Commonwealth of Australia v King

FEDERAL COURT OF AUSTRALIA

Commonwealth of Australia v King [2019] FCA 787

File number:

NSD 687 of 2018

Judge:

PERRAM J

Date of judgment:

30 May 2019

Catchwords:

EDUCATION – penalties – where multiple contraventions of ss 117, 125 and 129 of National Vocational Education and Training Regulator Act 2011 (Cth) – where respondent provided, or offered to provide, vocational education and training (‘VET’) courses, and purported to issue VET statements of attainment without registration – where respondent admitted contraventions and cooperated in production of statement of agreed facts – where agreed submission on appropriate range of penalties – consideration of relevant penalty principles

Legislation:

Crimes Act 1914 (Cth) s 4F

National Vocational Education and Training Regulator Act 2011 (Cth) ss 3, 5, 117, 125, 129, 137, 141

Vocational Education and Training (Commonwealth Powers) Act 2011 (Tas) s 5

Cases cited:

Australian Competition and Consumer Commission v Reckitt Benckiser (Australia) Pty Ltd [2016] FCAFC 181; 340 ALR 25

Clean Energy Regulator v MT Solar Pty Ltd [2013] FCA 205

Commonwealth v Director, Fair Work Building Industry Inspectorate [2015] HCA 46; 258 CLR 482

Commonwealth v Jones [2018] FCA 1008

Commonwealth v Reid [2018] FCA 579

Commonwealth v Restar [2016] FCA 657

Construction, Forestry, Mining and Energy Union v Cahill [2010] FCAFC 39; 269 ALR 1

Markarian v The Queen [2005] HCA 25; 228 CLR 357

Date of hearing:

13 December 2018

Date of last submissions:

13 December 2018

Registry:

New South Wales

Division:

General Division

National Practice Area:

Administrative and Constitutional Law and Human Rights

Category:

Catchwords

Number of paragraphs:

24

Counsel for the Applicant:

Mr P Melican

Solicitor for the Applicant:

Australian Government Solicitor

Counsel for the Respondent:

Mr J Kitto

Solicitor for the Respondent:

James C Kitto Barrister & Solicitor

ORDERS

NSD 687 of 2018

BETWEEN:

THE COMMONWEALTH OF AUSTRALIA

Applicant

AND:

LEON VERE KING

Respondent

JUDGE:	PERRAM J
DATE OF ORDER:	30 MAY 2019

THE COURT ORDERS THAT:

1.The Commonwealth provide a short minute of order giving effect to these reasons within 21 days.

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

REASONS FOR JUDGMENT

PERRAM J:

Introduction

1. The applicant, the Commonwealth, has sued the respondent, Mr King, for the imposition of a civil penalty under the National Vocational Education and Training Regulator Act 2011 (Cth) (‘the Act’). Prior to the trial of the matter the parties reached an accommodation. They have agreed that a civil penalty of between $95,025 and $137,813 should be imposed upon Mr King and that certain declarations about his contravening conduct should be made. They also agree that Mr King should pay the Commonwealth’s costs of the proceedings which they agree should be fixed at $75,000. For the reasons which follow, I will impose a civil penalty of $125,000 and make the other orders which are agreed.

   Background and contraventions

2. The Act regulates the provision of vocational education and training (‘VET’). It does so by means, inter alia, of…