Federal Court fines construction firm for denying union access

OUTCOME: Allowed

FEDERAL COURT OF AUSTRALIA

[NAME], [NAME], [NAME] v [COMPANY] [2019] FCA 1070 File number: [NAME]

Judge: SNADEN J

Date of judgment: 12 July 2019

Catchwords: INDUSTRIAL LAW – admitted contravention of s 501 of the Fair Work Act 2009 (Cth) (the "[NAME]") – civil penalties – right of entry pursuant to pt 3-4 of the [NAME] – whether entry was refused – meaning of the phrase 'refuse entry' – proportionality of penalty to contravening conduct – declaration of contravention of the [NAME] – declaration sought by consent – principles relating to the making of a declaration – penalty imposed – no declaration made

Legislation: Chancery Procedure Act 1852 (UK) s 50 Crimes Act 1914 (Cth) s 4AA Federal Court of Australia Act 1976 (Cth) s 21 Fair Work (Registered Organisations) Act 2009 (Cth) Fair Work Act 2009 (Cth) ss 12, pt 3-4, 484, 492, 501, 512, 539, 546, 570

Cases cited: [COMPANY] v [NAME] [2008] FCA 466 [NAME] v Criminal Justice Commission (1992) 175 CLR 564 [NAME]. v Secretary, Department of Agriculture [2014] FCA 398 [COMPANY] v [COMPANY] (1996) 68 FCR 406 [NAME] Corporation v [COMPANY] (2001) 208 CLR 199 [NAME] v [NAME] (2017) 254 FCR 68 [NAME] v [NAME], [NAME], [NAME] ("[ADDRESS]") [2018] FCA 957 [NAME] Commission v [COMPANY] (in liq) [2005] FCA 1212 [NAME] Commission v Chen (2003) 132 FCR 309 [NAME] Commission v Francis (2004) 142 FCR 1 [NAME] Commission v [COMPANY] (2004) 207 ALR 329 [NAME] Commission v [COMPANY] (2012) 201 FCR 378 [NAME] Commission v [COMPANY] (No 2) (2011) 279 ALR 609 [NAME] v [NAME] (2008) 165 FCR 560 [COMPANY] v [NAME] [NAME] (NSW); ex rel Corporate Affairs Commission (1981) 148 CLR 121 [NAME] v [COMPANY] (2005) 148 IR 201 [NAME], [NAME] v [NAME] [COMPANY] [2010] FCA 989 [NAME], [NAME], [NAME] v [NAME] (The Non-Indemnification Personal Payment Case) (2018) 280 IR 28 Commonwealth v [NAME] (2015) 258 CLR 482 Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v [NAME] Commission (2007) 162 FCR 466 [NAME] v [COMPANY] (2008) 172 FCR 279 [NAME] v [NAME] Commission [COMPANY] [2019] FCA 688 Director of [NAME] v [NAME] (2014) 146 ALD 75 Ibeneweka v Egbuna [1964] 1 WLR 219 Jones v Dunkel (1959) 101 CLR 298 [NAME] v [COMPANY] (2011) 243 CLR 361 [COMPANY] v International Air Transport Association (No 2) [2009] FCA 646 [COMPANY] v [NAME] in [COMPANY] (No 2) [2017] FCAFC 99 [NAME] v The Queen (2005) 228 CLR 357 McLeish v Faure (1979) 25 ALR 403 [COMPANY] v [NAME] (1974) 131 CLR 286 [NAME] v [NAME]-[NAME] (No 2) [2019] FCA 1003 Re McDougall; [NAME] Commission v McDougall (2006) 229 ALR 158 [COMPANY] v [NAME] Commission (2003) 216 CLR 53 Sankey v Whitlam (1978) 142 CLR 1 [NAME] v [NAME] (2016) 239 FCR 336 [COMPANY] v [COMPANY] (No 2) (1993) 41 FCR 89 Trade Practices Commission v [COMPANY] (1991) ATPR ¶41-076 [COMPANY] v [COMPANY] (2000) 200 CLR 591 [NAME] v [NAME] (2001) 105 FCR 437 [COMPANY] v [NAME] Commission (2014) 254 CLR 288 [NAME] v The Queen (2001) 207 CLR 584 [COMPANY] v [COMPANY] (2002) 54 IPR 1 Justice Robert French, '[NAME]'s remedy – is there anything they cannot do?' [2007] FedJSchol 24 [NAME], The Declaratory Judgment ([NAME], 4th ed, 2011)

Date of hearing: 14 June 2019

Registry: Victoria

Division: [NAME]

National Practice Area: [NAME]: Catchwords

Number of paragraphs: 103

[NAME]: [APPELLANT]

Solicitor for the Applicant: [redacted]

Counsel for the Respondent: [redacted]

Solicitor for the Respondent: [redacted]

Counsel for [NAME]: Mr [COUNSEL].J. [COUNSEL]

Solicitor for [NAME]: [COUNSEL] [NAME]: [NAME], [NAME], [NAME] Applicant

AND: [APPELLANT] [COMPANY] First Respondent

[NAME] [NAME] Respondent

[NAME] (and another named in the Schedule) [NAME] Respondent

JUDGE: SNADEN J DATE OF ORDER: 12 JULY 2019

THE COURT ORDERS THAT:

1. A pecuniary penalty of $15,000.00 be imposed upon the first respondent. 2. The penalty so imposed be paid to the applicant not later than 28 days from the date of these orders. 3. The proceeding be otherwise dismissed. 4. There be no order as to costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

SNADEN J: 1 The applicant is a large and well-known [NAME]. It is registered as an "[NAME]" under the Fair Work (Registered Organisations) Act 2009 (Cth). Broadly speaking, it represents and seeks to advance the industrial interests of (amongst others) employees who perform work in the [NAME]. For the purposes of the Fair Work Act 2009 (Cth) (hereafter, the "[NAME]"), it qualifies as an "[NAME]" (within the meaning attributed to that term by s 12 thereof). 2 The first respondent operates a [NAME] headquartered in the ACT. In February 2016, it was the [NAME] in charge of constructing a multi-storey apartment [NAME] at premises located at [ADDRESS], Phillip, ACT (hereafter, "the [NAME]"). It employed a number of people to that end, some of whom were or were eligible to become members of the applicant. At that point in time (February 2016), the [NAME] consisted of at least two distinct areas: a "high-risk zone", which was secured by means of a fence; and the remainder of the [NAME], which was outside of that fenced area. The high-risk zone was accessible through a secured entrance that was unlocked by means of "swipe card" access. 3 Within the high-risk zone were located (amongst other things) various temporary buildings, most conveniently referred to as amenities sheds. Another shed—known as the [NAME]—was (amongst others) located outside of the high-risk zone. Workers at the [NAME] were permitted (and known) to use both—the amenities sheds inside the high-risk zone (hereafter, the "amenities sheds") and the [NAME] outside of it (hereafter, the "[NAME]")—for the purposes of taking their meal breaks. 4 [APPELLANT] and [APPELLANT] were both employees of the applicant's at the time (February 2016). Each of them was in possession of an "entry [NAME]" issued under s 512 of the [NAME] and, for that reason, qualified as a "[NAME]" for the purposes of that law. 5 During the morning of Thursday, 4 February 2016, each of [RESPONDENT] and [RESPONDENT] gave notice to the first respondent of his intention to exercise at the [NAME] the right conferred upon him by s 484 of the [NAME] (namely, to enter it for the purposes of holding discussions with certain of the employees who worked there). Those notices each complied with all of the statutory and regulatory stipulations that the [NAME] required of them (about which more is said at [14] below). 6 At approximately 12:45pm on Friday, 5 February 2016, [NAME] [NAME] and [NAME] attended at the [NAME] for the purposes of exercising the rights of entry that were the subject of the notices that they had provided. They were met by the [NAME], who were employed at the [NAME] as, respectively, the [NAME] [NAME] Manager and Safety Officer. Upon their arrival at the [NAME], they were asked to show their entry permits and they did so. 7 What then ensued was a discussion about where within the [NAME] [NAME] [NAME] and [NAME] could hold the discussions in respect of which they sought to exercise their right of entry. The [NAME] respondent said words to the effect of, "you will hold your discussions here," apparently motioning (or otherwise referring) to the [NAME]. [NAME] [NAME] and [NAME] indicated that they preferred, instead, to hold them in the amenities sheds within the high-risk zone. The [NAME] respondent—the [NAME] [NAME] Manager at the [NAME]—arrived on the scene at about that time. 8 Collectively and "[o]n the instruction of" the first respondent, [NAME] refused to [NAME] [NAME] and [NAME] to pass into the high-risk zone. They insisted that the [NAME] qualified as a meal room for the purposes of s 492 of the [NAME] and that the discussions that [NAME] and [NAME] wished to conduct should be conducted there. [NAME] [NAME] and [NAME] then left the [NAME]. The precise nature of the refusal is considered in more detail below. 9 The facts stated above are all agreed. The applicant alleges (until recently amongst other things) that they are sufficient to establish that the first respondent contravened s 501 of the [NAME]. It seeks declaratory relief and the imposition of a pecuniary penalty in respect of that contravention. 10 By notice dated 10 April 2019, the [NAME] exercised his statutory right to intervene in the proceeding. 11 Until recently, the proceeding involved a much wider array of allegations, including allegations of statutory contravention on other occasions, and allegations levelled at [NAME] personally. It was listed for what the parties estimated would be a four-day hearing, which was scheduled to commence on Tuesday, 11 June 2019. 12 In the week commencing Monday, 3 June 2019, the [NAME] reached an agreement in part-settlement of the proceeding. The particulars of that agreement are, of course and properly, not before the court; but, plainly enough, its central feature was that the union would pursue relief in respect of—and the first respondent would admit to committing—only the contravention referred to at [9] above (hereafter, the "Agreed Contravention"). The proceeding against the [NAME] respondent was discontinued on Tuesday, 11 June 2019. It proceeded as against the [NAME]; but, ultimately, no relief was sought against them. 13 The agreed course has [NAME]'s blessing. 14 There is no controversy amongst the parties about the scheme for which pt 3-4 of the [NAME] provides. In [NAME], [NAME] v [NAME] [COMPANY] [2010] FCA 989 ([NAME]), that scheme was helpfully summarised as follows (at [9]): Part 3-4 of Chapter 3 of the Act provides for a framework within which [NAME] may exercise a right of entry to premises occupied by employers. By s 512 [the Fair Work Commission] may issue entry permits to [NAME]. A union official who holds a [NAME] and who wishes to enter premises must give the employer an entry notice at least 24 hours before exercising a right of entry: see s 487. The entry notice must specify the premises to be entered, the day of entry and the name of the union of which the [NAME] is an official: see s 518(1). If the proposed entry is for the purpose of holding discussions with employees the entry notice must contain certain additional details: see ss 484 and 518(3). If these conditions are satisfied the [NAME] is entitled to enter the premises: see s 484. It is implicit in s 492(1) of the Act that, once [NAME] has been admitted to an employer's premises, the employer is required to respond positively to any reasonable request that a particular room be made available in which the [NAME] may hold discussions with workers. 15 The most relevant statutory provisions—namely, ss 484, 492 and 501 of the [NAME]—are in the following terms: 484 Entry to hold discussions [NAME] may enter premises for the purposes of holding discussions with one or more employees or TCF award workers: (a) who perform work on the premises; and (b) whose industrial interests the [NAME]'s [NAME] is entitled to represent; and (c) who wish to participate in those discussions. Note 1: [NAME], or the [NAME] to which the [NAME] belongs, may be subject to an order by the FWC under section 508 if rights under this Subdivision are misused. Note 2: A person must not refuse or unduly delay entry by [NAME], or intentionally hinder or obstruct [NAME], exercising rights under this Subdivision (see sections 501 and 502). Note 3: Under paragraph 487(1)(b), the [NAME] must give the occupier of the premises notice for the entry. Having given that notice, the [NAME] may hold discussions with any person on the premises described in this section. 492 Location of interviews and discussions (1) The [NAME] must conduct interviews or hold discussions in the rooms or areas of the premises agreed with the occupier of the premises. (2) Subsection (3) applies if the [NAME] and the occupier cannot agree on the room or area of the premises in which the [NAME] is to conduct an interview or hold discussions. (3) The [NAME] may conduct the interview or hold the discussions in any room or area: (a) in which one or more of the persons who may be interviewed or participate in the discussions ordinarily take meal or other breaks; and (b) that is provided by the occupier for the purpose of taking meal or other breaks. Note 1: The [NAME] may be subject to an order by the FWC under section 508 if rights under this section are misused. Note 2: A person must not intentionally hinder or obstruct [NAME] exercising rights under this section (see section 502). 501 Person must not refuse or delay entry A person must not refuse or unduly delay entry onto premises by [NAME] who is entitled to enter the premises in accordance with this Part. Note: This section is a civil remedy provision (see Part 4-1). 16 In light of the facts that are agreed, the court is satisfied that the Agreed Contravention occurred—that is to say, that the first respondent (via the agency of [NAME]) contravened s 501 of the [NAME] on Friday, 5 February 2016 by refusing [NAME] access to the amenities sheds located within the high-risk zone of the [NAME]. The following reasons address what relief should flow from that contravention.

Preliminary matter: amendment of pleadings 17 The proceeding was originally commenced in the Federal Circuit Court. It was transferred to this court on 29 September 2016, whereupon amendments were made to the existing pleadings. As has been stated, the matter as pleaded was much broader than the simplified summary that appears above might suggest. For that reason—and upon reaching the accord that they reached—the parties set about narrowing its scope. 18 On Wednesday, 5 June 2019, the [NAME] provided to the court orders that they proposed by consent. Amongst other things, they asked that the court make a declaration that the first respondent had committed the Agreed Contravention, that it issue directions for the preparation and receipt of written submissions concerning what (if any) penalty ought to be imposed in light of it, that it vacate the trial dates, and that it list the matter instead for a hearing on Friday, 14 June 2019 for the purposes of hearing oral submissions directed to that (penalty) question. 19 The court declined to make those orders. They did not expressly enjoy the consent of [NAME]. More fundamentally, there was not yet an evidential basis, nor a basis evident from the pleadings, upon which the declaratory relief sought might properly have been granted. The court nonetheless indicated that it could (and would) accommodate the course down which the parties otherwise proposed to traverse. It invited them to narrow the issues in dispute by means of amendments to their pleadings or the filing of an agreed statement of fact. 20 On Thursday, 6 June 2019, the parties responded to that invitation by proposing to do both. As to the former, they asked that the court [NAME] them leave to amend their pleadings, which amendments they proposed to incorporate into separate consent orders, to be handed to the court at the hearing that was then hoped would be scheduled for Friday, 14 June 2019. 21 Later that day, the court indicated that it would not [NAME] leave at large to amend the pleadings. It invited the parties, by way of an alternative course, to narrow the scope of the proceeding by means of their written and oral submissions, and their proposed statement of agreed facts. 22 Orders were then made for the provision of a statement of agreed facts and written submissions concerning what, if any, relief the court should [NAME] in respect of the Agreed Contravention. The trial dates were vacated and the matter was, instead, listed for a hearing on Friday, 14 June 2019 directed to the question of relief. 23 That hearing proceeded as planned. It was preceded by the preparation and receipt of a statement of agreed facts (to which reference is made throughout these reasons) as well as succinct and helpful written submissions directed to the question of the relief that the court should [NAME] in respect of the Agreed Contravention. Those submissions gave voice to the accord that the parties had reached on the question of the respondents' liability: that is, that the first respondent accepted that it had committed the Agreed Contravention, that the applicant abandoned the remainder of its claims and that the only issue that remained for the court's consideration was the question of what relief should be granted. 24 At the commencement of the hearing on Friday, 14 June 2019, senior [NAME] handed to the court a minute of orders that were proposed with the consent of the [NAME] (and without objection from [NAME]). Those orders contained, in list form, descriptions of the ways in which they proposed that their pleadings be amended. They did not make provision for the filing of new pleadings that incorporated those amendments. Indeed, the [NAME] sought to be excused from any obligation in that regard. Rather than granting the parties leave to file amended pleadings incorporating the changes that they proposed, what was instead suggested was that the court would simply order that the pleadings were so amended: in other words, that the pleadings would be amended without actually being amended. 25 Without wishing to frustrate what the [NAME] have agreed upon as their preferred course, I am not inclined to make the orders that they proposed. Not only are they unorthodox, they are unnecessary: it is clear from the parties' submissions, and from the statement of agreed facts that they have filed, that the only matter that remains in dispute is the question of what relief ought to issue in respect of the Agreed Contravention. The first respondent admits that it committed the Agreed Contravention. The applicant has abandoned the remainder of its claims. That is sufficient to dispose of all questions of liability in the matter.

penalty 26 Section 501 of the [NAME] is a civil remedy provision: [NAME], s 539(1). The court has power under s 546 of the [NAME] to impose upon the first respondent a penalty in respect of the Agreed Contravention of up to 300 penalty units. At the time that the Agreed Contravention occurred, a penalty unit was $180: Crimes Act 1914 (Cth), s 4AA(1). The maximum penalty that can be imposed in respect of it is $54,000.00. The parties each submit that the Agreed Contravention should attract the imposition of a pecuniary penalty. 27 Each party nominates a range within which the court should fashion a penalty appropriate in the circumstances of this case. The applicant suggests that it should be set at the "upper end of the lower [NAME]", which I take to mean somewhere between $13,500.00 and $18,000.00. The first respondent suggests that it should be set somewhere between 20 per cent and 30 per cent of the maximum; that is, between $10,800.00 and $16,200.00. [NAME] suggests that a penalty of up to 30 per cent of the maximum ($16,200.00) would be appropriate. It can be seen immediately that there is not a lot that separates the parties on this front. 28 In determining whether a penalty in the present case is appropriate—and, if it is, what it should be—the court's discretion is very broad: [COMPANY] v [NAME] [2008] FCA 466, [6] ([NAME[NAME]). Assuming that a penalty is appropriate, the task of assessing what amount to impose in that respect is one of "instinctive synthesis" that involves the selection of a figure that takes due account of all factors relevant to the particular case: [NAME] v The Queen (2001) 207 CLR 584, 611 [75] ([NAME], [NAME] and [NAME]); [NAME] v The Queen (2005) 228 CLR 357, 373-375 [37] ([NAME], [NAME], [NAME] and [NAME]). 29 What those factors are will be case-specific, although the authorities are replete with recurring examples of matters to which regard has properly been had in the exercise of the broad discretion at play. In [NAME] v [NAME] (2008) 165 FCR 560, 580 [91] [NAME] (with whom, in the result, [NAME] and [NAME] [NAME] agreed), considered those recurring factors and what was an emerging tendency to treat them as "checklists". [NAME] noted: Checklists of this kind can be useful providing they do not become transformed into a rigid catalogue of matters for attention. At the end of the day the task of the Court is to fix a penalty which pays appropriate regard to the circumstances in which the contraventions have occurred and the need to sustain [NAME] confidence in the statutory regime which imposes the obligations. 30 The [NAME] (if not only) object to which the court must give effect in setting an appropriate penalty is to deter repetition of the conduct in respect of which it is to be imposed: Commonwealth v [NAME] (2015) 258 CLR 482, 506 [55] (French CJ, [NAME], [NAME], [NAME] and [APPELLANT] [NAME]). Deterrence, in that sense, is both specific and [NAME]—the court must strive to "…put a price on contravention that is sufficiently high to deter repetition by the contravenor and by others who might be tempted to contravene the Act": [NAME] v [NAME] (2017) 254 FCR 68, 88 [98] ([NAME], [NAME] and [NAME] [NAME]); Trade Practices Commission v [COMPANY] (1991) ATPR ¶41-076, 52,152 (French J). In [NAME], [NAME], [NAME] v [NAME] (The Non-Indemnification Personal Payment Case) (2018) 280 IR 28 ([NAME], [NAME] and [NAME] [NAME]), the full court set the task in the following terms (at [19]-[22]): It is unnecessary to engage in any extended discussion of principle. Of particular significance is the recognition that deterrence ([NAME] and specific) is the [NAME] and indeed only object of the imposition of a penalty — to put a price on contravention that is sufficiently high to deter repetition by the contravener and others who might be tempted to contravene the Act: French J in Trade Practices Commission v [COMPANY] [1991] ATPR 41-076 at 52,152 ( [NAME] v [NAME] ), cited by the plurality in Commonwealth v [NAME] (2015) 258 CLR 482; 255 IR 87 at [55]. Retribution, denunciation and rehabilitation have no part to play. Relevant factors in the overall assessment of penalty were helpfully listed by French J in [NAME] v [NAME]. They have been adopted in many cases. For present purposes, they can be restated as follows: the nature, character and seriousness of the conduct; the loss and damage caused; the circumstances in which the conduct took place; the size of the contravener and its degree of power; the deliberateness of the conduct and the time over which it occurred; the degree of involvement of senior [NAME] or management; the culture of the [NAME] as to compliance or contravention; and, any co-operation with the [NAME] and contrition. The seriousness of the contravention and other features of the conduct which may be seen as relevant to it…find their place in understanding the degree of deterrence that is necessary to be reflected in the size of the penalty: [COMPANY] v [NAME] Commission (No 2) (2018) 356 ALR 389 at [71]. The overwhelming importance of deterrence as the protective purpose of the penalty does not exclude the need to determine a penalty which is proportionate to the contravening conduct. The history of contravention is to be taken into account in fixing the proper level of penalty for the proportionate response to the contravention in question. Proportionality has within it the need to characterise the seriousness of the contravention. Proportionality of penal response to a contravention assessed by reference to its seriousness and gravity is an essential characteristic of the application of the statute. The penal response is for that contravention, not earlier contraventions: [NAME] v The Queen (No 2) (1988) 164 CLR 465 at 477-478. Prior contraventions may reveal an apparent disregard for the Act and the need for deterrence by a penalty at a level appropriate to achieve that objective. It is to be borne in mind, however, that it is for the conduct in question that the penalty is imposed, not for prior conduct. 31 The Agreed Contravention warrants the imposition of a pecuniary penalty. I proceed to consider the factors most relevant to what that penalty ought to be. I do so taking account of the parties' statement of agreed facts and the affidavit of [NAME] sworn on 13 June 2019, which the first, [NAME] read.

Nature, character and seriousness of the contravening conduct 32 It is common ground that [NAME] and [NAME] were both relevantly refused entry onto the [NAME] (or, at least, the high-risk zone part thereof) on Friday, 5 February 2016. The precise nature of the conduct constituting that refusal could be clearer. It is apparent that it was at least in part the product of the discussions that ensued as between [NAME] [NAME] and [NAME] (on the one hand) and [NAME] (on the other) when the former arrived at the [NAME] to exercise their rights of entry. 33 What occurred in this case is set out at [20] of the parties' statement of agreed facts, which relevantly reads: On the direction of [NAME], [[NAME]] refused to [NAME] Mr [NAME] and Mr [NAME] to pass through the high risk fence and repeatedly informed [NAME] and [NAME] that they could only meet employees in the [NAME]. [The [NAME], [NAME] and [NAME] respondent] stated that the [NAME] was a meal room for the purposes of section 492 of the [NAME]. That passage follows [18] and [19] of the statement of agreed facts, which record [NAME] and [NAME] being told that they were to hold their discussions in the [NAME], and their reply that they did not consider that that was a suitable location within which to do so. 34 The statement of agreed facts then records, at [22], that, "[a]s a result of [NAME] conduct, [NAME] [NAME] and [NAME] were refused entry to a part of the [NAME], being the amenities shed located in the high risk zone." I read the reference to "[NAME] conduct" as a reference to the conduct attributed to one or more of the respondents by [18]-[20] of the statement of agreed facts. The following paragraph ([23]) records that, by reason of that refusal, [NAME] [NAME] and [NAME] "…were refused entry onto premises within the meaning of the [NAME]". 35 The parties effectively treat the high-risk zone as though it amounted to premises in its own right. That is consistent with the meaning that the [NAME] attributes to "premises": [NAME], s 12. 36 The conclusory language employed by the statement of agreed facts is problematic on a number of levels. The first concerns the use of the phrase "refused to [NAME]" in [20] of the statement of agreed facts. Section 501 of the [NAME] is engaged where [NAME] is refused entry onto premises that he or she is entitled to enter in accordance with pt 3-4 of the [NAME]. It is not engaged merely where an occupier refuses to [NAME] [NAME] his or her (or its) permission to enter. An [NAME] permission is irrelevant. If [NAME] is entitled to enter premises in accordance with pt 3-4 of the [NAME], his or her entitlement to do so is conferred by the Act, not by any permission granted to that end by the occupier. 37 Yet, plainly enough, the parties in this matter are as one in submitting—and, in light of that unity of view, I accept—that, insofar as they were refused permission to pass into the high-risk zone and were told, instead (and repeatedly), that they were only permitted to hold their discussions in the [NAME], [NAME] [NAME] and [NAME] had their entry to the high-risk zone refused in contravention of s 501 of the [NAME]. There was, then, something about that refusal to [NAME] permission or that repeated exhortation to hold the discussions in the [NAME] (or both) that gave the exchange that character or consequence. What, exactly, that was is not addressed in the statement of agreed facts. That, obviously enough, makes it difficult for the court to assess the nature, character and seriousness of the contravening conduct. 38 It is not clear that the "refus[al] to [NAME]" [NAME] [NAME] and [NAME] to pass into the high-risk zone was the product of anything more than a verbal indication (or verbal indications) that they were not permitted to venture into that area and were, instead, permitted only to conduct their meetings in the [NAME]. It is not even clear that the first half of that equation—that they were not permitted to venture into the high-risk zone—was stated expressly. It may be that [NAME] and [NAME] asked for permission and were told that it wasn't granted; it may be that they requested a "swipe card" in order that they could pass into the high-risk zone but were told that one would not be provided; it may be that they sought to pass into the high-risk zone (perhaps using somebody else's "swipe card") and were physically prevented from doing so. It's simply not possible to know what form that refusal of permission assumed. 39 What is clear from [20] of the statement of agreed facts is that [NAME] and [NAME] were repeatedly told that they could hold their meetings "only" in the [NAME]. In that sense, whether they were also told expressly that they were not permitted to pass into the high-risk zone doesn't much matter: if the point wasn't made in terms, it was clearly implicit in what was said (repeatedly) about the [NAME]. In the absence of any evidence of any other conduct constituting it, I proceed upon the assumption that the "refus[al] to [NAME]" to which [20] of the statement of agreed facts summarily refers was the product of nothing more than that [NAME] [NAME] and [NAME] were told that they were "only" permitted to hold their discussions in the [NAME]. 40 That being so, the Agreed Contravention lay as much in what was said as in what was not said. By itself, to say to a person "you can't go in there" is not to refuse them entry onto premises. It may—and, when uttered by or on behalf of an occupier, almost certainly will—amount to a refusal to [NAME] permission to enter; but, as has already been stated, that isn't the same thing. When they attended at the [NAME] on Friday, 5 February 2016, [NAME] [NAME] and [NAME] didn't require the respondents' permission to enter onto the [NAME] (and, more particularly, into the high-risk zone). Subject to their complying with the requirements of pt 3-4 of the [NAME], they were authorised to that end by reason of s 484. 41 For an occupier to "refuse" a person's entry onto premises requires one or more of three things. First, refusal can manifest in deliberate physical obstruction: that is, the creation of a physical barrier that is calculated to and does render safe access to premises beyond what is reasonably achievable. A business targeted by [NAME], for example, might refuse their entry onto its premises by hiring [NAME] to physically prevent them from entering. [NAME], it can assume the form of a threat, explicit or implicit, that is calculated and sufficient to convince a person to abandon his or her desire to enter premises for fear that any attempt to do so would be met with physical resistance. A [NAME] at a [NAME], for example, might (on behalf of the occupier) refuse a person's entry without saying anything more to them than, "you can't go in there". The refusal there lies in what is unsaid—"I will stop you if you try"—which will usually arise implicitly as a product of the [NAME]'s ostensible authority (and perhaps, in that example, the appearance of physical superiority and a willingness to deploy it). [NAME]—and in the right circumstances—entry onto premises might be said to have been refused by reason of an [NAME] refusal to do what is reasonably necessary in order that entry might be gained. A [NAME] who turns away a health [NAME] by refusing to unlock the front door to his or her [NAME], for example, might be understood to have refused the [NAME] entry onto the [NAME] premises. These examples, obviously enough, are dependent upon all manner of variables. 42 The paucity of information in the statement of agreed facts in this case means that it is difficult to know into which of the three categories the exchange that took place on Friday, 5 February 2016 fell. In light of the assumption stated at [39] above, the first category can be immediately disregarded. There is no reason to think—much less any evidence to prove—that the Agreed Contravention involved (or was associated in any way with) the creation of a physical obstruction. It might have fallen within either or both of the remaining categories—that is to say, it might have involved a threat of the relevant kind or the denial of relevant assistance. 43 Again, it is difficult to know. Insofar as the representation that [NAME] and [NAME] were only permitted to conduct their discussions in the [NAME] was advanced as an exhortation that they were not at liberty to conduct them anywhere else at the [NAME], that was plainly incorrect. They were authorised by the [NAME] to enter into the high-risk zone for the purposes of holding their discussions. They were not restricted to holding them "only" in the [NAME]. That they lacked the respondents' permission to enter the high-risk zone was irrelevant. Insofar as their entry was refused by no more than what was said to them about where they should (and should not) hold their discussions, that must be because those representations were sufficient to convince [NAME] and [NAME] either that they would not be able to gain entry into the high-risk zone or that any attempt on their part to do so would be resisted. In other words, those representations must have carried with them either or both of two imputations: namely, that any attempt to conduct discussions within the high-risk zone would be met with physical opposition, or that the respondents would not provide the assistance (presumably in the form of the provision of a "swipe card") that they would need to that end. Although the statement of agreed facts leaves open the possibility that the refusal of entry was the product of other conduct attributable to the respondents, it is simply not possible to know what that other conduct might have been (or if there was any). I proceed on the basis that the relevant refusal of entry was as I have described it, however speculatively, in this paragraph: that is, that it was the product of what [NAME] and [NAME] were told about where their discussions could, should and would be held; and, more precisely, that it was a consequence of the attachment to that representation of either or both of the imputations that are described above. It would have been preferable for the statement of agreed facts to have made that clear. 44 There is another difficulty that arises from the loose manner in which [20] of the statement of agreed facts has been drafted. It refers to the relevant refusal having been given effect to "on the direction of" the first respondent. No human agent is identified as the source of that direction. Clearly, it must have come from somebody who had authority to direct each of [NAME]. Who that is or might have been is, again, left unexplored. 45 Counsel for [NAME] made that observation during his oral submission. In response to it, senior counsel for the first, [NAME] suggested that what appears at [20] of the statement of agreed facts was "…perhaps an inelegant and rather awkward reference to the admitted fact that each of the three named persons – all of whom were senior [NAME] – were acting with the authority of [NAME]." Urging that the court not speculate as to whether the relevant refusal was attributable to some human agent other than the [NAME], [NAME] or [NAME] respondents, senior [COUNSEL] submitted that the case, as pleaded, went no further than those individuals (that is, it relevantly attributed to the first respondent only the conduct of [NAME]). 46 With respect, the pleadings do not assist at this juncture. They identify the material facts necessary to establish the legal conclusion that conduct was engaged in in contravention of s 501 of the [NAME]. The existence of a direction of the sort to which [20] of the statement of agreed facts refers is not material in that respect: whether there was a contravention turns only upon whether or not [NAME] [NAME] and [NAME] entry onto the [NAME] was refused, not whether any such refusal was the product of a direction given to those by whom it was effected. The fact that there is no reference in the pleadings to the existence of a "direction" does not put it (if it was given) beyond the scope of what the court can and should consider in fashioning a penalty appropriate in the present circumstances. 47 If, as the statement of agreed facts unambiguously states, there was a direction given to [NAME] from above that they should refuse [NAME] [NAME] and [NAME] entry onto the [NAME], that is a fact that properly informs the court's assessment of the objective seriousness of the conduct that it is agreed was engaged in in contravention of s 501 of the [NAME]. It is one thing for [NAME] to wrongly advance a particular position; quite another for them to have done so pursuant to a direction from a more senior source. The penalty that the court imposes should reflect that objective seriousness. 48 That leaves the court in a difficult position. It is apparent (which is to say that I accept) that there was a direction given in this case to [NAME]; but it is not clear who gave it. [NAME] invited the court to infer that it had come from the [NAME] [NAME] director, Mr [RESPONDENT]. I don't consider it open to draw such an inference (even in the absence of evidence from him that he was not its source). In the final analysis, though, it is unlikely to make any material difference: the existence of a direction, from a level of the [NAME] management that was more senior than that of the other respondents, that the latter should refuse [NAME] [NAME] and [NAME] entrance onto the [NAME] on Friday, 5 February 2019 is a matter to which I have had regard in setting the penalty that will be imposed. 49 There are other aspects of the conduct amounting to the Agreed Contravention that warrant comment (and to which I have had regard in setting an appropriate penalty), namely that: the respondents advertised to the workers at the [NAME] that [NAME] of the applicant would be in attendance on Friday, 5 February 2016 for the purposes of holding discussions in the [NAME] with anybody who wished to participate in them—there was, in that sense, no attempt by the respondents to prevent the applicant from holding discussions at all (as opposed to holding them within the high-risk zone); Friday, 5 February 2016 was only a short time after publication of a report from the Royal Commission into [NAME], which was known to have generated "strong negative feelings" toward the applicant at the [NAME]; and [NAME] were told to use the [NAME] because the respondents were concerned that those "strong negative feelings" might translate into confrontations that were preferable to be avoided (and that could be avoided by their steering clear of the high-risk zone). 50 Before concluding on this topic, mention should be made of the significance of the rights that the applicant's representatives were denied on Friday, 5 February 2016. In [NAME] v [NAME] [COMPANY] [2010] FCA 989 ([NAME]), the court observed (at [18]): The Act provides a detailed scheme to regulate the exercise, by [NAME], of their right to enter an employer's premises. Various restrictions are placed on the right of entry to minimise inconvenience to the employer or disruption to productive work. Provided, however, that the right of entry is exercised in accordance with the provisions of the Act, [NAME] are entitled to unimpeded access to business premises for prescribed purposes. This is an important right which enables [NAME] to recruit members and protect the industrial interests of their members. 51 I adopt [NAME]'s observations. The rights that [NAME] and [NAME] were denied on Friday, 5 February 2016 are not to be dismissed as administrative or in any way trivial. They are (and were) significant. Their frustration is serious. None of the parties suggests otherwise.

Deliberateness and involvement of senior management 52 It is clear that the Agreed Contravention involved senior management. Senior [NAME] described [NAME] as the "most senior" [NAME]. Certainly, their titles would indicate as much; but the evidence doesn't [NAME] a clear finding one way or the other. Regardless, there was no debate—nor room to doubt—that [NAME] qualified as the [NAME] senior management. 53 It is at this juncture that the language of [20] of the statement of agreed facts again assumes some significance. As I have found, [NAME] did what they did on the direction of somebody even more senior. Who that was is unknown; but the fact that the policy approach that resulted in the Agreed Contravention was one that came from as high as it appears to have is cause for some concern. As I have stated above, it is a circumstance that informs the assessment of what penalty is appropriate in the present case. 54 Equally, there is at least some basis for concluding that the conduct of the respondents was deliberate, in the sense that they knew that refusing [NAME] [NAME] and [NAME] entry onto the [NAME] on Friday, 5 February 2016 would be unlawful but chose to effect it anyway. In his affidavit, Mr [NAME] deposed to training that "[NAME] [NAME] [NAME]" and "senior staff" had received in respect of rights of entry under pt 3-4 of the [NAME]. That training concerned (in the case of the "[NAME] [NAME]") the use of a right of entry "app" apparently developed by the Master Builders Association. Additionally, [NAME] (or a representative or representatives of a previous incarnation of the Commission that he heads) delivered on-[NAME] training to [NAME] "senior staff" about "…the rules and responsibilities surrounding right of entry." In each case, the training pre-dated the events of Friday, 5 February 2016. Although it is not clear precisely to whom the training was provided, it is sufficiently clear—and I readily infer—that it was provided at least to [NAME]. 55 Additionally, the [NAME] respondent had, prior to Friday, 5 February 2016, attended a Master Builders Association seminar on "…rules and responsibilities surrounding right of entry." 56 It is apparent that [NAME] had, at least collectively, some appreciation for the effect of s 492 of the [NAME]. They referred to it expressly when indicating to [NAME] [NAME] and [NAME] why the discussions that they were there to conduct could "only" occur in the [NAME]. 57 [NAME] submits that, on the strength of that evidence—and from the absence of any evidence from any of the [NAME], [NAME] or [NAME] respondents as to why he did what he did—the court should infer that each of them knew that the effect of s 492(3) of the [NAME] was that [NAME] and [NAME] were authorised to venture into the amenities sheds within the high-risk zone. The first respondent, conversely, invites the court to find that each of them was acting "…under an erroneous assumption about [his] right to determine the area…" in which the applicant's representatives should hold their discussions. 58 The difficulty with the [NAME] contention is that there's no evidence to support it. Not only that, there is evidence—namely, the evidence about right of entry training to which reference is made above—from which it can be inferred that each of [NAME] understood that [NAME] [NAME] and [NAME] were entitled to access to the high-risk zone on Friday, 5 February 2016 (that is to say, was not "under an erroneous assumption" on that front). For reasons that have not been explained, none of those individual respondents has given evidence to substantiate that what he did, he did in error. That being so, an inference that he (in each case) understood what [NAME] [NAME] and [NAME] rights of entry were can more readily be drawn (consequent upon an antecedent inference that, had he given evidence, it would not have assisted): Jones v Dunkel (1959) 101 CLR 298, 308 (Kitto J), 312 (Menzies J), 320-321 ([NAME[NAME]); [NAME] v [COMPANY] (2011) 243 CLR 361, 384-385 [63]-[64] ([NAME], [NAME], French CJ and [NAME[NAME], in dissent, not addressing the point); Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v [NAME] Commission (2007) 162 FCR 466, 489-490 [76] ([NAME], [NAME] and [NAME] [NAME]). I accept the submission of [NAME] in that sense. Acting on it, I also accept the more summarily-phrased submission of the applicant that the [NAME] conduct was deliberate.

Contrition and cooperation 59 The first respondent, by the evidence of its [NAME] director, Mr [RESPONDENT], has acknowledged its contravention and expressed its regret that it occurred. It has not been repeated. Indeed, the [NAME] current relationship with the applicant was described as "cooperative"; a circumstance that Mr [RESPONDENT] "welcome[d]". 60 The first respondent has accepted an invitation from [NAME] to have its management team attend a training session directed to the rights and obligations of [NAME] under pt 3-4 of the [NAME]. 61 The first respondent has also, of course—by the admission that is at the heart of the parties' accord—avoided the need for a lengthy trial on the question of liability. 62 All of these factors inform the degree of contrition that the first respondent has demonstrated and, in turn, are relevant to an assessment of what is an appropriate penalty in the circumstances. The applicant invites some scepticism on account of the lateness of the [NAME] admission that it engaged in the Agreed Contravention. The [NAME] admission, it says, should be seen as nothing more than a recognition of the inevitable. [NAME] also submits that any penalty discount that it might ordinarily warrant should be discounted because of that lateness. 63 It is appropriate for the court to acknowledge that the first respondent has exhibited appropriate contrition for its conduct. I accept the submission of [NAME] that the Agreed Contravention could fairly be described as an "aberration". It is not open to the court to reject the [NAME] evidence as to its contrition; nor to find that it has made the admissions that it has for any particular reason. Clearly, it would have been preferable for the admissions to have been made sooner than they were and the penalty that I will impose in respect of the Agreed Contravention might well have been smaller had that occurred; but the first respondent is entitled, all the same, to recognition (in the form of a discount on the penalty that would otherwise be appropriate) for the steps that it has taken.

Cultural considerations 64 The first respondent led evidence to show that the Agreed Contravention was properly described as an "aberration". I need not repeat that evidence here. I accept that it was an isolated event, and that the first respondent otherwise has in place an adequate system to ensure its compliance with pt 3-4 of the [NAME] and a good, overall culture of compliance. 65 I also accept that the relationship between the applicant and the first respondent is both improved and cooperative. 66 There was a wealth of evidence led as to what might be described as the [NAME] level of community engagement. That evidence was led in aid of the submission that the first respondent does not want for incentive to conduct itself lawfully, and that it "…does, and will continue to, direct its resources responsibly for the benefit of the community." 67 I accept that submission. It is appropriate to have regard to the many and varied positive contributions that the first respondent makes (and, it appears, will continue to make) to the [NAME] and the [NAME] more broadly.

Loss and damage caused 68 Given the nature of the rights that were sought to be exercised, it is not surprising that there is no evidence of any loss or damage arising from the Agreed Contravention. This factor has no bearing on the penalty to be imposed.

Size and financial position 69 The first respondent accepts that it is "well-resourced". There is no suggestion that it lacks the means to sustain the imposition of a penalty; nor that its contravention should be excused (or partially excused) on account of its size.

Prior contraventions 70 The first respondent has not previously (nor since) been found to have contravened any of the requirements for which pt 3-4 of the [NAME] provides.

Conclusions 71 On the strength of the observations above, I consider that the requirements of deterrence—both specific and [NAME]—and the circumstances of this case more generally, warrant the imposition upon the first respondent of a pecuniary penalty in the sum of $15,000.00.

Declaratory relief 72 The parties are agreed that the court should [NAME] declaratory relief in respect of the Agreed Contravention in the following terms, namely that: [COMPANY] contravened s.501 of the Fair Work Act 2009 by, through its employees, refusing [NAME] and [NAME] entry to part of the [NAME] [NAME] in Phillip ACT, namely a meal room, on 5 February 2016. 73 The court's power to [NAME] declaratory relief has its origins in the Court of Chancery. Section 50 of the Chancery Procedure Act 1852 (UK) enabled the making of declaratory decrees in circumstances where there existed a right to consequential relief that, if requested, might have been granted: see Barraclough v Brown [1897] AC 615, 623-624 ([NAME]) and the cases to which his Lordship there refers. 74 This court's power to [NAME] declaratory relief—to the extent that it isn't inherent (see [NAME] v Criminal Justice Commission (1992) 175 CLR 564 (hereafter, "[NAME]"), 581 ([NAME], [NAME] and [NAME]); and [NAME] Corporation v [COMPANY] (2001) 208 CLR 199, 288-289 ([NAME]))—is found in s 21 of the Federal Court of Australia Act 1976 (Cth), which provides: 21 Declarations of right (1) [ADDRESS] may, in civil proceedings in relation to a matter in which it has original jurisdiction, make binding declarations of right, whether or not any consequential relief is or could be claimed. (2) A suit is not open to objection on the ground that a declaratory order only is sought. 75 That power is plainly wider than the one for which s 50 of the Chancery Procedure Act 1852 (UK) provided. This court, in proceedings relating to any matter in which it has original jurisdiction, has the power to make declarations in respect of any right, regardless of whether or not it is one in respect of which any other remedy is or could be sought. "Right" is to be understood in its broadest sense, covering privileges, powers and immunities: Sankey v Whitlam (1978) 142 CLR 1, 23 ([NAME]). 76 Declaratory relief, like any final relief, is granted by way of the determination of a justiciable controversy. It is available even where, as here, the facts said to warrant the relief are agreed and the parties consent to its being granted: [NAME] Commission v [COMPANY] (No 2) (2011) 279 ALR 609, 612-620 [9]-[48] ([NAME[NAME]); [NAME] Commission v [COMPANY] (2012) 201 FCR 378, 387 ([NAME], [NAME] [NAME]). 77 The granting of declaratory relief involves an exercise of judicial discretion: [NAME], 581 ([NAME], Dawson, [NAME]); [NAME] v [COMPANY] (2008) 172 FCR 279 (hereafter, "[NAME]"), 299 [55] ([NAME] and [NAME] [NAME], [NAME[NAME] dissenting but not on that point); McLeish v Faure (1979) 25 ALR 403, 414-415 (Sweeny, [NAME] and [NAME]). That discretion, it has been said, should "…be exercised 'sparingly,' with 'great care and jealousy,' with 'extreme caution,' [and] with 'the utmost caution'" and, at all events, with "…a proper sense of responsibility and a full realisation that judicial pronouncements ought not to be issued unless there are circumstances that call for their making": Ibeneweka v Egbuna [1964] 1 WLR 219, 224-225 (Viscount Radcliffe, [NAME]); [NAME], 596 (Brennan J). 78 Ordinarily, it will not be appropriate to [NAME] declaratory relief unless it can be said that there is some utility in doing so: [NAME], 582 ([NAME], Dawson, [NAME]); [COMPANY] v [COMPANY] (2000) 200 CLR 591, 613 [52] ([NAME[NAME]); [COMPANY] v [NAME] in [COMPANY] (No 2) [2017] FCAFC 99, [3] ([NAME], [NAME] [NAME]); [NAME] Commission v [COMPANY] (2012) 201 FCR 378, 388 [35] ([NAME], [NAME] [NAME]); [COMPANY] v [COMPANY] (1996) 68 FCR 406, 414 ([NAME], with whom [NAME] and [NAME] agreed); [COMPANY] v [COMPANY] (No 2) (1993) 41 FCR 89 ("[NAME]"), 99 ([NAME]); [NAME] v [NAME]-[NAME] (No 2) [2019] FCA 1003, [50] (Logan J). 79 Such utility might be thought to be lacking in circumstances where other relief is granted in respect of the conduct that is sought to be made the subject of a declaration: [NAME] Commission v Francis (2004) 142 FCR 1 (hereafter, "Francis"), 33 [98] ([NAME[NAME]); [NAME] v [COMPANY] (No 2) [2015] FCA 1374, [45] (Collier J). In other circumstances, declaratory relief would serve no purpose (or, at least, would be undesirable) unless granted with other, consequential relief: see, for example, [COMPANY] v [NAME] (1974) 131 CLR 286, 307 ([NAME] J). 80 For a time, there was debate in this court as to whether a declaration that did nothing more than state that conduct engaged in by a respondent was engaged in in contravention of a statute could fairly qualify at all as a "declaration of right". [NAME[NAME], in particular, was very clearly of the view that it could not: [NAME], 33 ([NAME[NAME]); [NAME] v [COMPANY] (2005) 148 IR 201 (hereafter, "[NAME]"), 206 [21] ([NAME[NAME]). In the latter case, [NAME] was asked—as I am in this case—to record, by means of a declaration, that past conduct engaged in by a respondent had been engaged in in contravention of a particular statutory injunction. [NAME] observed (at 205-206 [20]-[23]): I have great difficulty accepting that a declaration which does nothing more than record a[n] historical event is properly described as a declaration of right. A declaration of right settles a state of dispute between parties, by declaring what the rights of one or other or both of them are, and enables them to conduct their relations in the future on the basis that their rights are thereby established. In essence, it is a remedy looking towards future conduct, rather than at past conduct. …I am aware that it has become a practice under the Trade Practices Act 1974 (Cth) (the Trade Practices Act) for applicants to seek, and for the Court to make, declarations that appear to do nothing other than reflect the fact that past conduct amounts to a contravention of provisions of that Act. Declarations in that form have often been made in cases in which the option of a penalty has not been available, but have also been made in cases where a penalty is an option, and even in cases in which penalties have been opposed. It is perhaps too late to protest about that practice under that Act, it having been sanctioned by the High Court of Australia, at least impliedly, in [COMPANY] v [NAME] Commission [2003] HCA 75; (2003) 216 CLR 53 at [89]-[90] per [NAME], [NAME] and [NAME] [NAME], by the failure of the High Court to condemn the making of declarations of that kind, even though it condemned the particular, rather vague, form of the declarations that had been made in that case. Recent cases under s 187AA of the Workplace Relations Act suggest that the practice is threatening to spill over from the Trade Practices Act to that area. There have been a number of cases in which [NAME] have made declaratory orders where they have not imposed penalties under s 187AA. In no case, so far as I am aware, has any judge engaged in discussion in reasons for judgment about whether the making of such a declaration is appropriate. In my view, it is not. [NAME] contends that the making of a declaration would send the right message to others that the law is being enforced. I am not sure that a case such as this would gain such notoriety that others would inevitably learn what they would learn from reading s 187AA of the Act, namely that it is unlawful to make payments to employees who are engaging, or have engaged, in industrial action. 81 The above passage contains two observations with which, with respect to [NAME], I am unable to agree. First, I see no reason why a binding declaration of right might be [COMPANY] to future conduct (if that is what [NAME] was suggesting). A declaration of right is a statement made by a court that resolves a justiciable controversy by recording the existence (or otherwise) of a legal state of affairs: [NAME] and [NAME], The Declaratory Judgment ([NAME], 4th ed, 2011), 1 [1.02]. Such a resolution, although not enforceable in the way that coercive judgments are, is nonetheless res judicata. That being so, there is no reason why the particular state of affairs in any given case couldn't pertain to past conduct. A controversy about whether or not particular conduct was engaged in in contravention of a statute strikes me as a good example. 82 [NAME], I don't consider that the High Court, in [COMPANY] v [NAME] Commission (2003) 216 CLR 53 (hereafter, "[NAME]"), went so far as to "sanction" the granting of declaratory relief that serves no purpose other than to record that a party's past conduct was engaged in in contravention of a statute. That, there is no doubt, is the course that was ultimately taken in that case. But there are two respects that ought to be borne in mind that might serve to explain why. The declaratory relief made at first instance was not challenged, neither in the full Federal Court nor the High Court. Further, the revisions that the High Court made to those orders were made because of circumstances peculiar to that case. [NAME] and [NAME] [NAME] observed (at 92 [95]): …there is some utility in the particular circumstances of these appeals in making the declarations to which the parties consent. The degree to which the Commission succeeded has changed from stage to stage of these proceedings, and it is convenient to have set out in the declarations not only the basis for the primary liability and accessorial liability found, but also the basis for the penalties ordered as it must now be understood. (emphasis added) 83 The observation in the immediately preceding paragraph is, in any event, now moot. In [NAME], the majority ([NAME] and [NAME] [NAME]) said (at 298 [53]) that there could be: …no objection in principle to the making of a declaration where the purpose and utility thereof is formally to record the basis upon which the proceeding in question has been resolved (whether by adjudication or otherwise). The court went on to make declaratory orders that did little more than state that one of the respondents had engaged in conduct prohibited by statute. The other member of the bench was [NAME[NAME], the terms of whose dissent (at 285 [18]) might readily be imagined (but need not here be set out). 84 Even prior to [NAME], there was at least some High Court authority supportive of the proposition that declaratory relief was available to record simply that past conduct contravened a statute: [COMPANY] v [NAME] [NAME] (NSW); ex rel Corporate Affairs Commission (1981) 148 CLR 121, 125 (Gibbs CJ), 136 ([NAME[NAME], with whom [NAME[NAME] agreed), 137 (Murphy J), 144-145 ([NAME[NAME]). There was authority for the proposition in this court prior to [NAME]: [NAME], 94, 98, 100-101 ([NAME[NAME]), 106 ([NAME[NAME]), 107, 110 ([NAME[NAME]); [NAME] Commission v Chen (2003) 132 FCR 309, 319 [35] (Sackville J). 85 Subject to other circumstances that might inform an exercise of the court's discretion, I accept—indeed, am bound to observe—that the court has the power to [NAME] declaratory relief that does nothing more than state that a respondent's prior conduct was engaged in in contravention of a statute. [NAME], I do so with difficulty and scepticism; all the same acknowledging that this court makes orders of that nature with a frequency that reflects a view that is "firmly entrenched in history": Justice Robert French, '[NAME]'s remedy – is there anything they cannot do?' [2007] FedJSchol 24, [50]. 86 Attention should turn, then, to whether the court should make such an order in this case. That calls for some analysis of whether doing so would have any practical utility. 87 In Francis, [NAME] confronted what all three members of the full court in [NAME] had said about why an exercise of the court's power to declare that past conduct contravened a statute was appropriate in that case. [NAME] observed (at 35-36 [108]-[110]) that: …the notion of a declaration as a vindication of a [NAME] right is difficult to grasp. The right of a [NAME] not to be misled or deceived by conduct to which s 52 of the Trade Practices Act applies is apparent on the face of the section itself. The right might be said to be vindicated if some penalty could be imposed upon the contravener of the section. It is hard to see how it could be vindicated by the mere recording of the conclusion that a contravention had occurred. It is not clear why the expression of that conclusion in a summary form in a declaration should be considered to be more capable of vindicating the [NAME] right than the detailed findings expressed in published reasons for judgment. Since the [NAME] case, declarations have been made in a very great number of cases involving contraventions of the Trade Practices Act, particularly s 52. In most of those cases, the peculiar circumstances present in the [NAME] case have been absent. Declarations in summary form have often been made by [NAME] who have expressed clear views in their reasons for judgment as to the nature of the misleading or deceptive effect of the conduct concerned. These cases have generated very little discussion as to the rationale for making a declaration. It has been said that the reason is to mark the Court's disapproval of the conduct concerned. See, for example, [NAME] Commission v Chen [2003] FCA 897; (2003) 132 FCR 309; [2003] FCA 897 at [36]. Again, I have difficulty with this as a reason for granting a declaration. The function of the Court is to find the facts and apply the law to them, to determine whether a contravention of a statutory provision has occurred. It is not to express its opinion of the quality of the conduct, by the use of adjectives indicating that opinion. In any event, adjectives of that kind are never used in the declarations concerned. The question is not whether the judge approves, or disapproves, or has no opinion either way. The process of an applicant seeking, and the Court granting, a declaration, if the Court finds that a contravention has occurred, seems to have become mechanical, at least in cases under the Trade Practices Act. The fashion seems to have been established. In the case of the applicant in the present case, it seems to have become something of a fetish. 88 Those observations followed earlier comments (the disapproving undertones of which were no less thinly disguised) about this court's tendency to [NAME] relief of the relevant kind "…as a matter of course, and usually without discussion as to the adequacy of the terms of the declaration sought, or as to the necessity for one to be made": Francis, 33 [98] ([NAME[NAME]). 89 [NAME] then proceeded, however reluctantly, to make a declaratory order of precisely the kind of which he'd been critical. He did so despite being of the view that that course would be "totally pointless": [NAME], 36 [110] ([NAME[NAME]). 90 With respect—and appreciating why he took the course that he did—I cannot reconcile [NAME]'s observations with the order that he made. Declaratory relief ought not to be granted in circumstances where granting it would be pointless (much less totally pointless). In [COMPANY] v [COMPANY] (2000) 200 CLR 591, [NAME[NAME] (at 613 [52]) said: …a declaration cannot be made if it "will produce no foreseeable consequences for the parties." That is not simply a matter of discretion. Rather, a declaration that produces no foreseeable consequences is so divorced from the administration of the law as not to involve a matter for the purposes of Ch III of the Constitution. And as it is not a matter for those purposes, it cannot engage the judicial power of the Commonwealth. See also: [NAME], 582 ([NAME], Dawson, [NAME]). Her [NAME]'s observations have been applied by this court many times: [COMPANY] v [NAME] in [COMPANY] (No 2) [2017] FCAFC 99, [3] ([NAME], [NAME] [NAME]); [COMPANY] v [COMPANY] (2002) 54 IPR 1, 15-16 [74] ([NAME], with whom [NAME] and [NAME] [NAME] agreed); [NAME] v [NAME] Commission [COMPANY] [2019] FCA 688, [380] ([NAME]); [NAME]. v Secretary, Department of Agriculture [2014] FCA 398, [24] ([NAME[NAME]); [COMPANY] v International Air Transport Association (No 2) [2009] FCA 646, [7] ([NAME]). 91 Over the last three decades, a strain of reasoning has developed (primarily in this court) that effectively distinguishes proceedings that are instituted to vindicate statutory rights or norms of [NAME] application from other proceedings. Cases of the former kind have apparently been thought more amenable to declaratory relief because relief of that nature serves (or, at least, might serve) to record the court's disapproval of conduct that contravenes a [NAME] right, or because it otherwise has (or might have) some wider educative effect. In [NAME] Commission v [COMPANY] (2004) 207 ALR 329, [NAME] observed (at 333 [21]): [I]t may be said that there is some utility in declaring contraventions of the [Trade Practices] Act to have occurred in order to define and publicise the type of conduct that constitutes a contravention of the Act and to set out clearly the foundation on which the consequential orders by way of injunction and pecuniary penalty, including those based on accessorial liability, are grounded… 92 The majority in [NAME] endorsed those obligations (at 298 [53]). In [NAME] v [NAME], [NAME], [NAME] ("[ADDRESS]") [2018] FCA 957 (Bromberg J), the court applied that reasoning (at [46]-[47]): The educative value of declarations in civil remedy proceedings under the [NAME] has been remarked on by the Court on many occasions: [NAME] v [COMPANY] (2008) 172 FCR 279 at [53]-[59] ([NAME]); [NAME] v Al [NAME] [2015] FCA 313 at [22] ([NAME]). The proposed declarations are appropriate to formally record the basis upon which the proceeding has been resolved. 93 In [NAME] Commission v [COMPANY] (in liq) [2005] FCA 1212 (Lander J), the court observed (at [150]): When regard is had to the underlying policy of the Act which is concerned with the [NAME] interest, it is appropriate for the Court to exercise its power to [NAME] declaratory relief to mark its disapproval of the contravening conduct. 94 In Re [NAME]; [NAME] Commission v McDougall (2006) 229 ALR 158 (Young J), this court noted (at 170 [55]): [COMPANY] v [NAME]-[NAME] (NSW) (1981) 148 CLR 121, esp at 125, the courts have recognised that the [NAME] of declaratory relief on the application of a statutory body such as ASIC may serve important law enforcement purposes: see Corporate Affairs Commission (NSW) v [COMPANY] (1988) NSWLR 596 at 603; [NAME] Commission v Sweeney [2001] NSWSC 114 at [30]-[31]; and [NAME] at 571. ASIC is charged with the administration and enforcement of the Act, and there will be many cases where it is in the [NAME] interest for the courts to make a declaration on ASIC's application that the Act has been contravened in specified respects. The making of such a declaration does not simply record the outcome of enforcement proceedings; it may also be an appropriate way of marking the court's disapproval of the contravening conduct: see [COMPANY] v [COMPANY] (No 2) (1993) 41 FCR 80 at 97-99, 106 and 110. 95 [NAME]'s approach was endorsed (if only summarily) by the High Court in [COMPANY] v [NAME] Commission (2014) 254 CLR 288, 298-299 [10], 312 [40] (French CJ, [NAME], [NAME] and [NAME]), 316 [59]-[60] ([NAME[NAME]). 96 In Director of [NAME] v [NAME] (2014) 146 ALD 75 (White J), this court went further, holding (at 92-93 [104]) that declaratory relief was appropriate because: …it is a formal record of the adjudication of the charged contravention, and thus comprises a formal and [NAME] declaration that the person engaged in the charged conduct. As such, it forms part of the community's denunciation and censure of the conduct. [NAME], the prospect that a declaration will be made has by itself a deterrent effect. [NAME], the making of a declaration operates as a vindication of the [NAME]'s actions. 97 In [NAME] v [NAME] (2017) 254 FCR 68 ([NAME], [NAME] and [NAME]), the court went further still (at 87 [93]): Declarations relating to contraventions of legislative provisions are likely to be appropriate where they serve to record the Court's disapproval of the contravening conduct, vindicate the [NAME]'s claim that the respondent contravened the provisions, assist the [NAME] to carry out its duties, and deter other persons from contravening the provisions… 98 Despite what would otherwise be my strong contrary inclination, I accept that the court is able to [NAME] declaratory relief as a means of marking its disapproval of conduct found to have been undertaken in breach of a statute. Alternatively, I accept that there might be circumstances where declaratory relief is appropriate to realise some broader educative or deterrent effect, or otherwise to vindicate or assist an applicant's actions. 99 In the circumstances of this case, though, I do not consider that an exercise of the court's discretion to [NAME] declaratory relief is warranted. The order that the parties seek amounts to little more than a record of the conclusion contained elsewhere in these reasons (above, [16]). That is not an appropriate deployment of the remedy: [NAME] v [NAME] (2001) 105 FCR 437, 440 [8] ([NAME], [NAME] [NAME]); [NAME] Commission v [COMPANY] (2012) 201 FCR 378, 388 [35] ([NAME], [NAME] [NAME]). There is no obvious reason why it might serve as a record of my decision any more formally than do these reasons; nor is there anything peculiar about the penalty relief that warrants some declaratory introduction or explanation. 100 More significantly, the court's disapproval of the [NAME] conduct—and the broader educative or deterrent effect, or vindication of the applicant's action, to which an expression of that disapproval in declaratory form might give effect—is, in each case, wholly apparent from (and given effect to by) the civil penalty that I have decided to impose. As to any educative or deterrent effect or value, there was nothing beyond bare assertion in any of the parties' submissions on the point and no evidence was led to demonstrate any effect or value that declaratory relief might, in fact, realise. I am not convinced that a declaration of the sort proposed would have any educative or deterrent effect—or indeed any relevant effect at all—beyond that of the penalty orders that I will make. Likewise, I do not accept that the applicant's actions will be vindicated any more than they will be by those same penalty orders. In light of the penalty that I will impose, declaratory relief would be "totally pointless". 101 Finally—and being conscious of the need identified by the High Court in [NAME] for primary [NAME] to pay "[c]lose attention to the form of proposed declarations" ([NAME], 91 [90] ([NAME] and [NAME] [NAME]))—the terms of the declaration that the parties propose by consent (above, [72]) are problematic. They record that the first respondent, "through its employees", "refus[ed]" [NAME] entry to "a meal room" at the [NAME] on Friday, 5 February 2016. There are at least three difficulties that arise from that phraseology. First (and again), the language used is conclusory: the declaration contains no analysis of how it was that the refusal was constituted; it simply states that there was one. [NAME], it says nothing about who effected it, other than that they were "employees". As it happens, those who effected the refusal were employees of the [NAME]; but it was the positions in which they were employed, rather than their status as employees per se, that gave the comments that they made on Friday, 5 February 2016 that character of refusal (above, [41]-[43]). As presently drafted, the proposed declaration might serve to suggest, wrongly, that any employee of an [NAME], simply by saying to [NAME], "you can't go in there", could be understood to have refused entry in the proscribed sense, even if he or she had no capacity to facilitate it. [NAME], it suggests that [NAME] and [NAME] were denied entry into a meal room. That is not what happened. They were invited (or, perhaps more accurately, directed) to conduct their discussions in a meal room. The complaint is that the [NAME] was not the meal room in which they wished to conduct their discussions; they wished to conduct them in another meal room (or other meal rooms). For at least those reasons, the declaration that the parties propose is a "bad precedent" of the kind against which the High Court counselled: [NAME], 91 [90] ([NAME] and [NAME] [NAME]). 102 It follows that no declaratory relief will be granted.

Conclusion 103 The court will impose upon the first respondent a pecuniary penalty in the sum of $15,000.00. The applicant seeks an order under s 546(3) of the [NAME] that that sum be paid to it. That is appropriate: [NAME] v [NAME] (2016) 239 FCR 336, 353-354 [101] ([NAME] and [NAME] [NAME]). The court will make such an order. In the absence of any submission about timing, the first respondent shall have 28 days to pay the penalty so ordered. Presumably conscious of the effect of s 570(1) of the [NAME], none of the parties seeks costs. There shall be no order as to costs. I certify that the preceding one hundred and three (103) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Snaden.

Associate: Dated: 11 July 2019

SCHEDULE OF PARTIES [NAME] Respondents [NAME] Respondent: [redacted]