How we decide to take disciplinary action

About disciplinary action

NSW Fair Trading can take different types of disciplinary action against a current or former holder of a licence, certificate or other authority (Authority Holder). Under some laws, NSW Fair Trading can take disciplinary action against directors and supervisors of businesses.

The purpose of taking disciplinary action against an Authority Holder is to protect, rather than to punish. Our goal is to:

• protect the public
• protect the industry
• protect the interests of the Authority Holder.

These are considered during the disciplinary process.
 

The types of disciplinary actions that may be taken against an Authority Holder commonly include one or more of the following:

• caution or reprimand
• a direction requiring them to give an undertaking, or take specified action
• imposition of a monetary penalty
• imposition of a condition on an authority
• suspending an authority
• cancelling an authority
• declaring the Authority Holder to be a disqualified person either permanently or for a specified period
• disqualifying the Authority Holder from being involved in the direction, management or conduct of the business where an authority is required, either permanently or for a specified period.

In matters concerning the Property and Stock Agents Act 2002 (NSW), in addition to the above actions, the following actions may be taken:

• requiring the Authority Holder to publicise their misconduct in a way specified by NSW Fair Trading
• requiring the Authority Holder to engage an independent valuer, for a period specified by NSW Fair Trading, to verify the estimated selling price or the revised estimated selling price in an agency agreement
• requiring the licensee in charge to approve the estimated selling price or the revised estimated selling price in agency agreements, for a period specified by NSW Fair Trading
• suspending an Authority Holder from exercising certain functions
• requiring the Authority Holder to provide an indemnity for claims against the Property Services Compensation Fund arising from their conduct. 

NSW Fair Trading prioritises the most serious financial, safety and other harms to the public. 

Reasons for taking disciplinary action include:

• the Authority Holder has contravened a provision of a law administered by the Minister
• the Authority Holder has, in respect of their conduct of business or exercise of functions under the authority, contravened the Competition and Consumer Act 2010 of the Commonwealth
• the Authority Holder has contravened a condition of the authority
• the Authority Holder has, in the course of carrying on business or exercising functions under the authority, acted unlawfully, improperly, unfairly or incompetently
• the Authority Holder is a disqualified person or is otherwise not eligible under section 14 of the Property and Stock Agents Act 2002 (NSW) to hold an authority
• the Authority Holder is not a fit and proper person to be involved in the direction, management or conduct of the business of a licensee
• the Authority Holder has failed to pay any part of a contribution or levy that is due and payable to the Property Services Compensation Fund
• the Authority Holder has breached an undertaking they have given to NSW Fair Trading, in respect of their conduct of business or exercise of functions under the authority
• the Authority Holder has failed to comply with a direction given to them by NSW Fair Trading pursuant to the taking of disciplinary action
• the Authority Holder has failed to pay a monetary penalty imposed on them by NSW Fair Trading pursuant to the taking of disciplinary action
• the issue of the person’s authority was obtained by fraud or mistake.

Notice to Show Cause

NSW Fair Trading will decide if there is sufficient grounds for taking disciplinary action, and if there is evidence to support it. If this occurs, a Notice to show cause will be issued to the Authority Holder.

In some circumstances, a Notice to show cause may also be issued to a director or nominated supervisor of the company.

A Notice to show cause sets out the evidence and will provide an opportunity for the Authority Holder to respond.

An Authority Holder may obtain legal advice or representation. They may make submissions (either orally or in writing) to:

• explain why disciplinary action should not be taken against them
• make an admission of guilt
• propose an appropriate penalty
• outline any mitigating factors that should be considered.

In some circumstances, an immediate suspension might be put in place when a Notice to show cause is issued, if it’s in the public interest.

NSW Fair Trading actions taken against a business or individual may be published on the NSW public register, NSW Fair Trading’s Name and Shame Register and in public data and statistics.
 

Avenues for appeal

An Authority Holder issued with a disciplinary action decision may:

• request an internal review of that decision
• submit an application for review by the NSW Civil and Administrative Tribunal if they are not satisfied with the internal review decision.
   

Relevant legislation to be considered

• Conveyancers Licensing Act 2003(NSW)
• Motor Dealers and Repairers Act 2013(NSW)
• Paintball Act 2018(NSW)
• Pawnbrokers and Second-hand Dealers Act 1996(NSW)
• Property and Stock Agents Act 2002(NSW)
• Tow Truck Industry Act 1998 (NSW)