1. law, govt and politics
2. law enforcement

Compliance and enforcement policy and
standards
Version 2.02
– May 2015
Office of Fair Trading
Compliance and enforcement policy and standards Office of Fair Trading
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© The State of Queensland, Department of Justice and Attorney-General 2014
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Enquiries about reproduction, including downloading or printing the web version, should be
directed to [email protected] or telephone 13 QGOV (13 7468).
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Contents
Contents
3 1 Introduction
6 1.1 1.2 1.3 1.4 1.5 Purpose of this document
Fair Trading Queensland – compliance and enforcement
Compliance mission
Approach to compliance
Overview
1.5.1 Case assessment
1.5.2 Inquiry
1.5.3 Enforcement action
1.5.4 Review
1.6 Risk management
1.6.1 Application of risk management principles
1.7 Compliance
1.7.1 Enforcement
1.8 Data collection and analysis
6 6 7 8 9 9 10 10 10 10 11 11 11 12 2 Case assessment
13 2.1 2.2 2.3 2.4 2.5 2.6 2.7 Purpose of case assessment
Benefits of case assessment
Case assessment principles
Case assessment considerations
Case assessment flow chart
Case assessment phases
Information
2.7.1 Current complaints
2.7.2 Trader outside the region
2.7.3 Complaint information
2.7.4 Internally generated compliance matters
2.7.5 Requesting further information
2.8 Breach identification
2.8.1 Substantive breach
2.9 Jurisdiction
2.9.1 Referral to another organisation (Refaway)
2.10 Inquiry Policy
2.10.1 Declining to investigate a matter
2.10.2 Recording the decision not to accept for inquiry
2.10.3 Advising complainant of the decision not to accept
2.10.4 Anonymous or unidentifiable complainants
2.10.5 Accepting the matter for inquiry
2.11 Categorisation
2.12 Category 0 – Extreme risk
2.12.1 Assessment factors
2.12.2 Assessed Category 0 matters
2.13 Category 1 – Very high risk
2.13.1 Assessment factors
2.13.2 Examples of Category 1 matters
13 13 14 14 14 15 15 15 15 16 16 16 16 17 17 17 18 18 19 19 19 19 19 20 20 20 21 21 21 3
2.14 Category 2 – High risk
2.14.1 Assessment factors
2.14.2 Examples of Category 2 matters
2.15 Category 3 – Moderate risk
2.15.1 Assessment factors
2.15.2 Examples of Category 3 matters
2.16 Category 4 – Low risk
2.16.1 Assessment factors
2.16.2 Examples of Category 4 matters
2.17 Breach Categories
2.17.1 Fixed categories
2.17.2 Variable categories
2.18 Case complexity
2.19 Assessment time frames
2.19.1 Exceptions to the 14 day assessment
2.20 Multiple complaints
2.21 Claims against the Claim Fund
2.22 Assistance from specific compliance areas
2.23 Changing breach categories
2.24 Prioritisation
2.25 Ministerial and tribunal matters
21 22 22 22 22 23 23 23 23 23 24 24 25 25 25 26 26 26 26 27 27 3 Inquiry
28 3.1 3.2 3.3 3.4 3.5 28 28 28 28 30 30 30 32 33 33 34 34 34 34 35 36 36 37 37 37 38 38 Purpose of inquiry
Inquiry types
Linking to case assessment
Inquiry time frames
Investigation action
3.5.1 Investigation principles
3.5.2 Investigation methodology
3.5.3 Investigation reporting
3.5.4 Procedural fairness
3.5.5 Assessment of evidence
3.5.6 Sufficiency of evidence
3.5.7 Insufficient evidence
3.5.8 Investigation (finalisation) report
3.6 Dealings with the complainant
3.6.1 Suspending complainant contact
3.7 Redress
3.7.1 Risks associated with conciliating redress
3.7.2 Conciliation during investigation
3.8 Inquiry closure considerations
3.9 Compliance advice letter
3.10 Non–investigation action
3.10.1 Deciding what non-investigative action to take
4 Enforcement action
4.1 4.2 4.3 40 Enforcement action components
Purpose of enforcement
Enforcement strategy
40 40 40 4
4.4 Enforcement action principles
4.4.1 4.4.2 41 41 41 41 42 42 43 44 44 45 45 46 47 48 48 48 49 49 50 50 50 50 51 51 53 53 54 54 56 57 57 57 Decision to take enforcement action
Consultation with the fair trading Enforcement Coordinator
4.5 General Rule of Enforcement
4.5.1 Exceptions to the General Rule of Enforcement
4.6 Multiple breaches
4.7 Enforcement and other options
4.7.1 Official warning
4.7.2 Withdrawal of official warning
4.7.3 Infringement notices
4.7.4 Civil penalty notice (ACL)
4.7.5 Enforceable undertakings
4.7.6 Injunctive action
4.7.7 Compensation order
4.7.8 Non-party redress
4.7.9 Adverse publicity order
4.7.10 Non-punitive order
4.7.11 Public naming
4.7.12 Public warning – ACL (Only)
4.7.13 Pecuniary penalty
4.7.14 Disqualification order
4.7.15 Disciplinary action – tribunal
4.8 Commencement of Proceedings
4.8.1 Decision to commence enforcement action
4.8.2 Prosecution
4.8.3 Prosecution proceedings – public interest
4.8.4 Mitigating circumstances
4.8.5 Full brief of evidence (Full Brief)
4.8.6 Short brief of evidence (Short Brief)
4.8.7 Prosecutions – Criminal Code
4.8.8 Commencement of civil actions (including ACL(Q) matters)
4.8.9 Charge and Plea Negotiations
5 Review
59 5.1 5.2 5.3 59 59 59 59 60 60 60 62 62 62 63 Review principles
Self-review and peer / colleague review
Office / Regional reviews
5.3.1 Review key factors
5.4 Review initiated by complainant
5.4.1 Requests for review
5.4.2 Review assessment
5.4.3 Conduct of review
5.4.4 Administrative transparency
5.4.5 External review
5.4.6 Privacy
6 Appendix A – Compliance model
64 7 Appendix B – Complexity factor rating descriptions
65 8 Appendix C – Glossary
68 5
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Introduction
1.1
Purpose of this document
The purpose of this document is to provide the general policy and standards on which the Office of
Fair Trading (OFT) bases its compliance business. It is a document that may be updated and
amended from time to time to reflect changes in compliance and operational focus.
As this document covers the compliance and enforcement practices for all legislation administered
by OFT, the changes brought about by the introduction of the Australian Consumer Law
(Queensland) (ACL (Q)) are incorporated into this policy and standards and work in conjunction
with existing policies and procedures, which aim to achieve the objectives of the Australian
Consumer Law (ACL) – Compliance and Enforcement Policy.
This policy and standards is formulated on a risk model comprising four key elements to the
compliance monitoring and enforcement cycle. The document contains Case Assessment, Inquiry,
Enforcement and Review procedures as well as complaint management and investigation
standards. Further standards involving key compliance and enforcement aspects will be
incorporated into the document over time.
1.2
Fair Trading Queensland – compliance and enforcement
A key part of regulatory reforms initiated by the Council of Australian Governments (COAG) to
deliver a seamless national economy resulted in the implementation of recommendations made by
the Productivity Commission (2008) in its review of Australia’s consumer policy framework.
Fair Trading Queensland’s Compliance and Enforcement Policy and Standards support the ACL
Compliance and Enforcement Policy. The objective of the new national consumer policy is to
improve consumer wellbeing through consumer empowerment and protection, to foster effective
competition and to enable the confident participation of consumers in markets in which both
consumers and suppliers trade fairly.
This objective is supported by six operational objectives:
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to ensure consumers are sufficiently well-informed to benefit from and stimulate effective
competition
to ensure goods and services are safe and fit for the purposes for which they were sold
to prevent practices that are unfair
to meet the needs of those consumers who are most vulnerable or are at the greatest
disadvantage
to provide accessible and timely redress where consumer detriment has occurred
to promote proportionate, risk-based enforcement
OFT contributes to achieving the Queensland Government’s objective of creating “A strong
diversified economy”.
OFT is committed to deterring, detecting and remedying improper practices that have the potential
to cause serious detriment or inconvenience to consumers and the marketplace. To do this
effectively, OFT’s limited compliance resources should primarily be focused on higher-risk activity
that takes advantage of consumers and undermines the efficiency of the marketplace through:
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misleading or deceptive practices, unconscionable conduct, and false or misleading
representations, or
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ignorance or neglect of obligations, including failure to remedy less serious matters of noncompliance after being requested to do so by OFT
OFT aims to maintain and encourage marketplace compliance by:
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investigating complaints where there is sufficient information to justify this
undertaking timely and effective compliance monitoring initiatives, including spot checks of
licensees' and traders' premises as well as strategic targeting of high risk areas to deter noncompliant behaviour
investigating and processing claims against the Claim Fund set up under the Agents Financial
Administration Act 2014 (AFAA).
initiating and/or undertaking appropriate enforcement options, including disciplinary action
against licensees
recovering debts owed to OFT by traders as a result of claims payments, tribunal fines, tribunal
and court costs awards, and court ordered civil penalties, and on behalf of consumers,
compensation awards
undertaking awareness activities to assist traders and licensees in meeting their legislative
obligations, which in turn will minimise the risk of future non-compliance
The range and number of traders subject to fair trading legislation is extensive given the breadth of
the Fair Trading Act 1989 incorporating the ACL provisions. A number of specific industries,
including, property agents, motor dealers, commercial agents, property developers, second-hand
dealers, pawn-brokers, security providers (including private investigators), introduction agents,
fitness providers, tattoo parlours and travel agents are subject to additional industry-specific
regulation.
1.3
Compliance mission
OFT’s state-wide compliance monitoring program is delivered through Brisbane based and
regional staff. OFT aims to ensure businesses operate responsibly, through checking compliance
with legislation and trading standards.
The function of the Commissioner for Fair Trading is defined under section 11 of the Fair Trading
Act 1989. Functions include:
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administer the provisions of this Act and to facilitate its operation
promote the interests and awareness of consumers and persons negotiating or considering the
acquisition of goods or services as consumers.
collect, examine and disseminate information on matters affecting or likely to affect the
interests of consumers or persons negotiating or considering the acquisition of goods or
services as consumers
receive and consider complaints on matters affecting or likely to affect the interests of
consumers or persons negotiating or considering the acquisition of goods or services as
consumers and, if warranted, investigate the complaints and take such action in respect of the
matter as seems proper to the commissioner
investigate fraudulent or deceptive practices on matters that affect or are likely to affect the
interests of consumers or persons negotiating or considering the acquisition of goods or
services as consumers and to take such action in respect of the practices as seems proper to
the commissioner
advise and assist persons who seek information or guidance on matters affecting or likely to
affect their interests as consumers or as persons negotiating or considering the acquisition of
goods or services as consumers
encourage and undertake the dissemination of information concerning consumer affairs to
producers, manufacturers and suppliers of goods or services
take action to promote and ensure safety in the supply of goods and services
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administer such provisions of other Acts and discharge such other functions as directed by the
Minister.
Accordingly, OFT’s compliance mission is:
“To contribute to the integrity of trading practices in Queensland by actively delivering a
range of fair, focused and appropriate compliance and investigations services, including
enforcement”.
1.4
Approach to compliance
This policy and standards is the platform on which OFT conducts its compliance business and has
been designed to deliver effective compliance outcomes.
As with other ACL regulators OFT’s approach to compliance is based on the following principles:
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Transparency
OFT will deal with consumers and traders in an open and transparent manner so they will have
a clear understanding of what is expected from them and what they can expect from the
regulator.
Confidentiality
In general, investigations are conducted confidentially and OFT will not comment on matters
they may or may not be investigating.
Timeliness
Complaint handling, the investigation process and the resolution of enforcement matters should
be dealt with in a timely, appropriate and cost effective manner.
Consistency
OFT does not make ad hoc decisions, they set their focus clearly to give business certainty
about their actions by assessing, investigating and enforcing fairly across comparable
situations, according to the circumstances.
Proportionality
Any enforcement action should be in proportion to the level of consumer detriment and to the
seriousness of the breach.
Targeted
OFT will make effective use of limited resources by targeting issues and traders in line with
risks, new and emerging issues and enforcement priorities.
Accountability
OFT is accountable to the public for its compliance and enforcement activities and adopts
accountable investigative methodologies with identifiable responsibilities.
National awareness
OFT will make compliance and enforcement decisions cognisant of the national implication of
actions taken.
Flexibility
OFT will respond to changing marketplace issues through considered marketplace compliance
and enforcement activities.
Effectiveness
OFT will apply appropriate enforcement and non-enforcement options (including stakeholder
education) to secure the most suitable compliance outcomes.
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By applying these principles, OFT aims to ensure that:
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It’s compliance business is outcome focused. The focus is on delivering quality outcomes,
especially in enforcement, to prevent and deter non-compliant behaviour and to encourage a
more ethical and equitable marketplace.
It’s compliance business is risk management based. OFT does not have the resources to
fully investigate every alleged breach and should focus its valuable investigation resources on
the medium to high risk matters.
All breaches of legislation administered by OFT will be afforded some form of inquiry
action, unless a policy reason exists not to do so. Low risk matters (Category 4) will be
resolved by mediation, trader education or by a proactive compliance strategy.
Trader behaviour OFT suspects is deceitful, dishonest or seriously non-compliant will
be given the highest risk rating. Category 0, 1 or 2 matters.
Matters accepted for investigation will be accorded best practice investigation
methodology. Higher standards should deliver better outcomes.
Enforcement action will be commensurate with the type of breach of legislation and
circumstances surrounding it. As a general rule - the more serious the breach, the stronger
the enforcement action.
Compliance business will be constantly reviewed to ensure consistency, best practice
and continuous improvement. On a regular basis, an adequate sample of files will be subject
to quality review and analysis.
Consumers and business alike will be professionally dealt with. OFT aims to address
complaints in accordance with best practice and will incorporate any relevant recommendations
made by the Ombudsman.
1.5
Overview
This policy and standards comprises four key elements that work together to assess, inquire,
address and analyse information relating to complaints and suspected breaches of legislation and
guide officers in the commencement of appropriate enforcement activities, whilst ensuring
consistent, accountable, flexible, efficient and effective policy and standards are applied.
The four key elements are:
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Case Assessment
Inquiry
Enforcement Action
Review
A brief overview of each element is in the following paragraphs, with more detail contained in the
respective Parts of this document (sections 2 to 5). A flow chart depicting the elements and
associated actions in this Compliance Model is at Appendix A. This policy and standards is based
upon principles from risk management, compliance programs and complaints handling standardsi.
1.5.1
Case assessment
OFT obtains information from a wide range of sources including consumer complaints, external
agencies, pro-active compliance activity and intelligence analysis. The number of complaints and
suspected breaches originating from this information far exceeds OFT’s capacity to investigate all
matters appropriately. A case assessment and conciliation function is utilised to support OFT in
meeting its responsibilities under legislation administered by OFT, with a view to maximising the
effective use of resources and by providing a contemporary and innovative compliance program. It
i
AS/NZS 4360: 2004, AS 3806: 1998, and AS 4269: 1995 respectively.
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takes into consideration factors with which to determine the degree of risk and the most
appropriate action to be taken.
1.5.2
Inquiry
Inquiry consists of two elements:
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non-investigation action
investigation.
Non-investigation action of matters will primarily result from complaints or issues assessed as low
risk where OFT considers the issues can be addressed through a considered allocation of
resources. The following actions may result:
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compliance spot check
trader education visit
mediation
referral back to the trader or industry association, where relevant, for complaint resolution
pursuant to the procedures outlined in that industry’s Code of Conduct.
Investigation of matters will apply a high standard of investigation methodology. The primary
purpose will be to ascertain the facts surrounding a complaint or issue, evaluate any evidence
obtained and where relevant, consider appropriate enforcement action.
1.5.3
Enforcement action
This involves the application of enforcement action appropriate to the alleged breach. As a general
rule, enforcement action is to follow all identified breaches. OFT’s focus is on delivering consistent
and fair enforcement outcomes that will contribute to the Compliance mission (section 1.3). The
sufficiency of evidence, degree of public interest and seriousness of the breach are key
components to this element. The more serious the matter, the more likely OFT will take some form
of court or tribunal action e.g. prosecution or disciplinary proceedings.
1.5.4
Review
Review involves analysis and systematic re-evaluation of all actions taken in dealing with the
complaint to ensure:
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breach categories and the particular breaches that fall within them are relevant and effectively
applied
inquiry standards and processes are appropriate and applied consistently
enforcement action is correctly applied and secures effective outcomes
emerging trends or indicators of serious non-complaint behaviour are identified and acted on
appropriately
legislation is current, relevant and contributes to OFT’s effectiveness
a satisfactory standard of overall performance is maintained.
Review also serves to identify training needs and assists in improving policy and procedures.
1.6
Risk management
In a risk management context, each element of this policy and standards combine to deliver a
compliance and enforcement cycle that identifies and addresses instances of non-compliance.
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OFT will continually improve the risk management process to provide greater flexibility and
accuracy in managing risk, on a complaint-by-complaint basis, across industries and also, across
jurisdictional boundaries. The elements and the reasons for their relationship to the risk
management process are provided in table 1.
Element
Case assessment
Inquiry
Enforcement action
Review
1.6.1
Risk management process
Identify, assess, categorise and prioritise risk (and case
complexity, where appropriate).
Investigate and evaluate risk.
Treat according to degree of risk.
Monitor risk management practices, and identify and
communicate risk potential and trends.
Table 1: Framework elements and their processes
Application of risk management principles
The application of risk management principles is based upon identifying, investigating, addressing
and deterring unacceptable trader behaviour. OFT’s actions will contribute to building consumer
and business confidence in fair market outcomes.
1.7
Compliance
OFT’s efforts include a focus on consumer and trader education, working with business and
industry to promote compliance with the law, and is accompanied by market intelligence gathering
to improve our knowledge of market conditions and the experiences of consumers and traders in
the market.
1.7.1
Enforcement
OFT has a range of civil, administrative and criminal enforcement remedies at its disposal under
the ACL(Q) and other legislation.
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When enforcing compliance OFT will, as far as possible, seek to:
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stop the unlawful conduct
undo the harm caused by the contravening conduct (for example by corrective advertising or
redress for consumers and businesses adversely affected)
ensure future compliance with the law
deter future offending conduct
encourage the effective use of compliance systems
where warranted, initiate appropriate enforcement actions against the wrongdoer.
OFT will choose the most appropriate enforcement tools to achieve these outcomes in a timely and
proportionate manner.
1.8
Data collection and analysis
In managing Fair Trading output, heavy reliance is placed on the collection and analysis of
accurate and consistent data about OFT’s activities.
This information is regularly reported to Parliament, the media and central agencies through the
Agency Service Delivery Statement. Information gained from data collected is also used to:
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provide intelligence about industries, products and practices
inform our business strategy and management of OFT
generate community awareness of fair trading issues
support submissions for additional funding.
The data is also used to inform senior managers about the Department’s effectiveness and
efficiency and the state of progress towards achieving the Department’s goals.
Accordingly, the compliance and enforcement data entered into the Marketplace Accreditation and
Compliance System (MACS) as officers undertake their duties is essential to OFT’s effective
operation. It is critical, therefore, that:
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information is entered accurately and in a timely fashion
procedures are understood and followed so all staff are using the same definitions and entering
data consistently
care is taken in selecting the correct option, where options are offered, e.g. from pick-lists
all relevant fields and information is entered.
It is important officers follow the MACS user manual when entering data. Where any questions or
concerns arise about how to use the MACS system, please contact your supervisor in the first
instance. Clarification and assistance can also be sought from the State-Wide Operations,
Business As Usual team by email to ([email protected]).
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2
Case assessment
2.1
Purpose of case assessment
OFT’s case assessment process is performed by trained and experienced staff in the Case
Assessment and Conciliation (CAC) team. The case assessment process enables OFT to review
complaints and other information to identify, categorise, prioritise and address issues that directly
relate to its role.
OFT’s case assessment process is based upon the principles of risk management whereby the
alleged non-compliant behaviour of a trader is considered in conjunction with the likely
consequences of that behaviour impacting on the marketplace. Issues considered high risk or
alleged breaches identified by CAC are considered compliance core business and require OFT to
maintain relevant, current and timely risk management approach. Issues identified as lower risk
can then be addressed more efficiently, without unduly tying up compliance resources.
Complaints falling within OFT’s jurisdiction can be assessed as a conciliation matter where there is
no breach of legislation, or as an investigation matter. Investigation matters are categorised from 0
(extreme risk) down to 4 (low risk).
2.2
Benefits of case assessment
The primary benefits of OFT’s case assessment regime are:
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providing an objective, transparent and consistent platform on which to base OFT’s
investigation function
applying contemporary and relevant assessment factors that aid in the categorisation of issues
or complaints from ‘extreme’ to ‘low’ risk (and from high to low complexity, where appropriate),
enabling OFT’s investigation capability to be directed to the ‘extreme’ to ‘moderate’ risks in a
timely manner
enabling OFT’s core compliance business to meet the challenges of a changing marketplace
assisting OFT to align investigation resources to its core business
assisting OFT to adopt consistent compliance and enforcement practices regarding the
application of uniform national consumer protection legislation.
The case assessment process does not replace the discretion of the assessing officer, compliance
managers or other consideration. It is provided as guidance to assist in deciding a case’s risk
categorisation.
In some cases, OFT may decline to accept, or decide to discontinue, an investigation based upon
CAC consideration of a matter. In these circumstances OFT will endeavour to assist consumers
and traders alike by undertaking other forms of actions, including mediation between parties, trader
education, and compliance spot-checks.
Whilst case assessment plays a key role in considering whether or not to commence an
investigation, it also has application throughout all investigation phases to ensure that the matter
remains within OFT’s compliance role and functions, that appropriate enforcement actions are
being considered, and that matters are dealt with commensurate to the level of assessed risk.
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2.3
Case assessment principles
The principles of OFT’s case assessment processes are as follows:
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complaints accepted for compliance attention are assessed consistently, from Category 0
(extreme risk) downwards to Category 4 (low risk)
complaints assessed as suspected breaches are to contain sufficient information to allege
elements of a breach have occurred before being assigned for action
allegations of dishonesty or serious non-compliance (Category 0, 1 or 2) are of highest risk
categorisation
all suspected breaches are to receive some form of action, unless there is a policy reason
otherwise
all decisions and relevant actions taken throughout the process are to be soundly based and
appropriately recorded.
2.4
Case assessment considerations
CAC team members take into consideration the following issues when evaluating complaints and
compliance issues:
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availability of information
jurisdiction of OFT
previous enforcement or compliance history of the trader
potential and actual impact on the integrity of the marketplace and on vulnerable consumers
seriousness of the activity and its potential to affect a broad range of consumers
number of alleged breaches reported about the same/similar conduct or product
attitude and behaviour of the trader
adequacy of evidence needed to justify commencing or continuing with an investigation or
taking enforcement action
likelihood of a suitable outcome
effective and efficient use of resources appropriate to the risk.
2.5
Case assessment flow chart
The following flow chart depicts the flow of a complaint / issue through CAC:
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2.6
Case assessment phases
Case assessment consists of the following phases:
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information
breach Identification
jurisdiction
policy
categorisation
For consistency in assessment and data entry, case assessment occurs in Brisbane within CAC.
All complaint files, including those lodged in the regions, are to be forwarded to Brisbane for
assessment. Depending on workload in the regions, the file, in most cases, will be returned to the
original region for investigation or conciliation.
2.7
Information
This is the first step in the assessment process and one of the most important. It requires the
assessing officer to establish what the complaint is about and whether there is sufficient
information for OFT to consider the matter further. Careful attention must be given to the detail of
the complaint and what is being alleged. Although it is not the responsibility of the complainant to
substantiate the complaint to a ‘prima facie‘ standard, OFT requires investigation resources are
used appropriately and therefore, reckless, malicious or trivial matters do not proceed.
Sufficient information is to be obtained from the complainant and any other readily available source
(e.g. Industry Licensing) before inquiring into a matter. An example of insufficient information in a
complaint is:
Case Study:
Complainant alleges they were misled into buying a mobile phone from ‘XYZ Communications’ and
requests an investigation. The complainant provided no further details of the basis for the
allegation, or, in particular, what the other party said to them.
It is arguably an abuse of regulatory power to commence an investigation into a trader’s operations
without sufficient justification for doing so, given the cost that ensues to a trader’s business when
required to respond to allegations of having breached fair trading legislation.
2.7.1
Current complaints
In cases where there are other current complaints against a trader, it is still necessary to request
sufficient information from the complainant to assess the matter. The existence of another current
complaint may also require the matter to be differently categorised from the first complaint (refer to
section 2.20).
2.7.2
Trader outside the region
In cases where a trader’s place of business is located outside of the receiving office’s region (but
within Queensland), following assessment for investigations, the matter will generally be forwarded
directly to the relevant regional office for consideration.
Exceptions to this practice would be where the complainant has a history of lodging complaints and
has become reasonably well known to a particular office of officer, in which case, it may be better
for that office or officer to retain case responsibility.
(For interstate traders, operating from outside of Queensland, refer to section 2.9)
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2.7.3
Complaint information
Where possible complaints lodged should:
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be in writing, preferably on the appropriate OFT complaint form (subject to the literacy of the
complainant)
include relevant complainant and trader details
be legible
state the facts of the complaint
contain sufficient information to enable an accurate assessment as to whether or not there is a
likely breach
clearly state what the complainant issue/s are and what is required from OFT
provide confirmation (where appropriate) that the complainant has already unsuccessfully
approached the trader to have the matter resolved*
*Note: In cases of serious fraudulent activity or those involving high-risk traders or where retaliation
may be a concern, this may not be appropriate and should be considered when assessing the
matter.
2.7.4
Internally generated compliance matters
OFT’s proactive compliance programs result in increased detection of possible breaches requiring
investigation. Where this is the case, case assessment will also be applied. There will however, be
instances where action may need to be taken immediately (e.g. to seize evidence), before a formal
assessment is undertaken. In these circumstances the evidence should be secured and case
assessment should be applied as soon as reasonably practicable thereafter.
2.7.5
Requesting further information
In circumstances where further information is required, an attempt to contact the complainant by
telephone should be made. Where possible other sources may need to be contacted to adequately
assess the complaint especially with regard to Category 0, 1 or 2 breaches. A follow-up letter (or
email if appropriate) should be forwarded to the complainant confirming the information sought,
including:
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what information is required and where relevant, the reasons why additional information is
being sought
that, if no response is received by OFT within 28 days, no further action in regard to the
complaint will be taken and the file will be closed.
Complaint files closed as a result of failure on the part of the consumer to provide requested
information can be reopened at the discretion of the assessing officer in view of further information
being received at a later date.
If the information requested is provided and is sufficient, then the assessment should proceed. If
the information requested is provided but is insufficient or irrelevant to enable the assessment to
proceed, then a letter should be sent to the complainant requesting the complainant telephone the
assessing officer. If the complainant fails to contact the assessing officer within 28 days, the file will
be closed (refer to section 2.10.1).
2.8
Breach identification
Once OFT has obtained sufficient information, it can then identify what breaches of OFT legislation
may have occurred. All relevant details should be recorded on the MACS system.
16
2.8.1
Substantive breach
The ‘substantive breach’ is the most significant breach of legislation that has been identified in the
complaint. To assist in the identification of a substantive breach the following should be assessed.





Are all alleged breaches identified?
What is the most significant breach?
Does sufficient information exist in the complaint to form a belief that the alleged breaches may
also be part of a larger breach?
Is there reasonable information from other sources to form a belief that the complaint is part of
more serious conduct and subsequently, a more significant breach?
Has enforcement action been taken against the trader for a more significant matter involving an
activity similar to the activity reported in this complaint?
An example of a substantive breach in a complaint is:
Complainant alleges they have not received their client rental return from a restricted letting agent
for the past 3 months. The agent has not returned the complainant’s calls and has not provided
any rental statements or other correspondence. The complainant has supplied a copy of the letting
agreement and the last rental statement provided. Assuming the relevant appointment to act
specified provided the lawful basis for the restricted letting agent to act.
The substantive alleged breach in this instance would be against section 23 AFAA, Accounting to
Clients.
In all cases the basis on which the substantive breach is decided is to be documented.
2.9
Jurisdiction
OFT is responsible for investigating complaints that fall within OFT’s jurisdiction. If this is not the
case, the complainant should be referred to mediation, or to the agency responsible for
administering the legislation about which the complainant alleges a breach or misconduct. When
determining whether or not OFT has jurisdiction to address the complainant’s issues, the following
should be considered:


does the substantive breach fall within OFT legislation as the primary means of compliance
(i.e. the breach may fall within OFT legislation, but legislation administered by another
Department may be more relevant)?
if the trader is based outside of Queensland, is there application of the extra-territorial
provisions of the relevant OFT legislation?*
*Note: In the case of the Fair Trading Act 1989, extra-territorial application would generally apply
where an act or omission which relates to an element of the offence, occurred in Queensland.
2.9.1
Referral to another organisation (Refaway)
Some complaints allege breaches across legislation or Codes administered in part by OFT and
also by another agency, e.g. complaints against real estate agents may also involve the
Residential Tenancies Authority. In such cases OFT should decide whether the OFT issue is of
sufficient substance for further consideration, or whether it is more effective (in securing a
successful outcome) to refer the matter to another agency for consideration.
In some cases there may already be provision for a matter to be referred to another agency as part
of a standing Memorandum of Understanding (MoU) or a joint investigation agreement (e.g. to
ACCC). In these cases the matter should be referred accordingly.
17
The following should be undertaken for referrals:




Confirm complainant’s consent to do so, (check the consent provisions on the complaint form)
Record on file the reasons for referral
Record the details of the specific agency, location and, if possible, contact officer
Advise complainant in writing of the referral.
2.10
Inquiry Policy
During assessment a complaint is considered against a number of factors to determine if it is
appropriate to apply some form of inquiry of matter/s or if OFT policy provides for the decline of
any action.
2.10.1 Declining to investigate a matter
At the conclusion of the information and jurisdiction assessment phases OFT may consider
whether or not it is appropriate to inquire into a complaint. OFT may decline to commit compliance
resources to the investigation of the alleged breach or misconduct.
Acceptable reasons for declining to commence investigative action are:

















insufficient information to warrant OFT commencing an investigation.
no breach of OFT legislation has been identified
the issues raised in the complaint, including the substantive breach, primarily relate to
legislation administered by another agency, and it is more effective and efficient for the
complainant for the other agency to deal with the matter
the complaint has been received by OFT and another agency, and the agency other than
OFT has it under investigation
legislative time limitations prohibit OFT taking enforcement action
management direction not to investigate the specific complaint
limited credibility of the complainant and/or information
apparent malicious intent of the complainant to unduly disrupt or cause angst for the alleged
offender
systemic issues requiring a more strategic approach than investigation of each complaint on
an individual basis
low likelihood of conviction or other relevant enforcement outcome, regardless of the
evidence allegedly available
complaint forwarded for information only and OFT already knows the trader, entity or
practice, e.g. chain letters
complainant clearly indicated they are not prepared to support their complaint in writing or at
court/tribunal proceedings should they arise AND that is crucial to obtaining a successful
outcome
complaint withdrawn prior to OFT commencing inquiry action and the complaint information
would be crucial to any investigation or enforcement action
court has adversely ruled on relevant issues in the complaint
trader, complainant or key witnesses cannot be located in Australia, or are residing overseas
(unless sufficient information has been obtained to sustain appropriate enforcement action)
suitable enforcement action already taken against trader based on similar complaints around
the same time of the current complaint
compliance actions by OFT will hinder another agency’s investigation of issues arising from
the complaint.
18
These factors may also be taken into consideration throughout each element of OFT’s compliance
and enforcement risk management cycle to suspend or finalise an investigation, or to decide not to
take enforcement action. If an officer is uncertain about what action to take, advice or guidance
should be sought from their Manager or the Manager from within the relevant OFT business area.
2.10.2 Recording the decision not to accept for inquiry
If OFT has made a decision not to accept a complaint or other issue for inquiry action, the following
information is to be recorded on the complaint file:
 the reason/s the matter was declined
 details of the officer making the decision
 any action resulting from that decision, e.g. referred to another agency.
2.10.3 Advising complainant of the decision not to accept
In all cases where a decision has been made not to inquire into a matter, the complainant, if
known, should be advised as soon as possible. In circumstances where the complainant is known
and contactable, written advice should be provided to the complainant advising them of:




the decision and reason/s for not accepting the matter for further enquiry
any other remedies that may be available to the complainant to have the matter resolved, e.g.
court or tribunal application or conciliation
an offer to discuss the decision via telephone with the decision-making officer
an OFT generated complaint file or enquiry reference number
2.10.4 Anonymous or unidentifiable complainants
In cases where the complainant is anonymous or has failed to supply sufficient contact or
identification details, a reply will not be required. Consideration should be given to making further
enquiries to establish the whereabouts of the complainant if it appears they have made an error or
there has been some other oversight in correspondence submitted by them. Any further enquiries
should be limited and appropriate to the circumstances.
2.10.5 Accepting the matter for inquiry
Matters indicating a breach of the legislation which cannot be dealt with by legislative enforcement
action will be classified as conciliation files. In all cases, the reasons for accepting a matter for
conciliation or investigation are to be recorded.
2.11
Categorisation
At this stage of the assessment process OFT will have determined that:




the complaint contains sufficient information to allege a breach of OFT legislation
the substantive breach is identifiable
OFT has jurisdiction
it is appropriate to devote investigation resources to the complaint.
There are five breach categories - Category 0 to Category 4, rated highest to lowest risk
respectively.
Matters are first assessed from Category 0 downwards. The presence of any one or more
assessment factors within the categories will automatically assign it to that category.
19
The categories and their relevant assessment factors are described below.
2.12
Category 0 – Extreme risk
This category relates to issues likely to involve systemic and highly serious misconduct by
traders or may involve large scale detriment, or may be multi-jurisdictional.
Category 0 matters are to be investigated by Major Investigations unit, Tactical Compliance (TC).
2.12.1 Assessment factors
Staff in the CAC will take into consideration the following factors when assessing matters for
allocation to this category:







potential or actual level of public or political interest in the issue
very serious conduct (for example, criminal or fraudulent behaviour)
extent of the conduct, such as the number of complaints and victims and the period of time
over which the conduct has occurred
extent of consumer detriment
whether the conduct extends beyond Queensland, or involves an overlap with other
marketplace regulators
other matters, such as the novelty of the issue, or whether the issue raised is unique
extent to which the investigation is beyond the resources available in regional offices for
matters in those relevant region/s.
2.12.2 Assessed Category 0 matters
Recommendations to consider applying this category to individual cases may be made by a Band
3 Manager, following consultation with the Director, TC.
Regional offices may make a request of CAC for consideration of matters within their region.
Recommendations for consideration of this rating may be made only by a Band 3 Manager (refer
section 4.8.1) following consultation with the Director TC.
Examples of Category 0 matters include:
Breaches of the marketeering provisions of the Property Occupations Act 2014 (POA). .
Marketeering often involves interstate investors who may have had dealings with a range of linked
entities all of whom are either paid large commissions or obtain reward through high profit margins
or consistent referrals for task such as conveyancing. It is important to note that not all
marketeering breaches are necessarily Category 0 breaches.
 Major Breaches by resident letting agents. Resident letting agent corporations which are
subsidiaries of a large publicly listed company have been found engaging in multiple breaches
over a number of years involving the conduct listed below:
o
o
o
Causing unit owners to unknowingly agreeing to the practice of diverting bookings made
directly with a resort through a booking centre which deducts a 30% commission. (breach
of POA - section 212 – False representations about property).
deducting fees for "electrical safety checks" and extra "window cleans" from every rental
amount paid for each stay without disclosing this to unit owners. (breach of AFAA – section
23 Accounting to clients).
The licensed director of all corporations is falsifying guest stay records by shortening stays,
deleting stays, disposing of the excess funds by creating fictitious stays in units leased by a
related company and electronically transferring guest stays from the occupied units to units
leased by the related company which then received the full rent minus expenses. (breach of
POA – section 206 wrongful conversion and false accounts).
20
2.13
Category 1 – Very high risk
This category relates to suspected breaches of OFT legislation displaying one or more of the
following characteristics:




element of deceit or dishonesty that may be encompassed in some form of deceptive, false or
misleading conduct, e.g. a misrepresentation, misleading statement or fraudulent act
unconscionable actions
harassing or threatening conduct that is clearly substantiated
behaviour is almost certain to seriously impact on a safe and equitable marketplace and
would cause serious and considerable detriment to consumers and industry alike resulting
in a lack of confidence in regulatory programs.
2.13.1 Assessment factors
The assessment factors for this type of breach are:


a substantive breach for this type of behaviour
the breach is assigned to a Fixed Breach Category 1
2.13.2 Examples of Category 1 matters




false or misleading representation about the performance of a product
misappropriation of trust account monies
asserting the right to payment for unsolicited products and subsequently receiving monies
odometer tampering misrepresentations about property.
Note: Category 1 investigations must also be assessed for their level of complexity. They may be
Category 1 (High), Category 1 (Medium) or Category 1 (Low) – refer to section 2.18 for further
information.
All of the matters listed as examples for Category 1 breaches could also be Category 0 breaches if
the conduct is systemic, consumer detriment is substantial, and the matter would be particularly
resource intensive in terms of investigation and enforcement proceedings. Offenders in Category 0
matters tend to be very well resourced.
2.14
Category 2 – High risk
This category relates to suspected breaches of OFT legislation displaying one or more of the
following characteristics:






potential to undermine licensing regulations or consumer protection requirements
clear disregard for legislation
risk to disadvantaged groups
clear potential to impact on a very wide range of consumers leading to substantial consumer
detriment
sale of products that significantly fail key safety performance requirements of mandatory
product safety standards
behaviour is likely to seriously impact on a safe and equitable marketplace and would cause
serious and considerable detriment to consumers and industry alike resulting in a lack of
confidence in regulatory programs.
21
2.14.1 Assessment factors
This category involves suspected breaches that are considered as serious non-compliance with
OFT legislation due to the alleged disregard for legislated regulation and responsibilities. The
substantive breach or circumstances surrounding the complaint do not appear to involve any of the
Category 1 assessment factors.
The assessment factors for this type of breach are:






matter not suspected of being a Category 1 breach
substantive breach is a fixed Category 2..
potential impact upon a broader range of consumers, where the behaviour of the trader or the
methods used have a real potential to reach a broader consumer base, and subsequently
cause considerable detriment, e.g., advertising in state-wide papers or using telemarketing
strategies
real risk to disadvantaged or high risk groups
enforcement action previously taken against the trader by OFT or another inter-state fair
trading agency. This may involve the trader previously operating under another name or
employing a director or manager who has been the subject of enforcement action
there is an immediate and direct safety risk as a result of failure to meet a product safety
standard.
2.14.2 Examples of Category 2 matters






unlicensed security providers, motor dealers or introduction agents
real estate agent acting without appointment
failure to supply prescribed contract forms for the sale of property
non-compliance with the cooling off period requirements
non-compliance with unsolicited consumer agreement provisions
publication and/or sale of prohibited or objectionable literature, films or games
Note: Category 2 investigations must also be assessed for their level of complexity. They may be
Category 2 (High), Category 2 (Medium) or Category 2 (Low) – refer to section 2.18 for further
information.
2.15
Category 3 – Moderate risk
This category relates to suspected breaches of OFT legislation displaying one or more of the
following characteristics:



complaints are assessed as medium to low risk in nature and do not exhibit any of the
elements of the Category 1 and 2 matters
more than likely minor issues that could possibly evolve into larger issues if not
addressed by investigation action
behaviour could possibly impact upon the marketplace by causing detriment to consumers
and traders alike resulting in a lack of confidence in regulatory programs.
2.15.1 Assessment factors
The assessment factors for this type of breach are:




substantive breach which is not suspected of being a Category 1 or 2 breach
substantive breach is a Fixed Category 3
trader has a complaint history within the last 2 years involving a similar type of matter
matter is identified as an emerging trend – it has the potential to develop into a larger issue in
the local or regional marketplace
22



matter involves numerous alleged breaches, i.e. more than 3
it appears the matter cannot be resolved by non-investigative means
involves the sale of a product that does not meet an applicable mandatory information or
product safety standard, or Ministerial prohibition.
2.15.2 Examples of Category 3 matters


failure to administer computerised accounting system appropriately and the trader has been
the subject of a similar complaint in the last six months
supply of a product that fails to meet a non-significant performance requirement of a mandatory
safety standard e.g. no yellow reflector on a bicycle
2.16
Category 4 – Low risk
This category relates to suspected breaches of OFT legislation displaying one or more of the
following characteristics:




matter does not meet any of the Category 1, 2 or 3 assessment factors
matter assessed as low risk
breach and the circumstances surrounding it can be effectively and efficiently dealt with other
than by investigation
behaviour unlikely to impact upon the marketplace by causing detriment to consumers and
traders alike resulting in a lack of confidence in regulatory programs.
Category 4 matters may be investigated by the Complaint Assessment and Low Level
Investigations (CALLI) team.
2.16.1 Assessment factors
The assessment factors for this type of breach are:





does not constitute a Category 1,2 or 3 breach
involves a small number of alleged breaches i.e., 3 or fewer
likely enforcement outcome if the matter was proven would be a warning or, at most, an
infringement notice
can be dealt with effectively and efficiently by non-investigative action
complainant / consumer has expressed a desire for no further action.
2.16.2 Examples of Category 4 matters



failure to renew a business name where this is no previous complaint history against the trader
no licence signage on real estate window
failure of licensee to give chief executive notice of change of details
2.17
Breach Categories
The breach categories have been developed based on the assessed risk for various provisions
under most legislation administered by OFT. Breach categories provide guidance to the assessing
officer to determine the most appropriate category to allocate the suspected substantive breach.
While some very serious breaches have a fixed category assigned to them, most are variable
based on a number of assessment criteria, especially in respect of Categories 2, 3 or 4. These
factors are described in section 2.17.2.
The OFT’s Compliance Managers will also use the breach categories to review the rating of
particular cases to ensure that OFT is focusing its resources appropriately.
23
2.17.1 Fixed categories
Some substantive breaches will be assigned a fixed breach category. This is applied regardless of
the presence of any other assessment factors. Fixed categories primarily relate to Category 1 and
2 matters. Change of a fixed breach category can be made only with the approval of the relevant
Band 3 or higher Manager (refer to tables 8 and 9).
2.17.2 Variable categories
Substantive breaches that fall into a variable category can change category depending on the
context factors. There are 5 core context factors that can vary the initial category. In addition to the
factors that apply to general (G) investigations, there are further context factors that apply to
Product Safety (PS) investigations. The general and Product Safety context factors are:








Existing Complaints (G, PS)
a complaint is open and one or more additional complaints are received against the trader
(from different complainants) alleging similar conduct.
Risk to disadvantaged groups (G, PS)
the type of alleged breach is likely to be experienced disproportionately, and mostly, by
vulnerable consumers (e.g., Indigenous Australians, non-English speaking background, the
elderly, youth, or people with significant intellectual or physical disability).
Broad consumer base (G, PS)
the alleged breach impacts (or has the clear potential to impact) on a very wide range of
consumers, leading to substantial detriment if left unchecked.
Emerging trend (G, PS)
the complaint assessor is aware (through case monitoring) of an increasing number of alleged
breaches reported about the same or similar conduct or product. This will require an exercise
of judgement, but a guide would be where five or more similar conduct or product complaints
against different traders are received in the space of a couple of months.
Enforcement history – 2 years (G, PS)
the same person has previously been the subject of an investigation leading to enforcement
action (warning through to Court action), within the previous 2 years.
Trader / Supplier non-cooperation (G, PS)
the trader refuses to assist in rectifying or remedying the breach within a reasonable period, or
refuses to provide a reasonable undertaking to do so.
Fails significant performance requirement (PS)
the alleged failure is of a significance to present an immediate and direct safety risk.
Previous enforcement same product / service (PS)
successful enforcement action has previously been taken against the same person for
breaching the same provision by supplying the same product or service.
Where there are reasonable indications that conditions outlined in the above factors exist, a varied
assessment is to be assigned in accordance with the breach categories. For example:
A person acting as a security provider has refused to provide their name and address. The alleged
breach of section 40(1) of the Security Providers Act 1993 is considered a variable breach
category 3. This assessment was initially assigned because the breach does not meet the
assessment factors for a Category 0, 1 or 2. However, the trader has been previously warned by
OFT and, based on this context factor, it is assigned a Category 2 rating.
24
2.18
Case complexity
Classification of investigation files is measured in terms of both the seriousness (Categories
0,1,2,3 and 4) and where relevant the complexity (High, Medium and Low) of investigations /
inquiries and will be a key feature in the organisation’s performance reporting regime. Conciliation
files are not categorised in terms of complexity.
Categories 1 and 2 files will receive an assessment of their complexity based on certain predetermined criteria. These criteria are set out in the Complexity Factors Rating Descriptions
outlined in Appendix B.



Category 0 files are automatically given a high complexity rating
Categories 1 and 2 files can be either high, medium or low complexity (this is determined in the
first instance by case assessors, and reconsidered if necessary by the investigator)
Categories 3 and 4 files are automatically given a low complexity rating.
Note:
 Both category and complexity ratings can be altered by the investigator during the course of an
investigation, following the approval of a Band 3 or 4 manager (refer to section 4.8.1).
 Complexity ratings for categories 1 and 2 files affect investigation timeliness and organisational
performance measures for file completion (refer to section 3.4).
2.19
Assessment time frames
Complainants often expect a prompt response to their request for assistance. OFT will assess a
complaint for investigation and respond to the complainant within 14 days from original receipt.
2.19.1 Exceptions to the 14 day assessment
In circumstances where OFT cannot assess the matter within 14 days and has not already advised
the complainant of this, a written response must be sent to the complainant within the initial 14
days advising of the progress of the matter. Additionally:



where further information has been requested from the complainant, the matter is to be
assessed, a decision made and a response provided to the complainant within 7 days after
receiving the requested information
A Band 3 or above Manager may direct a matter be placed on hold until further advised. In
these instances, a request should be made to that Manager for further advice on the matter 14
days after the decision to hold was made. A response to the consumer is to be made within 7
days of receiving further advice from the relevant Band 3 or above Manager
where the matter has been forwarded for legal advice, if no response is received from the legal
advisor within 28 days of referral, the requesting office should contact the legal advisor for an
update. A response is to be provided to the complainant within 7 days of receiving that update.
25
2.20
Multiple complaints
In cases where a complaint is under some inquiry action (i.e. open), and additional complaints are
received against the trader from different complainants alleging similar conduct, the category rating
should be reviewed. The category shown in table 2 should be assigned.
Original complaint category
New complaints to be categorised as
Category 3 or 4
Category 2
Category 2
Category 2
Category 1
Category 1
Category 0
Category 0
In all cases the complaints should be cross-referenced on the MACS database.
Table 2: Impact on categorisation of multiple complaints
The MACS database differentiates between complaints and actual investigations conducted.
Where there are multiple complaints against one trader all the complaints are linked to one
investigation record. Accordingly in the MACS system, no ‘master file’ is required for multiple
complaints.
2.21
Claims against the Claim Fund
Where a claim against the Claim Fund established under the AFAA to be investigated, the matter
will be automatically assigned to investigation. The substantive breach on which the claim is based
will be categorised and this will provide the appropriate time frame for completion of the
investigation.
2.22
Assistance from specific compliance areas
In cases where assistance is required in the assessment process or when a matter is being reassessed as a result of information obtained, the relevant point of contact should be consulted.
These contact points are shown in Table 3.
Function
Point of contact
OFT Investigations
 Category 1, 2, or 3 Investigations
Principal Compliance Officer, Investigations
 Category 4 or Low Level
Principal Compliance Officer, CALLI
Investigations
Product Safety
Manager, Product Safety
Compliance Planning
Manager, Compliance Planning
Credit Industry Compliance
Manager, Major Investigations, TC
Case Assessment & Conciliation
Manager, Case Assessment & Conciliation
Enforcement legal issues
Fair Trading Enforcement Coordinator
Category 0 matters
Director, Tactical Compliance
Table 3: Who to refer to for assessment advice
2.23
Changing breach categories
There will be cases where information comes to light during an investigation that may warrant the
matter being re-categorised. Where a change in assessment appears warranted, the approval of
the relevant Band 3 or 4 Manager must be obtained for that change (refer to section 4.8.1). A
recommended upgrade to Category 0, however, requires the approval of the Fair Trading
Management Team, following discussion with the Director, Tactical Compliance.
Matters will be more likely to be upgraded than downgraded. A category upgrade will be
undertaken only once unless there are exceptional circumstances. The change from lower risk
26
category to a higher risk category will not extend the time frame relevant to the higher category. All
times will start from the date the complaint was initially received, e.g. Category 3 (60 days)
changed to a Category 2 – medium complexity (120 days) will still have a completion date of 120
days (not 180 days) from date of receipt. Changes from higher to lower categories will reduce the
completion time to that of the lower risk category.
Criteria for adjustment are:




original category was an inputting error
preliminary investigation (within 30 days of receiving the complaint) indicates the matter is
more serious than originally evaluated
Category 4 matter assigned for spot-checking has uncovered more serious breaches that
require further investigation
Manager direction.
2.24
Prioritisation
Once the complaint is assigned a category (and a complexity rating where appropriate), it should
be prioritised to ensure it is appropriately handled. The investigation may not always stay at the
same priority rating. In many cases it may be important to attend quickly to the initial investigation
phases and then reprioritise the matter at a less urgent level once the investigation’s course of
action has been determined and commenced.
Priority ratings are:
High
The investigation should be commenced immediately. This may be due to any one of a number
of factors, including:
 concerns over evidence being lost, stolen or destroyed
 the complainant‘s disposition
 risk of further detriment to the complainant or other public
 risk of further non-compliance or improper activity
 QCAT order to perform an investigation
 Ministerial request.
Medium
The investigation should be commenced is soon as possible and take precedence over routine
matters assigned to the investigations officer or team.
Low
The investigation should be commenced as time and resources become available.
Note: The assigning of a priority rating does not negate the investigating officer’s responsibilities
for advising the complainant of the progress of the matter, as well as complying with general
complaint-handling standards.
2.25
Ministerial and tribunal matters
Matters that have been referred from the Minister’s Office or ordered by the Queensland Civil and
Administrative Tribunal (QCAT) for investigation will be required to undergo case assessment and
have a category and complexity rating assigned where appropriate. Should the matter meet the
relevant assessment criteria then it will be allocated for inquiry action with a more than likely
priority rating of ‘High’ or ‘Medium’. As well as requiring early commencement of an investigation,
QCAT orders are to be completed as quickly as possible.
27
3
3.1
Inquiry
Purpose of inquiry
The inquiry element focuses on fact-finding. It is a process of gathering information and evaluating
it, and then recommending appropriate, effective and fair action.
3.2
Inquiry types
There are 2 inquiry functions:


3.3
investigation – where an alleged breach of OFT legislation has been assigned for investigation
in accordance with OFT’s investigation principles and case assessment guidelines
non-investigation – where an alleged breach assessed as ‘low risk’ (Category 4) will not be
investigated but addressed by applying some other suitable action (refer to section 3.10).
Linking to case assessment
The inquiry action to be taken is linked directly to the case assessment and categorisation process,
demonstrating the general principle that the higher risk Categories 0, 1 and 2 will probably be more
resource intensive than the lower risk Categories 3 and 4.
The following diagram shows the linkage:
3.4
Inquiry time frames
Inquiry time frames are set out in table 4 below. The target time frame allocated to each category is
an important tool to assess OFT’s performance and to assist in prioritising the workload. These
time frames are also part of the performance measures and feature in the Department’s Annual
Report, Service Delivery Statement (SDS) where it will be expected that 75% of matters within
each category will be completed within the respective time frames. Any remaining investigations
are to be completed in the shortest possible time frame thereafter.
28
Category
Category 0
Category 1 – high
complexity
Category 2 – high
complexity
Category 1 –
medium complexity
Category 2 –
medium complexity
Category 1 – low
complexity
Category 2 – low
complexity
Category 3
Category 4
Conciliation
75% of
investigations to be
completed within
365 days
Seriousness and complexity of matter
Probably systemic and highly serious misconduct
that may include large scale detriment and multijurisdictional issues. Highly complex and resource
intensive.
180 days
Probably serious systemic high level issues
involving serious and/or considerable detriment.
Highly complex and resource intensive.
180 days
Probably clear disregard for legislation leading to
serious and considerable detriment. Highly
complex and resource intensive.
180 days
Probably deceptive, false or misleading conduct
leading to serious and considerable detriment.
Complex and resource intensive.
180 days
Probably clear disregard for legislation leading to
serious and considerable detriment. Complex and
resource intensive.
90 days
Probably deceptive, false or misleading conduct
leading to serious and considerable detriment.
Unlikely to be complex.
90 days
Probably clear disregard for legislation leading to
serious and considerable detriment. Unlikely to be
complex.
60 days
Probably minor issues that could escalate, or
cause wider detriment, if not addressed. Not
complex.
30 days
Probably minor issues unlikely to escalate, or
cause wider detriment, if not addressed. Not
complex – only non-investigation action required.
80% to be completed
No breach of OFT legislation or no breach for
in 30 days
which enforcement action can be taken
Table 4: Investigation target time frames
Note: The time frame for an inquiry commences from the time the complaint was received by OFT
for investigation up until the matter is:



closed on the recording system
filed before a court or tribunal for enforcement action (Category 0, 1 and 2 matters)
resolved by issuing an Infringement Notice or a formal warning or Compliance Advice Letter
(Category 2, 3 or 4 matters).
The standard time frame for assessing a complaint under case assessment is 14 days. This will
impact upon inquiry time frames especially for Category 3 and 4 matters. The completion
timeframes will not be suspended whilst the matter is under inquiry, regardless of case referral,
e.g., forwarded to the fair trading Enforcement Coordinator for advice. It is the responsibility of the
office or work group which has been assigned the matter to ensure the matter is being monitored
and dealt with appropriately.
29
3.5
Investigation action
3.5.1
Investigation principles
OFT’s investigation principles are as follows:







Category 0 to 3 matters will be investigated
the focus of the investigation will be on obtaining the facts, and subsequent consideration of
evidence with a view to taking enforcement action
all parties directly involved in an alleged breach will be afforded the principles of natural
justice, to ensure fairness, by being approached personally by the investigator (where
practicable), given an opportunity to be properly heard, and have any adverse material put to
them for comment before a decision is made
the investigation process will be accurately documented in a timely manner, with all actions
and decisions being accountable and transparent
payment of redress by a trader will not affect or impede the investigation process
all parties involved in the process will be treated with respect and courtesy by the application
of an impartial and objective investigation approach
Investigation staff will educate and inform traders and consumers alike during the process, to
encourage and maintain an equitable and safe marketplace.
3.5.2
Investigation methodology
OFT’s investigation methodology, where possible, will involve at least the following:
Preliminary assessment by the investigator
This phase will include:





confirming with the complainant the complaint, issues and, where relevant, the allegations
evaluating the evidence that the complainant has to support their alleged claims
determining the complainant’s willingness to support the allegations, including attendance at
court, and any possible motivating factors
obtaining a signed statement of complaint from the complainant, where relevant / possible
taking possession of any relevant documentary evidence.
Involvement with other agencies
Other enforcement agencies (e.g. Australian Competition and Consumer Commission, Australian
Securities and Investment Commission, Queensland Police, Queensland Department of Transport
and Main Roads, etc.) may have an interest, or already be involved, in the complaint or a closely
related matter. Where a protocol exists regarding lead-agency status this must be observed. In the
absence of such a protocol, investigators should defer their fair trading inquiry if the other agency
is investigating a more serious breach (e.g. fraud). Co-operation with the other enforcement
agency, therefore, is vital to ensure the interests of the Queensland Government are protected by
obtaining the most effective compliance result. Written records must be kept of all contacts made
with other agencies.
Avenues of inquiry
This phase covers identifying and planning appropriate avenues of inquiry to assist in establishing
the facts of the matter. It is critical for investigating officers to confer with their supervisor to plan
each investigation and to identify the scope of enquiries required to be undertaken. In some cases
it may be necessary to broaden the agreed scope of enquiries beyond an established or previously
identified complainant base. This will be the case where there is a potential for high consumer
detriment, multiple consumers are likely to be affected, the case has or will attract a high public
profile or where the level of alleged criminality is far greater than first considered.
30
For example, in cases of non-supply consideration would need to be given to either limiting
evidence gathering to what comes forth via complaints received or alternatively widening enquiries
to identify the broader range of consumers affected. One avenue to consider in such
circumstances is a call for affected consumers to come forward when a public naming is issued.
Such decisions can only be made on a case by case basis by officers on Bands 1 - 3 having
regard to the resource implications around the additional work balanced against the public interest.
Overall it is not expected that a large number of cases would warrant the broadening of scope of
enquiries as envisaged above.
Evidence handling
Documentary or other additional evidence is appropriately collected, recorded, seized and secured
in accordance with OFT’s Exhibit and Property Handling Policy.
Witness Statements
All relevant information from individuals, which may be required for enforcement action before a
court or tribunal is recorded in witness-statement format.
Recording of conversations
In performing their investigatory role, an investigator is required to gather facts which may later be
relied upon to prove beyond a reasonable doubt, the commission of an offence. As suspected
offenders sometimes lie to conceal their involvement in an offence, it is often necessary to obtain
facts from a number of sources to prove or disprove issues.
The making of exhaustive and comprehensive inquiries, both formal and informal, is essential and
will often determine and sometimes alter the course of future inquiries and any enforcement action
to be taken to enforce identified breaches.
Sections 43 and 45 of Queensland’s Invasion of Privacy Act 1971 provides a person [including an
investigator] the lawful right to electronically record conversations with a person/s and without a
requirement to inform a party to the conversation that the conversation is being recorded. The
covert recording of conversations during investigative inquiries is an important tool for use by not
only fair trading investigators but by law enforcement agencies generally. Recorded information
becomes vital in later recalling conversations in exact detail and with piecing together often
disparate information to prove the commission of an offence, the identity of an alleged offender
and/or to disprove possible defences etc.
The use of electronic recording devices is not always confined solely for the gathering of evidence
which may later be presented in Court or other proceedings. Investigators have a lawful interest in
the recording of conversations to gather additional and/or supporting information from third parties.
This information may or may not support the furtherance of their investigative inquiries and as
such, may or may not be used as evidence at a later date but is central to the investigative
process.
Discretion must be exercised when covert recording of conversations is to be undertaken. It should
not be the case that covert recording is standard default practice but rather a practice to be
adopted only where the investigator believes there is good reason to do so. Investigators should
exercise care when covertly recording a conversation to prevent inadvertent disclosure of the fact a
recording is being made. Premature and inadvertent disclosure may seriously damage what might
otherwise be a cooperative relationship between the parties.
The primary reason for the recording of a conversation is to ensure a contemporaneous record of a
conversation is kept from which notes may later be made if necessary. Should an investigator opt
not to electronically record a conversation/s then appropriate notes must be made of the
31
conversation/s to ensure a contemporaneous record of all conversations, observations and
associated events is made.
It must also be remembered that recording a conversation with a person or person/s protects the
interests of the investigator by delivering an added layer of protection against possible allegations
of misconduct at a later date.
Admissibility of covertly recorded conversations
If during the course of a covertly recorded conversation a fair trading investigator forms an opinion
that sufficient evidence exists to satisfy the elements of an offence, the investigator must
immediately caution the person [suspected offender]. Failure to caution the person may jeopardize
the admissibility of their evidence, including any admissions made by the person as to the
commission of an offence.
Investigators should be familiar with and apply the ‘Judges Rules’ which were formulated for the
purpose of explaining to investigators the conditions under which the courts would be likely to
admit into evidence statements made by persons suspected of or charged with an offence.
Judges Rules advise that where an investigator forms an opinion a person has committed an
offence, that person must be cautioned before any questions about it (or further questions if it is his
answers to previous questions that provide grounds for suspicion) are put to them for the purpose
of obtaining evidence which may be given to a court in a prosecution. The person need not be
cautioned if questions are put to them for other purposes, for example, to establish identity, or the
ownership of any vehicle or other generalised enquiries.
Notification of covert recording of conversations
Advance disclosure of the recording of a conversation is not required by law as per Sections 43
and 45 of Queensland’s Invasion of Privacy Act 1971.
As a matter of courtesy, however, investigators covertly recording a conversation with a person
whilst in the company of a colleague/s must inform that officer of the making of the recording.
Should fair trading investigators covertly recording a conversation with a person administer of a
caution to that person, they shall at the time of the caution advise the person that the conversation
is being recorded.
Activity recording
All occurrences, actions and decisions must be recorded on an investigation running-sheet or file
note without delay. Where possible, file notes should be recorded on MACS and a signed copy
placed on the file. Failing this, the minimum standard is legibly handwritten records (wordprocessed documents preferred) placed on the file. Where it is not practical to attach material to
the file, an annotation must be made on the file as to where the material may be located.
3.5.3
Investigation reporting
Investigation files and processes must stand up to both internal and external scrutiny and should
contain only the information that explains how the matter was investigated, assessed and dealt
with.
Accurate and comprehensive file notes are essential to the proper conduct of an investigation. Not
only does it assist the investigator to keep track of the matter, but is vital if the investigation file has
to be passed onto another officer to finalise. It is also essential when the file is reviewed by a more
senior officer, the Ombudsman, or an external information request has been made, to be able to
demonstrate that all lines of inquiry have been followed and all available evidence has been
adequately gathered, collated and assessed.
As a minimum, the file notes should include the date and time an activity was undertaken and the
date and time the file note was made. The file notes should contain details about:
32








contact made with the complainant and issues discussed
any trader interview conducted – when and where it occurred and what was said including a
reference to where any tape or transcript of the interview is located
details of other persons contacted, contact details and a synopsis of any discussions with this
person/s
evidence collected (e.g. documents, other items) – where the evidence came from and how it
was obtained (e.g. permission or consent, warrant or using powers) AND to whom / when it
should be returned
significant incidents/events during the course of investigation, especially, any occurrences of a
breach
decisions made that affect the course or outcome of an investigation
redress obtained by investigator – how much, how it came about and that permission was
sought from the investigator’s supervisor to obtain the redress
what the outcome of the investigation was and the factors and reasons for that outcome.
At the completion of the file, there should be sufficient file notes made stating the complainant has
been contacted and advised in writing as to the outcome of the investigation. A copy of any
correspondence provided to the complainant should also be attached.
Hand written notations and records placed on an investigation file must be dated, timed and signed
by the writer and either placed without delay on the investigation file, or an annotation made on the
file as to where the records may be located.
Note: In respect of Category 3 (non-licensing) investigations only, and at the discretion of the
investigator, suitable alternative investigative means may be used in order to simplify and speedup the investigation. Alternative forms of investigation may include telephone conversations
(adequately noted), template letters to traders seeking responses to complaints within 28 days,
and the like. Care must be taken in these cases to ensure that natural justice is ensured and
continuity of evidence preserved.
3.5.4
Procedural fairness
Where practicable, if a trader is suspected of having breached OFT legislation the allegation
should be personally put to the trader. When this occurs:





the trader’s response should be recorded by the use of contemporaneous notes
if the matter is serious the trader should be invited to participate in a formal interview
should the trader consent to a formal interview it should be conducted and captured on an
audio or visual recording device
the formal taped record of interview should have appropriate structure and protocols
in all cases only one person suspected of committing the breach should be interviewed at a
time.
3.5.5
Assessment of evidence
When considering enforcement action the following assessment criteria should be taken into
account:







if OFT has jurisdiction
availability, competence and credibility of witnesses
manner in which evidence was obtained
availability of independent and corroborate evidence
availability of competent and admissible evidence
sufficient weight of evidence behind each element of an offence
trader has had an opportunity to respond to an allegation/s
33


defence provisions available to, or indicated by, the trader
any other factors that could affect the likelihood of successful enforcement action.
3.5.6
Sufficiency of evidence
The assessment of evidence gained during the inquiry process is a crucial part of the compliance
process. The objective of an investigation is to obtain the facts and to gather evidence to determine
if taking enforcement action is warranted or appropriate.
There may be insufficient evidence to support the alleged substantive breach. During an
investigation, however, sufficient evidence may be gained to support enforcement action for
additional breaches.
The test of whether sufficient evidence exists should be applied regularly throughout the
investigation review process to ensure matters continue to be investigated effectively, efficiently
and in accordance with accepted investigative methodology.
3.5.7
Insufficient evidence
If there is insufficient evidence the investigation should be reviewed to identify other/additional
avenues of inquiry that may reveal further facts to clarify the matter one way or another. If these
avenues of inquiry exist they should be followed. An investigation may be closed at any time if
there is insufficient evidence to take further action and continued exploration of the matter cannot
reasonably be justified.
3.5.8
Investigation (finalisation) report
All finalisation reports should at least contain:










issue/allegation investigated (as identified when initially categorising the complaint)
any other issues/breaches identified
trader’s response
avenues of inquiry undertaken
findings and supporting reasons
recommended action
any other issues that may be of interest to OFT, e.g., loophole in, or inadequacy of, legislation
any likely enforcement action or associated issues that may have media value for OFT
reference and disposal of evidentiary material
confirmation of redress being provided by the trader to the consumer, where relevant.
Unless an investigation is extremely serious, complex or requires briefing at a more senior level, a
formal memorandum can be replaced with a shorter, dot point, reporting style that still addresses
the above criteria, provided appropriate file notes are maintained during the course of the
investigation.
Category 4 matters may be finalised without completion of a memorandum provided detailed file
notes are maintained outlining all findings and intended actions.
3.6
Dealings with the complainant
The investigating officer must deal fairly, efficiently and without bias with complainants. The
following is to occur on receipt of an investigation file by the investigating officer:



contact the complainant within seven working days
confirm the issues for investigation with the complainant
discuss expectations – explain what OFT can and cannot do
34



inform the complainant of alternative avenues for redress (e.g. QCAT, Travel Compensation
Fund, Claim Fund)
advise the estimated time frame for the investigation
make a file note recording the contact made and listing the issues discussed.
Whilst a matter remains open for investigation, the complainant is to be updated on at least a
monthly basis about what action is occurring. Contacts with the complainant are to be recorded on
the investigation file and / or on MACS.
When informing a complainant about the outcome of an investigation, it is preferable that written
advice be provided outlining the:





issues originally confirmed with the complainant and subsequently investigated
Act and section of the alleged substantive breach under investigation
investigation findings and the basis upon which the findings are supported
enforcement action taken and if applicable, penalty unit and fine amount.
contact name and number of the investigating officer, inviting the complainant to contact the
officer if they wish to discuss the matter further.
However where the investigation is of a minor or non-complex matter telephone advice to the
complainant outlining the above issues may be provided. If the complainant has been advised of
the outcome by telephone the contact officer must record the nature of the information supplied to
the complainant. This information is to be recorded in the investigation file notes.
Prior to sending written advice, consideration should be given to telephoning the complainant to
advise them of the findings before sending out the written reply. In cases where the matters have
been complex or extended over a period of time consideration should also be given, where
practical to do so, to visiting the complainant personally to discuss the outcome, before sending out
the written reply.
The OFT’s Disclosure of complaint related information and Privacy policy provides the guidelines
for the release of investigation / inquiry information.
3.6.1
Suspending complainant contact
OFT deals with many complainants each year, most of whom act responsibly and conduct
themselves in a cordial and polite manner.. On occasion, complainants may become unreasonable
in their expectations of OFT or dissatisfied with the action taken by OFT sometimes becoming
upset, angry and generally difficult to deal with. Some complainants are unwilling to accept
decisions and may continue to demand further action on their complaint. Frequently, these
complainants also take their complaint to other forums such as Government Ministers or local
Members of Parliament whereupon the complaint cycle recommences as OFT is obliged to review
the matter.
Often, dissatisfied complainants resort to flooding OFT with telephone calls, emails or written
correspondence to state a preferred or alternate position. On occasion, complainants may do so in
a rude, aggressive or abusive manner in an attempt to influence or sway the view or position taken
by OFT.
Unreasonable complainants place a heavy demand on the operational resources of OFT and
require careful management. In some cases, it is appropriate to discontinue or suspend further
complainant contact in order to maximise the efficient use of resources devoted to investigating
complaints and to protect the interests of the complainant and/or any third party. When a
suspension or discontinuance of complainant contact is contemplated, the investigating officer
35
shall seek the written approval of their Band 3 or higher Manager prior to providing the complainant
with written notification advising them of the suspension or discontinuance of contact on the matter.
3.7
Redress
Often the primary desire of a consumer will be for OFT to remedy their complaint by obtaining
redress from the trader. OFT’s compliance officers must at all times endeavour to ensure the
consumer understands that in investigating their complaint, OFT is not empowered to “act” for the
consumer in regard to any legal entitlement. The consumer can be advised the court or tribunal is
the appropriate agency to determine compensation. Consumers should also be encouraged to
seek independent legal advice about any entitlements. For some consumers, seeking legal advice
can be an expense they cannot afford. In this regard, information about free and affordable legal
entities such as Legal Aid Queensland or the Queensland Law Society can be provided to
consumers.
It is important OFT balances the consumer’s request for assistance in gaining redress with its
legislated responsibilities to ensure the conduct of the trader is appropriately addressed,
minimising the risk of the conduct recurring.
3.7.1
Risks associated with conciliating redress
There are risks associated with compliance officers being involved in the negotiation of redress.
These risks include:



a perception amongst traders that investigators are acting unethically (in contravention of the
Public Service Act 2008) by using investigative powers and status to coerce or intimidate
traders into providing redress, especially in circumstances where the alleged breach has not
been proven
traders acting inappropriately from the outset in the (mistaken) belief OFT will first negotiate
with them to resolve the matter by provision of redress
non-compliant conduct of the trader, especially in serious matters, is not appropriately
identified and addressed, thus, allowing non-compliance to continue which may affect a broad
range of consumers over a long period of time.
To minimise these risks to staff and OFT, compliance officers may:



inform a trader that providing redress is what the consumer desires and should it be provided,
OFT would take that gesture of good will into consideration when determining what action (if
any) will be taken
resolve a Category 4 matter by negotiated redress as part of the conciliation process (refer to
section 3.9)
in cases where consultation with the fair trading Enforcement Coordinator has identified an
enforceable undertaking as the most appropriate action, inform the trader the payment of
redress to all relevant parties is a condition of that undertaking.
Compliance officers shall:




advise the trader that provision of redress does impact on OFT’s assessment as to whether to
investigate a matter and, if relevant, to take enforcement action
inform the consumer that whilst OFT cannot compel a trader to provide redress, it has, or will
advise the trader that redress is what the consumer is seeking. Any such gesture will be taken
into consideration when determining what action will be taken
inform the consumer and trader that the provision of redress is a matter between the two of
them, and OFT will not accept offers of cash payments on behalf of the consumer
confirm with the consumer that redress has been provided, in cases where it is considered a
factor in determining what action will be taken.
36
Note: Do not request a consumer to withdraw their complaint if redress has been provided. The
withdrawal of a complaint may affect the credibility of the complainant if the matter is to proceed to
court or tribunal action.
Compliance officers may consider accepting a redress offer by way of cheque or money order
payment (made payable to the consumer) on behalf of the consumer, provided an
acknowledgement of payment form is completed by all parties, and placed on the investigation file
along with a photocopy of the cheque or money order. The cheque or money order is to be sent by
registered post to the consumer or handed to the consumer with an acknowledgement of receipt
obtained.
3.7.2
Conciliation during investigation
In circumstances where the OFT is of the opinion that compliance officers should attempt to
conciliate redress between the trader and consumer, regardless of whether or not it intends to
investigate the matter further (Category 1 to 3 matters), the following requirements are to be
adhered to:





3.8
approval by a Band 4 or higher supervisor is to be obtained prior to conciliation commencing
reason for conciliation is to be recorded on the investigation file
notes of all discussions involving all parties are accurately recorded and documented
if redress in full or part is obtained via conciliation. This information is to be confirmed and
recorded on file
conciliation of redress is not to occur if a previous complaint of a similar nature has been
resolved by conciliation with the trader
Inquiry closure considerations
Before an inquiry file (including Category 4 non-investigation matters) is closed, consideration
should be given to the following:









3.9
strength of the evidence at that time – substantial, reliable and admissible
evidence that may be required to reach a conclusion
availability of independent, credible and corroborative information
avenues of inquiry undertaken and still available
trader’s response
seriousness of the breach
likelihood of the trader continuing with the activity
in the cases where the trader is unable to be located, inquiries undertaken to locate them
enforcement action considered and, if relevant, the reason/s that enforcement option was
taken.
Compliance advice letter
A compliance advice letter may be used where it appears a trader may have committed a minor or
technical breach, or where there appears to be limited evidence with limited credibility and/or little
likelihood of a positive outcome. A compliance advice letter may be considered appropriate for use
either prior to commencing or during an investigation if the criteria above is satisfied.
A compliance advice letter will:




identify the trader and any relevant business entity principals
indicate the behaviour that is in breach
where applicable identify offence section breached and its penalty provision
state any corrective action required
37

advise enforcement action may be instituted without further warning should OFT find evidence
of future breaches of the same provisions.
The following factors should also be considered when determining if a compliance advice letter is
appropriate:







the availability of evidence and the likelihood of the investigation being able to successfully
establish whether or not a breach has been committed; or
the credibility of the evidence is unlikely to be sufficient to support a higher level of compliance
action; or
the trader has not had enforcement action taken against them within the previous 2 years; or
the matter is considered minor in nature or not of sufficient priority to warrant the investment of
resources in a more comprehensive investigation; or
the matter may have been inadvertently caused by the trader; or
the trader has shown a willingness to comply with legislation or has indicated an intention to
apply corrective action to prevent the breach recurring; and
there are no more than 2 possible issues identified for which it is appropriate to issue a letter.
3.10
Non–investigation action
Non-investigation action will involve OFT taking one or more of the following actions to address a
low-risk Category 4 complaint:






Compliance advice letter
compliance spot-check (site visit)
trader education visit
conciliation
referral back to the trader, or industry association, where relevant, for complaint resolution,
e.g. pursuant to the procedures outlined in that industry’s Code of Conduct
taking no further action beyond recording the details of the complaint.
3.10.1 Deciding what non-investigative action to take
The following should be taken into account when considering what non–investigation action is
appropriate:









matter is not a fixed Category 1, 2 or 3 matter
trader has not had enforcement action taken against them within the previous 2 years
there are no more than2 possible breaches identified for which it is appropriate to issue a
Compliance advice letter
complainant alleges a minor or technical breach that OFT would not normally consider taking
enforcement action for
there appears to have been no intention to act dishonestly or not to comply with legislation
trader is willing to cooperate with OFT and take action to minimise risk of further breach/s
commencement of an investigation would not be an appropriate use of resources
based on available information it is likely the matter can be resolved quickly and effectively
through non-investigative means
matter is for information only.
38
A general guide to the most appropriate action is as follows in table 5.
Action
Compliance advice letter
Considerations
Alleged conduct does not cause financial loss. Compliance with
the appropriate legislation is process related only and may be
rectified if the trader was aware of the requirements.
Compliance spot check
Complaint is about the trader failing to complete a document
correctly or undertaking an action that has not resulted in a
financial loss to the complainant, e.g., failure to display licence
details.
Trader education
Matter relates to the trader undertaking action that is more than
likely due to an honest mistake or lack of knowledge about the
industry.
Conciliation
There has been some financial loss to the complainant and it is
likely conciliation will resolve the matter to the satisfaction of both
parties.
Complaint resolution, e.g. Matter involves a licensee subject to a legislative or voluntary
Code of Conduct
Code of Conduct, and the consumer has indicated that they have
not approached the trader or the trader has failed to respond to
the complaint.
Table 5: Guide to choosing the most appropriate non-investigative action
39
4
4.1
Enforcement action
Enforcement action components
Enforcement actions may be commenced by OFT in instances when there is sufficient information
available to reasonably believe a breach has been committed. Components include:






4.2
enforcement policy
enforcement action principles
enforcement options
decision to take enforcement action
General Rule of Enforcement (See 4.5)
public interest factors.
Purpose of enforcement
OFT recognises effective application of enforcement and other action for non-compliant behaviour
will significantly encourage compliance with fair trading legislation and promote community
confidence in the marketplace and OFT itself.
Regulatory enforcement serves to:
 Penalise non-compliance, especially where the offender has made some financial or other
gain due to the non-compliance
 Encourage industry compliance generally for all traders in the industry
4.3
Enforcement strategy
OFT will apply it’s Compliance and Enforcement Policy and Standards to ensure the consistent
application of enforcement and other remedies (options) available to it, in order to encourage
compliance, and to prevent, deter and in some cases penalise non-complaint behaviour effectively
and efficiently. OFT will take into account the circumstances surrounding all cases where
enforcement action is to be considered and in particular will carefully assess public interest in such
matters.
OFT acknowledges the range of enforcement tools and remedies available under relevant
legislation and recognises the need for considered application of escalating enforcement options in
order to achieve trader and marketplace compliance. The more serious the alleged breach the
stronger the enforcement action.
The key objective is to eliminate and deter serious non-compliant behaviour, whilst encouraging
traders who may have committed less serious breaches to acknowledge their conduct and apply
corrective action. Where previous non-compliance is established on lower level matters where
previous low level enforcement action has been taken [eg. Compliance Advice Letter, official
Warning Notice, Infringement Notice], it may be of greater benefit to escalate further enforcement
action.
Where non-compliance has occurred within the previous 2 years, and it is established the alleged
offender may be liable to further enforcement action for a low level offence of a like nature, an
official warning may be issued. However, not more than 2 official written warning notices or
infringement notices may be issued within any 2 year period. If on the third occasion within 2 years,
it is established the alleged offender may be liable to further enforcement action, then
consideration must be given to escalating enforcement action to either infringement notice (if
previous enforcement action was a warning), court or other action. Refer 4.8.1 – Decision to
commence enforcement action (Table 8 – Enforcement options and authorisation).
40
4.4
Enforcement action principles
The principles of this element of the risk management cycle are:

OFT will consider all enforcement options, including court and tribunal action, only if
admissible, substantial and reliable evidence exists to support the selected enforcement
option
in determining the most appropriate enforcement option OFT will take into consideration the
type of alleged breach, the circumstances surrounding it and matters of public interest
where court or tribunal proceedings are contemplated, OFT will not proceed if there seems no
reasonable prospect of a successful outcome
all enforcement actions and decisions will be accountable and transparent
OFT’s decision whether or not to take enforcement action will not be influenced by:







4.4.1
personal feelings concerning the trader, the consumer or other party
possible political advantage or disadvantage to the Government or any political group or
party
possible effect of the decision on the personal or professional circumstances of those
responsible for the decision.
Decision to take enforcement action
Any decision to apply a particular enforcement or other option must be based on the need for
considered application of escalating enforcement options in order to achieve trader and
marketplace compliance where necessary. Remember, the more serious the alleged breach the
stronger the enforcement action.
Any decision to take court or tribunal based enforcement action will depend on the existence of
substantial, reliable and credible evidence primarily resulting from the investigation conducted by
OFT. OFT will not proceed with any court or tribunal enforcement action if there is no reasonable
prospect of a successful outcome.
4.4.2
Consultation with the fair trading Enforcement Coordinator
The Director, Tactical Compliance or the fair trading Enforcement Coordinator must be consulted in
respect of enforcement issues in all cases where:





legal enforcement advice and assistance will be required
the office with case responsibility is undecided over the most appropriate enforcement option
to apply, e.g. matter involves multiple minor breaches
concerns exist over the sufficiency of evidence in respect of matters that may require court or
tribunal action
it is highly likely the trader will contest the enforcement action
it is considered appropriate to seek legal advice / opinion, e.g. Crown Law Office.
In such cases consultation with the fair trading Enforcement Coordinator must occur at the earliest
reasonable opportunity. This will reduce the risk of delays in the preparation of the brief of
evidence.
4.5
General Rule of Enforcement
To assist in maintaining consistency, appropriateness and accountability when applying
enforcement action the following General Rule of Enforcement has been developed.
Where there is substantial, reliable and credible evidence to support enforcement action,
and there are no other factors directly affecting the investigation, the enforcement option
41
taken should be that which is linked to the Breach Category that the substantive offence
falls within.
Table 6 – Enforcement options and breach categories
4.5.1
Exceptions to the General Rule of Enforcement
There will be circumstances and issues that may support an exception to the General Rule of
Enforcement. Where the investigating officer considers it in the public interest to take another type
of action, approval to do so must be obtained from the relevant Band 3 or above Manager (refer to
table 9).
4.6
Multiple breaches
In cases where there are multiple breaches identified, the investigating officer needs to consider
the overall conduct of the trader and whether or not there is a more substantive and appropriate
offence upon which to base an enforcement action/s. If such an offence is available then this will
generally dictate the action to take pursuant to the General Rule of Enforcement.
42
In cases where it is not possible or very difficult to identify a more substantive breach. Table 7
should be used as a guide.
Breach circumstances
Category 1 or 2 matters that require court or
tribunal action.
More than 3 infringement notice offences
(Category 2, 3 or 4).
Category 3 or 4 matters where infringement
notice/s are issued for up to 3 offences, an
official warning or Compliance Advice Letter
could be issued to address any additional
identified breaches.
Recommended action
All breaches to be addressed by court or tribunal
action.
All breaches to be addressed by appropriate
court or tribunal action.
All breaches to be addressed by infringement
notice (if available). Where infringement notice
option is not available, or if more than 3
infringement notices are to be issued,
consideration to be given to taking court or
tribunal action.
Table 7: Recommended enforcement action – multiple breaches
4.7
Enforcement and other options
OFT has a range of primary enforcement and other remedies (options) available to it under
relevant legislation, these include:
















Compliance Advice Letter (non-investigation action – refer section 3.9)
Official warning
Infringement notice
Civil penalty notice (ACL)
Enforceable undertaking
Injunctive action
Compensation order
Non-party redress
Adverse publicity order
Non-punitive order
Public warning
Public naming
Pecuniary penalty
Disqualification order
Disciplinary action – tribunal
Prosecution action.
Embargo notices (Product Safety) may be issued and served on the occupier of premises to
secure goods or equipment used in the supply of goods or services in contravention of the ACL.
Administrative disciplinary action against a licence holder e.g., licence suspension and cancellation
may also be commenced concurrent with other enforcement action or proceedings.
Substantiation notices may be used to elicit information from a trader or person who makes a claim
or representation about:



the supply or possible supply of goods or services
a sale or grant, or possible sale or grant of an interest in land
employment that is to be, or may be, offered by the person or another person
43
4.7.1
Official warning
An official warning may be used where a trader has committed a minor or technical breach, there
appears to have been no intention to act dishonestly, or not to comply with legislation, and the
trader is willing to cooperate with OFT and take rapid action to minimise the risk of the breach
recurring.
An official warning letter (using the MACS template) should:





identify the trader and any relevant business entity principals
indicate the behaviour that is in breach
set out the specific offence section breached and its penalty provision
state the corrective action required
advise enforcement action may be instituted without further warning should OFT find evidence
of additional breaches of the same provisions.
The following factors are to be considered when determining if an official warning is appropriate:





matter is not a fixed Category 1 or 2 pursuant to the Breach Category
trader has not had enforcement action taken against them within the previous 2 years
matter is considered minor in nature, and may have been inadvertently caused by the trader
there are no more than2 specific breaches identified for which it is appropriate to issue an
official warning
trader has shown a willingness to comply with legislation and rapidly apply corrective action to
prevent the breach recurring.
4.7.2
Withdrawal of official warning
An official warning may be reviewed and subsequently withdrawn at the request of the recipient in
cases where a Band 3 manager or above considers, based on the merits of the case, enforcement
action is not in the public interest (whether by reason of balance of evidence or inappropriateness
of penalty).
A request for review of an official warning must be lodged in writing and presented for
consideration of the issuing office/officer. Verbal requests will not be considered.
Each request will be thoroughly reviewed. Reviews should, wherever possible, be finalised
promptly having regard to the needs of the business area impacted but within 30 days of receipt of
request for review. Extensions of time beyond this period are to be negotiated with and approved
by the reviewing officer’s supervisor and the alleged offender is to be advised immediately of the
extended timeframe and of the reasons for doing so. The advice may be provided in writing,
verbally or in person.
The review process will require the following steps:








Receipt of request for review/withdrawal and decision to review
Issuing officer and their supervisor advised of request for review
Supervisor assesses the request and categorises it into one of the 3 groups [within 14 days] –
Refer section 5.4.2 – Review assessment
Notations of request entered into MACS
Review of all available evidence and information found during the investigation process
Reviews must be fully documented and a memo providing recommendations from the review
is to be submitted to relevant supervisor or director for adjudication and approval
Alleged offender advised in writing of the outcome of the review
Notations finalised in MACS (status change).
44
4.7.3
Infringement notices
Infringement notices are issued under the authority of the State Penalties Enforcement Act 1999
for breaches of certain offences prescribed in the State Penalties Enforcement Regulations 2000.
Infringement notices are issued to:





improve compliance levels in a cost-effective manner for the Government, the public and
traders
improve compliance levels without congesting the courts or tribunal through increased
proceedings
develop consumer, trader confidence in the compliance process
encourage traders to compete in an equitable manner, consistent with fair trading principles
promote timely remedial action.
The following factors are relevant when considering whether or not to issue an infringement notice:




matter is not a Category 1 breach pursuant to the Breach Category
offence is in isolation and is of a less serious nature
investigation of the offence does not require a detailed or complex investigation - some
offences may be considered self-evident
defences available to the defendant, if any, are limited by statute.
An infringement notice may be withdrawn, or replaced by an official warning, at the request of the
recipient in cases where a Band 3 manager or above considers, based on the merits of the case,
infringement action is not in the public interest (whether by reason of balance of evidence or
inappropriateness of penalty).
Issue limit for infringement notices
If during the course of an investigation multiple offences are detected for which an infringement
notice may be issued or other enforcement action may be commenced, the investigator is
permitted to:



issue up to, but not exceeding, 5 infringement notices to an alleged offender provided the
combined monetary penalty of the issued notices does not exceed $10,000
issue a warning notice for the further breaches beyond the 5 detected and dealt with via
infringement notice
where more than 5 offences are identified, commence court action by compiling a brief of
evidence with appropriate legal advice and assistance from the FT Enforcement Coordinator.
Matters involving fewer than 5 breaches may also be considered for tribunal, court or other action,
if circumstances warrant it.
Note: Maximum 5 Penalty Infringement Notices or maximum combined amount of $10,000.
4.7.4
Civil penalty notice (ACL)
Civil penalty notices supplement criminal sanctions and civil penalties that may be applied for
certain offences against the ACL.
Civil penalty notices allow OFT to take action for breaches of unfair practices and other conduct
more efficiently and effectively than proceeding by court or other action.
Civil penalty notices are issued under the authority of the Fair Trading Act 1989 for breaches of
certain legislative provisions.
45
As with infringement notices, civil penalty notices are issued to:





improve compliance levels in a cost-effective manner for the Government, the public and
traders
improve compliance levels without congesting the courts or tribunal through increased
proceedings
develop consumer and trader confidence in the compliance process
encourage traders to compete in an equitable manner, consistent with fair trading principles
promote timely remedial action.
The following factors are relevant when considering whether or not to issue a civil penalty notice:




offence is in isolation and is of a less serious nature
investigation of the offence does not require a detailed or complex investigation - some
offences may be considered self-evident
defences available to the defendant, if any, are limited by statute
relatively high frequency of the offence within the marketplace.
A civil penalty notice may be withdrawn in lieu of other enforcement action in cases where a Band
3 manager or above considers, based on the merits of the case, the issue of a civil penalty notice
is not in the public interest and the commencement of alternate enforcement action will deliver a
greater compliance benefit.
Issue limit for civil penalty notices
If during the course of an investigation multiple offences are detected for which civil penalty notices
may be issued or other enforcement action commenced, the investigator is permitted to:



in the case of an individual, issue up to but not exceeding a total of 3 civil penalty notices to the
individual provided the combined monetary penalty of the issued notices does not exceed
$10,000
in the case of a corporation, issue not more than one civil penalty notice and a warning notice
for further breaches detected
in the case of a listed corporation, commence court action by compiling a brief of evidence for
the offences detected having first obtained appropriate legal advice and assistance from the
fair trading Enforcement Coordinator.
Matters involving fewer than 3 breaches may also be considered for court action if circumstances
warrant it.
4.7.5
Enforceable undertakings
Enforceable undertakings may be applied pursuant to provisions of:






ACL(Q) – Chapter 5, Division 1 – Undertakings
AFAA – Part 10, Injunctions and Undertakings
Debt Collectors (Field Agents and Collection Agents) Act 2014 (DCA) – Part 10 – Injunctions
and Undertakings
Introduction Agents Act 2001 (IAA) – Part 8 – Miscellaneous, Division 1 – Undertakings
Motor Dealers and Chattel Auctioneers Act 2014 (MDCAA) – Part 8, Injunctions and
Undertakings
POA – Part10 – Injunctions, undertakings, preservation of assets and civil penalties Tourism
Services Act 2003 (TSA) – Part 7, Undertakings.
46
This option may be an appropriate response where a trader has committed what appears to be a
serious breach of legislation and the trader is willing to agree an outcome that would be acceptable
to OFT and parallel the orders which OFT would seek were the matter to be put to a court or
tribunal. Enforceable undertakings are considered a timely and more effective resolution to certain
matters than pursuing a prosecution or disciplinary proceeding.
In all cases the fair trading Enforcement Coordinator should be consulted in respect of this option
as the unit will be responsible for the drafting and implementation of the undertaking.
The following factors should be considered when determining if an enforceable undertaking is the
most appropriate action:





matter is a Category 1 or 2 breach pursuant to the Breach Category
matter is not of sufficient criminality as to warrant the recording of a conviction
trader is willing to agree an outcome that would be acceptable to OFT and parallel the orders
which OFT would seek were the matter to be put to a court or tribunal
trader is likely to comply with the undertaking which should include provisions designed to
prevent the risk of the breach occurring again and provide compensation/refunds to
consumers in respect of any detriment caused, where practicable
no previous enforcement action has been taken against the trader for similar conduct.
Enforcement of an undertaking
Should an undertaking pursuant to the ACL(Q), AFAA, POA, MDCAA, DCA, CCA, IAA or TSA be
contravened, the Commissioner can apply to the court for an order to enforce the undertaking.
Orders sought may include one or more of the following:





directing the person to comply with the undertaking
directing the person to pay the State/Crown an amount that is not more than the direct or
indirect financial benefit obtained by the person from, and reasonably attributed to the breach
directing the person to pay compensation to someone else who has suffered loss or damage
because of the contravention/breach
directing the person to give a security bond to the State/Crown for a stated period
any order the court considers appropriate.
The fair trading Enforcement Coordinator must be consulted about any possible application to the
courts for a breach of an undertaking.
4.7.6
Injunctive action
The commencement of injunctive action (proceedings) can be costly and resource intensive.
Injunctive action provides a mechanism for OFT to address serious misconduct that has actually,
or has the potential to, significantly impact consumers and/or the marketplace.
The court may grant an injunction following an application made by OFT (or someone else) if the
court is satisfied the conduct of a person/s justifies restraining the person/s from engaging in
certain conduct.
The following factors are to be considered when determining whether to take injunctive action:




matter is a Category 0, 1 or 2 breach
alleged conduct is serious and ongoing or has the potential to recommence
conduct is likely to cause wide spread or significant detriment
other avenues to stop the conduct have been unsuccessful, including previous enforcement
action by OFT.
47
The fair trading Enforcement Coordinator must be consulted over the instigation of any injunctive
action.
4.7.7
Compensation order
Part 5-2, Division 4, Subdivision A of the ACL (Q) provides a right for a person to apply to a court
for a compensation order to compensate for loss or damage suffered by the person.
The court may make any order it considers appropriate to compensate the person or reduce their
loss or damage. Orders that might be made under this provision are listed in section 243 and may
include:








voiding a contract – immediate and/or at all times on or after a date specified in the order
varying a contract – immediate and/or at all times on or after a date specified in the order
refusing to enforce any or all contract provisions
a direction for the respondent to refund money or return property
the payment of money to the injured person by the respondent
directing the respondent to repair or provide parts to repair goods at no cost to the affected
person
directing the respondent to supply specified services to the affected person
orders in relation to an instrument creating or transferring an interest in land.
These orders may be sought by a person (section 237), by OFT (a regulator) in representative
proceedings (sections 237, 277) or, in the case of proceedings under Chapter 4 (Criminal) or
Chapter 5 (Enforcement remedies), the court can make any order it considers appropriate.
4.7.8
Non-party redress
OFT (a regulator) may make application to the court for such orders (other than an award of
damages) against a person who has contravened a provision of the ACL(Q) which has caused
detriment to other persons. An order may also be made against a party to a contract who is
advantaged by a term of a contract for which a court has made a declaration under section 250 (a
declared term). A declared term is a term that has caused, or is likely to cause, a class of persons
to suffer loss or damage. The class of persons includes persons who are non-party consumers in
relation to the contravening conduct or declared term.
The order must be an order that the court considers will:


redress, in whole or in part, the loss or damage suffered by the non-party consumers
concerning the contravening conduct or declared term, or
prevent or reduce the loss or damage suffered, or likely to be suffered, by the non-party
consumers concerning the contravening conduct or declared term.
An application may be made at any time within 6 years after the day on which:


the cause of action that relates to the contravening conduct occurred or
the declaration is made.
4.7.9
Adverse publicity order
OFT (a regulator) may make application to the court for an adverse publicity order on a person
who:


has contravened a provision of Part 2-2 or Chapter 3 of the ACL(Q) or
has committed an offence against Chapter 4 of the ACL (Q).
48
An adverse publicity order concerning a person is an order that requires the person:


to disclose, in the way and to the persons specified in the order, such information as is so
specified, being information the person has possession of or access to
to publish, at the person’s expense and in the way specified in the order, an advertisement in
the terms specified in, or determined in accordance with, the order.
4.7.10 Non-punitive order
OFT (a regulator) may make application to the court for one or more of the orders mentioned below
concerning a person who has engaged in conduct that:


contravenes a provision of Chapter 2, 3 or 4 of the ACL(Q) or
constitutes an involvement in a contravention of such a provision.
The court may make the following orders concerning the person who has engaged in the conduct:




an order directing the person to perform a service as specified in the order and relates to the
conduct, for the benefit of the community or a section of the community
an order for the purpose of ensuring the person does not engage in the conduct, similar
conduct, or related conduct, during the period of the order (which must not be longer than 3
years) including:
o
an order directing the person to establish a compliance program for employees or other
persons involved in the person’s business, being a program designed to ensure their
awareness of the responsibilities and obligations concerning such conduct
o
an order directing the person to establish an education and training program for
employees or other persons involved in the person’s business, being a program designed
to ensure their awareness of the responsibilities and obligations concerning such conduct
o
an order directing the person to revise the internal operations of the person’s business
which led to the person engaging in such conduct.
an order requiring the person to disclose, in the way and to the persons specified in the order,
such information as is so specified, being information the person has possession of or access
to
an order requiring the person to publish, at the person’s expense and in the way specified in
the order, an advertisement in the terms specified in, or determined in accordance with, the
order.
Examples of order: An order requiring a person who has made false representations, to make
available a training video which explains advertising obligations under this Schedule
Examples of order: An order requiring a person who has engaged in misleading or deceptive
conduct about a product to carry out a community awareness program to address the needs of
consumers when purchasing the product.
4.7.11 Public naming
Public naming can be undertaken by the Commissioner or Minister. Alternatively, the Minister can
name rogue traders in Parliament under parliamentary privilege. Public naming is useful where
there is clear evidence of a trader engaging in deliberate and widespread misconduct and it is
important to provide a public warning about the trader’s misconduct.
However, due to the risk of defaming the trader, it is recommended advice from the fair trading
Enforcement Coordinator be sought prior to recommending the Commissioner or the Minister
publicly name a trader. Generally, public naming would not take the place of other Category 0/1
enforcement action, unless practical impediments exist e.g. trader is resident overseas or unwilling
to respond to OFT requests for information regarding the alleged conduct.
49
4.7.12 Public warning – ACL (Only)
A written public warning notice may be issued to warn the public about the conduct of a person if:



there is reasonable grounds to suspect the conduct may constitute a contravention of a
provision chapters 2, 3 or 4 of the ACL(Q)
one or more persons has suffered, or is likely to suffer, detriment as a result of the conduct
there is a level of public interest to issue the notice.
As with public namings, the issuing of a public warning carries with it an inherent risk of defaming a
person or trader. Prior to seeking the approval of the relevant Band 1 Manager (refer to table 9) to
issue a public warning, advice from the fair trading Enforcement Coordinator must be sought.
4.7.13 Pecuniary penalty
Pecuniary (civil) penalties are a ‘middle ground’ between criminal penalties and civil remedies
under the ACL(Q). The application of a pecuniary penalty is a court based civil proceeding initiated
by OFT the purpose of which (generally) is to punish or deter a party engaging in a serious breach
of the law, as a criminal penalty does.
Pecuniary penalties are monetary debts and, if unpaid, are collected through the civil process,
such as seizure and sale actions and bankruptcy proceedings, unlike unpaid criminal fines where
imprisonment is a possibility. Pecuniary penalties are not supported by State Penalty Enforcement
Register (SPER) legislation and as such cannot be referred to SPER for collection of non-payment.
An advantage of a pecuniary penalty in the context of consumer protection is that an enforcement
agency can seek a civil penalty which has a deterrent effect and, in the same proceedings, seek
consumer redress (where possible) and stop the contravening conduct.
4.7.14 Disqualification order
Upon application made by OFT a court may, if satisfied a person has contravened, has attempted
to contravene or has been involved in the contravention of the ACL (Q), make an order
disqualifying the person from managing a corporation for a period the court considers appropriate.
Where a disqualification is justified and a court orders accordingly, OFT must notify ASIC and
provide it with a copy of the order. ASIC is required to keep and maintain a register of
disqualification orders.
4.7.15 Disciplinary action – tribunal
This enforcement option is currently available only for a licensee under POA and MDCAA. It is
considered an appropriate option where a licensee has committed a serious breach of legislation
under these Acts, or continually failed to comply with his/her responsibilities. Although criminal
courts have power to cancel a licence for a breach of the Act they are generally reluctant to do so.
The fair trading Enforcement Coordinator must be consulted in all cases where disciplinary action
is being considered.
The following factors should be taken into account when determining if disciplinary action is
appropriate:





matter is a Category 1 or 2 breach and not slated for another type of enforcement action
breach is of a serious nature
breach is of the POA or MDCAA
circumstances involve blatant disregard for compliance
need exists to suspend or cancel licence and this is not achievable by administrative means
50

issuing of multiple infringement notices would not adequately remedy the matter or reduce the
risk of further similar offences occurring
the expected penalties the tribunal would hand down on a finding of guilt would be appropriate
the trader has ignored previous lower-level enforcement action.


4.8
4.8.1
Commencement of Proceedings
Decision to commence enforcement action
The decision to commence enforcement or other proceedings must be made in accordance with
the authorities. Table 8 below sets out OFT positions permitted to authorise the commencement of
certain enforcement proceedings. The table also applies to decisions to amend or discontinue the
enforcement action.
Enforcement action
Authorisation
Official warning & Compliance advice letter
Bands 1 – 5
Infringement notice
Bands 1 – 5
Note: Max 5 or max combined amount not > $10,000
Civil penalty notice (Australian Consumer Law)
Max 5 and max combined amount not > $11,000

Individual
 Bands 1 – 5
Max 5 and max combined amount not > $11,000

Non Listed Body Corporate
 Bands 1 – 3

Listed Corporation
 Bands 1 – 2

Civil penalty notice/s > $11,000
 Bands 1 – 2
Enforceable undertaking
Bands 1 – 3
Injunctive action
Band 1
Compensation order - Court based application
Bands 1 – 4
Non-party redress - Court based application
Bands 1 – 2
Adverse publicity order - Court based application
Bands 1 – 3
Non-punitive order - Court based application
Bands 1 – 3
Public warning
Band 1
Public naming
Band 1
Safety warning notice
Band 1
Pecuniary penalty - Court based application*
*(Bands 1 – 2 for discontinuance)

Category 0 Cases
Band 1
Bands 1 – 3

Category 1 Cases

Category 2 Cases
Bands 1 – 4
Disqualification order - Court based application
Bands 1 – 2
Disciplinary action – Tribunal*
*(Bands 1 – 2 for discontinuance)

Category 0 Cases
Band 1
Bands 1 – 3

Category 1 Cases

Category 2 Cases
Bands 1 – 4
Prosecution action (Excluding Criminal Code)*
*(Bands 1 – 2 for discontinuance)

Category 0 Cases
Band 1
Bands 1 – 3

Category 1 Cases

Category 2 Cases
Bands 1 – 4
Prosecution – Criminal Code
Band 1
Other:

Embargo notice
Bands 1 – 2

Product Safety matters
Bands 1 – 3
Substantiation notice
Bands 1 – 5
Table 8: Enforcement options and authorisation
51
Note: Depending on the legislation under which enforcement action is to be commenced, there
may be a statutory requirement to seek approval from an authorised person or their delegate, e.g.
Commissioner for Fair Trading for certain matters.
The following table assigns identified positions within OFT to a band level with authority to approve
the commencement of those proceedings identified above (refer table 8).
Band
1
2
Positions
Limited to
Commissioner for Fair Trading
Executive Director, Fair Trading
Operations






3




4









All state-wide compliance matters excluding
cases conducted by Major Investigations or
Product Safety
Director, Tactical Compliance All state-wide compliance matters including
cases conducted by Major Investigations or
(DTC)
Product Safety
All state-wide licensing matters
Director, Business Services
Director, State Wide Operations All state-wide compliance matters excluding
cases conducted by Major Investigations or
(SWO)
Product Safety
Manager, Investigations
All Band 3 positions - Compliance matters where
Manager, Compliance Planning case responsibility resides within position’s area
Manager, Case Assessment
of line management responsibility
and Conciliation
Manager, Claims and
Recoveries
Manager, Major Investigations
Manager, Product Safety
Manager, Regional Office
Principal Compliance and
All Band 4 positions - Compliance matters where
Enforcement Officers
case responsibility resides within position’s area
Principal Compliance Officers
of line management responsibility
Principal Investigation Officers
Enforcement Coordinator
Planning and Development
Officers
Assistant Principal Compliance
Officers
Director, Compliance (DC)
5



Senior Compliance Officers
Senior Product Safety Officers
Senior Investigation Officers
6


Compliance Officers
Product Safety Officers
All Band 5 positions - Compliance matters where
case responsibility resides within position’s area
of line management responsibility
All Band 6 positions - Compliance matters where
case responsibility resides within position’s area
of line management responsibility
Table 9: Positions allocated to each band level
The commencement of enforcement action must accord with the authorities identified above (refer
to tables 8 and 9) and the requirements of the provisions of the Compliance and Enforcement
Policy and Standards.
52
OFT delivery of compliance and enforcement outcomes concerning the ACL(Q) must be consistent
with the national objectives of this legislation. These objectives are:



to improve consumer wellbeing through consumer empowerment and protection
to foster effective competition
to enable the confident participation of consumers in markets in which both consumers and
suppliers trade fairly.
Note: Refer to section 1.2 for the six operational objectives of the ACL(Q).
4.8.2
Prosecution
Prosecution of a breach is a serious commitment by OFT that can be costly and resource intensive
and impacts on all parties concerned. The prosecution of serious breaches and systemic noncompliance is, however, often the most appropriate response, regardless of whether previous
enforcement action has been undertaken.
A decision to commence prosecution action will rely on the information obtained and the nature of
the breach, i.e. that admissible, substantial and reliable evidence exists and is known to OFT and
that the reason for taking such action is in the public interest.
The following factors will be considered when determining if prosecution is the most appropriate
enforcement option:




matter is a Category 0 or 1 breach where prosecution is the recommended enforcement action
trader has contravened an enforceable undertaking
trader has elected to have matter heard in court, rather than paying the prescribed penalty for
an infringement notice
in light of the provable facts and all circumstances, commencement of prosecution action is in
the public interest.
The fair trading Enforcement Coordinator must be consulted prior to the commencement of
prosecution action.
4.8.3
Prosecution proceedings – public interest
The factors listed below will be considered when determining if prosecution proceedings is in the
public interest. These factors are likely to vary from case to case, as well as have broader
application to all enforcement action considered. The applicability of, and weight to be given to
these and other factors will depend on the particular circumstances of each case.
Whilst some factors may weigh against proceeding with a prosecution, there are other public
interest factors that may favour proceeding with a prosecution, e.g., the seriousness of the offence
and the need for deterrence. The more serious the offence the more likely it will be in the public
interest to pursue a prosecution – see also the General Rule of Enforcement (section 4.5) and the
OFT Enforcement Strategy (section 4.3).
Public interest factors to consider in determining whether to commence a prosecution include:







seriousness or triviality of alleged offence
mitigating or aggravating circumstances
youth, age, physical health, mental health or special infirmity of the trader, witness or victim
timeliness of action for the alleged offence
degree of culpability of the trader in connection with alleged offence
obsolescence or obscurity of the law (or a particular provision)
prosecution could be perceived as counter-productive, e.g., by bringing the law into disrepute
53





availability and efficacy (or lack thereof) of any alternatives to prosecution
prevalence of the alleged breach in the marketplace and the need for deterrence, both specific
and general
likely length and expense of prosecuting matter versus the expected outcomes
sentencing options available to the court in the event of a finding of guilt
for ACL(Q) matters – does the decision to commence prosecution proceedings accord with the
objectives of the ACL(Q).
The applicability and weight given to these and any other public interest factors will depend on the
particular circumstances of each case.
4.8.4
Mitigating circumstances
Where mitigating circumstances come to light before or during enforcement action, these should
be considered with any other relevant issues to determine the most appropriate course of action.
For very serious matters (primarily Category 0 and 1) where mitigating factors are present, the
decision should be to consider court/tribunal action or an enforceable undertaking. In these cases
any mitigating circumstances would then be taken into account by a court/tribunal in determining
penalty, on a finding of guilt.
Where a trader offers to resolve the matter by payment of redress or some other action (including
remedies available under the ACL(Q)) the circumstances are to be brought to the attention of the
investigation officer’s supervisor to determine the appropriateness of further enforcement action
(refer to section 4.8.1).
At no time should investigation staff offer, indicate, infer or otherwise suggest to a trader that the
payment of redress or performance of some other action will resolve the matter where clear
evidence of a breach exists (refer to section 3.7).
4.8.5
Full brief of evidence (Full Brief)
An essential prerequisite to commencing prosecution proceedings in either a civil or criminal
jurisdiction (court or tribunal) is the preparation of a solid brief of evidence. In developing the brief,
an investigator must accurately identify the section of the legislation allegedly breached and
assess the adequacy of the evidence to prove each and every element of the offence.
The adequacy of the evidence is determined by the jurisdiction in which the breach is to be
prosecuted. For example, matters that are to proceed in a Magistrates Court require the highest
standards of proof. This being that each element of the offence must be proven ‘beyond a
reasonable doubt’. While every effort should be made to provide this level of proof in tribunal and
civil proceedings (conducted in Magistrates, District or Supreme Courts), each element need only
be proven to the ‘balance of probability’ standard.
Care must be taken during the investigative process to ensure the gathering and security of
evidence does not compromise the admissibility of all evidence pertaining to the matter.
Inappropriate use of investigative powers, hearsay evidence or breaks in the continuity of the
evidentiary chain of possession can seriously compromise the success of a prosecution.
Note: Refer Compliance Policy Statement– Exhibit and Property Handling.
While the Short Brief process (refer to section 4.8.6) should be used to progress routine matters
(where there is a likelihood of a plea of guilty being made by a defendant or in instances Where a
matter is likely to proceed ex-parte (heard in the absence of the defendant), a full brief of evidence
will be required to be produced to progress proceedings for serious breaches or where a matter will
be defended.
54
Full briefs of evidence are to be referred to the fair trading Enforcement Coordinator for the
purpose of gaining advice on the adequacy of the assembled evidence and the likelihood of an
action being successful. While the fair trading Enforcement Coordinator will assess material in the
brief, the onus is on the investigator to prepare the brief to the highest possible standard able to
withstand the scrutiny of the judicial process.
The brief must be accompanied by a covering memorandum prepared by the investigating officer
and actioned through the relevant Band Manager (refer to section 4.8.1).
The covering memorandum should advise of:




Purpose - a statement about the purpose of the memorandum
Background - comprehensive details of the background to the matter including relevant facts
in chronological form, previous convictions, discussion of each complaint received,
investigation details, evidence details and search results for licensing / bankruptcy etc
(including ASIC and ITSA searches)
Issues - Potential breaches - a discussion of the potential breaches requiring consideration.
Other issues - other relevant information, such as whether the matter is of public interest, the
existence of delays, availability of potential witnesses etc
Recommendation.- a recommendation on action sought (e.g. advice from the fair trading
Enforcement Coordinator, preparation or settling of a Complaint and Summons).
Briefs of evidence (Full Brief) shall address the following:










a memorandum setting out details relevant to the request for legal advice / assistance
advice from the Fair Trading Enforcement Coordinator identifying or recommending the
jurisdiction in which proceedings will be commenced
evidence proving each and every element of the offence/s either beyond a reasonable doubt
or on the balance of probability
hearsay evidence – Is there any hearsay evidence contained in investigators or witness
statements? If so, this needs to be explored and either proven so it can be admissible
evidence in court or discarded
evidence to negate any possible defences
evidence to support the lawful application of powers by the investigator
evidence to support the range of database searches (e.g. License searches etc) conducted by
the investigator throughout the investigation
evidence to support the conduct of criminal and other history. The investigating officer is
responsible for researching any previous history of enforcement on the part of a defendant
company or director/s. Evidence to support this research should to be attached to the brief
(ASIC, ACCC, and MACS searches)
a comparative assessment of past penalties for similar or like offences is to be undertaken
and attached to the brief
copies of all relevant documents not otherwise referred in and attached to a statement or
affidavit (e.g. search results etc).
The fair trading Enforcement Coordinator will assist investigators with copies of draft or final
statements (including complainant and investigator) or affidavits when requested to do so.
It is essential to account for and record decisions to commence or not to commence prosecution
proceedings, and the reasons why. Circumstances surrounding a particular decision, and input
from any relevant party (e.g. CMT direction to take action) must be documented.
55
4.8.6
Short brief of evidence (Short Brief)
Preparation of a short brief of evidence provides investigators with an opportunity to commence
Magistrates Court proceedings without the necessity of having to prepare a full brief of evidence.
The short brief is to be used when the breach of legislation requires court based enforcement
action.
The short brief process may be used where it is believed a defendant will offer a plea of guilty or if
it is considered the defendant will not be present at the call over or mention date. Investigators will
represent the OFT at court and will be required to present their evidence to the Magistrate.
As with the preparation of a full brief of evidence, it is the responsibility of the investigator to prove
the offence and to gather sufficient evidence to prove each and every element of the offence/s.
Following an appropriate level of inquiry and when the investigating officer is satisfied there is
sufficient prima-facie evidence to support the commencement of proceedings, the matter is to be
referred to the fair trading Enforcement Co-ordinator (through the office manager) for review. All
evidence must be sighted by the fair trading Enforcement Co-ordinator and once satisfied;
approval may be given through the relevant manager for the investigating officer to commence
proceedings. It is important that both the manager and the investigating officer complete a Court
Brief Checklist to afford the greatest opportunity for achieving a successful prosecution outcome.
At any stage during the checking process either the manager or a legal officer may terminate the
process if a view is held that insufficient evidence exists .The fair trading Enforcement Coordinator
may make recommendation to terminate the process if a view is held that insufficient evidence
exists. The matter may be returned to the investigating officer for follow up action which may
include the preparation of a full brief of evidence.
All Complaint and Summons’ must be approved by the fair trading Enforcement Coordinator prior
to the commencement of any proceedings initiated using the short brief process.
Investigators must adhere to the following:











short brief template must be used, unless the circumstances warrant the preparation of a full
brief of evidence
Complaint and Summons must be checked by the investigator’s supervisor/manager and then
by the fair trading Enforcement Coordinator
evidence must exist proving each and every element of the offence/s either beyond a
reasonable doubt or on the balance of probability
hearsay evidence – is there any hearsay evidence contained in investigators or witness
statements? If so, this needs to be explored and either proven so it can be admissible
evidence in court or discarded
evidence should be gathered to negate any possible defences
evidence must exist to support the lawful application of powers by the investigator
evidence should exist to support the range of database searches (e.g. License searches etc)
conducted by the investigator throughout the investigation
evidence should to support the conduct of criminal and other history. The investigating officer
is responsible for researching any previous history of enforcement on the part of a defendant
company or director/s. Evidence to support this research should to be attached to the brief
(ASIC, ACCC, and MACS searches)
a comparative assessment of past penalties for similar or like offences is to be undertaken
and attached to the brief
investigator shall record the decision of the Magistrate and any penalties handed down and
report these findings to the fair trading Enforcement Coordinator
where a defendant enters a plea of not guilty, the investigator is to note the date for the
hearing or adjournment and report this to the fair trading Enforcement Coordinator
56

where a defendant enters a plea of not guilty and a hearing date is set, then the investigator
will be responsible for the preparation of a full brief and follow the guidelines as set out in
section 4.8.5.
It is essential to account for and record decisions to commence or not to commence prosecution
proceedings and the reasons why. Circumstances surrounding a particular decision and input from
any relevant party (e.g. management direction to take action) must be documented.
4.8.7
Prosecutions – Criminal Code
There will be occasions where it is appropriate for OFT to commence prosecution proceedings
pursuant to provisions of the Criminal Code Act 1889. Where such action is considered
appropriate, the investigating officer is to consult with the fair trading Enforcement Coordinator.
The decision to initiate proceedings for alleged offences under the Criminal Code will rest with
Band 1 managers only.
4.8.8
Commencement of civil actions (including ACL(Q) matters)
Civil actions (remedies) may be applied or commenced under legislation administered by OFT
including the ACL(Q). Civil proceedings may be commenced for contraventions against Chapters
2, 3 or 4 of the ACL(Q). Commencing civil proceedings, for example those mentioned in Part 4.8
above, require the completion and lodgement of certain documents contained within the Uniformed
Civil Proceedings Rules (UPCR) Queensland 1999.
Investigators are bound by the Uniform Civil Proceedings Rules 1999 to disclose to another party
all information regarding an allegation. Strict adherence with this duty of disclosure is important.
The 2 documents required to commence a civil proceeding are the Form 9 Application and the
Form 46 Affidavit.
The Form 9 is a multi-purpose application form that can be adapted for use regardless of the action
being commenced.
The Form 46 Affidavit is in effect the “disclosure” document. It will contain not only a statement of
the facts of the matter but also include references to exhibits and documentary evidence copies of
which (where possible) must be attached to the Affidavit at the time of the lodgement of the
application.
Together the Form 9 Application and the Form 46 Affidavit are used to commence a civil action in
the jurisdiction applicable to the action being sought. These documents are prepared in triplicate
and when complete, must be taken to the court/tribunal? (in the jurisdiction applicable to the action
being sought) for swearing/affirmation and lodgement. At this time, the court/tribunal will set a date
for the matter to be heard.
Following lodgement of the application and affidavit with the court/tribunal, copies must be served
on the individuals and/or corporations listed as respondents (Duty of disclosure).
4.8.9
Charge and Plea Negotiations
Negotiating a reduction in the level, severity or the number of charges is a legitimate and important
part of the criminal justice system throughout Australia. The purpose is to secure a just result and
to maximise the benefits for the victim, the community and OFT by efficiently securing a plea of
guilty prior to or during the conduct of enforcement proceedings.
57
Guiding Principles


The prosecution must always proceed with those charges which fairly represent the conduct
that OFT can reasonably prove.
A plea of guilty will only be accepted if, after an analysis of all of the facts, it is in the public
interest (refer section 4.8.3) to do so.
Public interest may be satisfied if one or more of the following applies:




The fresh [or negotiated] charge/s adequately reflects the criminality of the offending conduct
and provides sufficient scope for sentencing; or
The prosecution evidence is found to be deficient in some material way; or
Not proceeding to trial compares favourably to the likely outcome of such trial; or
Sparing the victim the ordeal of a trial compares favourably with the likely outcome of a trial.
Prohibited Pleas
Under no circumstances will a plea of guilty be accepted if:



It does not adequately reflect the gravity of the provable conduct of the accused; or
It would require the prosecution to distort evidence; or
The accused maintains his or her innocence.
Authority to negotiate a charge/s or plea
In less serious cases, a Band 1 or 2 Manager may approve a Band 3 Manager to negotiate and
accept an offer to reduce the level/severity, the number of charges or a plea where the likely
outcome is in the public interest to proceed accordingly.
In cases of special sensitivity, notoriety or complexity a Band 2 Manager may negotiate and accept
an offer to reduce the level/severity, or the number of charges or a plea following approval by a
Band 1 Manager to proceed accordingly.
In all cases, before any decision is made to enter into negotiations with an accused person or
entity, confirmation in writing [email is satisfactory] must be received from the accused person or
entity detailing their willingness and intention to enter into negotiations. Written confirmation must
also be received from the accused person or entity concerning any agreement reached as to the
terms and conditions of a negotiated outcome.
Often, verbal representations are received by or made to OFT immediately preceding or during
court proceedings. In such cases written confirmation of the accused person or entity’s willingness
and intention to enter into negotiations may not be delivered. In all such instances, the prosecuting
or investigating OFT officer shall immediately seek verbal approval from a Band 1 or 2 Manager to
proceed with or desist from further negotiations.
58
5
Review
The review element is applied throughout the compliance process. It is an essential part of
ensuring consistency, effectiveness and efficient use of limited resources. It informs risk
management, and provides valuable information to aid intelligence gathering and analysis, as well
as identifying industries, practices or products for early proactive compliance action.
5.1
Review principles
The principles of the review element of the risk management cycle are:

regular reviews are essential to the effectiveness of the Compliance and Enforcement Policy
and Standards and are an integral part of an active compliance program
review processes are transparent and accountable
reviews are undertaken at six levels:
o
investigator self-review
o
peer / colleague review
o
office / regional review
o
file audit review (5% of files)
o
internal review at the request of a complainant
o
external review by the Ombudsman at complainant’s request
information gathered from reviews assists in the analysis of OFT’s compliance business by
helping to identify proactive compliance activity, system improvements and future activities.



5.2
Self-review and peer / colleague review
Compliance and Enforcement Policy and Standards procedures are to be followed during the
assessment, inquiry and enforcement stages. Investigators are to ensure key aspects of the
investigation file are documented correctly, accurately and in a timely manner.
Constant self-review, through applied skill and the use of check lists (where appropriate), will assist
with achieving a satisfactory compliance and/or enforcement outcome. Accordingly, the first and
most important aspect of the review process is the conduct of a self-review, peer or colleague
review. There is no limitation to frequency of such reviews. This may occur through regular
reappraisal of work in progress and results obtained, through the in-confidence sharing of
information about cases with experienced colleagues or seeking confirmation or alternative
viewpoints and opinions where appropriate.
5.3
Office / Regional reviews
Throughout the investigation process all matters must be regularly reviewed to ensure they are
being dealt with effectively and efficiently. The following reviews are to be undertaken by the
nominated reviewing officer (usually a manager or senior staff member):




all open investigations are to be reviewed on at least a monthly basis
Category 0 and 1 investigations are to be reviewed fortnightly
matters closed within the review period are to be examined to see that checking processes
have been correctly followed
a record of the review is to be kept on the investigation file.
5.3.1
Review key factors
Whilst an investigation is open the reviewing officer should examine the file for all relevant issues,
including:

allegations and issues within the complaint have been properly identified
59












complainant has been dealt with appropriately
suitable investigation methodology is being applied
activity notes are up to date
critical decisions are being recorded
relevant references are placed on file
relevant avenues of inquiry are being undertaken
required timeframes are being met
whether the matter can be progressed
sufficiency of evidence
whether enforcement action can be considered
any emerging issues that may require reporting to management
file records reasonably reflects the time and effort that the investigating officer has applied to
the matter
any relevant policy decisions or public interest factors are recorded and filed.

5.4
Review initiated by complainant
A complainant who is dissatisfied with the findings or actions arising from the investigation of a
complaint, the manner in which OFT has handled the complaint or the behaviour of an OFT officer
is entitled to seek an independent internal review of the matter. OFT’s approach to such reviews is
in accordance with the Department of Justice and Attorney-General (JAG) Client complaint
management procedures and policy. The client complaint management procedures and policy
provides a complaint management framework identifying different processes for managing
complaints depending on their type.
For the purposes of this section, a request for review includes an expression of dissatisfaction
about staff conduct, a service, procedure, practice, departmental policy or outcome.
Before such a request is formally received, staff should wherever possible, discuss the issue/s or
concern/s in person or by telephone with the complainant. Not only is this the most efficient way to
resolve an issue but it is also the most service-focussed option. Should this prove unsuccessful the
complainant should be advised of their right to lodge a request for review.
Where a request to review a matter or an issue is received by OFT, complainants should be
encouraged to submit their request in writing clearly stating the reasons why the review is sought.
In instances where the submission of a written request is not possible, or the complainant refuses
to do so, a complainant’s request may be received orally and the request is to be recorded by the
receiving officer and forwarded to the receiving officer’s supervisor for actioning.
5.4.1
Requests for review
Following a request to review the receiving officer’s supervisor will record and action the request
without delay. This information is to be recorded in the appropriate section of the the MACS data
base, OFT’s Complaints Management Register and a hard copy file shall be maintained by the
originating office.
Complaints received by Ministerial correspondence or contact are recorded as a complaint.
Business areas are responsible for deciding whether Ministerial correspondence contains a fresh
complaint or a request to review a matter. This determination will govern action to be taken,
however, standard Ministerial response times and processes apply.
5.4.2
Review assessment
Requests for review will be assessed and categorised by the relevant work unit supervisor into one
of three groups within 14 days of receipt. The 3 groups are:

No Further Action (NFA);
60


Front Line Review; and
Internal Complaints Review.
The following protocols are to be observed with regards to managing reviews within each category:
No Further Action (NFA)
Where an assessment of the request does not provide sufficient reason or evidence to support a
review of the matter, the request is to be categorised as ‘No Further Action’ required.
The complainant is to be advised within 7 days of a decision having been made to review the
matter that no further action will be taken. Advice to the complainant may be provided in writing,
verbally or in person and provide options for external review of the decision, such as to the
Ombudsman (see 5.4.5).
Front Line Review
Where an assessment of the request reveals sufficient reason or evidence to support a review of
the matter, the request is to be categorised as requiring ‘Front Line Review’. The review is to be
undertaken by the original investigating officer who will re-examine the matter and any subsequent
findings. Front line review aims to establish whether information upon which the request is based,
can be substantiated and whether there is new evidence that will require further enquiry.
The complainant is to be advised within 7 days of a decision having been made to review the
matter that further investigative action will be taken. Advice to the complainant may be provided in
writing, verbally or in person.
It is important for MACS records to be updated and detailed file notes be kept outlining the reasons
for the decision to conduct further enquires. Subsequent findings must be provided in writing to the
complaint following the review and MACS and other records must be updated accordingly.
Internal Complaint Review
Internal Complaint Review is designed to more closely scrutinise investigative methodology,
process and decisions or findings.
Matters requiring an ‘Internal Complaint Review’ can be determined if an assessment identifies:



actual or potential risks to consumers; or
an external interest (i.e. media interest) likely to elevate the profile of the matter; or
new allegations or evidence, which may influence the original findings.
This review shall be completed by an appropriately skilled, experienced and independent officer
senior to the officer whose decision or action is to be reviewed.
The complainant is to be advised within 7 days of a decision having been made to review the
matter that further independent investigative action will be taken. Advice to the complainant may be
provided in writing, verbally or in person.
Abusive, trivial, or vexatious complainants
Business areas may refuse to investigate a complaint if it is considered to be abusive, trivial, or
vexatious.
This decision is to be made by a Band 2 Manager (See Part 4, Table 9). If the managing officer
considers a complaint is vexatious, the complainant must be advised in writing that the department
shall immediately limit or cease further contact and/or correspondence.
61
A complaint may be considered vexatious when it is reasonably considered the purpose of the
request for further review or investigative action is to harass, annoy, delay or cause detriment to a
party.
5.4.3
Conduct of review
To make sure complaints are consistently and appropriately resolved in a timely manner, they are
classified by complexity and issue (See Table 10 below). Complaints will be resolved within the
timeframes that apply to the following levels of complexity. Reviews should, wherever possible, be
finalised promptly having regard to the needs of the business area impacted but within the stated
timeframes.
Extensions of time beyond this period are to be negotiated with and approved by the reviewing
officer’s supervisor and the nominated complaints managing officer. The complainant is to be
advised immediately of the extended timeframe and of the reasons for doing so. The advice may
be provided in writing, verbally or in person.
Classification
Description
Timeframe
Simple
A complaint that is resolved at the point of Resolved immediately
service.
point of service.
Standard
A complaint that usually has only one single Resolved within 30 working
issue or concern.
days of receipt.
Complex
A complaint that has multiple issues and/or is
Resolved within 70 working
serious in nature and usually requires an
days of receipt.
extensive investigation.
Privacy
A complaint by an individual about an act or
Resolved within 45 working
practice of DJAG in relation to the individual’s
days of receipt.
personal information.
at
Table 10 – Complexity timeframes
*Note: Consideration should be given as to whether it is appropriate for traders to be consulted about the
review process, and informed in writing of the final outcome.
The review process shall be conducted in accordance with the JAG’s Client complaint
management procedures and policy.
5.4.4
Administrative transparency
Where the investigating officer is the most senior staff member in the office responsible for
performing the review, the review MUST be outsourced and undertaken by an appropriately
skilled/experienced staff member from another office.
Where reviews are undertaken by staff attached to another office, the relevant Director/s of the
originating office and the reviewing office must be informed of the conduct of the review and later,
the outcome of such review.
5.4.5
External review
Complainants who remain dissatisfied with OFT’s findings following a review, or with OFT’s
decision not to review a matter, are to be advised [preferably in writing] of their option to seek a
review by the Office of the Queensland Ombudsman or the Crime and Misconduct Commission.
62
From time to time the Ombudsman will receive complaints about how OFT has handled a matter
and may after an initial assessment decide to investigate OFT’s actions.
The Ombudsman’s office often seek clarification of issues from OFT staff in order to progress
enquiries into matters they are investigating on behalf of their clients. When requested, OFT staff
are required to cooperate fully with enquiries and/or requests made by Ombudsman staff.
5.4.6
Privacy
The Information Privacy Act 2009 sets out the rules for proper handling of personal information,
including how it is collected, stored, secured, accessed, amended, used and disclosed. All privacy
related complaints are to be referred to the Director, Right to Information and Privacy Unit.
63
6
Appendix A – Compliance model
Compliance and enforcement policy and standards Office of Fair Trading
64
7
Appendix B – Complexity factor rating descriptions
Complexity
Factor
Low
Regulatory breaches,
black and white
matters. Examples of
matters given this
rating in the past
include unlicensed
motor dealers,
unregistered business
names, failure to keep
required records.
Medium
Standard legislative
breaches, requiring
significant investigation.
Examples of matters
given this rating in the
past include claims,
misrepresentation, trust
account issues.
Consumers
affected
<=10
Are not from a
disadvantaged group;
Do not represent any
significant case
management
challenges.
10 – 100
and/or
May not be from a
disadvantaged group
but may prove
somewhat challenging
to manage e.g., legally
represented quorum of
body corporate
members
Number of
traders
knowingly
engaged in
misconduct
Extent of
misconduct
1 or 2 possible
defendants
3 or 4 possible
defendants
3 or less transactions
Trader has knowingly
been engaged in
deliberate
misconduct on
regular basis over
period of up to a couple
of years
Compliance and enforcement policy and standards Office of Fair Trading
High
Serious systemic high
level issues requiring
new methods or
processes to
investigate and/or
address. Examples of
matters given this
rating in the past
include loan sharks,
certain odometer
tampering files,
marketeers.
100 +
and/or
May be from one or
more disadvantaged
groups and the
management of their
involvement will
present significant
challenges e.g., ATSI
and/or non-English
speaking and/or low
literacy levels
Several to many
possible defendants,
with one or more
trading entities involved
Systemic, well
established
behaviour/scheme,
operating over several
years
65
Depth of
research/
investigation
required to
understand
modus operandi
Simple,
straightforward
behaviour on part of
trader; nature of
misconduct is easily
understood or very
familiar to OFT
Uncommon type of
conduct, but OFT has
previous experience
in dealing with this type
of misconduct;
OR
Reasonably common
type of misconduct, but
contains some unique
or novel aspects that
may present some
challenges and will
require a different
thinking or approach.
Area of law
Simple,
straightforward type
of breach; OFT has
significant experience
in taking enforcement
action in relation to this
type of breach
Level of media /
political interest
Highly unlikely to
provoke much media
or political interest.
Uncommon type of
breach, but OFT has
previous experience
in dealing with this area
of law;
OR
Reasonably common
type of breach, but
case has some
unique or novel
aspects that may
present some
challenges and will
require a different
thinking or approach to
gathering evidence.
May require legal
opinion. May have
potential implications
for minor legislative
amendments.
Trader/s and/or type of
conduct under
investigation have been
or maybe the subject of
some media attention
and low level political
interest
New emerging
misconduct; modus
operandi not well
understood within OFT;
nature of way in which
scam is operating will
require significant
research/investigation;
determining whether
conduct in question
constitutes an offence
is not readily known
and will require
significant investment
of time and or money
Breach relates to new
and/or possibly
contentious
legislative provisions
that are yet to be tested
or have been tested
infrequently. May
require external
counsel’s opinion. May
have potential
significant implications
for legislative
amendment.
Issue under
investigation has or is
likely to attract
significant political
&/or media attention
66
Trader/s Attitude
& Compliance
History
Trader/s expected to be
reasonably
cooperative; &/or
Trader/s has no known
history of regulatory
non-compliance.
Dealing with Trader/s
does not represent any
significant case
management
challenges.
Trader/s may prove
somewhat
challenging to
manage e.g., highly
aggressive/threatening
approach to OFT
investigators
Trader may be a serial
offender and can be
expected to throw
some obstacles in the
path of OFT
investigators.
Traders may have
some history of Cat 2
type non-compliance
with OFT or other
regulator.
Project/case
management
complexity
Investigation expected
to be carried out
without need for
significant help from
or coordination with
others
Investigation may
involve coordinating,
guiding, monitoring
involvement of other
OFT investigators
Trader/s expected to be
uncooperative; and/or
Trader/s known to
have history of serious
(Cat 0 or 1 type)
regulatory noncompliance with OFT or
other regulator.
Dealing with Trader is
likely to represent
significant case
management
challenges. Trader is
well resourced and
likely to engage highly
qualified experts and
counsel and may
endeavour to
stall/delay/thwart
investigation/enforceme
nt actions.
Investigation involves
coordinating efforts
with other fair trading
jurisdictions and/or
other Qld regulatory
agencies
67
8
Appendix C – Glossary
Complaint
An oral or written complaint from a consumer or relevant body alleging improper or non-compliant
practices by a trader.
Conciliation

Non-investigation (non-breach) inquiry where assistance is given by OFT to help settle a
dispute between a consumer and a trader.
Consumer
Person who acquires goods or services from a trader. (For ACL(Q) Consumer, see below)
Consumer (ACL(Q))
A person who buys:



any type of goods or services costing less than $40,000 (or any other amount stated in the
ACL(Q) Regulations)
goods or services which would normally be for personal, domestic or household use, or
goods which consist of a vehicle or trailer used mainly to transport goods on public roads.
Effective investigation

an inquiry that satisfactorily proves or disproves an allegation or achieves an acceptable
outcome

in the case of a proven allegation, an inquiry that:





deals appropriately with the offender (individual or company) in either the criminal, civil,
administrative or disciplinary jurisdictions
may improve legislation or regulation
deters others from attempting to commit similar breaches
improves public confidence in the integrity and transparency of OFT
contributes to maintaining a fair and equitable marketplace.
Efficient investigation
An inquiry completed in accordance with legislative requirements within a suitable time and at a
reasonable cost, having taken into account the nature and complexity of the investigation,
availability of resources (both material and human) and the aim of the investigation.
Fair Trading Management Team (FTMT)
The FTMT is responsible for the management oversight of high risk matters across Fair Trading
Operations and comprises the Executive Director - Fair Trading Operations, Director- State-wide
Operations, Director- Compliance and/or Director - Tactical Compliance.
Investigation
An inquiry by OFT into whether there has been a breach of any legislation it administers, with one
of the primary purposes of the inquiry being the gathering of evidence admissible in prosecutions
or other OFT enforcement action.
Other action
Action that is not investigation-based, including conciliation, “refaway”, trader education and
trader/industry-based dispute resolution.
68
Refaway
Referral of a complaint (with the complainant’s permission) to another agency.
Suspected breach
A complaint or other source of information that contains adequate, reliable and credible evidence
for OFT to reasonably suspect a breach of administered legislation has taken place.
Version
Various
versions
since 2009
1.09
following
Manager
input
2
2.01
Action
DATE
Author
Approved by
Updates have been
occurring with MoG
and Legislation
changes
2009 to
2014
Various
Manager/s,
Compliance
Planning
Date
Update/amend
29/10/14
R Calio
Update
Jan 2015
Brad Walker
Minor amendment
21/04/15
Brad Walker
Brad Walker
21/04/15
28/05/15
Cam Hargrave
Nanette Garrett
(A/mgr)
28/05/2015
(include advice in
writing of withdrawal
of official warning)
2.02
Clarification in
s4.7
69