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ASQA Infringement Officers Set to Enforce Compliance

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Red card 300The decision to issue an infringement notice is one of a range of enforcement actions ASQA can take in order to enforce compliance with the National Vocational Education and Training Regulator Act 2011. An ASQA infringement officer may issue an infringement notice if they reasonably believe that a person has contravened a relevant civil penalty provision of the NVR Act.

For the 2014-2015 financial year activity, the National Regulator has recently reported more than 80 decisions to cancel or suspend registrations, 50 rejected applications to register or re-register as an RTO, and 17 administrative sanctions.

ASQA is determined to use infringement notices (a ticket issued on the spot) to manage RTOs continuous compliance with the VET Quality Framework.

What happens if you receive an infringement notice?
You have 28 days from the day after the notice issued date in order to pay the infringement penalty. You can apply for an extension of time in which to pay the infringement penalty provided you do so within 28 days of the day after the 'notice issued' date.

If the penalty is paid by the payment due date your liability will be discharged and no criminal or civil penalty proceedings will be brought against you in relation to the alleged contravention.

If you don't pay within 28 days, then:

  • Your liability for the alleged contravention is not discharged.
  • Proceedings seeking a civil penalty order may be brought against you for the alleged contravention.
  • If you are found by a court to have committed the alleged contravention, you may be liable for the maximum penalty specified (plus court costs).

Can I make an appeal against an infringement notice?
You may apply in writing within 28 days of the day after notice is given to you for withdrawal of an infringement notice.
Your application must:

  • state that you request a withdrawal of the infringement notice, and
  • detail the grounds upon which you base your request for withdrawal.

ASQA will notify you in writing if the notice is withdrawn. If the notice is withdrawn, proceedings seeking a civil penalty order may still be brought against you in relation to the alleged contravention.

If ASQA withdraws the notice and you have already paid the amount stated in the notice, you will be refunded an amount equal to the amount paid.
If ASQA makes a decision not to withdraw the notice, you will also be notified of this decision in writing. The time for payment is extended to 28 days, starting from the day after notice of the refusal is given.

How are the penalties calculated?
Section 4AA of the Crimes Act 1914 sets the monetary amount of a penalty unit. This amount is $180.00 (amount valid on September 2015). If you do not pay the infringement notice on time and you are found by a court to have committed the alleged contravention, you may be liable for the maximum penalty prescribed for contravening that provision. (See below).

ASQA is able to issue infringement notices for NVR Act civil penalty provisions that fall within six broad categories:

  1. Conduct that is outside the scope of an RTO's registration
  2. Conduct relating to a failure to return a certificate of registration
  3. Conduct relating to non-RTOs
  4. Conduct that is false or misleading
  5. Conduct that relates to specifying the issuer of a qualification or statement of attainment in advertising
  6. Conduct that relates to purportedly registered courses.

1- Conduct that is outside the scope of registration

An infringement notice may be issued to an RTO for the following contraventions:

Infringement Penalty
s.94 Providing all or part of VET course outside scope of registration 
  • the VET course is provided (in whole or in part), and 
  • the VET course or part of the VET course is not within the RTO's scope of registration.
  • Maximum infringement notice penalty amount $4320 
  • Maximum court penalty amount $43,200 

- Maximum infringement notice penalty amount $4,320.

- Maximum court penalty amount $43,200

s.96 Issuing VET qualification outside scope of registration 
  • an RTO purports to issue a VET qualification, and 
  • the qualification relates to a VET course that is not within the RTO's scope of registration.
  • Maximum infringement notice penalty amount $10,800 
  • Maximum court penalty amount $108,000 

- Maximum infringement notice penalty amount $10,800

- Maximum court penalty amount $108,000

s.98 Issuing VET statement of attainment outside scope of registration 
  • an RTO purports to issue a VET statement of attainment, and 
  • the statement of attainment relates to part of a VET course that is not within the RTO's scope of registration.
  • Maximum infringement notice penalty amount $10,800 
  • Maximum court penalty amount $108,000 

- Maximum infringement notice penalty amount $10,800.

- Maximum court penalty amount $108,000

s.100 Advertising all or part of a VET course outside scope of registration 
  • an RTO itself publishes or broadcasts an advertisement or causes an advertisement to be published or broadcast, and 
  • the advertisement makes representation that the RTO does or will provide all or part of a VET course, and 
  • the VET course or part of the VET course is not within the RTO's scope 
  • Maximum infringement notice penalty amount $4320 
  • Maximum court penalty amount $43,200 

- Maximum infringement notice penalty amount $10,800

- Maximum court penalty amount $108,000

2- Conduct relating to failure to return certificate of registration

This type of infringement notice may be issued to

  • a RTO that has not had its registration renewed, or
  • a former RTO whose registration has been cancelled under section 39 of the NVR Act.
Infringement Penalty
s.112 Failure to return certificate of registration 
  • an organisation that is no longer registered fails to return its certificate of registration to ASQA within 10 days of the date of effect of cancellation/withdrawal of registration. 
  • Maximum infringement notice penalty amount $2160 
  • Provision penalty units Maximum court penalty amount $21,600 

- Maximum infringement notice penalty amount $2,160.

- Maximum court penalty amount $21,600

3 - Conduct relating to non-RTOs

This type of infringement notice may be issued to:

  • a ‘person’ (natural or corporate) that holds him/her/itself out as an RTO
Infringement Penalty
s.115 Falsely claiming to be a NVR RTO 
  • a person holds him/her/itself out to be an RTO, and 
  • the person is not an RTO.
  • Maximum infringement notice penalty amount $10,800 
  • Maximum court penalty amount $108,000

- Maximum infringement notice penalty amount $10,800.

- Maximum court penalty amount $108,000

s.117 Providing, or offering to provide, all or part of a VET course without registration 

1. 

  • a person provides or offers to provide all or part of a VET course in a referring State/Territory, and 
  • the person is not an RTO. 

Or 2. 

  • a person is a registered provider (i.e. under ESOS Act) other than a secondary school, and 
  • the person provides or offers to provide all or part of a VET course in a non-referring State, and 
  • the person is not an RTO.
  • Maximum infringement notice penalty amount $10,800 
  • Maximum court penalty amount $108,000 

- Maximum infringement notice penalty amount $10,800

- Maximum court penalty amount $108,000

s.119 Issuing a VET qualification 
  • a person purports to issue a VET qualification, and 
  • the person is not an RTO.
  • Maximum infringement notice penalty amount $10,800 
  • Maximum court penalty amount $108,000 

- Maximum infringement notice penalty amount $10,800.

- Maximum court penalty amount $108,000

s.121 Issuing a VET statement of attainment 
  • a person purports to issue a VET statement of attainment, and 
  • the person is not an RTO. 
  • Maximum infringement notice penalty amount $10,800 
  • Maximum court penalty amount $108,000

- Maximum infringement notice penalty amount $10,800

- Maximum court penalty amount $108,000

4 - Conduct that is false or misleading

This type of infringement notice may be issued to a ‘person’ (natural or corporate). This type of infringement notice can be issued to either an RTO, or a non-RTO:

Infringement Penalty
s.123 Making false or misleading representation in advertisement 
  • a person makes a representation that relates to: 
    • all or part of a VET course, or 
    • a course that is held out to be a VET course, or 
    • part of a course that is held out as being part of a VET course, or 
    • a VET qualification, or 
    • a qualification that is held out as being a VET qualification, and 
  • the representation is made in connection to an advertisement, and 
  • the representation is false or misleading in a material particular.
  • Maximum infringement notice penalty amount $2160 
  • Provision penalty units Maximum court penalty amount $21,600

- Maximum infringement notice penalty amount $2,160.

- Maximum court penalty amount $21,600

s.125 Making false or misleading representation relating to VET course or VET qualification 
  • a personmakes a representation that relates to: 
    • all or part of a VET course, or 
    • a course that is held out to be a VET course, or 
    • part of a course that is held out as being part of a VET course, or 
    • a VET qualification, or 
    • a qualification that is held out as being a VET qualification, and 
  • the representation is false or misleading in a material particular
  • Maximum infringement notice penalty amount $2160 
  • Provision penalty units Maximum court penalty amount $21,600

- Maximum infringement notice penalty amount $2,160

- Maximum court penalty amount $21,600

5 - Conduct that relates to specifying the issuer of a qualification or statement of attainment in advertising

This type of infringement notice may be issued to a ‘person’ (natural or corporate). This type of infringement notice can be issued to either an RTO, or a non-RTO.

Infringement Penalty
s.123B Advertising or offering VET course without identifying issuer of VET qualification or statement of attainment 
  • a person publishes or broadcasts an advertisement or causes an advertisement to be published or broadcast, or continues to allow an advertisement to be published or broadcast relating to a VET course, or 
  • a person offers to provide or continues to offer to provide all or part of a VET course, or makes a representation about the availability of or continues to make a representation about the availability of all or part of a VET course, and 
  • the advertisement, offer or representation does not include the name and registration code of the RTO that will issue a VET qualification or VET statement of attainment relating to the VET course or part of the VETcourse.
  • Maximum infringement notice penalty amount $2160 
  • Provision penalty units Maximum court penalty amount $21,600

- Maximum infringement notice penalty amount $2,160.

- Maximum court penalty amount $21,600

6 - Conduct that relates to purportedly registered courses

This type of infringement notice may be issued to a ‘person’ (natural or corporate).

Infringement Penalty
s.127 Purporting to issue a VET qualification 
  • a person purports to issue a VET qualification, and 
  • the qualification is not a VET qualification.
  • Maximum infringement notice penalty amount $10,800 
  • Maximum court penalty amount $108,000

- Maximum infringement notice penalty amount $10,800.

- Maximum court penalty amount $108,000

s.127 Purporting to issue a VET qualification 

  • a person purports to issue a VET statement of attainment, and 

the qualification is not a VET statement of attainment.

- Maximum infringement notice penalty amount $10,800

- Maximum court penalty amount $108,000

Source: asqa.gov.au 

 

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