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[2017] FCA 602
Federal Court of Australia
2017-05-30
Mr P, Murphy J
Original judgment source is linked above.
National Practice Area: Commercial and Corporations
Sub-area: Regulator and Consumer Protection
Counsel for the Applicant: Mr M I Borsky and Ms C Van Proctor
Solicitor for the Applicant: Corrs Chambers Westgarth
BETWEEN: AUSTRALIAN COMPETITION AND CONSUMER COMMISSION Applicant
AND: ACQUIRE LEARNING & CAREERS PTY LTD Respondent
JUDGE: MURPHY J DATE OF ORDER: 30 May 2017
THE COURT DECLARES THAT: Job Applicant A
Introduction 1 In this proceeding the applicant, the Australian Competition and Consumer Commission (ACCC), alleges that in the period 3 July 2014 to 24 March 2015 (the relevant period) the respondent, Acquire Learning & Careers Pty Ltd (Acquire), engaged in misleading or deceptive conduct, made false or misleading representations, engaged in unconscionable conduct and contravened provisions relating to unsolicited consumer agreements, in breach of the Australian Consumer Law (ACL) in Schedule 2 to the Competition and Consumer Act 2010 (Cth) (CCA). Acquire admits the contraventions and the underlying conduct by way of a Statement of Agreed Facts and Admissions (the agreed facts and admissions) and the parties have provided joint submissions on relief. 2 In the relevant period Acquire employed sales staff, misleadingly called Career Advisers, to use personal information that Acquire had purchased to make unsolicited marketing calls to job seekers and aggressively market vocational education courses to them. The courses were run by education providers who had agreed to pay Acquire a fee for referrals and enrolments, sometimes a percentage of the course fee. Acquire aimed to enrol the job seekers, on the spot, into a vocational education course (often into a management course which was plainly inappropriate) and also into a Commonwealth Government education loan scheme to pay for the course (the VET FEE-HELP scheme). It used various unfair and misleading sales techniques to induce job seekers. The enrolled job seekers incurred an interest-earning debt to the Commonwealth under the VET FEE-HELP scheme of between $9,900 and $21,000, repayable if the person reached a minimum income level. If the job seeker never reaches the minimum income level the Commonwealth is not repaid the loan. 3 Acquire only admits contravening conduct in relation to telemarketing calls it made to eight unemployed job seekers (the Job Applicants), but it admits that the contravening conduct was not that of rogue employees and was a core part of its business model. It accepts that its sales system courted the risk of contravening the ACL. I infer that these eight instances were not isolated examples. Acquire admits that it used undue pressure, unfair sales tactics, made false and misleading representations, did not provide an opportunity for the Job Applicants to consider the suitability of the courses being offered, did not disclose the circumstances in which the Job Applicants would incur a significant debt to the Commonwealth, and did not provide prescribed information about the enrolment agreement to the Job Applicants. 4 In some instances there were grave aggravating features to Acquire's unconscionable conduct. Some Job Applicants disclosed that they had a learning disability including difficulty reading, mental illness, an inability to complete other education courses, or had only completed school to year seven or ten. One Job Applicant had difficulty understanding and speaking English. Notwithstanding this Acquire induced them to enrol on the spot in a course which they were unlikely to be able to complete and/or which was unlikely to assist them to obtain better employment than if they had not enrolled. 5 Acquire admits that its conduct was unfair, misleading and unconscionable. It admits that it misled the Job Applicants by falsely representing that the primary or only purpose of the telephone call was for Acquire to find employment for them, that it had an employment opportunity for them, and in the case of some Job Applicants that he or she had been "chosen" for the offer. It admits that it had no reasonable grounds for representing to the Job Applicants that by enrolling in the course they would find employment or would find employment in a job that would pay significantly more than if they did not enrol. In most instances the Job Applicants incurred a significant debt to the Commonwealth for no real benefit, and it is likely the Commonwealth suffered a significant loss because the debt was unlikely to be repaid. 6 I consider Acquire's motive was not, as it pretended, to help job seekers out of the unemployment queue and into employment, but to maximise its profits through fees it received from course providers. Its activities resembled those of an unscrupulous fly by night operation rather than those of a prominent and market leading provider of student recruitment services, as it describes itself. In my opinion Acquire took advantage of vulnerable unemployed job seekers in order to rort the VET FEE-HELP scheme and its conduct was disgraceful. Ultimately, Acquire received significant fees and the burden of its conduct was most likely shared between such job seekers and the Australian taxpayer. 7 As the parties submitted, it is appropriate to make declarations that Acquire : (a) engaged in misleading or deceptive conduct in contravention of s 18 of the ACL; (b) made false or misleading representations about the uses or benefits of enrolling in a VET FEE-HELP assisted course in contravention of s 29(1)(g) of the ACL; (c) engaged in conduct in trade or commerce which was liable to mislead as to the nature and the characteristics of the service provided by Acquire in contravention of s 34 of the ACL; (d) engaged in conduct in contravention of s 76 of the ACL and reg 84 of the Competition and Consumer Regulations 2010 (Regulations) by failing to provide the Job Applicants with prescribed information relating to unsolicited consumer agreements; and (e) engaged in conduct which was in all the circumstances unconscionable in contravention of s 21 of the ACL. 8 It is also appropriate to order injunctions against the repetition of such conduct, to require Acquire to pay pecuniary penalties totalling $4.5 million and to pay $100,000 towards the ACCC's costs. I gave close consideration to ordering a higher penalty but, particularly in light of the fact that Acquire is now in a parlous financial position, a penalty of $4.5 million meets the central aims of specific and general deterrence.
the AGREED facts and admissions 9 I thank the parties for the quality of the agreed facts and admissions and the joint submissions on relief. I have directly drawn on them at some points.
Acquire's business 10 Acquire is and was at all material times a trading corporation within the meaning of s 4 of the CCA. Before and during the relevant period Acquire's business model included it: (a) entering into agreements with online job advertisers (Advertisers) pursuant to which the Advertisers agreed to provide Acquire with the personal information of job seekers who responded to online job advertisements. Acquire obtained similar information from their own recruitment businesses which had online "job boards". This gave Acquire the personal information and contact details of job seekers to use in marketing vocational education courses; (b) entering into agreements with certain VET approved providers of vocational education courses (Clients) to market and promote their courses. Each Client appointed Acquire as its agent and agreed to pay Acquire a fee, sometimes a percentage of the course fee, for each student enrolled in a VET FEE-HELP assisted course. Acquire's services included seeking to have prospective students fully complete the Client's application forms for enrolment and the forms for VET FEE-HELP during the sales calls; (c) employing or contracting (misleadingly titled) Career Advisers to make telemarketing calls to job seekers (whose personal details it had acquired) to market VET FEE-HELP assisted courses offered by its Clients. The Career Advisers were paid an hourly rate of $20.20 plus commission based on the number of job seekers referred and enrolled in the courses, together with other incentives in the form of cash and prizes awarded on the same basis; and (d) training Career Advisers to "book the maximum amount of enrolments possible" and incentivising them to maximise sales. It provided the Career Advisers with a script for use during telemarketing calls which made misleading representations, and the Career Advisers used high-pressure and unfair sales techniques to enrol job seekers, on the spot, in the relevant courses and in the VET FEE-HELP scheme.
The Debt to the Commonwealth 11 Each person who enrolled in a VET FEE-HELP assisted course incurred a debt to the Commonwealth (Debt) being the fee charged by the education provider and in most instances a 20% loan fee. Each Debt was indexed annually and increased to reflect increases in the Consumer Price Index and was repayable via compulsory deductions from that person's taxable income once it exceeded a minimum repayment income level. During the relevant period, the minimum repayment income level was $53,345. The Debts incurred by the Job Applicants ranged between $9,900 and $21,000.
Acquire's conduct 12 During the relevant period Career Advisers made unsolicited telephone calls to each of the eight Job Applicants, amongst many others. The Career Advisers did so for the purpose of procuring their enrolment, on the spot, in a VET FEE-HELP assisted course run by one of Acquire's Clients and their participation in the VET FEE HELP scheme.
Job Applicant A 13 On or about 3 July 2014 a Career Adviser made an unsolicited telephone call to Job Applicant A, who had difficulty understanding and speaking English. During the telephone call the Career Adviser made statements to the following effect: (a) that the call was in regards to Job Applicant A's recent online job search. The Career Adviser asked if she was still looking for work and told her that he had "an opportunity to run past you in regard to potential employment". He told her that an Advertiser who had not been able to place her in a job had passed her details on to Acquire "so we can help you out"; (b) that Acquire would "organise a fully government assisted online qualification, whilst also helping you get the job that you are after". Job Applicant A asked whether Acquire was affiliated with the government and the Career Adviser said that he was not calling from the Government, but that Acquire was "affiliated with some of the government incentives, though" and the VET FEE-HELP assisted course "works in conjunction with the Federal Government". He told Job Applicant A that she would not have to pay anything for the course up front and that the government will "front the entire course cost"; (c) Job Applicant A said that she had been looking for work for about five months and the Career Adviser said "we will be able to help you out with that" and "we want to get you into a job as soon as possible". He said "being in your current employment situation, I'm assuming this is something you would like to take advantage of, so we can help you out to get a job?" He said that the VET FEE-HELP assisted course would make Job Applicant A more employable and put her in "the top eighth percentile of people going for similar jobs", would enable her to go for any entry level office work and would make her "eligible to go for a management position"; and (d) that because Job Applicant A was organising enrolment with him that day, she would receive a free Apple iPad. He directed Job Applicant A to apply for VET FEE-HELP online and directed her to tick the boxes under the heading "Your Obligations" and said "hit submit whenever you're ready". 14 During the telephone call Job Applicant A submitted a request to participate in the VET FEE-HELP scheme, and applied to enrol in a VET FEE-HELP assisted course provided by a Client of Acquire. Her application was accepted and resulted in an agreement for the Client to supply education services to her. Acquire did not provide her with information about her right to terminate the agreement during the termination period (as provided in s 76 of the ACL), the way in which she could terminate the agreement or the fact that the education services could not be supplied for a period of 10 business days starting from the first business day after the telephone call.
Job Applicant B 15 On or about 17 July 2014 a Career Adviser made an unsolicited telephone call to Job Applicant B during which the Career Adviser made statements to the following effect: (a) that he could see that Job Applicant B had been applying for jobs online recently and asked what sort of job she was looking for. She replied that she was looking for a job as a kitchen hand or something similar. In response the Career Adviser said "so you're looking to get into hospitality. And that is obviously something you're looking to progress - work your way up into a management role?" Job Applicant B responded "sort of, not really. I don't really have the experience for that"; (b) that he works with a group called APTI "who work in conjunction with the Federal Government" and that "what has been organised for you is a placement into a nationally recognised diploma level qualification in management." He said that obtaining the qualification would mean that she will get the job that she was after and a job that pays a good income as well. He said that it would put her in the top 8% of job applicants; (c) Job Applicant B disclosed that she had a "little bit of a disability" which involved difficulty with reading; (d) the Career Adviser said that the proposed course is "fully paid for by the government upfront" and "it only gets paid back very slowly through the tax system if and when you start earning over…" and Job Applicant B replied that she had to be careful with her Centrelink payments; and (e) that "obviously being in your current employment situation, I'm going to assume this is something you would want to take advantage of, correct?" Job Applicant B responded "yes" and the Career Adviser said "well, it's actually my job to get that organised for you. It's just done through a quick online enrolment form." Job Applicant B asked if she could "come back to you" and the Career Adviser said that he had to stay on the telephone while she filled the form out because there were questions that she would not be able to answer and he would need to tell her what to say. Job Applicant B then said she would get her mother to help her out. 16 In a second telephone call on the same day the Career Adviser made statements to the effect that upon completion of the course Job Applicant B would "acquire a nationally-accredited diploma level qualification of management with one of the most recognised, registered training organisations". During this telephone call Job Applicant B submitted a request to participate in the VET FEE-HELP scheme, and applied to enrol in a VET FEE-HELP assisted course provided by a Client of Acquire. Her application was accepted and resulted in an agreement for the Client to supply education services to her. Acquire did not provide her with information about her right to terminate the agreement during the termination period, the way in which she could terminate the agreement or the fact that the education services could not be supplied for a period of 10 business days starting from the first business day after the telephone call.
Job Applicant C 17 On or about 4 August 2014 a Career Adviser made an unsolicited telephone call to Job Applicant C during which the Career Adviser made statements to the following effect: (a) that "the government has chosen you for the qualification" which means "that you can basically get yourself into every single job industry", and that by "having the qualification on your resume, you actually go in the top eight percent of applicants in Australia applying for work online"; (b) Job Applicant C said that she was specifically interested in working in real estate but the Career Adviser proposed that she in enrol in a management course. He said that the course was done through VET FEE-HELP "so the Australian government pays your entire qualification for you". He said that "you're actually not liable to pay absolutely anything for your qualification in your entire lifetime if you're earning under $52,000 a year"; and (c) that she could not fail the proposed course. 18 During this telephone call Job Applicant C submitted a request to participate in the VET FEE-HELP scheme, and applied to enrol in a VET FEE-HELP assisted course provided by a Client of Acquire. Her application was accepted and resulted in an agreement for the Client to supply education services to her. Acquire did not provide her with information about her right to terminate the agreement during the termination period, the way in which she could terminate the agreement or the fact that the education services could not be supplied for a period of 10 business days starting from the first business day after the telephone call.
Job Applicant D 19 On or about 8 September 2014 a Career Adviser made an unsolicited telephone call to Job Applicant D during which the Career Adviser said that the reason for the call was that Job Applicant D had recently been searching for work. Job Applicant D said that he had previously received calls about their education courses and that he was not interested. In response the Career Adviser said that the course "will basically assist you with your job search and help you…get that job you want". Job Applicant D reiterated that he was not interested. 20 On or about 9 October 2014 a Career Adviser made another unsolicited telephone call to Job Applicant D, during which the Career Adviser made statements to the following effect: (a) Job Applicant D disclosed to the Career Adviser that he had a learning disability, that he was "not the best at studying", and that he had only completed up to year 10 of high school. He also said that he was looking for retail jobs and that he had enrolled in a VET FEE-HELP assisted business course run by Ivy College; (b) in response the Career Adviser said that Job Applicant D should withdraw from that course and enrol in the VET FEE-HELP assisted course that he proposed. He said that the business course offered by Ivy College was not relevant to retail jobs and that the management course he recommended would "definitely help you a lot more". He said "I don't want you to be enrolled into the wrong course" and that a management course is "a lot more relevant to you". He said that a Diploma of Management would possibly allow Job Applicant D "to move forward into a managerial supervisor-type role" thereby gaining a "higher earning income"; and (c) the Career Adviser said that the suggested course was fully government assisted and that "the government actually pays for [Job Applicant D] to do the entire qualification" and "it only gets paid back very slowly through the tax system if [he earns] over $53,345 a year". 21 During this telephone call Job Applicant D submitted a request to participate in the VET FEE-HELP scheme, and applied to enrol in a VET FEE-HELP assisted course provided by a Client of Acquire. His application was accepted and resulted in an agreement for the Client to supply education services to him. Acquire did not provide him with information about his right to terminate the agreement during the termination period, the way in which he could terminate the agreement or the fact that the education services could not be supplied for a period of 10 business days starting from the first business day after the telephone call.
Job Applicant E 22 On or about 15 September 2014 a Career Adviser made an unsolicited telephone call to Job Applicant E during which the Career Adviser made statements to the following effect: (a) that Acquire is "an education and employment centre", that Acquire's records indicated that Job Applicant E had been applying for work online and that Job Applicant E's details had been "passed to us as someone who is active on the job-seeking market"; (b) Job Applicant E said that she wanted to work on the "medical side" and said that she had commenced but not completed a Certificate III in Health Service Assistance, and that she had not passed the last two classes; (c) that Job Applicant E had "been chosen" and that "the government has organised for you… a placement into a nationally recognised diploma-level qualification in management". She told Job Applicant E that "what the qualification actually enables you to do is actually get yourself into every single job industry"; (d) that if Job Applicant E was "really dedicated" she could complete the proposed course in one to two months. The Career Adviser also said that "the benefit of this qualification [is that] you cannot fail it, because it is all based on competency"; (e) that "basically the Australian Government pays your entire qualification for you", that "it's all fully government assisted, so it means the VET FEE-HELP pays your entire qualification, which is actually $20,000, which is fantastic" and that if Job Applicant E "earn[s] under $53,000 a year, you never pay anything"; and (f) that Job Applicant E should update her resume immediately to show that she is currently studying a "diploma level qualification in management" and that "usually with some studies, you can't put it on there until it's completed, but because it's a high level qualification at diploma level, then you can place it on there instantly". 23 During this telephone call Job Applicant E submitted a request to participate in the VET FEE-HELP scheme, and applied to enrol in an assisted course provided by one of Acquire's Clients. Her application was accepted and resulted in an agreement for the Client to supply education services to her. She was not provided with information about her right to terminate the agreement during the termination period, the way in which she could terminate the agreement or the fact that the education services could not be supplied for a period of 10 business days starting from the first business day after the telephone call.
Job Applicant F 24 On or about 10 December 2014 a Career Adviser made an unsolicited telephone call to Job Applicant F during which the Career Adviser made statements to the following effect: (a) that she had seen that Job Applicant F had been looking for work online recently. Job Applicant F told the Career Adviser that she had in fact found a job that day. The Career Adviser continued to propose a VET FEE-HELP assisted course and said "I'll let you know why we're in contact with you today because it'd still be a good opportunity for you". She said that "the reason that [the course] had been arranged for you is because you were looking for work online for quite a while"; and (b) that "we basically just get the government to pay upfront for this qualification" and she only had to pay back the course fee, slowly, if she earned over $53,000 per year. Job Applicant F then asked if "it's fully paid for" to which the Career Adviser replied "Yep, fully paid for upfront by the government". 25 During the telephone call Job Applicant F submitted a request to participate in the VET FEE-HELP scheme, and applied to enrol in a VET FEE-HELP assisted course provided by a Client of Acquire. Her application was accepted and resulted in an agreement for the Client to supply education services to her. Acquire did not provide her with information about her right to terminate the agreement during the termination period, the way in which she could terminate the agreement or the fact that the education services could not be supplied for a period of 10 business days starting from the first business day after the telephone call.
Job Applicant G 26 On or about 19 January 2015 a Career Adviser made an unsolicited telephone call to Job Applicant G during which the Career Adviser made statements to the following effect: (a) that the reason the Career Adviser called was because Job Applicant G had been actively looking for work, which "tells us you're motivated"; (b) Job Applicant G disclosed that she was 19 years old, had a learning and mental illness and was concerned that she might not be "smart enough" to undertake the course proposed by the Career Adviser. She disclosed that she had previously signed up to a different course and had not completed it, as it was too hard. She said that she "hates studying", and that she was likely to earn less than $10,000 that year; (c) that Job Applicant G "cannot fail" the proposed course and that support would be provided to ensure that she did not; (d) that the qualification could be completed online and was "perfect for people like you". Job Applicant G responded by stating that she did not have internet access at her home; (e) that the government would pay for the entire course cost upfront, that it was "free of charge" and that if Job Applicant G does not "hit the yearly income threshold, you don't have to pay anything", but if she did "creep over it" she would "pay it back through your tax in very, very small percentages", and that the government pays the entire course cost but they may also charge a loan fee. The Career Adviser said that "it just means you can study now, get the qualification, get the job, get paid decent money"; (f) the Career Adviser identified the link on the website to the VET FEE-HELP information booklet but said that it was 29 to 30 pages long and just reiterates everything that the Career Adviser had already gone over. The Career Adviser said that Job Applicant G should "feel free to look at it in your own time, but I will just go over and summarise". The Career Adviser told Job Applicant G to check the box that indicates that she agreed with all the obligations listed without identifying the detail of the obligations or ascertaining whether she had read, understood and agreed with that detail; and (g) that she would receive a free laptop with the proposed VET FEE-HELP course. 27 During the telephone call Job Applicant G submitted a request to participate in the VET FEE-HELP scheme, and applied to enrol in a VET FEE-HELP assisted course provided by a Client of Acquire. Her application was accepted and resulted in an agreement for the Client to supply education services to her. Acquire did not provide her with information about her right to terminate the agreement during the termination period, the way in which she could terminate the agreement or the fact that the education services could not be supplied for a period of 10 business days starting from the first business day after the telephone call.
Job Applicant H 28 On or about 24 March 2015 a Career Adviser made an unsolicited telephone call to Job Applicant H during which the Career Adviser made statements to the following effect: (a) Job Applicant H disclosed that she was 18 years of age, had only completed schooling up to year seven, had no experience in the workforce and no current qualifications, and that she did not have a computer at home; (b) the Career Adviser said that Acquire is "an employment agency that kind of focuses on getting people jobs that they want… instead of a job to kind of get them by". She also said that Acquire "actually put 4217 people, I think, exactly into jobs last month" to which Job Applicant H responded "wow". The Career Adviser said "instead of going up against the 400 other people for all the online jobs right now, you [will] actually only go up against maybe one or two others who are in similar programs as yourself"; (c) that "the whole program is actually fully government assisted… So what that means is that the government actually pays for the entire course for this diploma upfront and it only ever has to be paid back slowly into your tax if you were ever to start earning over the yearly income threshold which currently sits at $53,345 per year… Essentially what that means is either it gets you into the real high paying jobs where you're earning well over $1000 a week or if for some reason it doesn't get you into those jobs, then you just never have to pay back for the course"; and (d) that "in your current situation, I'm going to assume this might be something you want to take advantage of", to which Job Applicant H responded "Yes". 29 During the telephone call Job Applicant H submitted a request to participate in the VET FEE-HELP scheme, and applied to enrol in a VET FEE-HELP assisted course provided by a Client of Acquire. Her application was accepted and resulted in an agreement for the Client to supply education services to her. Acquire did not provide her with information about her right to terminate the agreement during the termination period, the way in which she could terminate the agreement or the fact that the education services could not be supplied for a period of 10 business days starting from the first business day after the telephone call.
Cancellation of the Debt 30 After concerns were raised on behalf of the Job Applicants, Acquire investigated and where necessary procured cancellation of the Job Applicants' enrolments with its Clients, if that had not already occurred. Except for Job Applicant H, each Job Applicants' enrolment and VET FEE-HELP Debt has been cancelled.
Compliance Program 31 Prior to January 2015 Acquire did not have a formalised, organisation-wide ACL compliance program. Acquire launched a CCA compliance program in January 2015 but the contravening conduct in relation to Job Applicants G and H occurred after its introduction. Following concerns raised by the ACCC in the course of its investigation Acquire made improvements to its compliance program.
The Admitted Contraventions 32 The admitted contraventions are set out in full in the orders, and I will not reiterate them. It suffices to summarise them as follows.
The false or misleading representation provisions of the ACL 33 Section 18 of the ACL provides that a person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive. 34 Section 29(1)(g) of the ACL provides that a person must not, in trade or commerce, in connection with the supply or possible supply of goods or services, make a false or misleading representation that goods or services have, relevantly, sponsorship, approval, performance characteristics, uses or benefits. 35 Section 34 of the ACL provides that a person must not, in trade or commerce, engage in conduct that is liable to mislead the public as to the nature, characteristics or suitability for their purpose of any services. 36 Pursuant to s 191 of the Evidence Act 1995 (Cth) (Evidence Act) Acquire admits, in relation to each Job Applicant, that during the relevant period its conduct was in contravention of ss 18, 29(1)(g) and 34. 37 Without differentiating between the different circumstances of each Job Applicant, the admitted contraventions are that Acquire, by the conduct of its Career Advisers; (a) engaged in misleading or deceptive conduct in breach of s 18 of the ACL; (b) made false or misleading representations about the uses or benefits of enrolling in a VET FEE-HELP assisted course in breach of s 29(1)(g) of the ACL; (c) engaged in conduct which was liable to mislead the Job Applicants as to the nature and the characteristics of the service provided by the Career Advisers in breach of s 34 of the ACL; doing so by each Career Adviser; (a) making representations with respect to future matters without having reasonable grounds for doing so, namely that: (i) by participating in the VET FEE-HELP assisted course the Job Applicant would find employment, would find employment in a role of his or her choice, would find employment in a role that would pay significantly more than if the Job Applicant did not enrol in the course, or would find employment that paid "decent money"; (ii) the VET FEE-HELP assisted course could be completed within a period of one to two months; (iii) successful completion of the course was guaranteed; (iv) the VET FEE-HELP assisted course proposed by Acquire would be of more assistance to the Job Applicant than the VET FEE-HELP assisted course provided by another VET provider that was not a Client of Acquire; and (b) falsely representing to the Job Applicant that the primary or only purpose of the telephone call was for Acquire to find employment for the Job Applicant when the primary purpose was to procure the enrolment of the Job Applicant in a VET FEE-HELP assisted course.
The prohibition on unconscionable conduct in the ACL 38 Section 21 of the ACL relevantly provides that a person must not, in trade or commerce, in connection with the acquisition or possible acquisition of goods or services from another person engage in conduct that is, in all the circumstances, unconscionable. 39 Pursuant to s 191 of the Evidence Act Acquire admits, in relation to each of the Job Applicants, that during the relevant period its conduct was in contravention of s 21. 40 Without differentiating between the different circumstances of each Job Applicant, the admitted contraventions are that Acquire, by the conduct of its Career Advisers, engaged in conduct that was unconscionable through the use of unfair sales tactics, undue pressure and false or misleading representations, in circumstances where; (a) Acquire obtained each Job Applicant's personal information from a job application he or she had submitted in response to an online job advertisement; (b) Acquire: (i) falsely represented during the telephone call that the primary or only purpose of the telephone call was for Acquire to find employment for the Job Applicant; (ii) stated that Acquire had an opportunity for the Job Applicant relating to potential employment; (iii) stated that placement in the course had been organised for him or her; (iv) stated that the Job Applicant had been "chosen" to participate in the course; (v) falsely represented that the education course would enable the Job Applicant to find employment in "any industry"; (vi) in one instance, encouraged and assisted the Job Applicant to withdraw from a competitor's course for the purpose of enrolling him in a course offered through Acquire, without having a reasonable basis for doing so; (vii) told the Job Applicant that it was necessary to complete the enrolment process during the telephone call; (viii) directed the Job Applicant to complete the online application process and submit a request for VET FEE-HELP assistance during the telephone call without providing the Job Applicant with sufficient opportunity to consider the appropriateness of and relevant information about the course and about such assistance; (ix) suggested that Acquire was affiliated with the government; (x) did not adequately disclose the circumstances in which the Job Applicant would incur a Debt to the Commonwealth through enrolling in a VET FEE-HELP assisted course provided by a Client of Acquire; and (xi) did not ascertain whether the Job Applicant understood the nature of his or her obligations under the VET FEE-HELP scheme. 41 In some instances Acquire's conduct was particularly egregious because it was aware that: (a) Job Applicant A had difficulty speaking and reading English; (b) Job Applicant B suffered from a learning disability which meant she had difficulty in reading, and she demonstrated poor cognitive skills during the call and required assistance from her mother to complete the online form; (c) Job Applicant D had a learning disability which meant that he had difficulty studying, that he had received calls about education courses previously and was not interested in participating in such a course, that he had only completed year 10 of high school and that at the time of the call he had already enrolled in another vocational training course; and (d) Job Applicant G had a learning disability and/or mental illness, was concerned that she might not be "smart enough" to undertake the proposed course, and she had previously failed to complete a course because it was "too hard". Notwithstanding these disclosures the Career Advisers procured the Job Applicants' enrolment in VET FEE-HELP assisted courses provided by one of Acquire's Clients, usually a management course. In my view it is unlikely that these Job Applicants would have been able to complete the relevant course and, if they did, it is unlikely that it would have resulted in them obtaining such employment . 42 I consider that Acquire took advantage of vulnerable job seekers for its own financial gain. It admits that its dealings were not done in good conscience (ACCC v Coles Supermarkets Australia Pty Ltd [2014] FCA 1405 at [1] per Gordon J), were unfair and unreasonable (Cameron v Qantas Airways Ltd (1994) 55 FCR 147; [1995] FCA 1304 at 179 per Beaumont J; Hurley v McDonalds Australia Ltd [1999] FCA 1728 at [22] per Heerey, Drummond & Emmett JJ) and were contrary to the business and social values which underpin acceptable standards for dealing with consumers (ACCC v Lux Distributors Pty Ltd [2013] FCAFC 90 at [41] per Allsop CJ, Jacobson and Gordon JJ).
The unsolicited consumer agreement provisions of the ACL and Regulations 43 Section 76(c) of the ACL provides that a dealer must not make an unsolicited consumer agreement with a person unless (where the agreement is made by telephone) the person is given information about termination rights by telephone and subsequently in writing. 44 Section 76(d) of the ACL provides that the form and way in which the information is given must comply with any requirements prescribed by the Regulations. Regulation 84 requires the written information to be attached to the agreement document, to be transparent and in prominent text. 45 Pursuant to s 191 of the Evidence Act Acquire admits that during the relevant period: (a) it was a dealer within the meaning of s 71 of the ACL and the price of the education services to be provided was more than $100; (b) its negotiations with each Job Applicant resulted in the Job Applicant making an unsolicited consumer agreement with a Client of Acquire, within the meaning of s 69(1)(b)(ii) of the ACL; (c) it failed to provide the Job Applicant with the information required by s 76(a) as to the Job Applicant's right to terminate the agreement and the way in which the Job Applicant may exercise that right; (d) it failed to provide the Job Applicant with the information in subparagraph (c) above, as required by s 76(c) and (d) and reg 84; and (e) it contravened s 76 by failing to provide the Job Applicant with the information relating to unsolicited consumer agreements prescribed by s 76.
Joint submissions on the appropriate penalty 46 The parties jointly seek orders requiring Acquire to pay pecuniary penalties for its contraventions of the ACL. It is settled that it is appropriate for a regulator in civil proceedings to make submissions on penalties and/or the penalty range: Commonwealth v Director, Fair Work Building Industry Inspectorate; CFMEU v Director, Fair Work Building Industry Inspectorate (2015) 326 ALR 476; [2015] HCA 46 (CFMEU) at [61] (French CJ, Kiefel, Bell, Nettle and Gordon JJ). In that case the plurality said (at [64]) that: …it is consistent with the purposes of civil penalty regimes… and therefore with the public interest, that the regulator take an active role in attempting to achieve the penalty which the regulator considers to be appropriate and thus that the regulator's submissions as to the terms and quantum of a civil penalty be treated as a relevant consideration. 47 The plurality also said that it was desirable that the Court accept the parties' submissions on penalties, where it is satisfied that the penalty is appropriate in all the circumstances. Their Honours said (at [47]) that, where a particular figure cannot necessarily be said to be more appropriate than another, the Court should not depart from the submitted figure merely because "it might otherwise have been disposed to select some other figure". Their Honours went on to say (at [58]) that: Subject to the court being sufficiently persuaded of the accuracy of the parties' agreement as to facts and consequences, and that the penalty which the parties propose is an appropriate remedy in the circumstances thus revealed, it is consistent with principle and, for the reasons identified in Allied Mills, highly desirable in practice for the court to accept the parties' proposal and therefore impose the proposed penalty. (Emphasis added.) 48 There is an important public policy involved in the Court accepting appropriate agreed penalties. It promotes the predictability of outcomes in civil proceedings, encourages corporations to acknowledge contraventions and avoids lengthy and complex litigation which in turn frees the Court to deal with other matters and ACCC officers to attend to other investigations: NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission (1996) 71 FCR 285 (NW Frozen Foods) at 291 (Burchett and Kiefel JJ); ACCC v Australia and New Zealand Banking Group Ltd [2016] FCA 1516 at [97] (Wigney J); CFMEU at [46].
The process of fixing a pecuniary penalty 49 In deciding a pecuniary penalty the Court should not adopt a mathematical approach of increases or decreases in the penalty within a predetermined range, or assign numerical or proportionate values to the various relevant factors. The Court must consider all the relevant facts and circumstances and use a process of "instinctive synthesis" to arrive at the appropriate penalty. In Markarian v The Queen (2005) 228 CLR 357 (Markarian), which concerned criminal sentencing, McHugh J described this process (at 378) as: …the method of sentencing by which the judge identifies all the factors that are relevant to the sentence, discusses their significance and then makes a value judgment as to what is the appropriate sentence given all the factors of the case. 50 This approach has been adopted and approved in numerous decisions of this Court in civil penalty matters, both at first instance and appellate level.
The requirement for specific and general deterrence 51 The central object of a civil penalty under s 224 is deterrence, both specific to the contravener and in general to others who might be tempted to contravene the ACL. In Trade Practices Commission v CSR Ltd (1991) ATPR 41-076 (TPC v CSR) at 52,152 French J said: The principal, and I think probably the only, object of the penalties imposed by s 76 is to attempt to put a price on contravention that is sufficiently high to deter repetition by the contravener and by others who might be tempted to contravene the Act. 52 In Singtel Optus v ACCC (2012) 287 ALR 249; [2012] FCAFC 20 (Singtel Optus) at [62]- [63] (Keane CJ, Finn and Gilmour JJ) the Full Court explained: There may be room for debate as to the proper place of deterrence in the punishment of some kinds of offences, such as crimes of passion; but in relation to offences of calculation by a corporation where the only punishment is a fine, the punishment must be fixed with a view to ensuring that the penalty is not such as to be regarded by that offender or others as an acceptable cost of doing business. … Generally speaking, those engaged in trade and commerce must be deterred from the cynical calculation involved in weighing up the risk of penalty against the profits to be made from contravention. Their Honours said (at [68]) that: The Court must fashion a penalty which makes it clear to [the contravener], and to the market, that the cost of courting a risk of contravention of the Act cannot be regarded as [an] acceptable cost of doing business. The latter comments were approved by the High Court in ACCC v TPG Internet Pty Ltd (2013) 250 CLR 640; [2013] HCA 54 at [64] (French CJ, Crennan, Bell and Keane JJ). 53 The penalty should be set sufficiently high that a business, acting rationally and in its own best interest, will not be prepared to treat the risk of such a penalty as a business cost. In NW Frozen Foods (at 294-295) the Full Court explained: The Court should not leave room for any impression of weakness in its resolve to impose penalties sufficient to ensure the deterrence, not only of the parties actually before it, but also of others who might be tempted to think that contravention would pay, and detection lead merely to a compliance program for the future. However, in seeking to deter, a penalty must not be set so high as to be oppressive: Trade Practices Commission v Stihl Chainsaws (Aust) Pty Ltd (1978) ATPR 40-091 at 17,896 (Smithers J); NW Frozen Foods at 293; ACCC v Leahy Petroleum (No 2) [2005] FCA 254 at [9] (Merkel J).
The maximum penalty 54 The maximum penalty under s 224(3) of the ACL for a contravention of ss 21, 29(1)(g) and 34 is $1.1 million per contravention. The maximum penalty for a contravention of s 76 is $50,000. 55 Regard must ordinarily be had to the maximum penalty. In Markarian (at 372), Gleeson CJ, Gummow, Hayne and Callinan JJ observed : …careful attention to maximum penalties will almost always be required, first because the legislature has legislated for them; secondly, because they invite comparison between the worst possible case and the case before the court at the time; and thirdly, because in that regard they do provide, taken and balanced with all of the other relevant factors, a yardstick.
The number of contraventions and the course of conduct principle 56 In the present case each relevant telemarketing call to a Job Applicant involved numerous acts or omissions which were contraventions of the misleading conduct, unconscionability, and unsolicited consumer agreement provisions of the ACL. For example, each time that a Career Adviser made a representation to a Job Applicant that Acquire was affiliated with the government, or that enrolment in the VET FEE-HELP assisted course would help them to secure better paid employment, or that the course was appropriate for the Job Applicant notwithstanding his or her learning difficulties, mental illness or lack of proficiency in English, Acquire breached ss 18, 21, 29(1)(g) or 34. The same telephone call also involved Acquire breaching the unsolicited consumer agreement provisions in s 76 through the failure to provide prescribed information to the Job Applicant. The number of contraventions in each telephone call is relevant to the maximum available penalty. 57 However, rather than imposing a separate penalty for each act or omission, where there is sufficient interrelationship in the legal and factual elements of the acts or omissions constituting the contraventions, the Court may in its discretion apply the "course of conduct" or "one transaction" principle. The principle was explained in Construction, Forestry, Mining and Energy Union v Cahill (2010) 269 ALR 1; [2010] FCAFC 39 at [39], [41]-[42] (Middleton and Gordon JJ) in the following terms: The principle recognises that where there is an interrelationship between the legal and factual elements of two or more offences for which an offender has been charged, care must be taken to ensure that the offender is not punished twice for what is essentially the same criminality. … In other words, where two offences arise as a result of the same or related conduct that is not a disentitling factor to the application of the single course of conduct principle but a reason why a Court may have regard to that principle, as one of the applicable sentencing principles, to guide it in the exercise of the sentencing discretion. It is a tool of analysis which a Court is not compelled to utilise. A Court is not compelled to utilise the principle because, as Owen JA said in Royer [2009] WASCA 139 at [28], "[d]iscretionary judgments require the weighing of elements, not the formulation of adjustable rules or benchmarks". The exercise of the sentencing discretion does not fall to be exercised in a vacuum. It is a matter of judgment to be exercised according to the facts of each case and having regard to conflicting sentencing objectives. (Emphasis in original.) (Citations omitted.) 58 As Beach J observed in ACCC v Hillside (Australia New Media) Pty Ltd trading as Bet365 (No 2) [2016] FCA 698 at [24]-[25] (endorsed in Reckitt at [141] per Jagot, Yates and Bromwich JJ), the course of conduct principle does not have paramountcy in the process of assessing an appropriate penalty, and it cannot of itself unduly fetter the proper application of s 224 or operate as a de facto limit on the penalty to be imposed for contraventions. Its application must be tailored to the circumstances. 59 In the finish, the question is one of discretion in coming to the correct penalty and the course of conduct principle is a guide for use where it is appropriate. The parties submit, and I agree, that each telephone call between a Career Adviser and a Job Applicant was a single course of conduct or transaction. I accept the parties' submission that Acquire engaged in eight courses of conduct, being one single course of conduct in respect of each call. On that basis, the maximum penalty for the contraventions is $8.8 million ($1.1 million x eight occasions).
The relevant factors 60 Pursuant to s 224(2), in determining the appropriate penalty the Court must have regard to "all relevant matters", including: (a) the nature and extent of the act or omission and of any loss or damage suffered as a result of the act or omission; (b) the circumstances in which the act or omission took place; and (c) whether the person has previously been found by a court in proceedings to have engaged in similar conduct. 61 A number of additional matters are also relevant to the assessment of a penalty. These factors are largely drawn from cases in relation to s 76 of the Trade Practices Act 1974 (Cth): see TPC v CSR at 52,152-53, as expanded on in NW Frozen Foods at 292-294 and J McPhee and Son (Aust) Pty Ltd v ACCC [2000] FCA 365 at [150] (Black CJ, Lee and Goldberg JJ). With some exceptions those principles are equally applicable to s 224: ACCC v MSY Technology Pty Ltd (No 2) (2011) 279 ALR 609; [2011] FCA 382 at 624-625 (Perram J); ACCC v TPG Internet Pty Ltd (No 2) [2012] FCA 629 (TPG) at [59]-[61] (Murphy J); ACCC v Pepe's Ducks Ltd [2013] FCA 570 at [16] (Bromberg J). 62 As I said in TPG (at [61]), the relevant considerations include: (a) the size of the contravening company; (b) the deliberateness of the contravention and period over which it extended; (c) whether the contravention arose out of the conduct of senior management of the contravener or at a lower level; (d) whether the contravener has a corporate culture conducive to compliance with the ACL, as evidenced by educational programs and disciplinary or other corrective measures in response to an acknowledged contravention; (e) whether the contravener has shown a disposition to cooperate with the authorities responsible for enforcement of the ACL; (f) the financial position of the contravener; (g) whether the contravening conduct was systematic, deliberate or covert; and (h) the contravener's position of influence and importance in its industry sector. 63 In any particular case the significance of the factors above will depend on the facts and circumstances. While any pecuniary penalty must be determined for the contravening conduct, the facts relevant to penalty are not confined to that conduct alone: ACCC v Reckitt Benckiser (Australia) Pty Ltd [2016] FCAFC 181 (Reckitt) at [83] (Jagot, Yates and Bromwich JJ). In the present case it is relevant that the eight instances of telemarketing calls to the Job Applicants are not isolated examples of conduct by rogue employees. 64 I now turn to each mandatory and additional factor for consideration.
The nature and extent of the contravening conduct, the circumstances in which it took place and any loss or damage 65 Acquire's contravening conduct was plainly serious. The contraventions were systemic, they occurred over a considerable period of time, and in some cases they were committed against people with disclosed vulnerabilities. Acquire accepts that the contravening conduct was not undertaken by rogue employees and that its sales system courted the risk of such breaches.
The unconscionable conduct contraventions 66 Acquire took advantage of vulnerable unemployed job seekers who were desperate to find employment, by harvesting their personal information via (undisclosed) arrangements with online employment agencies and pretending to be interested in assisting them out of unemployment. It used unfair tactics, undue pressure and misleading representations to gull them into enrolling in vocational education courses which (while it is not admitted) in my view were unsuitable for most of them. There were a number of matters, that must have been apparent to Acquire, which strongly suggest that at least some of the Job Applicants would be unable to successfully complete or would receive no real benefit from the course. These matters include that some of the Job Applicants had learning disabilities, mental illness, difficultly in speaking and reading English, quite limited education, and insufficient time to decide whether the course was appropriate for them. 67 Acquire's behaviour strongly points to the conclusion that it had little interest in assisting these vulnerable people out of unemployment and was instead largely, perhaps only, motivated by the fees it received for referring and enrolling the Job Applicants in courses provided by its Clients. Each Job Applicant was deprived of the opportunity to give adequate consideration to the merits and suitability of the course which Acquire marketed to them. Its conduct, particularly in relation to those who disclosed learning difficulties, mental illness and limited education, was exploitative in the extreme. 68 As a result of this conduct each Job Applicant incurred a significant Debt (ranging between $9,900 and $21,000). Any Job Applicant that did not complete the relevant course and was enrolled past the relevant payment date, or who was unable to obtain better paid employment as a result of undertaking the course, would have incurred the Debt for no benefit. 69 Acquire later secured the cancellation of the enrolment and corresponding Debt of each Job Applicant, except for Job Applicant H. However, the instances involving the eight Job Applicants were not the actions of rogue employees and are unlikely to be isolated examples. It seems likely that there are many more job seekers who were induced by Acquire to enrol in a VET FEE-HELP assisted course and who were unable to complete it, or received no real benefit from it.
The false or misleading representations contraventions 70 Acquire falsely represented to the Job Applicants that: (a) the primary or only purpose of the telephone call was to find employment for them; (b) by enrolling in the relevant course they would find employment, would find employment in a role that would pay significantly more than if the Job Applicants did not enrol in the course or enrolled in some other course. In the case of Job Applicant D the course proposed by Acquire would be of more assistance to him than a course he was already undertaking; and (c) (for some of the Job Applicants) that successful completion of the course was guaranteed or that it could be completed within a short period of time. These representations were central to its conduct in procuring the Job Applicants' enrolment and were plainly serious.
The unsolicited consumer agreement contraventions 71 Unsolicited selling occurs when a trader approaches a consumer directly to offer a product or service for sale, and where a consumer agrees to make a purchase and enters into an agreement with the supplier outside of a retail environment or the supplier's place of business or over the telephone: see cl. 23.48 of the Explanatory Memorandum, Trade Practices Amendment (Australian Consumer Law) Bill (No 2) 2010. 72 Chapter 8 and pp 464-491 of the Explanatory Memorandum show that the relevant provisions of the ACL are aimed at addressing the added vulnerability or disadvantage faced by consumers through unsolicited selling practices including: (a) the impact of information asymmetry between the supplier and the consumer. In the case of unsolicited sales the consumer is unlikely to have engaged in a product comparison or sampled the product prior to the unsolicited approach, and the information available to the consumer is largely that which is represented to them by the trader; and (b) the incentives for unfair conduct. Unsolicited selling often involves sales techniques which take advantage of the unequal market power of the participants and exacerbates the problem of information asymmetry. The sales techniques may include lack of disclosure of important information, exertion of interpersonal pressure by sales people, targeting of vulnerable consumers and misleading representations. 73 Against that backdrop Acquire's misconduct must be seen as serious. It sourced the Job Applicants' contact information from online job applications, made unsolicited telephone calls to them to market VET FEE-HELP assisted courses, and brought unfair tactics, undue pressure, and false or misleading representations to bear on them to induce them to enter into an agreement. Some of the Job Applicants disclosed significant vulnerabilities. Acquire's failure to adhere to the requirements of s 76 to inform the Job Applicants of their right to terminate the agreement during the termination period, and the way in which they could exercise that right, were serious given the significant Debt the Job Applicants incurred.
Whether the contravener has previously been found in a court to have engaged in similar conduct 74 Acquire has not previously been found in breach of the ACL or the CCA.
The size of the contravener and its financial position 75 At the time of the conduct Acquire was a significant and market leading provider of student recruitment services. Acquire put on the following confidential evidence as to its revenue, profitability and asset position: (a) audited financial statements for the Acquire Learning Consolidated Group for the financial year ended 30 June 2015 (FY2015), which covered the period in which the contraventions occurred; and (b) draft management accounts for the Acquire Learning Consolidated Group for the financial year ended 30 June 2016 (FY2016) (being the most up-to-date financial reports at the date of the hearing). 76 I considered aspects of the material to be inadequate and I required Acquire to file further evidence. It then adduced further confidential information as to its revenue, profitability and asset position, namely: (a) further draft financial summary management accounts for the Acquire Learning Consolidated Group for FY2016 comprising a statement of cash flows, a statement of financial position, a statement of financial performance (profit and loss), and a statement of changes in equity; and (b) an explanation of the draft management accounts for FY2016 which had been earlier provided. 77 I made orders pursuant to ss 37AF and 37AG of the Federal Court of Australia Act 1976 (Cth) (Federal Court Act) for the financial information to be treated as confidential except to the extent that I considered it necessary or appropriate to refer to the information in the reasons for judgment herein. 78 The Consolidated Statement of Profit or Loss for FY2015 shows that Acquire earned revenue of $129.70 million in that financial year. It made a profit before income tax of $12.11 million and a profit after tax of $6.30 million. As at 30 June 2015 it had net assets of $13.31 million. The parties' submissions focused on Acquire's financial position in the financial year ending on 30 June 2015 because the contraventions occurred in that period. However it is also necessary to understand its more recent financial position because one of the primary objects of a pecuniary penalty is to fix a penalty high enough to deter Acquire from a repetition of such conduct. 79 The draft consolidated management accounts for FY2016 show that Acquire earned revenue of $136.89 million in that financial year. It made a loss before tax of $15.92 million and a loss after tax of $12.89 million. As at 30 June 2016, more than a year after the last contravention, the Acquire Learning Consolidated Group had negative assets of $2 million. Acquire explained the significant worsening of its financial position as arising from new statutory requirements as part of regulatory reform of the vocational education sector, the transitioning of its business from a brokerage style marketing and promotional business to a full education delivery model which increased costs of sales, investment in activities to build revenue streams outside the VET FEE-HELP scheme, and the purchase of a vocational education provider. 80 The fact that Acquire's most recent financial statements show that it made an after-tax loss of almost $13 million, and that its asset position has dramatically worsened, is significant to my view in relation to the appropriate penalty. Had its financial position been better a higher penalty than that proposed may have been appropriate.
Deliberateness of contravening conduct and the involvement of senior management 81 Acquire's business model was based on maximising the number of enrolments it was able to achieve for its Clients and thereby maximise the fees payable to it. Acquire's conduct in that regard was deliberate and overt. 82 Acquire provided its Career Advisors with a script for the telemarketing calls, and I infer that it trained them in that regard. It gave them the tools to pressure Job Applicants into enrolling in the recommended course on the spot, without time to consider whether that course was suitable for them. The script included a list of "frequently raised objections" and suggested responses that were designed to overcome objections, including "I think you should give it a go for at least a couple of months, correct?"; "Statistically people who do this course are earning an extra $10,000 per year on average"; and "I have done this course before and trust me, you can do it!" 83 The script required Career Advisers to make misleading representations such as: "We are all about helping people land their dream job and most importantly finding that job in your local community"; and "It's my job to get you into one of those roles". That was far from the truth. 84 Acquire incentivised its Career Advisers to pressure prospective students into enrolment so as to maximise sales by paying them commission, cash and prizes based on the number of people referred and enrolled. One of its training documents advised Career Advisers to "book the maximum amount of enrolments possible and end up receiving the biggest salary possible." 85 Although no senior management were directly involved in the contraventions, Acquire admits that its senior managers, including its National Sales Manager, were involved in devising the sales system. Acquire accepts that through its sales system it "took the odds" and "courted the risk" of engaging in the contravening conduct. Its conduct was deliberate and it involved senior management to an extent, which also supports the imposition of substantial penalties.
Culture of corporate compliance 86 Following the ACCC commencing its investigation, Acquire undertook steps to improve its compliance with the ACL, which is to its credit. However, for much of the relevant period Acquire did not have a compliance program in place, and even when it implemented such a program it did not prevent the contravening conduct in relation to Job Applicants G and H. Acquire accepts that the compliance program it implemented was inadequate.
Cooperation with authorities 87 Acquire has cooperated with authorities from the beginning of the investigation. It voluntarily handed over information and documents and participated in a series of discussions with the ACCC to bring an agreed resolution of the matter before the Court. By admitting to the contraventions the ACCC and the community have avoided the cost and burden of a trial. I accept that Acquire has demonstrated contrition and I have taken its cooperation into account in relation to the penalties.
Deterrence 88 The deliberateness of the contravening conduct, its nature in targeting vulnerable people, the losses suffered by the Commonwealth, and Acquire's status as a market leader, indicates a strong requirement for general and specific deterrence. 89 In light of Acquire's reduced financial position, I consider the proposed penalties totalling $4.5 million are sufficient to deter it from a repetition of similar conduct. The penalties are proposed in circumstances where Acquire's most recent financial statements show an after-tax loss of almost $13 million and a negative net asset position (following an approximately $15 million worsening of its asset position in one financial year). 90 A penalty of this magnitude, imposed on a market leader in the sector, is also appropriate to deter other businesses from engaging in similar conduct. It is unlikely that another business, acting rationally and in its own best interest, will be prepared to treat the risk of such a penalty as an acceptable cost of doing business. General deterrence is particularly important in circumstances where Acquire rorted the VET FEE-HELP scheme for its own financial gain and, as the parties submit, the VET FEE-HELP sector is beset with compliance issues. It is necessary to send a strong message to deter other businesses from a repetition of similar conduct.
Parity principle 91 The parity principle provides that, all other things being equal, similar contraventions should incur similar penalties. But, as the Full Court in NW Frozen Foods cautioned (at 295), "other things are rarely equal where contraventions of the Trade Practices Act are concerned." There are many difficulties associated with setting penalties by reference to penalties previously imposed for contraventions in differing circumstances or in circumstances where some of the facts are similar but others are not: Singtel Optus at [60] approving the observation of Middleton J in ACCC v Telstra Corporation Ltd (2010) 188 FCR 238 at [215]. 92 The parties did not seek to support the proposed penalty on the grounds that the facts of this case are comparable to those of other cases.
Totality principle 93 This principle requires that the entirety of the underlying contravening conduct be considered to determine whether a penalty is just and appropriate as a whole. The underlying rationale of the principle is to ensure that the proposed penalty is proportionate when the contraventions are viewed collectively: TPG at [138]-[139]. Its application in the present case means that, although there are eight courses of conduct, the total penalty should not exceed what is appropriate for the entirety of the underlying contravening conduct. It operates as a final check to ensure that the penalties imposed are just and appropriate overall: Trade Practices Commission v Allied Mills Industries Pty Ltd (No 5) (1981) 60 FLR 38 at 40; Trade Practices Commission v TNT Australia Pty Limited (1995) ATPR 41-375 at 40,169. The parties submit, and I agree, that while the proposed penalty of $4.5 million is substantial it is not oppressive. I would not apply the totality principle so as to reduce the aggregate penalty below that proposed.
Pecuniary penalty orders 94 Having synthesised the relevant matters, I consider a total pecuniary penalty of $4.5 million is appropriate. There is no good reason to depart from the parties' submissions as to the appropriate penalty. The total penalty relates to the contraventions as follows: (a) in respect of the eight contraventions of s 76, $40,000 for each contravention, totalling $320,000; (b) in respect of the eight contraventions of ss 29(1)(g) and 34 together, $225,000 for each contravention totalling $1.8 million; (c) in respect of the four contraventions of s 21 relating to Job Applicants A, B, D and G, $345,000 for each contravention, totalling $1.38 million; and (d) in respect of the four contraventions of s 21 relating to Job Applicants C, E, F and H, $250,000 for each contravention, totalling $1 million. The higher penalty for the four contraventions of s 21 relating to Job Applicants A, B, D and G reflects the aggravating features of Acquire's conduct in those instances.
Declarations 95 The Court has power under s 21 of the Federal Court Act to award declaratory relief. Ordinarily, three requirements should be satisfied before a declaration can be made: see Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421; [1972] HCA 61 at 437-438 (Gibbs J): (a) the question must be a real and not a hypothetical or theoretical one; (b) the applicant must have a real interest in raising it; and (c) there must be a proper contradictor. 96 Where declarations are sought by consent the Court's discretion is not supplanted, but the Court will not usually refuse to give effect to terms of settlement by refusing to make orders where they are within jurisdiction and are otherwise unobjectionable: ACCC v Econovite Pty Ltd [2003] FCA 964 at [11] (French J). 97 It is unnecessary to now set out the declarations the parties seek when they are detailed in the orders made. It suffices to note that they are in my view appropriate because they serve to record the Court's disapproval of the contravening conduct, inform the public and operate to deter others from contravening the ACL. The questions are real, as a public regulator the ACCC has a real interest in seeking the declarations, and although the declarations are jointly proposed Acquire is a proper contradictor: see ACCC v MSY Technology Pty Ltd (2012) 201 FCR 378; [2012] FCAFC 56 at [30] (Greenwood, Logan and Yates JJ).
Injunctive relief 98 The parties seek an injunction restraining Acquire for a period of three years from making representations to the effect of one of those made to the Job Applicants. The Court has ample power pursuant to s 232 of the ACL to grant such injunctive relief, subject to three limitations: see ACCC v Z-Tek Computers Pty Ltd (1997) 78 FCR 197 at 203-204 (Merkel J): (a) the power is confined by reference to the scope and purpose of the ACL. The relief should be designed to prevent a repetition of the conduct for which the relief is sought; (b) there must be a sufficient nexus or relationship between the contravention and the injunction; and (c) the injunction must relate to the "matter" before the Court. 99 After I raised concerns about a lack of clarity in the injunction proposed, the parties put forward an injunction in amended form. The proposed amended injunction is sufficiently clear, has a sufficient relationship to the contraventions, and is designed to deter a repetition of the contravening conduct (by attaching the sanctions available for contempt of Court to any repetition of the contraventions): ICI Australia Operations Pty Ltd v Trade Practices Commission (1992) 38 FCR 248 at 268 (French J). In my view it is appropriate to order the injunctive relief the parties seek.
Compliance program 100 The parties seek orders requiring Acquire to review its existing compliance program at the end of each six month period, doing so for a period of three years. Such an order is appropriate in circumstances where Acquire's existing compliance program did not prevent contraventions of the ACL. It is in the interests of consumers and in the public interest that Acquire has an effective compliance program in place, and appropriate to make these orders.
Costs 101 Acquire has agreed to pay $100,000 towards the ACCC's costs of the proceeding, within 30 days of the date of this order. Such an order is appropriate. 102 I have made orders in terms of the draft minutes provided by the parties. I certify that the preceding one hundred and two (102) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Murphy.
Australian Competition and Consumer Commission
Acquire Learning & Careers Pty Ltd
[1995] FCA 1304
[1972] HCA 61
[2009] WASCA 139
(2012) 201 FCR 378
(2011) 279 ALR 609
(2010) 188 FCR 238
(2013) 250 CLR 640
(1997) 78 FCR 197
(1994) 55 FCR 147
(2015) 326 ALR 476
(2010) 269 ALR 1
(1972) 127 CLR 421
(1992) 38 FCR 248
(2005) 228 CLR 357
(1996) 71 FCR 285
(2012) 287 ALR 249
(1981) 60 FLR 38