Commissioner for Fair Trading (ACT) 

Act: Fair Trading (Australian Consumer Law) Act 1992 (ACT).¹

Established: Section 32 provides that the director-general must appoint a public servant as the Commissioner for Fair Trading. The appointment may name a person or nominate the occupant of a position.

Purpose: The commissioner receives and deals with consumer complaints, investigates compliance with fair trading legislation, and is designated by the Act as the regulator for the Australian Consumer Law (ACT).

Where the authority sits

The ACT completes a set worth seeing whole. Across seven jurisdictions the consumer regulator is constituted seven different ways: South Australia's Act creates a statutory office; Queensland's creates a commissioner and fills it from the chief executive by default; Victoria's creates nothing and confers functions on whoever is employed as Director; Western Australia's requires a ministerial designation by Gazette notice; the Northern Territory's has the Minister appoint; Tasmania splits the job across two Acts; and the ACT has the director-general appoint a public servant.

The lesson is not the taxonomy. It is that "who is the regulator, and under what provision?" has to be answered from the Act in front of you, because no two of these jurisdictions answer it the same way — and the agency name on the website is not the answer in any of them.

Powers conferred under the Act

Section 33 sets out what the commissioner may do: receive complaints about fraudulent conduct or unfair practices in the supply of goods or services or the acquisition of interests in land; deal with those complaints as the commissioner considers appropriate, including by investigating them or referring them to the entity best able to act; investigate compliance with fair trading legislation; conduct other investigations and research; inspect records and accounts required to be kept under fair trading legislation; and provide information and guidance to the public.

Compulsory conciliation

Division 5.1A is the ACT's distinctive feature. Under s 34G the commissioner may, by written notice, require a business that is the subject of a consumer complaint to attend a conciliation, and s 34GA makes it an offence for a business not to attend.

Most of the jurisdictions in this set give their regulator investigation, publicity and complaint-handling powers. A compellable conciliation, backed by an offence, is a different kind of tool — it puts the regulator between the parties rather than over them, and it operates before any question of proceedings arises.

Is it a prosecuting authority?

The Act designates the commissioner as the regulator for the Australian Consumer Law (ACT), and provides that for that Law "court" includes the ACAT. So the commissioner's enforcement role is defined by reference to the Australian Consumer Law's own regulator provisions and the tribunal that hears them, rather than by a functions paragraph naming prosecution in the way Victoria's s 109(f) does.

Self-check

• Have I identified the commissioner as a public servant appointed under s 32, rather than as an agency?
• Have I checked whether a compulsory conciliation notice is available before treating proceedings as the only route?
• Have I noted that for the Australian Consumer Law (ACT), "court" includes the ACAT?