Property Occupations Act 2014 (Qld)

Property Occupations Act 2014

An Act to provide for the regulation of the activities, licensing and conduct of property agents and resident letting agents and their employees and to protect consumers against particular undesirable practices

Part 1    Preliminary

Division 1 Introduction

1   Short title

This Act may be cited as the Property Occupations Act 2014.

2   Commencement

This Act, other than part 16, commences on a day to be fixed by proclamation.

3   Act binds all persons

(1)This Act binds all persons, including the State and, as far as the legislative power of the Parliament permits, the Commonwealth and the other States.

(2)Nothing in this Act makes the State, the Commonwealth or any other State liable to be prosecuted for an offence.

4   Relationship with Fair Trading Inspectors Act 2014

(1)The Fair Trading Inspectors Act 2014 enacts common provisions for this Act and particular other Acts about fair trading.

(2)Unless this Act otherwise provides in relation to the Fair Trading Inspectors Act 2014, the powers that an inspector has under that Act are in addition to and do not limit any powers the inspector may have under this Act.

Note—

See also the modifying provision for this Act stated in the Fair Trading Inspectors Act 2014, section 6.

Division 2 Exemptions

5   Particular auctions

(1)Parts 3 and 4 and part 6, divisions 1 and 2 to the extent they relate to a property agent do not apply to—

(a)a sale made under a rule, order, or judgment of the Supreme Court or District Court; or

(b)a sale made by a person obeying an order of, or a process issued by, a court, judge or justice, or the registrar of the State Penalties Enforcement Registry for the recovery of a fine, penalty or award; or

(c)a sale of an animal lawfully seized and sold under the Animal Care and Protection Act 2001 or another law about seizing or impounding an animal; or

(d)a sale conducted for a charity, a religious denomination or an organisation formed for a community purpose, within the meaning of the Collections Act 1966 (relevant entity) if—

(i)the person conducting the sale does not receive from the relevant entity a reward for the person’s services; and

(ii)amounts received from the sale are paid directly to an officer or employee of the relevant entity who is authorised by the relevant entity to receive and deal with the amounts.

(2)In this section—

sale means a sale, attempted sale or an offering for sale or resale, by way of auction.

6   Administrators etc.

(1)This section applies to the following persons (each an appointee)—

(a)a person appointed under the Corporations Act as an administrator of a corporation that is or was authorised under a licence or former licence to perform an activity;

(b)a person appointed under the Corporations Act as an administrator of a deed of company arrangement for a corporation that is or was authorised under a licence or former licence to perform an activity;

(c)a person appointed under the Corporations Act as a liquidator, or controller of property, of a corporation that is or was authorised under a licence or former licence to perform an activity;

(d)a person appointed under the Administration Act as a receiver for property of an entity that is or was authorised under a licence or former licence to perform an activity;

(e)a person appointed under the Bankruptcy Act 1966 (Cwlth) as the trustee in bankruptcy, or the Official Receiver, for an individual who is or was authorised under a licence or former licence to perform an activity.

(2)The appointee is exempt from the provisions mentioned in subsection (3) while performing the activity in relation to a business that is or was authorised to be carried on under—

(a)for a licence that is in force— the licence; or

(b)for a former licence that is not in force—the former licence immediately before it stopped being in force.

(3)For subsection (2), the provisions are—

(a)sections 84 and 85; and

(b)part 3, division 2; and

(c)sections 97, 100 and 102.

(4)In this section—

former licence means a licence that was previously in force.

person appointed as the trustee in bankruptcy, for an individual, includes the Official Trustee in Bankruptcy under the Bankruptcy Act 1966 (Cwlth) if the Official Trustee is the trustee in bankruptcy for the individual.

7   Related entities

An entity (exempt entity) is exempt from this Act if the entity—

(a)carries on the business of a property agent or resident letting agent in relation to assets, other than residential property, of—

(i)another entity the majority of which is directly or indirectly owned by the exempt entity; or

(ii)another entity, if the majority of both entities is directly or indirectly owned by the same persons; or

(iii)another entity that directly or indirectly owns the majority of the exempt entity; and

(b)is a property agent or resident letting agent only because of the business carried on by it in relation to the assets; and

(c)when carrying on that business as a property agent or resident letting agent discloses in writing in any advertising or contract relating to the assets its relationship to the owner of the assets.

8   Large scale non-residential property transactions or holdings

(1)A person acting as a property agent for the sale or exchange of real property, other than residential property or rural land, is exempt from this Act for the transaction if—

(a)the real property for the transaction has—

(i)a total gross floor area of at least the area prescribed under a regulation; or

(ii)a total estimated value of at least the amount prescribed under a regulation; or

(b)each party to the transaction owns real property, other than the real property for the transaction, that has—

(i)a total gross floor area of at least the area prescribed under a regulation; or

(ii)a total estimated value of at least the amount prescribed under a regulation.

(2)A person acting as a property agent or resident letting agent for the letting of real property or collecting rents for real property, other than residential property or rural land, is exempt from this Act if the person is acting on behalf of an entity that owns real property that has—

(a)a total gross floor area of at least the area prescribed under a regulation; or

(b)a total estimated value of at least the amount prescribed under a regulation.

(3)To remove any doubt, it is declared that, without limiting subsection (2), the subsection applies if the person is acting as a property agent or resident letting agent for 2 or more entities engaged in a joint venture arrangement and the entities, individually or collectively, own real property that has—

(a)a total gross floor area of at least the area prescribed under a regulation; or

(b)a total estimated value of at least the amount prescribed under a regulation.

(4)In this section—

estimated value, of real property, means the estimate, made on reasonable grounds by the person acting as—

(a)a property agent for the sale of the property, of the price payable for the property; or

(b)a property agent for the exchange of the property, of the value of the property; or

(c)a property agent or resident letting agent for the letting of the property or collecting rents for the property, of the value of the property.

rural land means land used, intended to be used, or apparently intended to be used, for gain or profit, for grazing livestock or cultivating crops.

9   Other exemptions from this Act

A regulation may exempt from this Act a class of person who acts as a property agent or resident letting agent for an entity if the class of person is acting as a property agent or resident letting agent for another entity related to the entity.

10   Financial institutions and trustee companies

(1)Parts 3 and 4 and part 6, divisions 1 and 2 to the extent they relate to a property agent do not apply to a financial institution or trustee company.

(2)In this section—

trustee company means—

(a)a trustee company under the Trustee Companies Act 1968; or

(b)the public trustee when the public trustee is—

(i)performing the activities that may be performed by a trustee company; or

(ii)exercising the powers that may be exercised by a trustee company; or

(iii)holding an office that may be held by a trustee company.

11   Non-profit corporations

(1)A non-profit corporation is exempt from parts 3 and 4 and part 6, divisions 1 and 2 if—

(a)the corporation provides or locates—

(i)affordable rental housing under an affordable housing scheme; or

(ii)approved supported accommodation; and

(b)the providing or locating of the housing or accommodation is funded or managed by the Commonwealth, a State or a local government.

(2)Subsection (1) does not apply if the non-profit corporation is otherwise carrying on the business of a resident letting agent or property agent.

(3)To remove any doubt, it is declared that a corporation does not stop being a non-profit corporation only because it receives a reward for providing its services to another non-profit corporation.

(4)In this section—

affordable housing scheme see the Residential Tenancies and Rooming Accommodation Act 2008, schedule 2.

approved supported accommodation see the Residential Tenancies and Rooming Accommodation Act 2008, schedule 2.

non-profit corporation means a corporation formed for a purpose other than the purpose of making a profit.

Division 3 Objects of Act

12   Objects

(1)The objects of this Act are—

(a)to provide a system for licensing and regulating persons as property agents or resident letting agents and for registering and regulating persons as real estate salespersons that achieves an appropriate balance between—

(i)the need to regulate for the protection of consumers; and

(ii)the need to promote freedom of enterprise in the market place; and

(b)to provide a way of protecting consumers against particular undesirable practices associated with the promotion of residential property.

(2)The objects are to be achieved by—

(a)ensuring—

(i)only suitable persons with appropriate qualifications are licensed or registered; and

(ii)persons who carry on business or are in charge of a licensee’s business at a place under the authority of a licence maintain close personal supervision of the way the business is carried on; and

(b)providing—

(i)protection for consumers in their dealings with licensees and their employees; and

(ii)a legislative framework within which persons performing activities for licensees may lawfully operate; and

(c)regulating fees and commissions that can be charged for particular transactions; and

(d)providing protection for consumers in their dealings with marketeers; and

(e)providing for the enforcement of matters involving marketeers; and

(f)providing increased flexibility in enforcement measures through injunctions, undertakings, and, for contraventions by marketeers, preservation of assets and civil penalties; and

(g)promoting administrative efficiency by providing that—

(i)responsibility for licensing rests with the chief executive; and

(ii)responsibility for reviewing particular decisions of the chief executive rests with QCAT; and

(iii)responsibility for disciplinary matters rests with QCAT.

Division 4 Interpretation

13   Definitions

The dictionary in schedule 2 defines particular words used in this Act.

14   Who is an auctioneer

An auctioneer is a person who holds an auctioneer licence authorising the performance of the activities mentioned in section 25.

15   Who is a property agent

A property agent is an auctioneer or a real estate agent.

16   Who is a real estate agent

A real estate agent is a person who holds a real estate agent licence authorising the performance of the activities mentioned in section 26.

17   Who is a resident letting agent

A resident letting agent is a person who holds a resident letting agent licence authorising the performance of the activities mentioned in section 27.

18   Meaning of completes a residential property sale

(1)A person completes a residential property sale if a residential property in which the person has an interest is sold, whether or not a transfer to the purchaser under the sale has been registered.

(2)However, the person is not to be taken to have completed a residential property sale if—

(a)the person appointed a property agent to sell the interest in the residential property on the person’s behalf and the property agent is the effective cause of the sale; or

(b)the person held the interest in the residential property as—

(i)a personal representative; or

(ii)an administrator under the Guardianship and Administration Act 2000; or

(iii)a beneficiary in, or a trustee of, a deceased person’s estate; or

(iv)a mortgagee; or

(c)the person is a corporation and the corporation sold the corporation’s interest in the residential property to a related body corporate of the corporation; or

(d)the interest in the residential property is sold under a court order.

(3)In this section—

related body corporate see the Corporations Act, section 9.

19   Meaning of in charge

(1)A person is in charge of a licensee’s business at a place where the licensee carries on business only if the person personally supervises, manages or controls the conduct of the licensee’s business at the place.

(2)In this section—

licensee’s business means the licensee’s business carried on under the authority of the licensee’s licence.

20   Meaning of open listing

An open listing is a written agreement entered into between a person (seller) and a property agent (selling agent) under which the seller appoints the selling agent, in accordance with the terms of the agreement, to sell stated property and under the agreement—

(a)the seller retains a right—

(i)to sell the seller’s property during the term of the agreement; or

(ii)to appoint additional property agents as selling agents to sell the property on terms similar to those under the agreement; and

(b)the appointed selling agent is entitled to remuneration only if he or she is the effective cause of sale; and

(c)the appointment of the selling agent can be ended, at any time, by either—

(i)the seller giving the selling agent written notice of the ending of the appointment; or

(ii)the selling agent giving the seller written notice of the ending of the appointment.

21   Meaning of residential property

Residential property is real property that is used, or is intended to be used, for residential purposes but does not include real property that is used primarily for the purposes of industry, commerce or primary production.

22   Meaning of unsolicited invitation

(1)An unsolicited invitation to a person to attend a property information session includes an invitation—

(a)addressed personally to the person and sent to the person’s residential, business, postal or email address; or

(b)made by telephoning the person, or by another personal approach to the person.

(2)An invitation to a person to attend a property information session is not an unsolicited invitation if it is—

(a)made at the person’s request, other than in response to an approach of a kind mentioned in subsection (1)(b); or

(b)made to the public generally or a section of the public by media advertisement; or

(c)addressed non-specifically and sent to the person’s residential, business, postal or email address.

Examples of invitations addressed non-specifically—

•‘The owner’

•‘The householder’

23   Difference between exclusive agency and sole agency

(1)The only difference between an exclusive agency and a sole agency is the extent of the entitlement of a selling agent to receive an agreed commission or other reward on the sale of particular property.

(2)Under an exclusive agency, a selling agent is entitled, on the sale of particular property and in accordance with the terms of an agreement with the seller of the property, to receive an agreed commission or other reward, whether or not the selling agent is the effective cause of the sale.

(3)However, if the sale was subject to a sole agency, the selling agent would not be entitled to the commission or other reward if the seller was the effective cause of the sale.

Example—

Facts—S is the owner of a place of residence that S appoints R to sell. B buys the place of residence.

Assume for the example that in the following circumstances the following persons are the effective cause of the sale—

•case 1—R

•case 2—X (another property agent)

•case 3—M (S’s mother)

•case 4—S.

If the selling agent is appointed under an exclusive agency, R is entitled to an agreed commission or other reward in accordance with the terms of R’s agreement with S in cases 1, 2, 3 and 4. If the selling agent is appointed under a sole agency, R is entitled to an agreed commission or other reward in accordance with the terms of R’s agreement with S only in cases 1, 2 and 3.

(4)In this section—

seller, of property, means the person authorising the sale of the property.

selling agent, of property, means a property agent appointed under a written agreement under this Act by the seller to sell the property.

Part 2    Licensing

Division 1 Categories of licence

24   Categories of licence

The chief executive may issue the following categories of licence under this Act—

(a)auctioneer licence;

(b)real estate agent licence;

(c)resident letting agent licence.

Note—

See also section 28.

Division 2 Auctioneer’s authorisation

25   What an auctioneer licence authorises

(1)An auctioneer licence authorises the holder of the licence to—

(a)sell or attempt to sell or offer for sale or resale any real property, or an interest in real property, by way of auction as an agent for others for reward; and

(b)sell the property or interest by any means during the auction period; and

(c)sell or attempt to sell or offer for sale or resale goods by way of auction if the sale or resale is directly connected with a sale by auction of a place of residence or land performed by the auctioneer.

(2)For subsection (1)(c), an auction of goods may be directly connected with a sale by auction of a place of residence or land despite the auction of the goods being conducted separately from the auction of the place of residence or land.

Example—

An auction of a place of residence followed by an auction of the contents of the residence.

(3)An auctioneer may perform an activity mentioned in subsection (1)—

(a)in the carrying on of a business, either alone or with others; or

(b)as an employee of a property agent.

(4)In this section—

auction period, for an auctioneer for the sale of real property, means the period for which the auctioneer is appointed under section 102 or otherwise authorised or permitted under this Act or another Act to sell the property.

Division 3 Real estate agent’s authorisation and responsibility

26   What a real estate agent licence authorises

(1)A real estate agent licence authorises the holder of the licence to perform the following activities as an agent for others for reward—

(a)to buy, sell (other than by auction), exchange or let real property or interests in real property;

(b)to buy, sell (other than by auction), exchange, or let businesses or interests in businesses;

(c)to negotiate for the buying, selling, exchanging, or letting of something mentioned in paragraph (a) or (b);

(d)to collect rents.

(2)A real estate agent may perform the activities mentioned in subsection (1) in the carrying on of a business, either alone or with others, or as an employee of someone else.

Division 4 Resident letting agent’s authorisation

27   What a resident letting agent licence authorises

(1)A resident letting agent licence authorises the holder of the licence to perform the following activities as an agent for others for reward—

(a)letting lots in a building complex;

(b)collecting rents for lots in a building complex.

(2)A resident letting agent may perform the activities in the carrying on of a business, either alone or with others, or as an employee of someone else.

Division 5 Limited property agent licence

28   Limited property agent licence

(1)The chief executive may issue a property agent licence that limits, as prescribed under a regulation, the activities that may otherwise be performed under the licence.

(2)To be eligible for a limited property agent licence, an applicant for the licence must have the educational qualifications approved by the chief executive for obtaining the licence.

(3)The chief executive must publish the approved qualifications on the department’s website.

Division 6 How to obtain a licence

29   Steps involved in obtaining a licence

(1)A person who wishes to obtain a licence must be a suitable person to hold a licence under division 8.

(2)The person must apply for the licence by—

(a)giving the chief executive an application showing, among other things, the person is eligible for the licence; and

(b)paying—

(i)the fees prescribed under a regulation; and

(ii)if, before or when the application is made, a criminal history costs requirement is made of the applicant—the amount of the costs required to be paid; and

(c)giving the chief executive the other information required under section 31.

(3)In deciding the person’s application, the chief executive must have regard, among other things, to—

(a)the person’s suitability to hold a licence under this Act; and

(b)the person’s eligibility for the licence.

Division 7 Applications for licence and particular request requirement

30   Application for licence

(1)An applicant for a licence must—

(a)apply to the chief executive in the approved form; and

(b)state the category of licence being applied for; and

(c)state the term of the licence being applied for; and

(d)establish the applicant’s eligibility for the category of licence being applied for; and

(e)state the names and addresses of the applicant’s business associates; and

(f)provide any information the chief executive reasonably requires to decide whether the applicant is a suitable person to hold a licence.

(2)The application must be accompanied by—

(a)the application fee prescribed under a regulation; and

(b)the licence issue fee prescribed under a regulation; and

(c)if, before or when the application is made, a criminal history costs requirement is made of the applicant—the amount of the costs required to be paid.

31   Applicant must state business address

(1)The applicant must also state in the applicant’s application—

(a)if the applicant intends carrying on business under the licence immediately after the issue of the licence—the place or places in Queensland where the applicant proposes to carry on business under the licence; or

(b)if the applicant does not intend carrying on business under the licence immediately after the issue of the licence—

(i)the capacity in which the applicant intends performing activities under the licence and the address where the activities are to be performed (business address); and

(ii)if the applicant intends to be a person in charge of a licensee’s business at a place of business—the name of the applicant’s employer and the address of the place of business where the applicant is to be in charge (also a business address).

Examples of capacity in which activities may be performed—

•person in charge of a corporation’s business

•licensed employee of a licensee

Example of business address of an employed licensee—

the address of the person’s employer’s place of business where the person generally reports for work

(2)If the applicant intends to carry on business under the licence at more than 1 place, the applicant must state in the application the place the applicant intends to be the applicant’s principal place of business.

(3)A place of business or an address under this section must be a place where a document can be served personally.

(4)A place of business or an address must not be a post office box.

32   Particular persons can not make application

(1)A disqualified person can not make an application for a licence during the period for which the disqualified person is disqualified.

(2)A corporation that was the holder of a licence that was cancelled can not make an application for a licence unless the corporation satisfies the chief executive that, because of a genuine sale—

(a)no person who was a shareholder of, or held a beneficial interest in, the corporation when the licence was cancelled is a shareholder of, or holds a beneficial interest in, the corporation; and

(b)no person who was in a position to control or influence the affairs of the corporation when the licence was cancelled is in a position to control or influence the affairs of the corporation.

(3)A person who made an application for a licence that was refused can not make an application for a licence of the same category as the licence for which the person applied—

(a)for 3 months after the day the chief executive gives the person an information notice for the decision; or

(b)if the applicant applies to QCAT to review the chief executive’s decision and the decision is confirmed—for 3 months after the day the decision is confirmed.

(4)Subsection (3) does not apply if—

(a)the applicant is a corporation; and

(b)the applicant satisfies the chief executive that, because of a genuine sale—

(i)no person who was a shareholder of, or held a beneficial interest in, the corporation when the refused application was made is a shareholder of, or holds a beneficial interest in, the corporation; and

(ii)no person who was in a position to control or influence the affairs of the corporation when the refused application was made is in a position to control or influence the affairs of the corporation.

(5)In this section—

disqualified person means a person who, as a consequence of an order made by QCAT under section 186 or 188 or a court under section 227 or 228, is disqualified from holding a licence.

33   Requirement to give information or material about application or request

(1)This section applies to each of the following—

(a)an applicant for a licence;

(b)an applicant for renewal of a licence;

(c)an applicant for restoration of a licence;

(d)an applicant for the appointment or extension of the appointment of a nominated person mentioned in section 66(3) or 67(4) as a licensee’s substitute licensee;

(e)a licensee who has asked the chief executive to reactivate the licensee’s licence.

(2)The chief executive may, by written notice given to the applicant, require the applicant to give the chief executive within a stated reasonable period information or material the chief executive reasonably considers is needed to decide the application or request.

Example of that information or material—

information or material the chief executive reasonably considers is needed to establish the applicant’s or licensee’s suitability for the licence

(3)The applicant or licensee is taken to have withdrawn the application or request if, within the stated reasonable period, the applicant or licensee fails to comply with the chief executive’s requirement.

Division 8 Suitability of applicants and licensees

34   Suitability of applicants and licensees—individuals

(1)An individual is not a suitable person to hold a licence if the individual is—

(a)an insolvent under administration; or

(b)a person who has been convicted, in Queensland or elsewhere, within the preceding 5 years of a serious offence; or

(c)currently disqualified from holding a licence or registration certificate; or

(d)a person the chief executive decides under section 36 is not a suitable person to hold a licence.

(2)An individual who is not a suitable person to hold a licence can not hold a licence.

35   Suitability of applicants and licensees—corporations

(1)A corporation is not a suitable person to hold a licence if the corporation—

(a)has been convicted, in Queensland or elsewhere, within the preceding 5 years of a serious offence; or

(b)is currently disqualified from holding a licence; or

(c)is a person the chief executive decides under section 36 is not a suitable person to hold a licence.

(2)A corporation is also not a suitable person to hold a licence if an executive officer of the corporation—

(a)is an insolvent under administration; or

(b)has been convicted, in Queensland or elsewhere, within the preceding 5 years of a serious offence; or

(c)is currently disqualified from holding a licence or registration certificate; or

(d)is a person the chief executive decides under section 36 is not a suitable person to hold a licence.

(3)A corporation that is not a suitable person to hold a licence can not hold a licence.

36   Chief executive must consider suitability of applicants and licensees

(1)The chief executive must consider the following things in deciding whether a person is a suitable person to hold a licence—

(a)the character of the person;

(b)the character of the person’s business associates;

(c)whether the person held a licence or registration certificate under a relevant Act that was suspended or cancelled under the relevant Act;

(d)whether an amount has been paid from the fund because the person did, or omitted to do, something that gave rise to the claim against the fund;

(e)whether the person has been disqualified under a relevant Act from being the holder of a licence, registration certificate or similar authorisation;

(f)whether the person has been disqualified from managing corporations under the Corporations Act;

(g)whether, within the preceding 5 years, QCAT, the former tribunal or the District Court has made an order under this Act or PAMDA adverse to the person;

(h)for an individual—

(i)the individual’s criminal history; and

(ii)whether the individual has been an insolvent under administration; and

(iii)whether the individual has been convicted of an offence against a relevant Act or the Administration Act; and

(iv)whether the individual is capable of satisfactorily performing the activities of a licensee; and

(v)whether the individual’s name appears in the register of persons disqualified from managing corporations under the Corporations Act;

Note—

See the Corporations Act, section 1274AA (Register of disqualified company directors and other officers).

(i)for a corporation—

(i)whether the corporation has been placed in receivership or liquidation; and

(ii)whether an executive officer of the corporation has been an insolvent under administration; and

(iii)whether the corporation or an executive officer of the corporation has been convicted of an offence against a relevant Act or the Administration Act; and

(iv)whether each executive officer of the corporation is a suitable person to hold a licence;

(j)another thing the chief executive may consider under this Act.

(2)If the chief executive decides a person is not a suitable person to hold a licence, the chief executive must give the person an information notice about the decision within 14 days after making the decision.

(3)In this section—

fund includes the claim funds under PAMDA and the repealed Auctioneers and Agents Act 1971.

relevant Act means this Act, an Agents Act, PAMDA or a corresponding law.

37   Public trustee is a suitable person

The corporation sole called The Public Trustee of Queensland is taken to be a suitable person to hold a licence.

38   Chief executive of department is a suitable person

The chief executive of a department is taken to be a suitable person to hold a licence.

39   Defence Housing Australia is a suitable person

Defence Housing Australia is taken to be a suitable person to hold a licence.

40   Investigations about suitability of applicants and licensees

(1)The chief executive may make investigations about the following persons to help the chief executive decide whether a person is a suitable person to hold a licence—

(a)an applicant mentioned in section 33(1) or a licensee;

(b)if the applicant or licensee intends carrying on, or carries on, business in partnership or in conjunction with others—each member of the partnership or each person with whom the applicant or licensee intends carrying on, or carries on, business in partnership or in conjunction;

(c)if the applicant or licensee is a corporation—the corporation’s executive officers;

(d)a business associate of the applicant or licensee.

(2)Without limiting subsection (1), the chief executive may ask the commissioner of the police service for a report about the criminal history of any of the persons.

(3)The commissioner must give the report to the chief executive.

(4)However, the report is required to contain only criminal history in the commissioner’s possession or to which the commissioner has access.

(5)If the person’s criminal history includes a conviction recorded against the person, the commissioner’s report must be written.

(6)In this section—

applicant includes a nominated person mentioned in section 66(3) or 67(4).

41   Notice of change in criminal history

(1)This section applies if the commissioner of the police service reasonably suspects the criminal history of either of the following persons has changed—

(a)a person who is the holder of a licence;

(b)a person who is a nominated person mentioned in section 66(3) or 67(4) appointed as a substitute licensee or as a substitute real estate salesperson.

(2)The commissioner may notify the chief executive the person’s criminal history has changed.

(3)The notice must state the following—

(a)the person’s name and any other name the commissioner believes the person may use or may have used;

(b)the person’s date and place of birth;

(c)a brief description of the nature of the offence giving rise to the conviction or charge to which the change relates.

(4)The chief executive may confirm the commissioner’s suspicions under subsection (1).

(5)For a person who does not have a criminal history, there is taken to be a change in the person’s criminal history if the person acquires a criminal history.

(6)In this section—

criminal history, in relation to a person, includes a charge of an offence laid against a person that has not been dismissed.

offence includes alleged offence.

42   Costs of criminal history report

(1)The chief executive may require an applicant mentioned in section 33(1) or a licensee to pay the reasonable, but no more than actual, costs of obtaining a report under section 40 about—

(a)the applicant or licensee; or

(b)if the applicant or licensee intends carrying on, or carries on, business in partnership or in conjunction with others—each person with whom the applicant or licensee intends carrying on, or carries on, business in partnership or in conjunction; or

(c)if the applicant or licensee is a corporation—the corporation’s executive officers; or

(d)a business associate of the applicant or licensee; or

(e)if the applicant has made an application under section 66(3) or 67(4)—the person nominated by the applicant under section 66(3) or 67(4).

(2)The requirement is a criminal history costs requirement.

(3)The chief executive may notify the applicant or licensee of the requirement to pay a criminal history costs requirement—

(a)in the approved form; or

(b)on the department’s website; or

(c)in a written notice given by the chief executive to the applicant or licensee.

(4)If the criminal history costs requirement is made in a written notice given by the chief executive to the applicant or licensee, the notice must include a requirement for the costs to be paid within a stated reasonable period.

(5)The applicant or licensee is taken to have withdrawn the application if, within the stated reasonable period, the applicant or licensee fails to comply with the chief executive’s requirement to pay the criminal history costs requirement.

(6)The chief executive must refund to the applicant or licensee an amount paid under the requirement if—

(a)the chief executive refuses the application without asking for the report; or

(b)the applicant or licensee withdraws the application before the chief executive asks for the report.

(7)In this section—

applicant includes proposed applicant.

43   Use of information obtained under s 40 or 41

(1)Subsection (2) applies to the chief executive in considering information about a person obtained under section 40 or 41.

(2)Information about a conviction of the person may be used only for making a decision as to whether the person is, or continues to be, a suitable person to hold a licence.

(3)Subsection (4) applies to the chief executive in considering information about a person obtained under section 41.

(4)Information about a charge against the person may not be relied on as a basis for making a decision as to whether the person is, or continues to be, a suitable person to hold a licence.

44   Confidentiality of criminal history

(1)A public service employee performing functions under this Act must not, directly or indirectly, disclose to anyone else—

(a)a report about a person’s criminal history, or information contained in the report, given under section 40; or

(b)any of the contents of a notice given under section 41(2).

Maximum penalty—100 penalty units.

(2)However, the person does not contravene subsection (1) if—

(a)disclosure of the report or information to someone else is authorised by the chief executive to the extent necessary to perform a function under or relating to this Act; or

(b)the disclosure is otherwise required or permitted by law.

(3)The chief executive must destroy the following as soon as practicable after considering the person’s suitability to hold a licence—

(a)a written report about the person’s criminal history;

(b)a notice given under section 41(2) about the person.

Division 9 Eligibility for licence

Subdivision 1 Property agent licence

45   Eligibility for property agent licence

(1)An individual is eligible to obtain a property agent licence only if the individual—

(a)is at least 18 years; and

(b)has the educational or other qualifications approved by the chief executive for a property agent licence.

(2)The chief executive must publish the approved qualifications on the department’s website.

(3)An individual is to be taken to satisfy the requirement mentioned in subsection (1)(b) if the chief executive is satisfied the individual—

(a)has a comparable qualification to the qualification mentioned in subsection (1)(b); or

(b)within 2 years before the day the individual’s application for a property agent licence is received by the chief executive—

(i)either—

(A)if the licence applied for is an auctioneer licence—has been licensed as an auctioneer; or

(B)if the licence applied for is a real estate agent licence—has been licensed as a real estate agent; or

(ii)has been the holder of a comparable licence under PAMDA.

(4)A corporation is eligible to obtain an auctioneer licence only if a person in charge of the corporation’s auctioneer business is an auctioneer.

(5)A corporation is eligible to obtain a real estate agent licence only if a person in charge of the corporation’s real estate agency business is a real estate agent.

Subdivision 2 Resident letting agent licence

46   Eligibility for resident letting agent licence

(1)An individual is eligible to obtain a resident letting agent licence for a building complex only if the individual—

(a)is at least 18 years; and

(b)has the educational or other qualifications approved by the chief executive for a resident letting agent licence.

(2)The chief executive must publish the approved qualifications on the department’s website.

(3)An individual is taken to satisfy the requirement mentioned in subsection (1)(b) if the chief executive is satisfied the individual—

(a)has a comparable qualification to the qualification mentioned in subsection (1)(b); or

(b)within 2 years before the day the individual’s application for a resident letting agent licence is received by the chief executive—

(i)has been licensed as a resident letting agent or real estate agent; or

(ii)has been the holder of a comparable licence under PAMDA.

(4)A corporation is eligible to obtain a resident letting agent licence only if a person in charge of the corporation’s business is a resident letting agent.

Subdivision 3 Particular government entities

47   Public trustee is eligible for licence

The public trustee as a corporation sole is taken to be eligible for a licence.

48   Chief executive of department is eligible for licence

The chief executive of a department is taken to be eligible for a licence.

49   Defence Housing Australia is eligible for licence

Defence Housing Australia is taken to be eligible for a licence.

Division 10 Issue of licences

50   Chief executive may issue or refuse to issue licence

(1)The chief executive may decide to issue or refuse to issue a licence to an applicant.

(2)The chief executive may decide to issue a licence to an applicant only if the chief executive is satisfied—

(a)the applicant is a suitable person to hold a licence and—

(i)if the applicant intends carrying on business in partnership or in conjunction with others—each member of the partnership or each person with whom the applicant intends carrying on business in conjunction is a suitable person to hold a licence; and

(ii)if the applicant is a corporation—each executive officer of the corporation is a suitable person to hold a licence; and

(b)the applicant is eligible for a licence of the category of licence being applied for; and

(c)the application is made under sections 30 and 31.

(3)If the chief executive decides to refuse to issue the licence, the chief executive must give the applicant an information notice about the decision within 14 days after making the decision.

51   Licence—public trustee

(1)The chief executive may issue a licence to the public trustee in the public trustee’s capacity as a corporation sole in the name ‘The Public Trustee of Queensland’.

(2)A licence issued to the public trustee authorises an officer or employee of the public trustee to perform any activity authorised by the public trustee that the public trustee may perform under the licence.

(3)To remove any doubt, it is declared that an officer or employee performing an activity authorised by the public trustee is not required to be licensed or registered under this Act to perform the activity.

52   Licence—chief executive of department

(1)The chief executive may issue a licence to the chief executive of a department in the name ‘The Chief Executive of the (name of department)’.

(2)The licence is taken to be issued to the chief executive for the time being of the department.

(3)The chief executive of a department, as a licensee, is taken to represent the State.

(4)A licence issued to the chief executive of a department authorises an officer or employee of the department of which the chief executive is chief executive to perform any activity authorised by the chief executive that the chief executive may perform under the licence.

(5)To remove any doubt, it is declared that an officer or employee performing an activity authorised by the chief executive is not required to be licensed or registered under this Act to perform the activity.

53   Licence—Defence Housing Australia

(1)The chief executive may issue a licence to Defence Housing Australia in the name ‘Defence Housing Australia’.

(2)A licence issued to Defence Housing Australia authorises an officer or employee of the authority to perform any activity authorised by the authority that the authority may perform under the licence.

(3)To remove any doubt, it is declared that an officer or employee performing an activity authorised by the authority is not required to be licensed or registered under this Act to perform the activity.

54   Licence—conditions

(1)The chief executive may issue a licence on the conditions the chief executive considers necessary or desirable for the proper performance of the activities authorised by the licence.

(2)Without limiting subsection (1), a condition may—

(a)limit or prohibit the performance of an activity authorised under this Act or the Administration Act; or

(b)require a licensee to hold insurance of a kind and in an amount prescribed under a regulation.

(3)If the chief executive decides to issue a licence on condition, the chief executive must give the applicant an information notice about the decision within 14 days after making the decision.

Division 11 Restrictions on performing activities under licences

55   Restriction—corporations

(1)A corporation that holds a licence may perform an activity under its licence only if the activity may be performed by—

(a)a licensed person who is in charge of the corporation’s business; or

(b)a person permitted under section 84(2)(b)(ii)(B) to be in charge of a particular place, if the activity is performed at that place; or

(c)a liquidator or controller appointed under the Corporations Act of property of the corporation; or

(d)an administrator of the corporation appointed under the Corporations Act; or

(e)an administrator of a deed of company arrangement for the corporation appointed under the Corporations Act; or

(f)a receiver appointed under the Administration Act for property of the corporation.

(2)However, subsection (1) does not prevent a corporation that holds a real estate agent licence selling or attempting to sell, or offering for sale or resale, any property by way of auction if the auction is conducted by an auctioneer who is an employed licensee of the corporation.

(3)A corporation that is a former licensee may perform an activity authorised under the former licence if the activity is performed by a person mentioned in subsection (1)(b), (c), (d), (e) or (f).

(4)If a corporation that holds a licence or is a former licensee performs an activity it is not authorised to perform, it is taken to be a person who acts as a licensee without a licence for the performance of the activity.

(5)In this section—

former licensee means—

(a)a licensee under a licence that was previously in force; or

(b)a licensee under an existing licence.

56   Restriction—individuals

(1)An individual who is an employed licensee may perform an activity authorised under the individual’s licence only if the activity may also be performed by the individual’s employer under the employer’s licence.

Example—

E is a licensed employee of P, a property agent. E’s licence is not subject to a condition. However, P’s licence is subject to a condition that P deal only in business letting. Because of the condition, E is only authorised to deal in business letting under E’s licence during E’s employment with P and while P is subject to the condition.

(2)However, subsection (1) does not prevent an individual who holds an auctioneer licence selling or attempting to sell, or offering for sale or resale, any property by way of auction for the individual’s licensed employer.

(3)If the employed licensee performs an activity the employed licensee is not authorised to perform because of subsection (1), the employed licensee is taken to be a person who acts as a licensee without a licence for the performance of the activity.

57   Restriction—conditions

(1)This section applies to a licensee who performs an activity under the licensee’s licence that the licensee is not authorised to perform because of a condition on the licensee’s licence.

(2)The licensee is taken to be a person who acts as a licensee without a licence for the performance of the activity.

Note—

For the consequences of a licensee performing an activity that the licensee is not authorised to perform because of a condition on the licensee’s licence, see sections 97 and 100.

Division 12 Renewal and restoration of licences

Subdivision 1 Renewal

58   Application for renewal

(1)A licensee may only apply for renewal of the licensee’s licence before the licence expires.

(2)The application must—

(a)be made to the chief executive in the approved form; and

(b)state the term of the licence being applied for; and

(c)state the names and addresses of the licensee’s business associates; and

(d)be accompanied by—

(i)the application fee prescribed under a regulation; and

(ii)the licence renewal fee prescribed under a regulation; and

(iii)if the licensee is required as a condition of the licensee’s licence to hold insurance, proof of the currency of the insurance; and

(iv)if, before or when the application is made, a criminal history costs requirement is made of the licensee—the amount of the costs required to be paid; and

(v)if section 92B(1) applies to the licensee—a statement that the licensee has, for each CPD year ending within the term of the licensee’s current licence, complied with section 92B(1) or evidence that exceptional circumstances apply.

(3)The application must also be accompanied by—

(a)an audit report for all trust accounts kept by the licensee during the relevant audit period; or

(b)a statutory declaration by the licensee that the licensee did not operate a trust account during the relevant audit period.

(4)In this section—

relevant audit period, for a licensee’s licence, means the audit period ending immediately before the licence’s expiry date.

59   Chief executive may renew or refuse to renew licence

(1)The chief executive must consider the renewal application and may renew or refuse to renew the licence.

(2)The chief executive may renew the licence only if the chief executive is satisfied—

(a)the licensee is a suitable person to hold a licence and—

(i)if the licensee carries on business in partnership or in conjunction with others—each member of the partnership or each person with whom the licensee carries on business in conjunction is a suitable person to hold a licence; and

(ii)if the licensee is a corporation—each executive officer of the corporation is a suitable person to hold a licence; and

(b)the application is made under section 58; and

(c)the licensee meets the eligibility requirements, other than eligibility requirements of an educational nature, for the licence.

(3)If section 92B(1) applies to the licensee, the chief executive must, in deciding whether to renew or refuse to renew the licence, have regard to whether—

(a)the licensee has complied with section 92B(1) for each CPD year ending within the term of the licensee’s current licence; or

(b)the licensee has not complied with section 92B(1) for each CPD year ending within the term of the licensee’s current licence but exceptional circumstances apply.

(4)If the chief executive decides to refuse the application, the chief executive must give the applicant an information notice about the decision within 14 days after making the decision.

60   Licence taken to be in force while application for renewal is considered

If an application is made under section 58, the licensee’s licence is taken to continue in force from the day that it would, apart from this section, have expired until the licensee’s application for renewal is—

(a)decided under section 59; or

(b)withdrawn by the licensee; or

(c)taken to have been withdrawn under section 33(3) or 42(5).

Subdivision 2 Restoration

61   Application for restoration

(1)If a person’s licence expires, the person may apply for restoration of the licence.

(2)The application must—

(a)be made to the chief executive in the approved form; and

(b)be made within 3 months after the expiry; and

(c)state the term of the licence being applied for; and

(d)state the names and addresses of the person’s business associates; and

(e)be accompanied by—

(i)the application fee prescribed under a regulation; and

(ii)the licence renewal fee prescribed under a regulation; and

(iii)the licence restoration fee prescribed under a regulation; and

(iv)if the person was required as a condition of the person’s expired licence to hold insurance—proof of the currency of the insurance; and

(v)if, before or when the application is made, a criminal history costs requirement is made of the person—the amount of the costs required to be paid; and

(vi)if section 92B(1) applied to the licensee in relation to the expired licence—a statement that the licensee complied with section 92B(1) for each CPD year ending within the term of the licensee’s expired licence, or evidence that exceptional circumstances applied.

(3)The application must also be accompanied by—

(a)an audit report about all trust accounts maintained by the person during the relevant audit period; or

(b)a statutory declaration by the person that the person did not operate a trust account during the relevant audit period.

(4)In this section—

relevant audit period, for a person’s expired licence, means the audit period ending immediately before the licence expired.

62   Licence taken to be in force while application for restoration is considered

If an application is made under section 61, the person’s licence is taken to have continued in force from the day that it would, apart from this section, have expired until the person’s application for restoration is—

(a)decided under section 63; or

(b)withdrawn by the person; or

(c)taken to have been withdrawn under section 33(3) or 42(5).

63   Chief executive may restore or refuse to restore licence

(1)The chief executive must consider the restoration application and may decide to restore or refuse to restore the licence.

(2)The chief executive may decide to restore the licence only if the chief executive is satisfied—

(a)the person is a suitable person to hold a licence and—

(i)if the person carries on, or intends to carry on, business in partnership or in conjunction with others—each member of the partnership or each person with whom the person carries on business in conjunction is a suitable person to hold a licence; and

(ii)if the person is a corporation—each executive officer of the corporation is a suitable person to hold a licence; and

(b)the application is made under section 61; and

(c)the person meets the eligibility requirements, other than eligibility requirements of an educational nature, for the licence.

(3)If section 92B(1) applied to the licensee in relation to the expired licence, the chief executive must, in deciding whether to restore or refuse to restore the licence, have regard to whether—

(a)the licensee complied with section 92B(1) for each CPD year ending within the term of the licensee’s expired licence; or

(b)the licensee did not comply with section 92B(1) for each CPD year ending within the term of the licensee’s expired licence but exceptional circumstances applied.

(4)If the chief executive decides to refuse to restore the licence, the chief executive must give the person an information notice about the decision within 14 days after making the decision.

(5)If the chief executive decides to restore the licence—

(a)the licence is taken to have been renewed on the day it would, apart from section 62, have expired (the initial expiry date); and

(b)to remove any doubt, a thing done during the period starting on the initial expiry date and ending on the day the decision is made is taken to have been as validly done as it would have been if the licence had been renewed immediately before the initial expiry date.

Division 13 Dealings with licences

Subdivision 1 Licence not to be transferred, lent or borrowed

64   Transfer of licence prohibited

A licence may not be transferred.

65   Offence to sell, lend or borrow licence

(1)A licensee must not—

(a)sell, lend or hire out the licensee’s licence to someone else; or

(b)notify or advertise that the licensee’s licence is available for sale, loan or hire to someone else, whether licensed or not; or

(c)allow someone else to hold out the person is the holder of the licensee’s licence.

Maximum penalty—200 penalty units or 2 years imprisonment.

(2)A person must not buy, borrow or hire a licensee’s licence.

Maximum penalty—200 penalty units or 2 years imprisonment.

(3)If a person who is not the holder of an appropriate licence or the licensee’s substitute licensee has the effective or apparent management or control of a licensee’s business, the licensee is taken to have lent, and the person is taken to have borrowed, the licensee’s licence.

Subdivision 2 Substitute persons

66   Appointment of substitute licensee—principal licensee—individual

(1)A principal licensee may appoint an adult as the licensee’s substitute licensee for a period of not more than 30 days only if—

(a)the licensee will be absent from the licensee’s registered office for the period; and

(b)the adult consents to the appointment; and

(c)if the licensee is required as a condition of the licensee’s licence to hold insurance—the adult is covered by the insurance or holds insurance that complies with the requirements of the condition.

(2)The principal licensee must ensure—

(a)an appointment under subsection (1) and the substitute licensee’s consent to the appointment are in writing and state the period of appointment; and

(b)the appointment, consent and evidence of any insurance the substitute licensee is required to have are—

(i)kept at the licensee’s registered office; and

(ii)made available for immediate inspection by an inspector who asks to see them.

Maximum penalty—100 penalty units.

(3)A principal licensee who will be absent from the licensee’s registered office for a period of more than 30 days must apply to the chief executive in the approved form for the appointment or the extension of the appointment of an adult (nominated person) as the licensee’s substitute licensee.

Maximum penalty—200 penalty units.

(4)If the principal licensee is a person for whom an administrator has been appointed under the Guardianship and Administration Act 2000 or is deceased, the licensee’s representative may make the application under subsection (3).

(5)The application must be accompanied by—

(a)the nominated person’s signed consent to the appointment; and

(b)enough information about the nominated person to enable the chief executive to decide whether the person—

(i)is a suitable person to hold a licence; and

(ii)is sufficiently qualified to perform the licensee’s activities during the period; and

(iii)if the licensee is required as a condition of the licensee’s licence to hold insurance—is covered by the insurance or holds insurance that complies with the requirements of the condition; and

(c)the application fee prescribed under a regulation; and

(d)if, before or when the application is made, a criminal history costs requirement is made of the principal licensee—the amount of the costs required to be paid.

(6)In this section—

principal licensee means a principal licensee who is an individual.

representative, of a principal licensee, means—

(a)for a licensee for whom an administrator has been appointed under the Guardianship and Administration Act 2000—the licensee’s administrator; or

(b)for a deceased licensee—the licensee’s personal representative.

67   Appointment of substitute licensee—employed licensee or real estate salesperson in charge of a principal licensee’s business at a place

(1)This section applies if an employed licensee or real estate salesperson in charge of a principal licensee’s business at a place (the relevant person) will be absent from the place for any reason, other than the relevant person’s resignation or termination of employment.

(2)If the relevant person will be absent from the place for a period of not more than 30 days, the principal licensee may appoint an adult as—

(a)the employed licensee’s substitute licensee for the period if the adult consents to the appointment; or

(b)the real estate salesperson’s substitute real estate salesperson for the period if the adult consents to the appointment.

(3)The principal licensee must ensure an appointment under subsection (2) and the person’s consent to the appointment are—

(a)in writing and state the period of appointment; and

(b)kept at the principal licensee’s registered office; and

(c)made available for immediate inspection by an inspector who asks to see them.

Maximum penalty—100 penalty units.

(4)If the relevant person will be absent from the place for a period of more than 30 days, the principal licensee who employs the relevant person must apply to the chief executive in the approved form for the appointment or the extension of the appointment of an adult (nominated person) as—

(a)the employed licensee’s substitute licensee; or

(b)the real estate salesperson’s substitute real estate salesperson.

Maximum penalty—200 penalty units.

(5)The application must be accompanied by—

(a)the nominated person’s signed consent to the appointment; and

(b)enough information about the nominated person to enable the chief executive to decide whether the person—

(i)either—

(A)if the relevant person is an employed licensee—is, under division 8, a suitable person to hold a licence; or

(B)if the relevant person is a real estate salesperson—is, under part 5, division 4, a suitable person for registration as a real estate salesperson; and

(ii)is sufficiently qualified to perform the relevant person’s activities during the period; and

(c)the application fee prescribed under a regulation; and

(d)if, before or when the application is made, a criminal history costs requirement is made of the principal licensee—the amount of the costs required to be paid.

(6)In this section—

principal licensee includes—

(a)for a licensee for whom an administrator has been appointed under the Guardianship and Administration Act 2000—the licensee’s administrator; and

(b)for a deceased licensee—the licensee’s personal representative.

68   Chief executive may appoint or refuse to appoint substitute licensee

(1)The chief executive may decide to appoint or refuse to appoint—

(a)a nominated person mentioned in section 66(3) as a principal licensee’s substitute licensee; or

(b)a nominated person mentioned in section 67(4) as an employed licensee’s substitute licensee; or

(c)a nominated person mentioned in section 67(4) as a real estate salesperson’s substitute real estate salesperson.

(2)The chief executive may decide to appoint the nominated person only if the chief executive is satisfied the nominated person—

(a)either—

(i)if the relevant person is an employed licensee—is, under division 8, a suitable person to hold a licence; or

(ii)if the relevant person is a real estate salesperson—is, under part 5, division 4, a suitable person for registration as a real estate salesperson; and

(b)is sufficiently qualified to perform the relevant person’s activities during the period of the relevant person’s absence; and

(c)if the principal licensee is required as a condition of the principal licensee’s licence to hold insurance—is covered by the insurance or holds insurance that complies with the requirements of the condition.

(3)An appointment under this section may be made subject to the conditions the chief executive considers appropriate.

(4)The chief executive must give written notice of the appointment to the principal licensee and the substitute licensee.

(5)If the chief executive decides to refuse the application or to impose conditions on the appointment, the chief executive must give the principal licensee an information notice about the decision within 14 days after making the decision.

69   Substitute licensee

(1)On appointment, a substitute licensee or substitute real estate salesperson—

(a)must act as substitute for the principal licensee, employed licensee or real estate salesperson for whom the substitute is appointed; and

(b)is taken to be the principal licensee, employed licensee or real estate salesperson during the period of the appointment.

(2)A principal licensee, employed licensee or real estate salesperson for whom a substitute has been appointed must not act under the authority of—

(a)the principal licensee’s or employed licensee’s licence while the appointment continues; or

(b)the real estate salesperson’s registration certificate while the appointment continues.

Maximum penalty—200 penalty units.

(3)The appointment of the substitute licensee or real estate salesperson ends if—

(a)the period of the appointment ends; or

(b)the principal licensee gives written notice to end the appointment from a date stated in the notice—

(i)for a substitute licensee appointed under section 66(1) or 67(2)—to the substitute licensee; or

(ii)for a substitute licensee appointed under section 68—to the chief executive and the substitute licensee; or

(iii)for a substitute real estate salesperson appointed under section 67(2)—to the substitute real estate salesperson; or

(iv)for a substitute real estate salesperson appointed under section 68—to the chief executive and the substitute real estate salesperson; or

(c)the substitute licensee gives written notice to end the appointment from a date stated in the notice—

(i)for a substitute licensee appointed under section 66(1) or 67(2)—to the principal licensee who made the appointment; or

(ii)for a substitute licensee appointed under section 68—to the chief executive and the principal licensee who applied for the appointment; or

(iii)for a substitute real estate salesperson appointed under section 67(2)—to the principal licensee who made the appointment; or

(iv)for a substitute real estate salesperson appointed under section 68—to the chief executive and the principal licensee who applied for the appointment; or

(d)the chief executive revokes the substitute licensee’s or substitute real estate salesperson’s appointment; or

(e)the principal licensee’s or employed licensee’s licence or the real estate salesperson’s registration certificate is suspended or cancelled; or

(f)if the licensee is a principal licensee—the licensee stops carrying on business as a licensee.

70   Limitation on period of substitution

(1)A principal licensee may not appoint a substitute licensee for himself or herself for more than 12 weeks in any period of 12 months.

(2)A principal licensee may not appoint a substitute licensee for a principal licensee, employed licensee or real estate salesperson for more than 12 weeks in any period of 12 months.

(3)The chief executive may not appoint a substitute licensee for a principal licensee, employed licensee or a substitute real estate salesperson for a real estate salesperson for more than 26 weeks in any period of 12 months.

Subdivision 3 General

71   Amendment of licence conditions

(1)The chief executive may amend the conditions of a licence—

(a)on the licensee’s application; or

(b)on the order of QCAT after a disciplinary hearing; or

(c)on the chief executive’s own initiative.

Note—

QCAT may deal with the conditions of a person’s licence under section 186.

(2)An application under subsection (1)(a) must be made in the approved form and be accompanied by the application fee prescribed under a regulation.

(3)Before deciding to make an amendment under subsection (1)(a), the chief executive must be satisfied the licensee meets the requirements the chief executive considers the licensee must meet to be eligible for the amendment.

(4)Before deciding to make an amendment under subsection (1)(c), the chief executive must—

(a)give written notice to the licensee—

(i)of the particulars of the proposed amendment; and

(ii)that the licensee may make written submissions to the chief executive about the proposed amendment before a stated day, not later than 14 days after the notice is given to the licensee; and

(b)have regard to submissions made to the chief executive by the licensee before the stated day.

(5)Subsection (4) does not apply if the chief executive decides that the amendment must be made urgently—

(a)to avoid potential claims against the fund; or

(b)to ensure compliance with this Act or the Administration Act.

(6)If the chief executive decides to amend the conditions of a licence under subsection (1)(c), the chief executive must give the licensee an information notice about the decision within 14 days after making the decision.

(7)The amendment takes effect—

(a)on the day written notice of the amendment is given to the licensee; or

(b)if a later day is stated in the notice, on the stated day.

(8)If the chief executive decides to refuse to make an amendment requested under subsection (1)(a), the chief executive must give the applicant an information notice about the decision within 14 days after making the decision.

72   Return of licence for amendment or replacement

(1)The chief executive may require a licensee to produce the licensee’s licence for amendment or replacement within a stated period of not less than 14 days if the chief executive intends to—

(a)amend the conditions of the licence under section 71; or

(b)replace the licence under section 81(5).

(2)The licensee must comply with a requirement under subsection (1), unless the licensee has a reasonable excuse.

Maximum penalty—100 penalty units.

73   Return of licence when suspended or cancelled

(1)A person whose licence has been suspended or cancelled must return the licence to the chief executive within 14 days after the suspension or cancellation, unless the person has a reasonable excuse.

Maximum penalty—100 penalty units.

(2)Subsection (1) does not apply if section 76(6) or 77(2) applies.

74   Surrender of licence

(1)A licensee may surrender the licensee’s licence by giving written notice to the chief executive and returning the licence.

(2)A licence surrendered under this section stops having effect on the day it is surrendered.

75   Licence may be deactivated

(1)A licensee may ask the chief executive to deactivate the licensee’s licence.

(2)A request under subsection (1) must be made in the approved form and be accompanied by the licensee’s licence and the fee prescribed under a regulation.

(3)The licence is taken to be deactivated when the request, the licence and the prescribed fee are received by the chief executive under subsection (2).

(4)A licence that is deactivated does not authorise the licensee to perform an activity under the authority of the licence.

(5)The deactivation of a licence under this section does not—

(a)affect the term of the licence; or

(b)entitle the licensee to a refund of fees relating to the licence for the balance of the licence’s term.

(6)The holder of a deactivated licence may apply to have the licence renewed under section 58 or restored under section 61 as a deactivated licence at a reduced fee prescribed under a regulation.

(7)A licensee may ask the chief executive to reactivate the licence.

(8)However, if the licence has been deactivated for 5 years or more, the licence may be reactivated only if the licensee satisfies any educational or other requirements applying under this Act to an applicant for a licence of the type to be reactivated.

(9)A request under subsection (7) must be made in the approved form and be accompanied by the fee prescribed under a regulation.

Division 14 Immediate suspension and cancellation of licences

76   Immediate suspension

(1)This section applies if—

(a)the chief executive reasonably considers that a licensee’s licence was obtained, or renewed or restored, because of materially incorrect or misleading information; or

(b)the chief executive reasonably considers that an irregularity or deficiency exists in a licensee’s trust account; or

(c)the chief executive is satisfied a licensee has failed to file an audit report as required under the Administration Act, section 34; or

(d)a receiver is appointed under the Administration Act, section 47 over property—

(i)held by a licensee; or

(ii)held by another person for a licensee; or

(iii)recoverable by a licensee; or

(e)the chief executive reasonably considers that a licensee—

(i)has contravened or is contravening this Act or the Administration Act; or

(ii)has contravened PAMDA; or

(iii)is likely or proposing to engage in conduct that would contravene this Act or the Administration Act.

(2)The chief executive may, whether or not disciplinary proceedings have been started under this Act—

(a)suspend the licensee’s licence; or

(b)without limiting paragraph (a), for subsection (1)(b), suspend a licence held by an employee of the licensee if the chief executive considers, on reasonable grounds, the employee is responsible in any way for the irregularity or deficiency in the licensee’s trust account.

(3)If the chief executive suspends a licence for a reason mentioned in subsection (1)(a), (b), (d) or (e), the licence may be suspended for the period, of not more than 28 days, and on the conditions, the chief executive decides.

(4)If the chief executive suspends the licence for the reason mentioned in subsection (1)(c), the licence is suspended until whichever of the following happens first—

(a)the licensee files the required audit report;

(b)an application to QCAT for the cancellation of the licence is heard and decided.

(5)The chief executive must give the licensee an information notice about the suspension within 14 days after suspending the licensee’s licence.

(6)The licensee must return the licence to the chief executive within 14 days after the licensee receives the notice, unless the person has a reasonable excuse.

Maximum penalty for subsection (6)—100 penalty units.

77   Immediate cancellation

(1)A licensee’s licence is cancelled on the happening of any of the following events—

(a)the licensee is convicted of a serious offence;

(b)if the licensee is an individual, the licensee is an insolvent under administration;

(c)if the licensee is a corporation, the licensee has been wound up or deregistered under the Corporations Act.

(2)The licensee must return the licence to the chief executive within 14 days after the happening of an event mentioned in subsection (1), unless the licensee has a reasonable excuse.

Maximum penalty for subsection (2)—100 penalty units.

Division 15 General provisions about licences

78   Form of licence

(1)A licence must be in the approved form.

(2)However, the chief executive may approve—

(a)a form of licence for office display purposes; and

Example—

a licence in the form of a certificate that may be framed and displayed in an office

(b)a form of licence for personal identification purposes.

(3)The chief executive may also issue a form of licence for a corporation endorsed with the categories of licence issued in the corporation’s name.

(4)The licence must contain the following particulars—

(a)the name of the licensee;

(b)the date of issue of the licence;

(c)the expiry date of the licence;

(d)other particulars prescribed under a regulation.

79   Requirement to keep copy of licence available for inspection

(1)A licensee that is a corporation must keep a copy of the licensee’s licence available for inspection at each place of business of the licensee.

Maximum penalty—100 penalty units.

(2)A principal licensee must keep a copy of the principal licensee’s licence available for inspection at each place of business of the principal licensee.

Maximum penalty—100 penalty units.

(3)A licensee employed by a principal licensee must keep a copy of the licensee’s licence available for inspection at each place of business where the licensee is employed as an employed licensee.

Maximum penalty—100 penalty units.

80   Term of licence

(1)A licence may be issued for a 1-year or 3-year term.

(2)However, a regulation may prescribe the circumstances under which a licence may be issued or renewed for a shorter term.

Example—

A licence may be issued for a shorter term to ensure multiple licences held by the same person expire on the same day.

81   Replacement licences

(1)A licensee may apply to the chief executive for the replacement of a lost, stolen, destroyed or damaged licence.

(2)The application must be made in the approved form.

(3)The chief executive must grant the application if the chief executive is satisfied the licence has been lost, stolen, destroyed or damaged in a way to require its replacement.

(4)If the chief executive grants the application, the chief executive must issue another licence to the applicant to replace the lost, stolen, destroyed or damaged licence.

(5)The chief executive may also replace a licence if—

(a)either—

(i)the licensee has given written notice to the chief executive of a prescribed change under section 83; or

(ii)the chief executive reasonably believes a prescribed change for the licensee has happened; and

(b)the chief executive is satisfied the prescribed change requires a replacement of the licence.

(6)If the chief executive replaces a licence under this section—

(a)the licence continues to be subject to the same conditions and term to which the licence was subject before being replaced; and

(b)the holder of the licence must pay the chief executive the fee prescribed under a regulation.

82   Register of licences

(1)The chief executive must keep a register of licences and applications for licences (licence register).

(2)The licence register must contain the following particulars—

(a)for each applicant for a licence—

(i)the applicant’s name; and

(ii)if the applicant intends to carry on business under the licence, the place where the applicant intends to carry on business; and

(iii)the category of licence applied for; and

(iv)the date of the application; and

(v)the application number;

(b)for each licensee—

(i)the licensee’s name; and

(ii)the licensee’s registered office; and

(iii)the category of the licensee’s licence; and

(iv)the dates of issue and expiry of the licensee’s current licence; and

(v)any conditions imposed on the licence; and

(vi)if the licensee is a corporation, the name of the individual in charge of the licensee’s business at the licensee’s registered office; and

(vii)if the licensee is a director of a licensed corporation, the name of the licensed corporation; and

(viii)if the licensee is an employee of another licensee, the name of the licensee’s employer; and

(ix)the licensee’s licence number; and

(x)particulars of any surrender, suspension or cancellation of the licensee’s licence.

(3)A person may, on payment of the fee prescribed under a regulation, inspect, or get a copy of details in, the part of the register containing the particulars mentioned in subsection (2)—

(a)at a place or places decided by the chief executive; or

(b)by using a computer.

(4)A person may pay the fee, in advance or in arrears, under an arrangement approved by the chief executive.

(5)The register may be kept in any way the chief executive considers appropriate.

(6)In this section—

contain includes record and store.

83   Licensees to notify chief executive of changes in circumstances

(1)A licensee must give written notice to the chief executive of a prescribed change in the licensee’s circumstances within 14 days after the change.

Maximum penalty—100 penalty units.

(2)In this section—

prescribed change means a change prescribed under a regulation.

Part 3    Property agents and resident letting agents generally

Division 1 Conduct provisions

Subdivision 1 Carrying on business

84   Who must be in charge of a property agent’s business at a place

(1)A property agent who is an individual and a principal licensee must—

(a)be in charge of the agent’s business at the agent’s registered office; and

(b)if the property agent has more than 1 place of business—ensure the following at each other place of business—

(i)for a place of business that is a resident letting agency—a real estate agent, or resident letting agent, who is an individual is in charge of the agent’s business at the place of business; or

(ii)for a place of business that is not a resident letting agency—

(A)if the agent is an auctioneer—an auctioneer who is an individual is in charge of the auctioneer’s business at the place of business; or

(B)if the agent is a real estate agent—a real estate agent who is an individual, or a real estate salesperson whose registration certificate is not subject to conditions, is in charge of the agent’s real estate agency business at the place of business.

Maximum penalty—200 penalty units.

(2)A property agent that is a corporation and a principal licensee (a corporate agent) must—

(a)ensure—

(i)if the corporate agent is an auctioneer—the individual in charge of the corporate agent’s auctioneer business at its registered office is an auctioneer; or

(ii)if the corporate agent is a real estate agent—the individual in charge of the corporate agent’s real estate agency business at its registered office is a real estate agent; and

(b)if the corporate agent has more than 1 place of business—ensure the following at each other place of business—

(i)that is a resident letting agency—a real estate agent, or resident letting agent, who is an individual is in charge of the corporate agent’s business at the place of business;

(ii)that is not a resident letting agency—

(A)if the corporate agent is an auctioneer—an auctioneer who is an individual is in charge of the corporate agent’s auctioneer business at the place of business; or

(B)if the corporate agent is a real estate agent—a real estate agent who is an individual, or a real estate salesperson whose registration certificate is not subject to any conditions, is in charge of the corporate agent’s real estate agency business at the place of business.

Maximum penalty—

(a)for an individual guilty under the Criminal Code, chapter 2 of an offence—200 penalty units; or

(b)for a corporation—1,000 penalty units.

(3)An individual must not be in charge of a property agent’s business at more than 1 place.

Maximum penalty—200 penalty units.

(4)It is not an offence against subsection (1) or (2) for a property agent who is an individual to be in charge of more than 1 place of business if each place of business is on land contiguous to land on which the other place of business is located.

(b)for an expired registration certificate other than a registration certificate as a commercial agent—the registration certificate or licence or licences that the expired registration certificate would have become under section 240 if it had still been in force immediately before the commencement;

(c)for an expired registration certificate as a commercial agent—registration as a subagent under the Debt Collectors Act.

(3)For the purposes of—

(a)the application; and

(b)deciding the application; and

(c)restoring the expired licence or registration certificate; and

(d)any review or appeal in relation to the application;

the expired licence or registration certificate is taken to be the relevant authority.

(4)If an application for the restoration of the expired licence or registration certificate is made under the relevant Act, the licence or registration certificate is taken to continue in force, as the relevant authority, until the application is—

(a)decided under the relevant Act; or

(b)withdrawn under the relevant Act.

(5)To remove any doubt, it is declared that if the application is granted, the restoration must be given effect as if the expired licence or registration certificate were the relevant authority.

256   Effect of previous refusals of applications

(1)This section applies to a person who made an application for a licence or registration certificate under PAMDA that was refused before the commencement.

(2)The person can not make an application for a licence or registration under the Motor Dealers and Chattel Auctioneers Act, Debt Collectors Act or this Act—

(a)for 3 months after the day the chief executive gave the person an information notice for the refusal under PAMDA; or

(b)if the applicant applies to QCAT to review the chief executive’s decision and the decision is confirmed—for 3 months after the day the decision is confirmed.

(3)This section does not apply to a person if—

(a)the person is a corporation; and

(b)the person satisfies the chief executive that, because of a genuine sale—

(i)no person who was a shareholder of, or held a beneficial interest in, the corporation when the refused application was made is a shareholder of, or holds a beneficial interest in, the corporation; and

(ii)no person who was in a position to control or influence the affairs of the corporation when the refused application was made is in a position to control or influence the affairs of the corporation.

257   Continuation of reviews under PAMDA

(1)Subsection (2) applies if—

(a)a person applied to QCAT, under PAMDA, section 501, for a review of a decision of the chief executive; and

(b)the review had not been decided before the commencement.

(2)QCAT may hear, or continue to hear, and decide the review under PAMDA as if it had not been repealed.

(3)Subsections (4) and (5) apply if—

(a)a person could have applied, under PAMDA, section 501, for a review of a decision of the chief executive; but

(b)the person had not applied before the commencement.

(4)The person may apply for a review of the decision under PAMDA, and QCAT may hear and decide the review under PAMDA, as if PAMDA had not been repealed.

(5)Subsection (6) applies if—

(a)the review relates to a licence other than a transitioned licence, or a registration certificate other than a transitioned certificate; and

(b)the effect of the review is that a licence or registration certificate must be granted or restored.

(6)The grant or restoration must be given effect in relation to—

(a)if the review relates to a licence or a registration certificate other than a registration certificate as a commercial subagent—the licence or licences or registration certificate mentioned in the table in section 239(2) or 240(2) opposite the licence or registration certificate; or

(b)if the review relates to a registration certificate as a commercial agent—registration as a subagent under the Debt Collectors Act.

Division 3 Provisions about pre-commencement conduct

258   Disciplinary action relating to pre-commencement conduct

(1)Subsection (2) applies if, before the commencement, a ground existed for starting disciplinary action under PAMDA against a former licensee or former registered employee.

(2)Prescribed action may be taken against the former licensee or former registered employee on that ground under the relevant Act as if the ground were a ground for starting a proceeding for the prescribed action under the relevant Act.

(3)If, before the commencement, QCAT had started but not finished disciplinary action under PAMDA, the action may be finished under PAMDA as if that Act had not been repealed.

(4)If the decision under subsection (3) applies to a licence or registration certificate under PAMDA that is a transitioned licence or licences or transitioned certificate, the decision must be given effect under the relevant Act in relation to the transitioned licence or licences or transitioned certificate.

(5)In this section—

former licensee means a person who held a licence under PAMDA at any time within 3 years before a proceeding is started under subsection (2).

former registered employee means a person who held a registration certificate under PAMDA at any time within 1 year before a proceeding is started under subsection (2).

prescribed action means—

(a)for the Debt Collectors Act—making an order under section 116 of that Act; or

(b)otherwise—disciplinary action.

relevant Act, for a licence or registration certificate under PAMDA that is not a transitioned licence, means the relevant Act for the licence or licences or registration certificate that the licence or certificate would have become under section 239(2) or 240(2) if it had still been in force immediately before the commencement.

259   Injunctions relating to pre-commencement conduct

(1)An existing injunction continues to be a valid injunction under the relevant Act according to its terms.

(2)The provisions of the relevant Act relating to injunctions apply to an existing injunction.

(3)If an existing injunction relates to a person’s existing licence, the injunction is taken to relate to the person’s transitioned licence.

(4)If an existing injunction relates to a person’s existing registration certificate, the injunction is taken to relate to the person’s transitioned licence or licences or transitioned certificate.

(5)The District Court may grant an injunction under a relevant Act, in addition to any other power to grant injunctions under the relevant Act, if the court is satisfied—

(a)a person has, before the commencement, engaged in conduct that constituted—

(i)a contravention of PAMDA or a repealed code of conduct; or

(ii)an attempt to contravene PAMDA or a repealed code of conduct; or

(iii)aiding, abetting, counselling or procuring a person to contravene PAMDA or a repealed code of conduct; or

(iv)inducing or attempting to induce, whether by threats, promises or otherwise, a person to contravene PAMDA or a repealed code of conduct; or

(v)being in any way, directly or indirectly, knowingly concerned in, or party to, the contravention by a person of PAMDA or a repealed code of conduct; or

(vi)conspiring with others to contravene PAMDA or a repealed code of conduct; and

(b)the conduct would result in the grant of an injunction under the relevant Act if the conduct had happened after the commencement in relation to the relevant Act.

(6)An application under subsection (5) may be made by—

(a)the chief executive; or

(b)a person aggrieved by the respondent’s conduct.

(7)If, before the commencement—

(a)the chief executive applied to the District Court for an injunction under PAMDA, section 564; and

(b)the District Court has not decided the application;

the application may be heard and decided under PAMDA as if it had not been repealed.

(8)In this section—

existing injunction means an injunction granted by the District Court under PAMDA and in force immediately before the commencement.

relevant Act means—

(a)for an injunction relating to conduct, or conduct, of a kind regulated by the Debt Collectors Act—the Debt Collectors Act; or

(b)for an injunction relating to conduct, or conduct, of a kind regulated by the Motor Dealers and Chattel Auctioneers Act—the Motor Dealers and Chattel Auctioneers Act; or

(c)for an injunction relating to conduct, or conduct, of a kind regulated by this Act—this Act.

260   Undertakings relating to pre-commencement conduct

(1)An existing undertaking continues to be a valid undertaking under the relevant Act according to its terms.

(2)The provisions of the relevant Act relating to undertakings apply to an existing undertaking.

(3)If an existing undertaking relates to a person’s existing licence, the undertaking is taken to relate to the person’s transitioned licence.

(4)If an existing undertaking relates to a person’s existing registration certificate, the undertaking is taken to relate to the person’s transitioned licence or licences or transitioned certificate.

(5)If the chief executive reasonably believes a person has, before the commencement, contravened or been involved in a contravention of PAMDA or a repealed code of conduct, the chief executive may ask for an undertaking under the relevant Act as if—

(a)a reference to ‘this Act’ in the provisions of the relevant Act about undertakings were a reference to PAMDA; and

(b)a reference to a ‘prescribed conduct provision’ in the provisions of the relevant Act about undertakings were a reference to the repealed code of conduct.

(6)If, before the commencement—

(a)the chief executive applied to the District Court for an order under PAMDA, section 571; and

(b)the District Court has not decided the application;

the application may be heard and decided under PAMDA as if it had not been repealed.

(7)In this section—

existing undertaking means an undertaking given by a person under PAMDA and in force immediately before the commencement.

relevant Act means—

(a)for an undertaking relating to conduct, or conduct, of a kind regulated by the Debt Collectors Act—the Debt Collectors Act; or

(b)for an undertaking relating to conduct, or conduct, of a kind regulated by the Motor Dealers and Chattel Auctioneers Act—the Motor Dealers and Chattel Auctioneers Act; or

(c)for an undertaking relating to conduct, or conduct, of a kind regulated by this Act—this Act.

261   Proceedings for offences under PAMDA

(1)This section applies if a person is alleged to have committed an offence against PAMDA before the commencement.

(2)Without limiting the Acts Interpretation Act 1954, section 20, proceedings for the offence may be started or continued, and a court may hear and decide the proceedings under PAMDA, as if it had not been repealed.

(3)Subsection (2) applies despite the Criminal Code, section 11.

262   Existing infringement notice offences

(1)This section applies if—

(a)an infringement notice offence under the State Penalties Enforcement Act 1999 was committed against PAMDA by a person before the commencement; and

(b)no infringement notice under the State Penalties Enforcement Act 1999 had been served before the commencement on the person for the offence.

(2)Without limiting the Acts Interpretation Act 1954, section 20, an infringement notice may be served on the person, and the infringement notice may be dealt with, as if PAMDA had not been repealed.

263   Existing fines and fees

(1)A fine ordered to be paid to the chief executive under PAMDA that has not been paid before the commencement may be recovered after the commencement as a debt owing to the chief executive in a court with jurisdiction to recover debts up to the amount of the fine.

(2)A fee incurred under PAMDA that has not been paid before the commencement may be recovered after the commencement as a debt owing to the chief executive in a court with jurisdiction to recover debts up to the amount of the fee.

264   Return of beneficial interest if in form of commission

If proceedings for an offence against a provision mentioned in column 1 of the following table are started or continued under section 261, and the proceedings result in a person being convicted of an offence, the provision mentioned in column 2 of the following table applies to the person and the court convicting the person as if PAMDA had not been repealed—

Offence provision	Provision providing for return of beneficial interest
PAMDA, section 145(2) or (3)	PAMDA, section 145A
PAMDA, section 184(2) or (3)	PAMDA, section 184A
PAMDA, section 222(2) or (3)	PAMDA, section 222A
PAMDA, section 292(2) or (3)	PAMDA, section 292A

265   Marketeer proceeding relating to pre-commencement conduct

(1)If, before the commencement, a ground existed for starting a marketeer proceeding against a person under PAMDA, a marketeer proceeding may be taken against the person on that ground under PAMDA as if it had not been repealed.

(2)If, before the commencement, QCAT had started but not finished a marketeer proceeding under PAMDA, the marketeer proceeding may be finished under PAMDA as if it had not been repealed.

Division 4 Preservation of existing rights of buyers

266   Buyer’s rights if notice about land not given or materially defective continue

PAMDA, sections 150, 189 and 227 continue to apply to a contract for the sale of land entered into before the commencement as if PAMDA had not been repealed.

267   PAMDA, ch 11 continues to apply to existing relevant contracts

(1)This section applies to a relevant contract as defined under PAMDA, section 364 entered into before the commencement that has not settled.

(2)PAMDA, chapter 11 continues to apply to the relevant contract as if PAMDA had not been repealed.

268   Statutory warranty for used motor vehicles sold by pre-commencement auctioneers

(1)This section applies if—

(a)before the commencement, a pre-commencement auctioneer sold a warranted vehicle as mentioned in PAMDA, section 237(1) and not as mentioned in PAMDA, section 237(2); and

(b)on the commencement, the warranty period under PAMDA, section 236 for the vehicle had not ended.

(2)The relevant warranty provisions continue to apply in relation to the warranted vehicle as if PAMDA had not been repealed.

(3)In this section—

pre-commencement auctioneer means an auctioneer under PAMDA, schedule 2.

relevant warranty provisions means—

(a)PAMDA, sections 242 to 249; and

(b)any other provisions of PAMDA relevant to the interpretation of the provisions mentioned in paragraph (a).

warranted vehicle means a class A warranted vehicle, or a class B warranted vehicle, under PAMDA, schedule 2.

269   Statutory warranty for used motor vehicles sold by pre-commencement motor dealer

(1)This section applies if—

(a)before the commencement, a pre-commencement motor dealer sold a warranted vehicle as mentioned in PAMDA, section 315(1) and not as mentioned in PAMDA, section 315(2); and

(b)on the commencement, the warranty period under PAMDA, section 314 for the vehicle had not ended.

(2)The relevant warranty provisions continue to apply in relation to the warranted vehicle as if PAMDA had not been repealed.

(3)In this section—

pre-commencement motor dealer means a motor dealer under PAMDA, schedule 2.

relevant warranty provisions means—

(a)PAMDA, sections 318 to 325; and

(b)any other provisions of PAMDA relevant to the interpretation of the provisions mentioned in paragraph (a).

warranted vehicle means—

(a)a class A warranted vehicle, or a class B warranted vehicle, under PAMDA, schedule 2; or

(b)a restorable vehicle under PAMDA, schedule 2 for which the buyer did not waive the statutory warranty under PAMDA, section 316A(2).

Division 5 Other provisions

270   Existing reference committee

(1)A community representative whose appointment to a reference committee under PAMDA, section 528AA was current immediately before the commencement continues to hold the appointment as a community representative under this Act for the unexpired term of the appointment.

(2)If the appointment was subject to a condition, the person’s appointment continues to be subject to the condition.

(3)If, under PAMDA, section 528AC, the reference committee has authorised the chief executive to make an application to QCAT for a public examination under PAMDA, chapter 14, part 5, division 8, the authorisation continues to be effective for this Act.

271   Existing registers

A person may inspect or get a copy of details in any of the following kept under PAMDA to the same extent, and on payment of any fee, that would apply if PAMDA had not been repealed—

(a)the licence register;

(b)the registration certificate register;

(c)the register of undertakings.

272   Refund of fees paid under PAMDA

A regulation under this Act or an Agents Act may provide for the refunding of fees paid under PAMDA.

Part 15    Transitional provisions for Residential Tenancies and Rooming Accommodation and Other Legislation Amendment Act 2024

273   Application of s 92B to licensees holding existing licences

(1)Subsection (2) applies to a licensee who holds a licence that is—

(a)for a term of 1 year or more; and

(b)in force on the commencement.

(2)Section 92B does not apply to the licensee until the start of the first CPD year for the licence after the commencement.

(3)Subsection (4) applies to a licensee who holds a licence that is—

(a)for a term of less than 1 year; and

(b)in force on the commencement.

(4)Section 92B applies to the licensee only—

(a)if the licence is renewed; and

(b)from the start of the next CPD year for the licence.

274   Application of s 151B to real estate salespersons holding existing registration certificates

(1)Subsection (2) applies to a real estate salesperson who holds a registration certificate that is—

(a)for a term of 1 year or more; and

(b)in force on the commencement.

(2)Section 151B does not apply to the salesperson until the start of the first CPD year for the registration certificate after the commencement.

(3)Subsection (4) applies to a real estate salesperson who holds a registration certificate that is—

(a)for a term of less than 1 year; and

(b)in force on the commencement.

(4)Section 151B applies to the salesperson only—

(a)if the registration certificate is renewed; and

(b)from the start of the next CPD year for the registration certificate.

Schedule 1 Decisions subject to review

section 176

section 36(2)	Chief executive must consider suitability of applicants and licensees
section 50(1)	Chief executive may issue or refuse to issue licence
section 54(1)	Licence—conditions
section 59(1)	Chief executive may renew or refuse to renew licence
section 63(1)	Chief executive may restore or refuse to restore licence
section 68(1)	Chief executive may appoint or refuse to appoint substitute licensee
section 71(1)	Amendment of licence conditions
section 76(2)	Immediate suspension
section 121(2)	Chief executive must consider suitability of applicants
section 128(1)	Chief executive may issue or refuse to issue registration certificate
section 129(1)	Registration certificate—conditions
section 131(1)	Chief executive may renew or refuse to renew registration certificate
section 135(1)	Chief executive may restore or refuse to restore registration certificate
section 138(1)	Amendment of registration certificate conditions
section 142(2)	Immediate suspension

Schedule 2 Dictionary

section 13

Administration Act means the Agents Financial Administration Act 2014.

Agents Act means—

(a)the Debt Collectors (Field Agents and Collection Agents) Act 2014; or

(b)the Motor Dealers and Chattel Auctioneers Act 2014.

approved form see section 234.

arrangement includes agreement, promise, scheme, transaction (with or without consideration), understanding and undertaking (whether express or implied).

associate, of a person, means—

(a)a property agent who acts, for a sale of property, in conjunction with a property agent appointed for section 102 to sell the property; or

(b)a spouse, parent, brother, sister or child of the person; or

Note—

A reference to a spouse includes a de facto partner. For definitions of spouse and de facto partner, see the Acts Interpretation Act 1954, section 32DA and schedule 1.

(c)a child of the person’s spouse.

auctioneer see section 14.

auctioneer licence means an auctioneer licence issued under section 50.

audit period see the Administration Act, section 33.

audit report see the Administration Act, section 33.

beneficial interest see section 153.

body corporate means—

(a)a body corporate under the Building Units and Group Titles Act 1980; or

(b)a body corporate for a leasehold building units plan under the South Bank Corporation Act 1989; or

(c)a body corporate under the Body Corporate and Community Management Act 1997; or

(d)a community body corporate under the Mixed Use Development Act 1993.

building complex means—

(a)a building on a single building units plan under the Building Units and Group Titles Act 1980; or

(b)a building or buildings on a single group titles plan under the Building Units and Group Titles Act 1980; or

(c)a building or buildings shown on a single leasehold building units plan under the South Bank Corporation Act 1989; or

(d)a building or buildings on scheme land in a single community titles scheme or a layered arrangement of community title schemes under the Body Corporate and Community Management Act 1997; or

(e)a building on the site for a mixed use scheme under the Mixed Use Development Act 1993.

business address, of a licensee, see section 31(1)(b).

business associate, of an applicant for a licence or a licensee, means a person with whom the applicant or licensee intends to carry on, or carries on, business under a licence.

buyer, for part 7, see section 159.

chattel auctioneer licence, for part 14, see section 238.

civil jurisdiction, for an amount that is the limit of a court’s civil jurisdiction, means an amount equal to the maximum amount that may be claimed in a personal action in the civil jurisdiction of the court.

client, for part 4, see section 102(1) or (3).

commencement, for part 14, see section 238.

commercial scale appointment, for appointment of a property agent to sell residential property under a sole or exclusive agency, means an appointment for the sale of—

(a)3 or more residential properties; or

(b)a lot in a community titles scheme as part of the sale of management rights to the person who is to become the letting agent for the community titles scheme.

commissioner for fair trading means the commissioner for fair trading under the Fair Trading Act 1989.

community titles scheme see the Body Corporate and Community Management Act 1997, section 10.

comparable certificate, under PAMDA, means a certificate of registration as any of the following under that Act—

(a)real estate agent salesperson;

(b)pastoral house salesperson;

(c)property developer salesperson;

(d)trainee auctioneer.

comparable licence, under PAMDA—

(a)for a property agent licence, means any of the following licences under that Act—

(i)real estate agent’s licence;

(ii)pastoral house auctioneer’s licence;

(iii)pastoral house licence;

(iv)pastoral house director’s licence;

(v)pastoral house manager’s licence;

(vi)auctioneer’s licence; or

(b)for a resident letting agent licence, means a resident letting agent licence under that Act.

comparative market analysis, for an offered property, means a document comparing the offered property with at least 3 properties sold within the previous 6 months that are of a similar standard or condition to the offered property and are within 5km of the offered property.

completes, a residential property sale, see section 18.

computer means a mechanical, electronic or other device for the processing of data.

conviction includes a plea of guilty or a finding of guilt by a court, but does not include a plea of guilty or a finding of guilt by a court if no conviction is recorded by the court.

cooling-off period, for part 7, see section 166.

corresponding law means a law of another State or New Zealand that provides for the same matter as this Act or a provision of this Act.

CPD requirements—

(a)for a licensee—see section 92A; or

(b)for a real estate salesperson—see section 151A.

CPD year—

(a)for a licence—see section 92A; or

(b)for a registration certificate—see section 151A.

criminal history, of a person, means the person’s criminal history as defined under the Criminal Law (Rehabilitation of Offenders) Act 1986, other than for a conviction—

(a)to which the rehabilitation period under the Criminal Law (Rehabilitation of Offenders) Act 1986 has expired under that Act; and

(b)that is not revived as prescribed by section 11 of that Act.

criminal history costs requirement see—

(a)generally, for an applicant or licensee—section 42(2); or

(b)for an applicant for, or for the renewal or restoration of, registration as a real estate salesperson or a real estate salesperson—section 124(2).

debt collector licence, for part 14, see section 238.

Debt Collectors Act, for part 14, see section 238.

debt collector subagent registration certificate, for part 14, see section 238.

disciplinary proceeding means a disciplinary proceeding under section 173.

domestic building contract see the Queensland Building and Construction Commission Act 1991, schedule 1B, section 3.

electronic listings provider means an entity that lists real property for sale on a website or other electronic medium that is used by buyers to search for properties for sale.

employ includes—

(a)engage on a contract for services or commission and use the services of, whether or not for reward; and

(b)directly engage a person as an independent contractor; and

(c)engage a person from a labour hire provider.

employed licensee means a licensee who performs the activities of a licensee as the employee of another person.

exclusive agency see section 23.

executive officer, of a corporation, means a person, by whatever name called and whether or not the person is a director of the corporation, who is concerned, or takes part, in the management of the corporation.

existing licence, for part 14, see section 238.

existing registration certificate, for part 14, see section 238.

financial loss, suffered by a person, if evidenced by a judgment of a court, does not include interest awarded on the judgment.

former licensee means a person who held a licence under this Act or PAMDA.

former tribunal means the tribunal under the repealed Commercial and Consumer Tribunal Act 2003.

fund means the claim fund established under the Administration Act, section 78.

goods see the Motor Dealers and Chattel Auctioneers Act 2014, schedule 4.

holder—

(a)of a property agent licence that is in force, means the person in whose name the licence is issued; or

(b)of a registration certificate that is in force, means the person in whose name the certificate is issued.

home see the Queensland Building and Construction Commission Act 1991, schedule 1B, section 9.

in charge see section 19.

information notice means a notice complying with the QCAT Act, section 157(2).

insolvent under administration ...

inspector means a person who holds office under the Fair Trading Inspectors Act 2014 as an inspector for this Act.

labour hire provider means an entity that conducts a business that is or includes the supply of labour to others.

land includes—

(a)a lot or proposed lot under the Land Title Act 1994; and

(b)a lot shown on a leasehold building units plan registered or to be registered under the South Bank Corporation Act 1989; and

(c)land under the South Bank Corporation Act 1989; and

(d)an interest in land.

lawyer means a lawyer who, under the Legal Profession Act 2007, may engage in legal practice in this State.

letting includes every form of leasing or letting of places of residence, land, estates, or businesses.

letting agent, for a community titles scheme, see the Body Corporate and Community Management Act 1997, section 16.

licence means a property agent licence or a resident letting agent licence.

licence register see section 82(1).

licensed, for a person, means licensed under this Act.

licensee—

(a)generally, means the holder of a property agent licence, or a resident letting agent licence, that is in force; or

(b)for part 9, see section 170.

listed, for part 7, see section 159.

management rights see the Body Corporate and Community Management Act 1997, schedule 6.

market, residential property, means take action to sell the property, other than by appointing a property agent to sell the property.

marketeer—

(a)means a person directly or indirectly involved, alone or with others, in the sale, or promotion of the sale, or provision of a service in connection with the sale, of residential property under a formal or informal arrangement, and whether or not—

(i)the person derives a direct or indirect benefit from the sale, or promotion of the sale, or provision of a service in connection with the sale, of the property; or

(ii)the way the property is marketed includes offering potential buyers of the property inducements intended to encourage the potential buyers to purchase the property; or

(iii)any of the persons is a licensee or a real estate salesperson; or

(iv)the sale, or promotion of the sale, or provision of a service in connection with the sale, of property is, or is part of, a business the person ordinarily conducts; and

(b)includes a person who—

(i)causes or arranges for the sale, or promotion of the sale, or provision of a service in connection with the sale, of residential property; or

(ii)provides advisory, management, legal, accounting, administrative or other services in connection with the sale, or for promoting the sale, or for providing a service in connection with the sale, of residential property.

marketeer proceeding see section 174.

misleading includes deceptive.

money penalty see section 203.

motor dealer licence, for part 14, see section 238.

Motor Dealers and Chattel Auctioneers Act, for part 14, see section 238.

motor salesperson registration certificate, for part 14, see section 238.

obtain, for part 6, see section 152.

official means—

(a)the chief executive; or

(b)a public service employee.

open listing see section 20.

option to purchase includes a right granted or purportedly granted, but not immediately exercisable, to purchase or to be given an option to purchase.

PAMDA means the repealed Property Agents and Motor Dealers Act 2000.

part payment see section 161(1)(b).

place of residence—

(a)means—

(i)a building or part of a building used, or currently designed for use, as a single dwelling only; and

(ii)outbuildings or other appurtenances incidental to the use of the building or part as a single dwelling; but

(b)does not include—

(i)a building or part of a building used, or currently designed for use, for temporary accommodation; or

(ii)outbuildings or other appurtenances incidental to the use of the building or part as temporary accommodation.

Examples for paragraph (b)—

•motel

•caravan park

•hostel

prescribed conduct provision see section 235.

principal licensee means a licensee who carries on business under the licensee’s licence on the licensee’s own behalf.

property agent see section 15.

property agent licence means an auctioneer licence or a real estate agent licence.

property developer means a person who—

(a)completes more than 6 residential property sales in a 12 month period; and

(b)markets residential property in which the person has an interest of at least 15%.

property information session means a presentation (however described) given to 1 or more persons that has as a significant purpose the purchase of residential property in Queensland by 1 or more persons attending the presentation.

property licence, for part 14, see section 238.

property registration certificate, for part 14, see section 238.

provider see the Residential Tenancies and Rooming Accommodation Act 2008, schedule 2.

public examination means a public examination conducted under part 9, division 5, subdivision 2.

real estate agent see section 16.

real estate agent licence means a real estate agent licence issued under section 50.

real estate salesperson—

(a)generally, means the holder of a registration certificate that is in force; or

(b)for part 9, see section 170.

reference committee means the reference committee established under section 179.

registered bidder, for part 7, see section 159.

registered business name means a business name registered under the Business Names Registration Act 2011 (Cwlth).

registered office, of a property agent or resident letting agent, see section 93.

registrar means the principal registrar under the QCAT Act.

registration certificate means a certificate of registration as a real estate salesperson issued under section 128.

registration certificate register see section 148(1).

relevant Act, for part 14, see section 238.

relevant contract, for part 7, see section 160.

relevant person see section 67(1).

repealed code of conduct, for part 14, see section 238.

representation includes a statement, promise, publication and other representation made in any way.

residential property see section 21.

resident letting agent see section 17.

resident letting agent licence means a resident letting agent licence issued under section 50.

respondent, for part 10, see section 191.

reward includes remuneration of any kind including, for example, any fee, commission or gain.

rooming accommodation see the Residential Tenancies and Rooming Accommodation Act 2008, schedule 2.

sale by auction means the sale of property in a way commonly known and understood to be by auction.

sell includes agree to sell, advertise or display for sale, attempt to sell, have for sale, negotiate for a sale, and in any way be concerned in selling.

seller, for part 7, see section 159.

serious offence means any of the following offences punishable by 3 or more years imprisonment—

(a)an offence involving fraud or dishonesty;

(b)an offence involving the trafficking of drugs;

(c)an offence involving the use or threatened use of violence;

(d)an offence of a sexual nature;

(e)extortion;

(f)arson;

(g)unlawful stalking, intimidation, harassment or abuse.

service see section 102.

sole agency see section 23.

termination penalty, for part 7, see section 159.

transitioned certificate, for part 14, see section 238.

transitioned licence, for part 14, see section 238.

trust account means a trust account kept under the Administration Act, part 2.

unsolicited invitation see section 22.