NSW Fair Trading is a government department whose role is to promote a fair marketplace for consumers and traders by maximizing traders’ compliance with regulatory requirements. Fair Trading safeguards consumer rights and investigates alleged breaches of the legislation that Fair Trading administers.
Fair Trading has a broad range of powers given not only by the Fair Trading Act 1987 (NSW) (‘the Fair Trading Act’) but the various legislation that Fair Trading administers.
Some of the legislation that Fair Trading administers is:
- The Australian Consumer Law (incorporated in the Fair Trading Act);
- Home Building Act 1989;
- Property and Stock Agents Act 2002;
- Motor Dealers and Repairers Act 2013;
- Residential Tenancies Act 2010.
One of the roles of Fair Trading is to ensure that businesses and traders are complying with the relevant legislation.
Consumers can make a complaint to Fair Trading about a business or trader. Fair Trading can then assess whether or not action will be taken in response.
The Fair Trading Act provides a broad range of investigative powers to Fair Trading investigators. These include the power to enter business for the purpose of an investigation and the power to obtain information, documents and evidence.
The Disciplinary Action Unit (‘DAU’) is a unit of Fair Trading which undertakes disciplinary proceedings. Various investigations branches of Fair Trading send matters to the DAU. However, it decides independently whether it will take disciplinary action.
Common reasons for disciplinary action:
- Contravening a condition of the licence;
- Contravening a provision of the Act that applies to their licence;
- Not being a fit and proper person to hold the licence;
- Acting unlawfully, improperly, unfairly or incompetently
Notice to Show Cause
The DAU will issue a Notice to Show Cause (NTSC) once the evidence satisfies DAU that it should take disciplinary action.
An NTSC sets out the grounds for the disciplinary action, that is, the allegations against the license holder and the evidence that the DAU relies on. The notice provides the licence holder an opportunity to:
- respond to the allegations against them,
- provide an explanation for the conduct alleged,
- outline any mitigating factors,
- or provide any supporting evidence etc.
Once it makes a response to the NTSC, the DAU will consider the responses and then decide on whether to take disciplinary action and if so, what action it will take.
The Disciplinary actions that the DAU can take include:
- A formal caution or reprimand;
- Conditions on the licence, certificate or authority;
- Financial penalty;
- Suspending the licence for a period of time;
- Immediately cancelling or revoking the authority;
- Disqualifying a licence holder from holding and/or obtaining an authority in the future.
If disciplinary action has been taken against a licence holder, and they are not satisfied with the decision, an internal review can be requested. An internal review must be requested within 28 days of the decision regarding disciplinary action.
The internal review will be undertaken by a member of the Reviewable decisions team. The outcome of the review can be:
- To affirm the disciplinary decision; or
- To vary the disciplinary decision; or
- To revoke the disciplinary decision.
If the licence holder is not satisfied with the outcome of the internal review, they can apply to have the decision reviewed by NSW Civil and Administrative Tribunal (‘NCAT’).
How we can help you
At O’Brien Criminal and Civil Solicitors, we have a wealth of experience in successfully defending clients who are the subject of Fair Trading investigations. We have assisted clients with the review of disciplinary decisions and with representation at NCAT. If you have received a Notice to Show Cause or are being investigated by Fair Trading, get in touch with us as soon as possible for a free initial consultation.