New South Wales Bills New South Wales Bills[Index] [Search] [Download] [Related Items] [Help]
This is a Bill, not an Act. For current law, see the Acts databases.
New South Wales
Valuers Bill 2003
Contents
Page
Part 1 Preliminary
1 Name of Act 2
2 Commencement 2
3 Definitions 2
4 Exception for architects, engineers and surveyors 3
5 Notes 3
Part 2 Registration
6 Natural person practising or advertising as valuer 4
7 Corporation practising or advertising as valuer 4
8 Eligibility and qualifications for registration 5
9 Disqualification from registration 5
10 Application to registration of Licensing and Registration
(Uniform Procedures) Act 2002 6
11 Conditions of registration 7
Valuers Bill 2003
Contents
Page
12 Duration of registration 8
13 Production of certificate of registration 8
14 Register 8
15 Cancellation of registration 8
16 Clients to be informed of suspension, cancellation or
conditions 9
17 Practice requirements 9
18 Undertakings 9
Part 3 Complaints and disciplinary action
19 Grounds for disciplinary action 10
20 Disciplinary action 10
21 Decision to take no further action 11
22 Complaints 11
23 Show cause notice 11
24 Power to suspend registration when show cause notice
served 12
25 Inquiries and investigation 12
26 Taking of disciplinary action 13
27 Recovery of monetary penalty 13
28 Review of disciplinary action by ADT 13
29 Warning notices 13
30 Return of suspended or cancelled certificate of registration 14
Part 4 Enforcement
31 Authorised officers 15
32 Powers of entry, inspection etc 15
33 Power of authorised officer to obtain information, records
and evidence 16
34 Obstruction etc of authorised officers 17
35 Taking possession of records to be used as evidence 17
36 Search warrants 18
37 Injunctions 18
Part 5 Miscellaneous
38 Disclosure of information 19
39 Delegation 20
40 Service of notices 20
41 Proceedings for offences 21
42 Penalty notices 22
43 Time for laying information 23
44 Offences by corporations 23
45 Repeals 23
46 Amendment of other Acts 24
Contents page 2
Valuers Bill 2003
Contents
Page
47 Savings and transitional provisions 24
48 Regulations 24
49 Review of Act 24
Schedules
1 Amendment of other Acts 25
2 Savings and transitional provisions 29
Contents page 3
I certify that this PUBLIC BILL, which originated in the LEGISLATIVE ASSEMBLY,
has finally passed the LEGISLATIVE COUNCIL and the LEGISLATIVE ASSEMBLY of
NEW SOUTH WALES.
Clerk of the Legislative Assembly.
Legislative Assembly,
Sydney, , 2003
New South Wales
Valuers Bill 2003
Act No , 2003
An Act to provide for the qualifications and regulation of valuers; to repeal the
Valuers Registration Act 1975; and for other purposes.
I have examined this Bill, and find it to correspond in all respects with the Bill
as finally passed by both Houses.
Chairman of Committees of the Legislative Assembly.
Clause 1 Valuers Bill 2003
Part 1 Preliminary
The Legislature of New South Wales enacts:
Part 1 Preliminary
1 Name of Act
This Act is the Valuers Act 2003.
2 Commencement
(1) This Act commences on a day or days to be appointed by
proclamation except as provided by subsection (2).
(2) Schedule 1.6 and 1.15 commence on the commencement of
Division 4 of Part 5 of the Law Enforcement (Powers and
Responsibilities) Act 2002.
3 Definitions
In this Act:
authorised officer has the meaning given in Part 4 (Enforcement).
corresponding law means a law of another Australian jurisdiction
that is declared by the Minister from time to time by order published
in the Gazette to be a law that corresponds to this Act.
Director-General means:
(a) the Commissioner for Fair Trading, Department of
Commerce, or
(b) if there is no such position in the Department of Commerce--
the Director General of that Department.
disqualified person means a person who is disqualified from
registration as a valuer under section 9.
property means:
(a) land (including any estate or interest in land), or
(b) an exclusive right to the separate occupation of land or a
building or part of a building (whether the right derives from
the ownership of a share or interest in a body corporate or
arising in some other way), or
(c) an access licence under the Water Management Act 2000, or
(d) any other property that is prescribed by the regulations as
property for the purposes of this Act.
Page 2
Valuers Bill 2003 Clause 4
Preliminary Part 1
Register means the Register maintained under this Act.
registered valuer means a person registered under this Act as a
valuer.
valuer means a person who values property for a fee or reward that
is paid or payable either to the person or to a person (including the
State or an instrumentality or agency of the State) who employs the
person, whether in the capacity of employee or agent or in any other
capacity.
4 Exception for architects, engineers and surveyors
A person who carries out a valuation of property in the course of and
incidentally to the performance of services as an architect, engineer,
surveyor or quantity surveyor is not a valuer with respect to that
valuation if any fee or reward paid or payable in respect of those
services is wholly or principally attributable to the performance of
services other than the carrying out of that valuation.
5 Notes
Notes included in this Act do not form part of this Act.
Page 3
Clause 6 Valuers Bill 2003
Part 2 Registration
Part 2 Registration
6 Natural person practising or advertising as valuer
(1) A natural person must not practise or advertise as a valuer unless he
or she is a registered valuer.
(2) A registered valuer must not practise as a valuer in contravention of
any conditions to which the valuer's registration is subject.
(3) A natural person must not advertise that a person employed by him
or her (whether in the capacity of an employee or in any other
capacity) is entitled or prepared to value property or practise as a
valuer unless a person so employed is a registered valuer.
(4) Anything done by a person who is a student valuer in the course of
carrying out duties under the supervision of a registered valuer does
not constitute practise as a valuer for the purposes of this section. A
student valuer is a person who is undertaking a course of study
approved by the Director-General under this Act in connection with
a qualification for registration as a valuer.
(5) A person advertises as a valuer by advertising himself or herself or
holding himself or herself out as being entitled or prepared to value
property or practise as a valuer.
Maximum penalty: 100 penalty units.
7 Corporation practising or advertising as valuer
(1) A corporation must not practise or advertise as a valuer unless at
least one director or at least one employee of the corporation is a
registered valuer.
(2) A corporation must not advertise that a person employed by the
corporation (whether in the capacity of an employee or in any other
capacity) is entitled or prepared to value property or practise as a
valuer unless a person so employed is a registered valuer.
(3) A corporation must not furnish to a person a valuation of any
property unless the valuation is signed by a director or employee of
the corporation who is a registered valuer.
(4) A corporation advertises as a valuer by advertising itself or holding
itself out as being entitled or prepared to value property or practise
as a valuer.
Maximum penalty: 200 penalty units.
Page 4
Valuers Bill 2003 Clause 8
Registration Part 2
8 Eligibility and qualifications for registration
(1) A person is eligible to be registered as a valuer only if the Director-
General is satisfied that the person:
(a) is at least 18 years of age, and
(b) is a fit and proper person to be registered, and
(c) has the qualifications approved by the Director-General for
registration as a valuer, and
(d) is not a disqualified person.
(2) The Director-General may from time to time approve qualifications
for registration as a valuer.
(3) Without limiting the Director-General's power to approve
qualifications under this section, the Director-General may approve
qualifications by reference to any one or more (or a combination of
any one or more) of the following:
(a) the completion of a course of study,
(b) the completion of a period of training in valuing property,
(c) the attainment of a standard of competency in valuing
property,
(d) registration under the Valuers Registration Act 1975 (before
the repeal of that Act) or under a corresponding law.
9 Disqualification from registration
(1) A person is disqualified from registration as a valuer if the person:
(a) has a conviction in New South Wales or elsewhere for an
offence involving dishonesty that was recorded in the last 10
years, unless the Director-General has determined under
subsection (2) that the offence should be ignored, or
(b) is an undischarged bankrupt or is a director or person
concerned in the management of a corporation that is the
subject of a winding-up order or for which a controller or
administrator has been appointed, unless (in the case of an
undischarged bankrupt) the Director-General has certified
that he or she is satisfied that the person took all reasonable
steps to avoid the bankruptcy, or
(c) at any time in the 3 years preceding the application for
registration, was an undischarged bankrupt, applied to take
the benefit of any law for the relief of bankrupt or insolvent
debtors, compounded with his or her creditors or made an
Page 5
Clause 10 Valuers Bill 2003
Part 2 Registration
assignment of his or her remuneration for their benefit, unless
the Director-General has certified that he or she is satisfied
that the person took all reasonable steps to avoid the
bankruptcy, or
(d) at any time in the 3 years preceding the application for
registration, was concerned in the management of a
corporation when the corporation was the subject of a
winding-up order or when a controller or administrator was
appointed, unless the Director-General is satisfied that the
person took all reasonable steps to avoid the liquidation or
administration, or
(e) is a mentally incapacitated person, or
(f) is disqualified from being licensed or registered or otherwise
authorised under a corresponding law or whose licence,
registration or other authority under a corresponding law is
suspended, or
(g) is the holder of a licence, permit or other authority that is
suspended under the Fair Trading Act 1987, or
(h) subject to the regulations, is in partnership as a valuer with a
person who is a disqualified person, or
(i) is for the time being declared to be a disqualified person under
Part 3 (Complaints and disciplinary action), or
(j) has failed to pay any monetary penalty payable by the person
under Part 3 (Complaints and disciplinary action) or has failed
to comply with a direction given by the Director-General
under that Part, and the failure continues, or
(k) is in breach of any provision of this Act or the regulations that
is prescribed by the regulations as a disqualifying breach.
(2) The Director-General may determine that an offence committed by
a person should be ignored for the purposes of this section because
of the time that has passed since the offence was committed or
because of the triviality of the acts or omissions giving rise to the
offence.
10 Application to registration of Licensing and Registration (Uniform
Procedures) Act 2002
(1) The Director-General may grant registration as a valuer for the
purposes of this Act.
Page 6
Valuers Bill 2003 Clause 11
Registration Part 2
(2) Part 3 of the Licensing and Registration (Uniform Procedures) Act
2002 (the applied Act) applies to and in respect of registration as a
valuer, subject to the modifications and limitations prescribed by or
under this Act.
(3) For the purpose of applying Part 3 of the applied Act to registration
as a valuer:
(a) an application for the granting of registration may only be
made by a natural person, and
(b) registration may be amended under that Act, and
(c) an application for restoration of registration under section 39
of that Act may not be made more than 3 months after the date
on which registration expires, and
(d) the reference to 28 days in section 46 (1) of that Act (as to the
period within which applications are to be dealt with) is to be
read as a reference to 8 weeks.
(4) An applicant for registration as a valuer must make provision for the
payment of an application fee of an amount prescribed by the
regulations.
(5) Subject to this section, the regulations may make provision for or
with respect to such matters concerning registration under this Act
as are relevant to the operation of Part 3 of the applied Act.
11 Conditions of registration
Registration as a valuer may be granted subject to conditions,
including (but not limited to) conditions of the following kind:
(a) a condition prohibiting the valuation of specified kinds of
property or prohibiting the valuation of property other than
specified kinds of property,
(b) a condition prohibiting the valuer from practising as a valuer
otherwise than as an employee or under the supervision of a
registered valuer whose registration is not subject to such a
condition,
(c) a condition requiring the valuer to undertake or complete a
specified course of studies within a specified period of time,
(d) a condition requiring the valuer to undertake by way of
professional development specified further education or
training during the term of the valuer's registration.
Page 7
Clause 12 Valuers Bill 2003
Part 2 Registration
12 Duration of registration
Registration as a valuer remains in force (unless it is sooner
suspended or cancelled) for 3 years.
13 Production of certificate of registration
A registered valuer must at the request of a person for whom the
valuer values property, or with whom the valuer enters into an
arrangement for the valuation of property, produce his or her
certificate of registration for inspection by the person as soon as
practicable after the request is made.
Maximum penalty: 20 penalty units.
14 Register
(1) The Director-General is to maintain a Register for the purposes of
this Act and is to enter and keep in the Register particulars of such
of the following as the regulations may require:
(a) certificates of registration issued under this Act,
(b) any conditions to which registration is subject,
(c) applications for registration that are refused,
(d) prosecutions taken under this Act and the result of those
prosecutions,
(e) warning notices that the Director-General has authorised
publication of under this Act,
(f) disciplinary action taken under this Act,
(g) undertakings given under this Act by a registered valuer,
(h) such other matters as may be prescribed by the regulations.
(2) Any person is entitled to inspect any entry in the Register on
payment of such fee as the Director-General may determine for the
giving of access to the Register.
15 Cancellation of registration
(1) The Director-General is to cancel the registration of a registered
valuer if the person:
(a) has died, or
(b) has requested that his or her registration be cancelled, or
(c) has become a disqualified person, or
Page 8
Valuers Bill 2003 Clause 16
Registration Part 2
(d) is not eligible to be registered and was registered by mistake
or as a result of any false representation concerning the
person's age or qualifications for registration.
(2) A person whose registration is cancelled may apply to the
Administrative Decisions Tribunal for a review of the decision of
the Director-General to cancel the person's registration.
(3) The cancellation of registration under subsection (1) (c) or (d) does
not take effect until notice of cancellation is served on the person
concerned.
(4) The Director-General may, in any case in which the Director-
General thinks it appropriate to do so, restore the registration of any
valuer whose registration has been cancelled under this section
without payment of any fee or on payment of such fee, not
exceeding the fee prescribed by the regulations for the purposes of
this section, as the Director-General may direct.
16 Clients to be informed of suspension, cancellation or conditions
A person whose registration as a valuer is suspended or cancelled
under section 15 or Part 3, or on whose registration conditions are
imposed under Part 3, must within 3 days after notice of that action
is given to the person notify the fact to each person with whom the
valuer has an arrangement for the carrying out of a valuation of
property.
Maximum penalty: 10 penalty units.
17 Practice requirements
The regulations may prescribe rules of conduct to be observed in the
course of practice as a valuer.
Note. Part 3 provides that a contravention of a provision of the regulations is
grounds for taking disciplinary action against a person.
18 Undertakings
The Director-General may accept a written undertaking from a
registered valuer as to the manner in which the valuer will conduct
the valuer's practise as a valuer.
Note. Part 3 provides that a breach of such an undertaking is grounds for taking
disciplinary action against a valuer.
Page 9
Clause 19 Valuers Bill 2003
Part 3 Complaints and disciplinary action
Part 3 Complaints and disciplinary action
19 Grounds for disciplinary action
Disciplinary action under this Part can be taken against a person
who is or was a registered valuer on any one or more of the
following grounds:
(a) the person has contravened a provision of this Act or any
other Act administered by the Minister, or the regulations
under any such Act, whether or not the person has been
prosecuted or convicted of an offence in respect of the
contravention,
(b) the person has contravened a condition of the person's
registration as a valuer,
(c) the person has, in the course of practising as a valuer, acted
unlawfully, improperly, unfairly or incompetently,
(d) the person is not a fit and proper person to be registered as a
valuer,
(e) the person has breached an undertaking given by the person to
the Director-General under this Act or the Fair Trading Act
1987, in respect of the person's practise as a valuer,
(f) the person has failed to comply with a direction given to the
person by the Director-General pursuant to the taking of
disciplinary action under this Part,
(g) the person has failed to pay a monetary penalty imposed on
the person by the Director-General pursuant to the taking of
disciplinary action under this Part,
(h) grounds specified in the regulations as grounds for the taking
of disciplinary action against a person under this Act.
20 Disciplinary action
(1) Each of the following actions is disciplinary action that the Director-
General can take against a person under this Act:
(a) caution or reprimand the person,
(b) give a direction to the person requiring the person to give a
specified undertaking to the Director-General as to the
manner in which the person will practise as a valuer,
(c) give a direction to the person requiring the person to take
specified action within a specified time in connection with the
person's practise as a valuer,
Page 10
Valuers Bill 2003 Clause 21
Complaints and disciplinary action Part 3
(d) impose a monetary penalty on the person of an amount not
exceeding 100 penalty units in the case of a natural person or
200 penalty units in the case of a corporation,
(e) impose a condition on the person's registration as a valuer,
(f) suspend the person's registration as a valuer for a period that
does not exceed the unexpired term of that registration,
(g) cancel the person's registration as a valuer,
(h) declare the person to be a disqualified person for the purposes
of this Act, either permanently or for a specified period.
(2) A power conferred by this Act to take disciplinary action against a
person is a power to take any one or more of the actions that
constitute disciplinary action.
21 Decision to take no further action
The Director-General may at any stage of a matter that is the subject
of consideration by the Director-General under this Part determine
to take no further action in respect of the matter, whether or not the
matter is the subject of a complaint or a show cause notice and
whether or not the Director-General determines that there are
grounds for taking disciplinary action in connection with the matter.
22 Complaints
(1) Any person may make a complaint to the Director-General setting
out matters that are alleged to constitute grounds for taking
disciplinary action against a person under this Act.
(2) Action can be taken under this Part whether or not a complaint has
been made.
23 Show cause notice
(1) The Director-General may serve a show cause notice on a person if
the Director-General is of the opinion that there is reasonable cause
to believe that there are grounds for taking disciplinary action
against the person.
(2) A show cause notice is a notice requiring a person to show cause
why disciplinary action should not be taken against the person under
this Act on the grounds specified in the notice.
Page 11
Clause 24 Valuers Bill 2003
Part 3 Complaints and disciplinary action
(3) A show cause notice is to be in writing and is to specify a period of
not less than 14 days after service of the notice as the period that the
person to whom the notice is directed has to show cause as required
by the notice.
(4) The person on whom a show cause notice is served may within the
period allowed by the notice make oral or written submissions to the
Director-General in respect of the matters to which the notice
relates.
24 Power to suspend registration when show cause notice served
(1) When a show cause notice is served on a person, the Director-
General may by notice in writing to the person suspend the person's
registration as a valuer pending a determination by the Director-
General of whether to take disciplinary action under this Act against
the person.
(2) The Director-General may only suspend a person's registration
under this section if satisfied that the grounds for disciplinary action
specified in the show cause notice would, if established, justify the
suspension or cancellation of the person's registration as a valuer.
(3) Such a suspension may not be imposed for a period of more than 60
days after the show cause notice is served.
(4) The Director-General is not required to afford a person an
opportunity to be heard before taking action against the person
under this section.
(5) The Director-General can revoke a suspension under this section at
any time by notice in writing to the suspended person.
(6) This section does not limit or otherwise affect any power to suspend
a licence or certificate of registration under section 64A of the Fair
Trading Act 1987.
25 Inquiries and investigation
The Director-General may conduct inquiries and make
investigations in relation to the matters to which a show cause notice
relates and the submissions, if any, made by or on behalf of the
person to whom the show cause notice relates in relation to those
matters, as the Director-General thinks fit.
Page 12
Valuers Bill 2003 Clause 26
Complaints and disciplinary action Part 3
26 Taking of disciplinary action
(1) If the Director-General is satisfied that there are grounds for taking
disciplinary action under this Act against a person on whom a show
cause notice has been served, the Director-General may by order in
writing served on the person take such disciplinary action against
the person as the Director-General thinks is warranted.
(2) The order must include a statement of the reasons for the Director-
General's decision on the matter.
27 Recovery of monetary penalty
A monetary penalty imposed on a person by disciplinary action
under this Part may be recovered by the Director-General in a court
of competent jurisdiction as a debt due to the Crown.
28 Review of disciplinary action by ADT
A person against whom disciplinary action is taken by the Director-
General may apply to the Administrative Decisions Tribunal under
the Administrative Decisions Tribunal Act 1997 for a review of the
Director-General's decision on the disciplinary action.
29 Warning notices
(1) The Director-General may authorise publication of a notice warning
persons of particular risks involved in dealing with a specified
registered valuer, or a person who is not a registered valuer, in
connection with the activities of valuers.
(2) For example, a warning may relate to the risks involved in dealing
with a person who has a recent history of unconscionable conduct in
the person's dealings with consumers.
(3) The Director-General may authorise publication of such a notice in
any one or more of the following ways:
(a) to any person making inquiries to the Director-General about
the valuer concerned,
(b) by advertisement by the use of any medium,
(c) to any media representatives.
(4) Publication of such a notice may not be authorised unless an
investigation has been conducted by the Director-General, whether
or not a complaint has been made.
Page 13
Clause 30 Valuers Bill 2003
Part 3 Complaints and disciplinary action
(5) Before authorising publication of such a notice, the Director-
General must give the person concerned an opportunity for a period
of not less than 48 hours to make representations to the Director-
General about publication of such a notice, unless:
(a) the Director-General is not able, after making reasonable
efforts to do so, to contact the person promptly and advise the
person of that opportunity, or
(b) the person refuses to make any representations.
(6) No opportunity to make representations is required to be given if, in
the opinion of the Director-General, there is an immediate risk to the
public.
(7) No liability is incurred by a person for publishing in good faith:
(a) a notice under this section, or
(b) a fair report or summary of such a notice.
30 Return of suspended or cancelled certificate of registration
A person who has possession of a certificate of registration that has
been suspended or cancelled under this Part must give the certificate
of registration to an officer of the Department of Commerce at any
office of the Department within 7 days after the suspension or
cancellation takes effect.
Maximum penalty:
(a) 40 penalty units in the case of a corporation, or
(b) 20 penalty units in any other case.
Page 14
Valuers Bill 2003 Clause 31
Enforcement Part 4
Part 4 Enforcement
31 Authorised officers
(1) In this Act:
authorised officer means:
(a) an officer of the Department of Commerce for the time being
appointed under this Part as an authorised officer, or
(b) an investigator appointed under section 18 of the Fair
Trading Act 1987, or
(c) a police officer.
(2) The Director-General may appoint any officer of the Department of
Commerce as an authorised officer for the purposes of this Act.
(3) An authorised officer who is not a police officer is to be provided by
the Director-General with a certificate of identification.
(4) An authorised officer (other than a police officer) must, when
exercising on any premises any function of the authorised officer
under this Act, produce the officer's certificate of identification to
any person apparently in charge of the premises who requests its
production.
32 Powers of entry, inspection etc
(1) An authorised officer may exercise the powers conferred by this
section for the purpose of:
(a) ascertaining whether the provisions of this Act or the
regulations are being complied with or have been
contravened, or
(b) investigating a complaint made or intended to be made under
this Act, or
(c) obtaining evidence, records or information in relation to a
matter that constitutes or may constitute a contravention of
this Act or the regulations.
(2) An authorised officer may enter and inspect at any reasonable time
any premises that the officer believes on reasonable grounds are
used for the carrying on of practice as a valuer, whether or not it is
being carried on by a registered valuer.
Page 15
Clause 33 Valuers Bill 2003
Part 4 Enforcement
(3) While on premises entered under this section or under the authority
of a search warrant under this Part, an authorised officer may do any
one or more of the following:
(a) require any person on those premises to produce any records
in the possession or under the control of that person relating
to the carrying on of practice as a valuer, and (in the case of
records stored electronically) to produce any such record in
written form,
(b) inspect, take copies of or extracts from, or make notes from,
any such records, and for that purpose may take temporary
possession of any such records,
(c) take possession of any such records if the authorised officer
considers it necessary to do so for the purpose of obtaining
evidence or protecting evidence from destruction,
(d) take such photographs, films and audio, video and other
recordings as the authorised officer considers necessary,
(e) require any person on those premises to answer questions or
otherwise furnish information in relation to the carrying on of
practice as a valuer or a contravention of a provision of this
Act or the regulations,
(f) require the owner or occupier of those premises to provide the
authorised officer with such assistance and facilities as is or
are reasonably necessary to enable the authorised officer to
exercise the functions of an authorised officer under this
section.
(4) An authorised officer is not entitled to enter a part of premises used
for residential purposes, except:
(a) with the consent of the occupier of the part, or
(b) under the authority of a search warrant.
33 Power of authorised officer to obtain information, records and
evidence
If an authorised officer believes on reasonable grounds that a person
is capable of giving information, producing records or giving
evidence in relation to a matter that constitutes, or may constitute,
an offence against this Act or the regulations, the authorised officer
may, by notice in writing given to the person, require the person:
Page 16
Valuers Bill 2003 Clause 34
Enforcement Part 4
(a) to provide an authorised officer, by writing signed by the
person (or, in the case of a corporation, by a competent officer
of the corporation) and given to the authorised officer within
the time and in the manner specified in the notice, with any
such information, or
(b) to produce to an authorised officer, in accordance with the
notice, any such records, or
(c) to appear before an authorised officer at a time and place
specified in the notice and give any such evidence, either
orally or in writing, and produce any such records.
34 Obstruction etc of authorised officers
A person must not:
(a) without reasonable excuse, refuse or fail to comply with any
notice given or requirement made, or to answer any question
asked, by an authorised officer under this Part, or
(b) provide information or give evidence in purported
compliance with a requirement made or question asked by an
authorised officer under this Part knowing the information or
evidence to be false or misleading in a material particular, or
(c) wilfully delay, hinder or obstruct an authorised officer in the
exercise of the officer's functions under this Part.
Maximum penalty: 100 penalty units or imprisonment for 6 months,
or both.
35 Taking possession of records to be used as evidence
(1) If an authorised officer takes possession of any records under this
Part for the purpose of obtaining evidence or protecting evidence
from destruction, they may be retained by the officer until the
completion of any proceedings (including proceedings on appeal) in
which they may be evidence.
(2) The person from whom the records are taken must be provided,
within a reasonable time after the records are taken, with a copy of
the records certified by an authorised officer as a true copy.
(3) A copy of records provided under this section is, as evidence, of
equal validity to the records of which it is certified to be a copy.
Page 17
Clause 36 Valuers Bill 2003
Part 4 Enforcement
36 Search warrants
(1) An authorised officer may apply to an authorised justice for the
issue of a search warrant for premises if the authorised officer
believes on reasonable grounds:
(a) that a provision of this Act or the regulations is being or has
been contravened on the premises, or
(b) that there is on the premises evidence of a contravention of
this Act or the regulations.
(2) An authorised justice to whom such an application is made may, if
satisfied that there are reasonable grounds for doing so, issue a
search warrant authorising an authorised officer named in the
warrant:
(a) to enter and inspect the premises, and
(b) to exercise on the premises any function of an authorised
officer under this Part.
(3) Part 3 of the Search Warrants Act 1985 applies to a search warrant
issued under this section.
(4) In this section, authorised justice has the same meaning as in the
Search Warrants Act 1985.
37 Injunctions
(1) On the application of the Director-General, the Supreme Court may
grant an injunction restraining a threatened or apprehended
contravention, or the continuation of a contravention, of a provision
of this Act or the regulations.
(2) An injunction may be granted without the Director-General being
required to show a likelihood of damage.
(3) If in the opinion of the Court it is desirable to do so, the Court may
grant an interim injunction pending determination of the
application.
(4) When the Director-General makes an application for the grant of an
injunction under this section, the Court is not to require the Director-
General or any other person, as a condition of granting an interim
injunction, to give an undertaking as to damages.
(5) This section does not limit any provision of the Fair Trading Act
1987.
Page 18
Valuers Bill 2003 Clause 38
Miscellaneous Part 5
Part 5 Miscellaneous
38 Disclosure of information
(1) A person must not disclose any information obtained in connection
with the administration or execution of this Act unless that
disclosure is made:
(a) with the consent of the person from whom the information
was obtained, or
(b) in connection with the administration or execution of this Act,
or
(c) for the purposes of any legal proceedings arising out of this
Act or of any report of any such proceedings, or
(d) in accordance with a requirement imposed under the
Ombudsman Act 1974, the Freedom of Information Act 1989
or the Independent Commission Against Corruption Act 1988,
or
(e) to a regulatory officer or law enforcement officer, for the
purposes of assisting the officer in the exercise of the officer's
functions, or
(f) as otherwise authorised by this section or the regulations, or
(g) with other lawful excuse.
Maximum penalty: 20 penalty units or imprisonment for 6 months,
or both.
(2) The Director-General may communicate to any person directly
concerned in any transaction with a registered valuer in connection
with his or her practice as a valuer any information furnished to the
Director-General in connection with the administration or execution
of this Act, in so far as it relates to any such transaction and directly
concerns any such person.
(3) The Director-General may request and receive information from a
law enforcement officer or regulatory officer for the purpose of
assisting the Director-General in the exercise of functions under this
Act or under any other Act administered by the Minister.
(4) The Director-General may enter into agreements and other
arrangements for the sharing or exchange of information as
authorised by this section.
Page 19
Clause 39 Valuers Bill 2003
Part 5 Miscellaneous
(5) In this section:
law enforcement officer means:
(a) a member of NSW Police, the Australian Federal Police or of
the police force of another State or a Territory, or
(b) the Director of Public Prosecutions or the Crown Prosecutor
of the State or the Director of Public Prosecutions or the
Crown Prosecutor of the Commonwealth or of another State
or Territory, or
(c) any other person, or officer of an authority, responsible for the
investigation or prosecution of offences under laws of the
State, the Commonwealth, another State or a Territory.
regulatory officer means an officer or employee of a government
agency (including the government of a jurisdiction outside the State
and outside Australia) exercising functions under an enactment with
respect to fair trading or an enactment that provides for the
registration or other authorisation in connection with the
undertaking of an activity regulated under the enactment.
39 Delegation
The Director-General may delegate the exercise of any function of
the Director-General under this Act (other than this power of
delegation) to:
(a) any member of staff of the Department of Commerce, or
(b) any person, or any class of persons, authorised for the
purposes of this section by the regulations.
40 Service of notices
(1) A notice or direction in writing that is authorised or required to be
given under this Act may be given as provided by this section.
(2) A notice or direction may be given to a natural person:
(a) by delivering it personally to the person, or
(b) by sending it by post, addressed to the person at the address
recorded in the Register as the person's residential address,
business address or address for service, or
(c) by leaving it with another person apparently aged 16 years or
more at the address recorded in the Register as the person's
residential address or business address, or
Page 20
Valuers Bill 2003 Clause 41
Miscellaneous Part 5
(d) by sending it by means of electronic communication or
facsimile transmission, addressed to the person at the address
recorded in the Register as the person's address for service of
electronic communications or facsimile transmissions, in
accordance with the person's information technology
requirements with respect to the receipt of electronic
communications or facsimile transmissions.
(3) A notice or direction may be given to a corporation:
(a) by delivering it personally to a person concerned in the
corporation's management, or
(b) by sending it by post, addressed to the corporation at the
address recorded in the Register as the corporation's business
address or address for service, or
(c) by leaving it with a person apparently aged 16 years or more
at the address recorded in the Register as the corporation's
business address, or
(d) by sending it by means of electronic communication or
facsimile transmission, addressed to the corporation at the
address recorded in the Register as the corporation's address
for service of electronic communications or facsimile
transmissions, in accordance with the corporation's
information technology requirements with respect to the
receipt of electronic communications or facsimile
transmissions.
(4) This section does not affect any other Act or law with respect to the
service of notices or other documents.
41 Proceedings for offences
(1) Proceedings for an offence under this Act or the regulations may be
taken and prosecuted only by the Director-General or, in the name
of the Director-General, by a person acting with the authority of the
Director-General.
(2) Proceedings for an offence under this Act or the regulations may be
dealt with:
(a) summarily before a Local Court, or
(b) summarily before the Supreme Court in its summary
jurisdiction.
Page 21
Clause 42 Valuers Bill 2003
Part 5 Miscellaneous
(3) If proceedings are brought in a Local Court, the maximum monetary
penalty that the Local Court may impose for the offence is 100
penalty units or such other amount as may be prescribed by the
regulations, despite any higher maximum monetary penalty
provided in respect of the offence.
(4) Despite any proceedings against a person for an offence against this
Act or the regulations (whether resulting in a conviction or
otherwise) the person remains liable to civil proceedings in the same
manner as if the proceedings for an offence had not been taken.
42 Penalty notices
(1) An authorised officer may serve a penalty notice on a person if it
appears to the officer that the person has committed an offence
against this Act or the regulations, being an offence prescribed by
the regulations as a penalty notice offence.
(2) A penalty notice is a notice to the effect that, if the person served
does not wish to have the matter determined by a court, the person
can pay, within the time and to the person specified in the notice, the
amount of the penalty prescribed by the regulations for the offence
if dealt with under this section.
(3) A penalty notice may be served personally or by post.
(4) If the amount of penalty prescribed for an alleged offence is paid
under this section, no person is liable to any further proceedings for
the alleged offence.
(5) Payment under this section is not to be regarded as an admission of
liability for the purpose of, and does not in any way affect or
prejudice, any civil claim, action or proceeding arising out of the
same occurrence.
(6) The regulations may:
(a) prescribe an offence for the purposes of this section by
specifying the offence or by referring to the provision creating
the offence, and
(b) prescribe the amount of penalty payable for the offence if
dealt with under this section, and
(c) prescribe different amounts of penalties for different offences
or classes of offences.
Page 22
Valuers Bill 2003 Clause 43
Miscellaneous Part 5
(7) The amount of a penalty prescribed under this section for an offence
is not to exceed the maximum amount of penalty that could be
imposed for the offence by a court.
(8) This section does not limit the operation of any other provision of,
or made under, this or any other Act relating to proceedings that may
be taken in respect of offences.
(9) In this section:
authorised officer means a person authorised in writing by the
Director-General as an authorised officer for the purposes of this
section.
43 Time for laying information
Proceedings for an offence against this Act or the regulations may
be commenced within 3 years after the date on which the offence is
alleged to have been committed or, with the consent of the Attorney
General, at any time.
44 Offences by corporations
(1) If a corporation contravenes, whether by act or omission, any
provision of this Act or the regulations, each director of the
corporation, and each person concerned in the management of the
corporation, is taken to have contravened the same provision unless
the director or person satisfies the court that:
(a) he or she was not in a position to influence the conduct of the
corporation in relation to its contravention of the provision, or
(b) he or she, being in such a position, used all due diligence to
prevent the contravention by the corporation.
(2) A person may be proceeded against and convicted under a provision
pursuant to subsection (1) whether or not the corporation has been
proceeded against or been convicted under that provision.
(3) Nothing in subsection (1) prejudices or affects any liability imposed
by a provision of this Act or the regulations on any corporation by
which an offence against the provision is actually committed.
45 Repeals
The Valuers Registration Act 1975 and Valuers Registration
Regulation 2001 are repealed.
Page 23
Clause 46 Valuers Bill 2003
Part 5 Miscellaneous
46 Amendment of other Acts
Schedule 1 has effect.
47 Savings and transitional provisions
Schedule 2 has effect.
48 Regulations
The Governor may make regulations, not inconsistent with this Act,
for or with respect to any matter that by this Act is required or
permitted to be prescribed or that is necessary or convenient to be
prescribed for carrying out or giving effect to this Act.
49 Review of Act
(1) The Minister is to review this Act to determine whether the policy
objectives of the Act remain valid and whether the terms of the Act
remain appropriate for securing those objectives.
(2) The review is to be undertaken as soon as possible after the period
of 5 years from the date of assent to this Act.
(3) A report on the outcome of the review is to be tabled in each House
of Parliament within 12 months after the end of the period of 5
years.
Page 24
Valuers Bill 2003
Amendment of other Acts Schedule 1
Schedule 1 Amendment of other Acts
(Section 46)
1.1 Aboriginal Land Rights Act 1983 No 42
Section 38 Purchase, lease etc of property
Omit "registered real estate valuer (within the meaning of the Valuers
Registration Act 1975)" from subsection (6).
Insert instead "registered valuer (within the meaning of the Valuers Act
2003)".
1.2 Community Land Development Act 1989 No 201
Section 3 Definitions
Omit the definition of registered valuer from section 3 (1).
Insert instead:
registered valuer means a registered valuer under the Valuers
Act 2003.
1.3 Community Land Management Act 1989 No 202
Section 3 Definitions
Omit the definition of registered valuer from section 3 (1).
Insert instead:
registered valuer means a registered valuer under the Valuers
Act 2003.
1.4 Fair Trading Act 1987 No 68
[1] Section 8 Delegation by Director-General
Omit section 8 (1) (g).
[2] Section 25I Functions
Omit "Valuers Registration Act 1975" from paragraph (a) of the definition
of property services industry in section 25I (2).
Insert instead "Valuers Act 2003".
Page 25
Valuers Bill 2003
Schedule 1 Amendment of other Acts
1.5 Fines Act 1996 No 99
Schedule 1 Statutory provisions under which penalty notices
issued
Insert in appropriate order:
Valuers Act 2003, section 42
1.6 Law Enforcement (Powers and Responsibilities) Act 2002
No 103
Schedule 2 Search warrants under other Acts
Insert in appropriate order:
Valuers Act 2003, section 36
1.7 Licensing and Registration (Uniform Procedures) Act 2002
No 28
Schedule 2 Registration to which Part 3 of Act applies
Omit the matter relating to the Valuers Registration Act 1975.
Insert instead:
Valuers Act 2003
section 10, registration as a valuer
1.8 Property, Stock and Business Agents Act 2002 No 66
Section 189 Application of money in Statutory Interest Account
Omit "Valuers Registration Act 1975" from subsection (2) (d).
Insert instead "Valuers Act 2003".
1.9 Search Warrants Act 1985 No 37
Section 10 Definitions
Insert in alphabetical order of Acts in the definition of search warrant:
section 36 of the Valuers Act 2003,
Page 26
Valuers Bill 2003
Amendment of other Acts Schedule 1
1.10 Strata Schemes (Freehold Development) Act 1973 No 68
Section 28QAA Revised schedule of unit entitlements
Omit "practising real estate valuer registered under the Valuers
Registration Act 1975" from subsection (4).
Insert instead "registered valuer under the Valuers Act 2003".
1.11 Strata Schemes (Leasehold Development) Act 1986 No 219
Section 57AAA Revised schedule of unit entitlements
Omit "practising real estate valuer registered under the Valuers
Registration Act 1975" from subsection (4).
Insert instead "registered valuer under the Valuers Act 2003".
1.12 Strata Schemes Management Act 1996 No 138
Section 183 Order for reallocation of unit entitlements
Omit "the holder of a current certificate of registration under the Valuers
Registration Act 1975 as a practising real estate valuer" from section 183
(5).
Insert instead "a registered valuer under the Valuers Act 2003".
1.13 Trustee Act 1925 No 14
Section 18 Ratio of loan to value
Omit "Valuers Registration Act 1975" from section 18 (2).
Insert instead "Valuers Act 2003".
1.14 Valuation of Land Act 1916 No 2
Section 13C Contested contracts
Omit section 13C (4). Insert instead:
(4) In this section, qualified person means:
(a) a person who is a registered valuer under the Valuers
Act 2003, or
Page 27
Valuers Bill 2003
Schedule 1 Amendment of other Acts
(b) a corporation in respect of which at least one of its
directors or employees is a registered valuer under the
Valuers Act 2003,
and includes the State Valuation Office and any other public
agency within which persons who are registered valuers under
the Valuers Act 2003 are employed.
1.15 Valuers Act 2003
[1] Section 36 Search warrants
Insert "under this Act" after "authorised officer" wherever occurring in
section 36 (1) and where firstly occurring in section 36 (2).
[2] Section 36 (1) and (2)
Omit "authorised justice" wherever occurring.
Insert instead "authorised officer within the meaning of the Law
Enforcement (Powers and Responsibilities) Act 2002".
[3] Section 36 (3)
Omit "Part 3 of the Search Warrants Act 1985".
Insert instead "Division 4 of Part 5 of the Law Enforcement (Powers and
Responsibilities) Act 2002".
[4] Section 36 (4)
Omit the subsection.
Page 28
Valuers Bill 2003
Savings and transitional provisions Schedule 2
Schedule 2 Savings and transitional provisions
(Section 47)
Part 1 Preliminary
1 Regulations
(1) The regulations may contain provisions of a savings or transitional
nature consequent on the enactment of the following Acts:
this Act
(2) Any such provision may, if the regulations so provide, take effect
from the date of assent to the Act concerned or a later date.
(3) To the extent to which any such provision takes effect from a date
that is earlier than the date of its publication in the Gazette, the
provision does not operate so as:
(a) to affect, in a manner prejudicial to any person (other than the
State or an authority of the State), the rights of that person
existing before the date of its publication, or
(b) to impose liabilities on any person (other than the State or an
authority of the State) in respect of anything done or omitted
to be done before the date of its publication.
Part 2 Provisions consequent on enactment of this
Act
2 Definition
In this Schedule:
former Act means the Valuers Registration Act 1975.
3 Amendments of other Acts
(1) A reference to this Act in section 63D (2) (c) of the Property, Stock
and Business Agents Act 1941 or in section 189 (2) (d) of the
Property, Stock and Business Agents Act 2002 is taken to include a
reference to the former Act.
(2) The amendment of a provision of another Act by Schedule 1 to this
Act does not affect the operation of the provision in respect of any
act or omission before the commencement of the amendment.
Page 29
Valuers Bill 2003
Schedule 2 Savings and transitional provisions
(3) Any valuation or certificate of valuation made or given before the
commencement of such an amendment by the holder of a current
certificate of registration under the former Act as a practising real
estate valuer authorised under that Act to make such a valuation is
for the purposes of a provision of another Act that is amended by
this Act taken to have been made or given by the person as a
registered valuer under this Act.
4 Electronic applications for registration
(1) Despite Part 3 of the Licensing and Registration (Uniform
Procedures) Act 2002 (as applied by section 10), an application
referred to in section 41 of that Act may not be made by means of
electronic communication.
(2) Subclause (1) does not limit the effect of the Electronic
Transactions Act 2000.
(3) This clause ceases to have effect on a day to be appointed by
proclamation.
Page 30
[Index] [Search] [Download] [Related Items] [Help]