Relevant legislation
Section 17AA and 86A of the Fair Trading Act 1987 (the FT Act) enables the Commissioner for Fair Trading to publish certain information about traders and licence holders if it is in the public interest.
NSW Fair Trading may publish on the Name and Shame Register regulatory actions taken against licence holders or traders (strata managing agents, real estate agents, and stock and station agents) under the Fair Trading Act 1987 and Property and Stock Agent Act 2002.
Regulatory actions that are published
NSW Fair Trading may publish information about the following regulatory actions taken by NSW Fair Trading on the Name and Shame Register:
Disciplinary action, including monetary penalties, reprimands, licence suspension and cancellation and disqualification
Disciplinary action may be taken by NSW Fair Trading against licence holders on grounds specified in the legislation under which a licence is issued.
Disciplinary action can include a caution or reprimand, monetary penalties, undertakings, directions to take specific actions or imposition of conditions on a licence or other actions specified under the relevant legislation administered by Fair Trading.
The suspension and cancellation of a licence
NSW Fair Trading may publish information about action it takes to suspend or cancel a licence under legislation that NSW Fair Trading administers.
Public warnings
NSW Fair Trading may issue public warnings about traders, goods, services, business practices and persons if it is in the public interest, aimed at reducing harm to members of the community. These warnings may include information about a trader including the name of their business, the business practice and other information to warn consumers.
Public warnings that are published will remain on the Name and Shame Register permanently.
Enforceable undertakings
NSW Fair Trading may accept undertakings from traders in connection with a matter in relation to which NSW Fair Trading has a power or function. The reasons for entering into an undertaking will vary depending on the legislation that is relevant to the matter. The terms will also vary, as will the methods of enforcing the undertaking. These undertakings are enforceable and failure to comply with the undertaking may result in further regulatory action.
Prosecution outcomes
NSW Fair Trading may publish information about the outcome of a prosecution for an offence pursuant to legislation administered by NSW Fair Trading legislation.
Penalty notices
Some offences are prescribed as penalty notice offences in legislation administered by NSW Fair Trading. These are fines that may be issued if NSW Fair Trading is satisfied that there is evidence of an offence under the relevant legislation under which the penalty notice is issued.
Trader information that is published
Generally, the following information about the trader and regulatory action will be published on the Name and Shame Register:
- licence holder or trader
- ABN
- licence number (and details)
- licence status and conditions of licence (including cancelled, suspended or disqualified)
- address (suburb only)
- type of action taken and reason for action (including suspension, disciplinary action, public warning, undertaking, prosecution, penalty notice)
- description of the offence and legislative provision, where relevant
- fine amount
- date of action taken.
Publication criteria for regulatory actions
In deciding whether regulatory action may be published on the Name and Shame Register NSW Fair Trading will consider the following factors:
- conduct that has or could cause significant harm to the public, individuals or consumers
- conduct disproportionately impacting or targeting disadvantaged or vulnerable consumer groups
- conduct that suggests a pattern of non-compliance by the business or is indicative of a risk of future misconduct
- conduct demonstrating a blatant disregard for the law or a practitioner’s professional obligations
- conduct involving a significant new or emerging market issue that could cause harm
- conduct resulting in financial gain or benefit from non-compliance
- conduct NSW Fair Trading has publicly announced under its Regulatory Priorities
- conduct that is industry-wide or may become widespread.
Publication criteria for Penalty Notices
Examples of high risk penalty notices, that is, those involving conduct that has or could cause significant harm to the public, individuals or consumers:
- breach of rules for ending a tenancy agreement resulting in unlawful termination
- failure to remove personal information from a residential tenancy database after the prescribed time periods
- unlawfully disclosing prescribed domestic violence order information
- inducing somebody into a contract by false/misleading/deceptive statement
- unlawful lockout – residential tenancy
- act/carry on business/advertise without licence
- underquoting
- engaging in dummy bidding at an auction
- failure to disclose interest before being appointed as strata managing agent
- disqualified person carrying on commercial agent activity or work that requires a licence, or excluded person participating in the short-term rental accommodation industry
- knowingly producing false/misleading document/record
- attempt to/approach property to carry out commercial activity when not licenced
- obstructing or hindering a NSW Fair Trading investigation
- breach of a rectification order or other action taken by NSW Fair Trading
- failure to ensure quality of listing on a residential tenancy database
- breach of requirements relating to fees and charges at the start of a tenancy agreement
- advertising that no pets may be kept at rented premises.
NSW Fair Trading may also publish information about penalty notices if there is a pattern of misconduct - such as two or more penalty notices for the same offence being issued to a licence holder or trader within a period of 24 months.
Timeframes for publishing on the Name and Shame Register
| Regulatory Action | Timeframe to appear on the register | Duration of time on the register |
|---|---|---|
| Licence cancellations, disqualifications or suspensions | Date of commencement | Cancellation and disqualification - 10 years Suspension - removed 12 months after the end date |
| Conditions on licence | Date of commencement | Period of condition on the licence |
| Public warnings | Date of effect | Permanent |
| Enforceable undertakings | Date of commencement | Period of undertaking plus an additional 12 months |
| Prosecution outcomes | 28 days from the date of outcome if no appeal has been filed | 10 years |
| Monetary Penalties (Disciplinary Action) | Date of commencement | 12 months |
| Reprimand or caution (Disciplinary Action) | Date of commencement | 12 months |
| Directions to take certain action (Disciplinary Action) | Date of commencement | 12 months |
| Penalty notices | 90 days from when the Penalty Notice was issued: if contested, in line with the time frame of prosecution outcomes | 12 months 12 months from last offence if two or more PINs for the same offence code are issued in 12 months |
Information published for expired or cancelled licences
If the licence of a licence holder who incurred a regulatory action has subsequently expired, or been suspended, or cancelled, details of that licence and regulatory actions taken by Fair Trading will remain on the Name and Shame Register for the period specified above for each regulatory action. As Fair Trading maintains lifetime licence numbers of licence holders and traders, the compliance history will be maintained on the Name and Shame Register and the Verify NSW record.
Amending information on the Name and Shame Register
If information about you or your business is listed on the Name and Shame Register you can make an application for a change to the information on the register, pursuant to section 17AA of the Fair Trading Act by lodging an enquiry with NSW Fair Trading.
You can also make an application pursuant to section 58 of the Privacy and Personal Information Protection Act 1998 to request NSW Fair Trading supress your personal information from the register if the safety or well-being of any person would be affected. NSW Fair Trading will consider your request and will consider whether the public interest in maintaining public access to the information outweighs any individual interest in suppressing the information.
You may do so here:
Review of the publication of regulatory actions
NSW Fair Trading will review the publishing of regulatory actions taken by Fair Trading after an initial 12-month period.