Land (Fair Dealings) Act 1988 (Qld)

77 ANNO TRICESIMO SEPTIMO ELIZABETHAE SECUNDAE REGINAE No. 11 of 1988 An Act to prohibit certain practices in connexion with certain dealings in land and for another purpose [ASSENTED TO 7TH APRIL, 1988]

78 Land ( Fair Dealings ) Act 1988, No. 11 BE IT ENACTED by the Queen's Most Excellent Majesty, by and with the advice and consent of the Legislative Assembly of Queensland in Parliament assembled, and by the authority of the same, as follows:- 1. Short title . This Act may be cited as the Land (Fair Dealings) Act 1988. 2. Commencement . (1) This section and section 1 shall commence on the day on which this Act is assented to for and on behalf of Her Majesty. (2) Except as provided by subsection (1), this Act shall commence on a day appointed by Proclamation. 3. False representations, etc., in relation to land prohibited. (1) A person shall not, in connexion with the sale or grant, or the possible sale or grant, of an interest in land or in connexion with the promotion by any means of the sale or grant of an interest in land- (a) represent that the person has a sponsorship, approval or affiliation that the person does not have; (b) make a false or misleading representation concerning- (i) the nature of the interest in the land; (ii) the price payable for the land; (iii) the location of the land; (iv) the characteristics of the land; (v) the use to which the land is capable of being put or may lawfully be put; or (vi) the existence or availability of facilities associated with the land; (c) offer gifts, prizes or other free items with the intention of not providing them or of not providing them as offered; or (d) in Queensland do any act or take any step to cause a representation referred to in paragraph (a) or (b) or an offer referred to in paragraph (c) to be made outside Queensland. (2) A person shall not use physical force, undue harrassment or coercion in connexion with the sale or grant, or the possible sale or grant, of an interest in land or the payment for an interest in land. (3) In this section, "interest", in relation to land, means- (a) a legal or equitable estate or interest in the land; (b) a right of occupancy of the land, or of a building or part of a building erected on the land, arising by virtue of the holding of shares, or by virtue of a contract to purchase shares, in an incorporated company that owns the land or building;

Land (Fair Dealings) Act 1988, No. 11 79 or (c) a right, power or privilege over, or in connexion with, the land. 4. Offences. (1) A person who commits an offence against section 3 is liable on conviction- (a) in the case of a person not being a body corporate-to a fine of 400 penalty units; or (b) in the case of a person being a body corporate-to a fine of 2 000 penalty units. (2) Where a person is convicted of two or more offences against section 3, being offences that appear to a court to have been of the same nature or a substantially similar nature and to have occurred at or about the same time (whether or not the person is also convicted of another offence or other offences against section 3 that were of a different nature or occurred at a different time), the court shall not, in respect of the firstmentioned offences, impose on the person fines that, in the aggregate, exceed the maximum fine that would be applicable in respect of one offence by that person against that section. (3) Where- (a) a person is convicted of an offence against section 3; and (b) a fine has, or fines have, previously been imposed on the person by a court for another offence or other offences against that section, being an offence that, or offences each of which, appears to a court to have been of the same nature to, and to have occurred at or about the same time as the firstmentioned offence (whether or not a fine has, or fines have, also previously been imposed on the person for an offence or offences against that section that were of a different nature or occurred at a different time), the court shall not, in respect of the offence mentioned in paragraph (a), impose on the person a fine that exceeds the amount (if any) by which the maximum fine applicable in respect of that offence under subsection (1) is greater than the amount of the fine, or the sum of the amounts of the fines, first referred to in paragraph (b). 5. Conduct by directors, servants or agents . (1) Where, in proceedings for an offence against section 3 in respect of conduct engaged in by a body corporate, it is necessary to establish the state of mind of the body corporate, it is sufficient to show that a director, servant or agent of the body corporate, being a director, servant or agent by whom the conduct was engaged in within the scope of the person's actual or apparent authority, had that state of mind. (2) Conduct engaged in on behalf of a body corporate- (a) by a director, servant or agent of the body corporate within the scope of the person's actual or apparent authority;

80 Land (Fair Dealings ) Act 1988, No. 11 or (b) by any other person at the direction or with the consent or agreement (whether express or implied) of a director, servant or agent of the body corporate, where the giving of the direction, consent or agreement is within the scope of the actual or apparent authority of the director, servant or agent, shall be deemed, for the purposes of this Act, to have been engaged in also by the body corporate. (3) Where, in proceedings for an offence against section 3 in respect of conduct engaged in by a person other than a body corporate, it is necessary to establish the state of mind of the person, it is sufficient to show that a servant or agent of the person, being a servant or agent by whom the conduct was engaged in within the scope of the servant's or agent's actual or apparent authority, had that state of mind. (4) Conduct engaged in on behalf of a person other than a body corporate- (a) by a servant or agent of the person within the scope of the actual or apparent authority of the servant or agent; or (b) by any other person at the direction or with the consent or agreement (whether express or implied) of a servant or agent of the firstmentioned person, where the giving of the direction, consent or agreement is within the scope of the actual or apparent authority of the servant or agent, shall be deemed, for the purposes of this Act, to have been engaged in also by the firstmentioned person. (5) A reference in this section to the state of mind of a person includes a reference to the knowledge, intention, opinion, belief or purpose of the person and the person's reasons for the person's intention, opinion, belief or purpose. 6. Double jeopardy . Where an act or omission by a person is an offence against section 3 and is also an offence against a corresponding provision of an Act of the Commonwealth or of another State or of a Territory of the Commonwealth, the person may be prosecuted and convicted under this Act in respect of that act or omission notwithstanding that the person has been convicted in respect of that act or omission under that corresponding provision, but nothing in this Act renders a person liable to be punished twice in respect of the same act or omission. 7. Defences . (1) Subject to subsection (2), in proceedings for an offence against section 3, it is a defence if the defendant establishes- (a) that the offence was committed due to reasonable reliance on information supplied by another person; or (b) that the defendant took reasonable precautions and exercised due diligence to avoid committing the offence.

Land (Fair Dealings) Act 1988, No. 11 81 (2) In subsection (1) (a), "another person" does not include a person who was- (a) a servant or agent of the defendant; or (b) in the case of a defendant being a body corporate, any director, servant or agent of the defendant, at the time when the offence occurred. (3) A defendant is not, without leave of the court before which proceedings are brought, entitled to rely on the defence provided by subsection (1) (a) unless he has, not later than 7 days before the day on which the hearing of the proceedings commences, served on the person by whom the proceedings were instituted a notice in writing giving such information that would identify or assist in the identification of the other person as was then in his possession. (4) In proceedings for an offence against section 3 committed by the publication of an advertisement, it is a defence if the defendant establishes that he is a person whose business it is to publish or arrange for the publication of advertisements and that he received the advertisement for publication in the ordinary course of business and did not know and had no reason to suspect that its publication would constitute an offence against section 3. 8. Powers of inspectors . (1) For the purpose of determining whether an offence against section 3 has been, or is being, committed an inspector may require- (a) a person who has the possession, custody or control of any book, account, document, writing, record, contract or agreement relating to- (i) a transaction in connexion with the sale or grant, or the possible sale or grant, of an interest in land; or (ii) the promotion by any means of the sale or grant of an interest in land, to produce at any time and from time to time that book, account, document, writing, record, contract or agreement for his inspection or examination; (b) the person specified in paragraph (a) to answer questions or supply information with respect to that book, account, document, writing, record, contract or agreement or with respect to the entries therein. (2) An inspector may inspect or examine, or inspect and examine all books, accounts, documents, writings, records, contracts and agreements referred to in subsection (1) and may take such notes or copies of or extracts from any such book, account, document, writing, record, contract or agreement, or of any entries therein, as he thinks necessary.

82 Land (Fair Dealings) Act 1988, No. 11 (3) An inspector may- (a) question any person for the purpose of determining whether an offence against section 3 has been, or is being, committed; (b) for the purpose of questioning any person, as authorized by paragraph (a), require that person to attend before him at such times and places as are specified by him. (4) A person shall not- (a) obstruct, threaten, or intimidate an inspector in the exercise of his powers or authorities or functions or in the discharge of his duties under this section or attempt so to do; (b) when required under this section to attend before an inspector fail without lawful excuse (proof of which shall lie on him) to so attend in accordance with such requirement; (c) when required under this section to produce for inspection, or examination, or inspection and examination any book, account, document, writing, record, contract or agreement referred to in this section, fail to produce such book, account, document, writing, record, contract or agreement in accordance with such requirement; (d) when required under this section to answer any question or supply any information, give an answer or supply information which is false or misleading, or, knowing or being in a position to know the answer or information required, fail to answer that question or supply that information; or (e) retake or attempt to retake any book, account, document, writing, record, contract or agreement retained under the authority of this section. (5) A person guilty of an offence against this section shall be liable to a penalty of 40 penalty units or to imprisonment for 6 months, or to both such fine and imprisonment, and, on a second or subsequent offence, to a penalty of 100 penalty units or to imprisonment for 12 months, or to both such fine and imprisonment. (6) Any requirement under this section may be made verbally, or by writing addressed to the person to or on whom it is made. (7) No person shall be required under this section to answer any question or give any information tending to incriminate himself. (8) In this section, "inspector" means a person appointed to be an inspector under the Auctioneers and Agents Act 1971-1985. 9. Proceedings for offences . (1) An offence against this Act may be prosecuted in a summary way under the Justices Act 1886-1987 upon the complaint of any person authorized in that behalf either generally or in the particular case by the Minister. (2) Proceedings for an offence against this Act may be instituted at any time within 12 months after the commission of the offence, or

Land (Fair Dealings) Act 1988, No. 11 83 within 6 months after the commission of the offence comes to the knowledge of the complainant, whichever is the later. (3) An authority to prosecute purporting to have been signed by the Minister is evidence of that authority without proof of the signature of the Minister. 10. Amendment of the Vagrants, Gaming , and Other Offences Act 1931-1987. (1) The Vagrants, Gaming, and Other Offences Act 1931- 1987 is amended by, in section 37A- (a) in subsection (1), (i) in paragraph (c), omitting the words "real property or" and the words "chattels real or"; (b) in paragraph (e), omitting the words "real property or" and the words "real or". (2) The Vagrants, Gaming, and Other Offences Act 1931-1987 as amended by this section may be cited as the Vagrants, Gaming, and Other Offences Act 1931-1988.