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TASMANIA
__________
CONVEYANCING BILL 2004
__________
CONTENTS
PART 1 PRELIMINARY
1. Short title
2. Commencement
3. Interpretation
PART 2 REGULATION OF CONVEYANCERS
Division 1 Licences
4. Conveyancers to be licensed
5. Ineligibility to be licensed
6. Application
7. Character report
8. Grant or refusal of application
9. Conditions of licence
10. Grant of licence to unqualified person
11. Validity of licence
12. Form and content of licences
Division 2 Professional indemnity insurance
13. Requirement for professional indemnity insurance
Division 3 Duties of conveyancers
14. Conflict of interest
[Bill 39]-IV
15. Prohibition on commissions
16. Conduct of other businesses
PART 3 TRUST ACCOUNTS
Division 1 Trust accounts
17. Trust accounts
18. Protection of trust money
19. Accounting documents to be kept
20. Financial documents
Division 2 Receivers and managers
21. Appointment of receiver or manager
22. Term of appointment of receiver or manager
23. Remuneration of receivers and managers
24. Duty of receiver
25. Receiver may require delivery of trust money and supply
of information
26. Court may give directions, &c., to receiver or manager
27. Powers of manager
28. Obligations of manager
29. Receiver and manager to report to Director
Division 3 Audit of trust accounts
30. Audit of trust accounts
Division 4 Duties of receivers, managers and auditors
31. Confidentiality
32. Failing to comply with requirement of receiver, &c.
33. Obtaining information for purposes of audit
Division 5 Annual returns
34. Annual returns
PART 4 DISCIPLINARY PROVISIONS
35. Power of Director to receive complaints
36. Powers of authorised officers
2
37. Grounds for disciplinary action
38. Suspension or cancellation of licence on illness or
infirmity
39. Disciplinary action
40. Ancillary powers of Director
41. Contravention of order
42. Reviews by Magistrates Court (Administrative Appeals
Division)
PART 5 MISCELLANEOUS AND SUPPLEMENTAL
43. Delegations
44. Register of conveyancers
45. False or misleading information
46. Continuing offence
47. Evidentiary provisions
48. Regulations
49. Administration of Act
PART 6 AUCTIONEERS AND REAL ESTATE AGENTS
ACT 1991 AMENDED
50. Principal Act
51. Section 4 amended (Interpretation)
52. Section 86 amended (Auctioneers and Real Estate Agents
Guarantee Fund)
53. Section 87 amended (Level of Guarantee Fund)
54. Section 89 amended (Use of surplus money in Guarantee
Fund)
55. Section 94 amended (Right to claim compensation)
PART 7 LEGAL PROFESSION ACT 1993 AMENDED
56. Principal Act
57. Section 54 amended (Offence to practise unless admitted)
3
4
CONVEYANCING BILL 2004
(Brought in by the Minister for Justice and Industrial
Relations, the Honourable Judith Louise Jackson)
A BILL FOR
An Act to regulate the business of conveyancing, to
amend the Auctioneers and Real Estate Agents Act
1991 so as to provide for a guarantee fund for claims
against conveyancers and also to amend the Legal
Profession Act 1993
Be it enacted by His Excellency the Governor of Tasmania,
by and with the advice and consent of the Legislative
Council and House of Assembly, in Parliament assembled,
as follows:
PART 1 PRELIMINARY
Short title
1. This Act may be cited as the Conveyancing Act 2004.
Commencement
2. This Act commences on a day to be proclaimed.
Interpretation
3. (1) In this Act
[Bill 39] 5
s. 3 No. Conveyancing 2004
"approved institution" has the same meaning as
in the Auctioneers and Real Estate Agents Act
1991;
"authorised officer" means an authorized officer
within the meaning of the Consumer Affairs
Act 1988;
"commission" means any monetary consideration
or any other form of consideration to which a
monetary value may be assigned;
"conveyancer" means a person who is not a legal
practitioner and who carries on a business
that involves the preparation for fee or reward
of
(a) dealings within the meaning of the Land
Titles Act 1980; or
(b) instruments for the purposes of any
other Act or law as provided by an order
made under subsection (2);
"Court" means the Magistrates Court
(Administrative Appeals Division);
"Director" means the Director of Consumer Affairs
and Fair Trading;
"document" means any record of information, and
includes
(a) anything on which there is writing; and
(b) anything on which there are marks,
figures, symbols or perforations having a
meaning for persons qualified to
interpret them; and
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2004 Conveyancing No. s. 3
(c) anything from which sounds, images or
writings can be reproduced with or
without the aid of anything else; and
(d) a map, plan, drawing or photograph
and a reference in this Act to a document
includes a reference to
(e) any part of the document; and
(f) any copy, reproduction or duplicate of
the document or of any part of the
document; and
(g) any part of such a copy, reproduction or
duplicate;
"fiduciary default" means
(a) a defalcation, misappropriation or
misapplication of trust money held by a
conveyancer; or
(b) the failure of a conveyancer to account
for trust money held by the conveyancer;
or
(c) a breach of any duty by a conveyancer as
trustee in respect of trust money held by
the conveyancer;
"legal practitioner" has the same meaning as in
the Legal Profession Act 1993;
"licence" means a licence granted and in force
under this Act to carry on business as a
conveyancer;
"prescribed offence" means
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s. 3 No. Conveyancing 2004
(a) an offence involving dishonesty, whether
committed in Tasmania or elsewhere; or
(b) an offence involving violence, whether
committed in Tasmania or elsewhere; or
(c) an offence under Part V of the Poisons
Act 1971 or a similar offence under the
law of another State; or
(d) an offence relating to the possession and
use of a firearm, or any other weapon,
that would disqualify the applicant from
holding a licence under the Firearms Act
1996; or
(e) an offence against this Act;
"professional indemnity insurance" means
insurance against civil liability arising in
connection with carrying on business as a
conveyancer (whether the liability arises from
an act or omission on the part of the insured
conveyancer or on the part of another person);
"regulations" means regulations made and in force
under this Act;
"trust account" means an account in which trust
money is required to be deposited by a
conveyancer;
"trust money", in respect of a conveyancer, means
money
(a) that is received by the conveyancer on
behalf of another person when acting as
a conveyancer; and
(b) to which the conveyancer is not wholly
entitled.
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2004 Conveyancing No. s. 3
(2) The Minister may, by order published in the
Gazette, extend the application of this Act to instruments
prepared for the purposes of any other Act or law.
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s. 4 No. Conveyancing 2004
PART 2 REGULATION OF CONVEYANCERS
Division 1 Licences
Conveyancers to be licensed
4. A person who is not a legal practitioner must not carry
on business as a conveyancer for fee or reward unless he
or she holds a licence.
Penalty: Fine not exceeding 200 penalty units or
imprisonment for a term not exceeding 2
years, or both.
Ineligibility to be licensed
5. (1) A person is ineligible to hold a licence if
(a) he or she does not hold the prescribed
qualifications and have the prescribed
experience; or
(b) he or she is an undischarged bankrupt or a
person who has made an arrangement with
creditors that has not been carried out; or
(c) his or her licence has been suspended or
cancelled under Part 4; or
(d) he or she is disqualified from acting as a legal
practitioner under the Legal Profession Act
1993; or
(e) he or she holds a licence under the Auctioneers
and Real Estate Agents Act 1991; or
(f) he or she has, within the preceding period of 5
years, been convicted in Tasmania or
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2004 Conveyancing No. s. 6
elsewhere of an indictable offence and
sentenced to
(i) imprisonment for a term or terms in the
aggregate of 3 years or more; or
(ii) a period of detention for 3 years or more
under a restriction order made under
section 75(1)(e) of the Sentencing Act
1997 or an equivalent order made in any
jurisdiction outside Tasmania.
(2) For the purposes of subsection (1)(f)
(a) a conviction in respect of which a free pardon
has been granted is to be disregarded; and
(b) a person who is on parole is taken to be
serving a sentence of imprisonment.
Application
6. (1) A person who is eligible to hold a licence may apply
to the Director for a licence.
(2) An application for a licence
(a) is to be in an approved form; and
(b) is to be accompanied by the prescribed fee.
Character report
7. On receipt of an application for a licence, the Director
must
(a) forward the application to the Commissioner
of Police; and
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s. 8 No. Conveyancing 2004
(b) request the Commissioner of Police to provide
a report as to whether, in the opinion of the
Commissioner, the applicant is a fit and
proper person to hold a licence.
Grant or refusal of application
8. The Director may refuse to grant an application for a
licence where he or she is satisfied that
(a) the applicant is not a fit and proper person to
hold a licence having regard to the report
under section 7(b); or
(b) the applicant has been convicted of a
prescribed offence; or
(c) if the applicant were the holder of a licence
(i) there would be grounds for disciplinary
action against the applicant under
section 37; or
(ii) there would be grounds for suspension
or cancellation of the licence under
section 38.
Conditions of licence
9. A licence may be granted subject to conditions,
including (but not limited to) conditions of the following
kind:
(a) a condition prohibiting the licensee from
acting as a conveyancer in specified kinds of
transactions;
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2004 Conveyancing No. s. 10
(b) a condition prohibiting the licensee from
acting as a conveyancer except in specified
kinds of transactions;
(c) a condition requiring the licensee to undertake
or complete a specified course of studies within
a specified period of time;
(d) a condition requiring the licensee to
undertake, by way of professional
development, specified further education or
training during the term of the licence.
Grant of licence to unqualified person
10. If, during a period of 2 years after the commencement
of this Act, the Director is satisfied that a person holds
qualifications comparable to the prescribed qualifications
and has experience comparable to the prescribed
experience, the Director may, notwithstanding section 5,
grant a licence to that person, but in that case the Director
must impose conditions on the type of work that he or she
may undertake.
Validity of licence
11. (1) In this section
"conveyancer" includes a conveyancer whose
licence has been suspended.
(2) A licence is valid for the period of 3 years
commencing on the date on which it is granted.
(3) A licence ceases to be valid if
(a) the conveyancer surrenders it to the Director;
or
13
s. 12 No. Conveyancing 2004
(b) it is suspended or cancelled in accordance with
this Act; or
(c) the conveyancer dies; or
(d) the conveyancer ceases to be qualified to hold
the licence.
Form and content of licences
12. (1) A licence
(a) is to be in a form approved by the Director;
and
(b) is to specify the full name and address of the
conveyancer and, where applicable, the
business name under which he or she proposes
to carry on business as a conveyancer.
(2) If there is any change in any matter specified in
a licence under subsection (1)(b), the conveyancer must,
within 14 days after the change, notify the Director of the
change in writing.
Penalty: Fine not exceeding 10 penalty units.
Division 2 Professional indemnity insurance
Requirement for professional indemnity insurance
13. (1) A person must, at all times when carrying on
business as a conveyancer, be insured under a policy of
professional indemnity insurance approved by the Director
to a prescribed minimum amount.
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2004 Conveyancing No. s. 14
(2) A conveyancer's licence is taken to be suspended
for any period for which the conveyancer is not insured as
required under subsection (1).
Division 3 Duties of conveyancers
Conflict of interest
14. (1) A conveyancer must
(a) disclose any conflict of interest arising in the
course of his or her work to any person who
may be affected by the matter; and
(b) take all reasonable steps to avoid any such
conflict of interest.
Penalty: Fine not exceeding 100 penalty units.
(2) A person who has suffered loss arising from a
conflict of interest on the part of a conveyancer may make
an application for compensation under section 94(1) of the
Auctioneers and Real Estate Agents Act 1991.
(3) For the purposes of this section, a conveyancer is
taken to have a conflict of interest in respect of a
transaction if
(a) the conveyancer is obliged, in fulfilling his or
her duty to one party to the transaction, to
withhold information or advice from another
party that, by reason of the conveyancer's duty
to that other party, he or she should not
withhold; or
(b) for any other reason, the duties owed by the
conveyancer to one party to the transaction
conflict with the duties owed by the
conveyancer to another party to the
transaction; or
15
s. 15 No. Conveyancing 2004
(c) the conveyancer has a personal or pecuniary
interest in the transaction arising otherwise
than from his or her services as a conveyancer.
Prohibition on commissions
15. A conveyancer must not receive from any person other
than a party to the transaction in respect of which the
conveyancer is acting, or pay to any such person, a
commission in respect of work carried out as a
conveyancer.
Penalty: Fine not exceeding 100 penalty units.
Conduct of other businesses
16. The regulations may prohibit a conveyancer from
being employed in a class of business that is prescribed in
the regulations.
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2004 Conveyancing No. s. 17
PART 3 TRUST ACCOUNTS
Division 1 Trust accounts
Trust accounts
17. (1) A conveyancer must
(a) maintain a trust account in an approved
institution; and
(b) deposit any money received for, or on behalf of,
a client in that trust account; and
(c) keep that money in that trust account until it
is paid as the client directs.
Penalty: Fine not exceeding 100 penalty units.
(2) A conveyancer must not use money in a trust
account of the conveyancer
(a) for the payment of debts of the conveyancer; or
(b) for the payment of any creditor of the
conveyancer; or
(c) for an attachment or execution under an order
of a court at the instance of any creditor of the
conveyancer.
Penalty: Fine not exceeding 100 penalty units.
(3) The Director may, by notice in writing, require
the holder or previous holder of a licence to provide any
information that the Director considers necessary to
investigate whether or not an offence has been committed
under this section.
17
s. 18 No. Conveyancing 2004
(4) A conveyancer who becomes entitled to money
held in the conveyancer's trust account in or towards
satisfaction of the conveyancer's fees, costs or
disbursements must, as soon as practicable and in any
event within 3 months, transfer the money to an account
maintained by the conveyancer for receipts other than
trust money.
Protection of trust money
18. (1) The Director may, if he or she considers it
necessary to do so to protect trust money held by a
conveyancer, serve on an authorised deposit-taking
institution in which the conveyancer maintains a trust
account a notice, signed by the Director, that
(a) gives details of the trust account; and
(b) instructs the authorised deposit-taking
institution that, until the Director otherwise
directs, it is not to permit any withdrawal to
be made from the account without the
Director's written consent.
(2) An authorised deposit-taking institution must
comply with an instruction contained in a notice served on
it under subsection (1).
Penalty: Fine not exceeding 50 penalty units.
Accounting documents to be kept
19. (1) A conveyancer must keep documents which
(a) correctly record and explain the conveyancer's
business transactions; and
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2004 Conveyancing No. s. 20
(b) correctly record and explain the conveyancer's
receipts and payments of trust money; and
(c) enable the conveyancer's trust accounts and
accounting records to be properly audited.
(2) A conveyancer must keep the documents referred
to in this section for a period of 6 years after the date of
the last relevant transaction.
Penalty: Fine not exceeding 20 penalty units.
Financial documents
20. (1) The Director, by notice in writing, may require the
manager of an authorised deposit-taking institution to
(a) provide written information as to
(i) whether or not there is, or was, any
trust account in the name of a specified
person; and
(ii) the address at which any document
relating to that trust account is kept;
and
(b) produce for inspection to an authorised person
any document relating to that trust account;
and
(c) allow an authorised person to inspect, and
take copies of, or extracts from, any such
document.
(2) A manager of an authorised deposit-taking
institution must comply with a requirement under
subsection (1).
Penalty: Fine not exceeding 20 penalty units.
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s. 21 No. Conveyancing 2004
(3) A requirement under subsection (1)(b) is taken to
have been contravened if the document is not produced at
the address given by the authorised deposit-taking
institution under subsection (1)(a)(ii) as the address at
which the document is kept.
Division 2 Receivers and managers
Appointment of receiver or manager
21. (1) The Director, in accordance with this section, may
appoint a receiver or manager for a conveyancer's business
if
(a) the conveyancer has become bankrupt or
insolvent or has taken the benefit, as a debtor,
of a law relating to bankrupt or insolvent
debtors; or
(b) there are grounds for the exercise of the
Director's powers under section 38; or
(c) the conveyancer's licence has been cancelled or
suspended under this Act; or
(d) the conveyancer has died or disappeared; or
(e) the Director is of the opinion that a fiduciary
default has been, or may have been,
committed in respect of the conveyancer's
trust account; or
(f) the Director is of the opinion that the
conveyancer has acted contrary to this Act or
has otherwise acted unlawfully, improperly or
negligently in the conduct of his or her
business; or
(g) the conveyancer has requested it.
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2004 Conveyancing No. s. 22
(2) For the purposes of subsection (1), the Director
may appoint
(a) a person who holds a licence under this Act,
other than the conveyancer to whom
subsection (1) relates; or
(b) a legal practitioner
to manage the conveyancer's business for such period as
the Director specifies or to carry on that business with a
view to winding it up in the interests of the conveyancer's
clients.
(3) For the purposes of subsection (1), the Director
may appoint a suitable person to be a receiver of the trust
money held by the conveyancer.
(4) If a receiver is appointed, the Director may serve
on an authorised deposit-taking institution in which the
conveyancer maintains a trust account a notice that
instructs the institution not to permit any withdrawal to
be made from the trust account except by, or with the
authority of, the receiver.
(5) An authorised deposit-taking institution must
comply with an instruction contained in a notice served on
it under subsection (4).
Penalty: Fine not exceeding 50 penalty units.
Term of appointment of receiver or manager
22. The appointment of a receiver or manager is to be on
such terms and conditions as are specified by the Director
in the instrument of appointment but may be terminated
at any time by the Director.
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s. 23 No. Conveyancing 2004
Remuneration of receivers and managers
23. A receiver or manager appointed under this Division
is entitled to be paid by way of remuneration, and in
repayment of any cost incurred by him or her, such
amount as is approved by the Director.
Duty of receiver
24. A receiver appointed in respect of trust money held by
a conveyancer must
(a) take control of any trust money in the
conveyancer's possession or under his or her
control; and
(b) gather in any trust money not in the
conveyancer's possession or under his or her
control; and
(c) distribute that money to any person entitled to
it, as and when he or she becomes entitled to
it, and in the meantime act as trustee of that
money in the same capacity as that in which
the conveyancer was acting, and subject to the
same obligations; and
(d) report to the Director any insufficiency in
respect of the trust money.
Penalty: Fine not exceeding 20 penalty units.
Receiver may require delivery of trust money and
supply of information
25. (1) A receiver appointed in respect of trust money held
by a conveyancer may require the conveyancer or any
other person
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2004 Conveyancing No. s. 26
(a) to deliver up to the receiver
(i) all trust money; and
(ii) all accounts and documents relating to
that money
in his or her possession or under his or her
control; and
(b) to give to the receiver any other information in
his or her possession concerning that trust
money.
(2) A conveyancer or other person must comply with
a requirement made by a receiver under subsection (1).
Penalty: Fine not exceeding 50 penalty units.
Court may give directions, &c., to receiver or
manager
26. The Court may, on the application of
(a) a receiver appointed in respect of trust money
held by a conveyancer; or
(b) a manager appointed to manage a
conveyancer's business
authorise the receiver or manager to do such things as the
Court thinks necessary for the administration of the trust
money, the management of the conveyancer's business or
otherwise for the purposes of this Act, and may give any
directions considered necessary or desirable for that
purpose.
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s. 27 No. Conveyancing 2004
Powers of manager
27. (1) A manager appointed to manage a conveyancer's
business may do all acts and things in respect of that
business that the conveyancer might lawfully have done.
(2) Without limiting the generality of subsection (1),
a manager may, in his or her own name or in the name of
the conveyancer
(a) charge fees and recover disbursements for
work undertaken for clients of the conveyancer
in the course of the conveyancer's business;
and
(b) pay from the assets of the business any
outgoings payable in connection with the
business; and
(c) administer the trust account of the
conveyancer and pay money from that account
as and when a person becomes entitled to it.
Obligations of manager
28. A manager appointed to manage a conveyancer's
business must, in the course of managing the business,
perform all functions and carry out all duties that the
conveyancer would have been required to perform or carry
out by this Act or any other law, or by any agreement.
Receiver and manager to report to Director
29. A receiver or manager appointed under this Division
must report to the Director when required to do so by the
Director and the report is to contain such information
relating to the business of the relevant conveyancer as the
Director requires.
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2004 Conveyancing No. s. 30
Penalty: Fine not exceeding 20 penalty units.
Division 3 Audit of trust accounts
Audit of trust accounts
30. (1) A conveyancer who is required to maintain a trust
account must arrange for the trust account to be audited
in accordance with this section within 2 months after
30 June in each year.
Penalty: Fine not exceeding 100 penalty units.
(2) An audit is to be carried out
(a) by a person who is a member of
(i) the Institute of Chartered Accountants;
or
(ii) the Australian Society of Certified
Practising Accountants; or
(iii) the National Institute of Accountants;
and
(b) in accordance with any requirements that the
Director determines relating to the matters to
be examined.
(3) The auditor is to provide the conveyancer with a
certified report of the audit, stating whether the
conveyancer has, in the opinion of the auditor, kept
(a) proper accounting documents in respect of the
trust account as required under section 19;
and
(b) such statements as are adequate to explain
the financial transactions of the trust account
25
s. 31 No. Conveyancing 2004
both during and at the end of the preceding
financial year.
(4) If the Director considers it appropriate to do so,
the Director may, by notice in writing given to a
conveyancer, receiver or manager, require the
conveyancer, receiver or manager to arrange for any trust
account maintained by the conveyancer to be audited
within such period as the Director specifies and at the
expense of the conveyancer.
(5) An audit required by the Director under this
section is to provide such information as the Director
considers appropriate for the purposes of this Act.
(6) A conveyancer, receiver or manager must comply
with a requirement under this section.
Penalty: Fine not exceeding 100 penalty units.
Division 4 Duties of receivers, managers and
auditors
Confidentiality
31. (1) A receiver, manager or auditor appointed in
respect of a conveyancer's business must not divulge
information that has come to his or her knowledge in the
course of performing functions under this Act except
(a) to the conveyancer; or
(b) to the Director; or
(c) as otherwise required by law.
Penalty: Fine not exceeding 20 penalty units.
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2004 Conveyancing No. s. 32
(2) A person engaged in the administration of this
Act must not divulge information disclosed in a report
provided under this Part except
(a) for the purpose of consideration of the report
by the Director; or
(b) as is otherwise necessary for the proper
administration of this Act; or
(c) as is otherwise permitted or required by law.
Penalty: Fine not exceeding 20 penalty units.
Failing to comply with requirement of receiver, &c.
32. A person must not
(a) refuse or fail to comply with a requirement of
a receiver, manager or auditor under this
Part; or
(b) hinder, delay or obstruct a receiver, manager
or auditor in the performance of functions
under this Part by altering or destroying
relevant documents or by any other means.
Penalty: Fine not exceeding 50 penalty units.
Obtaining information for purposes of audit
33. (1) An auditor employed by a conveyancer under
section 30 may require the conveyancer or any other
person who is able to do so
(a) to produce all the accounts (whether or not
trust accounts) relating to the business of the
conveyancer and all documents relating to
those accounts; and
27
s. 34 No. Conveyancing 2004
(b) to provide any relevant information relating to
the operation of the accounts.
(2) The manager or other principal officer of an
authorised deposit-taking institution in which a
conveyancer has deposited money, whether in his or her
own account or in a general or separate trust account,
must, on being required to do so by an auditor under
subsection (1), disclose every such account, and provide
any documents relating to that account, as required by the
auditor.
Penalty: Fine not exceeding 50 penalty units.
(3) A person who is required by this section to
produce documents to an auditor must permit the auditor
to make a copy of the whole, or any part, of those
documents.
Penalty: Fine not exceeding 20 penalty units.
(4) In this section
"conveyancer" includes a former conveyancer;
"document" includes, but is not limited to, a
document required to be kept under section 19
in respect of the receipt and disposition of
trust money.
Division 5 Annual returns
Annual returns
34. (1) A conveyancer must, before 30 September in each
year, provide the Director with a return for the period
ending on 30 June in that year.
(2) The return is to contain any information that the
Director requires and, in particular
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2004 Conveyancing No. s. 34
(a) the name and location of any trust account in
which trust money has been deposited; and
(b) the total amount of all contributions to the
trust account; and
(c) a statement of the balance of the trust
account; and
(d) a copy of the relevant report prepared under
section 30(3).
(3) The Director may, in writing, require a
conveyancer to provide further and better particulars of
any information referred to in subsection (2) and the
conveyancer must, within a reasonable period specified by
the Director, comply with the requirement.
Penalty: Fine not exceeding 20 penalty units.
(4) If a conveyancer fails to comply with this section,
his or her licence is taken to be suspended until he or she
provides a return in accordance with this section.
29
s. 35 No. Conveyancing 2004
PART 4 DISCIPLINARY PROVISIONS
Power of Director to receive complaints
35. (1) The Director may receive a complaint with respect
to the conduct of a conveyancer under this Act.
(2) On receipt of a complaint, the Director must
consider whether there are grounds for disciplinary action
against the conveyancer and, for that purpose, may
conduct such investigation as he or she thinks fit.
(3) If the Director considers that the public interest
so requires, the Director may suspend a conveyancer's
licence during the investigation.
Powers of authorised officers
36. An authorised officer has the same powers of entry to
premises and obtaining documents and other information
as are conferred by sections 30 and 31 of the Fair Trading
Act 1990, and the offences and penalties provided by
section 32 of that Act apply accordingly.
Grounds for disciplinary action
37. There are grounds for disciplinary action against a
conveyancer if
(a) he or she has acted contrary to any provision
of this Act; or
(b) he or she has contravened a condition of his or
her licence; or
(c) his or her licence was obtained through fraud
or by mistake; or
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2004 Conveyancing No. s. 38
(d) he or she has contravened any rules of conduct
prescribed in the regulations; or
(e) he or she has acted unlawfully, improperly,
negligently or unfairly in the course of
carrying on, or being employed or otherwise
engaged in, the business of a conveyancer; or
(f) he or she has been found guilty of a prescribed
offence; or
(g) he or she is ineligible to hold a licence as
mentioned in section 5; or
(h) he or she has acted contrary to the Fair
Trading Act 1990.
Suspension or cancellation of licence on illness or
infirmity
38. Where the Director is satisfied, on receiving reports
from 2 legally-qualified medical practitioners, that, owing
to physical or mental illness or infirmity, it is in the public
interest that a conveyancer should cease to act as such,
the Director may
(a) cancel the conveyancer's licence; or
(b) suspend the conveyancer's licence for a
specified period or until any conditions
imposed by the Director are met.
Disciplinary action
39. (1) Where the Director determines that there are
grounds for taking disciplinary action against a
conveyancer, the Director may, by order, do one or more of
the following:
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s. 40 No. Conveyancing 2004
(a) cancel the conveyancer's licence;
(b) suspend the conveyancer's licence for a
specified period or until any conditions
imposed by the Director are met;
(c) reprimand the conveyancer;
(d) require the conveyancer to pay the reasonable
costs of any hearing conducted by the Director
or any investigation conducted for the
purposes of the hearing, or both.
(2) An order may provide that it is to have effect at a
specified time and impose conditions as to the conduct of
the conveyancer who is subject to the order, or his or her
business, until that time.
(3) An order takes effect on the day on which it is
served on the conveyancer to whom it relates.
(4) If an amount ordered to be paid by a conveyancer
as costs under subsection (1)(d) is not paid as directed by
the order, that amount may be recovered by the Director
as a debt due to the Crown in any court of competent
jurisdiction.
Ancillary powers of Director
40. For the purpose of exercising his or her powers under
this Part, the Director has the same powers as the Court
to administer an oath and compel the attendance of
witnesses and production of documents.
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2004 Conveyancing No. s. 41
Contravention of order
41. If a person carries on business as a conveyancer in
contravention of an order of the Director made under
section 39 he or she is guilty of an offence.
Penalty: Fine not exceeding 200 penalty units or
imprisonment for a term not exceeding 6
months.
Reviews by Magistrates Court (Administrative
Appeals Division)
42. (1) A person who is aggrieved by
(a) a decision of the Director refusing to grant a
licence to the person; or
(b) a decision of the Director to impose a condition
on a licence or vary a condition on a licence of
the person; or
(c) a decision of the Director suspending or
cancelling a licence of the person; or
(d) a decision of the Director to appoint a receiver
or manager in respect of the person's business;
or
(e) an order made by the Director under
section 39
may apply to the Court for a review of the decision or
order.
(2) The application is to be made in accordance with
the Magistrates Court (Administrative Appeals Division)
Act 2001.
33
s. 42 No. Conveyancing 2004
(3) The review is to be heard and determined under
the Magistrates Court (Administrative Appeals Division)
Act 2001.
34
2004 Conveyancing No. s. 43
PART 5 MISCELLANEOUS AND SUPPLEMENTAL
Delegations
43. The Director may delegate any of the Director's
functions or powers under this Act other than this power
of delegation.
Register of conveyancers
44. (1) The Director must keep a register of persons
licensed as conveyancers under this Act.
(2) The register is to contain details of the following:
(a) the date on which a licence was granted;
(b) the name and business address of the licensed
conveyancer;
(c) any cancellation or suspension of a licence;
(d) any surrender of a licence;
(e) any orders made under section 39 in respect of
a licence;
(f) any other matter that the Director considers
appropriate.
(3) Any person may inspect the register during
normal business hours and on payment of the prescribed
fee.
(4) The Director may publish a list of all current
licences in any manner or form that the Director
determines.
35
s. 45 No. Conveyancing 2004
False or misleading information
45. A person must not make a statement that is false or
misleading in a material particular (whether by reason of
the inclusion or omission of any particular) in any
information provided, or document kept, under this Act.
Penalty: Fine not exceeding 50 penalty units.
Continuing offence
46. A person convicted of an offence against a provision of
this Act in respect of a continuing act or omission
(a) is liable, in addition to the penalty otherwise
applicable to the offence, to a penalty for each
day during which the act or omission
continues of not more than one-tenth of the
maximum penalty prescribed for that offence;
and
(b) is, if the act or omission continues after the
conviction, guilty of a further offence against
the provision and liable, in addition to the
penalty otherwise applicable to the further
offence, to a penalty for each day during which
the act or omission continues after the
conviction of not more than one-tenth of the
maximum penalty prescribed for the offence.
Evidentiary provisions
47. (1) In any proceedings, a document purporting to be a
licence is admissible as evidence of that fact.
(2) A certificate purporting to be signed by the
Director stating that a person named in the certificate was
36
2004 Conveyancing No. s. 48
or was not, at any date specified in the certificate, the
holder of a licence is admissible as evidence of that fact.
(3) A certified copy of any entry in the register kept
under section 44 signed by the Director is admissible as
evidence of the facts stated in that copy.
Regulations
48. (1) The Governor may make regulations for the
purposes of this Act.
(2) Without limiting the generality of subsection (1),
the regulations may
(a) provide for the fee to be paid to the Director
for the grant of a licence; and
(b) establish rules of conduct to be observed by
conveyancers; and
(c) be made so as to apply differently according to
matters, limitations or restrictions, whether as
to time, circumstances or otherwise, specified
in the regulations; and
(d) apply generally or be limited in their
application by reference to specified
exemptions or specified factors; and
(e) authorise any matter to be from time to time
determined, applied or regulated by the
Director; and
(f) provide for penalties not exceeding a fine of
100 penalty units for offences against the
regulations.
37
s. 49 No. Conveyancing 2004
Administration of Act
49. Until provision is made in relation to this Act by order
under section 4 of the Administrative Arrangements Act
1990
(a) the administration of this Act is assigned to
the Minister for Justice and Industrial
Relations; and
(b) the department responsible to that Minister in
relation to the administration of this Act is the
Department of Justice.
38
2004 Conveyancing No. s. 50
PART 6 AUCTIONEERS AND REAL ESTATE
AGENTS ACT 1991 AMENDED
Principal Act
50. In this Part, the Auctioneers and Real Estate Agents
Act 1991* is referred to as the Principal Act.
Section 4 amended (Interpretation)
51. Section 4 of the Principal Act is amended by inserting
after the definition of "commencing day" the following
definition:
"conveyancer" has the same meaning as in the
Conveyancing Act 2004;
Section 86 amended (Auctioneers and Real Estate
Agents Guarantee Fund)
52. Section 86(2) of the Principal Act is amended by
inserting after paragraph (a) the following paragraph:
(ab) under the Conveyancing Act 2004; or
Section 87 amended (Level of Guarantee Fund)
53. Section 87 of the Principal Act is amended by
inserting "or the Conveyancing Act 2004," after "Act".
*No. 37 of 1991
39
s. 54 No. Conveyancing 2004
Section 89 amended (Use of surplus money in
Guarantee Fund)
54. Section 89 of the Principal Act is amended by omitting
subsection (1) and substituting the following subsection:
(1) Any surplus money in the Guarantee Fund
above the amount agreed or determined under
section 87 is to be distributed, with the agreement of
the Council and the Minister, as follows:
(a) firstly, in the payment of costs incurred
in administering the Residential
Tenancy Act 1997;
(b) secondly, to the Council for the uses
specified in subsection (2);
(c) thirdly, in the payment of costs incurred
in administering the Conveyancing Act
2004.
Section 94 amended (Right to claim compensation)
55. Section 94 of the Principal Act is amended as follows:
(a) by inserting the following subsection after
subsection (1):
(1A) A person may, on giving notice to
the Director of Consumer Affairs and Fair
Trading, apply to the Council for
compensation for
(a) pecuniary loss; or
(b) loss of property
suffered by that person arising from the
criminal or fraudulent conduct of a
40
2004 Conveyancing No. s. 55
conveyancer in the course of the conveyancer's
business.
(b) by omitting from subsection (2) "subsection
(1)" and substituting "subsection (1) or (1A)".
41
s. 56 No. Conveyancing 2004
PART 7 LEGAL PROFESSION ACT 1993
AMENDED
Principal Act
56. In this Part, the Legal Profession Act 1993* is referred
to as the Principal Act.
Section 54 amended (Offence to practise unless
admitted)
57. Section 54(2) of the Principal Act is amended by
inserting after paragraph (da) the following paragraph:
(db) acting as a conveyancer, within the meaning of
the Conveyancing Act 2004, if he or she is
authorised to do so under that Act; or
*No. 90 of 1993
42 Government Printer, Tasmania