About the Office of Fair Trading's enforcement processes

The Office of Fair Trading's (OFT) goal is to protect the rights of consumers and businesses and achieve a fair and safe marketplace. We recognise most businesses want to comply with the law.

When we receive a complaint or suspect a breach of the law, we follow our policies and procedures to investigate, analyse and address the situation.

We follow an escalation model. This means our response to ensuring compliance increases as a trader's attitude to complying with the law decreases.

Our activities and powers to promote compliance and enforce the law include:

• educating businesses and consumers about the law
• working with industry groups to promote good practices
• licensing or registering participants of some industries and not-for-profits
• taking court action for serious or repeated breaches of the laws we administer.

Enforcement options and remedies we can impose include:

• official warnings
• infringement notices (or fines)
• civil penalty notices
• enforceable undertakings
• administrative actions, including issuing show cause notices, changing licence or registration conditions or suspending or cancelling a licence or registration
• public warnings naming businesses and traders consumers should avoid
• prosecutions through a court or tribunal, which can result in court orders or injunctions.

When deciding which enforcement action to take we'll always:

• consider the type of breach, circumstances and public interest
• consider every option, including court or tribunal action
• make sure our evidence can be admitted in court, and is substantial (or important) and reliable
• make sure the severity of our enforcement action matches the severity of the breach
• not proceed without a reasonable chance of success
• be accountable and transparent in our actions and decisions.

Download our Compliance and Enforcement Policy for more information.

Penalties we can impose

We can take the following enforcement actions without a court order.

We'll limit our actions to official warnings if a business:

• has committed a minor or technical breach
• hasn't intended to breach a law or act dishonestly
• is prepared to cooperate with our investigation
• agrees to take rapid action to minimise the risk of a repeated breach.

We can issue an infringement notice or a civil penalty fine for breaches that:

• are relatively minor
• are isolated incidents for that business
• are first offences
• can be dealt with without the need for costly court or tribunal action
• are relatively common in the marketplace.

An enforceable undertaking is an agreement we make with a business that they'll change or stop doing certain activities that may breach a law.

Generally, we'll use an enforceable undertaking instead of court action if this is the first time we've had to enforce compliance for this conduct and the business is unlikely to reoffend.

Enforceable undertakings can require the business to:

• repair the situation with affected consumers
• provide staff with training about consumer protection laws
• establish new procedures
• contribute to the cost of identifying and remedying the breach.

If the business doesn't honour the enforceable undertaking, we can seek orders from the court for the business to stop or start certain activities, pay compensation, a fine or a security bond.

If it's in the public's interest we may release a media statement about an enforceable undertaking.

A public warning naming a business is a serious action because it can affect the business's reputation and ability to operate.

We take this action only in limited situations, including when we have:

• clear evidence the business is engaging in deliberate and widespread misconduct
• compelling information that a consumer product or service risks widespread harm
• a strong reason to warn the public about the business or their conduct.

Court and tribunal action

We can prosecute a business in court or start disciplinary proceedings in the Queensland Civil and Administrative Tribunal (QCAT) against a business in the industries we regulate.

The court or tribunal will decide whether to issue an order or fine based on the strength of our complaint or application of the evidence.

We can prosecute or start tribunal action if:

• the alleged breach is serious
• the business repeatedly reoffends or breaks an enforceable undertaking
• it's in the public interest
• the business decides to take court action.

Depending on the industry, QCAT can make orders, including disqualifying the person from holding a licence for as long as the tribunal considers appropriate.

Breaches of our laws generally lead to court prosecution rather than tribunal action.

A court can make the following types of orders.

A court injunction requires a business to stop engaging in certain conduct.

We'll apply for an injunction if the conduct is:

• serious and ongoing or has the potential to recommence
• likely to cause widespread or significant damage if it continues
• still ongoing despite previous enforcement action.

These types of orders require the business to carry out actions to remedy their conduct against customers or anyone who has been negatively impacted, including:

• return money or property
• pay restitution
• perform a service
• repair or replace a product.

The court can also void, vary or refuse to enforce the terms of a contract.

An adverse publicity order requires a business to:

• disclose the nature of their breaches to their customers
• publish an advertisement (at their own expense) to warn the public.

The court will set out the content and audience of the disclosure.

A court can order an individual or business to pay a civil or criminal fine as a punishment or to prevent reoffending.

If the business doesn't pay a civil fine, their assets may be taken and sold (they may have to start bankruptcy proceedings).

Unpaid criminal fines can lead to imprisonment.

A court can disqualify a person from managing a corporation for as long as they consider appropriate.

The Australian Securities and Investments Commission (ASIC) keeps a register of disqualified people.

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