Investigating your business
These guidelines for business summarise the powers of NSW Fair Trading investigators. In some instances, the powers of investigators can extend beyond those covered here.
Why is my business being investigated?
NSW Fair Trading initiates investigations to check whether people and businesses are complying with the legislation administered by the Minister for Fair Trading and takes action to remedy non-compliance.
An investigation could commence in response to a complaint or be part of a compliance operation that investigates many businesses during a particular period.
Top of pageDoes an investigator have the right to enter my premises?
An investigator may, at a reasonable time, enter any place that he or she believes on reasonable grounds to be a place where goods are manufactured, prepared or supplied or at a place where services are supplied or arranged.
The power to enter a place or land includes a power to enter a place that is a dwelling or other residential premises where the occupier consents, or some manufacture, business or trade is carried on there.
What can an investigator inspect?
An investigator may make any inspections considered necessary. This can include but is not limited to inspecting goods or partially manufactured goods.
What inquiries can an investigator make?
As part of the investigation, an investigator may question any employee or person engaged in the business at the place entered.
Can evidence be obtained from my business or anyone associated with my business?
An investigator, with the written authority of the Director-General, may enter premises and inspect, make copies of and take extracts from, any document believed to be evidence that a Fair Trading law has been breached.
If the Director-General reasonably believes a person or organisation can provide information or evidence regarding a breach of a Fair Trading law, an investigator can request this information or evidence from the person by notice in writing.
Can I refuse to co–operate with the investigator?
It is an offence to hinder or obstruct investigators from undertaking their duties. It is also an offence not to provide an investigator with reasonable facilities and assistance so they can effectively exercise their powers.
Hindering or obstructing an investigator can incur penalties of up to $2,200 or imprisonment up to six months or both.
What if I’m found to be in breach of the law?
If you are found to be in breach of the law the NSW Government has a number of options available, including:
- an enforceable undertaking, a legally-binding agreement to do certain things so you will comply with the law
- an injunction to stop you continuing to do something which breaks the law. For example, you may have to cancel advertising that is considered to be misleading
- issuing a public warning notice
- prosecution through the courts
- imposing of financial penalties
- notice to place corrective advertising. You may be required to place an advertisement in a major paper that gives customers certain information about their business, such as fees not disclosed in previous advertisements
- freezing of bank accounts
- referral of complaints to other authorities or bodies.
| IMPORTANT – consumers and businesses also have the right to compensation through the courts for any loss or damage that occurs due to a business breaking the law. |
What conduct can I expect from investigators?
Fair Trading maintains its business relationships in line with NSW government codes of practice based on:
- open and effective communication
- respect and trust
- non-adversarial dispute resolution.
Investigators consider all relevant facts, legislation, policies and procedures before finalising their investigations and making recommendations.
Investigators are bound by a code of conduct and uphold organisational values. Investigators must ensure that decisions and actions are:
- reasonable
- fair
- appropriate to the circumstances.
What should my business do to co–operate with the investigation?
Your business can assist investigators by:
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providing accurate and reliable advice and information when required
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acting ethically, fairly and honestly in all dealings with investigators
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not offering investigators gifts or other benefits designed to improperly influence the conduct of their duties.
Appointment of Fair Trading investigators
Fair Trading investigators are appointed under section 18 of the Fair Trading Act 1987 and are authorised to investigate matters relating to any legislation administered by the Minister for Fair Trading.
What if I want further information?
Further information on the specific powers of investigators is available from www.legislation.nsw.gov.au
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