Consumer Protection (NSW)

Consumer protection in New South Wales is governed by the Fair Trading Act 1987. This Act applies Australian Consumer Law, as defined in Schedule 2 of the Competition and Consumer Act, as the law in the state.

The Act is administered by Fair Trading NSW, which is a division of the Department of Customer Service. The agency is also responsible for administering a diverse range of other NSW acts, including the Agricultural Tenancies Act 1990, Charitable Fundraising Act 1991, Conveyancers Licensing Act 2003, Entertainment Industry Act 2013, Gas and Electricity (Consumer Safety) Act 2017, Pawnbrokers and Second-hand Dealers Act 1996, Property and Stock Agents Act 2002, Swimming Pools Act 1992 and Tow Truck Industry Act 1998.

Fair Trading NSW

Fair Trading NSW enforces Australian Consumer Law for consumers, businesses, property owners and tenants in the state. Its role includes:

• advising and educating consumers and businesses about their rights and obligations;
• ensuring products meet safety standards;
• registering and licensing businesses and occupations;
• facilitating dispute resolution;
• collaborating with industries, consumers, organisations and other regulators to deliver effective regulation;
• monitoring compliance with consumer laws via data analysis, risk-based targeting, inspections, audits and investigations;
• enforcing compliance through sanctions and remedies;
• providing protection and redress schemes.

NSW Fair Trading deals with five broad markets: general consumer, building, property, automotive, and registered organisations and charities. It offers specialised help for indigenous Australians, seniors and people with a disability.

It can take compliance and enforcement action against businesses who do not abide by consumer guarantees. It has a range of compliance and enforcement methods available to it, from written warnings and Penalty Infringement Notices to enforceable undertakings and prosecution.

Fund administration

Fair Trading NSW is responsible for administering the NSW Consumer Law Fund, a trust fund established under Section 79Y of the Act. The fund receives its money through fines for breaching the Act. The money can be used for purposes such as to pay damages to consumers or to improve consumer well-being or protection.

It is also responsible for administering the Property Services Compensation Fund and the Motor Dealers & Repairers Compensation Fund. These funds compensate consumers for a loss suffered as a result of actions by a licensed property agent or motor vehicle dealer or repairer.

Consumer guarantees

Under Australian Consumer Law, businesses must guarantee their products and services. The guarantees provide consumer rights when products or services are defective.

Products must be safe, lasting, have no faults, look acceptable and be fit for purpose. They must also:

• match all descriptions, on packaging and in advertising;
• come with full ownership and undisturbed possession;
• not carry hidden debts or charges;
• meet any extra promises, such as lifetime guarantees;
• have spare parts and repair sites available unless a consumer is told otherwise.

Services must:

• be provided with sufficient care, skill and technical knowledge and avoid loss and damage;
• provide results agreed by the parties;
• be delivered in reasonable time when there is no end date.

Complaint handling and dispute resolution

If a dispute with a business over a consumer guarantee cannot be solved by communicating directly with the business, there are several options that offer consumer protection.

Mediation

If a consumer and business have shown they are unable to resolve a dispute, NSW Fair Trading will attempt to mediate an outcome satisfactory to both parties. Participation is voluntary and any determination is not binding.

NSW Civil and Administrative Tribunal

If an agreement cannot be reached, an application can be made to the NSW Civil and Administrative Tribunal. NCAT can determine a consumer dispute in one of several ways, including:

• ordering money be paid or refunded;
• ordering specific performance under a contract;
• ordering rescission of a contract.

NSW Ombudsman

This body investigates complaints about public sector agencies, local councils, community service providers, prisons and public interest disclosures. It also provides education and training about complaint handling, and reviews designated Aboriginal programs

After considering a dispute, the Ombudsman can recommend, for example, that:

• conciliation be attempted;
• the matter not be investigated, and provide reasons for this decision;
• the matter be referred to an authority such as NCAT or the Supreme Court to be determined.

Legal proceedings

As a regulator, Fair Trading NSW states its “main concern is to minimise any direct financial or material harm or detriment to a consumer from a business that fails to comply with the law”. This places the public interest as the over-riding concern for the agency in deciding whether a matter should be prosecuted. Court orders sought include fines, injunctions or trading prohibition orders.

For advice or representation in any legal matter, please contact Armstrong Legal.