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National Vocational Education and Training Regulator Bill 2010 [2011]

Part 6 Enforcement

Division 1 Offences and civil penalty provisions

Subdivision A Conduct by NVR registered training organisations

93   Offence—providing all or part of VET course outside scope of registration

                   An NVR registered training organisation commits an offence if:

                     (a)  the organisation provides all or part of a VET course; and

                     (b)  the VET course, or part of the VET course, is not within the organisation’s scope of registration.

Penalty:  120 penalty units.

94   Civil penalty—providing all or part of VET course outside scope of registration

                   An NVR registered training organisation contravenes this section if:

                     (a)  the organisation provides all or part of a VET course; and

                     (b)  the VET course, or part of the VET course, is not within the organisation’s scope of registration.

Civil penalty:          240 penalty units.

95   Offence—issuing VET qualification outside scope of registration

                   An NVR registered training organisation commits an offence if:

                     (a)  the organisation purports to issue a VET qualification; and

                     (b)  the qualification relates to a VET course that is not within the organisation’s scope of registration.

Penalty:  300 penalty units.

96   Civil penalty—issuing VET qualification outside scope of registration

                   An NVR registered training organisation contravenes this section if:

                     (a)  the organisation purports to issue a VET qualification; and

                     (b)  the qualification relates to a VET course that is not within the organisation’s scope of registration.

Civil penalty:          600 penalty units.

97   Offence—issuing VET statement of attainment outside scope of registration

                   An NVR registered training organisation commits an offence if:

                     (a)  the organisation purports to issue a VET statement of attainment; and

                     (b)  the statement relates to part of a VET course that is not within the organisation’s scope of registration.

Penalty:  300 penalty units.

98   Civil penalty—issuing VET statement of attainment outside scope of registration

                   An NVR registered training organisation contravenes this section if:

                     (a)  the organisation purports to issue a VET statement of attainment; and

                     (b)  the statement relates to part of a VET course that is not within the organisation’s scope of registration.

Civil penalty:          600 penalty units.

99   Offence—advertising all or part of VET course outside scope of registration

                   An NVR registered training organisation commits an offence if:

                     (a)  the organisation:

                              (i)  publishes or broadcasts an advertisement; or

                             (ii)  causes to be published or broadcast an advertisement; and

                     (b)  the advertisement makes a representation that the organisation provides, or will provide, all or part of a VET course; and

                     (c)  the VET course, or part of the VET course, is not within the organisation’s scope of registration.

Penalty:  120 penalty units.

100   Civil penalty—advertising all or part of VET course outside scope of registration

                   An NVR registered training organisation contravenes this section if:

                     (a)  the organisation:

                              (i)  publishes or broadcasts an advertisement; or

                             (ii)  causes to be published or broadcast an advertisement; and

                     (b)  the advertisement makes a representation that the organisation provides, or will provide, all or part of a VET course; and

                     (c)  the VET course, or part of the VET course, is not within the organisation’s scope of registration.

Civil penalty:          240 penalty units.

101   Offence—certain conduct prohibited while scope of registration suspended

             (1)  An NVR registered training organisation commits an offence if:

                     (a)  all or part of the organisation’s scope of registration is suspended; and

                     (b)  during the period of suspension, the National VET Regulator requires the organisation to do something; and

                     (c)  the organisation does not do that thing.

Penalty:  120 penalty units.

             (2)  An NVR registered training organisation commits an offence if:

                     (a)  all or part of the organisation’s scope of registration is suspended; and

                     (b)  during the period of suspension, the National VET Regulator requires the organisation not to do something; and

                     (c)  the organisation does that thing.

Penalty:  120 penalty units.

102   Civil penalty—certain conduct prohibited while scope of registration suspended

             (1)  An NVR registered training organisation contravenes this subsection if:

                     (a)  all or part of the organisation’s scope of registration is suspended; and

                     (b)  during the period of suspension, the National VET Regulator requires the organisation to do something; and

                     (c)  the organisation does not do that thing.

Civil penalty:          240 penalty units.

             (2)  An NVR registered training organisation contravenes this subsection if:

                     (a)  all or part of the organisation’s scope of registration is suspended; and

                     (b)  during the period of suspension, the National VET Regulator requires the organisation not to do something; and

                     (c)  the organisation does that thing.

Civil penalty:          240 penalty units.

103   Offence—issuing VET qualification without providing adequate assessment

             (1)  An NVR registered training organisation commits an offence if:

                     (a)  the organisation issues a VET qualification; and

                     (b)  the requirements of the qualification relate to assessment provided, or purportedly provided, by the organisation; and

                     (c)  the organisation did not provide, or arrange for another person to provide, the assessment necessary for a VET student to satisfy the requirements of the qualification.

Penalty:  120 penalty units.

             (2)  An NVR registered training organisation commits an offence if:

                     (a)  the organisation issues a VET qualification; and

                     (b)  the requirements of the qualification relate to assessment provided, or purportedly provided, by the organisation and another registered training organisation; and

                     (c)  in respect of the requirements of the qualification relating to the organisation, the organisation did not provide, or arrange for another person to provide, the assessment necessary for a VET student to satisfy the requirements of the qualification.

Penalty:  120 penalty units.

104   Civil penalty—issuing VET qualification without providing adequate assessment

             (1)  An NVR registered training organisation contravenes this subsection if:

                     (a)  the organisation issues a VET qualification; and

                     (b)  the requirements of the qualification relate to assessment provided, or purportedly provided, by the organisation; and

                     (c)  the organisation did not provide, or arrange for another person to provide, the assessment necessary for a VET student to satisfy the requirements of the qualification.

Civil penalty:          240 penalty units.

             (2)  An NVR registered training organisation contravenes this subsection if:

                     (a)  the organisation issues a VET qualification; and

                     (b)  the requirements of the qualification relate to assessment provided, or purportedly provided, by the organisation and another registered training organisation; and

                     (c)  in respect of the requirements of the qualification relating to the organisation, the organisation did not provide, or arrange for another person to provide, the assessment necessary for a VET student to satisfy the requirements of the qualification.

Civil penalty:          240 penalty units.

105   Offence—issuing VET statement of attainment without providing adequate assessment

             (1)  An NVR registered training organisation commits an offence if:

                     (a)  the organisation issues a VET statement of attainment; and

                     (b)  the units of competency or modules specified in the statement relate to assessment provided, or purportedly provided, by the organisation; and

                     (c)  the organisation did not provide, or arrange for another person to provide, the assessment necessary for a VET student to satisfy the requirements of those units of competency or modules.

Penalty:  120 penalty units.

             (2)  An NVR registered training organisation commits an offence if:

                     (a)  the organisation issues a VET statement of attainment; and

                     (b)  the units of competency or modules specified in the statement relate to assessment provided, or purportedly provided, by the organisation and another registered training organisation; and

                     (c)  in respect of the units of competency or modules relating to the organisation, the organisation did not provide, or arrange for another person to provide, the assessment necessary for a VET student to satisfy the requirements of those units of competency or modules.

Penalty:  120 penalty units.

106   Civil penalty—issuing VET statement of attainment without providing adequate assessment

             (1)  An NVR registered training organisation contravenes this subsection if:

                     (a)  the organisation issues a VET statement of attainment; and

                     (b)  the units of competency or modules specified in the statement relate to assessment provided, or purportedly provided, by the organisation; and

                     (c)  the organisation did not provide, or arrange for another person to provide, the assessment necessary for a VET student to satisfy the requirements of those units of competency or modules.

Civil penalty:          240 penalty units.

             (2)  An NVR registered training organisation contravenes this subsection if:

                     (a)  the organisation issues a VET statement of attainment; and

                     (b)  the units of competency or modules specified in the statement relate to assessment provided, or purportedly provided, by the organisation and another registered training organisation; and

                     (c)  in respect of the units of competency or modules relating to the organisation, the organisation did not provide, or arrange for another person to provide, the assessment necessary for a VET student to satisfy the requirements of those units of competency or modules.

Civil penalty:          240 penalty units.

107   Offence—issuing VET qualification without ensuring adequate assessment

                   An NVR registered training organisation commits an offence if:

                     (a)  the organisation issues, or purports to issue, a VET qualification to a VET student; and

                     (b)  the organisation did not satisfy itself that the VET student had successfully satisfied the requirements of the qualification.

Penalty:  120 penalty units.

108   Civil penalty—issuing VET qualification without ensuring adequate assessment

                   An NVR registered training organisation contravenes this section if:

                     (a)  the organisation issues, or purports to issue, a VET qualification to a VET student; and

                     (b)  the organisation did not satisfy itself that the VET student had successfully satisfied the requirements of the qualification.

Civil penalty:          240 penalty units.

109   Offence—issuing VET statement of attainment without ensuring adequate assessment

                   An NVR registered training organisation commits an offence if:

                     (a)  the organisation issues, or purports to issue, a VET statement of attainment to a VET student; and

                     (b)  the organisation did not satisfy itself that the VET student had successfully satisfied the requirements of the units of competency or modules specified in the statement.

Penalty:  120 penalty units.

110   Civil penalty—issuing VET statement of attainment without ensuring adequate assessment

                   An NVR registered training organisation contravenes this section if:

                     (a)  the organisation issues, or purports to issue, a VET statement of attainment to a VET student; and

                     (b)  the organisation did not satisfy itself that the VET student had successfully satisfied the requirements of the units of competency or modules specified in the statement.

Civil penalty:          240 penalty units.

111   Civil penalty—breach of condition of registration

             (1)  An NVR registered training organisation contravenes this subsection if:

                     (a)  a condition of the organisation’s registration, as mentioned in section 21, is of a kind prescribed by the regulations for the purposes of this paragraph; and

                     (b)  the organisation does an act or omits to do an act; and

                     (c)  the act or omission breaches the condition.

Civil penalty:          240 penalty units.

             (2)  An NVR registered training organisation contravenes this subsection if:

                     (a)  a condition of the organisation’s registration, as mentioned in section 21, is of a kind prescribed by the regulations for the purposes of this paragraph; and

                     (b)  the organisation does an act or omits to do an act; and

                     (c)  the act or omission breaches the condition.

Civil penalty:          120 penalty units.

112   Civil penalty—failure to return certificate of registration

             (1)  A former registered training organisation contravenes this subsection if:

                     (a)  the organisation’s registration has been cancelled under this Act; and

                     (b)  the organisation fails to return its certificate of registration to the National VET Regulator within 10 days of the day the cancellation takes effect.

Civil penalty:          120 penalty units.

             (2)  A former registered training organisation contravenes this subsection if:

                     (a)  the organisation’s registration has been withdrawn under this Act; and

                     (b)  the organisation fails to return its certificate of registration to the National VET Regulator within 10 days of the day the withdrawal takes effect.

Civil penalty:          120 penalty units.

113   Geographical jurisdiction

                   Section 15.4 of the Criminal Code (extended geographical jurisdiction—category D) applies to each offence against this Subdivision.

Subdivision B Conduct that is prohibited if not an NVR registered training organisation

114   Offence—falsely claiming to be an NVR registered training organisation

                   A person commits an offence if:

                     (a)  the person holds himself, herself or itself out as an NVR registered training organisation; and

                     (b)  the person is not an NVR registered training organisation.

Penalty:  300 penalty units.

115   Civil penalty—falsely claiming to be an NVR registered training organisation

                   A person contravenes this section if:

                     (a)  the person holds himself, herself or itself out as an NVR registered training organisation; and

                     (b)  the person is not an NVR registered training organisation.

Civil penalty:          600 penalty units.

116   Offence—providing, or offering to provide, all or part of a VET course without registration

             (1)  A person commits an offence if:

                     (a)  the person provides, or offers to provide, all or part of a VET course in a referring State or a Territory; and

                     (b)  the person is not an NVR registered training organisation.

Penalty:  300 penalty units.

             (2)  A person commits an offence if:

                     (a)  the person is a registered provider (other than a secondary school); and

                     (b)  the person provides, or offers to provide, all or part of a VET course in a non-referring State; and

                     (c)  the person is not an NVR registered training organisation.

Penalty:  300 penalty units.

Note:          Paragraph (a)— registered provider is defined, see section 3.

117   Civil penalty—providing, or offering to provide, all or part of a VET course without registration

             (1)  A person contravenes this subsection if:

                     (a)  the person provides, or offers to provide, all or part of a VET course in a referring State or a Territory; and

                     (b)  the person is not an NVR registered training organisation.

Civil penalty:          600 penalty units.

             (2)  A person contravenes this subsection if:

                     (a)  the person is a registered provider (other than a secondary school); and

                     (b)  the person provides, or offers to provide, all or part of a VET course in a non-referring State; and

                     (c)  the person is not an NVR registered training organisation.

Civil penalty:          600 penalty units.

Note:          Paragraph (a)— registered provider is defined, see section 3.

118   Offence—issuing VET qualification

                   A person commits an offence if:

                     (a)  the person purports to issue a VET qualification; and

                     (b)  the person is not a registered training organisation.

Penalty:  300 penalty units.

119   Civil penalty—issuing VET qualification

                   A person contravenes this section if:

                     (a)  the person purports to issue a VET qualification; and

                     (b)  the person is not a registered training organisation.

Civil penalty:          600 penalty units.

120   Offence—issuing VET statement of attainment

                   A person commits an offence if:

                     (a)  the person purports to issue a VET statement of attainment; and

                     (b)  the person is not a registered training organisation.

Penalty:  300 penalty units.

121   Civil penalty—issuing VET statement of attainment

                   A person contravenes this section if:

                     (a)  the person purports to issue a VET statement of attainment; and

                     (b)  the person is not a registered training organisation.

Civil penalty:          600 penalty units.

Subdivision C Other prohibited conduct

122   Offence—making false or misleading representation in advertisement

                   A person commits an offence if:

                     (a)  the person makes a representation that relates to:

                              (i)  all or part of a VET course; or

                             (ii)  a course that is held out as being a VET course; or

                            (iii)  part of a course that is held out as being part of a VET course; or

                            (iv)  a VET qualification; or

                             (v)  a qualification that is held out as being a VET qualification; and

                     (b)  the representation is made in connection with an advertisement; and

                     (c)  the representation is false or misleading in a material particular.

Penalty:  60 penalty units.

123   Civil penalty—making false or misleading representation in advertisement

                   A person contravenes this section if:

                     (a)  the person makes a representation that relates to:

                              (i)  all or part of a VET course; or

                             (ii)  a course that is held out as being a VET course; or

                            (iii)  part of a course that is held out as being part of a VET course; or

                            (iv)  a VET qualification; or

                             (v)  a qualification that is held out as being a VET qualification; and

                     (b)  the representation is made in connection with an advertisement; and

                     (c)  the representation is false or misleading in a material particular.

Civil penalty:          120 penalty units.

124   Offence—making false or misleading representation relating to VET course or VET qualification

                   A person commits an offence if:

                     (a)  the person makes a representation that relates to:

                              (i)  all or part of a VET course; or

                             (ii)  a course that is held out as being a VET course; or

                            (iii)  part of a course that is held out as being part of a VET course; or

                            (iv)  a VET qualification; or

                             (v)  a qualification that is held out as being a VET qualification; and

                     (b)  the representation is false or misleading in a material particular.

Penalty:  60 penalty units.

125   Civil penalty—making false or misleading representation relating to VET course or VET qualification

                   A person contravenes this section if:

                     (a)  the person makes a representation that relates to:

                              (i)  all or part of a VET course; or

                             (ii)  a course that is held out as being a VET course; or

                            (iii)  part of a course that is held out as being part of a VET course; or

                            (iv)  a VET qualification; or

                             (v)  a qualification that is held out as being a VET qualification; and

                     (b)  the representation is false or misleading in a material particular.

Civil penalty:          120 penalty units.

126   Offence—purporting to issue VET qualification

                   A person commits an offence if:

                     (a)  the person purports to issue a qualification as a VET qualification; and

                     (b)  the qualification is not a VET qualification.

Penalty:  300 penalty units.

127   Civil penalty—purporting to issue VET qualification

                   A person contravenes this section if:

                     (a)  the person purports to issue a qualification as a VET qualification; and

                     (b)  the qualification is not a VET qualification.

Civil penalty:          600 penalty units.

128   Offence—purporting to issue VET statement of attainment

                   A person commits an offence if:

                     (a)  the person purports to issue a statement as a VET statement of attainment; and

                     (b)  the statement is not a VET statement of attainment.

Penalty:  300 penalty units.

129   Civil penalty—purporting to issue VET statement of attainment

                   A person contravenes this section if:

                     (a)  the person purports to issue a statement as a VET statement of attainment; and

                     (b)  the statement is not a VET statement of attainment.

Civil penalty:          600 penalty units.

130   Civil penalty—breach of condition of accreditation

                   A person contravenes this section if:

                     (a)  a VET accredited course is accredited in respect of the person; and

                     (b)  a condition is imposed on the accreditation of the course; and

                     (c)  the person does an act or omits to do an act; and

                     (d)  the act or omission breaches the condition.

Civil penalty:          120 penalty units.

131   Civil penalty—using a bogus VET qualification or VET statement of attainment

             (1)  A natural person contravenes this subsection if:

                     (a)  the person obtains a qualification; and

                     (b)  the person knows, or a reasonable person in the circumstances could be expected to know, that the qualification is not a VET qualification; and

                     (c)  the person purports to hold the qualification as a VET qualification.

Civil penalty:          240 penalty units.

             (2)  A natural person contravenes this subsection if:

                     (a)  the person obtains a statement of attainment; and

                     (b)  the person knows, or a reasonable person in the circumstances could be expected to know, that the statement is not a VET statement of attainment; and

                     (c)  the person purports to hold the statement as a VET statement of attainment.

Civil penalty:          240 penalty units.

132   Geographical jurisdiction

                   To the extent that an offence against this Subdivision applies in relation to a VET qualification, section 15.4 of the Criminal Code (extended geographical jurisdiction—category D) applies to the offence.

Subdivision D Executive officers

133   Liability of executive officer of registered training organisation

             (1)  An executive officer of a registered training organisation commits an offence if:

                     (a)  the organisation commits an offence; and

                     (b)  the officer knew that the offence would be committed; and

                     (c)  the officer was in a position to influence the conduct of the organisation in relation to the commission of the offence; and

                     (d)  the officer failed to take all reasonable steps to prevent the commission of the offence.

             (2)  The maximum penalty for an offence against subsection (1) is one-fifth of the maximum penalty that could be imposed for the offence committed by the registered training organisation.

             (3)  An executive officer of a registered training organisation contravenes this subsection if:

                     (a)  the organisation contravenes a civil penalty provision; and

                     (b)  the officer knew that the contravention would occur; and

                     (c)  the officer was in a position to influence the conduct of the organisation in relation to the contravention; and

                     (d)  the officer failed to take all reasonable steps to prevent the contravention.

             (4)  The maximum civil penalty for a contravention of subsection (3) is one-tenth of the maximum penalty that could be imposed for the contravention of the civil penalty provision by the registered training organisation.

134   Reasonable steps to prevent offence or contravention

             (1)  For the purposes of section 133, in determining whether an executive officer of a registered training organisation failed to take all reasonable steps to prevent the commission of an offence, or the contravention of a civil penalty provision, by the organisation, a court is to have regard to:

                     (a)  what action (if any) the officer took towards ensuring that the organisation’s employees, agents and contractors had a reasonable knowledge and understanding of the requirements to comply with this Act and the regulations, in so far as those requirements affected the employees, agents or contractors concerned; and

                     (b)  what action (if any) the officer took when he or she became aware that the organisation was committing an offence against, or otherwise contravening, this Act or the regulations.

             (2)  This section does not limit the generality of section 133.

Subdivision E Partnerships

135   Liability of partners in partnerships

             (1)  An offence against Subdivision A, B or C of this Division that would otherwise be committed by a partnership is taken to have been committed by each partner in the partnership, at the time the offence is committed, who:

                     (a)  did the relevant act or made the relevant omission; or

                     (b)  aided, abetted, counselled or procured the relevant act or omission; or

                     (c)  was in any way knowingly concerned in, or party to, the relevant act or omission (whether directly or indirectly or whether by any act or omission of the partner).

             (2)  A civil penalty provision in Subdivision A, B or C of this Division that would otherwise be contravened by a partnership is taken to have been contravened by each partner in the partnership, at the time of the conduct constituting the contravention, who:

                     (a)  engaged in the conduct; or

                     (b)  aided, abetted, counselled or procured the conduct; or

                     (c)  was in any way knowingly concerned in, or party to, the conduct (whether directly or indirectly or whether by any act or omission of the partner).

             (3)  If a partner in a partnership commits an offence, the penalty that may be imposed on the partner must not exceed an amount equal to the maximum penalty that could be imposed on an individual for committing the same offence.

             (4)  If a partner in a partnership contravenes a civil penalty provision, the civil penalty that may be imposed on the partner must not exceed an amount equal to the maximum penalty that could be imposed on an individual for the same contravention.

             (5)  For the purposes of subsections (1) and (2), to establish that a partnership engaged in particular conduct, it is sufficient to show that the conduct was engaged in by a partner:

                     (a)  in the ordinary course of the business of the partnership; or

                     (b)  within the scope of the actual or apparent authority of the partner.

             (6)  For the purposes of subsection (1), to establish that a partnership had a particular state of mind when it engaged in particular conduct, it is sufficient to show that a relevant partner had the relevant state of mind.

Note:          For other provisions relating to partnerships, see Division 2 of Part 12.

Subdivision F Unincorporated associations

136   Liability of members of unincorporated associations

             (1)  An offence against Subdivision A, B or C of this Division that would otherwise be committed by an unincorporated association is taken to have been committed by each member of the association’s committee of management, at the time the offence is committed, who:

                     (a)  did the relevant act or made the relevant omission; or

                     (b)  aided, abetted, counselled or procured the relevant act or omission; or

                     (c)  was in any way knowingly concerned in, or party to, the relevant act or omission (whether directly or indirectly or whether by any act or omission of the member).

             (2)  A civil penalty provision of Subdivision A, B or C of this Division that would otherwise be contravened by an unincorporated association is taken to have been contravened by each member of the association’s committee of management, at the time of the conduct constituting the contravention, who:

                     (a)  engaged in the conduct; or

                     (b)  aided, abetted, counselled or procured the conduct; or

                     (c)  was in any way knowingly concerned in, or party to, the conduct (whether directly or indirectly or whether by any act or omission of the member).

             (3)  If a member of an unincorporated association’s committee of management commits an offence, the penalty that may be imposed on the member must not exceed an amount equal to the maximum penalty that could be imposed on an individual for committing the same offence.

             (4)  If a member of an unincorporated association’s committee of management contravenes a civil penalty provision, the civil penalty that may be imposed on the member must not exceed an amount equal to the maximum penalty that could be imposed on an individual for the same contravention.

             (5)  For the purposes of subsection (1), to establish that an unincorporated association had a particular state of mind when it engaged in particular conduct, it is sufficient to show that a relevant member of the association’s committee of management had the relevant state of mind.

Note:          For other provisions relating to unincorporated associations, see Division 3 of Part 12.

Division 2 Civil penalty proceedings

Subdivision A Obtaining an order for a civil penalty

137   Federal Court or Federal Magistrates Court may impose pecuniary penalty

Application for order

             (1)  Within 6 years of a person (the wrongdoer ) contravening a civil penalty provision, the National VET Regulator may apply on behalf of the Commonwealth to the Federal Court or the Federal Magistrates Court for an order that the wrongdoer pay the Commonwealth a pecuniary penalty.

Court may order wrongdoer to pay pecuniary penalty

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

Determining amount of pecuniary penalty

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

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

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

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

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

Civil evidence and procedure rules apply

             (4)  The Federal Court or the Federal Magistrates Court must apply the rules of evidence and procedure for civil matters when hearing and determining an application for an order under this section.

Note:          The standard of proof in civil proceedings is the balance of probabilities, see section 140 of the Evidence Act 1995 .

Conduct contravening 2 or more provisions

             (5)  If conduct contravenes 2 or more civil penalty provisions, proceedings may be instituted under this Act against a person for the contravention of any one or more of those provisions. However, the person is not liable to more than one pecuniary penalty for the same conduct.

138   Involvement in contravening civil penalty provision

             (1)  A person must not:

                     (a)  aid, abet, counsel or procure a contravention of a civil penalty provision; or

                     (b)  induce (by threats, promises or otherwise) a contravention of a civil penalty provision; or

                     (c)  conspire to contravene a civil penalty provision.

             (2)  This Act applies to a person who contravenes subsection (1) in relation to a civil penalty provision as if the person had contravened the provision.

139   Recovery of a pecuniary penalty

                   If the Federal Court or the Federal Magistrates Court orders a person to pay a pecuniary penalty, the Commonwealth may enforce the order as if it were a judgment of the court.

140   Gathering information for application for pecuniary penalty

             (1)  This section applies if it appears to the National VET Regulator that a person (the wrongdoer ) may have contravened a civil penalty provision.

             (2)  If the National VET Regulator, on reasonable grounds, suspects that a person other than the wrongdoer can give information relevant to an application for a pecuniary penalty order relating to the contravention, whether or not such an application has been made, the Regulator may, by writing given to the person, require the person to give all reasonable assistance in connection with such an application.

             (3)  Subsection (2) does not apply in relation to a duly qualified lawyer who is acting, or has acted, for the wrongdoer.

             (4)  If a person fails to give assistance as required under subsection (2), the Federal Court or the Federal Magistrates Court may, on the application of the National VET Regulator, order the person to comply with the requirement.

             (5)  A person commits an offence if:

                     (a)  under subsection (2), the National VET Regulator requires the person to give all reasonable assistance in connection with an application for a pecuniary penalty order for a contravention of a civil penalty provision; and

                     (b)  the person fails to give the assistance.

Penalty:  30 penalty units.

             (6)  A requirement made under subsection (2) is not a legislative instrument.

141   Continuing and multiple contraventions of civil penalty provisions

             (1)  If, under this Act, an act or thing is required to be done within a particular period or before a particular time, then, unless the contrary intention appears, the obligation to do that act or thing continues, even if the period has expired or the time has passed, until the act or thing is done.

             (2)  If a refusal or failure to comply with a requirement described in subsection (1) contravenes a civil penalty provision, a person contravenes the provision on each day during which the person refuses or fails to comply with that requirement, including the day the Federal Court or the Federal Magistrates Court orders the person to pay a pecuniary penalty for any of the contraventions or any later day.

             (3)  Proceedings against a person for any number of orders to pay pecuniary penalties for contraventions of a civil penalty provision that are founded on the same facts, or form, or are part of, a series of contraventions of the same or a similar character, may be joined.

             (4)  The Federal Court or the Federal Magistrates Court may make a single order to pay a pecuniary penalty for all the contraventions described in subsection (3), but the penalty must not exceed the sum of the maximum penalties that could be ordered if a separate penalty were ordered for each of the contraventions.

             (5)  Subsection (1) does not affect the application of section 4K of the Crimes Act 1914 in relation to any law of the Commonwealth.

Subdivision B Civil penalty proceedings and criminal proceedings

142   Civil proceedings after criminal proceedings

                   The Federal Court or the Federal Magistrates Court must not order a person to pay a pecuniary penalty for contravening a civil penalty provision if the person has been convicted of an offence against this Act constituted by conduct substantially the same as the conduct constituting the contravention.

143   Criminal proceedings during civil proceedings

             (1)  Proceedings for an order for a person to pay a pecuniary penalty for contravening a civil penalty provision are stayed if:

                     (a)  criminal proceedings are started, or have already been started, against the person for an offence against this Act; and

                     (b)  the offence is constituted by conduct substantially the same as the conduct alleged to constitute the contravention.

             (2)  The proceedings for the order may be resumed if the person is not convicted of the offence. Otherwise, the proceedings for the order are dismissed when the criminal proceedings (including any appeals) for the offence against this Act end with the conviction of the person of the offence.

144   Criminal proceedings after civil proceedings

                   Criminal proceedings may not be started against a person for conduct substantially the same as conduct contravening a civil penalty provision if the person has been ordered to pay a pecuniary penalty under this Act for the contravention.

145   Evidence given in proceedings for civil penalty not admissible in criminal proceedings

                   Evidence of information given or evidence of production of documents by an individual is not admissible in criminal proceedings against the individual for an offence if:

                     (a)  the individual previously gave the information or produced the documents in proceedings against the individual for a pecuniary penalty order for a contravention of a civil penalty provision whether or not the order was made; and

                     (b)  the conduct alleged to constitute the offence is substantially the same as the conduct that was claimed to constitute the contravention.

However, this does not apply to a criminal proceeding in respect of the falsity of the evidence given by the individual in the proceedings for the pecuniary penalty order.



 

Division 3 Enforceable undertakings

146   Acceptance of undertakings

             (1)  The National VET Regulator may accept a written undertaking given by a person if the Regulator considers that the person has committed an offence against this Act or contravened a civil penalty provision.

             (2)  The person may withdraw or vary the undertaking at any time, but only with the consent of the National VET Regulator.

             (3)  The National VET Regulator may, by written notice given to the person, cancel the undertaking.

             (4)  The National VET Regulator may publish the undertaking on the National Register.

147   Enforcement of undertakings

             (1)  If the National VET Regulator considers that a person who gave an undertaking under section 146 has breached any of its terms, the Regulator may apply to:

                     (a)  the Federal Court; or

                     (b)  the Federal Magistrates Court;

for an order under subsection (2).

             (2)  If a court mentioned in subsection (1) is satisfied that the person has breached a term of the undertaking, the court may make one or more of the following orders:

                     (a)  an order directing the person to comply with that term of the undertaking;

                     (b)  an order directing the person to pay to the Commonwealth an amount up to the amount of any financial benefit that the person has obtained directly or indirectly and that is reasonably attributable to the breach;

                     (c)  any order that the court considers appropriate directing the person to compensate any other person who has suffered loss or damage as a result of the breach;

                     (d)  any other order that the court considers appropriate.

Division 4 Infringement notices

148   Infringement notices in respect of offences

             (1)  The regulations may provide for a person who is alleged to have committed an offence against this Act to pay a penalty to the Commonwealth as an alternative to prosecution.

             (2)  The penalty must not exceed one-fifth of the maximum penalty prescribed for that offence.

149   Infringement notices in respect of civil penalty provisions

             (1)  The regulations may provide for a person who is alleged to have contravened a civil penalty provision to pay to the Commonwealth, as an alternative to civil penalty proceedings against the person, a specified penalty.

             (2)  The penalty must not exceed one-tenth of the maximum penalty prescribed for contravening that provision.



 

Division 5 Injunctions

150   Injunctions

Restraining injunctions

             (1)  If a person has engaged, is engaging or is proposing to engage, in any conduct that would be in contravention of this Act, the Federal Court or the Federal Magistrates Court may, on the application of the National VET Regulator, grant an injunction:

                     (a)  restraining the person from engaging in the conduct; and

                     (b)  if, in the court’s opinion, it is desirable to do so—requiring the person to do something.

Performance injunctions

             (2)  If:

                     (a)  a person has refused or failed, or is refusing or failing, or is proposing to refuse or fail, to do an act or thing; and

                     (b)  the refusal or failure was, is or would be in contravention of this Act;

the Federal Court or the Federal Magistrates Court may, on the application of the National VET Regulator, grant an injunction requiring the person to do that act or thing.

151   Interim injunctions

                   If an application is made to the Federal Court or the Federal Magistrates Court for an injunction under section 150, the court may, before considering the application, grant an interim injunction restraining a person from engaging in conduct of a kind mentioned in that section.

152   Discharge etc. of injunctions

                   The Federal Court or the Federal Magistrates Court may discharge or vary an injunction granted under this Division.

153   Certain limits on granting injunctions not to apply

Restraining injunctions

             (1)  The power of the Federal Court or the Federal Magistrates Court under this Division to grant an injunction restraining a person from engaging in conduct of a particular kind may be exercised:

                     (a)  if the court is satisfied that the person has engaged in conduct of that kind—whether or not it appears to the court that the person intends to engage again, or to continue to engage, in conduct of that kind; or

                     (b)  if it appears to the court that, if an injunction is not granted, it is likely that the person will engage in conduct of that kind—whether or not the person has previously engaged in conduct of that kind and whether or not there is an imminent danger of substantial damage to any other person if the first-mentioned person engages in conduct of that kind.

Performance injunctions

             (2)  The power of the Federal Court or the Federal Magistrates Court to grant an injunction requiring a person do an act or thing may be exercised:

                     (a)  if the court is satisfied that the person has refused or failed to do that act or thing—whether or not it appears to the court that the person intends to refuse or fail again, or to continue to refuse or fail, to do that act or thing; or

                     (b)  if it appears to the court that, if an injunction is not granted, it is likely that the person will refuse or fail to do that act or thing—whether or not the person has previously refused or failed to do that act or thing and whether or not there is an imminent danger of substantial damage to any other person if the first-mentioned person refuses or fails to do that act or thing.

154   Other powers of the Federal Court or Federal Magistrates Court unaffected

                   The powers conferred on the Federal Court or the Federal Magistrates Court under this Division are in addition to, and not instead of, any other powers of the court, whether conferred by this Act or otherwise.