30 July 2015 the value of a penalty unit was $170. Between 31 July 2015 and 30 June 2017 the value of a penalty unit was $180. (Since 1 July 2017 the value of a penalty unit has been $210).

16    There is no dispute over the applicable value of the penalty units, only the applicable number of penalty units.

17    The Commissioner contends that the maximum penalty that might be imposed upon the AHA in respect of each contravention that occurred before 28 December 2012 is (300 x $110) $33,000; in respect of each contravention that occurred after 27 December 2012 and before 31 July 2015 is (300 x $170) $51,000; and in respect of contraventions that occurred after 30 July 2015, (300 x $180) $54,000. (There are no admitted contraventions which occurred under the current penalty unit rate ($210), i.e. from 1 July 2017). He submits that the transitional provision operates retrospectively, because the new maximum penalty applies to any pecuniary penalty orders “made on or after” the date on which the amendment commenced (29 June 2012).

18    The AHA submits that the transitional provision cannot be read to operate retrospectively.

19    For reasons set out below, I accept the AHA’s submission that the transitional provision does not operate retrospectively and that, accordingly, the maximum applicable penalty in respect of each contravention that occurred before 28 December 2012 is (100 x $110) $11,000, not $33,000. This is the period during which the majority of the contraventions the subject of this proceeding occurred.

20    It is common ground that in respect of each contravention that occurred after 27 December 2012 and before 31 July 2015 the maximum penalty is (300 x $170) $51,000. In respect of each contravention that occurred after 30 July 2015, it is agreed that the maximum penalty is (300 x $180) $54,000.

21    The AHA also submitted that certain contraventions should be aggregated, but for reasons set out below, I cannot accept that submission.

22    Otherwise, the parties were agreed about (i) the applicable principles governing the fixing of penalties; (ii) the particular considerations relevant to the assessment of appropriate penalties in this case; (iii) their recommended penalty ranges; (iv) the correct characterisation of the contraventions (in the main, that they were deliberate and serious); and (v) the form of the declarations.

the facts

23    The relevant facts are agreed. They are set out in the Agreed Statement of Facts, which is Annexure A to these reasons.

The evidence of Mr O’Connor

24    As Mr Justin O’Connor, the CEO of the Queensland Hotels Association (the QHA), explained in his affidavit, nowadays the members of the AHA include corporate entities that operate hotels or accommodation facilities. Prior to the 1980s, many hotels were operated by sole traders or partnerships, but corporations are now very prevalent as the commercial and employment vehicles for the conduct of hotel/accommodation businesses. There has also been a consolidation of ownership of hotel/accommodation businesses in the last 20 years. In the past most hotels or accommodation businesses were family owned and/or operated establishments. Now major corporations in Australia own large numbers of hotel and accommodation businesses, with those businesses managed by senior employees of those corporations.

25    As a result there has been a significant reduction in the total number of members in the post war years. The membership of the Queensland Branch has declined over time from around 1,000 members to a current level of around 750 members.

26    The AHA has historically established geographical branches to allow for the more efficient servicing and representation of its members. Each geographical branch has its own set of rules and office holders, in addition to the rules and offices of the AHA itself.

27    Consequently, the Queensland Branch has its own rules registered under the FWRO Act, and its own set of officers.

28    The QHA is an industrial union of employers registered under the laws of Queensland. It exists to service and represent its members in relation to laws, regulations and business matters local to the State of Queensland. It is a separate entity to the Branch, but the two entities are closely related. The QHA and the Branch have the same membership and officers, however all real property and other assets are held by the QHA, not the Branch.

29    Mr O’Connor also gave evidence in relation to how the contraventions had come about, and persisted for so many years. He swore that soon after commencing his employment with the QHA in 2005 he “became aware that there were significant practical difficulties associated with conducting elections for the Branch and also for the QHA”.

30    He continued:

21.    These difficulties essentially stemmed from the fact that the multi-tiered governance structure of the Branch (and the QHA) no longer reflected the conditions in the industry. Numerous divisional/regional officer positions were vacant, and had been for years.

22.    Under the relevant governance arrangements at the time, there was a three tiered collegiate election system, which can be summarised as follows:

  (a)    The membership of the Branch is divided into two “Zones”, being:

a.    the Northern Zone covering all of Queensland north of latitude 22 South (but also including the township of Winton); and

b.    the Southern Zone covering the balance of the State not covered by the Northern Zone (see Rule 46).

(b)    In each Zone there are a number of “Divisions” (per Rule 72). These Divisions are mainly geographically determined, but not exclusively so. The Divisions are:

a.    Northern Zone: Atherton Tablelands, Bowen, Cairns, Innisfail, Mackay, Townsville (all geographical Divisions) and Accommodation Hotels Division (for all such businesses in the Zone); and

b.    Southern Zone: Brisbane North, Brisbane South, South West Queensland, Bundaberg, Central, Dalby, Gold Coast, Gympie, Ipswich, Maryborough, Sunshine Coast, Burnett, Toowoomba, Warwick (all geographical Divisions), plus Brisbane Gold Coast Accommodation Divisions.

(c)    Each Division elects its own Division Management Committee, drawn from members of the applicable Division (Rule 76). Each Division Management Committee then elects representatives for their Zone (per Rule 50).

(d)    Each Zone then has a “Zone General Committee” consisting of the various Divisional representatives as determined by and elected pursuant to Rule 50, and the Zone General Committee elects the Zone Executive (being the Chairman (sic), three Vice­Chairmen (sic), Secretary-Treasurer and two or such other number of Trustees as the State Board determines), pursuant to Rule 51.

(e)    Sitting atop these two “tiers” is the State Board, the membership of which is determined by Sub Rule (a) of Rule 10. The State Board consists of representatives from the Northern Zone and representatives of the Southern Zone, the numbers of which are determined by a formula based on the number of licensed member establishments in the Zone.

(f)    The representatives of a Zone on the State Board are elected by and from the membership of the applicable Zone General Committee (sub Rule (f) of Rule 10).

(g)    The State Board then elect the officers of the State Board, which are the President, four Vice-Presidents (one to be Senior Vice President), a Secretary Treasurer and two Trustees (see Rules 14 and 15).

(h)    Elections for these various offices at each of these three tiers (Division, Zone and State) are required by the Branch Rules to be conducted every two years (see Rules 14(b), 50(f) and 76(d)(i)).

(i)    None of these offices are full time offices; they are essentially unpaid positions, or positions subject to small honorariums.

((sic) in original).

31    Mr O’Connor explained (at [23]ff) that the practical consequences of this governance structure are that:

…

(a)    there are in excess of three hundred (300) offices, as noted recently in the decision of the Fair Work Commission (Mr Enright as delegate of the General Manager) in relation to the calling of elections in the Branch in 2013 … ;

(b)    all of these offices are required to be filled by elections from among the relevant portions of the membership of the Branch every two years;

(c)    because of the three tiered collegiate nature of the governance structure, the elections within each tier have to be undertaken sequentially – ie, starting with the (many) Division Management Committees, followed by the two Zone General Committees, then finally followed by the State Board;

(d)    having regard to the various periods in the Rules for the calling of nominations and the conducting of postal ballots, and taking into account occasional delays in the processes for administrative reasons at each level, the time from the commencement of election processes at the Divisional Committee level to the completion of those processes at the State Board level can and did often exceed six (6) months.

24.    Further complicating the governance structure which I have described in paragraph 22 above has been the changes affecting the industry, which I referred to in paragraphs 6 and 7 above. The corporatisation and consolidation of the industry has greatly affected the culture, and indeed the enthusiasm of the membership to participate in the governance of the QHA and the Branch. That is, since at least the start of this century the management of the QHA and the Branch have observed decreasing levels of participation by members in the governance processes such that by the time of the conduct of elections in the Branch by the AEC in 2002 a very large number of the 300 plus positions that were available (particularly but not exclusively at the bottom or Divisional level) did not attract any nominations. This is a phenomenon that continues to affect elections in the Branch, as I refer to in paragraph 45 in this affidavit in connection with elections in the Branch conducted in 2014.

25.    The factors that gave rise to this state of affairs may be the subject of debate but ones that are obvious from my experience as CEO are:

(a)    The original rationale for this structure, being the need to have a structure that would permit the flow of information about hotel industry affairs between the central management and the members conducting their businesses long distances away from that management, simply ceased to exist due to the advent of modern means of communication (particularly the Internet and email);

(b)    The decrease in the number of individually owned hotels over the years;

(c)    The increased complexity of owning, managing or operating hotel establishments, thus reducing the spare time available to hotel licensees or employed managers (who are the most suitable candidates for these offices) to “volunteer” for Branch or QHA offices;

(d)    The time out of the business required of office holders to regularly travel to and attend meetings;

   (e)    The unpaid, voluntary nature of all these offices; and

(f)    General changes in societal attitudes to active participation in associations of this nature.

32    Mr O’Connor also gave the following evidence about the National Board elections in his affidavit:

49.    I am aware that the Applicant’s Amended Statement of Claim alleges, in addition to failures by the Branch to arrange for the conduct elections (sic) for the State Board in 2003, 2005, 2007, 2009 and 2011, that the Branch failed to make arrangements for the conduct of elections of its delegates to the AHA National Board annually, as required by the National Rules of the AHA, in respect of the years 2004 to 2012 (9 separate failures) and for the years 2014 and 2016 (2 further failures). I am aware that the AHA does not dispute these allegations.

50.    The election of delegates to the National Board of the AHA is not governed by the Rules of the Branch. These elections are governed by Rule 11 of the National Rules of the AHA. Consequently the difficulties that I have deposed to in this affidavit in connection with the conduct of elections of the many offices under the Branch Rules did not apply to these offices. However, as my approach and that of the State Board officers in the period 2005 to 2013 was to postpone elections for offices in the Branch until new Rules were put into place, we simply extended that approach to the Queensland Branch’s delegates to the National Board, treating those positions the same way. We now acknowledge this to be incorrect.

51.    In the period from 2005 to 2013 the Branch’s delegates to the National Board basically did not change. If a change was required, new delegates were appointed on an informal basis by the State Board, but to my recollection, this was infrequent.

52.    The failure to arrange elections for National Board delegates in 2014 and 2016, even though they were arranged for 2013 and 2015 was due to oversight and misunderstanding by me and others within the Branch management - namely that such offices had two year terms like all other Branch offices, when in fact they had to be elected annually under the “separate” National AHA Rules.

53.    I acknowledge that while these elections were not conducted over the period referred to in paragraph 51 above, nevertheless elections were conducted through the AEC in respect of the Branch’s representatives to the National Accommodation Hotels Division (a separate division within the National Rules for accommodation establishments that were members of the AHA). These elections took place because, unlike the elections for National Board representatives for the Branch, the State Board did not have a role in electing the National Accommodation Hotels Division representatives, who were directly elected by members in that Division in Queensland.

33    Mr O’Connor also gave the following evidence about the failures to record and notify changes in office holders in his affidavit:

54.    I am aware that the Applicant’s Amended Statement of Claim alleges that between 2005 and 2017 the Branch failed to update its records within necessary time limits when there was a change of officer and that when the Branch did change its records and notify the regulator, the notifications were deficient.

55.    From some considerable time prior to me commencing employment by the QHA and up to and including the 2014 Branch year (ending 31 December each year), the Branch had the following practice:

(a)    Following the conclusion of each year the Branch would lodge an annual return with the relevant regulator in which it would, inter alia, list its State Board officers holding office as at the end of the relevant year. The exception to that practice was that I was not aware of this requirement on the Branch until 2008, and hence I did not lodge the annual returns for 2005, 2006 and 2007 until 2008.

(b)    If there was any change in the identity of an officer after one annual return was lodged and the next one was due, the change in officers was simply noted in the minutes of the relevant meeting. No change was made in the records of the Branch in relation to that change in office holding at or soon after the change in office holder occurred.

56.    The various changes in office holding that occurred during each year were treated by the State Board as being casual vacancies that it could fill pursuant to Rule 18 (n) of the Branch Rules. Even though the State Board was not subject to election in the period 2002 to 2013 for reasons referred to earlier in this affidavit, those that had been elected in the 2002 elections were entitled to remain as officers of the Board on a “carry over” basis pursuant to Rule 14 (c) of the Branch Rules, thus permitting vacancies to be filled by those of the 2002 elected cohort who remained.

The relevant legislation

Election notification contraventions: s 189(2)

34    Section 189 of the FWRO Act provides, relevantly:

189 Commissioner to arrange for conduct of elections

(1)    An organisation or branch of an organisation must lodge with the Commissioner the prescribed information in relation to an election that is to be conducted by the AEC.

(2)    The prescribed information must be lodged before the prescribed day or such later day as the Commissioner allows.

35    Section 189 imposed the same obligation, in substance, throughout the period the subject of this proceeding and the period over which the contraventions occurred. The element of the s 189 obligation which changed at certain times over the relevant period is the identity of the regulator specified by s 189(1) with whom the relevant prescribed information must be lodged. In Periods 1 and 2, the relevant regulator was the Industrial Registry. In Period 3, the relevant regulator was the General Manager. In Period 4, the relevant regulator was the Commissioner.

36    The prescribed information required to be lodged is presently specified by reg 138 of the Fair Work (Registered Organisations) Regulations 2009 (Cth) (the FWRO Regulations), and includes the name of each office for which an election is required, information about the electorate for that election, the period provided for under the rules of the organisation for the receipt of nominations for election, and the kind of voting system to be used in the conduct of the election. Corresponding prescription, in relevantly identical terms, was provided for by regulations throughout the relevant period since 2003.

37    Various provisions in chapters 5 and 7 of the FWRO Act give effect to Parliament’s intention (expressed in s 5(3)), that registered organisations are representative of and accountable to their members (s 5(3)(a)), that members of registered organisations are encouraged to participate in the affairs of organisations to which they belong (s 5(3)(b)), that registered organisations exhibit high standards of accountability to their members (s 5(3)(c)), and that registered organisations are subject to democratic functioning and control (s 5(3)(d)).

38    Chapter 5 of the FWRO Act provides minimum requirements concerning the rules of registered organisations. Organisations must have rules that make provision as required by the Act (s 140). The rules of an organisation must provide for the election of the holder of each office in the organisation (s 143(1)(a)), and for the conduct of every such election by an independent returning officer (s 143(1)(b)). The rules of an organisation must provide for a maximum term of office which must not exceed 4 years (s 145(1)).

39    Chapter 7 of the FWRO Act is entitled “Democratic control”. The provisions in that chapter provide, among other things, for the conduct of elections for offices and other positions under the rules of registered organisations, and that elections for offices in organisations are conducted by the Australian Electoral Commission (the AEC), at public expense (s 182(1)).

40    The FWRO Act also provides an array of machinery to ensure the integrity of elections conducted under the rules of organisations, and to prevent irregularities or remedy the effect of irregularities.

41    The AEC may only commence an election once the Commissioner has determined, under s 189(3), to arrange for the conduct of the election by the AEC. The Commissioner may only determine to arrange for the conduct of the election by the AEC once the organisation has lodged prescribed information with the Commissioner under s 189(1), and the Commissioner is satisfied, upon the information being so lodged, that an election is required to be held under the rules of the organisation (s 189(3)).

42    Neither the Commissioner nor the AEC has power to cause an election to be conducted in the absence of a lodgement of prescribed information by the organisation concerned. If relevant prescribed information is not so lodged, no election will occur, notwithstanding the requirement for an election under the rules of the organisation. In that event, various primary objects of the FWRO Act (that organisations be representative and accountable, that members be encouraged to participate, that organisations exhibit high standards of accountability, and that organisations be subject to democratic functioning and control) are liable to be frustrated.

43    So much was common ground. As counsel for the AHA said in his written submissions (at [44]):

The Respondent does not cavil with the Applicant’s characterisation of the election-related contraventions and accepts that elections, and the statutory machinery provisions connected thereto, are an important part of the democratic functioning of registered organisations. The Respondent also accepts that maintaining the integrity of elections helps to prevent irregularities and to remedy the effects of any regularities. No actual irregularities of this kind are alleged against the Respondent (ie irregularities in the functioning or administration of the Respondent), but the Respondent nonetheless readily acknowledges that properly-run elections are an important feature of the regulation of registered organisations.

Record-keeping contraventions: s 230(1)(c) and s 233(2)

44    Subsection 230(1) provides, relevantly, as follows:

230 Records to be kept and lodged by organisations

An organisation must keep the following records:

…

(b)    a list of the offices in the organisations and each branch of the organisation;

(c)     a list of the names, postal addresses and occupations of the persons holding the offices;

...

45    Subsection 233(2) provides as follows:

233 Obligation to lodge information with the Commissioner

…

(2)    An organisation must, within the prescribed period, lodge with the Commissioner notification of any change made to the records required to be kept under paragraphs 230(1)(b), (c) and (d), certified by declaration signed by the secretary or other prescribed officer of the organisation to be a correct statement of the changes made.

46    For s 233(2), reg 151 of the FWRO Regulations prescribes the period of 35 days, beginning on the day after the day when the change is made, as the period within which notification of change is to be lodged.

47    The parties agreed that the obligation to “keep” a list of the kind specified in s 230(1)(c) incorporates an obligation to maintain it, in the sense of updating the list to reflect changes in the relevant underlying circumstances. An organisation will thus fail to “keep” the list if it fails to change the contents of the list at or about the time there is any change to the identity of the holders of any office to which the list refers.

48    As the Commissioner submitted, and I agree, the notion that “keeping” a list under s 230(1)(c) must incorporate a requirement to make changes to the list, at or about the time that there is a change to the relevant underlying circumstances, is reinforced by the terms of s 233(2). That provision requires that notification be given of the fact of a change to s 230(1)(c), within a prescribed time, and only has work to do if s 230(1)(c) is understood to incorporate a requirement to make changes to the list, and to make such changes at or about the time the relevant underlying circumstances change.

49    Sections 230(1)(c) and 233(2) are parts of a scheme of provisions which includes s 233(1)(b). Section 233(1)(b) requires, among other things, that an organisation must lodge with the Commissioner, once in each year, and within such time as is prescribed, a copy of the record required to be kept under s 230(1)(c). In combination, ss 233(2) and 233(1)(b) operate to ensure that the organisation provides a copy of the list of officers on an annual cycle, and notification of changes to that list within a reasonable time after any change is made.

50    As the Commissioner submitted, those provisions require that there be an authoritative and reasonably current record, held by the regulator, identifying each of the officers who hold responsibilities and powers under the rules of organisations, so that it may be inspected by any person. (As to the right of inspection, see reg 20(1A) of the FWRO Regulations).

51    Again, there was no contest about any of this.

relevant principles in assessing penalties

52    It is not necessary to restate the principles applicable to assessing penalties in a case such as this, where the scope of the parties’ disagreement is confined. It suffices to say, for present purposes, that the range of considerations that might bear upon the determination of appropriate penalties includes:

    The nature and extent of the conduct which led to the breaches.

    The circumstances in which that relevant conduct took place.

    The nature and extent of any loss or damage sustained as a result of the breaches.

    Whether there had been similar previous conduct by the respondent.

    Whether the breaches were properly distinct or arose out of the one course of conduct.

    The size of the business enterprise involved.

    Whether or not the breaches were deliberate.

    Whether senior management was involved in the breaches.

    Whether the party committing the breach had exhibited contrition.

    Whether the party committing the breach had taken corrective action.

    Whether the party committing the breach had cooperated with the enforcement authorities.

    The need to ensure compliance with minimum standards by provision of an effective means for investigation and enforcement of employee entitlements.

    The need for specific and general deterrence.

Considerations relevant to the election notification contraventions

53    The AHA admits contravening s 189(2) by failing to lodge prescribed information with the relevant regulator from time to time, in respect of elections that were required to be conducted under the rules of the AHA, and required to be conducted by the AEC. There are 16 admitted contraventions. Of these, 11 concern annual elections that were required to be conducted for representatives of the Queensland Branch on the National Board, the supreme governing body of the AHA, in 2004, 2005, 2006, 2007, 2008, 2009, 2010, 2011, 2012, 2014 and 2016. The further five contraventions concern biannual elections that were required to be conducted for members of the State Board of the Queensland Branch of the AHA, the supreme governing body of that Branch, in 2003, 2005, 2007, 2009 and 2011.

54    The Commissioner made the following submissions, with which the AHA agreed or did not cavil.

The nature, extent and circumstances of the conduct which led to the breaches

55    The AHA, through its Queensland Branch, failed to take the initiating step for the conduct of elections required to be conducted every year (for members of the National Board) or required to be conducted every second year (for members of the State Board), and those failures persisted over about a decade.

56    The failures to initiate elections for representatives on the National Board and the members of the State Board were, in each case, a serious contravention, as each failure frustrated the objects of the statute in the manner discussed above. However, the failures to initiate biannual elections for the members of the State Board can be seen as the more serious category of contravention.

State Board contraventions

57    The State Board is the committee of management of the Queensland Branch of the AHA. The committee of management has plenary powers of governance. It is the supreme authority within the Branch, subject to the National Rules. It has power to write the Branch rules, manage the Branch funds, employ and supervise employees, and elect executive officers from among its number.

58    The failure to initiate biannual elections for the members of the State Board affected the whole of that body. (Each member of the State Board is subject to election on the two-year cycle).

59    Following the first failure to initiate elections, in 2003, the State Board apparently continued to function as a body composed by way of an informal collective process of self-selection. That process of informal collective self-selection continued for about 10 years (5 election cycles). The persons so acting conducted the affairs of the Branch without the formal or substantial authority and legitimacy required by the FWRO Act and the AHA rules.

National Board contraventions

60    The National Board contraventions involved a failure to initiate elections for members of the national governing body of the AHA derived from the Queensland Branch. Other than the Representatives from the Queensland Accommodation Hotels Division, those members are elected by collegiate-style election from the members of the State Board. The consequences of those contraventions, while serious, did not include the undermining of the functioning or legitimacy of a committee of management as a whole.

The explanation offered by the AHA

61    By its affidavit material, the AHA has offered an explanation for its contravening conduct. In short, the explanation is that those managing the Queensland Branch perceived that any election initiated by the lodgement of prescribed information could not be conducted without difficulty, because certain parts of the Branch rules were out of date. The solution arrived at by those managing the Branch was to suspend the conduct of elections pending the making of certain amendments to those rules.

62    The perceived difficulty arising from the Branch rules was no proper reason to fail to comply with the obligation to initiate the conduct of elections. If the feared difficulties in the conduct of elections had materialised, there were, and are, mechanisms available under the FWRO Act to resolve them.

63    The proposed solution was not, in any event, executed. Rule amendments were discussed and considered, but no rule amendments relevant to elections have to date been adopted by the AHA.

Whether or not the breaches were deliberate

64    The AHA conceded that the contravening conduct was deliberate, and that it chose, each year over a period of more than a decade, not to initiate election procedures in the knowledge that election procedures were required by reason of provisions of the FWRO Act and of the rules of the AHA.

Whether corrective action taken

65    The AHA has, in recent years, taken corrective action. It has lodged prescribed information under s 189(1) of the FWRO Act in respect of elections for the State Board and in respect of elections for the representatives on National Board. That is corrective action in the sense that it has complied with the law and abandoned its apprehension of or reliance upon perceived obstacles to complying with the law.

Whether the breaches were properly distinct or arose out of the one course of conduct

66    This was an issue where the AHA disagreed with the Commissioner.

67    The AHA submitted that (written subs at [64]):

There is a direct interrelationship between the legal and factual elements of each of these contraventions and there is a clear commonality of criminality. The contravening conduct was the failure to provide necessary information to commence certain elections. The fundamental criminality of these contraventions was the delay or forestalling of elections to instead wait for the Rules to be changed. This conduct involved repeated acts or omissions that should not be punished separately [citing Gibbs v the Mayor, Councillors and Citizens of the City of Altona (1992) 37 FCR 216 at 223].

68    The AHA also submitted that “… the decision to delay elections was one multi-faceted course of conduct in which several contraventions occurred”.

69    The Commissioner contended that each contravention, occurring two years apart (in the case of the contraventions relating to elections for the State Board) or one year apart (in the case of the contraventions relating to elections for representatives on the National Board) is properly distinct. While there are common elements to the contravening conduct, he submits that it would not be appropriate to treat the s 189(2) contraventions, or any of them, as arising out of one course of conduct, particularly if the result of such treatment would be to collapse the maximum penalty to something approximating the maximum available to be imposed for a single contravention.

70    I am unable to accept the AHA’s submission. In my view, as the Commissioner submitted, each contravention is properly to be regarded as a separate contravention. There is no risk that in doing so the AHA will be punished multiple times for the same criminality, because each of the contraventions is distinct. See Construction, Forestry, Mining and Energy Union v Williams [2009] FCAFC 171; (2009) 191 IR 445, 452-456 (Moore, Middleton and Gordon JJ).

Considerations relevant to the record keeping contraventions

The nature, extent and circumstances of the conduct which led to the breaches

71    The Commissioner made the following submissions, with which the AHA did not cavil.

72    Each of the contraventions arising under ss 230(1)(c) and 233(2) takes a similar form. First, there was a change to the identity of the person holding an office in the Branch. Either a person ceased to hold an office or a person commenced to hold an office. At or about the time of the change in the underlying circumstances, an obligation to make a corresponding change to the s 230(1)(c) list arose. In each case, there was a failure to make that change to the list (at or about the time of the change in the underlying circumstances), and a contravention of s 230(1)(c) crystallised. Next, sometime later, and in the course of preparing a lodgement under s 233(1)(b), there was a change made to the list required to be maintained under s 230(1)(c). That belated change did not constitute compliance with s 230(1)(c). It occurred too late. That belated change did, however, enliven the obligation arising under s 233(2). The change occurred at or about the time of the preparation of the material required to be lodged under s 233(1)(b). Notification of that change under s 233(2) was required within a prescribed time. No such notification of change was lodged, within the prescribed time or at all.

Whether the breaches were properly distinct or arose out of the one course of conduct

73    The Commissioner submitted, and the AHA agreed, that there are “two dimensions” in which it is appropriate, for the purpose of calculating penalties, to “group” the contraventions of ss 230(1)(c) and 233(2).

74    The first dimension concerns a common feature of certain of the contraventions of s 230(1)(c), in that a number of record change contraventions occurred together in the same year. By way of example, the pleading cites “the 2005 Bossard Record Change Contravention” and the “2005 Goode Record Change Contravention”. See ASOC [68] and [75], respectively. In the case of Mr Bossard, he had ceased to hold office as Vice President of the Branch, and Mr Goode had commenced to hold office as Vice President of the Branch, each at some time during the latter part of 2005. The parties submitted, and I agree, that those two contraventions should be grouped and treated as a single contravention for the purposes of calculating penalties.

75    The parties submitted, and I agree, that the same logic applies to other record change contraventions They agreed on the following groupings: Group 1 comprises the contraventions pleaded at [68] and [75]; Group 2 comprises the contraventions at [82], [89] and [97]; Group 3 comprises the contraventions at [104] and [111]; Group 4 comprises the single contravention at [118]; Group 5 comprises the contraventions at [125], [132], [139] and [146]; Group 6 comprises the contravention at [152A]; and Group 7 comprises the remaining contraventions at [160], [167], [174] and [181]. The number of admitted contraventions of s 230(1)(c) is thus effectively reduced from 17 to 7.

76    It was also agreed that the same logic extends to the contraventions of s 233(2). Each record change contravention was associated with a corresponding change notification contravention. The multiple change notification contraventions arising in the same year, it was agreed, should be grouped together in the same manner as the multiple record change contraventions. The number of admitted contraventions of s 233(2) is thus also effectively reduced from 17 to 7.

77    The parties also agreed that it is appropriate to group together, and treat as one, the s 230(1)(c) contravention (or group of contraventions) for any given year, and the s 233(2) contravention (or group of contraventions) corresponding to the s 230(1)(c) contraventions for the given year, because in each yearly cycle there was essentially one kind of wrongdoing, viz, the mistaken reliance on the annual s 233(1)(b) lodgement as a complete discharge of the organisation’s record-keeping and change notification obligations in relation to the list of office holders.

Whether or not the breaches were deliberate

78    The contraventions of ss 230(1)(c) and 233(2) do not appear to have been deliberate. The Commissioner accepts that the AHA misapprehended its obligations under Part 2 of Chapter 8 of the FWRO Act.

79    The commissioner submitted, and again the AHA did not disagree, that “lack of deliberateness” is not a mitigating factor and that the objective wrongdoing of persistently failing to keep appropriate records, and failing to lodge required notification of change, because of a failure to acquaint oneself with one’s legal obligations, is high. (On the other hand, it would have been an aggravating factor if the conduct had been engaged in with actual knowledge of the statutory obligations. See Registered Organisations Commissioner v Transport Workers’ Union of Australia [2018] FCA 32 at [110]).

Whether the party committing the breach had taken corrective action

80    The AHA says that it has established procedures to ensure compliance in the future, which the Commissioner accepted.

Considerations common to all contraventions

81    The Commissioner made the following submissions in relation to considerations common to all contraventions, with which the AHA did not cavil.

The nature and extent of any loss or damage sustained as a result of the breaches

82    Other than to the extent that the State Board was for a significant period illegitimate, and to the extent that any invalidity has not subsequently been validated under Part 2 of Chapter 11 of the FWRO Act, there is no allegation or evidence of particular material loss or damage sustained as a result of the admitted contraventions. The failure to conduct elections and to notify the identity of office holders gives rise to the potential of serious harm which affects the democratic functioning, accountability and transparency of the organisation.

Whether there had been similar previous conduct by the respondent

83    There is no history of prior contraventions by the AHA.

Whether senior management involved in the breaches

84    The explanations offered in the AHA’s affidavit material include concessions that the senior persons with management of the Queensland Branch were responsible for the decisions resulting in the relevant contraventions.

Whether the party committing the breach has exhibited contrition

The AHA expressed contrition.

Cooperation with enforcement authorities

85    The AHA has cooperated with the Commissioner in the inquiries and investigation preceding the commencement of proceedings, and in the conduct of the proceeding.

86    In the course of the Commissioner’s inquiries and investigation, the AHA made a number of frank admissions as to contravening conduct, in open correspondence. That correspondence would have been available for the Commissioner to deploy in any contested litigation over liability. The admissions at that early stage reduced the scope for and prospect of contested litigation over liability.

87    The AHA, by its initial Defence, made unqualified admissions of contravention in respect of the allegations of contravention of s 189(2) and s 230(1)(c), and subsequently by Amended Defence in respect of s 233(2).

88    While the AHA’s cooperation with the Commissioner was not to the greatest extent conceivable, including as by joining with the Commissioner in a common submission as to penalty, because the unqualified admissions were made at an early stage they resulted in a significant saving in public resources in having to contest liability at trial. The cooperation was substantial and meaningful.

The need for specific and general deterrence

89    The parties agreed that there is limited call for specific deterrence in the present case. There is reason to expect that the AHA will comply with its obligations in the future.

90    They also agreed that the overwhelming sentencing factor in this case is general deterrence.

retrospective penalties

91    The Commissioner relies on the transitional provisions contained in the 2012 Amending Act, referred to at [12] above, in particular that provision (Item 10 of Schedule 1) which provides that the new maximum penalty of 300 units “appl[ies] to orders made on or after” the date on which the amendment commenced (29 June 2012).

92    The AHA submits that the transitional provision cannot be read to operate retrospectively because the words used are not a sufficiently categorical expression of a legislative intention to displace the presumption against retrospectivity, relevantly that a statute increasing the penalties for existing offences is not intended to apply in relation to offences committed before its commencement. See Murrihy v Betezy.com.au Pty Ltd (No 2) (2013) 221 FCR 118 at 126 (per Jessup J). It also submits, among other things, that the transitional provision does not operate in the manner contended for by the Commissioner because the FWRO Act, like the Fair Work Act, attaches liability to the contravention, not to the fact of the Court coming to the requisite state of satisfaction (cf Betezy at 126, [25]) and, that being so, the legislature could not have intended by a side wind to have displaced such a fundamental rule of common law.

93    In my view, the AHA’s submission must be accepted.

94    In Maxwell v Murphy (1957) 96 CLR 261, 267, Dixon CJ said:

The general rule of the common law is that a statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law had defined by reference to the past events.

95    To similar effect, Fullagar J in Fisher v Hebburn Ltd (1960) 105 CLR 188, 194 said:

There can be no doubt that the general rule is that an amending enactment – or, for that matter, any enactment – is prima facie to be construed as having a prospective operation only. That is to say, it is prima facie to be construed as not attaching new legal consequences to facts or events which occurred before its commencement.

96    The same is true of laws that change penalties. As Bray CJ said in Samuels v Songaila (1977) 16 SASR 397 at 399-400, in a passage approved by Jessup J in Murrihy v Betezy.com.au Pty Ltd (No 2) (2013) 221 FCR 118 at 126, [25]:

Counsel for both parties were agreed that the new penalties created by the Act of 1976 did not apply to offences committed before that Act came into operation. It is to my mind obviously inconsistent with elementary principles of justice that they should. Penalties are imposed in order to deter the forbidden conduct and we have to assume that they have some deterrent effect. A man cannot be deterred from committing a forbidden act by fear of a sanction which is not in existence at the time he commits the act.

97    In my view, and in circumstances where the FWRO Act attaches liability to the contravention not to the fact of the court coming to the requisite state of satisfaction, Parliament is not to be taken to have put to one side the fundamental principles adumbrated above, merely by the use of words of the transitional provision.

98    The Commissioner submitted that it was sufficient to have regard only to the words contained in the transitional provision. He submitted that the words are to be read in isolation and literally, so that the words “appl[ies] to orders made on or after” are not to take any meaning from their context. I disagree. A critical part of the context in which the words of the transitional provision are to be construed is that the relevant liability under the FWRO Act attaches as at the date of contravention, not when the court comes to the requisite state of satisfaction in respect of the contravention. Accordingly, the Commissioner’s submission that any conclusion other than that for which he contends does “violence” to the language of the transitional provision is not to be accepted.

99    It follows that the penalties in this case for the period before 26 June 2012 are to be decided in this case by reference to the relevant number of penalty units at the time the contraventions occurred (namely, 100 penalty units).

assessment of penalties

100    As I have said earlier, the AHA agrees with the Commissioner’s penalty ranges in percentage terms. They are as follows:

101    The parties agreed that if I rejected the Commissioner’s submission that the transitional provision operates retrospectively, as I have, and I rejected the AHA’s submission about grouping, as I have, then the agreed range of penalties in dollar terms is as follows:

State Board Election contraventions

National Board Election contraventions

Record Keeping Contraventions

102    In summary, therefore, the parties agreed on the following range of total amounts of penalty:

disposition

103    Having regard to all of the matters referred to above, including, in particular, on the one hand, the need for general deterrence, the length of time over which the contraventions occurred and the seriousness of the election contraventions, and on the other hand, that the AHA admitted the contraventions at an early stage, co-operated with the Commissioner, and put mechanisms in place to ensure that there is no repetition of the conduct, I propose to impose the following penalties, totalling $157,250:

State Board Election Notification Failures

National Board Election Notification Failures

Record Keeping Contraventions

Totality

104    Application of the totality principle does not call for any reduction of the penalties to be imposed.

Associate:

Dated:    17 September 2019

ANNEXURE A

STATEMENT OF AGREED FACTS

(Tendered in accordance with s 191 of the Evidence Act 1995 (Cth))

1.    This Statement of Agreed Facts (SOAF) is jointly made by the Applicant and the Respondent.

2.    This SOAF is made for the purposes of section 191 of the Evidence Act 1995 (Cth) and the admissions are made only for the purposes of this proceeding.

The Commissioner

3.    The Applicant (the Commissioner)

a.    is the holder of the office established by s 329AA of the Fair Work (Registered Organisations) Act 2009 (the FWRO Act),

b.    has standing under s 310 of the FWRO Act to apply for a civil penalty order against a person or an organisation whose conduct contravened civil penalty provisions of the FWRO Act in accordance with Part 9 of the Fair Work (Registered Organisations) Regulations 2009 (the FWRO Regulations), and

c.    by operation of the Fair Work (Registered Organisations) Amendment Act 2016 has standing to apply for a civil penalty order against a person or an organisation whose conduct contravened civil penalty provisions contained in:

i.    Schedule 1B of the Workplace Relations Act 1996 (RAO Schedule 1B) as in force between 12 May 2003 and 26 March 2006 (Period 1); and

ii.    Schedule 1 of the Workplace Relations Act 1996 (RAO Schedule 1) as in force between 27 March 2006 and 30 June 2009 (Period 2).

The Australian Hotels Association

4. The Respondent (AHA)

  a.    is, and has been at all relevant times, a body corporate,

b.    is and was to be taken, during the periods specified below, to be an organisation registered

   i.    during Period 1, under the RAO Schedule 1B;

   ii.    during Period 2, under the RAO Schedule 1; and

iii.    during the period 1 July 2009 – 30 April 2017 (Period 3), under the FWRO Act.

Rules of the AHA

5.    The AHA has, and had at all relevant times, registered rules (the National Rules).

  6.    At all relevant times, the National Rules

   a.    provided for the establishment of Branches of the AHA; and

b.    had provided particularly for the establishment of a Queensland Branch of the AHA (the Branch).

7.    The Branch has, and had at all relevant times, registered rules (the Branch Rules).

The National Rules

8.    At all relevant times, National Rule 11(a) provided that there shall be a National Board which shall be the Committee of Management of the AHA.

9.    At all relevant times, the National Board was a collective body of the AHA that had power in relation to

   a.    the management of the affairs of the AHA,

   b.    the determination of policy for the AHA,

   c.    the making, alteration or rescission of rules of the AHA, and/or

d.    the enforcement of rules of the AHA, or the performance of functions in relation to the enforcement of such rules.

10.    At all relevant times, National Rule 11(a) provided that the National Board would be comprised of voting members including delegates of each Branch of the AHA from time to time as elected.

11.    At all relevant times, National Rule 11 provided that Branch delegates to the National Board would be elected annually, and serve as a member of the National Board for 1 year.

12.    At all relevant times, National Rule 11(e) provided that nominations for election of Branch delegates to the National Board would open at least fourteen days prior to the first day of April in each year.

The Branch Rules

13.    At all relevant times, Branch Rule 10(a) provided that there shall be a State Board which shall be the Committee of Management of the Branch.

14.    At all relevant times, the State Board was a collective body of the Branch that had power in relation to

   a.    the management of the affairs of the Branch,

   b.    the determination of policy for the Branch,

   c.    the making, alteration or rescission of rules of the Branch, and/or

d.    the enforcement of rules of the AHA and the Branch, or the performance of functions in relation to the enforcement of such rules.

15.    At all relevant times, Branch Rule 10 provided that delegates to the State Board would be elected in 1997 and every 2 years after that, and serve as a member of State Board for 2 years.

16.    At all relevant times, Branch Rule 10(e) provided that nominations for election of delegates to the State Board would open at least fourteen days prior to the first day of October in each odd-numbered year.

17.    At all relevant times, Branch Rule 14 provided that there shall be officers of the State Board, each of whom is and remains a voting member of State Board, including the offices of

a.    President;

b.    Senior Vice President;

c.    Vice President (3 positions); and

d.    Secretary/Treasurer

(the Senior Branch Officers).

18.    At all relevant times, each of the Senior Branch Officers was an office of president, vice president, or secretary of the Branch.

Election notifications: contravening conduct

19.    In relation to the annual election due to be conducted in 2004 for Branch delegates to the National Board, the AHA, by itself or by the Branch, was required to lodge the information specified in r 138(1) of the Workplace Relations (Registration and Accountability of Organisations) Regulations 2003, including a signed statement of the kind specified in r 138(2) (RAO Prescribed Information) with the Industrial Registry on a day no later than 18 January 2004 (being a day occurring 2 months before the first person may under the National Rules have become a candidate for the National Board in 2004).

20.    The AHA did not, by the Branch or otherwise, lodge the RAO Prescribed Information in relation to the election due to be conducted in 2004 for Branch delegates to the National Board with the Industrial Registry at any time.

21.    In relation to the annual election due to be conducted in 2005 for Branch delegates to the National Board, the AHA, by itself or by the Branch, was required to lodge the RAO Prescribed Information with the Industrial Registry on a day no later than 18 January 2005 (being a day occurring 2 months before the first person may under the National Rules have become a candidate for the National Branch in 2005).

22.    The AHA did not, by the Branch or otherwise, lodge the RAO Prescribed Information in relation to the election due to be conducted in 2005 for Branch delegates to the National Board with the Industrial Registry at any time.

23.    In relation to the annual election due to be conducted in 2006 for Branch delegates to the National Board, the AHA, by itself or by the Branch, was required to lodge the RAO Prescribed Information with the Industrial Registry on a day no later than 18 January 2006 (being a day occurring 2 months before the first person may under the National Rules have become a candidate for the National Branch in 2006).

24.    The AHA did not, by the Branch or otherwise, lodge the RAO Prescribed Information in relation to the election due to be conducted in 2006 for Branch delegates to the National Board with the Industrial Registry at any time.

25.    In relation to the annual election due to be conducted in 2007 for Branch delegates to the National Board, the AHA, by itself or by the Branch, was required to lodge the RAO Prescribed Information with the Industrial Registry on a day no later than 18 January 2007 (being a day occurring 2 months before the first person may under the National Rules have become a candidate for the National Branch in 2007).

26.    The AHA did not, by the Branch or otherwise, lodge the RAO Prescribed Information in relation to the election due to be conducted in 2007 for Branch delegates to the National Board with the Industrial Registry at any time.

27.    In relation to the annual election due to be conducted in 2008 for Branch delegates to the National Board, the AHA, by itself or by the Branch, was required to lodge the RAO Prescribed Information with the Industrial Registry on a day no later than 18 January 2008 (being a day occurring 2 months before the first person may under the National Rules have become a candidate for the National Branch in 2008).

28.    The AHA did not, by the Branch or otherwise, lodge the RAO Prescribed Information in relation to the election due to be conducted in 2008 for Branch delegates to the National Board with the Industrial Registry at any time.

29.    In relation to the annual election due to be conducted in 2009 for Branch delegates to the National Board, the AHA, by itself or by the Branch, was required to lodge the RAO Prescribed Information with the Industrial Registry on a day no later than 18 January 2009 (being a day occurring 2 months before the first person may under the National Rules have become a candidate for the National Branch in 2009).

30.    The AHA did not, by the Branch or otherwise, lodge the RAO Prescribed Information in relation to the election due to be conducted in 2009 for Branch delegates to the National Board with the Industrial Registry at any time.

31.    In relation to the annual election due to be conducted in 2010 for Branch delegates to the National Board, the AHA, by itself or by the Branch, was required to lodge the information specified in r 138(1) of the Fair Work (Registered Organisations) Regulations 2009 and including a statement of the kind specified in r 138(2) (Period 3 Prescribed Information) with Fair Work Australia on a day no later than 18 January 2010 (being a day occurring 2 months before the first person may under the National Rules have become a candidate for the National Branch in 2010).

32.    The AHA did not, by the Branch or otherwise, lodge the Period 3 Prescribed Information in relation to the election due to be conducted in 2010 for Branch delegates to the National Board with Fair Work Australia at any time.

33.    In relation to the annual election due to be conducted in 2011 for Branch delegates to the National Board, the AHA, by itself or by the Branch, was required to lodge the Period 3 Prescribed Information with Fair Work Australia on a day no later than 18 January 2011 (being a day occurring 2 months before the first person may under the National Rules have become a candidate for the National Branch in 2011).

34.    The AHA did not, by the Branch or otherwise, lodge the Period 3 Prescribed Information in relation to the election due to be conducted in 2011 for Branch delegates to the National Board with Fair Work Australia at any time.

35.    In relation to the annual election due to be conducted in 2012 for Branch delegates to the National Board, the AHA, by itself or by the Branch, was required to lodge the Period 3 Prescribed Information with Fair Work Australia on a day no later than 18 January 2012 (being a day occurring 2 months before the first person may under the National Rules have become a candidate for the National Branch in 2012).

36.    The AHA did not, by the Branch or otherwise, lodge the Period 3 Prescribed Information in relation to the election due to be conducted in 2012 for Branch delegates to the National Board with Fair Work Australia at any time.

37.    In relation to the annual election due to be conducted in 2014 for Branch delegates to the National Board, the AHA, by itself or by the Branch, was required to lodge the Period 3 Prescribed Information with the Fair Work Commission on a day no later than 18 January 2014 (being a day occurring 2 months before the first person may under the National Rules have become a candidate for the National Branch in 2014).

38.    The AHA did not, by the Branch or otherwise, lodge the Period 3 Prescribed Information in relation to the election due to be conducted in 2014 for Branch delegates to the National Board with the Fair Work Commission at any time.

39.    In relation to the annual election due to be conducted in 2016 for Branch delegates to the National Board, the AHA, by itself or by the Branch, was required to lodge the Period 3 Prescribed Information with the Fair Work Commission on a day no later than 18 January 2016 (being a day occurring 2 months before the first person may under the National Rules have become a candidate for the National Branch in 2016).

40.    The AHA did not, by the Branch or otherwise, lodge the Period 3 Prescribed Information in relation to the election due to be conducted in 2016 for Branch delegates to the National Board with the Fair Work Commission at any time.

41.    In relation to the election due to be conducted in 2003 for delegates from each zone within the Branch to the State Board, the AHA, by itself or by the Branch, was required to lodge the RAO Prescribed Information with the Industrial Registry on a day no later than 17 July 2003 (being a day occurring 2 months before a day at least 14 days prior to the first day of October in each odd-numbered year).

42.    The AHA did not, by the Branch or otherwise, lodge the RAO Prescribed Information in relation to the election due to be conducted in 2003 for delegates from each Zone within the Branch to the State Board with the Industrial Registry at any time.

43.    In relation to the election due to be conducted in 2005 for delegates from each zone within the Branch to the State Board, the AHA, by itself or by the Branch, was required to lodge the RAO Prescribed Information with the Industrial Registry on a day no later than 17 July 2005 (being a day occurring 2 months before a day at least 14 days prior to the first day of October in each odd-numbered year).

44.    The AHA did not, by the Branch or otherwise, lodge the RAO Prescribed Information in relation to the election due to be conducted in 2005 for delegates from each zone within the Branch to the State Board with the Industrial Registry at any time.

45.    In relation to the election due to be conducted in 2007 for delegates from each zone within the Branch to the State Board, the AHA, by itself or by the Branch, was required to lodge the RAO Prescribed Information with the Industrial Registry on a day no later than 17 July 2007 (being a day occurring 2 months before a day at least 14 days prior to the first day of October in each odd-numbered year).

46.    The AHA did not, by the Branch or otherwise, lodge the RAO Prescribed Information in relation to the election due to be conducted in 2007 for delegates from each Zone within the Branch to the State Board with the Industrial Registry at any time.

47.    In relation to the election due to be conducted in 2009 for delegates from each zone within the Branch to the State Board, the AHA, by itself or by the Branch, was required to lodge the Period 3 Prescribed Information with Fair Work Australia on a day no later than 17 July 2009 (being a day occurring 2 months before a day at least 14 days prior to the first day of October in each odd-numbered year).

48.    The AHA did not, by the Branch or otherwise, lodge the Period 3 Prescribed Information in relation to the election due to be conducted in 2009 for delegates from each Zone within the Branch to the State Board with Fair Work Australia at any time.

49.    In relation to the election due to be conducted in 2011 for delegates from each zone within the Branch to the State Board, the AHA, by itself or by the Branch, was required to lodge the Period 3 Prescribed Information with Fair Work Australia on a day no later than 17 July 2011 (being a day occurring 2 months before a day at least 14 days prior to the first day of October in each odd-numbered year).

50.    The AHA did not, by the Branch or otherwise, lodge the Period 3 Prescribed Information in relation to the election due to be conducted in 2011 for delegates from each Zone within the Branch to the State Board with Fair Work Australia at any time.

Record Keeping in 2005

51.    As at 30 June 2005, Mr Andreas Bossard held the office of Vice President of the Branch and Mr Don Goode was not a Vice President of the Branch.

52.    During 2005 (and prior to 27 September 2005),

(a)    Mr Bossard ceased to be a Vice President of the Branch; and

(b)    Mr Goode commenced to be a Vice President of the Branch.

53.    The AHA did not change its list concerning the identity of officers of the Branch at or about the time that

(a)    Mr Bossard ceased to be a Vice President of the Branch; and

(b)    Mr Goode commenced to be a Vice President of the Branch.

54.    On or about 16 February 2006 the AHA created a list or changed a list of persons holding office at the Branch as at 31 December 2005. This list reflected the change to office holders of the Branch described at paragraphs 52(a) - 52(b).

55.    The AHA did not lodge a notification under section 233(2) of the RAO Schedule 1B with the Industrial Registry of the fact of that change to the list (made on or about 16 February 2006), however the result of the changes was reflected in the list of officers lodged by the AHA under section 233(1) of the RAO Schedule 1B.

Record Keeping in 2006

56.    As at 1 January Mr Charles Stewart held the office of President of the Branch, Mr Tom McGuire did not hold an office of the Branch, and Mr Michael White held the office of Vice President of the Branch.

57.    On 2 January 2006,

   (a)    Mr Charles James Stewart ceased to be President of the Branch;

   (b)    Mr Tom McGuire commenced to be President of the Branch; and

(c)    Mr Michael White ceased to be a Vice President of the Branch and commenced as a Senior Vice President of the Branch.

58.    The AHA did not change its list concerning the identity of officers of the Branch at or about the time that

   (a)    Mr Charles James Stewart ceased to be President of the Branch;

   (b)    Mr Tom McGuire commenced to be President of the Branch; and

(c)    Mr Michael White ceased to be a Vice President of the Branch and commenced to be a Senior Vice President of the Branch.

59.    On or about 22 February 2007 the AHA created a list or changed a list of persons holding office at the Branch as at 31 December 2006. This list reflected the change to office holders of the Branch described at paragraphs 57(a) - 57(c).

60.    The AHA did not lodge a notification under section 233(2) of the ROA Schedule 1B with the Industrial Registry of the fact of that change to the list, however the result of the changes was reflected in the list of officers lodged by the AHA under section 233(1) of the ROA Schedule 1B.

Record Keeping in 2008

61.    During 2005 (and prior to 27 September 2005), Mr Goode commenced to be a Vice President of the Branch.

 62.    As at 1 January 2008, Mr Ferguson was not a Vice President of the Branch.

 63.    During 2008 (and prior to 30 September 2008),

(a)    Mr Goode ceased to be a Vice President of the Branch; and

(b)    Mr Ferguson commenced to be a Vice President of the Branch.

64.    The AHA did not change its list concerning the identity of officers of the Branch at or about the time that Mr Goode ceased to be a Vice President of the Branch and was replaced by Mr Ferguson.

65.    On or about 30 January 2009 the AHA created a list or changed a list of persons holding office at the Branch as at 31 December 2008. This list reflected the change to office holders of the Branch described at paragraphs 63(a) - 63(b).

66.    The AHA did not lodge a notification under section 233(2) of the RAO Schedule 1 with the Industrial Registry of the fact of that change to the list, however the result of the change was reflected in the list of officers lodged by the AHA under section 233(1) of the ROA Schedule 1.

Record Keeping in 2011

 67.    As at 1 January 2011, Mr Dellar was Secretary/Treasurer of the Branch.

 68.    On 1 February 2011, Mr Dellar ceased to be Secretary/Treasurer of the Branch.

69.    The AHA did not change its list concerning the identity of purported officers of the Branch at or about the time that Mr Dellar ceased to be Secretary/Treasurer of the Branch.

70.    On or about 11 May 2012 the AHA created a list or changed a list of persons purporting to hold office at the Branch as at 31 December 2011. This list reflected the change to office holders of the Branch described at paragraph 69.

71.    The AHA did not lodge a notification under section 233(2) of the FWRO Act with Fair Work Australia of the fact of that change to the list, however the result of the change was reflected in the list of officers lodged by the AHA under section 233(1) of the FWRO Act.

Record Keeping in 2014

72.    As at 1 January 2014,

(a)    Mr Paine was a Vice President of the Branch;

(b)    Mr Armstrong was not a Vice President of the Branch;

(c)    Mr Deery was not a Vice President of the Branch;

(d)    Mr Condon was not Secretary/Treasurer of the Branch.

73.    On 18 August 2014,

(a)    Mr Paine ceased to be a Vice President of the Branch;

(b)    Mr Armstrong commenced to be a Vice President of the Branch;

(c)    Mr Deery commenced to be a Vice President of the Branch; and

(d)    Mr Condon commenced to be Secretary/Treasurer of the Branch.

74.    The AHA did not change its list concerning the identity officers of the Branch at or about the time that

(a)    Mr Paine ceased to be a Vice President of the Branch;

(b)    Mr Armstrong commenced to be a Vice President of the Branch;

(c)    Mr Deery commenced to be a Vice President of the Branch; and

(d)    Mr Condon commenced to be Secretary/Treasurer of the Branch.

75.    On or about 16 February 2015 the AHA created a list or changed a list of persons holding office at the Branch as at 31 December 2014. This list reflected the change to office holders of the Branch described at paragraphs 73(a) - 73(c).

76.    The AHA did not lodge a notification under section 233(2) of the FWRO Act with the Fair Work Commission of the fact of that change to the list, however the result of the changes was reflected in the list of officers lodged by the AHA under section 233(1) of the FWRO Act.

Record Keeping in 2015

 77.    As at 16 February 2015, Mr Ferguson was a Vice President of the Branch.

78.    On or about 1 November 2015, Mr Ferguson ceased to be a Vice President of the Branch.

79.    The AHA did not change its list concerning the identity of officers of the Branch at or about the time that Mr Ferguson ceased to be a Vice President of the Branch.

80.    On or about 27 March 2016 the AHA created a list or changed a list of persons holding office at the Branch as at 31 December 2015. This list reflected the change to office holders of the Branch described at paragraph 78.

81.    The AHA did not lodge a notification under section 233(2) of the FWRO Act with the Fair Work Commission of the fact of that change to the list, however the result of the change was reflected in the list of officers lodged by the AHA under section 233(1) of the FWRO Act.

Record Keeping in 2016

82.    As at 27 March 2016,

(a)    Mr White was Senior Vice President of the Branch;

(b)    Mr Deery was a Vice President of the Branch;

(c)    Mr Douglas was not a Vice President of the Branch; and

(d)    Mr Fitzgibbons was not a Vice President of the Branch.

83.    On 5 August 2016,

   (a)    Mr White ceased to be Senior Vice President of the Branch;

(b)    Mr Deery ceased to be a Vice President of the Branch, and became Senior Vice President of the Branch;

   (c)    Mr Douglas commenced to be a Vice President of the Branch; and

   (d)    Mr Fitzgibbons commenced to be a Vice President of the Branch.

84.    The AHA did not change its list concerning the identity of officers of the Branch at or about the time that

(a)    Mr White ceased to be Senior Vice President of the Branch and was replaced by Mr Deery;

(b)    Mr Deery ceased to be a Vice President of the Branch and was replaced by either Mr Douglas or Mr Fitzgibbons; and

(c)    Either Mr Douglas or Mr Fitzgibbons, whichever did not replace Mr Paine as Vice President of the Branch, commenced to be a Vice President of the Branch.

85.    On or about 30 March 2017 the AHA created a list or changed a list of persons purporting to hold office at the Branch as at 31 December 2016. This list reflected the change to office holders of the Branch described at paragraphs 83(a) - 83(d).

86.    The AHA did not lodge a notification under section 233(2) with either the Fair Work Commission or the Registered Organisations Commissioner of the fact of that change to the list, however the result of the changes was reflected in the list of officers lodged by the AHA under section 233(1) of the FWRO Act.

 87.    In respect of paragraphs 55, 60, 66, 71, 76, 81 and 86:

(a)    Each year the Branch submitted an Annual Return to the applicable regulator in which it listed the office holders in the Branch as at the time that the Return was prepared and submitted, as required by section 233(1) of the applicable statutory instrument at the time of lodgement;

(b)    It was the practice of the Branch throughout the period to which these paragraphs relate not to change its records at or about the time that a change or changes in office holding occurred but instead to update those records to reflect any such changes that had been made as part of an annual obligation on the AHA to lodge an Annual Return under section 233(1) of the applicable statutory instrument.