2026 WAIRC 00942
INDUSTRIAL MAGISTRATES COURT OF WESTERN AUSTRALIA


CITATION
:
2026 WAIRC 00942



CORAM
:
INDUSTRIAL MAGISTRATE R. COSENTINO



HEARD
:
ON THE PAPERS



DELIVERED
:
FRIDAY, 23 OCTOBER 2026



FILE NO.
:
M 169 OF 2025



BETWEEN
:
ELECTRICAL TRADES UNION WA


CLAIMANT





AND

HANSSEN PTY LTD
FIRST RESPONDENT

AND





MR CRAIG SIMONDS


SECOND RESPONDENT




CatchWords : INDUSTRIAL LAW (WA) – pecuniary penalties – contravention of right of entry provisions of Industrial Relations Act 1979 (WA) – s 49M – principles applicable to fixing pecuniary penalties – assessment of factors relevant to penalty to be imposed – where multiple contraventions arose from single course of conduct – penalties imposed
Legislation : Industrial Relations Act 1979 (WA)
Fair Work Act 2009 (Cth)
Cases referred
to in reasons: : Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [No 2] [2018] FCA 1563
Australian Building and Construction Commissioner v Pattinson [2022] HCA 13; (2022) 274 CLR 450
Callan v Smith [2021] WAIRC 00216; (2021) 101 WAIG 1155
Construction, Forestry and Maritime Employees Union v Westbourne Constructions Pty Limited [2025] FCA 831
Construction, Forestry, Maritime, Mining & Energy Union v Hanssen Pty Ltd [2019] FCCA 1664
Construction, Forestry, Maritime, Mining And Energy Union v Hanssen Pty Ltd [2019] FCCA 3411
Construction, Forestry, Maritime, Mining and Energy Union v Richard Crookes Constructions Pty Ltd [2022] FCA 992
Electrical Trades Union WA v Hanssen Pty Ltd [2026] WAIRC 00532
Kelly v Fitzpatrick [2007] FCA 1080; (2007) 166 IR 14
Mason v Harrington Corporation Pty Ltd [2007] FMCA 7
Result : Penalty imposed
Representation:
Claimant : Ms K. Rashleigh (of counsel)
Respondents : Mr L. Swanson (of counsel) and Ms K. Mincherton (of counsel)


REASONS FOR DECISION
1 By originating claim filed on 4 December 2025 the claimant, the Electrical Trades Union WA alleged that the first respondent (Hanssen) contravened s 49M of the Industrial Relations Act 1979 (WA) (IR Act) on 2 December 2025 by refusing a permit holder, Mr Rory Cumins, entry to the Garden Towers Project. The Union further alleged that the second respondent, Mr Craig Simonds, Hanssen’s Site Administrator, contravened s 49M by hindering and obstructing the permit holder’s entry to those premises.
2 The matter was heard on 27 May 2026.
3 On 22 July 2026, I published my reasons for finding that:
(a) Mr Simonds unduly hindered or obstructed an authorised representative in the exercise of the powers conferred by Division 2G of the IR Act, in contravention of s 49M(2) of the IR Act; and
(b) Hanssen as the occupier of the Garden Towers Project and the second respondent’s principal, refused entry to those premises by a person entitled to enter the premises under s 49I of the IR Act in contravention of s 49M(1) and s 49M(2). Electrical Trades Union WA v Hanssen Pty Ltd [2026] WAIRC 00532 (ETU v Hanssen).

4 The parties agreed that the penalties to be imposed on the respondents under s 83E of the IR Act in respect of the found contraventions be determined on the papers, having regard to the evidence adduced in the 27 May 2026 hearing.
Relevant Law and Principles
5 The maximum penalty that can be imposed is set out in s 83E(1) of the IR Act which says (and said at the time the contraventions occurred):
(1) If a person contravenes a civil penalty provision, the industrial magistrate’s court may, on an application to the court, make an order imposing a pecuniary penalty on the person, not exceeding —
(a) in the case of a body corporate —
(i) if the contravention is a serious contravention — $930 000; or
(ii) if the contravention is not a serious contravention — $93 000;
and
(b) in the case of an individual —
(i) if the contravention is a serious contravention — $180 000; or
(ii) if the contravention is not a serious contravention — $18 000.
6 The approach to determining an appropriate civil penalty was discussed by the Full Bench in Callan v Smith [2021] WAIRC 00216; (2021) 101 WAIG 1155. The Full Bench observed at [30]  [31] that in the context of industrial legislation, the purpose of a civil penalty is primarily, if not wholly, protective in promoting the public interest in compliance. Reference was made to French J’s statement in Trade Practices Commission v CSR Ltd [1990] FCA 762; (1991) 13 ATPR 41-076:
The principal, and I think probably the only object of the penalties… is to attempt to put a price on contravention that is sufficiently high to deter repetition by the contravener and by others who might be tempted to contravene the Act. Callan v Smith [30] quoting Trade Practices Commission v CSR Ltd, 44.

7 At [90]  [93] the Full Bench indicated that when determining the amount of a penalty, the Court is required to have regard to a non-exhaustive range of considerations drawing from Kelly v Fitzpatrick [2007] FCA 1080; (2007) 166 IR 14 and Mason v Harrington Corporation Pty Ltd [2007] FMCA 7. Those considerations are:
(a) the nature and extent of the conduct which led to the breaches;
(b) the circumstances in which that conduct took place;
(c) the nature and extent of any loss or damage sustained as a result of the breaches;
(d) whether there had been similar previous conduct by the respondent;
(e) whether the breaches are properly distinct or arose out of the one course of conduct;
(f) the size of the business enterprise involved;
(g) whether or not the breaches were deliberate;
(h) whether senior management was involved in the breaches;
(i) whether the party committing the breach had exhibited contrition;
(j) whether the party committing the breach had taken corrective action;
(k) whether the party committing the breach had cooperated with the enforcement authorities;
(l) the need to ensure compliance with minimum standards by provision of an effective means for investigation and enforcement of employee entitlements; and
(m) the need for specific and general deterrence.
8 The maximum penalty identified in the statute for the contravention is also relevant. In undertaking the task of assessing and quantifying the penalties to be imposed, the maximum penalty prescribed by the legislature for a specific contravention serves as a ‘yardstick’ against which the assessment of penalties is generally to proceed. Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [No 2] [2018] FCA 1563 [19].

9 After the Full Bench decided Callan v Smith, a majority of the High Court stated the factors which inform an assessment of a civil penalty with an appropriate deterrent value in Australian Building and Construction Commissioner v Pattinson [2022] HCA 13; (2022) 274 CLR 450 at [18] in terms that are largely similar and wholly consistent with what the Full Bench had set out.
10 As the Full Bench had done, at [19] the majority of the High Court concluded:
It is important, however, not to regard the list of possible relevant considerations as a “rigid catalogue of matters for attention” as if it were a legal checklist. The court’s task remains to determine what is an “appropriate” penalty in the circumstances of the particular case.
11 The applicable principles were succinctly tied together in the following statement of Wigney J in Construction, Forestry and Maritime Employees Union v Westbourne Constructions Pty Limited [2025] FCA 831 (Westbourne) at [23]  [29]:
In short summary, the purpose of imposing a civil penalty is to promote the public interest in compliance with the relevant Act by the deterrence of further contraventions of a like kind. The Court must, in effect, attempt to put a price on a contravention that is sufficiently high to deter repetition by the contravener and by others who might be tempted to similarly contravene. The penalty must not be one which would be regarded by the contravener, or others, as an acceptable cost of doing business. The penalty must not, however, be greater than is necessary to achieve that object of deterrence.
An appropriate penalty is said to be one that strikes an appropriate balance between oppressive severity and the need for deterrence in the particular case. In determining the size of the penalty which would serve the objective of deterrence, the Court must have regard to both the circumstances of the contravener and the contravention.
Without intending to be exhaustive, where the contravener is a corporation, the factors concerning the circumstances of the contravener which are generally relevant factors when determining the size of the penalty which would serve the objective of deterrence, include: the size and financial position of the corporation; whether the corporation has a corporate culture conducive to compliance with the relevant Act; whether the contravener has engaged in similar conduct in the past; and whether the contravener has demonstrated contrition and cooperated with the relevant authorities.
Likewise, without intending to be exhaustive, the factors concerning the circumstances of the contravention which are generally relevant to determining the size of the penalty which would serve the objective of deterrence, include: whether the contravening conduct was systematic, deliberate or covert; the period over which the contravening conduct occurred; whether the contravention arose out of the conduct of senior management; whether the contravener profited from the contravention, and if so, the extent of profit; and whether the contravention caused any loss or injury.
It should be emphasised that both the factors relating to the circumstances of the contravener and those relating to the circumstances of the contravention, are relevant only to the extent that they bear on the question of the size of the penalty that is necessary to achieve the objective of deterrence. The purpose of imposing a pecuniary penalty does not include retribution or punishment. Further, the pecuniary penalty need not be proportionate to the nature and circumstances of the contravention, at least in the sense that the principle of proportionality is understood in the criminal law.
The maximum penalty may also be a relevant consideration in determining the size of the penalty, though it does not constrain the exercise of the discretion beyond requiring some reasonable relationship between the theoretical maximum and the final penalty imposed. The maximum penalty would generally only be appropriate in the case of a contravention which warranted the strongest possible deterrence.
12 The Full Bench in Callan v Smith at [58]  [60] also considered how the ‘course of conduct’ sentencing principles are to be applied in the context of civil penalties under the IR Act:
The principle, which is also referred to as the ‘one transaction principle’, is a common law rule that applies in sentencing. While the principle is derived from criminal law sentencing principles, it has also been applied in the context of civil pecuniary penalty proceedings.
The principle was discussed by Owen JA in Royer v The State of Western Australia [2009] WASCA 139 at [19]-[34]. His Honour describes the principle at [22]:
…At its heart, the one transaction principle recognises that, where there is an interrelationship between the legal and factual elements of two or more offences with which an offender has been charged, care needs to be taken so that the offender is not punished twice (or more often) for what is essentially the same criminality. The interrelationship may be legal, in the sense that it arises from the elements of the crimes. It may also be factual, because of a temporal or geographical link or the presence of other circumstances compelling the conclusion that the crimes arise out of substantially the same act, omission or occurrences.
Owen JA points out that if the particular circumstances call for the application of the ‘one transaction’ principle (because there is sufficient legal and factual interrelationship between offences), then it applies at the ‘second stage’ of sentencing, that is, after the penalty or sentence for the individual offences or contraventions have been assessed. It does not operate to enable a sentencing court to effectively treat multiple offences as one offence which is to be penalised. This caution against misapplication of the principle was also highlighted in Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCAFC 113, where the Full Court of the Federal Court said that a single penalty cannot be imposed for multiple contraventions based on the course of conduct principle, unless specifically authorised by statute.
13 These authorities establish that the assessment of civil penalties is directed to deterrence rather than punishment and requires an evaluative assessment of both the contravener and the contravention to identify a penalty sufficient, but no greater than necessary, to secure future compliance.
Claimant’s Submissions
14 The Union seeks the imposition of the maximum penalty on Hanssen for each contravention of s 49M(1) and s 49M(2). It also seeks 20% to 30% of the maximum penalty on Mr Simonds for a contravention of s 49M(1) and for a contravention of s 49M(2). While I found that Hanssen had contravened both s 49M(1) and s 49M(2), only a single contravention was found against Mr Simonds, that is, a contravention of s 49M(2). ETU v Hanssen [135]  [136].
Mr Simonds cannot be a contravener under s 49M(1) because that section refers to the ‘occupier’ of the premises. The Union did not make a case that Mr Simonds was an occupier.
15 In substance, the Union submits that maximum penalties should be imposed on Hanssen because of its size, prior contraventions, involvement of senior personnel, and the need for strong deterrence. It contends that a substantial, although lesser penalty should be imposed on Mr Simonds because of his personal involvement in the contravention, his seniority, and his continuing role as Site Administrator.
16 In relation to penalties against Hanssen, the Union submitted the following considerations justified the maximum penalty being imposed:
(a) The right of entry provisions of the IR Act are important statutory protections. Penalties should discourage employers from unlawfully refusing entry to permit holders and undermining the legislative scheme.
(b) Hanssen is a substantial and well-resourced company with a strong capacity to pay. Penalties must be large enough to have a genuine deterrent effect on it.
(c) Hanssen has over 30 years' experience in the construction industry and should be familiar with its right of entry obligations.
(d) Hanssen has previously been found to have contravened the right of entry provisions under the Fair Work Act 2009 (Cth) (FW Act). Claimant’s submissions lodged 6 August 2026 [16] referring to Construction, Forestry, Maritime and Energy Union v Hanssen Pty Ltd (2019) FCCA 3411 (Vue Apartments Case), Construction, Forestry, Maritime, Mining and Energy Union v Hanssen Pty Ltd (2019) FCCA 1664 (Concerto Apartments Case).
This particularly points to the need for stronger deterrence.
(e) The contravening conduct involved senior personnel, namely, Mr Simonds.
(f) It can be inferred from the fact that this contravention occurred that Hanssen has failed to adequately train and inform senior managers about their statutory obligations.
(g) The Union relies on evidence from Mr Cumins concerning the consequences of the contravening conduct, submitting those consequences should be given weight in assessing penalty.
(h) The Union relies on a social media post by Mr Gerry Hanssen allegedly boasting about refusing union entry; and
(i) findings concerning Mr Simonds’ animosity towards unions. It says these matters demonstrate a negative attitude on the part of the respondents towards lawful rights of entry, reinforcing the need for strong deterrence.
17 The Union also alleged that the respondents failed to comply with programming orders in these proceedings, failed to disclose documents as required, and failed to call a relevant witness. The Union says that this conduct unnecessarily prolonged the proceedings and is relevant to penalty.
18 Although the Union conceded that the Court may view the contraventions as part of a single course of conduct, the Union submitted this should not result in a reduction in the penalties below what is necessary for deterrence.
19 The Union submitted that penalties in the range of 20%–30% are appropriate for Mr Simonds because:
(a) He held a relatively senior position as Site Administrator.
(b) He remains employed in that role, meaning that specific deterrence remains relevant.
(c) His demonstrated hostility towards unions supports the need for deterrence.
(d) Although there is no evidence of previous right of entry contraventions by him personally, this mitigating factor does not outweigh the seriousness of the conduct or the need for penalties that promote future compliance.
Respondents’ submissions
20 The respondents contend that the contraventions were at the lower end of seriousness and warrant only a single modest penalty of $20,000 against Hanssen, rather than the substantial penalties sought by the Union. The respondents argue that the seriousness of the conduct is materially reduced by its factual context. This was not a case involving threats, intimidation, violence, repeated refusals, retaliation, concealment of safety breaches, obstruction of WorkSafe investigations, or a deliberate attempt to undermine the right of entry regime.
21 The respondents emphasise that:
(a) the refusal occurred during a single interaction lasting only a few minutes;
(b) there was only one refusal of entry on one day;
(c) the conduct did not continue after the incident;
(d) no further entry attempt was made by the Union;
(e) the respondents did not gain financially, or seek to gain financially, from the contraventions;
(f) there was no evidence that known safety breaches were being concealed; and
(g) there was no evidence that regulatory scrutiny was being avoided; safety hazards were intentionally hidden; or of workers suffering harm or disadvantage as a result of the refusal.
22 The respondents rely on the Court’s finding that Mr Simonds genuinely, although incorrectly, believed the permit holder was required to provide evidence sufficient to show there was a safety breach actually occurring before access to the Site should be granted. The respondents say that Mr Simonds’ subjective justification for his conduct is relevant to penalty.
23 The respondents stress that they never disputed that the permit holder possessed a valid entry permit, sought entry during working hours, and was refused entry. Rather, Mr Simonds challenged the bona fide and proper purpose of the proposed entry, based on his genuinely held (but mistaken) view that the entry was for an improper purpose. This view was formed against a backdrop of Mr Cumins’ having made reference to a Facebook post made the previous day by Mr Hanssen, and his discussions with officials from the CFMEU who were in dispute with Hanssen.
24 The respondents submitted that:
(a) Mr Simonds has never previously contravened the IR Act or the FW Act.
(b) Hanssen has previous right of entry contraventions, but those were historical, factually different and involved a different union.
(c) Past contraventions should not convert what they characterise as a moderate contravention into one deserving of maximum penalties.
25 The respondents countered the Union’s submissions concerning management involvement and corporate resources. They argued that:
(a) Mr Simonds was an independent subcontractor rather than a member of senior management; and
(b) There was no evidence before the Court that Hanssen was a particularly large or well-resourced company.
(c) There is no evidentiary basis for allegations that Hanssen failed to train management concerning right of entry obligations or maintained a policy of non-compliance.
(d) There was no evidence of a company policy designed to obstruct union entry. On the contrary, the evidence was that the right of entry was refused solely because of Mr Simonds’ subjective state of mind, that is, his mistaken belief that the right of entry was not being exercised for a proper or genuine purpose and his mistaken understanding of the law.
26 The respondents reject the allegations that they failed to cooperate in the proceedings. They submit that they:
(a) complied with disclosure obligations;
(b) agreed to a statement of facts;
(c) narrowed the issues in dispute;
(d) conducted a confined and arguable defence; and
(e) did not seek to delay the proceedings.
Consideration
27 Contraventions of s 49M of the IR Act are serious, and have serious possible consequences. The right of entry provisions of the IR Act are important industrial rights, being part of the statutory scheme that is designed to promote compliance with industrial laws and workplace health and safety laws. Unlawfully denying rights of entry under the IR Act has the capacity to undermine workplace safety and is by its very nature, objectively serious. Construction, Forestry, Maritime, Mining and Energy Union v Richard Crookes Constructions Pty Ltd [2022] FCA 992 (Crookes) [173]  [174].
The seriousness of conduct contravening rights of entry warrants the imposition of ‘stern penalties’ to secure the objective of general deterrence. Westbourne [41].

28 The context in which the contraventions occurred are described in ETU v Hanssen. Relevantly:
(a) The Union had not given prior notice of its intention to exercise a right of entry. The first Mr Simonds was aware of the attempt to exercise the right of entry, was when he was informed that Mr Cumins had arrived at the site.
(b) Mr Simonds went to meet Mr Cumins without delay.
(c) The exchange between Mr Simonds and Mr Cumins about Mr Cumins’ attempt to exercise his right of entry lasted about 10 minutes.
(d) Mr Simonds initiated the recording of the interaction on his bodycam, and informed Mr Cumins of his intention to do so.
(e) While the exchange involved disagreement, it was civilised.
(f) Mr Simonds believed that the safety concerns Mr Cumins was seeking to investigate had been remedied.
(g) Mr Simonds believed that a union official seeking access to the Site had to prove to his satisfaction that there was a health and safety issue onsite, and had to convince him that there was a risk.
29 The contravening conduct with neither systematic, nor premeditated. Mr Simonds’ decisions and actions were on-the-spot. While Mr Simonds deliberately denied entry to Mr Cumins, he did so without knowing that the denial would contravene the right of entry provisions of the IR Act. He did not set out with the intention of preventing the exercise of a lawful right of entry. The fact that he turned on his bodycam is consistent with seeking to act consistent with, rather than contrary to, the law.
30 This context is mitigating when it comes to the penalty to be imposed on Mr Simonds. But it does not take matters very far for Hanssen. If Mr Simonds genuinely misunderstood the basic requirements of the right of entry regime, that misunderstanding reflects adversely on Hanssen. Hanssen entrusted him with responsibility for controlling site access yet failed to ensure he possessed an adequate understanding of the legal obligations governing the exercise of entry rights.
31 In this regard, I note that when Mr Simonds was cross-examined at the hearing in 27 May 2026, almost six months after the relevant contraventions occurred, his views about the requirements for the exercise of a lawful right of entry remained the same as at 3 December 2025. He continued to have a mistaken understanding of the law.
32 The Union says Mr Simonds’ and Hanssen’s anti-union attitude is reason to impose a maximum penalty.
33 In his evidence, Mr Simonds gave a history of interactions between him and CFMEU officials. It was clear that Mr Simonds was in dispute with the CFMEU officials, and was frustrated by his dealings with the CFMEU. When Mr Cumins attended the site on 3 December 2025, Mr Simonds latched onto Mr Cumins’ reference to his dealings with CFMEU officials and then tarred Mr Cumins with the same brush.
34 Mr Simonds allowed his experiences with the CFMEU to colour his approach to unions generally. In effect, he had an anti-union attitude which played a part in the contravening conduct.
35 However, it would be erroneous to increase the penalty merely because Mr Simonds or Hanssen held unfavourable views about unions. The function of a civil penalty is to deter unlawful conduct, not to punish the holding of views or opinions. What matters is whether those views translated into conduct that contravened the IR Act.
36 While I accept the evidence tended to show that Hanssen and Mr Simonds had a degree of animosity towards unions (see ETU v Hanssen at [108]), it would be wrong to conflate this with a desire or tendency to flout right of entry laws.
37 Mr Simonds commenced as Hanssen’s Site Administrator in March 2024. He remains engaged by Hanssen as Site Administrator. In that role, he will likely continue to deal with union officials. It is therefore important to impose a penalty on him that has both a general and personal deterrent value.
38 Although not Hanssen’s employee, Mr Simonds was a senior level manager. He described his role as managing and assisting with all aspects of the management of the construction project as a support to Hanssen’s leading hands and site foremen. He reported to Hanssen’s Managing Director and its Executive Director. This factor weighs in favour of imposing a relatively higher penalty for Hanssen. Crookes [175], [178].

39 According to Mr Simonds, Hanssen’s core business is the construction of high-rise residential apartments and offices for Finbar Limited, predominantly in and around the Perth Central Business District. It has over 30 years’ building experience in Western Australia. It has three to four high-rise construction projects ongoing at any one time. Mr Simonds describes Hanssen as the State’s ‘preeminent apartment builder.’ Exhibit R1 – Witness statement of Craig Charles Simonds signed 6 May 2026 [17].

40 Although direct financial evidence was not adduced, I infer from the nature, scale and duration of Hanssen's business operations that it is a substantial enterprise with access to significant resources.
41 There is no evidence of any particular loss or damage resulting from the contraventions. In its written submissions, the Union referred generally and vaguely to Mr Cumins’ affidavit as to the consequences of contravening conduct but I found nothing in his evidence or his affidavit going to the practical consequences of the conduct. See generally, exhibit C5 – Affidavit of Rory Cumins affirmed 14 May 2026.

42 There is no evidence of any specific financial advantage gained by the respondents on account of the contraventions.
43 Hanssen has a history of previous contraventions of the right of entry provisions of the FW Act. This history substantially increases the importance of specific deterrence. Hanssen has previously been penalised for contraventions of analogous right of entry provisions, yet further contraventions have nevertheless occurred.
44 By Mr Hanssen’s and another individual’s conduct in refusing entry to two CFMEU officials to the Concerto Apartments site on 9 December 2016, Hanssen was found to have contravened s 501 and s 502 of the FW Act. Concerto Apartments Case.

45 In PEG661/2017, Judge Street in the Federal Circuit Court of Australia declared that Hanssen had contravened s 501 and s 502 of the FW Act. I do not know the dates of or the circumstances giving rise to the contraventions, except that the proceedings were prosecuted by the CFMEU and the contraventions involved conduct by Mr Hanssen and another individual. Hanssen was ordered to pay a penalty of $37,800.
46 Then, on 16 April 2019 and 19 April 2019 Hanssen contravened s 501 of the FW Act by Mr Hanssen and another employee refusing or unduly delaying two CFMEU officials’ entry onto the Vue Apartments Project in East Perth. Hanssen admitted its contraventions and was ordered to pay a penalty of $60,000 in respect of seven found contraventions of the FW Act. The contraventions arose from the same conduct from two separate events. Vue Apartments Case.

47 There is no suggestion that Mr Simonds was involved in these or any other contraventions.
48 In these proceedings, the respondents did not admit the contraventions. It cannot be said that the respondents have cooperated with enforcement in a way that is mitigating. However, nor does this factor favour higher penalties. The respondents conducted the proceedings efficiently and the case they advanced was arguable.
49 The respondents adduced no evidence of corrective measures, compliance training, policy reform or other steps directed to preventing future contraventions. Nor was there evidence of contrition or acknowledgment that the conduct was unlawful. These matters weigh in favour of a higher penalty than would otherwise be appropriate. As I indicated at [31], there was a notable lack of corrective action.
50 While the contraventions arose from a single incident and was neither planned nor systematic, significant countervailing considerations arise. Hanssen is a substantial commercial enterprise; the contravention involved a senior site manager exercising authority on its behalf; Hanssen has a history of earlier right of entry contraventions; and there is no evidence of corrective action or contrition. Taken together, these matters justify a penalty towards the upper end of the available range.
51 Taking into account these matters and the principles relevant to assessing pecuniary penalties, I would impose penalties as follows:
(a) In relation to Mr Simonds, I would impose a penalty of $3,600 being 20% of the maximum penalty for his contravention of s 49M(2) of the IR Act.
(b) In relation to Hanssen, I would impose a penalty of $70,000 for each of the two contraventions of s 49M(1) and s 49M(2) of the IR Act, being 75% of the maximum penalty for each contravention.
52 Hanssen’s two contraventions arise from a single course of conduct as the facts constituting the elements of the two contraventions are the same. I am therefore required to consider the total of the penalties to determine whether the total properly reflects the single course of conduct and is not such as to be excessive, oppressive or punitive rather than deterrent in its effect.
53 Imposing the penalties cumulatively would risk punishing the same underlying conduct twice. Consistently with the course of conduct principle, the penalties should therefore operate concurrently, resulting in a total penalty of $70,000. This amount appropriately reflects that the contraventions arose from a single course of conduct, involving a single attempt to exercise a right of entry. This total is sufficient for general and specific deterrence, having regard to the nature of the contravention and the purpose served by the contravened provisions.
Orders and disposition
54 I will make the following orders:
1. An order pursuant to s 83E(1) of the IR Act that the first respondent pay a pecuniary penalty of $70,000 in respect of its contravention of s 49M(1) and s 49M(2).
2. An order pursuant to s 83E(1) of the IR Act that the second respondent pay a pecuniary penalty of $3,600 in respect of his contravention of s 49M(2).
3. An order pursuant to s 83F(2) of the IR Act that payment of the penalties be made to the Union as the person directly affected by the conduct to which the contraventions relate.




R. COSENTINO
INDUSTRIAL MAGISTRATE