> About OCBA  > Compliance and enforcement  > Using discretion

On this page

• Public Interest
• Taking Court Action
• Assessment of Evidence
• Negotiations about Plea
• Civil Action
• Cooperating with Others
• Proceedings Relating to Co-operatives
• Civil Penalties for Co-operatives

OCBA will strive to ensure that it takes only the action necessary to achieve compliance. The choice of response remains at OCBA's discretion, although the choice may be limited by the applicable legislation. OCBA has an overarching obligation to ensure that the response chosen is fair, appropriate and proportionate to the alleged conduct taking into consideration all relevant circumstances.

OCBA will consider the following when exercising this discretion:

• whether the action it proposes will achieve compliance
• the public interest
• the circumstances of the alleged conduct
• whether the conduct is an isolated instance or part of a course of conduct
• whether the parties involved have a prior record of complaints against them or court action with OCBA
• whether the response is appropriate to use as a precedent or to act as a deterrent to other misconduct in the industry and
• OCBA's priorities.

Public Interest

OCBA takes into account the public interest. Without limiting the public interest, the following may be considered:

• the seriousness, or conversely, the triviality of the alleged conduct or that it is of a technical nature

• the detriment to any person as a result of the alleged conduct

• the profit that the alleged offender has made from the alleged conduct

• any circumstances that may mitigate or aggravate the matter

• the youth, age, intelligence, physical health, mental health, infirmity of the alleged offender or a victim

• whether the alleged offender has any prior history of similar conduct

• the time that has passed since the cause of action arose and whether the conduct is continuing

• the degree of culpability of the alleged offender in the alleged conduct

• the effect on the behaviour of others in the trade

• whether the law is obsolete or obscure

• whether the proposed course of action would bring the law or its administration into disrepute and the need to maintain public confidence in the law

• availability and appropriateness of alternative courses of action

• prevalence of the alleged conduct and the need for deterrence both to the offender and the public

• whether the consequences of OCBA's action would be unduly harsh or oppressive

• whether the alleged conduct is of public concern

• the attitude of the alleged offender, whether the alleged offender is co-operative in the investigation or court action and has attempted restitution for any wrongdoing

• where proceedings of any kind are contemplated, the length and expense of the proceedings

• the likely outcome if the proposed course of action is successful.

Taking Court Action

OCBA will undertake court action if:

• it is appropriate under the circumstances to take such action

• it is in the public interest to take such action

• there is a reasonable prospect of success based on available, admissible, credible evidence and

• it would be reasonable and in accordance with community standards to proceed, bearing in mind any possible defence open on the evidence available to OCBA. Where defences rely on community standards, the allegations should usually be put to the court for determination.

Assessment of Evidence

OCBA will assess the evidence that it gathers as part of determining what action it will take. Without in any way limiting the questions OCBA will raise and consider, these questions will be significant in assessing the evidence in any matter it pursues:

• Are there grounds for believing the evidence may be excluded, bearing in mind the principles of admissibility at common law and under statute?
• If the case depends in part on admissions by the defendant, are there any grounds for believing that they are of doubtful reliability, having regard to the age, intelligence, and apparent understanding of the defendant?
• Does it appear that a witness is exaggerating, hostile, friendly, or unreliable?
• Has a witness a motive for not telling the full truth?
• Are there matters that might enable the defence to attack the credibility of the witness?
• What impression will the witness make to the court?
• Does the evidence contain material contradictions that may undermine the action?
• Is it likely that the evidence from witnesses is contrived or false?
• Are all necessary witnesses available and competent to give evidence?
• Where two or more defendants are charged together, is there a chance that the proceedings could be severed? Is the case sufficiently proved against each defendant should separate trials be ordered?

This is not an exhaustive list of matters to be considered. The matters that are taken into account will depend on the circumstances of each case.

Negotiations about Plea

Negotiations between the defence and OCBA on a prosecution may result in the alleged offender pleading guilty to fewer than all the charges or to a lesser charge, with the remaining charges not being proceeded with or taken into account without proceeding to conviction.

Arrangements as to charges and pleas can be made, provided that:

• it is initiated by the defence
• the charges proceeded with bear a reasonable relationship to the conduct alleged
• those charges proceeded with are adequate for an appropriate penalty or sentence in all the circumstances of the case
• there is sufficient evidence to support the charges and
• the defendant does not maintain his/her innocence on the matters to which he/she pleads guilty.

OCBA is not obliged to agree to any proposal and may refuse to agree to a proposal in any case even though all of the matters in the above list may not have been addressed. Any decision to agree to a proposal must take into account all the circumstances of the case and the public interest.

Negotiations may occur in civil and disciplinary actions as for prosecutions.

Civil Action

Under section 76 of the Fair Trading Act 1987, OCBA may on behalf of a consumer institute proceedings provided:

• the case raises issues of law affecting the interests of consumers generally, or a class of consumers, or is in the public interest
• OCBA has written irrevocable consent from the consumer and consent from the Minister
• where OCBA would be acting for a purchaser of premises, the amount of the claim should not be more than $100,000
• where OCBA would be acting for a mortgagor of premises, the amount of the claim should not be more than $50,000 and
• the amount of any other claim is not more than $25,000.

Where OCBA acts under section 76:

• OCBA has the same rights as the consumer would have
• OCBA may conduct the proceedings as it thinks fit
• any money (excluding costs) recovered by OCBA is paid to the consumer
• any amount (excluding costs) awarded against the consumer is recoverable against the consumer provided they have not given OCBA written notice of a desire to settle
• costs will be borne by or paid to OCBA and
• unrelated counter-claims can be the subject of an application for a separate hearing.

It is not OCBA's role to take civil action on behalf of consumers or others simply because that is more convenient to the consumer. There are well-established court processes available to consumers to seek enforcement of their rights. It is only in special circumstances that OCBA would seek to take civil action on behalf of others and the discretion to use this course of action would depend on the number and type of consumers affected, the level of consumer detriment and how widespread the conduct is.

Cooperating with Others

It is appropriate to refer matters to other agencies where OCBA has no jurisdiction (eg interstate or overseas conduct) or where another agency has expressed the wish to pursue such matters vigorously or exclusively (eg the Australian Competition and Consumer Commission on its programmed activities) or where the States have agreed that one State should enforce their laws.

It is also appropriate to refer matters to the South Australian Police where the criminal law has been breached and it has been agreed that there is no role for OCBA.

If the evidence suggests possible breaches of legislation not administered by OCBA, and that a matter is more appropriately pursued by another enforcement body (eg South Australian Police or the Director of Public Prosecutions) then the matter will be referred to that enforcer.

Where several possible causes of action may be available under legislation administered by OCBA and other enforcement bodies, OCBA will exercise a discretion as to when matters should be referred to another appropriate enforcement or prosecutorial bodies. After consultation with other enforcement or prosecutorial bodies, it may be
appropriate for OCBA to proceed.

Proceedings Relating to Co-operatives

Under section 94 and 95 of the Co-operatives Act 1997 OCBA may either bring proceedings or intervene in actions on behalf of a co-operative with leave of the Supreme Court.

Civil Penalties for Co-operatives

OCBA may also seek a pecuniary penalty order under the Co-operatives Act 1997 civil penalties provisions about co-operatives' financial reports and audits.

• Home

• Media releases

• Popular pages
  • Business advice
  • Consumers advice
  • Youth advice
  • Online services

• Languages

• A-Z Search

• Help