> About OCBA  > Compliance and enforcement  > Enforcement tools

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• Oral and Written Warnings
• Undertakings and Assurances
• Public Naming
• Expiation
• Disciplinary Action
• Civil Remedies
• Prosecution

There are a variety of tools including encouragement and sanctions available to enforce fair-trading legislation and standards. OCBA uses the following hierarchy of enforcement tools:

Oral and Written Warnings

Depending on the severity of the breach, OCBA may choose to issue either an oral or written warning to traders about individual instances of illegal conduct.

Undertakings and Assurances

Under section 79(1) of the Fair Trading Act 1987 OCBA may accept an assurance (an undertaking, in writing) that a trader will refrain from engaging in specified unlawful conduct. Assurances can include undertakings to perform certain duties or refrain from certain activities.

Under section 79(2) OCBA may seek an assurance from a trader if it appears to OCBA that the trader has:

• breached the Fair Trading Act 1987 or a related act or

• become liable to disciplinary action under the occupational licensing legislation or

• both.

If OCBA accepts the assurance, then OCBA will not proceed against a trader for the matter to which the assurance relates.

Where a trader fails to comply with an assurance given, they are guilty of an offence under section 81 of the Fair Trading Act 1987 and are liable to prosecution. If an assurance is breached, then the trader can be subject to:

• a maximum fine of $5,000

• an injunction prohibiting conduct

• affirmative orders to comply with the assurance

• a requirement to account for profits to the Crown

• compensatory orders for victims and

• any other order the court may think fit.

Each assurance accepted forms part of the licensing public register. Accepted assurances may also be published in OCBA's annual report.

Public Naming

The Minister for Consumer Affairs and the Commissioner for Consumer Affairs are empowered under section 91A of the Fair Trading Act 1987 to publicly name a trader in order to protect the public. Section 91b provides immunity from liability for the Minister and the Commissioner.

Expiation

OCBA may issue an expiation notice in accordance with the Expiation of Offences Act 1996 as an alternative to prosecution. Specific breaches of legislation are expiable with a fee set at a much lower level than the maximum penalty that may be imposed by the court. An alleged offender may choose to pay the expiation fee or elect to be prosecuted in court.

Disciplinary Action

OCBA may take disciplinary action against a licensee under the following occupational licensing legislation:

• Building Work Contractors Act 1995

• Conveyancers Act 1994

• Hairdressers Act 1988

• Land Agents Act 1994

• Land Valuers Act 1994

• Plumbers, Gas-Fitters and Electricians Act 1995

• Second-hand Vehicle Dealers Act 1995

• Security and Investigation Agents Act 1995

• Trade Measurement Act 1993 and

• Travel Agents Act 1986.

Disciplinary action is designed to protect the public from unfair trading. The forum for disciplinary action is the Administrative and Disciplinary Division of the District Court and any person, including the Commissioner, may lodge a complaint to the court alleging grounds for disciplinary action to be commenced.

OCBA may seek orders from the District Court in a disciplinary action for:

• pecuniary penalties

• cancellation or suspension of a licence or registration

• variation to the licence or registration

• disqualification from being licensed or

• prohibition from participating in an industry.

Each disciplinary action court outcome is recorded on the licensing public register.

Civil Remedies

Civil action is designed to stop illegal conduct or to obtain redress for aggrieved parties or both. Under section 85 of the Fair Trading Act 1987, if the Supreme Court or District Court is satisfied that a person has suffered loss or damage owing to a contravention of this Act, the court may make an order against the person who breached the Act compensating the person who suffered the loss.

An application can be made by the person who has suffered the loss, or by OCBA, provided OCBA has written consent from the person who has suffered the loss. The application must be made within:

• two years from when the cause of action arose if it concerns unconscionable conduct under section 57 or

• three years from when the cause of action arose in any other case.

These orders may include orders for:

• payment of money as loss or damage

• avoiding whole or parts of a contract

• variation of a contract

• directing a refund or return of property or

• directing repair or parts for a good or the provision of specified services.

Prosecution

Prosecution aims to stop illegal conduct and through sentencing to act as a deterrent to further breaches of the law. Under the legislation administered by OCBA there are a number of courses of conduct that are considered criminal breaches. The penalites for breaching these include:

• fines and

• incarceration.

The guidelines for exercising the discretions set out in this section, outline when OCBA would seek prosecution.

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