Federal Court of Australia

Australian Securities and Investments Commission v Bekier (Penalty Judgment) [2026] FCA 756

ORDERS

THE COURT ORDERS THAT:

1.    By 12 noon on 18 June 2026, the parties are to provide a short minute of order to the Associate to Justice Lee in conformity with these reasons.

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

REASONS FOR JUDGMENT

A    INTRODUCTION

1    I recently published reasons finding that the first defendant, Mr Matthias Bekier, and the second defendant, Ms Paula Martin, had contravened s 180(1) of the Corporations Act 2001 (Cth) (Corporations Act): Australian Securities and Investments Commission v Bekier (Liability Judgment) [2026] FCA 196 (LJ).

2    The LJ concerned failures by senior officers of a publicly listed casino operator to respond appropriately to information bearing upon various legal, regulatory and reputational risks regarding Star’s dealings with junkets, particularly its largest junket customer, Suncity, and with its principal banker, National Australia Bank (NAB), in relation to the use of China UnionPay (CUP) cards.

3    Mr Bekier was the Managing Director and Chief Executive Officer of Star. He was the most senior member of management, being the “key point of contact and facilitating the flow of information” between the Board and Star’s executive management team, and had a direct reporting line to the other members of the Board: LJ [1398]. His responsibilities included taking all reasonable steps to ensure that the Board was apprised of matters exposing Star to legal, financial or reputational risks and matters which created or increased a risk that Star or its subsidiaries would breach their legal obligations: LJ [1398].

4    Ms Martin was Company Secretary and Group General Counsel of Star, and later, Company Secretary and Chief Legal and Risk Officer of Star. She was responsible and accountable for, inter alia, providing legal counsel and managing “a full legal and commercial advisory role” to the Chief Executive Officer, other executives, and the Board to ensure compliance with all aspects of the law and protection of the company’s interests: LJ [1608] and [1684]. She was one of the principal custodians of information bearing upon several risks, which she ought to have taken all necessary steps to have raised with the Board.

5    The Court must now determine the declarations of contravention to be made pursuant to s 1317E, whether to make orders for disqualification pursuant to ss 206C and 206E, and determine pecuniary penalties pursuant to s 1317G.

6    It is worth mentioning two matters at the outset.

7    First, although this judgment concerns Mr Bekier and Ms Martin, they were not the only persons within Star who breached their statutory duty under s 180(1). For reasons explained in Australian Securities and Investments Commission v Hawkins [2025] FCA 121, the Managing Director of Star Sydney and, subsequently, Star’s Chief Casino Officer, Mr Gregory Hawkins, was ordered to pay a pecuniary penalty of $180,000 and disqualified from managing corporations for 18 months; while the Chief Commercial Officer and then Chief Financial Officer of Star, Mr Harry Theodore, was ordered to pay a pecuniary penalty of $60,000 and disqualified from managing corporations for nine months. Mr Hawkins was also ordered to contribute to ASIC’s costs in the amount of $65,000, while no costs order was made against Mr Theodore.

8    The Court found, based on facts agreed between the parties, that Mr Hawkins, whose role included overseeing the operations of Star’s Sydney casino, contravened s 180(1) in 2018 by: (a) giving approval for a new rebate and exclusive access agreement with Suncity; and (b) failing to inform the Board, at its meeting on 26 July 2018, of the information he knew about the conduct of Suncity representatives in Salon 95, and failing to recommend that Star terminate its business associations with Mr Chau and/or Suncity. He contravened s 180(1) in 2019 by: (a) failing to inform the Board, at its meeting on 15 August 2019, of the information he knew about the conduct of Suncity representatives in Salon 95; and (b) failing to recommend that Star terminate its business associations with Mr Chau and/or Suncity.

9    Mr Theodore, during the period between 6 November 2019 and 18 March 2020, was found to have contravened s 180(1) by failing to prevent Star from sending the 7 November Email to NAB, which contained inaccurate, incomplete and misleading representations. That was in circumstances where CUP and NAB had sought confirmation from Star that CUP cards were not being used at Star’s properties to fund gambling.

10    For reasons I will explain, the approach taken by ASIC in reaching a paction with Mr Hawkins and Mr Theodore, making joint submissions to the Court to secure the effect of that agreement, and obtaining pecuniary penalty and disqualification orders based upon that regulatory bargain, assumes significance in determining the appropriate orders to be made against Mr Bekier and Ms Martin.

11    Secondly, the LJ was also critical of aspects of the conduct of certain non-executive directors even though no contraventions were ultimately established against them (given the terms of ASIC’s pleaded case). I explained that the evidence did not generally reveal a picture of vigilant non-executive directors taking a diligent and intelligent interest in the information available to them, understanding that information and applying an enquiring mind to their responsibilities: see, for example, LJ [1797]–[1798], [1893], [1945], [1950]–[1952].

12    As I observed in the LJ, a director of a corporation conducting a high-risk enterprise such as a casino is being asked to guide and monitor the management of the company in that context: LJ [1944]. Casino licensees occupy a position unlike most commercial enterprises; they enjoy valuable statutory privileges accompanied by demanding obligations of probity, transparency and regulatory compliance. But no regulatory architecture, no matter how well-conceived, can substitute for the competence and integrity of management, or for the active and informed supervision of directors: LJ [1943].

13    A passive or insufficiently inquisitorial approach to information bearing upon significant risks is a matter provoking serious concern. As I observed in the LJ, what was striking was not merely the foreseeability of risks at different points in time, but the failure of all directors (save in one limited respect) to pursue lines of inquiry with the rigour one might expect by those prepared to accept office as a director of a corporation conducting a business pregnant with inherent and obvious risks.

14    It is therefore important not to misunderstand the effect of the dismissal of ASIC’s claims against the non-executive directors. Their exoneration from findings of contravention did not involve any endorsement of the quality of the Board’s governance culture or practices during the relevant period. The findings made in the LJ concerning the Board’s approach to oversight and enquiry remain significant to the context in which the contravening conduct took place. But, as I have noted, the present hearing concerns only the relief to be imposed consequent upon the contraventions found against Mr Bekier and Ms Martin.

15    Despite what happened with Mr Hawkins and Mr Theodore (who engaged in comparable but not identical misconduct), ASIC submitted that the contraventions of Mr Bekier and Ms Martin demand lengthy periods of disqualification and substantial pecuniary penalties. It now emphasises the seriousness of the conduct, the importance of general deterrence and the fact the contraventions occurred at the most senior levels of a large publicly listed corporation. ASIC also relies upon the Court’s findings that the conduct exposed Star to very substantial risks and, in the case of the CUP contraventions, involved lies being conveyed to NAB concerning the true nature of transactions occurring within the casinos.

16    Mr Bekier and Ms Martin advance a markedly different characterisation. Both emphasise the need for parity between outcomes; that the contraventions sounded in negligence; that neither derived any personal benefit from the conduct; that they have already suffered significant reputational, professional and personal consequences; and that the proceedings themselves have already operated as a substantial source of punishment and deterrence.

17    There was considerable debate before me as to the proper characterisation of the contraventions and the comparative culpability of the contraveners. These are, of course, important considerations, but it is vital not to lose sight of the essential task now confronting the Court. Civil penalties are imposed primarily for the purpose of deterrence. The Court is not engaged in exacting retribution or in expressing moral indignation. The object is the protection of the public interest by imposing sanctions sufficient to deter future contraventions by the contraveners and by others occupying positions of similar responsibility.

18    The assessment of penalties in a case of this kind is necessarily evaluative. There is no tariff for governance failures within large publicly listed corporations, still less for failures occurring within enterprises carrying the unusual privileges and risks associated with casino operations. Care must therefore be taken not to reason mechanically from superficial comparisons with other penalty decisions. At the same time, consistency and parity remain important considerations in the administration of justice.

19    Before turning to the applicable principles and the competing submissions concerning relief, it is necessary first to deal with the evidence upon which the parties relied at the penalty hearing.

B    THE EVIDENCE AND ITS USE

B.1    The evidence adduced

20    The evidence relied upon fell into three broad categories. First, ASIC relied principally upon the findings made in the LJ and upon a confined body of additional documentary material. Secondly, Mr Bekier relied upon affidavit evidence from himself and character evidence. Thirdly, Ms Martin relied upon affidavit evidence from herself and expert evidence concerning her physical and psychological condition.

I    ASIC’s material

21    ASIC’s principal reliance on the findings made in the LJ was unsurprising. The present hearing concerns the consequences flowing from contraventions established after a lengthy trial and the making of detailed findings.

22    ASIC also relied upon a miscellany of other material: a letter dated 16 October 2012 from Mr Larry Mullin to Ms Martin offering her employment at Star; a letter dated 8 August 2019 from Mr Bekier to Mr Theodore offering him employment at Star; Star’s 2019 and 2020 Annual Reports; Ms Martin’s employment contract dated 24 August 2021; and certain paragraphs of Ms Martin’s affidavit affirmed 25 February 2025. The apparent purpose of this material was to identify the positions occupied, the responsibilities assumed and, in part, the remuneration and corporate context relevant to the assessment of penalty.

23    ASIC also sought to tender extracts from the report of the Bell Inquiry. Those extracts included portions of Volume 1 comprising the table of contents, the executive summary, the chapter describing the nature of the review, part of the procedural history of the review and the chapter concerning the use of CUP cards at Star. ASIC also sought to tender portions of Volume 2, including the chapter concerning Star’s dealings with Suncity since 2016 and the chapter concerning the KPMG Reports. It further sought to tender portions of Volume 3 comprising the chapter concerning suitability and Mr Bell SC’s instrument of appointment and terms of reference. In addition, ASIC sought to rely upon the NSW Independent Casino Commission Notice of Disciplinary Action dated 17 October 2022 and Star’s ASX announcement dated 19 April 2023 entitled “Trading Update, Cost Initiatives, and Strategic Review of Sydney”.

24    Mr Bekier initially objected to the tender of substantial portions of the Bell Inquiry material on the basis that the Bell Inquiry addressed matters extending beyond the issues in this proceeding and the contraventions found against him. He also submitted that it was unnecessary to tender the material to establish the threshold for the imposition of a civil penalty because he did not dispute that the contraventions found against him were “serious” within the meaning of s 1317G(1)(b)(iii).

25    It became apparent during oral argument that ASIC’s evident purpose in proposing to adduce the material was to support its contention that the contraventions established in the LJ caused (in the sense of materially contributing to) material prejudice to Star’s interests within the meaning of s 1317G(1)(b)(i) and to support its broader submissions concerning the seriousness and consequences of the contravening conduct.

26    I accepted that the Bell Inquiry material had relevance to ASIC’s causation submissions and to the broader evaluative context in which relief fell to be determined, but that the weight to be given to the material would need to be the subject of close examination. In this regard, I took into account the contraveners’ submission that the Bell Inquiry traversed matters extending well beyond the contraventions established in this proceeding and that care was therefore required not to treat the Bell Inquiry’s broader conclusions as establishing that the reputational, financial and regulatory consequences later suffered by Star were caused by the specific contraventions established in the LJ.

II    Mr Bekier’s material

27    Mr Bekier relied upon his affidavit, which commenced by acknowledging that the Court had made findings that he contravened s 180(1).

28    Mr Bekier’s affidavit next addressed media and reputation. He referred to the appointment of Mr Bell SC in September 2021 to conduct a review, as well as the public hearings in which he was involved. He said that in March 2022, during the Bell Inquiry, he acknowledged that he was ultimately accountable for the effectiveness and adequacy of Star’s processes, policies, people and culture. He said he considered the right thing to do was to accept ultimate responsibility for the deficiencies identified through the Bell Inquiry and to resign. He annexed Star’s ASX announcement dated 28 March 2022 recording his resignation.

29    Mr Bekier then gave evidence of adverse publicity. He said that, from the commencement of the Bell Inquiry, he had been the subject of extensive and sustained adverse media surrounding the circumstances of that inquiry and these proceedings. He said that because of the adverse media concerning Star, the present proceedings and the findings made by the Court, his reputation as a company director and senior executive had been very significantly diminished.

30    The next topic addressed was employment. Mr Bekier referred to his professional background, including that before Star he had been Chief Financial Officer of Tabcorp Holdings Limited and, before that, a partner and consultant at McKinsey & Company for approximately 14 years. He said his career prospects and opportunities had been severely adversely affected since his resignation from Star, the Bell Inquiry and these proceedings.

31    Mr Bekier said that, since resigning from Star, he had tried to find work as a consultant. He joined two consultant “portals”, one in June 2022 and another in March 2024, but neither yielded any paid work. He said that, in the four years since leaving Star, his professional work had been limited to supporting Seventh Street Ventures Pty Ltd as an adviser and Acting Chief Operating Officer between August 2023 and February 2024, assisting Swiss AI AG in an unpaid Chief Financial Officer role between September 2024 and January 2025, and approximately 20 days of billable consulting and advisory work in Australia.

32    In relation to the Swiss AI AG role, Mr Bekier said there was an arrangement by which he would receive equity if a capital raising was successful and would then continue in a paid role. He said that, before funds were raised, he understood a potential investor had raised concerns about his involvement in this proceeding, following which he agreed to discontinue the role.

33    Mr Bekier also said he had not taken any company director or management positions in any public company since resigning from Star. He said he had discussed his prospects with executive search consultants from Egon Zehnder, Russell Reynolds and Heidrick & Struggles in Australia, the United States, Switzerland, France and Dubai. He said several consultants had told him that these proceedings had effectively terminated his prospects of consideration for a senior role anywhere in the world.

34    Mr Bekier gave an example. He said that in about June 2023 he was in discussions with a former McKinsey colleague and senior executive about leading a major hospitality development project in the Middle East. These discussions ended a few weeks later. He said he was told by the executive that those discussions were terminated because of his involvement in these proceedings.

35    Mr Bekier said he had made no further attempts to find employment since the Court delivered the LJ. Based on his experience prior to the delivery of judgment, he said he did not believe he would be able to obtain employment as a director or senior executive in any foreseeable time in the future, and possibly ever.

36    Finally, Mr Bekier addressed his character. He said that, prior to this proceeding, he had never had legal proceedings brought against him, nor had he otherwise been sanctioned by any regulatory body or been the subject of any other disciplinary proceedings of any kind. He said that, while at Star, he was required to pass annual probity assessments in multiple jurisdictions, including in Australia and the United States, and that he passed each of those assessments. He annexed his Executive Service Agreement with Star dated 1 September 2016, which referred to probity requirements associated with the role of Chief Executive Officer and Managing Director.

37    Mr Bekier also relied upon affidavits affirmed by Mr Michael Reid and Ms Diane Smith-Gander. They both gave evidence of their post-nominals, OAM and AO respectively.

38    Mr Reid is an art dealer who has known Mr Bekier for nearly 26 years. He described Mr Bekier as both a good friend and a person whose counsel he had frequently sought and accepted. He went so far as to say he considered Mr Bekier to be “one of the finest humans” he knew.

39    Mr Reid’s affidavit adopted an unusual tone, but it was none the worse for that. He gave a detailed account of his own background in the arts and referred to his Medal of the Order of Australia. He then added, disarmingly, that “I think we can all agree that this level of award can be obtained almost out of a cereal box”, before recounting that a border official at Helsinki airport had apparently thought the award appearing in his passport was a knighthood, a misapprehension Mr Reid said he did not correct.

40    Mr Reid, more relevantly, then turned to Mr Bekier. He said he first met Mr Bekier in the early 1990s and had been close friends with him since that time. Although acknowledging the light-hearted tone of parts of the reference, Mr Reid said he was fully cognisant of the gravity of Mr Bekier’s position.

41    Mr Reid said he knew that the Court had found Mr Bekier breached his director’s duties to Star and that penalty remained to be determined. He said the circumstances of Star’s “fall from grace” and failings had weighed heavily upon Mr Bekier and had affected his personal and professional life considerably. Mr Reid also said Mr Bekier had been particularly distressed that his three daughters had been subject to ridicule and public abuse.

42    Mr Reid said Mr Bekier accepted, with some sadness, that his “public facing professional life” had come to a close. He described Mr Bekier as a complex man shaped by formative personal loss, including the death of his mother and his father’s failure to return from mountain climbing. Mr Reid said those experiences had contributed to Mr Bekier’s integrity, empathy, resilience and quiet determination.

43    The thrust of Mr Reid’s evidence was to present Mr Bekier as a decent fellow of substantial personal integrity notwithstanding the findings made against him. The affidavit was directed to character, reputation, personal impact and the proposition that the public events surrounding Star had imposed very real personal consequences upon him.

44    Ms Smith-Gander is the present Chair of two publicly listed companies and described herself as the “first female Chancellor of the University of Western Australia”. She gave evidence of her extensive directorial and governance experience and explained she “was made an Officer of the Order of Australia for services to business, women’s engagement in executive roles, gender equality and the community”.

45    She gave evidence that she worked with Mr Bekier while she was employed at Westpac Banking Corporation and he was working at McKinsey. She also said that she “grew to regard him as a personal friend”, and was “struck by the honest and direct way he interacted” with a group of young men on a ski vacation. Her evidence speaks well of Mr Bekier’s general character, intelligence, work ethic and professional accomplishments.

46    I accept Mr Bekier is a person who has enjoyed the respect and confidence of others. But, in the end, evidence of this kind has limited utility in assessing the seriousness of the contraventions established in the LJ. Indeed, the findings made in the LJ assume greater significance because they concern conduct by a person of such experience, capability and seniority. Although the affidavits are helpful and relevant (and I have taken them into account), they do not materially affect my assessment of either deterrence or the appropriate relief.

III     Ms Martin’s material

47    Ms Martin relied upon an affidavit affirmed on 15 May 2026. She gave evidence concerning the LJ, her health, adverse media, her search for employment following her tenure with Star, her employment in 2025, and that she had no prior criminal record and has not previously been subject to any regulatory investigation or proceeding.

48    Ms Martin’s evidence was that, following her separation from Star in 2022, she sought employment through various avenues in 2023 to no avail. She said she undertook some contract-based legal work with RACQ between May 2025 and March 2026, for three days per week. She also said that, shortly after receiving the LJ, her contract with RACQ was terminated, and that she is currently unemployed.

49    Ms Martin’s evidence concerning her health was given in some detail. She said that, since giving evidence at the Bell Inquiry in 2022, she has experienced anxiety and depression. She also said that her health worsened markedly following service of process in the present proceeding, and that since 2023 she has been under the care of a psychologist and taking medication to manage her anxiety.

50    Ms Martin described the Bell Inquiry, ASIC examinations and this proceeding as having had substantial adverse effects upon her health (including her mental health), career and future economic prospects. She gave evidence that the proceeding and preparing for trial had a severe impact, and that her experience in giving evidence negatively affected her physically and psychologically.

51    She referred to the publication of adverse media articles about her prior to, during and after the proceeding. She said the media scrutiny had significantly contributed to her stress and depression, particularly given she has always been a private and “low-profile” person.

52    Ms Martin described experiencing anxiety and panic concerning the Bell Inquiry, media attention, the proceeding and the penalty hearing. She gave evidence that she felt anxious about her career prospects, reputation and capacity to earn income.

53    Ms Martin’s evidence also expressed regret that was apparently genuine. Those expressions of regret were made alongside assertions that she lacked any intention to cause harm to Star or expose it to any regulatory or reputational risks. She stated, “I sincerely regret my conduct that was the subject of the findings against me”, and in the very next sentence, “I did not intend to cause any harm to The Star’s reputation or to expose it to any regulatory, reputational or other risks”.

54    I interpolate to note that her other expressions of regret are noticeably qualified. She said, “[w]hile I believed at the time that risks associated with The Star’s association with Suncity were being dealt with by the business, having reflected on the matter and with the benefit of reading the [LJ], I can say that I am genuinely sorry that I did not act differently”. In relation to the 7 November Email, she said “while I did not intend to expose Star to any regulatory or reputational risks, I sincerely regret that I did not give the email more attention and I am sorry that I did not do more”. I will return to this evidence below.

55    She also gave evidence she “felt ashamed and depressed that my conduct under investigation came to define my whole period of time working at The Star”, and that she “felt that I had let myself down and that I had let The Star down”.

56    Ms Martin also relied upon expert evidence from Dr Steve Morgan, a registered psychologist with forensic psychology expertise. Dr Morgan interviewed Ms Martin in April and May 2026.

57    As will become evident, Dr Morgan’s report canvassed some important matters relevant to Ms Martin’s psychological condition and the personal consequences she said had flowed from the Bell Inquiry and these proceedings. But the report also contained a section recording, inter alia, that Ms Martin “did not identify with [A]boriginal or Torres Strait Island cultural heritage” and that she “has never been the aggrieved or respondent to any domestic violence or other restraining order”. Why it was thought appropriate to include these matters in an expert report prepared for the purposes of a civil penalty proceeding concerning contraventions of the Corporations Act was far from evident. It seemed to me entirely non-pertinent to any issue I was required to determine. One might have thought contemporary practice relating to expert evidence had become sufficiently disciplined to resist the apparent impulse to include sociological comments of this kind irrespective of their relevance to the actual controversy before the Court.

58    More relevantly, Dr Morgan recorded that Ms Martin described experiencing chronic psychological distress associated with adverse career and work-related events, formal inquiry and legal proceedings. He reported Ms Martin describing these experiences as cumulatively adversely impacting her health (including her mental health), relationship functioning and, in particular, her career and future economic prospects.

59    He referred to Ms Martin describing the period from 2022 (and to date) as “crushing” in terms of her career, mental state and esteem. He recorded that she reported or described experiencing, inter alia, anxiety and panic, a loss of self-image and identity, ruminative distress, challenges with perseverance, focus and concentration, a loss of confidence affecting her ability to apply for work, loss of energy and motivation, low mood, ease of tearfulness, grief for the loss of her career and reputation, and embarrassment arising from adverse media and professional attention.

60    Dr Morgan was not aware of and had no evidence to support a view of Ms Martin experiencing psychological injury prior to 2022. He recorded that Ms Martin denied contact with any psychologist, psychiatrist or professional helping service prior to 2023. He referred to medication being prescribed from 2023 and provided more granular evidence as to her mental health in March 2026 and thereafter, which is unnecessary to detail in these reasons.

61    Ultimately, he expressed the view that Ms Martin had significant psychological treatment needs and that her prognosis was best considered guarded to pessimistic. He opined that her ability to overcome future challenges would depend on several matters and her ability to sustain such resolve as she could muster and, over the medium term, her ability to resume some meaningful form of work activity.

62    Ms Martin also relied upon a report from a general practitioner, Dr Mary-Jane Stanley. That report was directed to corroborating the fact and chronology of treatment and medication in relation to her mental health.

63    Taken together, Ms Martin’s evidence was directed to establishing the extent of the personal, psychological, professional and reputational consequences she had suffered since 2022, and to the contention that those consequences were relevant to penalty, disqualification and specific deterrence.

B.2     What the evidence did not disclose

64    The preceding section summarises the evidence adduced by the parties. For present purposes, however, what had initially struck me as notable is not only what that evidence revealed, but also what evidence the contraveners did not adduce.

65    The potential evidence falls into two broad categories. The first concerns the absence of evidence bearing upon the extent to which the contraveners personally bore the financial burdens of the proceedings; the second concerns the absence of evidence demonstrating any developed insight into the seriousness of the contraventions established in the LJ and real remorse.

66    As to the first category, both contraveners sought to rely upon the punitive and deterrent effect of the proceedings themselves. That is plainly a legitimate matter to raise. The burden of being investigated by a regulator, publicly examined, cross-examined in lengthy proceedings and then made the subject of adverse findings may be very considerable. Reputational harm, professional exclusion, emotional distress and financial insecurity are all relevant, and may be highly relevant, when the Court comes to assess specific deterrence.

67    But there is a difference between proving that proceedings have had serious reputational or emotional consequences and proving that they have operated as a substantial personal financial vexation. While Ms Martin gave evidence of her taxable income during the 2024 and 2025 financial years and that she had to leverage mortgage funds because of her reduced income, it was notable that neither contravener adduced detailed evidence concerning their present assets and liabilities, present net worth, liquidity, borrowing capacity or the extent to which legal costs incurred in connexion with the Bell Inquiry, ASIC’s investigation and this proceeding had been borne personally. Further, no evidence was adduced as to whether legal expenses incurred in defending these matters had been personally funded, advanced pursuant to indemnity arrangements, paid by insurers or become liable to reimbursement following the findings made in the LJ. There was also no substantial evidence concerning the existence or scope of any directors’ and officers’ insurance responding to defence costs, reimbursement obligations or pecuniary penalties.

68    Why this was potentially relevant is because it is not unduly stretching the bounds of s 144 of the Evidence Act 1995 (Cth) (EA) to observe that directors’ and officers’ insurance policies are a familiar feature of modern corporate life, particularly in relation to senior officers of large publicly listed corporations. There is some limited evidence that such policies existed in this case. It is also well known that such policies commonly provide for the advancement of defence costs and may, depending upon their terms and the nature of the conduct in question, respond to liabilities arising from proceedings. Having said that, indemnity and reimbursement arrangements may differ significantly from case to case, including by reason of statutory constraints, reservation of rights positions, policy exclusions and the possibility of repayment obligations arising following findings of contravention.

69    I mention this because in modern corporate and regulatory litigation, the extent to which proceedings have in fact operated as a substantial personal financial burden may vary very significantly. One individual may personally fund years of complex litigation at enormous expense. Another may have substantial legal costs advanced or indemnified throughout the proceeding. A third may face contingent reimbursement obligations only following adverse findings. The practical operation of proceedings as a source of personal financial deterrence may therefore differ markedly from case to case.

70    Having said this, it became explicable why no such evidence was placed before me in this case, because despite my initial impression, neither contravener sought to rely on any personal financial prejudice caused by the litigation.

71    But it is worth pausing to remark that even where I have seen such a submission, this category of evidence is commonly absent in civil penalty litigation of the present kind. I confess I have long wondered why. The authorities repeatedly emphasise the importance of deterrence, including specific deterrence, in the imposition of civil penalties. Indeed, as the High Court explained in Australian Building and Construction Commissioner v Pattinson [2022] HCA 13; (2022) 274 CLR 450 (at 459 [15]), deterrence is the “primary, if not sole, purpose” of the imposition of a civil penalty. Yet courts are regularly asked to assess submissions that proceedings have already operated as severe personal punishment without being given evidence permitting any reliable assessment of the extent to which the financial burden has, in fact, been personally borne.

72    To be clear, I do not suggest that the existence of insurance or indemnity arrangements aggravates penalty in any way. Nor do I suggest that contraveners are under some free-standing obligation to waive any confidentiality concerning such matters. It is a given that regulatory proceedings visit a toll on those defending them that transcends the extent of any financial impost. But it is worth observing that where a contravener places substantial reliance upon the proposition that proceedings themselves have already operated as severe personal financial punishment reducing the need for specific deterrence, the absence of evidence permitting the Court to assess the extent to which the financial burden has in truth been personally borne may affect the overall persuasiveness of such a submission.

73    The second category of omission is far more important. Although both contraveners relied upon evidence of reputational harm, professional consequences and, in Ms Martin’s case, physical and psychological conditions, and the comments of the type identified above, there was very little evidence demonstrating developed insight into the seriousness of the contraventions themselves.

74    It is one thing to regret the consequences of having been investigated and sued; it is another to demonstrate an appreciation of why the conduct found by the Court involved serious failures in the discharge of duties owed by senior officers of a casino operator.

75    There were, to be fair, statements of acceptance and regret by Ms Martin, albeit qualified by statements evincing a lack of intention to cause harm to Star or expose it to risks. Such statements are relevant, but without more they only go so far.

76    The phrase of Mr Bekier that “I accept responsibility” has become a familiar formula in public life. It may be sincere, but without some articulation of what is accepted, why his conduct was wrong, and what ought to have been done differently, it is a conclusion rather than evidence of insight.

77    The concern is not that either contravener failed to utter conventional incantations of regret. Courts are not in the business of compelling public acts of contrition. The question is a more practical one: has the contravener demonstrated an understanding of why the conduct mattered and was wrong?

78    It was not in dispute that Mr Bekier’s evidence did not descend into any real analysis of the contraventions established against him. It did not identify, by reference to the findings in the LJ, the respects in which he now accepts his conduct fell short. It did not grapple with why the information concerning the KPMG Reports, Suncity, Salon 95 or the CUP 2020 Warning Letter should have caused him to act differently. Nor did it explain what he now understands about the obligations of a Managing Director and Chief Executive Officer of a casino operator with knowledge of information bearing upon legal, regulatory and reputational risks.

79    Ms Martin’s evidence was somewhat more direct in referring to remorse, but it too was principally directed to the consequences suffered by her. The evidence did not contain a developed engagement with why, as Star’s senior solicitor and company secretary, her conduct concerning Suncity and CUP represented serious failures. It did not grapple in any detailed way with the seriousness of allowing a communication to be sent to Star’s banker in circumstances where, as found in the LJ, she was aware that it conveyed representations which were inaccurate, incomplete and misleading: LJ [1724], [1743].

80    In this regard, it will be recalled that Ms Martin’s position at the liability stage was that she did not appreciate misleading conduct occurred and that she did not deliberately set out to mislead NAB. I rejected that evidence and the submissions based upon it. They defied credulity. Ms Martin was not some inexperienced middle manager dealing with an issue beyond her ken; she was an experienced solicitor. As I explained in the LJ, “[w]ith her legal education, training and experience, she was well-equipped with the knowledge and skills to identify misleading representations, and to have been attentive to the legal and commercial risks to which Star would be exposed if it dealt falsely with one of the Group’s key lenders”: LJ [185].

81    The 7 November Email was not subtly incomplete or ambiguous. As I found in the LJ, it was “badly misleading”: LJ [1296].

82    Against that background, as I have explained, her evidence at the penalty hearing in relation to the 7 November Email was that she “did not intend to expose Star to any regulatory or reputational risks” and that “I sincerely regret that I did not give the email more attention and I am sorry that I did not do more”.

83    The difficulty with Ms Martin’s evidence is not that she denied intending to expose Star to reputational or regulatory risks. It would be an odd senior corporate officer who engaged in misleading commercial conduct to desire positively adverse regulatory consequences for their employer. Rather, the difficulty crystallises in two respects. First, as I observed above, her expressions of regret were noticeably qualified by that lack of intention to cause harm to Star or expose it to any regulatory or reputational risks. Secondly, and far more importantly, Ms Martin’s evidence stopped short of directly acknowledging the essential character of what occurred and did not squarely confront the fact that the communication settled and approved by her was materially false. As I found in the LJ, a reasonable officer in her position and Star’s circumstances would not have approved the sending of the response and advised Ms Scopel not to send it, and insisted that a response be prepared and sent to NAB that set out an accurate and complete description of the CUP Process: LJ [1743].

84    As I will explain below, her continuing reluctance to engage directly with the true nature of the conduct bears materially upon the extent to which I can be satisfied that genuine insight has been attained.

85    At the risk of repetition, it is noteworthy how much of the evidence from both contraveners was directed to the effect of the proceedings upon them rather than the effect of their conduct upon Star, its Board, its regulators, its banker or the public interest in the proper governance of casino operators. On one level, perhaps that is unsurprising: evidence in mitigation often focuses upon personal consequences.

86    The significance to be attached to the absence of developed evidence of insight, contrition and remorse was the subject of extensive debate during oral argument. The contraveners submitted, in substance, that the Court should be cautious in making anything of a failure to express contrition. ASIC, by contrast, submitted that the absence of developed insight bore directly upon questions of future risk and specific deterrence. This gave rise to an extended debate, to which I now turn.

B.3     Relevance of lack of contrition

87    Mr Williams SC, who appeared for Mr Bekier, submitted that care was required before making anything of the absence of evidence of contrition or remorse. He emphasised that Mr Bekier intended to appeal from the liability findings and submitted that this circumstance necessarily informed any assessment of the presence or absence of evidence of contrition and remorse. He also submitted that a defendant should not be penalised for maintaining a forensic position pending appeal or declining to make admissions.

88    In support of that submission, Mr Williams relied upon three authorities: Commissioner of Taxation v Rowntree (No 3) [2021] FCA 306, Commissioner of Taxation v Bogiatto (No 2) [2021] FCA 98 (at [74]–[79]) and Australian Competition and Consumer Commission v Delta Building Automation Pty Ltd (No 2) [2024] FCA 580 (at [82]).

89    It is appropriate to say something about each of these cases.

90    In Rowntree at [82]–[87], Rares J rejected an argument that “lack of contrition is a matter that can be taken into account in aggravation of the penalties to be imposed” and observed that “[a] person, when facing the imposition of a penalty, may well be found subsequently on appeal not culpable” and that “they have every right to refrain from expressing remorse for conduct that, as events later might show, was lawful based on that belief”. His Honour also observed that “it is wrong in principle to suggest that, by not expressing contrition or remorse, a person facing the imposition of a penalty can be found to have engaged in conduct that can be taken into account as an aggravating factor in assessing penalty”.

91    Of course, the context in which Rares J made these observations is important. His Honour was addressing a contention that a lack of contrition should operate as an aggravating factor increasing penalty. Properly understood, his Honour’s observations are directed to the proposition that a person should not be penalised merely because a contravener continues to dispute liability or seeks to exercise rights of appeal. I respectfully agree.

92    But that is not the present case. ASIC does not contend, and I do not proceed on the basis, that penalty should be increased because Mr Bekier disputes the findings made in the LJ or intends to challenge them on appeal. Nor do I regard a failure to express remorse as an aggravating circumstance. The present question is a different one. It is whether the evidence before the Court provides a basis for concluding that the need for specific deterrence is reduced because the contravener has demonstrated insight into the nature and seriousness of the conduct found to have occurred.

93    In that regard, the observations of Thawley J in Bogiatto (No 2) (at [74]–[79]) are, with respect, entirely orthodox. As his Honour explained, the relevance of remorse or contrition lies not in punishment for its absence but in its possible bearing upon the level of specific deterrence required. A demonstrated appreciation of wrongdoing may provide some foundation for concluding that a lesser sanction will nevertheless achieve deterrence. Conversely, where such evidence is absent, the Court may be left without any basis for reaching that conclusion.

94    The same distinction was recognised by Bromwich J in Delta Building at [82], where his Honour observed that a respondent is not to be punished for maintaining a defence or for declining to make admissions, but that the absence of remorse or contrition may nevertheless remain relevant to the extent that it bears upon future deterrence and the assessment of what sanction is required to secure compliance with the law. As his Honour succinctly put, the relevance of remorse or contrition in this context “is not a matter of aggravation, but rather an absence of mitigation”.

95    Needless to say, that approach is entirely consistent with Pattinson, which, as I have already noted, emphasises that deterrence is the primary, if not sole, object of the civil penalty regime. Once that is recognised, it follows naturally that evidence bearing upon whether a contravener appreciates the wrongfulness and seriousness of the conduct may be relevant to the extent of specific deterrence required.

96    Concern is not generated by the fact that liability was contested, nor by reason of my findings being resisted elsewhere. It arises because there remains little indication that Mr Bekier has grappled with why the conduct found against him represented a serious departure from the standards expected of a Managing Director and Chief Executive Officer of a corporation conducting a casino business.

97    His apparent indifference finds echoes in his prior conduct. In the LJ, I made reference to Mr Bekier’s attitude to the risks associated with Suncity. One example was the incident discussed at [937] of the LJ. On 8 August 2019, The Age published an article recording Mr Bekier as saying that Star would continue to partner with Suncity despite alleged links to organised crime. When asked why Star was still using Suncity, he responded: “Why not?” He also said he felt Star’s business was run in a “very clean and legal” way and that he felt “pretty comfortable that we are doing a good job”.

98    As I observed in the LJ, aside from demonstrating insouciance concerning Star continuing to deal with an alleged crime-associated junket group, the incident was not of great moment. But it remains a small part of the broader picture when one comes to assess whether the evidence now before the Court demonstrates real insight into the seriousness of the risks and failures identified in the LJ.

99    The Court is not concerned with public penitence. At bottom, the question is whether the evidence demonstrates that the contravener understands what went wrong, why it mattered, and why the conduct represented a serious failure of the responsibilities attaching to the office held. If it does, that may reduce the need for specific deterrence. If it does not, the Court is entitled to proceed on the basis that the need for specific deterrence has not been materially diminished.

100    I will return to the application of these matters when dealing specifically with each contravener. For present purposes, it suffices to record that I do not accept any notion that the absence of developed evidence of contrition, remorse or insight is irrelevant.

B.4     Observations concerning the evidentiary record generally

101    In determining the appropriate relief, I will have regard both to the findings made in the LJ and to such additional findings as are warranted by the evidence adduced at the penalty hearing. I do not propose separately to identify all findings made for present purposes in some discrete section of these reasons. Rather, I will refer to the additional evidence and to those matters established in the LJ which I regard as particularly material when explaining my reasoning concerning specific deterrence, general deterrence and the other considerations bearing upon the appropriate relief.

C    APPLICABLE PRINCIPLES

C.1    General observations

102    The relevant principles concerning the imposition of pecuniary penalties and disqualification orders under the Corporations Act have now been canvassed repeatedly in many authorities, including by me, in some detail, in Australian Securities and Investments Commission v GetSwift Ltd (Penalty Hearing) [2023] FCA 100; (2023) 167 ACSR 178. I will not rehearse all those principles again. The discussion in GetSwift at [35]–[65] is accepted by the parties as being accurate and sufficiently explains the applicable approach, and I adopt that discussion generally for present purposes.

103    It suffices to make several short observations relevant to the present case followed by a longer consideration of the concept of parity, which, because of its present importance, requires close attention.

104    First, as I have already stressed, the primary purpose of a pecuniary penalty is the promotion of compliance with the law by deterrence.

105    Secondly, the power to impose a pecuniary penalty is discretionary and must be exercised judicially, having regard to the subject matter, scope and purpose of the legislation.

106    Thirdly, the task is not one of rigid arithmetic. The Court is required to evaluate the seriousness of the contravening conduct in all the circumstances, including such matters as the nature and extent of the contraventions, the seniority of the contraveners, the extent of any risk of harm caused to the corporation or others, the existence or absence of a so-called compliance “culture”, the duration of the contravening conduct and the need for deterrence.

107    Fourthly, as I explained in GetSwift (at [40]), following Pattinson, there is a need to avoid reducing the process to some mechanical checklist exercise. The controlling consideration is what is necessary to achieve specific and general deterrence in the particular case (viewed realistically and not through some lens of abstract retribution). The various factors identified in the authorities are important only insofar as they inform that evaluative task.

108    Fifthly, although the maximum penalty is important, it is “but one yardstick that must ordinarily be applied” among other factors: Pattinson (at 471–472 [52]–[54]). There must be some “reasonable relationship between the theoretical maximum and the final penalty imposed”: Pattinson (at 457 [10]). That relationship is established where the maximum penalty does not exceed what is reasonably necessary for specific and general deterrence of future contraventions of a like kind by the contravener and by others: Pattinson (at 457 [10]).

109    Sixthly, the principles commonly described as the “course of conduct” principle and “totality” principle may inform the assessment of an appropriate overall penalty: GetSwift (at [44]–[47]). The course of conduct principle recognises that where there is an interrelationship between the legal and factual elements of multiple contraventions, care must be taken to ensure a contravener is not punished twice (or more often) for what is, in substance, interconnected conduct: GetSwift (at [45]). The totality principle requires the Court to stand back and consider whether the aggregate penalty properly reflects the entirety of the contravening conduct. Under that principle, the Court may conduct a “final check” to ensure that the overall penalty to be imposed does not exceed what is proper for the conduct viewed as a whole: Australian Competition and Consumer Commission v Productivity Partners Pty Ltd (trading as Captain Cook College) (in administration) (No 6) [2025] FCA 542 (at [59] per Stewart J).

110    Seventhly, as to disqualification, the principal protective purpose of orders under ss 206C and 206E is well established. The object is to protect the public from the harmful use of the corporate structure or from its use contrary to proper commercial standards: Australian Securities and Investments Commission v Adler [2002] NSWSC 483; (2002) 42 ACSR 80 (at 97 [56(i)] per Santow J); GetSwift (at [61]). Personal deterrence and general deterrence are also relevant to the exercise of the disqualification power: Adler (at 97–98 [56(v)]–[56(vi)]); Australian Securities and Investments Commission v Beekink [2007] FCAFC 7; (2007) 238 ALR 595 (at 604 [81]–[87] per Mansfield, Jacobson and Siopis JJ).

111    Finally, there is force in the long-standing practice identified by the Full Court in Cruickshank v ASIC [2022] FCAFC 128; (2022) 292 FCR 627 at (663–664 [143]–[144] per Allsop, Jackson and Anderson JJ) that the question of disqualification ordinarily be considered prior to the question of pecuniary penalty. That practice reflects the different purposes served by the two forms of relief: disqualification is primarily protective; pecuniary penalties are directed principally to deterrence.

C.2    The principled approach to “parity” in civil penalties

112    For reasons that would already be apparent from my introduction, the parties devoted considerable attention to the notion of “parity”. As I have noted, ASIC resolved proceedings against Mr Hawkins and Mr Theodore, and invited the Court to make orders reflecting the settlements reached with those individuals. Mr Bekier and Ms Martin submit, in substance, that the outcomes in those cases provide an important benchmark against which the relief now sought by ASIC should be assessed.

113    The parity principle has its origins in criminal sentencing. At its core lies the proposition that, so far as the law permits, like cases should be treated alike, and different cases differently: Green v The Queen [2011] HCA 49; (2011) 244 CLR 462 (at 472–473 [28] per French CJ, Crennan and Kiefel JJ). The concern is to avoid outcomes productive of a justifiable sense of grievance because persons whose culpability and circumstances are relevantly comparable receive markedly different treatment.

114    But, as experience has shown, some care is required before translating criminal sentencing concepts indiscriminately into civil penalty proceedings. The regimes are, at bottom, different. Criminal sentencing is concerned with punishment, denunciation, protection, rehabilitation, deterrence and retribution in the sense recognised by sentencing law. Civil penalties are not imposed to exact retribution or to achieve some notional moral equilibrium. As the High Court explained in Pattinson (at 469–470 [45]), concepts such as parity may usefully be deployed in the enforcement of the civil penalty regime, but only because they are analytical tools assisting the Court to determine what may be considered reasonably necessary to deter further contraventions. They are not imported because civil penalties are disguised criminal punishments. Deterrence remains the lodestar.

115    As was discussed during the course of oral submissions, this distinction matters. Parity is not an independent controlling norm in civil penalty proceedings. It informs the evaluative judgment required and assists the Court to avoid irrational or unfair disparities, but it does not displace the central question of what relief is necessary and appropriate to achieve specific and general deterrence in the circumstances of the contravener and the contravening conduct.

116    Care is required, because even in the criminal context, the application of parity is not always straightforward. The observations collected by the Court of Criminal Appeal in R v Dyson [2023] NSWCCA 132 illustrate the practical difficulty. Where co-offenders are sentenced separately, and sometimes on different factual foundations, the later sentencing judge must take care to compare the culpability of each offender by reference to the facts upon which each was actually sentenced. An offender is not sentenced based on material tendered against another offender. Nor is the parity principle applied by constructing an artificial comparison divorced from the evidentiary foundation upon which each sentence was imposed.

117    Dyson (and the recently decided case of Bridge v R [2026] NSWCCA 40) also illustrate another point of present significance. The criminal law strongly prefers, where practicable, that co-offenders be sentenced by the same judge. That preference exists because parity is easier to maintain when one judge assesses all relevant evidence, all agreed facts and all subjective circumstances in a single sentencing exercise. But that practical ideal is not always achieved, and the authorities recognise the resulting difficulty.

118    Similar, and in some respects sharper, difficulties arise in civil penalty proceedings. It is notorious that civil penalty litigation can proceed unevenly. Some respondents may settle early; some may admit liability; some may agree facts; some may co-operate with the regulator; and others may contest liability and proceed to a fully contested hearing. Those differences often form part of the reason why the regulator agrees to recommend, or not oppose, a particular penalty in respect of one respondent but seeks a different outcome against another.

119    In Tasdik v R [2024] NSWCCA 195, Wright J at [58]–[63] (with whom Bell CJ and Davies J agreed) usefully surveyed five considerations which inform the application of the parity principle in the criminal law: first, the test is whether any disparity between sentences engenders a justifiable sense of grievance and an appearance of injustice to the objective bystander (hence the sense of grievance is to be assessed objectively); secondly, the principle is concerned with considerations of substance rather than form; thirdly, equal justice and thus the parity principle do not require the same outcome for the same conduct; fourthly, in determining whether there has been a disparity of a kind sufficient to give rise to a justifiable sense of grievance, it is appropriate to consider all of the facts and circumstances applicable; and fifthly, a Court ought not intervene to reduce a sentence below a level, which would mean that “the sentence would be wholly inadequate having regard to the offence involved and the criminality of the offender, where such a result would be an affront to the proper administration of justice”.

120    While again bearing steadily in mind the different nature of fixing civil penalties from criminal sentencing, these principles seem to me, by way of analogy, to be apposite to the application of parity issues in the present context.

121    A respondent who contests liability is not to be “punished” for doing so. There is nothing improper in requiring a regulator to prove its case. But a respondent who contests liability cannot assume the same forensic or practical benefit will be obtained as a respondent who admits contravention, agrees facts, co-operates, saves public resources and permits the Court to deal with relief on an agreed or substantially agreed footing.

122    This was the point made by Cheeseman J in Australian Securities and Investments Commission v Daly (Penalty Hearing) [2024] FCA 3 (at [132]–[137]). Her Honour accepted that parity required consideration, but emphasised that its application was not straightforward. The submitting respondents had negotiated an outcome with the regulator reflecting, inter alia, co-operation, acceptance of liability and the saving of public resources. A remaining contravener, by contrast, had contested liability and was required to be dealt with according to the ordinary evaluative task of fixing an appropriate penalty. He was not to be punished for contesting liability, but nor was he entitled to the benefits attaching to the agreed resolution with others.

123    Cheeseman J also identified another matter of direct relevance here. Drawing on the considerations identified above, the proper inquiry is whether any difference in outcome is objectively rational and fair, so that no justifiable sense of grievance may arise. That formulation is important as it avoids both extremes. It rejects the idea that settlements with some are irrelevant to the position of others. But it also rejects the proposition that earlier agreed outcomes somehow mechanically cap or dictate the penalty to be imposed on those whose cases are different in material respects.

124    In the present case, I accept the comparison with Mr Hawkins and Mr Theodore is of real relevance. They were senior Star executives, and their contraventions arose out of related events concerning Suncity and CUP. The declarations made by the Court at the urging of ASIC against Mr Hawkins and Mr Theodore, and those now proposed to be made against Mr Bekier and Ms Martin, contain substantial factual overlap. The penalties and disqualification orders imposed upon Mr Hawkins and Mr Theodore therefore form part of the landscape in which the present relief must be assessed.

125    But, as I will explain, they are not simple comparators. The orders made in relation to Mr Hawkins and Mr Theodore arose at the conclusion of a different procedural course. They were based upon agreed facts and reflected admissions and acceptance of liability. They avoided, albeit belatedly, the need for a lengthy contested hearing against those individuals to be concluded. They embodied the regulator’s assessment of the value of that co-operation and the forensic utility of agreed resolution.

126    There is also substantial overlap between my findings in the LJ and the agreed facts concerning Mr Hawkins and Mr Theodore. Indeed, in this respect, the present factual comparison is easier that in many criminal sentencing comparisons of co-offenders. Unlike a jury verdict followed by sentence, the LJ contains detailed findings that can be readily compared with the agreed facts. But the comparison remains incomplete because agreed outcomes in civil penalty proceedings reflect more than objective culpability arising from a common factual substratum. They also reflect the reality of admissions, co-operation, and the regulator’s assessment of the public interest in resolution.

127    It follows that the task is not to identify some precise mathematical relationship between the orders made against Mr Hawkins and Mr Theodore and those to be imposed upon Mr Bekier and Ms Martin. Nor is it to reason backwards from the earlier settlements to determine what ASIC might hypothetically have agreed had these defendants resolved their cases earlier. That would be to engage in the error Cheeseman J identified in Daly.

128    Here the Court must consider whether the outcomes presently urged by ASIC would produce objectively unjustifiable or irrational disparity having regard to all relevant similarities and differences. Those differences may include role, seniority, objective seriousness, number and nature of contraventions, degree of knowledge, directness of involvement, admissions, co-operation, saving of public resources, insight, contrition, personal circumstances and the total effect of the proposed relief.

129    Accordingly, in the present circumstances, parity has real work to do, but it does not do that work mechanically. It operates within, and not outside, the statutory task of fixing a remedial response to serve the end of deterrence.

130    It is against those principles that the competing submissions concerning Mr Hawkins and Mr Theodore must be assessed. I will return below to the similarities and differences relied upon by the parties.

D    DECLARATORY RELIEF

131    As noted at the outset of these reasons, the first issue requiring determination concerns the appropriate form of declaratory relief pursuant to s 1317E of the Corporations Act.

132    ASIC correctly submitted that s 1317E is, in substance, mandatory in operation once the Court is satisfied a person has contravened a civil penalty provision: Australian Securities and Investments Commission v Holista Colltech Ltd [2024] FCA 244 (at [43]–[45] per Sarah C Derrington J); Australian Securities and Investments Commission v Noumi Ltd (No 4) [2024] FCA 1192 (at [95] per Jackman J). ASIC also correctly referred to the observations in Rural Press Ltd v Australian Competition and Consumer Commission [2003] HCA 75; (2003) 216 CLR 53 (at 91 [89] per Gummow, Hayne and Heydon JJ) that declarations should indicate the “gist of the findings” constituting the contravention, and to Mayfair Wealth Partners Pty Ltd v ASIC [2022] FCAFC 170; (2022) 295 FCR 106 (at 157–158 [183] per Jagot, O’Bryan and Cheeseman JJ) that declarations should accurately and concisely reflect the contravening conduct.

133    The dispute centred not on whether to make declarations, but on how many to make and how to properly characterise the contraventions.

134    ASIC proposed two declarations: one that Mr Bekier contravened s 180(1) on “four occasions”; and another that Ms Martin contravened s 180(1) on “three occasions”.

135    In relation to Mr Bekier, the four occasions reflect: (a) the “KPMG Reports” contravention; (b) the “Suncity in 2018” contravention; (c) the “Suncity in 2019” contravention; and (d) the “CUP in 2020” contravention. In relation to Ms Martin, the three occasions reflect: (a) the “Suncity in 2018” contravention; (b) the “Suncity in 2019” contravention; and (c) the “CUP in 2020” contravention.

136    Ms Martin did not oppose the declarations sought by ASIC. The controversy instead focussed upon whether ASIC’s proposed declaration concerning Mr Bekier impermissibly fragmented what was said to be, in substance, interconnected and overlapping conduct.

137    ASIC submitted that the KPMG Reports and Suncity in 2018 contraventions involved distinct failures occurring at different points in time and in response to different information becoming available to Mr Bekier. It contended that the KPMG Reports contravention concerned what a reasonable director would have done (and what Mr Bekier failed to do), in terms of looking backwards at prior actions he and the Board had taken. It submitted, in contrast, that the Suncity in 2018 contravention concerned what a reasonable director would have done in a “forward looking way” as to whether the relevant information had implications for Star’s ongoing relationship with Suncity and Mr Chau.

138    These submissions distract from the real task in which the Court was engaged. What was being assessed was whether there was a contravention over a particular period of time. The analysis was, in accordance with principle, forward-looking to what a reasonable person would have done, and was undertaken without the benefit of hindsight. Suggesting that one contravention was backward-looking and another was forward-looking unhelpfully overlooks that the contraventions involved some overlapping conduct. It is worth emphasising that overlap was a consequence of how ASIC decided to plead its case.

139    Mr Bekier relied upon the warning given by Ipp JA in Vines v ASIC [2007] NSWCA 126; (2007) 63 ACSR 505 (at 549 [214]–[215]) that, in making declarations of contravention, care must be taken not to duplicate conduct in a manner which may result in a person effectively being penalised more than once for the same conduct. Mr Bekier submitted that ASIC’s proposed declaration suggested he had contravened s 180(1) on four occasions merely because of how ASIC had chosen to plead its case. Mr Bekier submitted that the KPMG Reports and Suncity in 2018 contraventions substantially overlapped and reflected the same continuing failure adequately to respond to information about Suncity’s conduct in Salon 95 during the period up to the Board meeting held on 26 July 2018, including the Power Email Information.

140    With foresight of this issue potentially arising at the penalty stage, I acknowledged in the LJ that the Suncity in 2018 contravention overlapped to some extent with the KPMG Reports contravention, in that both captured Mr Bekier’s failure to disclose the contents of the Power Email to the Board by 26 July 2018 (at [1403]). This was why ASIC’s appellation for the “KPMG Reports” allegation was “somewhat of a misnomer”; it not only involved the KPMG Reports, but also the Power Email: LJ at [1371].

141    Indeed, the only additional knowledge Mr Bekier was alleged (and found) to have had in respect of the Suncity in 2018 allegation was what was known as the “Salon 95 Concerns”, and that the reference in the May 2018 CEO Report was the only written information provided to the Board in the Board papers for the Board meeting held on 26 July 2018 concerning Suncity and Salon 95: LJ [1403]–[1406].

142    As Mr Williams correctly submitted, the proper characterisation of contravening conduct cannot depend merely upon the manner in which ASIC elected to formulate and particularise its pleading. Although pleadings necessarily identify distinct allegations and informational episodes, the Court’s task under s 1317E remains one of substance rather than form.

143    But, as to the overlap between the two contraventions, the qualification “to some extent” was used advisedly: LJ [43], [1403]. There is a component of the KPMG Reports contravention which does not overlap with the Suncity in 2018 contravention. That was Mr Bekier’s failure, by 16 August 2018, to have taken all necessary steps to undertake enquiries and report back to the Board as to Mr Qin’s and Mr Chau’s probity, sources of wealth and sources of funds, and to the extent it was available at the time, provide probity information concerning those individuals to the Board, as well as recommend to the Board that the Board direct Star’s management to suspend all business associations between the Group and Mr Qin, Mr Chau and Suncity, until the Board was satisfied that it was appropriate for the Group to maintain those business associations: LJ [1380(b)].

144    It will be recalled that ASIC pleaded the KPMG Reports allegation by reference to three alternative end points in time: first, the Audit Committee meeting held on 23 May 2018; secondly, the Board meeting held on 24 May 2018; and thirdly, the Audit Committee meeting held on 16 August 2018: LJ [1372]. I found that, by 26 July 2018, being the date on which the Board meeting in July 2018 was held, Mr Bekier would have taken all necessary steps to ensure that the other members of Star’s Board were informed of the Power Email Information (LJ [1380(a)]), and that, by 16 August 2018, he would have taken the steps outlined above at [143]: LJ [1380(b)].

145    The decision to plead these different points in time reflected a conscious choice. It was presumably informed by ASIC’s case that Mr Bekier’s knowledge accumulated between May and August 2018. He knew the Power Email Information by 16 May 2018: LJ [1377]. He knew the KPMG Junket Risk Information by 10 July 2018: LJ [1378]. He knew that, as of 23 May 2018, Star’s management was still reviewing the KPMG Reports and believed that there were some aspects of the content and the bases for some opinions that may be contested: LJ [1379]. But importantly, he also knew that, by the time of the Audit Committee meeting held on 16 August 2018 (of which he was in attendance), Star had accepted the findings in the KPMG Reports were correct and that KPMG’s recommendations based on those findings should be adopted: LJ [1379]. That finding is relevant to the part of the contravention occurring “by 16 August 2018”.

146    On balance, I consider the better course is to characterise the conduct as three contraventions. The overlapping content can be captured within a single, broader contravention encompassing the full period from May to August 2018. Declaring that contravention as one contravention reflects what was, in essence, a continuing failure to respond appropriately to accumulating information over a discrete period of time.

147    By way of contrast, the Suncity in 2019 contravention was clearly analytically distinct. It focussed specifically upon Mr Bekier’s response to information he had received prior to the Board meeting on 15 August 2019, including the media reporting about Crown in July and August 2019: LJ [1437].

148    Although there was some overlap in knowledge, in that Mr Bekier was alleged (and found) to have known of the same matters he knew by 26 July 2018, Mr Bekier was alleged (and found) to have known of the “Chau Visa Refusal Information”, the “Suncity Overseas Contraventions”, the “NSW Police Suncity Exclusions” and the “Crown Allegations”: LJ [1438] and [1442]–[1448]. Mr Bekier’s conduct in 2019 involved distinct failures premised on knowledge including that additional knowledge: LJ [1449]–[1464].

149    Similarly, the CUP in 2020 contravention involved a separate episode concerning communications with NAB, the use of CUP cards and receipt of the CUP 2020 Warning Letter. Mr Bekier’s conduct involved his failure, following receipt of the 5 March 2020 email from Mr Theodore (attaching the CUP 2020 Warning Letter), and in the light of the information he then knew, to ask for all of Star’s communications with NAB concerning CUP cards: LJ [1468]–[1515].

150    For completeness, I note that in relation to Ms Martin, I am satisfied that the declaration proposed by ASIC appropriately reflects the distinct aspects of her contravening conduct. The conduct underpinning the Suncity in 2018, Suncity in 2019, and CUP in 2020 contraventions involved sufficiently distinct episodes, responsibilities and failures to warrant separate contraventions.

151    Having said that, the practical significance of the debate between ASIC and Mr Bekier should not be overstated.

152    As the authorities concerning totality make plain, civil penalties are not imposed through some mechanistic exercise. Even where multiple contraventions are separately identified and declared, the Court must ultimately stand back and determine whether the overall relief appropriately reflects the substance and seriousness of the conduct viewed as a whole.

153    That consideration assumes particular significance in the present case. Whatever view is taken concerning the precise number of contraventions, the practical application of well-established principle would, in any event, require substantial regard to be had to the overlap between the various episodes and failures identified in the LJ. Technically, of course, each contravention carries separate statutory consequences and separate maximum penalties. But the ultimate task remains an evaluative one directed to determining what overall remedial response is necessary and appropriate to achieve specific deterrence, general deterrence and the protective purposes associated with disqualification.

154    Hence, properly analysed, the resolution of the present dispute concerning whether there should be three contraventions or four in respect of Mr Bekier’s conduct would not, in substance, have altered the ultimate relief I would otherwise regard as appropriate. Having said this, the proper characterisation of the contravening conduct nevertheless remains important because declarations publicly identify the nature and extent of the contraventions established and form part of the Court’s vindication of the statutory norm.

E    MAXIMUM PENALTIES

155    It was common ground that the maximum pecuniary penalties applicable to the contraventions of Mr Bekier and Ms Martin in 2018 are lower than the maximum pecuniary penalties applicable to their contraventions in 2019.

156    In respect of conduct that occurred prior to 12 March 2019, s 1317G(1B) provided that the maximum penalty applicable to the contravention of a civil penalty provision by an individual was $200,000.

157    Increased maximum penalties were introduced by the Treasury Laws Amendment (Strengthening Corporate and Financial Sector Penalties) Act 2019 (Cth). Section 1317G was amended to increase the maximum pecuniary penalty available for a contravention of a civil penalty provision. During the period from 13 March 2019 through to March 2020, the maximum pecuniary penalty applicable for a contravention of a civil penalty provision by an individual was the greater of: (a) 5,000 penalty units; and (b) if the Court can determine the benefit derived and detriment avoided because of the contravention, that amount multiplied by three. The value of a penalty unit is fixed by s 4AA of the Crimes Act 1914 (Cth) and was $210 in the period including August 2019 to March 2020. Therefore, 5,000 penalty units as provided for in s 1317G(3) amounts to $1,050,000.

158    Accordingly, the maximum penalty for each of the Suncity in 2019 contraventions and CUP in 2020 contraventions is $1,050,000. For the KPMG Reports and Suncity in 2018 contraventions, however, the maximum penalty for each contravention is $200,000 under the prior regime. That said, insofar as the KPMG Reports and Suncity in 2018 episodes regarding Mr Bekier are concerned, I am satisfied that the maximum penalty for the single, broader contravention encompassing the full period from May to August 2018 is $200,000.

159    It is also convenient to say something about the role of the statutory maximum. The maximum penalty is not to be approached as though it were reserved only for the “worst imaginable case”, nor does it operate as a starting point from which deductions are made. Consistently with the observations of the High Court in Pattinson, the maximum penalty serves as a legislatively prescribed “yardstick” against which the objective seriousness of the contravening conduct and the adequacy of the proposed penalty may be assessed. Although the present contraventions are serious, the significance of the statutory maximum lies principally in providing a frame of reference for the evaluative task required by s 1317G rather than in dictating any particular proportion of the available maximum that ought to be imposed.

160    Although it is unnecessary to refer to the maximum again, I will take account below of the maximum penalties when considering the appropriate orders to be made in relation to each contravener.

F     MR BEKIER

F.1     General observations concerning penalty

161    ASIC submitted that Mr Bekier should be disqualified from managing corporations for eight years and pay a pecuniary penalty of $1,300,000. Mr Bekier contended for materially lesser relief, including a disqualification period of 18 months together with a substantially lower pecuniary penalty of not more than $240,000.

162    The applicable principles have already been summarised above and need not be repeated in detail. The factors identified in ASIC v Adler [2002] NSWSC 483; (2002) 42 ACSR 80, ASIC v Rich [2003] NSWSC 85; (2003) 44 ACSR 341 and ASIC v Vines [2006] NSWSC 760; (2006) 58 ACSR 298 remain useful guides in assessing the appropriateness of relief, although, as I have already noted, they are not to be applied mechanically. Ultimately, the task remains an evaluative one directed to protection of the public, maintenance of proper standards of corporate governance and the achievement of adequate deterrence.

163    The starting point must be the seriousness of the contraventions established in the LJ.

164    Although the findings did not involve personal enrichment, they nevertheless revealed sustained and serious failures by the Managing Director and Chief Executive Officer of a publicly listed casino operator to respond appropriately to information bearing upon various legal, regulatory and reputational risks relating to Star’s dealings with junkets and its principal banker.

165    The office occupied by Mr Bekier materially aggravates the seriousness of the conduct. He was the Managing Director and Chief Executive Officer of Star. He was the most senior member of management and was required to take all reasonable steps to ensure the Board was informed of matters which exposed Star to legal, financial or reputational risks and matters which created or increased the risk that Star or its subsidiaries would breach their legal obligations: LJ [1398].

166    The significance of those responsibilities is heightened in the casino industry. As I noted in the introduction to these reasons, casinos operate under licences conferring extraordinary commercial privileges. Those privileges exist only because governments and regulators proceed upon the assumption that those entrusted with casino management will maintain standards of probity and regulatory compliance. The community tolerates casino operations upon the premise that those controlling them will exhibit vigilance equal to the risks inherent in the enterprise. Although I must not lose focus on the precise contraventions found, those contraventions arose of the context repeated failures adequately to appreciate and respond to escalating warning signs concerning junket activities.

167    But, as I have already noted, attention must be on the proven contraventions. The KPMG Reports and Suncity in 2018 contraventions were serious. As I explained in the LJ in respect of the KPMG Reports contravention, a reasonable director would have recognised that the KPMG Junket Risk Information demonstrated real deficiencies in Star’s ML/TF risk assessment processes as to junkets, particularly because Star did not make enquiries about the source of wealth or source of funds of junket operators or funders: LJ [1381]. Such information bore directly upon the adequacy of Star’s processes for identifying and managing precisely the risks those processes were designed to guard against. The reasonable director would have identified that the deficiencies increased the risk of failing to comply with certain legal obligations: LJ [1383].

168    Those findings were made in the context the findings in the full KPMG Part B Report, which Mr Bekier received on 10 July 2018 and read by this time: LJ [1381]. A managing director and chief executive officer of a casino operator with knowledge of the KPMG Junket Risk Information should have appreciated immediately that the issues identified carried potentially grave implications. The material called not only for sustained insight, but for urgent engagement. Instead, the response proved inadequate to the seriousness of the risks which had become apparent.

169    In relation to the KPMG Reports contravention, I also observed that Mr Bekier had also received and read the Power Email: LJ [1377], [1384]. I found that a reasonable director in his position would have considered whether the Power Email Information and the deficiencies identified by KPMG, individually and collectively, meant that Star’s existing relationships with junkets, including their operators and funders, had resulted in Star being exposed to increased risk: LJ [1384]. This is an instance of where the KPMG Reports and Suncity in 2018 episodes overlap to some extent, and I have kept this overlap steadily in mind to ensure Mr Bekier is not penalised twice for what is, in substance, the same underlying conduct.

170    I now turn to the Suncity in 2018 contravention. By the time of the Board meeting held on 26 July 2018, Mr Bekier knew, inter alia, the Power Email Information, the KPMG Junket Risk Information, the Salon 95 Concerns, and that the reference to these concerns in his May 2018 CEO Report was the only written information concerning Suncity and Salon 95 contained in the Board papers for the Board meeting: LJ [1415].

171    For reasons which will become apparent, it is worth quoting the LJ at [1424]:

As I have already explained in relation to the allegation against Mr Bekier concerning the KPMG Reports, a reasonable director in Mr Bekier’s position: (a) having read the Power Email would have been apprised of alarming facts that would have awoken their suspicion that something was seriously wrong and represented a range of legal, regulatory and reputational risks to Star; and (b) would have recognised from the full KPMG Reports that the KPMG Junket Risk Information demonstrated deficiencies in Star’s ML/TF risk assessment processes concerning junkets. Both of those matters, considered individually and collectively, would have given rise to a foreseeable risk that Star Sydney would be in breach of one or more of its AML/CTF Obligations, and accordingly, could be liable to the imposition of substantial civil penalties imposed under the AML/CTF Act.

(Emphasis added).

172    The qualification at the commencement of [1424] that “[a]s I have already explained in relation to the allegation against Mr Bekier concerning the KPMG Reports”, as well as the words “individually and collectively”, were used deliberately. They highlight an instance of where, in substance, the KPMG Reports and Suncity in 2018 contraventions overlap.

173    I ultimately found that the reasonable director would have taken all necessary steps to ensure, by the latest at the Board meeting held on 26 July 2018, that the Board was informed of the Power Email Information: LJ [1431]. That finding squarely overlaps with the finding in KPMG Reports episode at LJ [1380(a)]. I also found that the reasonable director would have taken all necessary steps to ensure the Board was informed of the pleaded risks that would arise if the Group maintained business associations with Suncity and Mr Chau, and provided with a recommendation that the Group at least suspend all business associations between the Group and Suncity and Mr Chau until satisfactory probity information was provided: LJ [1431]. Mr Bekier failed to take these steps.

174    I now turn to the CUP in 2020 contravention. Although ASIC did not allege that Mr Bekier knew of the CUP 2019 Warning or the terms of the 7 November Email (unlike the allegations against Ms Martin and Mr Theodore), he knew of the CUP Process and its principal purpose, various pleaded forms of risk, and the CUP 2020 Warning Letter: LJ [1478]–[1504]. What struck me forcefully was that Mr Bekier accepted that he knew the statement in the CUP 2020 Warning Letter that the transactions “do not include any component for the purpose of gambling” was false, and he presumed he realised it was false when he read the letter: LJ [1502].

175    Following receipt of that letter, he failed to ask for all of Star’s communications with NAB concerning CUP cards. That was an obvious and necessary step to be taken by a director occupying Mr Bekier’s position to ascertain the precise terms of the representations Star had made to NAB in response to earlier requests for information: LJ [1510]–[1515]. A major Australian bank was entitled to expect complete candour and accuracy in communications concerning matters of obvious regulatory significance. Mr Bekier should have got to the bottom of this by demanding access to all material and then done his job.

176    The conduct underpinning the CUP in 2020 contravention did not occur in some factual vacuum. It occurred against the backdrop of broader failures at the most senior executive level to properly confront and address a variety of risks. The conduct formed part of a wider pattern in which warning signs were insufficiently escalated, insufficiently interrogated and insufficiently acted upon.

177    Several of the relevant discretionary considerations therefore point strongly towards substantial penal orders. The conduct extended over a significant period. It involved more than one failure rather than some isolated lapse of judgment. The contraventions occurred while Mr Bekier occupied the most senior executive office within the corporation. The departure from the standards expected of a Managing Director and Chief Executive Officer of a casino operator was serious.

178    General deterrence assumes considerable significance. Senior executives of casino operators, and public companies conducting enterprises pregnant with risks more broadly, must understand that failures of the kind established by the contraventions may attract substantial personal consequences. Public confidence in the integrity of licensed casino operations depends materially upon courts responding firmly where senior management fail adequately to confront legal, regulatory and reputational risks.

179    I also accept ASIC’s submission that the conduct cannot fairly be characterised as involving some momentary error made in unusual circumstances. The failures persisted notwithstanding the accumulation of information and warning signs over time.

180    There are, however, important considerations pointing in the opposite direction.

181    First, as I have noted, the contraventions sounded in negligence and did not involve personal enrichment.

182    Secondly, I accept the evidence that the consequences already suffered by Mr Bekier have been profound. The Bell Inquiry, the adverse publicity, these proceedings and the findings made in the LJ have effectively destroyed his career as a senior public company executive and director. I also accept the substance of the evidence that his prospects of obtaining comparable senior corporate roles are now remote.

183    It is also relevant that Mr Bekier resigned from Star during the Bell Inquiry and accepted at that time that he bore ultimate accountability for deficiencies in Star’s systems, policies and culture. Although that falls well short of complete insight into the seriousness of the contraventions established in the LJ, it remains a relevant consideration.

184    Thirdly, I accept that the evidence generally portrayed Mr Bekier as a person of prior good character who had previously enjoyed a successful and respected professional career. The events giving rise to the present proceeding are not reflective of a life otherwise characterised by disregard for legal obligations.

185    But these matters only go so far. As I explained earlier in these reasons, there was no evidence demonstrating developed insight into why the conduct established in the LJ represented serious failures in the discharge of duties owed by the Managing Director and Chief Executive Officer of a casino operator. That absence of insight bears materially upon both specific deterrence and protective considerations. A court assessing future risk is entitled to regard the presence or absence of genuine insight as highly material. A person who fully appreciates why conduct was wrongful presents a different picture from one who continues largely to frame events through the prism of the consequences suffered personally.

186    Further, although Mr Bekier was successful in resisting aspects of ASIC’s pleaded case, the proceeding was hard fought. ASIC ultimately established serious contraventions after a lengthy trial involving substantial public and private resources.

187    These matters inform both the question of disqualification and the question of pecuniary penalty. They also provide the context in which parity with Mr Hawkins and Mr Theodore falls to be considered.

F.2     Statutory considerations relevant to penalty

188    Section 1317G(6) requires the Court, in determining pecuniary penalty, to take into account all relevant matters, including the nature and extent of the contravention, the nature and extent of any loss or damage suffered because of the contravention, the circumstances in which the contravention took place, and whether the person has previously been found by a court to have engaged in similar conduct. The remaining statutory consideration concerning trustees of registrable superannuation entities has no application.

189    The nature and extent of Mr Bekier’s contraventions have already been described.

190    As to loss or damage, I accept that the contraventions exposed Star to serious legal, regulatory and reputational risks. I also accept that the contraventions formed part of the broader factual setting considered in the Bell Inquiry and subsequent regulatory action. But, for the reasons already explained, I am not satisfied, to the degree required by s 140 of the EA, that the entirety of the reputational, financial and regulatory consequences suffered by Star following the Bell Inquiry were caused by the specific contraventions established against Mr Bekier. The seriousness of the risk created remains highly relevant. But it is necessary to avoid eliding risk, contribution and proof of specific causal consequence.

191    The circumstances in which the contraventions occurred were grave. They occurred within a casino operator whose commercial privileges depended upon regulatory confidence and trust. They occurred in circumstances where Star’s relationship with Suncity and related junket operations presented foreseeable and obvious risks. They also occurred in circumstances where Star was telling lies to its banker and it was known that the principal purpose of the CUP Process was to enable CUP cardholders to access their funds for the impermissible purpose of gambling. Those circumstances increase, rather than reduce, the seriousness of the contraventions.

192    Finally, there was no evidence that Mr Bekier has previously been found by a court, in Australia or elsewhere, to have engaged in similar conduct. I take that matter into account.

F.3     Disqualification

193    As noted above, ASIC sought a period of disqualification of eight years. Mr Bekier contended for 18 months.

194    The disqualification power is primarily protective, although specific and general deterrence are also important. The question is not simply whether Mr Bekier is likely to return to a public company executive role. It is whether, having regard to the nature of the contraventions, the office he held, the absence of developed insight and the need to maintain proper standards of corporate governance, a disqualification order is justified and, if so, for what period.

195    For the reasons explained above, I do not consider the period sought by ASIC necessary to achieve the statutory purposes of the disqualification power. The practical destruction of Mr Bekier’s senior public company career, the absence of personal dishonesty or enrichment and the very substantial professional and reputational consequences already suffered all carry real weight.

196    Conversely, I do not consider that a disqualification period in the vicinity of 18 months would even remotely reflect the seriousness of the conduct, the seniority of Mr Bekier’s position, and the importance of the protective considerations engaged in the present case.

197    I am satisfied that the appropriate period of disqualification for Mr Bekier is six years.

F.4     Pecuniary penalty

198    ASIC submitted that Mr Bekier should pay a pecuniary penalty of $1,300,000. That figure reflected ASIC’s proposed aggregation of penalties across the KPMG Reports contravention, the two Suncity contraventions and the CUP in 2020 contravention, moderated by what ASIC described as the application of totality principles.

199    Mr Bekier submitted that ASIC’s proposed penalty was manifestly excessive, particularly when considered together with the lengthy period of disqualification ASIC also sought. He submitted that the Court should impose penalties broadly comparable to those imposed upon Mr Hawkins and Mr Theodore, adjusted to reflect differences in culpability, admissions and co-operation.

200    Mr Bekier further submitted that ASIC’s proposed penalties failed properly to account for the practical consequences already suffered by him, including what he described as a de facto ban on his involvement in senior corporate management since his resignation from Star during the Bell Inquiry.

201    The principles applicable to pecuniary penalties have already been discussed above. Several considerations, however, assume particular significance in the present context.

202    The Court must determine the penalty necessary and appropriate, in all the circumstances. Pecuniary penalties also do not operate in isolation from the other forms of relief imposed by the Court. The combined effect of disqualification, reputational destruction, professional exclusion and pecuniary penalty must be considered as an integrated whole. Put differently, the overall penal response should be no more than is reasonably necessary to achieve the statutory purposes of deterrence and protection in the particular circumstances of the case.

203    As noted above, I also take into account the maximum penalties. In particular, I recognise that for the now combined KPMG Reports and Suncity in 2018 contravention, the applicable maximum penalty is $200,000. For each of the Suncity in 2019 and CUP in 2020 contraventions, the maximum penalty is $1,050,000.

204    ASIC’s proposed penalty of $1,300,000 must be understood against that background. In particular, once the KPMG Reports and Suncity in 2018 matters are treated, as I have concluded they should be, as one contravention, the maximum penalty becomes less than what would otherwise be available. ASIC’s approach nevertheless had force to the extent it emphasised that, for the later contraventions, Parliament had prescribed a much more substantial maximum penalty, reflecting the seriousness with which such contraventions were to be viewed.

205    I also accept that specific deterrence remains relevant notwithstanding the state of Mr Bekier’s public company career. The absence of developed insight identified earlier in these reasons means that specific deterrence cannot be treated as spent merely because the proceedings themselves have produced severe professional consequences.

F.5     Parity

206    I have also had regard to the matters referred to earlier concerning parity, being part of the evaluative process by which the Court determines what relief is rational and hence appropriate. In the present case, as I have explained, it assumes real significance because ASIC previously reached what can only be described as generous agreed outcomes with Mr Hawkins and Mr Theodore in respect of conduct arising from related aspects of Star’s dealings with Suncity and CUP.

207    It will be recalled that Mr Hawkins was the Managing Director of Star Sydney, and subsequently, Chief Casino Officer, and was dealt with in relation to contraventions concerning Suncity. Mr Theodore was the Chief Commercial Officer, and subsequently, Chief Financial Officer, and was dealt with in relation to the CUP communication. Their conduct formed part of the same broad factual matrix as the contraventions established against Mr Bekier. It would be wrong to put those outcomes to one side.

208    But the comparison is imperfect and the differences are material. First, the outcomes in relation to Mr Hawkins and Mr Theodore were achieved by agreement. They reflected agreed facts, acceptance of contravention, co-operation with ASIC and the saving of public resources. Secondly, their cases were not litigated through a lengthy contested hearing. Thirdly, the Court was not required to resolve contested issues of credit, competing characterisations of conduct and the many factual and evaluative issues that arose in the present case. Fourthly, Mr Bekier’s office was different; he was the Managing Director and Chief Executive Officer and occupied the apex executive position within Star. He had a direct reporting line to the other members of the Board.

209    Fifthly, the evidence concerning insight and contrition was materially different. The agreed resolution of the proceedings against Mr Hawkins and Mr Theodore necessarily involved acceptance of liability and a willingness to proceed on an agreed factual basis. Mr Bekier, by contrast, contested liability and did not adduce evidence demonstrating any developed insight into why the conduct found against him involved serious failures in the discharge of the duties attaching to his office.

210    None of this involves punishing Mr Bekier for defending the proceeding. He was entitled to put ASIC to proof. But, as Cheeseman J explained in Daly, a respondent who does not resolve proceedings with the regulator is not entitled to hypothesise as to the outcome he might have achieved had he done so. Nor is he entitled to receive the benefit which the regulator and the Court may properly recognise in those who accept liability, agree facts and spare the public the cost and burden of a contested hearing. At the same time, parity does operate as a meaningful constraint, as the differences in outcome must be rational and fair, such that no justifiable sense of grievance may arise.

211    In my view, ASIC’s proposed penalty of $1,300,000 gives manifestly insufficient weight to this consideration. The conduct established against Mr Bekier was serious, and more serious in important respects than the conduct reflected in the agreed outcomes concerning Mr Hawkins and Mr Theodore. But the disparity between ASIC’s proposed penalty and the penalties it agreed be imposed upon those other senior executives would lack any rational comparison if I proceeded as ASIC now contends I should.

212    If I were considering Mr Bekier’s position in isolation, and without regard to the need to ensure some rational relationship between his outcome and the outcomes in relation to Mr Hawkins and Mr Theodore, I would have imposed a more severe pecuniary penalty than the one I ultimately impose. But parity is not a matter to be mentioned and then ignored. Taking it properly into account, while also recognising the material distinctions identified above, and after having regard to all other considerations I have mentioned, I consider that the appropriate pecuniary penalty is $700,000, subject only to the final application of totality.

213    In reaching this figure I have had regard to all the relevant considerations I have mentioned, including the substantial disqualification order I propose to impose and the reputational and other consequences flowing from the LJ.

F.6     Totality

214    It remains necessary, as a final check, to consider whether the combined operation of the proposed orders is consistent with totality principles.

215    Although separate contraventions have been established, the conduct was closely interconnected factually and evaluatively and arose out of overlapping failures and having stood back and considered the combined operation of all proposed penal orders, I am satisfied that the penalty identified above does not exceed what is reasonably necessary to achieve the statutory purposes of deterrence in the circumstances of this case.

216    I am satisfied that it is appropriate for Mr Bekier to be disqualified from managing corporations for six years and pay a pecuniary penalty of $700,000.

G    MS MARTIN

G.1     General observations concerning penalty

217    ASIC submitted that Ms Martin should be disqualified from managing corporations for seven years and pay a pecuniary penalty of $1,100,000. Ms Martin contended for disqualification for such period as the Court sees fit and a pecuniary penalty of $360,000, emphasising the absence of personal gain and the severe professional and reputational consequences already suffered.

218    The applicable principles have already been summarised and need not be repeated in detail. As with Mr Bekier, the factors identified in Adler, Rich and Vines remain useful guides, although the ultimate task is evaluative and directed to protection of the public, maintenance of proper standards of corporate governance and the achievement of adequate deterrence.

219    The conduct established against Ms Martin in the LJ was serious in a very particular way.

220    Ms Martin occupied positions carrying central legal, governance and risk responsibilities within Star. At various times, she served as Company Secretary, Group General Counsel and Chief Legal and Risk Officer. As I explained in the LJ, her key responsibilities and accountabilities as Group General Counsel and Company Secretary included managing “a full legal and commercial advisory role to the Chief Executive, Senior Executives and the Board to ensure [Star] complies with all aspects of the law, and that its interests are protected”, identifying areas of risk to ensure protection of Star’s integrity, and providing legal advice in connexion with investigations: LJ [1538] and [1608]. Her key responsibilities as CLRO included “[u]ltimate responsibility for the portfolio of Legal, Risk and Compliance related, Internal Audit, Responsible Gambling, Corporate Investigations and Company Secretariat functions” and providing “legal counsel to the [CEO], other Executives and the Board to ensure compliance with all aspects of the law, and that the company’s interests and reputation are protected”: LJ [1549] and [1684]. For reasons which I repeatedly emphasised in the LJ, Ms Martin could not divide her duties and responsibilities between her roles as Group General Counsel, Company Secretary and CLRO: LJ [1519]–[1528] and [1619]–[1620].

221    The community is entitled to expect that a solicitor occupying such positions and having such responsibilities, within one of Australia’s largest casino operators, will display professional independence, accuracy and judgment of a high order. The conduct established in the LJ represented a very serious departure from those standards.

222    In respect of the Suncity in 2018 contravention, Ms Martin knew not only of certain pleaded obligations, the Power Email Information and KPMG Junket Risk Information, but also the “Operation Money Bags Information” and that Star had issued the First Warning Letter to Mr Iek and provided it to Suncity representatives in Salon 95: LJ [1567]–[1593]. She had also visited Salon 95 and was aware that processes had been developed for provision to junket representatives at Salon 95 as to the operation of the Salon 95 Service Desk: LJ [1591]–[1592].

223    As I explained in the LJ, a reasonable officer would have recognised that the Power Email Information and the Operation Money Bags Information meant that maintenance by the Group of business associations with Suncity and/or Mr Chau gave rise to several pleaded risks: LJ [1594]–[1615]. They would have also recognised that the members of Star’s Board relied on them to draw to their attention any matters of which they were aware that gave rise to a real risk that Star Sydney was in breach of its legal obligations, or which, if such information became publicly known, would cause reputational harm to Star Sydney: LJ [1617]. The reasonable officer would have also taken all necessary steps to ensure that both Mr Bekier and the other members of Star’s Board were informed of, inter alia, the substance of the Power Email Information, the Operation Money Bags Information and that the maintenance of the relationship with Suncity and/or Mr Chau gave rise to foreseeable pleaded risks: LJ [1633].

224    The Suncity in 2019 contravention is particularly troubling. In 2019, Ms Martin also knew the “Operation Lunar Information”, the “HKJC Information”, the “Junket Due Diligence Information”, the “Suncity Overseas Contraventions”, the information recorded in the “Board Talking Points” email from Mr Hawkins, the “NSW Police Suncity Exclusions”, the “AFP Suncity Information”, and the “Crown Allegations”.

225    A reasonable officer in Ms Martin’s position would have recognised that such matters meant that maintenance by the Group of business associations with Suncity and/or Mr Chau gave rise to various legal, regulatory and reputational risks: LJ [1674]–[1678]. A reasonable officer would have also recognised that the members of Star’s Board relied upon them to draw to their attention any matters of which they were aware that gave rise to a real risk that Star Sydney was in breach of its legal obligations, or which, if they became public, would cause reputational harm to Star Sydney: LJ [1679]. The reasonable officer would have also recognised that the Crown Allegations Board Paper failed to inform the Board of the substance of the matters concerning Mr Chau and Suncity of which they were aware: LJ [1687].

226    In short, Ms Martin knew of a miscellany of alarming information pertaining to Mr Chau and Suncity which meant that maintaining associations with Mr Chau and Suncity gave rise to the pleaded foreseeable risks of harm to Star. She was required to report such matters to the Board, but failed to do so. This is all the more concerning when considered against the backdrop of Ms Martin being the most senior solicitor employed by Star.

227    I now turn to the CUP in 2020 contravention.

228    As I found in the LJ, a reasonable officer in Ms Martin’s position and Star’s circumstances, when presented with the CUP 2019 Warning, would have: first, instructed or advised Ms Scopel to prepare a response that set out an accurate and complete description of the CUP Process; secondly, (if presented with a draft response to the CUP 2019 Warning that was in the same or substantially similar terms as the 7 November Email), would have recognised that it conveyed representations which were inaccurate, incomplete and misleading; thirdly, would have recognised that it would expose Star Sydney to pleaded risks concerning suitability, Star’s relationship with NAB, misleading or deceptive conduct and Star’s reputation; and fourthly, would not have approved the sending of the response and advised Ms Scopel not to send it, and insisted that a response be prepared and sent to NAB that set out an accurate and complete description of the CUP Process: LJ [1743].

229    Instead, with knowledge of the CUP Process and its principal purpose (to enable CUP cardholders to access funds via their CUP cards for gaming); that NAB had periodically sought confirmation that CUP card transactions were not being used improperly; and that NAB had not been informed they were being used improperly, Ms Martin approved the 7 November Email. She failed to ensure that Mr Bekier and the other members of Star’s Board were informed of the circumstances within her knowledge relating to the receipt of the CUP Warning and the terms of the 7 November Email (including the fact that it conveyed inaccurate, incomplete and misleading representations): LJ [1755]–[1761].

230    The terms of the 7 November Email did not involve some immaterial drafting infelicity or unfortunate ambiguity capable of being dismissed as an error of expression. The communication conveyed badly misleading representations to one of Star’s principal bankers. Ms Martin knew that the 7 November Email was false, and that there was a real possibility that NAB and/or CUP and/or PBOC would be misled into believing that Star did not permit its patrons to use funds that they obtained from their CUP card for gambling-related purposes: LJ [1724].

231    I regard it as particularly significant that Ms Martin possessed the legal training, experience and professional skill fully to appreciate the importance of accuracy and candour in communications of that kind. She was an experienced solicitor. The conduct cannot sensibly be characterised as the product of inexperience or failure to appreciate the nature of the risk presented.

232    The seriousness of the conduct is aggravated by the fact that it occurred within a casino operator already facing mounting concerns regarding junkets, regulatory compliance and anti-money laundering risk.

233    One of the central responsibilities of a Chief Legal and Risk Officer within a publicly listed corporation is to resist the institutional degradation of standards concerning risks and compliance with the law. A dysfunctional corporate environment does not diminish the obligations of a senior legal officer. If anything, it heightens them. The more pervasive the failures of governance and culture become, the greater the obligation upon those entrusted with legal and risk responsibilities to insist upon compliance with legal obligations and proper standards of corporate conduct.

234    Further, the obligations of honesty and candour resting upon corporate lawyers are not aspirational or optional standards capable of being diluted by commercial pressure or institutional convenience. They lie close to the centre of what is expected of those privileged to practise law and to occupy senior legal positions within major corporations. It was part of Ms Martin’s responsibility to assist in ensuring legal risks were properly escalated and that those within the organisation understood the seriousness of the legal and regulatory obligations resting upon Star.

235    General deterrence assumes particular importance. Senior legal and governance officers within major corporations must understand that failures involving misleading communications and inadequate discharge of legal oversight responsibilities may attract serious personal consequences.

236    There are, however, several considerations pointing in the opposite direction.

237    First, there was no finding that Ms Martin acted for personal financial advantage or enrichment.

238    Secondly, I accept the evidence that the professional consequences already suffered by Ms Martin have plainly been severe. The findings made in the LJ carry obvious and enduring significance for a solicitor and former senior legal executive. I accept that those consequences are likely to continue for many years.

239    Thirdly, I accept that the evidence generally portrayed Ms Martin as a person who had previously enjoyed a successful professional career and whose conduct in the present case was not reflective of a life otherwise characterised by dishonesty or disregard for legal obligations.

240    Fourthly, the detailed and compelling evidence adduced as to the personal toll these matters have extracted upon Ms Martin, particularly as to her health and general well-being, was unchallenged and is of especial importance.

241    Those considerations nevertheless need to be weighed against an important and troubling feature of the evidence to which I referred earlier in these reasons.

242    Despite the seriousness of the findings made in the LJ, the evidence adduced by Ms Martin did not demonstrate a developed recognition of the essential wrongfulness of the conduct. What remained striking was the absence of any direct acknowledgment that the NAB communication was misleading, and that permitting its transmission involved conduct fundamentally inconsistent with the standards expected of a senior legal officer.

243    The difficulty was not that Ms Martin denied wishing to expose Star to reputational or regulatory harm. Most commercial misconduct of this character occurs because those involved believe, rightly or wrongly, that the perceived commercial advantages justify the risk. The more significant difficulty was that even now the evidence remained framed largely in terms of inadvertence, insufficient attention or failure to appreciate consequences, rather than candid acceptance of the true character of the conduct. The absence of insight bears materially upon both specific deterrence and protective considerations.

244    I also take into account that the proceeding was vigorously contested. Although Ms Martin was successful in resisting aspects of ASIC’s case, ASIC nevertheless established serious contraventions after a lengthy hearing involving very substantial expenditure of public and private resources.

G.2    Statutory considerations relevant to penalty

245    The nature and extent of Ms Martin’s contraventions have already been described.

246    As to loss or damage, the contraventions exposed Star to serious legal, regulatory and reputational risks. However, like Mr Bekier, I am not satisfied that the entirety of the reputational, financial and regulatory consequences suffered by Star following the Bell Inquiry were caused by the specific contraventions established against Ms Martin.

247    As I have already explained, the circumstances in which the contraventions occurred were grave.

248    Finally, there was no evidence that Ms Martin has previously been found by a court, in Australia or elsewhere, to have engaged in similar conduct. I take that matter into account.

G.3     Disqualification

249    Ms Martin did not oppose the disqualification order sought by ASIC. It is not inappropriate and, in the absence of opposition, Ms Martin should be disqualified from managing corporations for seven years. As would be immediately apparent, there is somewhat of a disparity between this disqualification order and the cognate order of six years made in relation to Mr Bekier. This is because there is, obviously enough, a range of appropriate disqualification orders, and Ms Martin did not oppose an order at the top of that range as it applied to her.

G.4     Pecuniary penalty

250    ASIC submitted that a penalty of the magnitude sought was necessary to mark the seriousness of the conduct, vindicate the importance of general deterrence and convey that senior legal officers who engage in conduct involving misleading communications to external stakeholders may expect substantial personal consequences.

251    Ms Martin submitted that ASIC’s proposed penalty of $1,100,000 was excessive, particularly when viewed with the very substantial reputational and professional consequences already suffered by her. She submitted that the practical effect of the LJ upon her professional standing and future career prospects already constituted a very substantial form of punishment and deterrence. I accept that this consideration reinforces the importance of ensuring that the ultimate pecuniary penalty does not exceed what is reasonably necessary to achieve deterrence when viewed together with all other consequences already suffered.

252    As I have explained, the necessary evaluative task requires the Court to consider the overall operation of the penalty and other others imposed but, like with Mr Bekier, several considerations support the imposition of a substantial pecuniary penalty.

253    The conduct established in the LJ involved serious failures and general deterrence assumes particular importance. Senior lawyers and governance officers within major corporations perform a critical role and must be deterred from engaging in similar contravening behaviour as Ms Martin while they discharge a role with such obvious regulatory and reputational significance. Additionally, as I have explained, I also regard the absence of limited genuine insight by Ms Martin as relevant to giving effect to specific deterrence (and notwithstanding the making of a substantial disqualification order which she has not opposed).

G.5    Parity

254    What troubles me in fixing a penalty for Ms Martin in the range proposed by ASIC is the necessity to consider parity by reference to the position of Mr Hawkins and Mr Theodore. As I have already indicated, ASIC submitted that limited assistance could be obtained from the orders made against them because those orders reflected an agreed resolution and because the conduct established against Ms Martin was materially more serious. I accept both propositions, but only up to a point.

255    I will first deal with Mr Theodore.

256    It will be recalled that Mr Theodore occupied the office of Chief Financial Officer of Star. He was a senior executive. The declaration made against him concerned conduct relating to the transmission to NAB of the 7 November Email containing inaccurate, incomplete and misleading representations concerning the use of CUP cards. The objective seriousness of that conduct should not be understated.

257    As the agreed background facts indicate, Mr Theodore received draft responses from Ms Scopel at 9.06am and 11.18am, and he made edits to the latter. At 11.51am, he requested that the words “gaming facilities” be removed from the description of Star Sydney in the accompanying Luxury Entertainment Overview document and replaced with “world-class entertainment facilities”: ASIC v Hawkins [2025] FCA 121, Annexure B at [33]. The inference jointly proffered to be drawn from his request to remove “gaming facilities” was that he was “seeking to downplay the obvious fact that Star operated gaming facilities so as to increase the plausibility of the claim that Star was providing CUP cardholders with access to significant non-gaming goods and services”: ASIC v Hawkins [2025] FCA 121, Annexure B at [33(g)].

258    It was submitted that these matters made Mr Hawkins’ conduct more direct and extensive than Ms Martin, and that in contrast, Ms Martin’s involvement “was to review a draft and respond ‘it looks ok to me’ with one suggested amendment”. One might describe this submission as exhibiting considerable chutzpah given what I found in the LJ. I had no doubt whatever that when Ms Martin gave her advice that Ms Scopel’s response to NAB “looks ok” and “helps [Star’s case]” she knew that the position of NAB, CUP and the PBOC was that CUP cards could not be used for transactions with any gambling component, whether directly or indirectly: LJ [1216]. It was wholly implausible that Ms Martin, as CLRO and the most senior solicitor employed by Star, would simply say that an email “looks ok” without taking the time to review the email to which she was responding: LJ [1226]. Ms Martin also received the email containing the changes which Mr Theodore made to the draft response: LJ [1206]. These were facts and circumstances that informed Ms Martin’s contravention of s 180(1) with respect to CUP in 2020.

259    But any comparison between Ms Martin and Mr Theodore cannot be exact. Their responsibilities within Star were different and the obligations resting upon an experienced solicitor occupying the office of Chief Legal and Risk Officer and Company Secretary were of a different character from those borne by an operational executive. Nevertheless, both contraventions arose from substantially the same underlying failure adequately to prevent Star sending to NAB a false email. The penalties and disqualification orders imposed upon Mr Theodore therefore provide a relevant, albeit imperfect, point of comparison.

260    Ms Martin’s responsibilities were unique within Star. Against the backdrop of those responsibilities, she approved the 7 November Email. That is the critical distinction between her and Theodore. Of course, Mr Theodore’s conduct “was reckless, in the sense that it involved gross negligence”. That is what Stewart J found. But Ms Martin engaged in similarly grossly negligent conduct while having responsibilities as Star’s most senior lawyer. Further, unlike Mr Theodore, Ms Martin was found to have contravened s 180(1) in relation to Suncity as well as CUP. Her contravening conduct therefore extended across a broader field of responsibility and over a longer period.

261    I will now consider Mr Hawkins.

262    As I observed above, in 2018, Mr Hawkins breached his statutory duty by: (a) approving a new rebate and exclusive access agreement with Suncity; and (b) failing to inform the Board at its meeting on 26 July 2018 of the information he knew about the conduct of Suncity representatives in Salon 95 and failing to recommend that Star terminate and have no further business associations with Mr Chau and/or Suncity.

263    While Ms Martin did not engage in conduct identical or similar to the first aspect of Mr Hawkins’ contravention, her conduct bears some similarities to the second. That is because she failed to take all necessary steps to ensure that, by 26 July 2018, the Board was informed of the substance of the Power Email Information; the Operation Money Bags Information; that Star had issued the First Warning Letter to Mr Iek and provided it to Suncity representatives in Salon 95; that it had been necessary to provide Suncity representatives with written rules (being the Salon 95 Service Desk Processes) outlining the conduct they were permitted and not permitted to engage in at the Salon 95 Service Desk; and that, following the provision of the Salon 95 Service Desk Processes to Suncity representatives, Mr Hawkins had requested her and other members of Star’s management to visit Salon 95: LJ [1633]. Put succinctly, like Mr Hawkins, she failed to inform the Board at its meeting on 26 July 2018 of the information she knew about the conduct of Suncity representatives in Salon 95.

264    The other part of the second aspect of Mr Hawkins’ conduct (being the failure to recommend that Star terminate and have no further business associations with Mr Chau and/or Suncity) is somewhat comparable to Ms Martin’s conduct. I rejected the notion that the reasonable officer in Ms Martin’s position was required to take all necessary steps to terminate all business associations between the Group and Suncity and Mr Chau, or to take all necessary steps to suspend those business associations until they had obtained or been provided with information that satisfied them that it was appropriate for the Group to maintain business associations with Suncity and Mr Chau (LJ [1629]–[1630]). Mr Hawkins’ failure to recommend that Star terminate and have no further business associations with Mr Chau and/or Suncity is a material difference which I have borne in mind, but the difference only goes so far.

265    Although Ms Martin did not have a general duty to recommend, she had a duty to provide clear and timely advice to assist her client: LJ [1640]. She still failed to take all necessary steps to ensure that Mr Bekier and the other members of the Board were informed of the substance of the information she then knew concerning the conduct of Suncity representatives in Salon 95. That is no less serious a failure when compared to Mr Hawkins. They were in different positions carrying different responsibilities, but both contraventions fundamentally involved a failure to ensure the Board was informed of the matters which they knew.

266    In respect of Mr Hawkins’ contravention of s 180(1) during 2019, he was found, first, to have failed to inform the Board at its meeting on 15 August 2019 of the information he knew about the conduct of Suncity representatives in Salon 95. This is similar conduct to Ms Martin in respect of the Suncity in 2019 contravention. Ms Martin knew of a miscellany of information which made foreseeable various legal, regulatory and reputational risks, and she accepted that the Board was relying on her view as to whether maintaining a relationship with Suncity gave rise to the risk of material legal breaches: LJ [1680]. Her role extended to reporting to the Board the matters of which she was aware gave rise to a real risk that Star Sydney was in breach of its legal obligations, or, if they became public, would cause reputational harm to Star Sydney: LJ [1683]. She failed to fulfil that aspect of her responsibilities.

267    The second aspect of Mr Hawkins’ contravention of s 180(1) in 2019 bears similarities and differences to Ms Martin’s conduct. He failed to recommend that Star terminate and have no further business associations with Mr Chau and/or Suncity. As was the case in 2018, Ms Martin, in contradistinction, did not have the power, duty nor responsibility to terminate or suspend business associations with Mr Chau or Suncity: LJ [1697]. But she was required to take all necessary steps, by 15 August 2019, to ensure the Board was informed of the substance of the information she then knew, and of the fact that, in the circumstances, maintenance by the Group of business associations with Suncity and Mr Chau gave rise to pleaded risks: LJ [1698]. But she failed to do so and, like her contravention in 2018, that is no less serious a failure when compared to Mr Hawkins.

268    Stepping back, the differences in potential outcome must be capable of some rational explanation. The extent of the difference in ASIC’s position is even more surprising when one recalls that Mr Hawkins and Mr Theodore did not initially cooperate. They only struck agreed resolutions with ASIC and made admissions at the eleventh hour. The utilitarian value of their changes of position must be seen in that context.

269    It is hardly surprising, with respect, that Stewart J had the intuitive reaction that he did as to the generous approach to penalties taken by ASIC. Noting that “at first blush” the proposed penalty for Mr Hawkins did not seem like a sufficiently high penalty, it was only after taking into account the significance of “ASIC’s acceptance as the relevant regulator that that penalty is appropriate”, that his Honour was satisfied “that it is within the range of appropriate penalties”. Given it was the agreed position, it is, of course, entirely understandable why his Honour proceeded to give effect to the joint position of the parties: see Australian Securities and Investments Commission v Hawkins [2025] FCA 121 (at [23] per Stewart J). His Honour annexed the joint written submissions of the parties to his judgment enabling an understanding of the basis for the state of satisfaction that his Honour had reached as to the admitted contraventions and the agreed penalties.

270    But here the difference in outcome is so large, and the penalty for Mr Hawkins and Mr Theodore is so relatively slight, that the orders earlier made must exert a meaningful moderating influence upon the relief that would otherwise be appropriate in Ms Martin’s case. To proceed otherwise would be objectively irrational and leave Ms Martin with a real and justified sense of grievance.

271    Hence absent the need to maintain proper parity with the outcomes earlier accepted by ASIC and approved by the Court in relation to Mr Hawkins and Mr Theodore, I would have been inclined to impose a more substantial pecuniary penalty.

272    Drawing all the considerations together, I am inclined to the view that, absent considerations of totality, a pecuniary penalty in the amount of $400,000 would appropriately reflect the seriousness of the conduct and the importance of specific and general deterrence.

G.6    Totality

273    The remaining question is whether the application of totality principles requires some further moderation of that amount. I am not persuaded that it does. Having considered the combined operation of all orders, I am satisfied that the penalty identified above does not exceed what is reasonably necessary to achieve deterrence in the particular circumstances of this case.

H    COSTS

274    The question of costs falls to be determined pursuant to s 43 of the Federal Court of Australia Act 1976 (Cth) (FCA Act), which confers a broad discretionary power upon the Court. The principles governing the exercise of that discretion have recently been exhaustively summarised in Norden Holdings Pty Ltd (Trustee) v Martens Investments Pty Ltd (Trustee), in the matter of Amazonia IP Holdings Pty Ltd (No 5) [2025] FCA 965 (at [18]–[24] per Wheatley J). It is unnecessary to repeat them, although some observations may be made.

275    Although costs ordinarily follow the event, that proposition is no more than a useful starting point. The discretion conferred by s 43 is not exercised mechanically or by some crude arithmetic of success and failure. As the authorities recognise, relevant considerations include the extent of success achieved, the way in which litigation was conducted, whether issues were unnecessarily prolonged and whether parties acted consistently with the overarching purpose reflected in ss 37M and 37N of the FCA Act.

276    Equally, parties are not to be in any way “punished” for defending proceedings or requiring ASIC to prove its case. Serious allegations carrying grave professional and reputational consequences were advanced against both contraveners. They were entitled to contest those allegations and to put ASIC to proof. But that said, parties, even those contesting civil penalties, remain under an obligation to conduct litigation in a manner consistent with the overarching purpose of facilitating the just resolution of disputes according to law as quickly, inexpensively and efficiently as possible.

277    There is force in aspects of the criticisms advanced by both remaining contraveners concerning the way in which ASIC framed and conducted parts of its case. As I observed in the LJ, aspects of ASIC’s pleaded case ultimately proved overdrawn or conceptually misconceived. Some allegations were not made out and certain aspects of the case required refinement as the proceeding evolved. That undoubtedly increased the complexity and expense of the litigation.

278    At the same time, however, both Mr Bekier and Ms Martin adopted an approach to the litigation which substantially expanded the length and complexity of the hearing.

279    Ms Martin took a wide range of clever but highly technical points, many of which ultimately lacked merit. Some arguments involved elaborate attempts to fragment the factual and evaluative issues in ways which I ultimately rejected. Although parties are entitled to advance legal arguments properly open, the proliferation of technical contentions in the present case materially extended the hearing and increased complexity. Moreover, both contraveners required ASIC to engage in extensive cross-examination directed to exposing deficiencies in the accounts given in chief by the contraveners. Many factual and evaluative issues required lengthy forensic examination before they could be resolved.

280    I also reject the proposition that meaningful comparisons can be drawn between the cost consequences in the present case and the amounts agreed to be paid by individuals who resolved proceedings earlier or avoided a contested trial altogether. Such comparisons are false comparators. The costs necessarily associated with a lengthy contested trial involving extensive factual and legal controversy are of an altogether different order.

281    In the end, although ASIC failed on aspects of its pleaded case, it nevertheless succeeded in establishing serious contraventions against Mr Bekier and Ms Martin after a stout resistance and a lengthy hearing.

282    It is necessary to apply a relatively broad brush. Although some differences in the position as between Mr Bekier and Ms Martin can be identified (such as the scope of ASIC’s pleaded case against them that was vindicated and the hearing time taken in dealing with aspects of their respective defences), those differences tended to point in different directions, and it is sufficiently just to settle upon a common percentage for an adverse costs order. There is no compelling reason why the usual course of making a joint order should not be adopted.

283    Considering all matters globally, including ASIC’s substantial success, the unnecessarily expansive or misconceived aspects of parts of its case, the manner in which the proceeding was contested and the very significant resources necessarily expended by all parties, I am satisfied that the appropriate course is to order that each of Mr Bekier and Ms Martin be jointly and severally liable for 45% of ASIC’s costs.

I    CONCLUSION

284    The failures of Star’s executive team occurred within an enterprise operating under licences attracting statutory supervision and public scrutiny. As I noted in the LJ, casinos do not merely operate in a regulated environment; they operate because regulation permits them to do so. When one has regard to the policy considerations discussed in the report by Sir Laurence Street referred to at length in the LJ, it might be said that the introduction of casinos into this society, with all their attendant risks, constitutes an exercise of toleration in exchange for vigilance.

285    When it came to Star, that vigilance was found wanting.

286    The contraveners were prepared to accept office as directors and officers of an enterprise conducting a business with inherent and obvious risks. They failed to discharge their statutory obligations in important ways.

287    More broadly, the present case is ultimately a reminder that corporate governance failures seldom arise because information is entirely absent. More commonly, they arise because “the watchman sees the sword coming and does not blow the trumpet”; or because warning signs are insufficiently pursued; or because obvious questions are left unasked. The duty imposed by s 180(1) exists to guard against precisely those failures. The contraventions established in the LJ were serious and the orders I will make must reflect that seriousness to provide adequate deterrence.

288    Save for ASIC’s leniency in reaching an objectively generous deal with Mr Hawkins and Mr Theodore (who engaged in comparable misconduct), the penalties I would have imposed on Mr Bekier and Ms Martin would have been different. ASIC cannot treat some contraveners with a light touch and then illogically seek disproportionate penalties on those who put ASIC to proof. There are important differences in fixing upon an adequate remedial response in the settled cases and those that went to trial (which I have discussed above), but it is still necessary to give proper, rational effect to parity principles. Accordingly, the penal orders made in relation to Mr Bekier and Ms Martin are materially less severe than would otherwise have been the case. That said, I have not reduced the penal orders below a level which is insufficient to ensure they serve the end of providing an adequate general deterrent effect, which, after all, is the overriding point of the exercise.

Associate:

Dated: 17 June 2026

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