Higher Education Support Amendment (VET FEE-HELP Reform) Act 2015 (168 of 2015)

Schedule 1   VET FEE-HELP Reform amendments

Part 2   Civil penalties and enforcement

Higher Education Support Act 2003

26   At the end of Part 1 of Schedule 1A

Add:

Division 5A - Civil penalty provisions and enforcement

Subdivision 5A-A - Civil penalty provisions

39DA Civil penalty provisions

Enforceable civil penalty provisions

(1) Each *civil penalty provision of this Division is enforceable under Part 4 of the *Regulatory Powers Act.

Note: Part 4 of the Regulatory Powers Act allows a civil penalty provision to be enforced by obtaining an order for a person to pay a pecuniary penalty for the contravention of the provision.

Authorised applicant

(2) For the purposes of Part 4 of the *Regulatory Powers Act, each of the following persons is an authorised applicant in relation to the *civil penalty provisions:

(a) the *Secretary;

(b) an SES employee, or an acting SES employee, in the Department.

Relevant court

(3) For the purposes of Part 4 of the *Regulatory Powers Act, each *applicable court is a relevant court in relation to the *civil penalty provisions.

39DB Civil penalty - publishing information that suggests VET FEE-HELP assistance is not a loan etc.

(1) A person contravenes this subclause if:

(a) the person is a *VET provider; and

(b) the VET provider publishes information, or causes information to be published; and

(c) the information suggests that:

(i) *VET FEE-HELP assistance for a *VET unit of study or *VET course of study is not in the nature of a loan, or does not need to be repaid; or

(ii) if a student receives VET FEE-HELP assistance for such a unit or course, that the unit or course is free from any fees or charges.

Civil penalty: 60 penalty units.

(2) A person contravenes this subclause if:

(a) the person publishes information; and

(b) the person does so as agent for a *VET provider; and

(c) the information suggests that:

(i) *VET FEE-HELP assistance for a *VET unit of study or *VET course of study is not in the nature of a loan, or does not need to be repaid; or

(ii) if a student receives VET FEE-HELP assistance for such a unit or course, that the unit or course is free from any fees or charges.

Civil penalty: 60 penalty units.

39DC Civil penalty - inappropriate inducements

(1) A person contravenes this subclause if:

(a) the person is a *VET provider; and

(b) the VET provider:

(i) offers a person a benefit; or

(ii) provides a person with a benefit; or

(iii) causes a person to be offered or provided with a benefit; and

(c) the benefit would be reasonably likely to induce a person (the student ) to:

(i) enrol in a *VET unit of study or *VET course of study; and

(ii) complete, sign and give an *appropriate officer of the VET provider a *request for Commonwealth assistance relating to the unit or course; and

(d) the student receives *VET FEE-HELP assistance for that unit or course.

Civil penalty: 60 penalty units.

(2) A person contravenes this subclause if:

(a) the person offers a person a benefit, or provides a person with a benefit; and

(b) the person does so as agent for a *VET provider; and

(c) the benefit would be reasonably likely to induce a person (the student ) to:

(i) enrol in a *VET unit of study or *VET course of study; and

(ii) complete, sign and give an *appropriate officer of the VET provider a *request for Commonwealth assistance relating to the unit or course; and

(d) the student receives *VET FEE-HELP assistance for that unit or course.

Civil penalty: 60 penalty units.

(3) To avoid doubt, the person in paragraph (1)(b) or (2)(a) who is offered, or provided with, the benefit need not be the student.

39DD Appropriate and inappropriate inducements

(1) Subclauses 39DC(1) and (2), and subclause (2) of this clause, do not apply in relation to any of the following benefits:

(a) the content and quality of the *VET unit of study or *VET course of study;

(b) the amount of *tuition fees of the unit or course (other than so much of the fees as is conditional on a person identifying other persons as prospective students for a unit or course);

(c) *VET FEE-HELP assistance for the unit or course;

(d) the use of a thing if:

(i) the use is limited to the period the student is participating in the unit or course; and

(ii) the use is required or necessary for the completion of the unit or course (having regard to the learning objectives and outcomes of the unit or course); and

(iii) the use of such a thing is available on the same terms to all students, of a kind specified in the *VET Guidelines for the purposes of this subparagraph, who are participating in the unit or course.

(2) Without limiting subclauses 39DC(1) and (2), those subclauses apply in relation to the following benefits:

(a) the use of an electronic device outside the period the student is participating in the *VET unit of study or *VET course of study;

(b) internet use, or the use of software, outside that period;

(c) travel, entertainment, hospitality or accommodation services;

(d) vouchers redeemable for goods or services;

(e) money (other than amounts covered by paragraph (1)(b) or (c)).

39DE Civil penalty - failure to provide VET FEE-HELP notices

A person contravenes this clause if:

(a) the person is a *VET provider; and

(b) the VET provider fails to comply with subclause 64(1), (2), (2A) or (3).

Civil penalty: 60 penalty units.

39DF Civil penalty - failure to comply with student requests

(1) A person contravenes this subclause if:

(a) the person is a *VET provider; and

(b) the VET provider enrols another person (the student ) in a *VET unit of study; and

(c) the student is entitled to *VET FEE-HELP assistance for the unit; and

(d) before the end of the *census date for the unit, the student requests, in writing, the VET provider to:

(i) cancel the enrolment; or

(ii) withdraw the student's *request for Commonwealth assistance relating to the unit or the *VET course of study of which the unit forms a part; and

(e) the VET provider fails to comply with the request before the end of that census date.

Civil penalty: 60 penalty units.

(2) For the purposes of paragraph (1)(c), disregard subparagraph 43(1)(f)(ii) and paragraph 45C(1)(c).

39DG Civil penalty - charging a fee etc. for a student to cancel an enrolment or request for assistance

(1) A person contravenes this subclause if:

(a) the person is a *VET provider; and

(b) the VET provider enrols another person (the student ) in a *VET unit of study; and

(c) the student is entitled to *VET FEE-HELP assistance for the unit; and

(d) before the end of the *census date for the unit, the student requests, in writing, the VET provider to:

(i) cancel that enrolment; or

(ii) withdraw the student's *request for Commonwealth assistance relating to the unit or the *VET course of study of which the unit forms a part; and

(e) the VET provider charges the student a fee, or imposes a penalty, (however described) in order to do so.

Civil penalty: 60 penalty units.

(2) For the purposes of paragraph (1)(c), disregard subparagraph 43(1)(f)(ii) and paragraph 45C(1)(c).

39DH Civil penalty - accepting requests for Commonwealth assistance etc. when student not entitled

(1) A person contravenes this subclause if:

(a) the person is a *VET provider; and

(b) an *appropriate officer of the VET provider is given a *request for Commonwealth assistance by another person (the student ) relating to a *VET unit of study or the *VET course of study of which the unit forms a part; and

(c) the VET provider treats the student as being entitled to *VET FEE-HELP assistance for the unit; and

(d) the student is not so entitled.

Civil penalty: 60 penalty units.

(2) A person contravenes this subclause if:

(a) the person is a *VET provider; and

(b) an *appropriate officer of the VET provider is given a form by another person (the student ); and

(c) subclause 88(3A) (about certain students under 18 years old) applies to the student; and

(d) that form is not signed by a *responsible parent of the student; and

(e) that form would have been a *request for Commonwealth assistance relating to:

(i) a *VET unit of study; or

(ii) the *VET course of study of which the unit forms a part;

if it had been signed by a responsible parent of the student; and

(f) the VET provider treats the student as being entitled to *VET FEE-HELP assistance for the unit.

Civil penalty: 60 penalty units.

39DI Civil penalty - failure to advise about requests etc.

(1) A person contravenes this subclause if:

(a) the person is a *VET provider; and

(b) the VET provider enrols another person (the student ) in a *VET unit of study; and

(c) the student has not already given an *appropriate officer of the VET provider a *request for Commonwealth assistance relating to the *VET course of study of which the unit forms a part; and

(d) the student enrols in the unit less than 2 business days before the *census date for the unit; and

(e) before enrolling the student, the VET provider failed to advise the student that the student would not be able to receive *VET FEE-HELP assistance for the unit; and

(f) the student completes, signs and gives an appropriate officer of the VET provider a request for Commonwealth assistance relating to the unit or the VET course of study of which the unit forms a part.

Civil penalty: 60 penalty units.

(2) A person contravenes this subclause if:

(a) the person is a *VET provider; and

(b) the VET provider enrols another person (the student ) in a *VET unit of study; and

(c) the student completes, signs and gives an *appropriate officer of the VET provider a *request for Commonwealth assistance relating to the unit or a *VET course of study of which the unit forms a part; and

(d) the request is so given less than 2 business days after the student enrols in the unit; and

(e) either or both of the following subparagraphs applies:

(i) before enrolling the student, the VET provider failed to advise the student that *VET FEE-HELP assistance for the unit can only be received if the request is given at least 2 business days after enrolling;

(ii) the VET provider encouraged the student to give the request so that it would be given less than 2 business days after enrolling.

Civil penalty: 60 penalty units.

39DJ Civil penalty - failure to apportion fees appropriately

A person contravenes this clause if:

(a) the person is a *VET provider; and

(b) the VET provider enrols another person (the student ) in a *VET unit of study; and

(c) the student receives *VET FEE-HELP assistance for the unit; and

(d) the VET provider charges the student *tuition fees for the unit; and

(e) for the purposes of clause 27A, the *VET Guidelines specify when the tuition fees may be charged; and

(f) the tuition fees are not charged in accordance with those VET Guidelines.

Civil penalty: 60 penalty units.

39DK Civil penalty - failure to publish fees

A person contravenes this clause if:

(a) the person is a *VET provider; and

(b) the VET provider enrols another person (the student ) in a *VET unit of study; and

(c) the student receives *VET FEE-HELP assistance for the unit; and

(d) the VET provider charges the student *tuition fees for the unit; and

(e) on the day before the student enrols in the unit, the tuition fees were not available on the VET provider's website in a way that was readily accessible by the public.

Civil penalty: 60 penalty units.

39DL Civil penalty - failure to report data

A person contravenes this clause if:

(a) the person is a *VET provider; and

(b) the VET provider enrols another person (the student ) in a *VET unit of study; and

(c) the student receives *VET FEE-HELP assistance for the unit; and

(d) the VET provider is subject to a requirement under subclause 24(1) or (2) to provide information relating to the VET FEE-HELP assistance; and

(e) the VET provider fails to comply with the requirement.

Civil penalty: 60 penalty units.

Subdivision 5A-B - Infringement notices

39EA Infringement notices

A *civil penalty provision of this Division is subject to an infringement notice under Part 5 of the *Regulatory Powers Act.

Note: Part 5 of the Regulatory Powers Act creates a framework for using infringement notices in relation to provisions.

39EB Infringement officers

For the purposes of Part 5 of the *Regulatory Powers Act, an infringement officer in relation to the *civil penalty provisions is:

(a) each *NVETR staff member who is:

(i) an SES employee or an acting SES employee; or

(ii) an APS employee who holds or performs the duties of an Executive Level 2 position or an equivalent position; or

(b) each SES employee, or an acting SES employee, in the Department.

39EC Relevant chief executive

For the purposes of Part 5 of the *Regulatory Powers Act, the relevant chief executive in relation to the *civil penalty provisions is:

(a) for an infringement notice given by an infringement officer covered by paragraph 39EB(a) - each *NVETR Commissioner; and

(b) for an infringement notice given by an infringement officer covered by paragraph 39EB(b) - the *Secretary.

Subdivision 5A-C - Monitoring and investigation powers

39FA Monitoring powers

(1) Subdivision 5A-A is subject to monitoring under Part 2 of the *Regulatory Powers Act.

Note: Part 2 of the Regulatory Powers Act creates a framework for monitoring whether Subdivision 5A-A has been complied with. It includes powers of entry and inspection.

(2) Information given in compliance or purported compliance with a provision of Subdivision 5A-A is subject to monitoring under Part 2 of the *Regulatory Powers Act.

Note: Part 2 of the Regulatory Powers Act creates a framework for monitoring whether the information is correct. It includes powers of entry and inspection.

39FB Monitoring powers - persons exercising relevant roles etc.

(1) For the purposes of Part 2 of the *Regulatory Powers Act, as it applies in relation to Subdivision 5A-A of this Schedule:

(a) each *civil penalty provision of this Division is related to Subdivision 5A-A of this Schedule; and

(b) each *Departmental investigator and *NVETR investigator is an authorised applicant; and

(c) each Departmental investigator and NVETR investigator is an authorised person; and

(d) a *judicial officer is an issuing officer; and

(e) for an authorised person who is a Departmental investigator, the *Secretary is the relevant chief executive; and

(f) for an authorised person who is a NVETR investigator, each *NVETR Commissioner is the relevant chief executive; and

(g) each *applicable court is the relevant court.

Person assisting

(2) An authorised person may be assisted by other persons in exercising powers or performing functions or duties under Part 2 of the *Regulatory Powers Act in relation to a provision of Subdivision 5A-A of this Schedule.

39FC Investigation powers

Each *civil penalty provision of this Division is subject to investigation under Part 3 of the *Regulatory Powers Act.

Note: Part 3 of the Regulatory Powers Act creates a framework for investigating whether a provision has been contravened. It includes powers of entry, search and seizure.

39FD Investigation powers - persons exercising relevant roles etc.

(1) For the purposes of Part 3 of the *Regulatory Powers Act, as it applies in relation to evidential material that relates to a *civil penalty provision of this Division:

(a) each *Departmental investigator and *NVETR investigator is an authorised applicant; and

(b) each Departmental investigator and NVETR investigator is an authorised person; and

(c) a *judicial officer is an issuing officer; and

(d) for an authorised person who is a Departmental investigator, the *Secretary is the relevant chief executive; and

(e) for an authorised person who is a NVETR investigator, each *NVETR Commissioner is the relevant chief executive; and

(f) each *applicable court is the relevant court.

Person assisting

(2) An authorised person may be assisted by other persons in exercising powers or performing functions or duties under Part 3 of the *Regulatory Powers Act in relation to evidential material that relates to a provision of Subdivision 5A-A of this Schedule.

Subdivision 5A-D - Other matters

39GA Appointment of investigators

(1) The *Secretary may, in writing, appoint a person as a Departmental investigator for the purposes of this Division.

(2) A *NVETR Commissioner may, in writing, appoint a *NVETR staff member as a NVETR investigator for the purposes of this Division.

(3) A person must not be appointed as a *Departmental investigator, or a *NVETR investigator, unless the appointer is satisfied that the person has the knowledge or experience necessary to properly exercise the powers of such an investigator.

(4) A *Departmental investigator, and a *NVETR investigator, must, in exercising powers as such, comply with any directions of the appointer.

(5) If a direction is given under subclause (4) in writing, the direction is not a legislative instrument.

39GB Functions and powers

The functions and powers of a person referred to in:

(a) subclause 39DA(2) (about authorised applicants); or

(b) clause 39EB or 39EC (about infringement notices); or

(c) paragraph 39FB(1)(b), (c), (d), (e) or (f) (about monitoring powers); or

(d) paragraph 39FD(1)(a), (b), (c), (d) or (e) (about investigation powers);

include those conferred by Part 2, 3, 4 or 5 (as applicable) of the *Regulatory Powers Act in relation to this Division.

39GC Delegation by relevant chief executive etc.

(1) The *Secretary may, in writing, delegate his or her powers and functions that:

(a) arise under the *Regulatory Powers Act as the relevant chief executive; and

(b) relate to this Division;

to an SES employee, or an acting SES employee, in the Department.

(2) A *NVETR Commissioner may, in writing, delegate his or her powers and functions that:

(a) arise under the *Regulatory Powers Act as the relevant chief executive and relate to this Division; or

(b) arise under clause 39GA of this Schedule;

to an *NVETR staff member who is:

(c) an SES employee or an acting SES employee; or

(d) an APS employee who holds or performs the duties of an Executive Level 2 position or an equivalent position.

(3) A person exercising powers or performing functions under a delegation under subclause (1) or (2) must comply with any directions of the delegator.

(4) A person must not exercise powers or perform functions under a delegation under subclause (1) or (2) in relation to an infringement notice given by the person.

39GD Other enforcement action

To avoid doubt, action may be taken under this Division in addition to, or instead of, any action that may be taken under any other provision of this Act, including under any or all of the following provisions of this Schedule:

(a) clause 12A (about imposing conditions on an approval);

(b) clause 26A (about compliance notices);

(c) Division 5 (about when a body ceases to be a VET provider);

(d) Subdivision 7-B (about re-crediting FEE-HELP balances).