NSW Fair Trading 

Act: Fair Trading Act 1987 (NSW).¹

Established: The Act does not create the office. It defines the Commissioner as the person employed as Commissioner for Fair Trading in the Department of Customer Service — and adds a fallback that none of the other jurisdictions in this set has: if there is no person so employed, the Secretary of the Department is the Commissioner.

Purpose: NSW Fair Trading is the administrative name under which the Department delivers consumer protection, applying the Australian Consumer Law as it operates in New South Wales.

Where the authority sits

New South Wales does two things differently.

First, the fallback. Defining an office by employment is not unusual — Victoria does the same — but expressly providing for who is the Commissioner when nobody holds the role is. The office cannot be vacant, which means there is always an identifiable respondent.

Second, and more useful in a problem question, the Act distributes its powers across three office-holders rather than concentrating them in one:

• the Commissioner is the office the Act defines and refers to for the regulator's functions;
• the Secretary appoints investigators under s 18;
• the Minister or the Secretary — not the Commissioner — may issue public warning statements.

So "can the regulator do this?" is the wrong question in New South Wales. The right one is which office-holder the provision names, and a student who assumes the Commissioner holds everything will attribute powers to the wrong person.

Powers conferred under the Act

Enforcement runs through investigators, defined as employees appointed by the Secretary under s 18. The public warning power allows the Minister or the Secretary to identify and warn about goods that are unsatisfactory or dangerous, services supplied in an unsatisfactory manner, and unfair business practices — including the use of terms that are or may be unfair in standard form consumer contracts — together with the persons responsible.

Matters under the Act are heard by the Civil and Administrative Tribunal (NCAT), which the Act defines simply as "the Tribunal".

How the Australian Consumer Law applies here

Section 28 applies the Australian Consumer Law text, as in force from time to time, as a law of this jurisdiction, where it may be referred to as the Australian Consumer Law (NSW) and forms part of the Act. That is the approach Queensland, Victoria and the Northern Territory take, and it differs from Western Australia's fixed-date mechanism.

Is it a prosecuting authority?

The Act frames enforcement around investigators appointed by the Secretary and the remedies and proceedings its own Parts provide, rather than listing prosecution as a function of the Commissioner in the way Victoria's s 109(f) does. Identifying who may bring a particular proceeding means reading the provision that creates the offence or confers the remedy, and noting which office-holder it names.

Self-check

• Have I checked which office-holder the provision names — Commissioner, Secretary or Minister — rather than assuming the Commissioner?
• Have I noted that the Commissioner role cannot be vacant, because the Secretary fills it by default?
• Have I confirmed that NSW applies the Australian Consumer Law as in force from time to time, unlike Western Australia?