The Director General can take disciplinary action against licensees and certificate of registration holders, and former licensees and certificate holders, who:
Where there are grounds for disciplinary action, the Director General can take the following actions:
In addition to the disciplinary action option, the Director General can:
Any person can make a complaint to the Director General about a breach of the legislation.
NSW Fair Trading can conduct investigations and take disciplinary action whether or not a complaint has been made, for example, where an investigator has identified a breach.
Penalty notices are a quick and efficient means of dealing with minor offences.
NSW Fair Trading can serve a penalty notice on a person if there is evidence that they have committed an offence under the Act or Regulation.
If the person does not wish to have the matter determined by a court, they may pay the amount of the penalty within the time specified in the notice. Payment of the penalty is not regarded as an admission of liability and prevents further disciplinary action from being taken for the offence, but does not affect any civil claim arising from the matter.
The aim of the penalty notice scheme is to encourage changes in an agent’s conduct to achieve compliance with the laws. NSW Fair Trading has guidelines on the use of penalty notices to ensure that the integrity of the penalty notice scheme is maintained and that it is used consistently and only for appropriate offences, that is, offences of a minor or technical nature. Circumstances where stronger disciplinary action would be more appropriate might include repeat or deliberate offences or behaviour that has caused serious detriment to consumers.
When new penalty notice offences are introduced, it is NSW Fair Trading’s policy to proceed with gradual implementation in the first six months. During this time on-the-spot notices are not issued and all penalty notices must be approved at a supervisory level before being issued.
Penalties under the Act reflect the seriousness of offences. For example, a person who commits trust account fraud will be guilty of an indictable offence and liable to imprisonment for a term of up to 10 years. A maximum penalty of $22,000 will apply for unlicensed trading by a corporation and $11,000 for an individual. Similar penalties apply for collusive practices at auction sales.
Disciplinary action by the Director General may be reviewed by NCAT.
The Director General can serve a show cause notice on a person where there are grounds for taking disciplinary action against the person.
A show cause notice gives the person the opportunity to make a submission to the Director General to demonstrating the reasons why he or she believes that the proposed disciplinary action should not be taken. A person to whom a show cause notice has been issued is able to seek legal assistance in the preparation of a submission.
The issue of a show cause notice is usually the first step taken in a procedure which may result in a licence being suspended or cancelled or a person being disqualified from holding a licence.
In situations of serious risk, the Director General may immediately suspend a licence or certificate when issuing a show cause notice.
Show cause notices:
A person who receives a show cause notice can make oral or written submissions to the Director General. For more information, go to the Notice to show cause page.
A person against whom disciplinary action is taken may apply to NCAT for a review of the Director General’s decision on the disciplinary action.