FEDERAL COURT OF AUSTRALIA
Commonwealth of Australia v Restar [2016] FCA 657
ORDERS
NSD 163 of 2016 BETWEEN: THE COMMONWEALTH OF AUSTRALIA
Applicant
AND: SYNTHIA DEE M. RESTAR
Respondent
JUDGE:
FLICK J
DATE OF ORDER:
3 JUNE 2016
THE COURT DECLARES:
1.In the period January 2012 to April 2014, the Respondent contravened s 131 of the National Vocational Education and Training Regulator Act 2011 (Cth) on 14 occasions because she fabricated…
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- AGLC
- Commonwealth v Restar [2016] FCA 657
- Case
- [2016] FCA 657
- Decision Date
CaseChat Overview and Summary
The case of Commonwealth v Restar involved the Commonwealth, represented by the Clean Energy Regulator, and Restar, the respondent. The dispute centred around Restar's fabrication of certificates of vocational qualifications, which led to contraventions of the civil penalty provisions under the National Vocational Education and Training Regulator Act 2011 (Cth). The matter was heard and determined by the Federal Court of Australia. The central legal issues that the court had to address involved the appropriate penalty for Restar's actions and the appropriateness of the agreed penalty figure in light of the statutory objectives and the circumstances of the case. The court was also required to consider the principles guiding the imposition of penalties in cases where an agreed penalty is proposed.
The court examined the agreed statement of facts, which detailed Restar's actions over a specified period, including the fabrication of qualifications and the provision of these false credentials to her employer and a Lead Compliance Auditor. The court acknowledged the Regulator's role in proposing the penalty, noting that while the Regulator's submissions were to be respected, the ultimate responsibility for determining the appropriate penalty lay with the court. The court deliberated on the permissible range of penalties, considering the objectives of deterrence and the importance of upholding the integrity of the vocational education and training sector. After careful consideration, the court concluded that a penalty of $120,000 was appropriate, recognising it as being at the upper end of the range proposed by the Regulator. The court also made declarations regarding the contraventions and ordered Restar to pay the penalty and the costs of the proceeding.
The Federal Court's decision underscored the importance of deterrence and the integrity of the vocational education and training sector in determining penalties for such contraventions. The court's reasoning highlighted the balance between the Regulator's expert submissions and the court's independent assessment of the appropriate penalty, ensuring that the penalty imposed aligned with the statutory objectives and the circumstances of the case. The court's final orders included a pecuniary penalty of $120,000 and a direction for Restar to pay the costs of the proceeding.
The court examined the agreed statement of facts, which detailed Restar's actions over a specified period, including the fabrication of qualifications and the provision of these false credentials to her employer and a Lead Compliance Auditor. The court acknowledged the Regulator's role in proposing the penalty, noting that while the Regulator's submissions were to be respected, the ultimate responsibility for determining the appropriate penalty lay with the court. The court deliberated on the permissible range of penalties, considering the objectives of deterrence and the importance of upholding the integrity of the vocational education and training sector. After careful consideration, the court concluded that a penalty of $120,000 was appropriate, recognising it as being at the upper end of the range proposed by the Regulator. The court also made declarations regarding the contraventions and ordered Restar to pay the penalty and the costs of the proceeding.
The Federal Court's decision underscored the importance of deterrence and the integrity of the vocational education and training sector in determining penalties for such contraventions. The court's reasoning highlighted the balance between the Regulator's expert submissions and the court's independent assessment of the appropriate penalty, ensuring that the penalty imposed aligned with the statutory objectives and the circumstances of the case. The court's final orders included a pecuniary penalty of $120,000 and a direction for Restar to pay the costs of the proceeding.
Orders
Orders of the court
1. The Respondent is to pay to the Commonwealth a pecuniary penalty of $120,000 pursuant to s 137 of the National Vocational Education and Training Regulator Act 2011 (Cth) for each of the contraventions described in Declarations 1 and 2 above.
2. The Respondent is to pay the costs of the Applicant.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
In Ministry for Industry, Tourism and Resources v Mobil Oil Australia Pty Ltd [2004] FCAFC 72, (2004) ATPR 41–993 (for example) a pecuniary penalty was sought to be imposed upon Mobil for a contravention of s 10 of the Petroleum Retail Marketing Sites Act 1980 (Cth). The parties had prepared an Agreed Statement of Facts. The parties had also reached agreement as to the quantification of a penalty in the sum of $844,500. When focusing attention upon the agreement of a penalty, Branson, Sackville and Gyles JJ referred to the earlier decision of the Full Court in NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission (1996) 71 FCR 285 and continued:[51] The following propositions emerge from the reasoning in NW Frozen Foods:(i)It is the responsibility of the Court to determine the appropriate penalty to be imposed under s 76 of the TP Act in respect of a contravention of the TP Act.(ii)Determining the quantum of a penalty is not an exact science. Within a permissible range, the courts have acknowledged that a particular figure cannot necessarily be said to be more appropriate than another.(iii)There is a public interest in promoting settlement of litigation, particularly where it is likely to be lengthy. Accordingly, when the regulator and contravenor have reached agreement, they may present to the Court a statement of facts and opinions as to the effect of those facts, together with joint submissions as to the appropriate penalty to be imposed.(iv)The view of the regulator, as a specialist body, is a relevant, but not determinative consideration on the question of penalty. In particular, the views of the regulator on matters within its expertise (such as the ACCC’s views as to the deterrent effect of a proposed penalty in a given market) will usually be given greater weight than its views on more “subjective” matters.(v)In determining whether the proposed penalty is appropriate, the Court examines all the circumstances of the case. Where the parties have put forward an agreed statement of facts, the Court may act on that statement if it is appropriate to do so.(vi)Where the parties have jointly proposed a penalty, it will not be useful to investigate whether the Court would have arrived at that precise figure in the absence of agreement. The question is whether that figure is, in the Court’s view, appropriate in the circumstances of the case. In answering that question, the Court will not reject the agreed figure simply because it would have been disposed to select some other figure. It will be appropriate if within the permissible range.The Full Court there went on to express a number of further principles, including the following:[53] First, the rationale for giving weight to a joint submission on penalty is said by the Court to be the savings in resources for the regulator and the Court, as well as the likelihood that a negotiated resolution will include measures designed to promote competition. As Jeremy Thorpe points out, a related advantage is that the savings in resources can be used by the regulator to increase the likelihood that other contraveners will be detected and brought before the courts. This has the effect of increasing deterrence which is one of the principal justifications, if not the only justification for imposing civil penalties under the TP Act or the Sites Act: J Thorpe, “Determining the Appropriate Role for Charge Bargaining in Pt IV of the Trade Practices Act” (1996) 4 Comp & Cons LJ 69, at 72–74. Of course the arguments in favour of negotiated settlements have to take account of the fact that it is the Court that bears the ultimate responsibility for determining the appropriate penalty.[54] Secondly, the sixth proposition drawn from the reasoning in NW Frozen Foods does not mean, in our opinion, that the Court must commence its reasoning with the proposed penalty and limit itself to considering whether that penalty is within the permissible range. A Court may wish to take that approach. However, it is open to a Court, consistently with the reasoning in NW Frozen Foods, first to address the appropriate range of penalties independently of the parties’ proposed figure and then, having made that judgment, determine whether the prepared penalty falls within the range.The quantification of the penalty to be imposed – the facts of the present case
Evidence
Evidence Before The Court
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Decision
Reasons for decision
As recognised in High Adventure, the prospect that a penalty may render an offender insolvent “must not prevent the Court from doing its duty for otherwise the important object of general deterrence will be undermined”. An inability to pay, although a relevant consideration, “is a factor … of limited relevance”: Registrar of Aboriginal and Torres Strait Islander Corporations v Matcham (No 2) [2014] FCA 27 at [250], (2014) 97 ACSR 412 at 443 per Jacobson J. See also: Clean Energy Regulator v MT Solar Pty Ltd [2013] FCA 205 at [147] to [149].CONCLUSIONS It is concluded that a penalty of $120,000 should be imposed. That, it is recognised, is at the very upper end of the range proposed by the Regulator. Indeed, the prospect of an even greater penalty has been considered – but rejected. The submissions of the Regulator, being the entity most closely connected with the industry and the best placed to form a view as to the penalty that will act as a deterrent, are submissions which deserve respect. Although a greater penalty has been considered, it has ultimately been independently concluded – on balance – that in all the circumstances of the present case a penalty of $120,000 is appropriate. The Court should also make declarations as proposed. Costs should follow the event. THE COURT DECLARES: 1.In the period January 2012 to April 2014, the Respondent contravened s 131 of the National Vocational Education and Training Regulator Act 2011 (Cth) on 14 occasions because she fabricated 11 bogus vocational education and training (“VET”) qualifications in her own name concerning Aged Care, Disability and Business Management and:(a)provided each of the 11 bogus VET qualifications to her employer and purported to hold each of the 11 bogus VET qualifications as a legitimate VET qualification; and(b)provided 3 of the bogus VET qualifications to a Lead Compliance Auditor from the Australian Skills Quality Authority in support of her application to be registered as a Registered Training Organisation and purported to hold each of the 3 bogus VET qualifications as a legitimate VET qualification.2.In January 2013, the Respondent contravened s 125 of the National Vocational Education and Training Regulator Act 2011 (Cth) on 2 occasions because she fabricated 2 qualifications concerning Aged Care in the name of Mr Rehmani and falsely represented to Mr Rehmani that the 2 qualifications were legitimate VET qualifications issued to him by a Registered Training Organisation.AND THE COURT ORDERS THAT:1.The Respondent is to pay to the Commonwealth a pecuniary penalty of $120,000 pursuant to s 137 of the National Vocational Education and Training Regulator Act 2011 (Cth) for each of the contraventions described in Declarations 1 and 2 above.2.The Respondent is to pay the costs of the Applicant.
Ratio Decidendi
Legal Principle Established
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