Estate Agents and Sale of Land Acts (Amendment) Act 2003 (Vic)
Estate Agents and Sale of Land Acts (Amendment)
Act 2003
Act No. 41/2003
TABLE OF PROVISIONS
Section Page PART 1—PRELIMINARY MATTERS 1
1. Purpose 1 2. Commencement 2
PART 2—AMENDMENTS TO THE SALE OF LAND ACT 1962 3
3. New Division 4 inserted into Part II 3 Division 4—Public Auctions 3
37. This Division applies to publicly advertised auctions 3 38. Dummy bidding prohibited 3 39. Offences by auctioneers 4 40. Offence to procure dummy bid 4 41. Permissible vendor bids 4 42. Offence to falsely acknowledge bid 5 43. Conditions of auctions to be made available before auction starts 5 44. Right to compensation if Division breached 6 45. Contrary conditions are void 6 46. Last vendor bids must be identified if property passed in 7 47. Disruption of auction prohibited 8 48. Regulations 9
4. Price not to be relevant for cooling-off period 11 5. Housekeeping and renumbering amendments 11
PART 3—AMENDMENTS TO THE ESTATE AGENTS ACT 1980 12 Division 1—Prohibition on Underquoting and Overquoting 12
6. Insertion of sections 47A–47D 12
47A. Seller must be given estimated selling price 12 47B. False representation to seller or prospective seller 13 47C. False representation to prospective buyer 13 47D. Director may require information concerning estimates 14
i
Section Page Division 2—Rebates 14
7. Additional definition 14 8. Insertion of sections 48A–48E 14
48A. Agent must not retain any rebate 14 48B. Rebates must be factored into costs of expenses 15 48C. Treatment of non-monetary rebates 16 48D. Repeated breaches within 12 months 17 48E. Right of recovery of rebates 17
9. Consequential and minor amendments 17
Division 3—Infringement Notices 19
10. Insertion of sections 95A–95E 19
95A. Power to serve a notice 19 95B. Form of notice 20 95C. Late payment of penalty 21 95D. Withdrawal of notice 21 95E. Further proceedings concerning infringement notices 22
11. Insertion of supporting regulation-making powers 23
Division 4—Other Matters 23
12. Definitions 23 13. Variation of description of group to which Act does not apply 25 14. Updating of name of accounting body 25 15. Deletion of function of the Council 25 16. Insertion of sections 10A–10D 26
10A. Director may approve registered education and training
organisations 26 10B.
Courses of education for approved auditors 26 10C.
Notice may be disallowed 27 10D.
Further publication of notices 28
17. Insertion of sections 12A–12C 28
12A. Injunction to stop unlicensed trading 28 12B. Court may make a temporary order without notice 28 12C. Undertakings as to damages and costs 29
18. Permitted activities of agent's representatives 30 19. Eligibility requirements for agent's licence 30 20. Licensing of corporations 30 21. Licensing of corporations—delayed changes 31 22. Eligibility requirements for agent's representatives 31 23. Repeal of transitional provision concerning agent's representatives 34 24. Housekeeping amendment 34 25. Automatic cancellation of corporate licence 34 26. Insertion of section 22A 35
22A. Delay of effect of certain convictions 35
ii
Section Page 27. Inquiries into estate agents and agents' representatives—
additional grounds 36 28.
Section 29B substituted and 29C inserted 37
29B. Duties of agents and officers in effective control 37 29C. Offence to procure contravention of section 29B 38 29.
Consequential repeal 38 30.
Insertion of section 31CA 39
31CA. Corporation may be allowed to hold licence despite
disqualifying factors 39
31. Conditions may be imposed on permission 41 32. Advertising by agents 41 33. Insertion of sections 45–45B 42
45. Continuing professional development 42 45A. Requirement may be disallowed 43 45B. Further publication of requirement 44
34. Employment of agents' representatives 44 35. Substitution of section 48 44
48. Notice of commission sharing must be given 44
36. Restriction on agent purchasing property 46 37. Handling of trust money 47 38. New section 59A inserted 47
59A. Unidentified trust money 47
39. Keeping of trust accounts 48 40. New section 63A inserted 49
63A. Director's supervisory role in audits 49
41. Annual audit of trust accounts 50 42. Audits ordered by the Director 50 43. Audit where business ceased during the year 51 44. Qualifications of auditors 52 45. Agents having no accounts to audit 53 46. Standardisation of inspection provisions 53 47. New sections 70A–70E inserted 54
70A. Order requiring supply of information and answers to
questions 54 70B.
Protection against self-incrimination 56 70C.
Copies of seized documents 56 70D.
Retention and return of seized documents 57 70E.
Magistrates' Court may extend 3 month period 57
48. Dishonesty offences 58 49. Regulation-making powers 59
═══════════════
ENDNOTES 60
iii
Victoria
No. 41 of 2003
Estate Agents and Sale of Land Acts
(Amendment) Act 2003†
[Assented to 11 June 2003]
The Parliament of Victoria enacts as follows:
PART 1—PRELIMINARY MATTERS
1. Purpose
The purpose of this Act is—
(a)
to amend the Sale of Land Act 1962 to regulate certain aspects of public auctions of land, in particular bidding by, or on behalf of, vendors; and
Estate Agents and Sale of Land Acts (Amendment) Act 2003
Act No. 41/2003
Part 1—Preliminary Matters s. 2 (b) to amend the Estate Agents Act 1980—
(i) to prohibit estate agents from stating misleading estimates of real estate sale prices; and
(ii) to ensure that estate agents do not retain any rebates or discounts attributable to work they do for clients; and
(iii) to enable the issuing of infringement notices under that Act; and
(iv) requirements that estate agents and
agent's representatives undertaketo enable the imposition of activities; and
(v) to generally improve the operation of that Act.
2. Commencement
(1) This Part, Division 3 of Part 3 and sections 46 to
49 come into operation on the day after the day on
which this Act receives the Royal Assent.
(2) Section 21 comes into operation on 1 July 2005.
(3) Subject to sub-section (4), the remaining
provisions of this Act come into operation on a
day or days to be proclaimed.
(4) If a provision of this Act referred to in sub-
section (3) does not come into operation before
1 June 2004, it comes into operation on that day.
__________________
Estate Agents and Sale of Land Acts (Amendment) Act 2003
Act No. 41/2003
| s. 3 | Part 2—Amendments to the Sale of Land Act 1962 |
PART 2—AMENDMENTS TO THE SALE OF LAND ACT 1962
3. New Division 4 inserted into Part II
See:
| Act No. | After section 36 of the Sale of Land Act 1962 |
| 6975/1962. | insert— |
| Reprint No. 11 | |
| as at | |
| 6 January | 'Division 4—Public Auctions |
| 2000 and amending | 37. This Division applies to publicly advertised |
| Act Nos | |
| 92/1990, | auctions |
| 74/2000, | |
| 11/2001, | |
| 26/2001, | For the purposes of this Division an auction |
| 27/2001, | is a public auction if it has been publicly |
| 11/2002 and | |
| 44/2002. | advertised. |
| LawToday: | 38. Dummy bidding prohibited |
(1) A vendor of land must not make a bid at a public auction of the land. | |
| gov.au |
Penalty: In the case of a body corporate:
600 penalty units.
In any other case: 240 penalty
units.(2) A person must not make a bid at a public
auction of land knowing that the bid is being
made on behalf of a vendor of the land.
Penalty: In the case of a body corporate:
600 penalty units.
In any other case: 240 penalty
units.(3) For the purposes of sub-section (2), a bid
may be found to have been made on behalf
of a vendor even though it is not made at the
request of, or with the knowledge of, the
vendor.
Estate Agents and Sale of Land Acts (Amendment) Act 2003
Act No. 41/2003
Part 2—Amendments to the Sale of Land Act 1962 s. 3 (4) Evidence that a person who made a bid at a
public auction had the intention of benefiting the vendor in making the bid is evidence that the person made the bid on behalf of the
vendor.(5) It is immaterial that a person making a bid in
contravention of this section is not in
Victoria at the time the bid is made.
39. Offences by auctioneers
(1) The auctioneer of land at a public auction
must not accept a bid at the auction if he or she knows that the bid was made by, or on behalf of, a vendor of the land.
Penalty: 240 penalty units.
(2) The auctioneer of land at a public auction
must not acknowledge the making of a bid at
the auction if no bid was made.
Penalty: 240 penalty units.
40. Offence to procure dummy bid make a bid at a public auction of land that is contrary to section 38.
Penalty: In the case of a body corporate:
600 penalty units.
In any other case: 240 penalty
units.41. Permissible vendor bids
(1) Despite section 38(2), the auctioneer of land at a public auction may make a bid on behalf of a vendor of the land if—
(a)
the conditions under which the auction is conducted permit the making of the bid; and
Estate Agents and Sale of Land Acts (Amendment) Act 2003
Act No. 41/2003
| s. 3 | Part 2—Amendments to the Sale of Land Act 1962 |
(b) before any bidding started, the auctioneer orally declared at the auction that the conditions permit the making of the bid; and (c) immediately before, or in the process audibly states that the bid is being made on behalf of the vendor.
(2) It is sufficient compliance with the
requirement under sub-section (1)(c) to
identify a bid as a vendor bid if the
auctioneer states "vendor bid" in making the
bid.(3) It is not sufficient compliance with the requirement under sub-section (1)(c) to identify a bid as a vendor bid if the
auctioneer merely identifies the vendor by
name without stating that the vendor is avendor.
42. Offence to falsely acknowledge bid falsely claim to have made a bid, or falsely acknowledge that he or she made a bid. Penalty: 240 penalty units.
43. Conditions of auctions to be made available before auction starts
Before a public auction of land starts, the
auctioneer of the land must cause a copy of
the conditions under which the auction is to
be conducted to be available for inspection at
the location where the auction is to take
place by any person attending the auction.
Penalty: 60 penalty units.
Estate Agents and Sale of Land Acts (Amendment) Act 2003
Act No. 41/2003
Part 2—Amendments to the Sale of Land Act 1962 s. 3 44. Right to compensation if Division breached
(1) A purchaser of land at a public auction is entitled to compensation from any person who fails to comply with this Division (other
than section 47) for any loss or damage
suffered by the purchaser as a result of thatfailure to comply.
(2) An application for compensation under this
section—
(a) must be lodged with the Victorian Civil and Administrative Tribunal; and (b) must be lodged before the second anniversary of the date of the auction. (3) If compensation is sought under this section from a vendor of the land and the Tribunal is satisfied that the application for
compensation is frivolous, vexatious or
without substance, it may order the applicant
to pay compensation to the vendor for any
loss or damage the vendor has suffered as a
result of the application.(4) The power conferred by sub-section (3) is in
addition to any power the Tribunal has to
order the payment of costs in relation to the
application.
45. Contrary conditions are void land at public auction that are contrary to, or that purport to restrict or modify, any requirement imposed by or under this Division are void.
Estate Agents and Sale of Land Acts (Amendment) Act 2003
Act No. 41/2003
| s. 3 | Part 2—Amendments to the Sale of Land Act 1962 |
46. Last vendor bids must be identified if property passed in
(1) This section applies if a public auction of
land is held at which the land is not sold, and the last bid made before the auction stopped was a bid made by the auctioneer of the land on behalf of a vendor of the land.
(2) In making any statement while marketing the
land, a person must not state the amount of the last bid without also stating that the bid was a bid made on behalf of a vendor of the land.
Penalty: In the case of a body corporate:
600 penalty units.
In any other case: 240 penalty
units.(3) For the purposes of sub-section (2), a statement is made while marketing land if—
(a) it is made in an advertisement in respect of the land that is published, or caused to be published, by the person; or (b) it is made (whether orally or in writing) to a person as a prospective purchaser of the land. (4) A person who advises another person of the amount of the last bid to enable that amount to be published must not knowingly fail to
disclose to the other person that the bid was a
bid made on behalf of a vendor of the land.
Penalty: In the case of a body corporate:
200 penalty units. units.
Estate Agents and Sale of Land Acts (Amendment) Act 2003
Act No. 41/2003
Part 2—Amendments to the Sale of Land Act 1962 s. 3 (5) A person who is a publisher of land auction
sales results must not publish the fact that the land was passed in for the amount of the last bid without also stating that the bid was a bid made on behalf of a vendor of the land.
Penalty: In the case of a body corporate:
200 penalty units.
In any other case: 80 penalty
units.(6) It is a defence to a charge against sub-
section (2) or (5) if the person making the
statement, or publishing the amount—
(a) was not present at the auction; and
(b)
relied on a statement made by a person who purported to know what happened at the auction.
(7) It is sufficient compliance with sub-
section (2) or (5) if the amount is described
as a "vendor bid".
47. Disruption of auction prohibited
(1) This section applies to—
(a) a person intending to make a bid on his or her own behalf, or on behalf of another person, at a public auction of land; (b) a person acting on behalf of a person intending to make a bid at a public auction of land. (2) The person must not knowingly prevent or
hinder any other person whom he or she
knows or believes is an actual or potential
rival bidder from attending, participating in,
or bidding at, the auction.
Penalty: 60 penalty units.
Estate Agents and Sale of Land Acts (Amendment) Act 2003
Act No. 41/2003
| s. 3 | Part 2—Amendments to the Sale of Land Act 1962 |
(3) The person must not harass any other person
whom he or she knows or believes is an actual or potential rival bidder with the intention of interfering with that other
person's attendance at, participation in, or
bidding at, the auction.
Penalty: 60 penalty units.(4) The person must not induce, or attempt to
induce, another person whom he or she
knows or believes is an actual or potential
rival bidder to not attend the auction, or to
not make a bid at the auction.
Penalty: 60 penalty units.
(5) The person must not do any thing with the
intention of preventing, causing a major
disruption to, or causing the cancellation of,
the auction.
Penalty: 60 penalty units.
(6) Sub-section (5) is not intended to preclude a
person at the auction from asking, in good
faith, a reasonable number of questions about
the land, the contract of sale and the conduct
of the auction.
48. Regulations
(1) The Governor in Council may make
regulations for or with respect to—
(a)
regulating the conduct of public auctions of land;
(b)
prescribing standard rules for the conduct of public auctions of land;
(c)
regulating signs and documents relating to public auctions of land;
Estate Agents and Sale of Land Acts (Amendment) Act 2003
Act No. 41/2003
Part 2—Amendments to the Sale of Land Act 1962 s. 3
(d) requiring the provision of specified land that is to be sold at public auction;
(e)
prescribing any other matter or thing authorised or required to be prescribed or necessary or convenient to be prescribed for the purposes of this Division.
(2) The regulations—
(a)
may be of general, or of specially limited, application;
(b)
may differ according to differences in time, place or circumstance;
(c)
may require a matter affected by the regulations to be—
(i) in accordance with a specified or
(ii) approved by, or to the satisfaction of, a specified person or a specified class of person; or
(iii) as specified in both sub-
paragraphs (i) and (ii);
(d) matter contained in any existing
may apply, adopt or incorporate any as amended by the regulations;
(e)
may confer a discretionary authority or impose a duty on a specified person or a specified class of person;
Estate Agents and Sale of Land Acts (Amendment) Act 2003
Act No. 41/2003
| s. 4 | Part 2—Amendments to the Sale of Land Act 1962 |
(f)
may provide, in a specified case or class of case, for the exemption of people or things from any of the
provisions of the regulations, whether
unconditionally or on specified
conditions, and either wholly or to the
extent specified;(g)
may impose a penalty not exceeding 20 penalty units for a contravention of the regulations.'.
4. Price not to be relevant for cooling-off period
In the Sale of Land Act 1962—
(a)
in section 30(1), the definition of "prescribed amount" is repealed;
(b)
in section 31(1), omit ", at a price not exceeding the prescribed amount".
5. Housekeeping and renumbering amendments
(1) In section 32(1A)(c) of the Sale of Land Act 1962, omit "and 6 months".
(2) In Part 3, in section 37 of the Sale of Land Act 1962, for "37" substitute "49".
__________________
Estate Agents and Sale of Land Acts (Amendment) Act 2003
Act No. 41/2003
Part 3—Amendments to the Estate Agents Act 1980 s. 6
PART 3—AMENDMENTS TO THE ESTATE AGENTS ACT
1980
Division 1—Prohibition on Underquoting and Overquoting
6. Insertion of sections 47A–47D
See:
After section 47 of the Estate Agents Act 1980 Act No. insert— 9428/1980.
Reprint No. 7"47A. Seller must be given estimated selling price as at
13 January
(1) Before obtaining a person's signature to an engagement or appointment to sell any real
2000 and amending
Act Nos estate on behalf of the person, an estate agent 35/2000, 74/2000, (or an agent's representative employed by the 11/2001, agent) must ensure that the engagement or 44/2001, 72/2001, appointment states the agent's (or 84/2001 and representative's) estimate of the selling price 9/2002. LawToday: of the real estate, and that the estimate complies with this section. dpc.vic. gov.au Penalty: 100 penalty units.
(2) The estimate—
(a)
may be a single amount or a price range; and
(b)
must be the amount the agent or representative believes, on the basis of his or her experience, skills and knowledge, that a willing but not anxious buyer would pay for the real estate, or in the case of a price range, the range within which that amount is likely to fall; and
(c)
must be set out in a manner approved by the Director.
Estate Agents and Sale of Land Acts (Amendment) Act 2003
Act No. 41/2003
| s. 6 | Part 3—Amendments to the Estate Agents Act 1980 |
(3) If an estimate is expressed as a price range, the difference between the upper and lower limits of the range must not exceed 10% of the amount of the lower limit of the range.
(4) Nothing in this section requires the estimated
selling price and the seller's reserve price to
be the same amount.
47B. False representation to seller or prospective
seller
An estate agent or agent's representative must not make a false representation to a seller or prospective seller of real estate as to
the agent's or representative's estimate of the
selling price of the real estate.Penalty: 200 penalty units.
47C. False representation to prospective buyer
(1) This section applies to an estate agent who holds a written engagement or appointment to sell real estate, and to any agent's
representative employed by the agent.
(2) In making any statement while marketing the real estate, the agent or representative must not state as his or her estimate of the selling price of the real estate a price that is less than
the estimated selling price, or in the case of a
price range, less than the lower limit of that
range, stated in the engagement or
appointment.
Penalty: 200 penalty units.(3) For the purposes of this section, a statement is made while marketing real estate if—
(a) respect of the property that is
it is made in an advertisement in the agent; or
Estate Agents and Sale of Land Acts (Amendment) Act 2003
Act No. 41/2003
Part 3—Amendments to the Estate Agents Act 1980 s. 7
(b)
it is made (whether orally or in writing) to a person as a prospective purchaser of the real estate.
47D. Director may require information
concerning estimates
(1) The Director may require an estate agent
appointment to sell real estate to provide the
who has accepted an engagement or of the estimated selling price or price range of the real estate set out in the engagement or appointment. (2) The Director must make the requirement in writing and must specify the date by which the agent must comply with the requirement.
(3) The agent must comply with the requirement on or before the compliance date specified in the notice.
Penalty applying to this sub-section:
60 penalty units.".
Division 2—Rebates
7. Additional definition
In section 4(1) of the Estate Agents Act 1980,
insert the following definition—' "rebate" includes any discount, commission or
other benefit;'.
8. Insertion of sections 48A–48E
After section 48 of the Estate Agents Act 1980 insert—
"48A. Agent must not retain any rebate
(1) An estate agent who is engaged or appointed to do any estate agency work for a person
Estate Agents and Sale of Land Acts (Amendment) Act 2003
Act No. 41/2003
| s. 8 | Part 3—Amendments to the Estate Agents Act 1980 |
(the client) is not entitled to retain any
amount the agent receives from anotherperson as a rebate in respect of—
(a) any outgoings; or
(b) any prepayments made by the client in respect of any intended expenditure by the agent on the client's behalf; or (c) any payments made by the client to another person in respect of the work. (2) On receiving any amount of rebate referred
to in sub-section (1), the agent must
immediately pay the amount to the client.
Penalty: 60 penalty units.
(3) Despite sub-section (2), the agent does not
have to pay to the client an amount of rebate
if the agent, in anticipation of receiving the
rebate, has already given that amount to the
client either directly or by reducing the
amount charged for the outgoing or
prepayment to which the rebate relates.
48B. Rebates must be factored into costs of
expenses
(1) An estate agent must not seek to obtain from
the client an amount for any outgoings or proposed outgoings (the expenses) that is more than the amount paid, or payable, by the agent for those expenses.
Penalty: 60 penalty units.
(2) In determining the amount paid, or payable, by the agent, any amount of rebate received or receivable by the agent in respect of the
expenses must be taken into account by the
agent.
Estate Agents and Sale of Land Acts (Amendment) Act 2003
Act No. 41/2003
Part 3—Amendments to the Estate Agents Act 1980 s. 8 (3) If it is not possible to determine the final
amount paid, or payable, for the expenses at
the time the agent seeks payment for those
expenses, the agent may estimate the
amount.
(4) If an estimate is made and paid, and the
agent becomes aware that the amount paid in
respect of the expenses is less than the
estimate, the agent must immediately pay
any difference between the estimate and the
amount paid by the agent to the client.
Penalty: 60 penalty units.
(5) For the purposes of this section, an amount
of rebate is receivable by an agent only if the
agent has an accrued right to receive the
amount at the time the agent seeks payment
in respect of the expenses in respect of which
the rebate is to be received – the amount is
not receivable if at that time the receipt of
the rebate is contingent on the happening of
an event that has not occurred.
48C. Treatment of non-monetary rebates
(1) For the purposes of sections 48A and 48B, if
a rebate is, or is to be, obtained as a benefit
rather than as a payment of money, a
reference in those sections to the amount of
the rebate is to be read as a reference to the
value of the rebate.
(2) The dollar amount that is to be attributed to
the value of the rebate is a reasonable
estimate of the value of the rebate in dollars
to the agent.
Estate Agents and Sale of Land Acts (Amendment) Act 2003
Act No. 41/2003
| s. 9 | Part 3—Amendments to the Estate Agents Act 1980 |
48D. Repeated breaches within 12 months
(1) A person who on 3 or more separate
occasions occurring on separate days within any period of 12 months engages in conduct that constitutes an offence against section
48A or 48B is guilty of an offence and is
liable to a penalty not exceeding 240 penalty
units.(2) It is immaterial whether or not the conduct is
of the same nature, or constitutes the same
offence, on each occasion.
(3) Proceedings cannot be taken under this
section in respect of conduct occurring on a
particular occasion if that conduct has
resulted in a charge of committing an offence
against section 48A or 48B being found
proven against the person.
48E. Right of recovery of rebates
A person who is entitled to be paid an
amount in respect of a rebate under
section 48A or 48B may recover the amount
as a debt due to the person by the agent if the
agent fails to pay the amount to the person asrequired by that section.".
9. Consequential and minor amendments
(1) For section 49A(1)(c)(iii) of the Estate Agents Act 1980 substitute—
"(iii) a rebate statement that complies with sub-
section (4); and".
(2) After section 49A(3) of the Estate Agents Act 1980 insert—
"(4) A rebate statement complies with this sub-
section if it is in a form approved by the
Director and it contains—
Estate Agents and Sale of Land Acts (Amendment) Act 2003
Act No. 41/2003
Part 3—Amendments to the Estate Agents Act 1980 s. 9
(a)
a statement of whether or not the agent will be, or is likely to be, entitled to any rebate in respect of—
(i) any outgoings; or
(ii) any prepayments made by the agent (the client) in respect of any intended expenditure by the agent on the client's behalf; or
(iii) any payments made by the client to another person in respect of the work; and
(b) if such an entitlement will, or is likely to, occur, details of— (i) the goods or services to which the rebate relates; and
(ii) the name of the person providing the rebate; and
(iii) the amount of the rebate that will be attributable to the engagement or appointment, or if that amount is not known at the time the
statement is made, an estimate (in
dollars) of the amount; and
(c) a statement that the agent is not entitled to retain any rebate and must not charge the client an amount for any expenses that is more than the cost of those
expenses; and(d) any other statements or details required by the regulations. (5) Section 48C also applies for the purposes of sub-section (4)(b)(iii).".
Estate Agents and Sale of Land Acts (Amendment) Act 2003
Act No. 41/2003
| s. 10 | Part 3—Amendments to the Estate Agents Act 1980 |
| (3) In section 50 of the Estate Agents Act 1980— |
(a)
in sub-section (1), for "Subject to sub- section (2) an estate agent shall not be" substitute "An estate agent is not";
(b)
in sub-section (1)(a), after "he" insert "or she";
(c) after sub-section (1)(b) insert—
"; and
(c) 48A and 48B with respect to the
the agent has complied with sections transaction.";
(d)
in sub-section (4), after "him" (wherever occurring) insert "or her";
(e)
in sub-section (5), after "he" (wherever occurring) insert "or she".
Division 3—Infringement Notices
10. Insertion of sections 95A–95E
After section 95 of the Estate Agents Act 1980 insert—
'95A. Power to serve a notice
(1) An authorised officer may serve an
infringement notice on any person that he or
she has reason to believe has committed an
offence against this Act or the regulations
specified by the regulations as an offence in
respect of which an infringement notice maybe issued.
(2) In this Division "authorised officer"
means—
(a)
an inspector appointed under the Fair Trading Act 1999;
Estate Agents and Sale of Land Acts (Amendment) Act 2003
Act No. 41/2003
Part 3—Amendments to the Estate Agents Act 1980 s. 10 (b) a member of the police force;
(c)
a person authorised in writing by the Director.
95B. Form of notice
An infringement notice must be in a form approved by the Director and must set out—
(a) the date of the notice;
(b)
the provision of this Act or the regulations that creates the offence;
(c) the date, time and place of the offence;
(d) the nature of the offence and a brief description of the offence; (e) the infringement notice penalty for the offence set out in the regulations; (f) how the infringement notice penalty may be paid; (g) the time (not being less than 28 days after the date on which the notice is served) within which the infringement notice penalty must be paid;
(h) that if the infringement notice penalty is paid before the end of that time, the matter will not be brought before the Magistrates' Court unless the notice is withdrawn within 28 days after the date on which it was served; (i) that the person is entitled to disregard the notice and defend any proceedings in respect of the alleged offence in the Magistrates' Court;
(j)
any other details required by the regulations.
Estate Agents and Sale of Land Acts (Amendment) Act 2003
Act No. 41/2003
| s. 10 | Part 3—Amendments to the Estate Agents Act 1980 |
95C. Late payment of penalty
If a charge has not been filed, and a courtesy authorised officer may accept payment of the infringement notice penalty even if the time specified in the notice as the time within which the penalty may be paid has expired.
letter has not been served, under Part 2 of
Schedule 7 to the Magistrates' Court
95D. Withdrawal of notice
(1) A member of the police force may withdraw
an infringement notice issued by a member of the police force under this Part within 28 days after it was served.
(2) The Director may withdraw an infringement notice issued by any other authorised officer under this Part within 28 days after it was
served.
(3) The withdrawal of an infringement notice is to be effected by serving a withdrawal notice on the person on whom the infringement
notice was served.
(4) If the penalty sought in the infringement notice has been paid before the notice is withdrawn, the amount of the penalty must
be refunded on the notice being withdrawn,
and the Consolidated Fund is, to thenecessary extent, appropriated accordingly.
(5) Proceedings for the offence in respect of
which an infringement notice has been served may still be taken or continued despite the withdrawal of the notice.
Estate Agents and Sale of Land Acts (Amendment) Act 2003
Act No. 41/2003
Part 3—Amendments to the Estate Agents Act 1980 s. 10
95E. Further proceedings concerning
infringement notices
(1) Subject to section 95D, if the penalty sought
in an infringement notice is paid within the
time specified in the notice or if the
authorised officer accepts the payment of the
penalty under section 95C, then—
(a) the person on whom the notice was served has expiated the offence by that payment; and (b) no further proceedings concerning the person; and
(c) no conviction is to be recorded against that person for the offence. (2) If proceedings are taken against a person in
respect of an offence for which an
infringement notice was served on the person
and a court finds the person guilty of the
offence, the finding is not to be taken as a
conviction for any purpose except—
(a) the making of the finding itself; and
(b)
any later proceedings that may be taken in respect of the finding itself (including proceedings by way of appeal or review).
(3) Sub-section (2) does not apply to
proceedings taken after the withdrawal of an
infringement notice.(4) The payment of a penalty sought by an
infringement notice is not and must not be
taken to be—
(a)
an admission of guilt in relation to the offence in respect of which the notice was issued; or
Estate Agents and Sale of Land Acts (Amendment) Act 2003
Act No. 41/2003
| s. 11 | Part 3—Amendments to the Estate Agents Act 1980 |
(b) an admission of liability for the purpose of any civil claim or proceeding arising out of the same occurrence, and the payment does not in any way affect or
prejudice any such claim or proceeding.(5) Nothing in this section prevents the Tribunal from conducting an inquiry under section 25 or 28 and taking disciplinary action under
section 28A against a person for any act or omission for which an infringement notice was issued.'.
11. Insertion of supporting regulation-making powers
After section 99(f) of the Estate Agents Act 1980 insert—
"(fa) prescribing, for the purposes of sections 95A
to 95E—
(i) the offences under this Act or the regulations in respect of which an infringement notice may be issued; and
(ii) the penalties that apply if those offences are dealt with by an infringement notice;".
Division 4—Other Matters
12. Definitions
(1) In section 4(1) of the Estate Agents Act 1980—
(a) in the definition of "approved industry association", for paragraph (b) substitute— "(b) the Stock and Station Agents'
Association Limited
A.C.N. 096 142 880;";
Estate Agents and Sale of Land Acts (Amendment) Act 2003
Act No. 41/2003
Part 3—Amendments to the Estate Agents Act 1980 s. 12
(b) in the definition of "estate agent" or "agent"— (i) in paragraph (c), for "for; or" substitute "for—";
(ii) paragraph (d) is repealed;
(c)
the definition of "practising public accountant" is repealed;
(d) insert the following definitions—
' "approved auditor" means a personwho—
(a) National Institute of Accountants
is a member of CPA Australia, the Accountants in Australia; and
(b) meets the requirements of one of those bodies to practise as a public accountant; and (c) commerce, accounting, business
studies or a similar discipline from
an Australian university or from ahas obtained a degree in Council; and
(d) has successfully completed any
courses of education required by
the Director under section 10B;
"CPA Australia" means CPA Australia A.C.N. 008 392 452;
"publish" means publish by any means,
including by publication on the
Internet;
Estate Agents and Sale of Land Acts (Amendment) Act 2003
Act No. 41/2003
| s. 13 | Part 3—Amendments to the Estate Agents Act 1980 |
"registered education and training
organisation" means a registered
education and training organisation as
defined in section 3 of the Victorian
Qualifications Authority Act 2000;'.
(2) After section 4(2) of the Estate Agents Act 1980
insert—
'(3) A reference in this Act to—
(a) "he or she", "she or he", "him or her" or "her or him" is to be read as including a reference to "it", if the context permits; (b) "his or her" or "her or his" is to be read as including a reference to "its", if the context permits. (4) A reference in this Act to "people" includes a
reference to bodies corporate and politic,
unless the contrary intention appears.'.
13. Variation of description of group to which Act does not apply
For section 5(2)(f) of the Estate Agents Act 1980 substitute—
"(f) any person engaged for the purpose only of auditing accounts under Part VI;".
14. Updating of name of accounting body
In section 6(2)(d) of the Estate Agents Act 1980, for "the Australian Society of Certified Practising Accountants" substitute "CPA Australia".
15. Deletion of function of the Council
Section 6B(2)(f) of the Estate Agents Act 1980 is repealed.
Estate Agents and Sale of Land Acts (Amendment) Act 2003
Act No. 41/2003
Part 3—Amendments to the Estate Agents Act 1980 s. 16
16. Insertion of sections 10A–10D
After section 10 of the Estate Agents Act 1980 insert—
'10A. Director may approve registered education and training organisations
(1) For the purposes of section 14 or 16, the Director may, by notice published in the Government Gazette, approve a registered
education and training organisation to
conduct a prescribed course of instruction or
examination.(2) The Director may, by notice published in the
Government Gazette, revoke an approval
made under sub-section (1).
(3) An approval, or a revocation of an approval,
approval or revocation is published in the
takes effect on the date notice of the specified in the notice.
(4) In revoking the approval of an organisation,
the Director may provide for transitional arrangements to minimise the disruption caused to students as a result of the
revocation.
10B. Courses of education for approved auditors
(1) The Director, by notice published in the
Government Gazette, may prescribe courses of education required to be completed by a person wishing—
(a)
to audit trust accounts under this Act; or
(b)
to be employed or engaged to assist in the audit of trust accounts under this Act.
Estate Agents and Sale of Land Acts (Amendment) Act 2003
Act No. 41/2003
| s. 16 | Part 3—Amendments to the Estate Agents Act 1980 |
(2) The Director may, by notice published in the
Government Gazette, revoke a prescription
of a course made under sub-section (1).
(3) A prescription, or a revocation of a
prescription, takes effect on the date notice
of the prescription or revocation is published
in the Government Gazette, or on any later
date specified in the notice.
(4) In revoking the prescription of a course, the
Director may provide for transitional arrangements to minimise the disruption caused to students as a result of the revocation.
10C. Notice may be disallowed
(1) On or before the 6th sitting day after a notice under section 10A or 10B is published in the Government Gazette, the Minister must
ensure that a copy of the notice is laid before
each House of the Parliament.(2) A failure to comply with sub-section (1) does not affect the operation or effect of the notice but the Scrutiny of Acts and Regulations
Committee of the Parliament may report the failure to each House of the Parliament.
(3) A notice may be disallowed in whole or in part by either House of Parliament.
(4) Part 5 of the Subordinate Legislation Act 1994 applies to a notice as if—
(a)
a reference in that Part to a "statutory rule" were a reference to the notice; and
(b)
a reference in section 23(1)(c) of that Part to "section 15(1)" were a reference to sub-section (1).
Estate Agents and Sale of Land Acts (Amendment) Act 2003
Act No. 41/2003
Part 3—Amendments to the Estate Agents Act 1980 s. 17
10D. Further publication of notices
(1) The Director must publish a notice under
section 10A or 10B on an Internet site
maintained by the Director or the Authority
as soon as is practicable after the notice is
published in the Government Gazette.
(2) A failure to comply with sub-section (1) does not affect the validity of a notice.'.
17. Insertion of sections 12A–12C
After section 12 of the Estate Agents Act 1980 insert—
"12A. Injunction to stop unlicensed trading
(1) The Director may apply to the Magistrates' Court for an order requiring a person to do one or more of the following—
(a) to stop carrying on the business of an estate agent; (b) to not transfer or dispose of any money or other property held on behalf of another person in connection with an unlicensed estate agency business. (2) The Court may make the order if it is
satisfied that the person is carrying on the
business of an estate agent and is not a
licensed estate agent.
12B. Court may make a temporary order without
notice
(1) The Court may make a temporary order under section 12A if it is satisfied—
(a)
that there are reasonable grounds for believing that the application under that section might be successful; and
Estate Agents and Sale of Land Acts (Amendment) Act 2003
Act No. 41/2003
| s. 17 | Part 3—Amendments to the Estate Agents Act 1980 |
(b) that having regard to all the relevant circumstances, the public interest will be best served by the making of the order. (2) The Court may make a temporary order
without giving the person against whom the
order is sought an opportunity to be heard.
(3) In making a temporary order the Court—
(a) must specify the date on which the order expires; and (b) must not specify an expiry date that is more than 30 days after the date it makes the order. (4) The Court may extend a temporary order, but
only if it has started to hear the application
under section 12A to which the order relates.
(5) The Court may extend a temporary order
under sub-section (4) until it gives its
decision on the application.
(6) On the application of the Director or the person against whom an order is sought under section 12A, the Court may vary or
rescind any temporary order.
12C. Undertakings as to damages and costs
In an application for an order under
section 12A, if the Court has determined to
grant a temporary order, the Court must not,
as a condition of granting the temporary
order, require the Director or any other
person to give any undertaking as to
damages or costs.".
Estate Agents and Sale of Land Acts (Amendment) Act 2003
Act No. 41/2003
Part 3—Amendments to the Estate Agents Act 1980 s. 18
18. Permitted activities of agent's representatives
In section 13(2) of the Estate Agents Act 1980, after "of an estate agent" insert "(other than managing the day to day operation of an estate agency office)".
19. Eligibility requirements for agent's licence
For section 14(1)(c) of the Estate Agents
Act 1980 substitute—"(c) she or he has met any other requirements
establishing competency set out in the
regulations.".
20. Licensing of corporations
(1) In section 15(1)(a) of the Estate Agents
Act 1980, for "not less than one-half" substitute
"at least one".(2) For sections 15(1A), 15(1B), 15(1C), 15(2),
15(2A), 15(3) and 15(3A) of the Estate Agents
Act 1980 substitute—
"(2) A corporation is not eligible to be granted an
estate agent's licence, or to hold or to
continue to hold an estate agent's licence, if
the spouse or domestic partner, parent,
brother, sister or child (other than a licensed
estate agent) of an agent's representative who
is engaged in the estate agency business of
the corporation is a director of the
corporation.
(2A) Sub-section (2) does not apply to a
corporation if the corporation is a listed
corporation within the meaning of the
Corporations Act.
Estate Agents and Sale of Land Acts (Amendment) Act 2003
Act No. 41/2003
| s. 21 | Part 3—Amendments to the Estate Agents Act 1980 |
(3) A corporation is not eligible to be granted an
estate agent's licence if any of its directors would be ineligible, under section 14(5), to be granted an estate agent's licence as an
individual.".
21. Licensing of corporations—delayed changes
(1) For section 15(1) of the Estate Agents Act 1980
substitute—
"(1) Subject to this section, a corporation is not
eligible to be granted an estate agent's
licence, or to hold or to continue to hold an
estate agent's licence, unless the corporation
has a licensed estate agent acting as the
officer in effective control of its estate
agency business.".
(2) Sections 15(4) and 15(7) of the Estate Agents Act 1980 are repealed.
Note: Section 2(2) provides for this section to come into
operation on 1 July 2005. Section 20 will come into
operation on a day to be proclaimed on or before
1 June 2004.
22. Eligibility requirements for agent's representatives
(1) After section 16(1) of the Estate Agents Act 1980
insert—
"(1A) Despite sub-section (1), a person remains
eligible to be employed as an agent's
representative for 30 days after the person—
(a) has done or not done, a claim allowed
against the Estate Agents' Guarantee
Fund under Part VII or any
corresponding fund established underhas, in relation to anything he or she or
Estate Agents and Sale of Land Acts (Amendment) Act 2003
Act No. 41/2003
Part 3—Amendments to the Estate Agents Act 1980 s. 22
(b) becomes an insolvent under
administration; or(c) against him or her, any offence
involving fraud, dishonesty, drug
trafficking or violence which isis convicted of, or has found proven 3 months or more.
Note: Section 22A provides that if an agent's
representative is convicted of, or has found
proven against him or her, an offence described
in sub-section (1)(c), the conviction or finding
doesn't take effect (and thus the 30 day period
doesn't begin) until all avenues of appeal in
relation to the conviction or finding have been
exhausted.
(1B) A person who applies within the 30 day
period referred to in sub-section (1A) for
permission under section 31A, 31B or 31C to
be employed as an agent's representative
remains eligible to be employed as an agent's
representative until the application is
withdrawn or is refused by the Authority.".
(2) For section 16(4)(a) of the Estate Agents Act 1980 substitute—
"(a) has been given—
(i) a copy of a certificate from the Chief Commissioner of Police that indicates that the person is not ineligible to be an agent's representative under sub- section (1)(c) and that—
(A) is not more than 6 months old; or
Estate Agents and Sale of Land Acts (Amendment) Act 2003
Act No. 41/2003
| s. 22 | Part 3—Amendments to the Estate Agents Act 1980 |
(B) is more than 6 months old, but
that is accompanied by a statutory
declaration of the person stating
that he or she has not been found
guilty of any disqualifyingoffence; or
(ii) 1998 by the former Estate Agents
Licensing Authority that indicates that
the person is not ineligible to be an
agent's representative under sub-sectiona copy of a notice given before 1 July statutory declaration of the person stating that he or she has not been found guilty of any disqualifying offence; and
Note: The Estate Agents Licensing Authority was abolished
Licensing Authorities (Miscellaneous
by virtue of section 68 of the Tribunals and on 1 July 1998.". (3) For section 16(7) of the Estate Agents Act 1980 substitute—
"(7) An estate agent must keep any document
obtained under sub-section (4) in relation to an agent's representative for at least 2 years after the agent's representative ceases to be employed by the agent in that capacity.
Penalty: 25 penalty units.
(8) A person is ineligible to be an agent's representative if the person—
(a)
gave the estate agent a copy of a certificate or notice under sub-section (4)(a)(i)(B) or (4)(a)(ii) before being appointed; and
Estate Agents and Sale of Land Acts (Amendment) Act 2003
Act No. 41/2003
Part 3—Amendments to the Estate Agents Act 1980 s. 23
(b) 6 weeks of starting employment, with a
certificate from the Chief
Commissioner of Police that is not
more than 6 weeks old and that
indicates that the person is notfails to provide the agent, within under sub-section (1)(c).".
23. Repeal of transitional provision concerning agent's representatives
Section 16C(4) of the Estate Agents Act 1980 is repealed.
24. Housekeeping amendment
In section 21(4)(b) of the Estate Agents Act
1980, for "he is" substitute "he or she is".
25. Automatic cancellation of corporate licence
(1) After section 22(2) of the Estate Agents Act 1980
insert—
"(2A) A corporation's licence as an estate agent is automatically cancelled 30 days after—
(a)
the licence of a director who holds an estate agent's licence is cancelled under sub-section (1) or (2); or
(b)
the corporation is notified in writing by the Authority that a director of the corporation who is not a licensed estate agent would, if the director were to apply for a licence, be ineligible, under section 14(5), to be granted an estate agent's licence; or
(c)
the corporation has a claim allowed against the Estate Agents' Guarantee Fund under Part VII; or
Estate Agents and Sale of Land Acts (Amendment) Act 2003
Act No. 41/2003
| s. 26 | Part 3—Amendments to the Estate Agents Act 1980 |
(d) the corporation is convicted of, or has found proven against it, an offence involving fraud, dishonesty, drug trafficking or violence that, if it was a natural person, would be punishable by imprisonment for 3 months or more. (2B) Sub-sections (2A)(a) and (2A)(b) do not
apply if the director ceases to be a director of
the corporation within the 30 day period
referred to in sub-section (2A).".
(2) After section 22(3) of the Estate Agents Act 1980
insert—
"(4) If a corporation whose licence would
otherwise be cancelled by sub-section (2A)
is eligible to apply for, and applies for,
permission under section 31CA within the
30 day period referred to in that sub-section,
the corporation's licence is only
automatically cancelled if the application is
withdrawn or is refused by the Authority.".
26. Insertion of section 22A
After section 22 of the Estate Agents Act 1980 insert—
"22A. Delay of effect of certain convictions
(1) This section applies if one of the following people is convicted of, or has found proven against him or her, an offence involving
fraud, dishonesty, drug trafficking or
violence which is punishable byimprisonment for 3 months or more—
(a)
a person who is employed as an agent's representative;
Estate Agents and Sale of Land Acts (Amendment) Act 2003
Act No. 41/2003
Part 3—Amendments to the Estate Agents Act 1980 s. 27
(b) a person (including a corporation) who holds a licence as an estate agent; (c) a person who is the director of a corporation that holds an estate agent's licence. (2) For the purposes of sections 16 and 22, the conviction or finding of guilt of the person only takes effect on—
(a)
the day on which the conviction or finding is upheld or confirmed by the last applicable court of appeal; or
(b)
the day on which leave to appeal is refused by the last applicable court of appeal; or
(c)
the day after the day on which the last applicable appeal period ends—
whichever occurs last.".
27. Inquiries into estate agents and agents' representatives—additional grounds
(1) After section 25(1)(a) of the Estate Agents Act 1980 insert—
"or
(aa) has contravened or failed to comply with the
Sale of Land Act 1962; or".
(2) After section 25(2)(a) of the Estate Agents Act 1980 insert—
"or
(aa) has contravened or failed to comply with the
Sale of Land Act 1962 or has failed to pay any fines imposed on him or her, or any costs that he or she was required to pay under that Act; or".
Estate Agents and Sale of Land Acts (Amendment) Act 2003
Act No. 41/2003
| s. 28 | Part 3—Amendments to the Estate Agents Act 1980 |
| (3) After section 28(1)(c) of the Estate Agents Act 1980 insert— |
"(ca) has contravened or failed to comply with the
Sale of Land Act 1962; or".
28. Section 29B substituted and 29C inserted
For section 29B of the Estate Agents Act 1980 substitute—
"29B. Duties of agents and officers in effective
control
(1) This section applies to a natural person—
(a)
who is a licensed estate agent who carries on an estate agency business; or
(b)
who is an officer in effective control of the estate agency business of a corporation.
(2) The person must—
(a)
be regularly and usually in charge at the principal office of the estate agent; and
(b)
give regular and substantial attendance at that office; and
(c)
properly control and supervise any estate agency business carried on by the agent or for which the person is responsible; and
(d)
take reasonable steps to ensure that any estate agents, agents' representatives or other employees of the business comply with the provisions of this Act, the Sale of Land Act 1962 and any other laws
relevant to the conduct of the business
while they are engaged in that business;
and
Estate Agents and Sale of Land Acts (Amendment) Act 2003
Act No. 41/2003
Part 3—Amendments to the Estate Agents Act 1980 s. 29
(e) establish procedures designed to ensure accordance with the law and good estate agency practice; and
(f)
monitor the conduct of the business in a manner that will ensure, as far as is practicable, that those procedures are complied with; and
(g)
properly control and supervise the management of any branch office of the estate agency business.
Penalty: 25 penalty units.
29C. Offence to procure contravention of
section 29B
A person involved in the management or control of the estate agency business of a licensed estate agent must not—
(a)
prevent or hinder another person from complying with any duty imposed on that other person by section 29B; or
(b)
induce or procure another person to contravene any duty imposed on that other person by section 29B.
Penalty: 25 penalty units.".
29. Consequential repeal
Section 30AA of the Estate Agents Act 1980 is repealed.
Estate Agents and Sale of Land Acts (Amendment) Act 2003
Act No. 41/2003
| s. 30 | Part 3—Amendments to the Estate Agents Act 1980 |
30. Insertion of section 31CA
After section 31C of the Estate Agents Act 1980 insert—
"31CA. Corporation may be allowed to hold licence despite disqualifying factors
(1) A corporation may apply to the Authority for
permission to be granted, or to continue to
hold, an estate agent's licence even though—
(a) it, or one of its directors, is a person in relation to whom a claim has been allowed against the Estate Agents' Guarantee Fund under Part VII or against a corresponding fund established under any corresponding previous enactment; or (b) it has been convicted of, or has had found proven against it, an offence involving fraud, dishonesty, drug trafficking or violence that, if it was a
natural person, would be punishable by
imprisonment for 3 months or more; or(c) within the last 10 years in Australia or
elsewhere, been convicted or had found
proven against him or her any offence
involving fraud, dishonesty, drug
trafficking or violence which was
punishable by imprisonment forone of its directors is a person who has, eligible to be a director of the corporation under the Corporations Act despite the conviction or finding of guilt.
(2) An application must—
(a)
be in the form approved by the Authority; and
Estate Agents and Sale of Land Acts (Amendment) Act 2003
Act No. 41/2003
Part 3—Amendments to the Estate Agents Act 1980 s. 30
(b)
contain the information required by the Authority; and
(c)
be accompanied by any documents required by the Authority; and
(d)
be accompanied by any fee required by the regulations for the purposes of this section.
(3) The Authority may give its permission if it is
satisfied—
(a) that the giving of the permission is not contrary to the public interest; and (b) in the case of an application made in the circumstances described in sub- section (1)(a)— (i) that the person has refunded all amounts paid out of the Fund or the corresponding fund in respect
of the claim; and
(ii) that there were exceptional
circumstances which gave rise to
the claim against the person; and(iii) that having regard to the conduct of the person before and after the claim, there is no reasonable
expectation that the person will
not comply with this Act and the
regulations in future; and
(c)
in the case of an application made in the circumstances described in sub- section (1)(a) involving a director or in
sub-section (1)(c), that there is a
substantive reason why the person
should remain a director of the
corporation.
Estate Agents and Sale of Land Acts (Amendment) Act 2003
Act No. 41/2003
| s. 31 | Part 3—Amendments to the Estate Agents Act 1980 |
(4) In considering an application, the Authority
may—
(a) conduct any inquiries it thinks fit;
(b) further information relating to the
require the applicant to provide any in the manner required by the Authority;
(c) seek advice and information on the application from any other person or body as it thinks fit. (5) The Authority may refuse to give its
permission if the applicant does not provide
the further information required, or any
consent needed by the Authority to obtain
that information, within a reasonable time
after the requirement is made.
(6) If the Authority gives its permission, the corporation is eligible to be granted, or to continue to hold, an estate agent's licence, despite anything to the contrary in section 15(3) or 22(2A).".
31. Conditions may be imposed on permission
In section 31D(1) of the Estate Agents Act 1980, for "or 31C" substitute ", 31C or 31CA".
32. Advertising by agents
(1) In sections 42(1) and 42(4) of the Estate Agents
Act 1980, omit "(whether in a newspaper or otherwise)".
(2) In section 42(6)(b) of the Estate Agents Act
1980, omit "by being exhibited on a hoarding or
sign board or in other like manner or by means of
radio or television".
Estate Agents and Sale of Land Acts (Amendment) Act 2003
Act No. 41/2003
Part 3—Amendments to the Estate Agents Act 1980 s. 33
33. Insertion of sections 45–45B
After section 44 of the Estate Agents Act 1980 insert—
'45. Continuing professional development
(1) The Director may require estate agents or
agent's representatives to undertake specified
training or professional development
activities.
(2) The Director must publish notice of the
making of a requirement in the Government
Gazette.
(3) A requirement takes effect on the date the
notice is published, or on any later date
specified in the notice.
(4) A requirement—
(a)
may specify that it applies generally to all agents or agent's representatives, or only to specified classes or sub-classes of agents or agent's representatives;
(b)
may specify that every person to whom it applies must undertake a specified activity by a specified time;
(c)
may assign point (or other) values to specified activities and require that a person undertake within a specified
time activities that have a specified
total point (or other) value;(d)
must identify the providers of any required activity;
(e) may provide for the Director—
(i) to extend a time limit that applies to a person with respect to the requirement;
Estate Agents and Sale of Land Acts (Amendment) Act 2003
Act No. 41/2003
| s. 33 | Part 3—Amendments to the Estate Agents Act 1980 |
(ii) class of person from having to
to exempt, or partially exempt, a specified grounds.
(5) If the Director makes a requirement under
this section, an agent or agent's
representative to whom the requirement
applies must not knowingly fail to comply
with the requirement.
Penalty: 25 penalty units.
45A. Requirement may be disallowed
(1) On or before the 6th sitting day after notice of the making of a requirement is published in the Government Gazette, the Minister
must ensure that a copy of the requirement is
laid before each House of the Parliament.(2) A failure to comply with sub-section (1) does
not affect the operation or effect of the
requirement but the Scrutiny of Acts and
Regulations Committee of the Parliament
may report the failure to each House of the
Parliament.
(3) A requirement may be disallowed in whole or in part by either House of Parliament.
(4) Part 5 of the Subordinate Legislation Act 1994 applies to a requirement as if—
(a) a reference in that Part to a "statutory rule" were a reference to the requirement; and (b) a reference in section 23(1)(c) of that Part to "section 15(1)" were a reference to sub-section (1). (5) A reference to a requirement in this section includes a reference to any amendment to a requirement.
Estate Agents and Sale of Land Acts (Amendment) Act 2003
Act No. 41/2003
Part 3—Amendments to the Estate Agents Act 1980 s. 34 45B. Further publication of requirement
(1) The Director must publish a requirement made under section 45 on an Internet site maintained by the Director or the Authority
as soon as is practicable after notice of the
making of the requirement is published in the
Government Gazette.(2) A failure to comply with sub-section (1) does not affect the validity of a requirement.'.
34. Employment of agents' representatives
For section 47(2) of the Estate Agents Act 1980 substitute—
"(2) An agent's representative who is employed
by an estate agent must not undertake employment under section 30(3) with another estate agent as a branch manager for
that other agent.
Penalty: 25 penalty units.
(2A) An agent's representative who is employed
by an estate agent as a branch manager under
section 30(2) or 30(3) must not undertake
employment with another estate agent.
Penalty: 25 penalty units.".
35. Substitution of section 48
For section 48 of the Estate Agents Act 1980 substitute—
"48. Notice of commission sharing must be
given
(1) This section applies if an estate agent agrees to share any commission to which he or she becomes entitled in respect of any estate
agency work with a person who is not—
Estate Agents and Sale of Land Acts (Amendment) Act 2003
Act No. 41/2003
| s. 35 | Part 3—Amendments to the Estate Agents Act 1980 |
(a) a licensed estate agent or an agent's representative in his or her employ; or (b) a licensed estate agent with whom he or she is in partnership. (2) Before obtaining a person's signature to an
engagement or appointment to do any estate
agency work on behalf of the person, the
agent must ensure that the person is given a
statement that complies with sub-section (3).
Penalty: 100 penalty units.
(3) The statement—
(a)
must state that any commission the agent is entitled to under the engagement or appointment will be shared with one or more other people; and
(b)
must identify by name every person who is entitled to share the commission with the agent; and
(c)
must contain any other details required by the regulations; and
(d)
must be in a form approved by the Director.
(4) An estate agent must not pay to another
person any share of a commission that the agent has obtained in respect of any estate agency work if the agent failed to comply with sub-section (2) in respect of the work.
Penalty: 100 penalty units.
(5) Nothing in this section applies to any
engagement or appointment entered into
before the date of commencement of
section 35 of the Estate Agents and Sale of
Land Acts (Amendment) Act 2003.".
Estate Agents and Sale of Land Acts (Amendment) Act 2003
Act No. 41/2003
Part 3—Amendments to the Estate Agents Act 1980 s. 36
36. Restriction on agent purchasing property
(1) At the foot of sections 55(1), 55(3) and 55(5) of
the Estate Agents Act 1980 insert—
"Penalty: 120 penalty units.".
(2) For section 55(9) of the Estate Agents Act 1980 substitute—
"(9) This section does not apply if property is
purchased by a person who is a shareholder
and not an employee of—
(a) an estate agent which is a corporation the shares of which are listed on an Australian Stock Exchange or which is a prescribed corporation; or (b) a stock and station agent which is a co-operative registered under the Co-operatives Act 1996 or a co-operative company within the meaning of Division 9 of Part III of the Income Tax Assessment Act 1936 of the Commonwealth that is taken to be registered in Victoria.". (3) For sections 55(14) and 55(15) of the Estate Agents Act 1980 substitute—
"(14) A person may make a purchase that would
otherwise be prohibited by this section if—
(a)
the person applies in writing to the Director before the contract of sale is signed for permission to make the purchase; and
(b)
the Director notifies the person in writing that the Director is satisfied that the purchase would not be contrary to the interests of the owner of the real estate or business to be sold if the
Estate Agents and Sale of Land Acts (Amendment) Act 2003
Act No. 41/2003
| s. 37 | Part 3—Amendments to the Estate Agents Act 1980 |
conditions (if any) imposed by the
Director are complied with.(15) If a person makes a purchase after receiving
a notice under sub-section (14)(b), the person
must comply with any conditions imposed
by the Director that are set out in the notice.
Penalty: 25 penalty units.".
37. Handling of trust money
After section 59(7) of the Estate Agents Act 1980 insert—
"(8) This section does not apply in relation to—
(a)
a cheque received by an estate agent from a tenant for the amount of bond made payable to the Residential
Tenancies Bond Authority established
under the Residential Tenancies
Act 1997;(b)
a cheque received by an estate agent from a person made payable to another person in prescribed circumstances.".
38. New section 59A inserted
After section 59 of the Estate Agents Act 1980 insert—
"59A. Unidentified trust money
(1) Section 59 also applies in relation to a
payment by electronic funds transfer that
is—
(a)
received by an estate agent from a person whom the estate agent cannot identify for the purposes of keeping full and accurate accounting records; or
Estate Agents and Sale of Land Acts (Amendment) Act 2003
Act No. 41/2003
Part 3—Amendments to the Estate Agents Act 1980 s. 39
(b) received by an estate agent who cannot identify, for the purposes of keeping full and accurate accounting records, the person entitled to the payment. (2) If, at the end of a period of 12 months that started on the date of receiving a payment referred to in sub-section (1), an estate agent
has—
(a)
not identified the person from whom he or she received the payment; or
(b)
not identified the person entitled to the payment—
then despite section 59(1)(b), the payment
must be dealt with as unclaimed moneysunder the Unclaimed Moneys Act 1962.".
39. Keeping of trust accounts
(1) For sections 63(3) and 63(3A) of the Estate Agents Act 1980 substitute—
'(3) Subject to sub-section (4), if an estate agent receives money (including rent money) for or on behalf of any other person, the agent must—
(a) immediately write out and give to the person from whom the money was received a receipt for the money; and (b) retain a duplicate copy of the receipt (or other record approved by the Director) clearly marked with the word "Duplicate" for a period of 7 years.'.
(2) For section 63(4) of the Estate Agents Act 1980 substitute—
"(4) An estate agent is not required to—
(a)
retain a duplicate copy of a receipt in relation to a cash payment if an
Estate Agents and Sale of Land Acts (Amendment) Act 2003
Act No. 41/2003
| s. 40 | Part 3—Amendments to the Estate Agents Act 1980 |
electronic record of the payment was made as soon as was practicable after the payment was received;
(b)
give a receipt in relation to a payment made in the form of a cheque or an electronic funds transfer if—
(i) an electronic record of the practicable after the payment was received; and
(ii) the person making the payment does not request a receipt;
(c)
retain a receipt or the duplicate copy of the receipt in relation to a payment made in the form of a cheque or an electronic funds transfer if an electronic record of the payment was made as soon as was practicable after the payment was received.".
40. New section 63A inserted
After section 63 of the Estate Agents Act 1980 insert—
"63A. Director's supervisory role in audits
(1) The Director may issue directions in relation to the conduct of audits under this Part.
(2) An auditor must comply with—
(a) any direction issued by the Director under sub-section (1); and (b) any prescribed auditing standards. (3) If the Director is satisfied that an auditor has
failed to comply with a direction issued under sub-section (1), the Director may direct that the auditor no longer audit an estate agent's accounts of trust money.
Estate Agents and Sale of Land Acts (Amendment) Act 2003
Act No. 41/2003
Part 3—Amendments to the Estate Agents Act 1980 s. 41 (4) The Director must give the auditor a
reasonable opportunity to make written or oral submissions, or both, before giving a direction under sub-section (3).
(5) A direction under sub-section (3) must be published in the Government Gazette and takes effect on the day it is published in the
Government Gazette.
(6) As soon as is practicable after making a
direction under sub-section (3), the Director
must give a copy of the direction to each
approved industry association.".
41. Annual audit of trust accounts
(1) In section 64(1) of the Estate Agents Act 1980, omit "by a person or firm qualified as prescribed by section 66".
(2) After section 64(1) of the Estate Agents Act 1980
insert—
"(1A) The agent must not engage a person or firm as an auditor for the purposes of sub-section (1) if the person or firm is not qualified
under section 66 to act as the auditor.
Penalty: 25 penalty units.".
42. Audits ordered by the Director
(1) In section 64A(1) of the Estate Agents Act 1980, omit "by a person or firm qualified as prescribed by section 66".
(2) After section 64A(1) of the Estate Agents Act 1980 insert—
"(1A) The Director must not engage a person or firm as an auditor for the purposes of sub- section (1) if the person or firm is not
qualified under section 66 to act as the
auditor.".
Estate Agents and Sale of Land Acts (Amendment) Act 2003
Act No. 41/2003
| s. 43 | Part 3—Amendments to the Estate Agents Act 1980 |
| (3) In section 64A(4) of the Estate Agents Act 1980, for "The costs" substitute "Subject to sub-section (5), the costs". | |
| (4) After section 64A(4) of the Estate Agents Act 1980 insert— |
"(5) The Director may recover the costs of an audit from the estate agent if—
(a) an auditor in the course of auditing the agent's accounts discovers that the accounts are not kept in a manner that enables them to be properly audited; or (b) any matter discovered in the course of the audit appears to the Director on reasonable grounds to involve dishonesty, or a breach of this Part or any other law, by the agent. (6) An estate agent to whom sub-section (5)
applies may apply to the Tribunal for a
review of the Director's decision to recover
the cost of the audit from the agent.".
43. Audit where business ceased during the year
(1) In section 64B(1)(b) of the Estate Agents Act
1980, omit "by a person or firm qualified as
prescribed by section 66".
(2) After section 64B(1) of the Estate Agents Act 1980 insert—
"(1A) The agent or executor, trustee or
administrator, as the case may be, must not
engage a person or firm as an auditor for the
purposes of sub-section (1) if the person or
firm is not qualified under section 66 to act
as the auditor.
Penalty: 25 penalty units.".
Estate Agents and Sale of Land Acts (Amendment) Act 2003
Act No. 41/2003
Part 3—Amendments to the Estate Agents Act 1980 s. 44
44. Qualifications of auditors
(1) For section 66(1) of the Estate Agents Act 1980 substitute—
"(1) A person is not qualified to act as an auditor
under section 64, 64A or 64B in respect of
an estate agent—
(a) unless he or she is an approved auditor;
(b) if he or she is, or at any time within in respect of which the audit is to be made, has been, an employee or partner of the agent, or of any partner of the agent, whose accounts of trust money are to be audited.".
(2) For section 66(3)(b) of the Estate Agents Act 1980 substitute—
"(b) all the members of the firm ordinarily so resident are approved auditors; and".
(3) In section 66(6) of the Estate Agents Act 1980, for "own name by a member of the firm who is a practising public accountant" substitute "or her
own name by a member of the firm who is an
approved auditor".(4) At the end of section 66 of the Estate Agents Act 1980 insert—
"(10) A person who ceases to be qualified to audit
accounts of trust money must immediately cease auditing any accounts of trust money under this Act.
Penalty: 25 penalty units.
Estate Agents and Sale of Land Acts (Amendment) Act 2003
Act No. 41/2003
| s. 45 | Part 3—Amendments to the Estate Agents Act 1980 |
(11) Any audit of an account of trust money
purportedly carried out under section 64,
64A or 64B by a person who is not a
qualified auditor is not a valid audit for the
purposes of section 64, 64A or 64B.".
45. Agents having no accounts to audit
For sections 69(1) and 69(1A) of the Estate
Agents Act 1980 substitute—"(1) It is not necessary for a licensed estate agent to comply with section 64 or 64B in respect of a financial year if the agent, in the course of that year, neither received nor held any
money for, or on behalf of, any other person. (1A) The Director may require, by notice in
writing, any licensed estate agent or any
executor, trustee or administrator of an estate
agent to make and deliver to the Director a
statutory declaration as to whether the estate
agent held any money for, or on behalf of,
another person during a period specified by
the Director in the notice.
(1B) If the Director imposes a requirement on a person under sub-section (1A), the person must comply with the requirement within the
time specified by the Director in the notice
imposing the requirement.Penalty: 25 penalty units.".
46. Standardisation of inspection provisions
In section 70 of the Estate Agents Act 1980—
(a) in sub-section (5)—
(i) for "impound or retain" substitute "seize";
(ii) omit all words and expressions after "to this section";
Estate Agents and Sale of Land Acts (Amendment) Act 2003
Act No. 41/2003
Part 3—Amendments to the Estate Agents Act 1980 s. 47 (b) sub-section (6) is repealed;
(c)
in sub-section (7)(d), for "impounded or retained" substitute "seized";
(d) for sub-section (8)(a) substitute—
"(a) orally; or".
47. New sections 70A–70E inserted
After section 70 of the Estate Agents Act 1980 insert—
'70A. Order requiring supply of information and answers to questions
(1) In this section "authorised person" means a
person authorised in writing by the Director
for the purposes of this section.
(2) For the purpose of monitoring compliance
with this Act, an authorised person may
apply to the Magistrates' Court for an order
requiring a person at a time and place
specified by the authorised person—
(a)
to answer orally or in writing any questions put by the authorised person relating to an estate agency business; or
(b)
to supply orally or in writing information required by the authorised person in relation to an estate agency business; or
(c)
to produce to the authorised person specified documents or documents of a specified class in relation to an estate agency business.
Estate Agents and Sale of Land Acts (Amendment) Act 2003
Act No. 41/2003
| s. 47 | Part 3—Amendments to the Estate Agents Act 1980 |
(3) The Court may grant the order if it is satisfied, on the basis of the evidence presented by the authorised person, that the
order is necessary for the purpose of
monitoring compliance with this Act or the
regulations.(4) In granting an order, the Court must state a day, not later than 28 days after the making of the order, on which the order ceases to
have effect.
(5) If any documents are produced to the
authorised person under the order, he or she
may—
(a) inspect the documents or authorise documents;
(b) make copies of, or take extracts from, the documents; (c) seize the documents if he or she considers that the documents are necessary for the purpose of obtaining evidence for the purpose of any
proceedings against any person under
this Act or the regulations;(d) secure any seized documents against interference; (e) retain possession of the documents in accordance with this Part. (6) As soon as is practicable after executing the order, the authorised person must notify the Court in writing of—
(a) the time and place of execution; and
(b)
the documents or classes of documents seized; and
Estate Agents and Sale of Land Acts (Amendment) Act 2003
Act No. 41/2003
Part 3—Amendments to the Estate Agents Act 1980 s. 47
(c) section (5)(c) in respect of a
contravention other than aif documents were seized under sub- granted, the contravention in respect of which the documents were seized.
(7) The Court may direct the authorised person
to bring before the Court a document to
which sub-section (6)(c) applies so that the
matter may be dealt with according to law.
(8) The Court may direct that a document
brought before it under sub-section (7) be
returned to its owner, subject to any
conditions the Court thinks appropriate, if in
the opinion of the Court it can be returned
consistently with the interests of justice.
70B. Protection against self-incrimination
(1) It is a reasonable excuse for a natural person to refuse or fail to give information or do any other thing that the person is required to do
by or under this Part, if the giving of the
information or the doing of that other thing
would tend to incriminate the person.(2) Despite sub-section (1), it is not a reasonable excuse for a natural person to refuse or fail to produce a document that the person is
required to produce by or under this Part,
even if the production of the documentwould tend to incriminate the person.
70C. Copies of seized documents
(1) If an authorised person retains possession of a document seized from a person under this Part, the authorised person must give the
person, within 21 days of the seizure, a copy
of the document certified as correct by the
authorised person.
Estate Agents and Sale of Land Acts (Amendment) Act 2003
Act No. 41/2003
| s. 47 | Part 3—Amendments to the Estate Agents Act 1980 |
(2) The certified copy is to be received in all
courts and tribunals to be evidence of equal
validity to the original.
70D. Retention and return of seized documents
(1) If an authorised person seizes a document under this Part, the authorised person must take reasonable steps to return the document
to the person from whom it was seized if the
reason for its seizure no longer exists.(2) If the document seized has not been returned
within 3 months after it was seized, the
authorised person must take reasonable steps
to return it unless—
(a) the document was retained have
commenced within that 3 month periodproceedings for the purpose for which appeal) have not been completed; or
(b)
the Magistrates' Court makes an order under section 70E extending the period during which the document may be retained.
70E. Magistrates' Court may extend 3 month
period
(1) An authorised person may apply to the
Magistrates' Court within 3 months after seizing a document under this Part, or within a period extended by the Court under this section, for an extension of the period for which the authorised person may retain the document.
(2) The Court may order such an extension if it is satisfied that retention of the document is necessary—
Estate Agents and Sale of Land Acts (Amendment) Act 2003
Act No. 41/2003
Part 3—Amendments to the Estate Agents Act 1980 s. 48
(a) for the purposes of an investigation into whether a contravention of this Act or the regulations has occurred; or (b) to enable evidence of a contravention of this Act or the regulations to be obtained for the purposes of a proceeding under this Act. (3) The Court may adjourn an application to
enable notice of the application to be given
to any person.'.
48. Dishonesty offences
At the end of section 91 of the Estate Agents Act
1980 insert—"(2) Without affecting the operation of Division 2 of Part I of the Crimes Act 1958, any agent's representative or other employee of an estate agency business who—
(a) fraudulently converts to his or her own use— (i) any moneys received or held by him or her in the course of his or her duties as an agent's
representative or other employee;
or(ii) his or her employer in the
any moneys received or held by agent; or
(b) fraudulently omits to account for, deliver or pay— (i) any moneys received or held by him or her in the course of his or her duties as an agent's
representative or other employee;
or
Estate Agents and Sale of Land Acts (Amendment) Act 2003
Act No. 41/2003
| s. 49 | Part 3—Amendments to the Estate Agents Act 1980 |
(ii) his or her employer in the
any moneys received or held by agent; or
(c) fraudulently renders an account of—
(i) any moneys received or held by him or her in the course of his or her duties as an agent's
representative or other employee knowing such account to be false in any material particular; or
(ii) his or her employer in the
employer's capacity as an estateany moneys received or held by false in any material particular—
is guilty of an indictable offence and is liable
to a penalty of not more than 500 penalty
units or to a term of imprisonment of notmore than 10 years.".
49. Regulation-making powers
In section 99 of the Estate Agents Act 1980—
(a) after paragraph (aa) insert—
"(b) requiring estate agents to give
consumers of their services information
in relation to those services in a form
specified by the regulations orapproved by the Director;";
(b) in paragraph (e), omit "practising public accountants and other"; (c) in paragraph (gf), after "examinations" competency".
═══════════════
Estate Agents and Sale of Land Acts (Amendment) Act 2003
Act No. 41/2003
Endnotes
ENDNOTES
†
Minister's second reading speech—
Legislative Assembly: 30 April 2003
Legislative Council: 22 May 2003
The long title for the Bill for this Act was "to amend the Estate Agents
Act 1980 and the Sale of Land Act 1962 and for other purposes."
0
0
0