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PARLIAMENT OF VICTORIA
Estate Agents and Sale of Land Acts (Amendment)
Act 2002
Act No.
TABLE OF PROVISIONS
Clause Page
PART 1--PRELIMINARY MATTERS 1
1. Purpose 1
2. Commencement 2
PART 2--AMENDMENTS TO THE SALE OF LAND ACT 1962 3
3. New Division 4 inserted into Part II 3
Division 4--Public Auctions 3
36A. This Division applies to publicly advertised auctions 3
36B. Dummy bidding prohibited 3
36C. Offences by auctioneers 5
36D. Offence to procure dummy bid 5
36E. Permissible vendor bids 6
36F. Offence to falsely acknowledge bid 7
36G. Conditions of auctions to be made available before
auction starts 8
36H. Auctioneer must declare that land is on the market 8
36I. Right to compensation if Division breached 8
36J. Contrary conditions are void 9
36K. Last vendor bids must be identified if property passed in 9
36L. Disruption of auction prohibited 11
36M. Regulations 12
36N. Penalties, examples and notes in same provision 14
4. Price not to be relevant for cooling-off period 14
5. Housekeeping amendment 14
PART 3--AMENDMENTS TO THE ESTATE AGENTS ACT 1980 15
Division 1--Prohibition on Underquoting and Overquoting 15
6. Insertion of sections 47A47D 15
47A. Seller must be given estimated selling price 15
47B. False representation to seller or prospective seller 16
47C. False representation to prospective buyer 16
47D. Director may require information concerning estimates 16
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Clause Page
Division 2--Rebates 17
7. Additional definition 17
8. Insertion of sections 48A48E 17
48A. Agent must not retain any rebate 17
48B. Rebates must be factored into costs of expenses 18
48C. Treatment of non-monetary rebates 20
48D. Repeated breaches within 12 months 20
48E. Right of recovery of rebates 21
9. Consequential and minor amendments 21
Division 3--Infringement Notices 23
10. Insertion of sections 95A95E 23
95A. Power to serve a notice 23
95B. Form of notice 23
95C. Late payment of penalty 24
95D. Withdrawal of notice 25
95E. Further proceedings concerning infringement notices 25
11. Insertion of supporting regulation-making powers 26
Division 4--Other Matters 27
12. Definitions 27
13. Variation of description of group to which Act does not apply 29
14. Updating of name of accounting body 29
15. Deletion of function of the Council 29
16. Insertion of sections 10A10D 29
10A. Director may approve registered education and
training organisations 29
10B. Courses of education for approved auditors 30
10C. Notice may be disallowed 30
10D. Further publication of notices 31
17. Insertion of sections 12A12C 31
12A. Injunction to stop unlicensed trading 31
12B. Court may make a temporary order without notice 32
12C. Undertakings as to damages and costs 33
18. Permitted activities of agent's representatives 33
19. Eligibility requirements for agent's licence 33
20. Licensing of corporations 33
21. Licensing of corporations--delayed changes 34
22. Eligibility requirements for agent's representatives 35
23. Repeal of transitional provision concerning agent's
representatives 37
24. Housekeeping amendment 37
25. Automatic cancellation of corporate licence 37
26. Insertion of section 22A 39
22A. Delay of effect of certain convictions 39
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Clause Page
27. Inquiries into estate agents and agents' representatives--
additional grounds 40
28. Section 29B substituted 40
29B. Duties of agents and officers in effective control 40
29C. Offence to procure contravention of section 29B 41
29. Consequential repeal 42
30. Insertion of section 31CA 42
31CA. Corporation may be allowed to hold licence despite
disqualifying factors 42
31. Conditions may be imposed on permission 45
32. Advertising by agents 45
33. Insertion of sections 4545B 45
45. Continuing professional development 45
45A. Requirement may be disallowed 46
45B. Further publication of requirement 47
34. Employment of agents' representatives 47
35. Substitution of section 48 48
48. Notice of commission sharing must be given 48
36. Restriction on agent purchasing property 49
37. Handling of trust money 50
38. New section 59A inserted 51
59A. Unidentified trust money 51
39. Keeping of trust accounts 51
40. New section 63A inserted 53
63A. Director's supervisory role in audits 53
41. Annual audit of trust accounts 53
42. Audits ordered by the Director 54
43. Audit where business ceased during the year 55
44. New section 64C inserted 55
64C. Unscheduled examination of accounts of trust money 55
45. Qualifications of auditors 56
46. Agents having no accounts to audit 57
47. Standardisation of inspection provisions 58
48. New sections 70A70E inserted 58
70A. Order requiring supply of information and answers
to questions 58
70B. Protection against self-incrimination 60
70C. Copies of seized documents 61
70D. Retention and return of seized documents 61
70E. Magistrates' Court may extend 3 month period 61
49. Dishonesty offences 62
50. Regulation-making powers 63
ENDNOTES 65
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PARLIAMENT OF VICTORIA
Initiated in Assembly 12 September 2002
A BILL
to amend the Estate Agents Act 1980 and the Sale of Land Act 1962
and for other purposes.
Estate Agents and Sale of Land Acts
(Amendment) Act 2002
The Parliament of Victoria enacts as follows:
PART 1--PRELIMINARY MATTERS
1. Purpose
The purpose of this Act is--
(a) to amend the Sale of Land Act 1962 to
5 regulate certain aspects of public auctions of
land, in particular bidding by, or on behalf
of, vendors; and
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Estate Agents and Sale of Land Acts (Amendment) Act 2002
Act No.
PART 1--PRELIMINARY matters
s. 2
(b) to amend the Estate Agents Act 1980--
(i) to prohibit estate agents from stating
misleading estimates of real estate sale
prices; and
5 (ii) to ensure that estate agents do not retain
any rebates or discounts attributable to
work they do for clients; and
(iii) to enable the issuing of infringement
notices under that Act; and
10 (iv) to enable the imposition of
requirements that estate agents and
agent's representatives undertake
continuing professional development
activities; and
15 (iv) to generally improve the operation of
that Act.
2. Commencement
(1) This section and section 1, Division 3 of Part 3
and sections 47 to 50 come into operation on the
20 day after the day on which this Act receives the
Royal Assent.
(2) Section 21 comes into operation on 1 July 2005.
(3) Subject to sub-section (4), the remaining
provisions of this Act come into operation on a
25 day or days to be proclaimed.
(4) If a provision of this Act referred to in sub-
section (3) does not come into operation before
1 December 2003, it comes into operation on that
day.
__________________
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Estate Agents and Sale of Land Acts (Amendment) Act 2002
Act No.
Part 2--AMENDMENTS TO THE sale of land Act 1962
s. 3
PART 2--AMENDMENTS TO THE SALE OF LAND ACT 1962
3. New Division 4 inserted into Part II
See: After section 36 of the Sale of Land Act 1962
Act No.
insert--
6975/1962.
Reprint No. 11
as at
5 'Division 4--Public Auctions
6 January
2000 and
amending
36A. This Division applies to publicly advertised
Act Nos
auctions
92/1990,
74/2000,
For the purposes of this Division an auction
11/2001,
26/2001,
is a public auction if it has been publicly
27/2001 and
10 advertised.
11/2002.
LawToday:
www.dms. 36B. Dummy bidding prohibited
dpc.vic.
gov.au
(1) A vendor of land must not make a bid at a
public auction of the land.
Penalty: In the case of a body corporate:
15 600 penalty units.
In any other case: 240 penalty
units.
(2) A person must not make a bid at a public
auction of land knowing that the bid is being
20 made on behalf of a vendor of the land.
Penalty: In the case of a body corporate:
600 penalty units.
In any other case: 240 penalty
units.
25 Example:
Ron is selling his house by public auction.
Jim approaches his friend Sally with a problem.
He wants to buy Ron's house, but he has been invited
to a wedding reception that will be held at the same
30 time as the auction. Sally agrees to attend the auction
with her mobile phone. Once the auction starts Sally
phones Jim and keeps him on the line.
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Part 2--AMENDMENTS TO THE sale of land Act 1962
s. 3
At a certain point in the auction Jim asks Sally to put
in a bid on his behalf. She raises her hand and has her
bid acknowledged. What Sally doesn't know,
however, is that Jim is Ron's brother and that Ron had
5 asked him to put in a dummy bid at the auction.
In this scenario, even though Sally has effectively put
in a bid on behalf of Ron at the auction, she has not
committed an offence. Jim is guilty of an offence
under this sub-section because he made (through his
10 agent Sally) a bid on behalf of the vendor. (Ron is
guilty of an offence against section 36D for procuring
Jim to make the bid.)
If Sally had been aware that Jim was bidding on
behalf of Ron, she too would have committed an
15 offence against this sub-section.
(3) For the purposes of sub-section (2), a bid
may be found to have been made on behalf
of a vendor even though it is not made at the
request of, or with the knowledge of, the
20 vendor.
Note: See the example at the foot of sub-section (4)
for an illustration of the operation of this sub-
section.
(4) Evidence that a person who made a bid at a
25 public auction had the intention of benefiting
the vendor in making the bid is evidence that
the person made the bid on behalf of the
vendor.
Example:
30 Ron is selling his house by public auction. Ron's
father Frank makes a bid at the auction. At the time
he made the bid he had no intention of buying Ron's
house. He simply wanted "to help Ron get the
price up to the reserve". In these circumstances there
35 is, in the absence of some other explanation, sufficient
evidence for a court to convict Frank of a breach of
sub-section (2) even in the absence of evidence that
Ron had asked Frank to make the bid.
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Estate Agents and Sale of Land Acts (Amendment) Act 2002
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Part 2--AMENDMENTS TO THE sale of land Act 1962
s. 3
(5) It is immaterial that a person making a bid in
contravention of this section is not in
Victoria at the time the bid is made.
Example:
5 In the circumstances outlined in the example under
sub-section (2), Jim would still be guilty of an offence
under sub-section (2) even though he was in San
Francisco at the time he asked Sally to put in the bid.
36C. Offences by auctioneers
10 (1) The auctioneer of land at a public auction
must not accept a bid at the auction if he or
she knows that the bid was made by, or on
behalf of, a vendor of the land.
Penalty: 240 penalty units.
15 Note: See the example at the foot of section 36F for
an illustration of the operation of this sub-
section.
(2) The auctioneer of land at a public auction
must not acknowledge the making of a bid at
20 the auction if no bid was made.
Penalty: 240 penalty units.
Note: See the example at the foot of section 36F for
an illustration of the operation of this sub-
section.
25 36D. Offence to procure dummy bid
A person must not procure another person to
make a bid at a public auction of land that is
contrary to section 36B.
Penalty: In the case of a body corporate:
30 600 penalty units.
In any other case: 240 penalty
units.
Note: See the example at the foot of section 36B(2)
for an illustration of the operation of this sub-
35 section.
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Estate Agents and Sale of Land Acts (Amendment) Act 2002
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Part 2--AMENDMENTS TO THE sale of land Act 1962
s. 3
36E. Permissible vendor bids
(1) Despite section 36B(2), the auctioneer of
land at a public auction may make a bid on
behalf of a vendor of the land if--
5 (a) the conditions under which the auction
is conducted permit the making of the
bid; and
(b) before any bidding started, the
auctioneer orally declared at the auction
10 that the conditions permit the making of
the bid; and
(c) immediately before, or in the process
of, making the bid, the auctioneer
audibly states that the bid is being made
15 on behalf of the vendor.
(2) It is sufficient compliance with the
requirement under sub-section (1)(c) to
identify a bid as a vendor bid if the
auctioneer states "vendor bid" in making the
20 bid.
Example:
Ron is selling his house by public auction.
The auction conditions allow vendor bids and Maria,
the auctioneer, states this clearly before taking any
25 bids. At one point in the auction bidding stops at a
point well below Ron's reserve price. To try to move
things along Maria decides to put in a vendor bid on
Ron's behalf. She announces "I make a vendor bid of
$150 000". Maria has made a valid vendor bid in
30 accordance with the requirements of sub-section (1).
(3) It is not sufficient compliance with the
requirement under sub-section (1)(c) to
identify a bid as a vendor bid if the
auctioneer merely identifies the vendor by
35 name without stating that the vendor is a
vendor.
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Estate Agents and Sale of Land Acts (Amendment) Act 2002
Act No.
Part 2--AMENDMENTS TO THE sale of land Act 1962
s. 3
Example:
Ron is selling his house by public auction. If the
auctioneer Maria decided to make a bid on Ron's
behalf, and did so by saying "I make this bid on
5 behalf of Ron Smith", she would not have made a
valid bid under sub-section (1) because she did not
make it clear in making the bid that Ron is the vendor.
36F. Offence to falsely acknowledge bid
A person at a public auction of land must not
10 falsely claim to have made a bid, or falsely
acknowledge that he or she made a bid.
Penalty: 240 penalty units.
Example:
Ron is still trying to sell his house by public auction.
15 His brother Jim agrees to help him. Just before the
auction starts Ron introduces Jim to Maria, the
auctioneer, and all 3 of them have a chat.
The auction starts. At one point the bidding seems to
stop. The reserve price is still a mere hope on the
20 horizon. To get things going again Maria takes a bid
from a convenient tree. (In doing this, she commits
an offence against section 36C(2).) One of the
previous bidders is suspicious and asks Maria to
identify the last bidder. Maria points to Jim standing
25 under the tree and asks him to acknowledge making
the last bid. In accordance with his pre-auction
discussion with Maria, Jim raises his hand. In doing
so he commits an offence against this section. He is
not guilty of an offence against section 36B because
30 he did not make a bid at the auction.
If Jim had made a bid and Maria had accepted the bid,
Maria would have committed an offence against
section 36C(1).
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Part 2--AMENDMENTS TO THE sale of land Act 1962
s. 3
36G. Conditions of auctions to be made available
before auction starts
Before a public auction of land starts, the
auctioneer of the land must cause a copy of
5 the conditions under which the auction is to
be conducted to be available for inspection at
the location where the auction is to take
place by any person attending the auction.
Penalty: 60 penalty units.
10 36H. Auctioneer must declare that land is on the
market
(1) As soon as possible after becoming aware
that the bidding at a public auction of land
has reached a price at which the vendor of
15 the land is willing to sell the land, the
auctioneer must announce that that price has
been reached.
Penalty: 240 penalty units.
(2) It is sufficient compliance with sub-
20 section (1) if the auctioneer states that the
land "is on the market" once the price has
been reached.
(3) If a vendor intends to sell land at a public
auction regardless of the final price that is
25 bid and the auctioneer is aware of that fact
before the auction starts, the auctioneer must
state that fact before calling for bids.
Penalty: 240 penalty units.
36I. Right to compensation if Division breached
30 (1) A purchaser of land at a public auction is
entitled to compensation from any person
who fails to comply with this Division (other
than section 36L) for any loss or damage
suffered by the purchaser as a result of that
35 failure to comply.
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Estate Agents and Sale of Land Acts (Amendment) Act 2002
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Part 2--AMENDMENTS TO THE sale of land Act 1962
s. 3
(2) An application for compensation under this
section--
(a) must be lodged with the Victorian Civil
and Administrative Tribunal; and
5 (b) must be lodged before the second
anniversary of the date of the auction.
(3) If compensation is sought under this section
from a vendor of the land and the Tribunal is
satisfied that the application for
10 compensation is frivolous, vexatious or
without substance, it may order the applicant
to pay compensation to the vendor for any
loss or damage the vendor has suffered as a
result of the application.
15 (4) The power conferred by sub-section (3) is in
addition to any power the Tribunal has to
order the payment of costs in relation to the
application.
36J. Contrary conditions are void
20 Any conditions applying to the sale of any
land at public auction that are contrary to, or
that purport to restrict or modify, any
requirement imposed by or under this
Division are void.
25 36K. Last vendor bids must be identified if
property passed in
(1) This section applies if a public auction of
land is held at which the land is not sold, and
the last bid made before the auction stopped
30 was a bid made by the auctioneer of the land
on behalf of a vendor of the land.
(2) In making any statement while marketing the
land, a person must not state the amount of
the last bid without also stating that the bid
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Estate Agents and Sale of Land Acts (Amendment) Act 2002
Act No.
Part 2--AMENDMENTS TO THE sale of land Act 1962
s. 3
was a bid made on behalf of a vendor of the
land.
Penalty: In the case of a body corporate:
600 penalty units.
5 In any other case: 240 penalty
units.
(3) For the purposes of sub-section (2), a
statement is made while marketing land if--
(a) it is made in an advertisement in
10 respect of the land that is published, or
caused to be published, by the person;
or
(b) it is made (whether orally or in writing)
to a person as a prospective purchaser
15 of the land.
(4) A person who is a publisher of land auction
sales results must not publish the fact that the
land was passed in for the amount of the last
bid without also stating that the bid was a bid
20 made on behalf of a vendor of the land.
Penalty: In the case of a body corporate:
600 penalty units.
In any other case: 240 penalty
units.
25 (5) It is a defence to a charge against sub-
section (2) or (4) if the person making the
statement, or publishing the amount--
(a) was not present at the auction; and
(b) relied on a statement made by a person
30 who purported to know what happened
at the auction; and
(c) made all reasonable enquiries before
making the statement, or publishing the
amount.
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Estate Agents and Sale of Land Acts (Amendment) Act 2002
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Part 2--AMENDMENTS TO THE sale of land Act 1962
s. 3
(6) It is sufficient compliance with sub-
section (2) or (4) if the amount is described
as a "vendor bid".
36L. Disruption of auction prohibited
5 (1) This section applies to--
(a) a person intending to make a bid on his
or her own behalf, or on behalf of
another person, at a public auction of
land;
10 (b) a person acting on behalf of a person
intending to make a bid at a public
auction of land.
(2) The person must not knowingly prevent or
hinder any other person whom he or she
15 knows or believes is an actual or potential
rival bidder from attending, participating in,
or bidding at, the auction.
Penalty: 60 penalty units.
(3) The person must not harass any other person
20 whom he or she knows or believes is an
actual or potential rival bidder with the
intention of interfering with that other
person's attendance at, participation in, or
bidding at, the auction.
25 Penalty: 60 penalty units.
(4) The person must not induce, or attempt to
induce, another person whom he or she
knows or believes is an actual or potential
rival bidder to not attend the auction, or to
30 not make a bid at the auction.
Penalty: 60 penalty units.
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Part 2--AMENDMENTS TO THE sale of land Act 1962
s. 3
(5) The person must not do any thing with the
intention of preventing, causing a major
disruption to, or causing the cancellation of,
the auction.
5 Penalty: 60 penalty units.
Example:
Fred attends a public auction of a house he intends
bidding for. His son accompanies him to the auction
with a radio. At one point during the auction Fred's
10 son whispers into Fred's ear. Fred immediately
interrupts the auctioneer to announce that Essendon
has just beaten Carlton at the match at the MCG.
While this announcement causes the auctioneer to
lose concentration and to stop taking bids, she is
15 quickly able to resume the auction. Fred has not
caused a major disruption to the auction.
Harry attends a public auction of a house he intends
bidding for. Shortly after the auction starts he sets off
a stink bomb. It is not possible to resume the auction
20 until the fumes from the bomb have dissipated, which
takes 30 minutes. Harry has caused a major
disruption to the auction and has thus committed an
offence against sub-section (5).
(6) Sub-section (5) is not intended to preclude a
25 person at the auction from asking, in good
faith, a reasonable number of questions about
the land, the contract of sale and the conduct
of the auction.
36M. Regulations
30 (1) The Governor in Council may make
regulations for or with respect to--
(a) regulating the conduct of public
auctions of land;
(b) prescribing standard rules for the
35 conduct of public auctions of land;
(c) regulating signs and documents relating
to public auctions of land;
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Part 2--AMENDMENTS TO THE sale of land Act 1962
s. 3
(d) requiring the provision of specified
information to potential purchasers of
land that is to be sold at public auction;
(e) prescribing any other matter or thing
5 authorised or required to be prescribed
or necessary or convenient to be
prescribed for the purposes of this
Division.
(2) The regulations--
10 (a) may be of general, or of specially
limited, application;
(b) may differ according to differences in
time, place or circumstance;
(c) may require a matter affected by the
15 regulations to be--
(i) in accordance with a specified
standard or specified requirement;
or
(ii) approved by, or to the satisfaction
20 of, a specified person or a
specified class of person; or
(iii) as specified in both sub-
paragraphs (i) and (ii);
(d) may apply, adopt or incorporate any
25 matter contained in any existing
document either wholly, or partially, or
as amended by the regulations;
(e) may confer a discretionary authority or
impose a duty on a specified person or
30 a specified class of person;
(f) may provide, in a specified case or
class of case, for the exemption of
people or things from any of the
provisions of the regulations, whether
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Estate Agents and Sale of Land Acts (Amendment) Act 2002
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s. 4
unconditionally or on specified
conditions, and either wholly or to the
extent specified;
(g) may impose a penalty not exceeding
5 20 penalty units for a contravention of
the regulations.
36N. Penalties, examples and notes in same
provision
For the purposes of section 111 of the
10 Sentencing Act 1991, the specification of a
penalty in respect of a provision in this
Division is to be considered to be at the foot
of the provision even if it is followed by an
example or a note that applies to that
15 provision, and for the purposes of section
36(3A) of the Interpretation of Legislation
Act 1984, the example or note is also to be
considered to be at the foot of the provision.'.
4. Price not to be relevant for cooling-off period
20 In the Sale of Land Act 1962--
(a) in section 30(1), the definition of "prescribed
amount" is repealed;
(b) in section 31(1), for all words and
expressions after "is used primarily for"
25 substitute "farming.".
5. Housekeeping amendment
In section 32(1A)(c) of the Sale of Land Act
1962, omit "and 6 months".
__________________
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Estate Agents and Sale of Land Acts (Amendment) Act 2002
Act No.
part 3--AMENDMENTS TO THE estate agents act 1980
s. 6
PART 3--AMENDMENTS TO THE ESTATE AGENTS ACT
1980
Division 1--Prohibition on Underquoting and Overquoting
6. Insertion of sections 47A47D
5 See: After section 47 of the Estate Agents Act 1980
Act No.
insert--
9428/1980.
Reprint No. 7
"47A. Seller must be given estimated selling price
as at
13 January
(1) Before obtaining a person's signature to an
2000 and
amending
engagement or appointment to sell any real
Act Nos
10 estate on behalf of the person, an estate agent
35/2000,
74/2000,
(or an agent's representative employed by the
11/2001,
agent) must ensure that the engagement or
44/2001,
72/2001,
appointment states the agent's (or
84/2001 and
representative's) estimate of the selling price
9/2002.
LawToday:
15 of the real estate.
www.dms.
dpc.vic.
Penalty: 100 penalty units.
gov.au
(2) The estimate--
(a) must be a single amount (rather than a
price range); and
20 (b) must be the amount the agent or
representative believes, on the basis of
his or her experience, skills and
knowledge, that a willing but not
anxious buyer would pay for the real
25 estate; and
(c) must be set out in a manner approved
by the Director.
(3) Nothing in this section requires the estimated
selling price and the seller's reserve price to
30 be the same amount.
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Act No.
part 3--AMENDMENTS TO THE estate agents act 1980
s. 6
47B. False representation to seller or prospective
seller
An estate agent or agent's representative
must not make a false representation to a
5 seller or prospective seller of real estate as to
the agent's or representative's estimate of the
selling price of the real estate.
Penalty: 200 penalty units.
47C. False representation to prospective buyer
10 (1) This section applies to an estate agent who
holds a written engagement or appointment
to sell real estate, and to any agent's
representative employed by the agent.
(2) In making any statement while marketing the
15 real estate, the agent or representative must
not state as his or her estimate of the selling
price of the real estate a price that is less than
the estimated selling price stated in the
engagement or appointment.
20 Penalty: 200 penalty units.
(3) For the purposes of this section, a statement
is made while marketing real estate if--
(a) it is made in an advertisement in
respect of the property that is
25 published, or caused to be published, by
the agent; or
(b) it is made (whether orally or in writing)
to a person as a prospective purchaser
of the real estate.
30 47D. Director may require information
concerning estimates
(1) The Director may require an estate agent
who has accepted an engagement or
appointment to sell real estate to provide the
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Director with evidence of the reasonableness
of the estimated selling price of the real
estate set out in the engagement or
appointment.
5 (2) The Director must make the requirement in
writing and must specify the date by which
the agent must comply with the requirement.
(3) The agent must comply with the requirement
on or before the compliance date specified in
10 the notice.
Penalty applying to this sub-section:
60 penalty units.".
Division 2--Rebates
7. Additional definition
15 In section 4(1) of the Estate Agents Act 1980,
insert the following definition--
' "rebate" includes any discount, commission or
other benefit;'.
8. Insertion of sections 48A48E
20 After section 48 of the Estate Agents Act 1980
insert--
"48A. Agent must not retain any rebate
(1) An estate agent who is engaged or appointed
to do any estate agency work for a person
25 (the client) is not entitled to retain any
amount the agent receives from another
person as a rebate in respect of--
(a) any outgoings; or
(b) any prepayments made by the client in
30 respect of any intended expenditure by
the agent on the client 's behalf; or
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(c) any payments made by the client to
another person in respect of the work.
(2) On receiving any amount of rebate referred
to in sub-section (1), the agent must
5 immediately pay the amount to the client.
Penalty: 60 penalty units.
(3) Despite sub-section (2), the agent does not
have to pay to the client an amount of rebate
if the agent, in anticipation of receiving the
10 rebate, has already given that amount to the
client either directly or by reducing the
amount charged for the outgoing or
prepayment to which the rebate relates.
Note: See the example at the foot of section 48B for
15 an illustration of the operation of this sub-
section.
48B. Rebates must be factored into costs of
expenses
(1) An estate agent must not seek to obtain from
20 the client an amount for any outgoings or
proposed outgoings (the expenses) that is
more than the amount paid, or payable, by
the agent for those expenses.
Penalty: 60 penalty units.
25 (2) In determining the amount paid, or payable,
by the agent, any amount of rebate received
or receivable by the agent in respect of the
expenses must be taken into account by the
agent.
30 (3) If it is not possible to determine the final
amount paid, or payable, for the expenses at
the time the agent seeks payment for those
expenses, the agent may estimate the
amount.
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(4) If an estimate is made and paid, and the
agent becomes aware that the amount paid in
respect of the expenses is less than the
estimate, the agent must immediately pay
5 any difference between the estimate and the
amount paid by the agent to the client.
Penalty: 60 penalty units.
(5) For the purposes of this section, an amount
of rebate is receivable by an agent only if the
10 agent has an accrued right to receive the
amount at the time the agent seeks payment
in respect of the expenses in respect of which
the rebate is to be received the amount is
not receivable if at that time the receipt of
15 the rebate is contingent on the happening of
an event that has not occurred.
Example:
Smyth & Daughters (Smyth), a licensed estate agent,
has an agreement with the Williamport News (the
20 News). In any quarter in which Smyth places more
than $50 000 worth of advertisements ("ads"), the
News will give it a rebate equal to 20% of the value of
the ads placed in that quarter, payable as a lump sum
one month after the end of the quarter.
25 On 14 January, Xinmei engages Mary, an estate agent
who works for Smyth, to sell her house. At that time
Mary knows that Smyth has only placed $3000 worth
of ads with the News for the first quarter of the year.
The cost of placing ads for Xinmei's house for
30 4 weeks in the News would normally be $600.
As Smyth's right to the 20% rebate at that time is
contingent on it placing $50 000 worth of ads, Mary is
able (as a result of sub-section (5)) to ask Xinmei for
a prepayment of $600 in respect of the ads without
35 taking into account the possible rebate.
On 20 March, Hue engages Mary to sell his house.
Mary knows that by that stage Smyth has placed
$55 000 worth of ads with the News for the quarter.
As, under its agreement with the News, Smyth has an
40 accrued right to the 20% rebate for that quarter, Mary
is only entitled (as a result of sub-sections (2) and (5))
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to ask Hue for a prepayment of $480 ($600 less 20%
($120)).
When the News actually pays Smyth the rebate that
Smyth has earned for the first quarter, Smyth must
5 immediately pay $120 of the rebate to Xinmei (in
order to comply with section 48A(2)) (assuming that
Xinmei paid Mary $600 in respect of the ads).
If by 20 March Smyth had only placed $48 000 worth
of ads, Mary would be able to ask Hue for a
10 prepayment of $600, but might be well advised to
only ask for $480 to avoid having to refund Hue $120
in the more than likely event that Smyth will receive a
rebate from the News for the first quarter. If this
event occurs and Hue only paid $480 for the ads, then
15 section 48A(3) ensures that Smyth does not have to
make any further payment to Hue in respect of the ads
when it receives the rebate payment from the News.
48C. Treatment of non-monetary rebates
(1) For the purposes of sections 48A and 48B, if
20 a rebate is, or is to be, obtained as a benefit
rather than as a payment of money, a
reference in those sections to the amount of
the rebate is to be read as a reference to the
value of the rebate.
25 (2) The dollar amount that is to be attributed to
the value of the rebate is a reasonable
estimate of the value of the rebate in dollars
to the agent.
48D. Repeated breaches within 12 months
30 (1) A person who on 3 or more separate
occasions occurring on separate days within
any period of 12 months engages in conduct
that constitutes an offence against section
48A or 48B is guilty of an offence and is
35 liable to a penalty not exceeding 240 penalty
units.
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(2) It is immaterial whether or not the conduct is
of the same nature, or constitutes the same
offence, on each occasion.
(3) Proceedings cannot be taken under this
5 section in respect of conduct occurring on a
particular occasion if that conduct has
resulted in a charge of committing an offence
against section 48A or 48B being found
proven against the person.
10 48E. Right of recovery of rebates
A person who is entitled to be paid an
amount in respect of a rebate under
section 48A or 48B may recover the amount
as a debt due to the person by the agent if the
15 agent fails to pay the amount to the person as
required by that section.".
9. Consequential and minor amendments
(1) For section 49A(1)(c)(iii) of the Estate Agents
Act 1980 substitute--
20 "(iii) a rebate statement that complies with sub-
section (4); and".
(2) After section 49A(3) of the Estate Agents Act
1980 insert--
"(4) A rebate statement complies with this sub-
25 section if it is in a form approved by the
Director and it contains--
(a) a statement of whether or not the agent
will be, or is likely to be, entitled to any
rebate in respect of--
30 (i) any outgoings; or
(ii) any prepayments made by the
person engaging or appointing the
agent (the client) in respect of any
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intended expenditure by the agent
on the client's behalf; or
(iii) any payments made by the client
to another person in respect of the
5 work; and
(b) if such an entitlement will, or is likely
to, occur, details of--
(i) the goods or services to which the
rebate relates; and
10 (ii) the name of the person providing
the rebate; and
(iii) the amount of the rebate that will
be attributable to the engagement
or appointment, or if that amount
15 is not known at the time the
statement is made, an estimate (in
dollars) of the amount; and
(c) a statement that the agent is not entitled
to retain any rebate and must not charge
20 the client an amount for any expenses
that is more than the cost of those
expenses; and
(d) any other statements or details required
by the regulations.
25 (5) Section 48C also applies for the purposes of
sub-section (4)(b)(iii).".
(3) In section 50 of the Estate Agents Act 1980--
(a) in sub-section (1), for "Subject to sub-
section (2) an estate agent shall not be"
30 substitute "An estate agent is not";
(b) in sub-section (1)(a), after "he" insert
"or she";
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(c) after sub-section (1)(b) insert--
"; and
(c) the agent has complied with sections
48A and 48B with respect to the
5 engagement or transaction.";
(d) in sub-section (4), after "him" (wherever
occurring) insert "or her";
(e) in sub-section (5), after "he" (wherever
occurring) insert "or she".
10 Division 3--Infringement Notices
10. Insertion of sections 95A95E
After section 95 of the Estate Agents Act 1980
insert--
'95A. Power to serve a notice
15 (1) An authorised officer may serve an
infringement notice on any person that she or
he has reason to believe has committed an
offence specified by the regulations as an
offence in respect of which an infringement
20 notice may be issued.
(2) In this Division "authorised officer"
means--
(a) an inspector appointed under the Fair
Trading Act 1999;
25 (b) a member of the police force;
(c) a person authorised in writing by the
Director.
95B. Form of notice
An infringement notice must be in a form
30 approved by the Director and must set out--
(a) the date of the notice;
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(b) the provision of this Act or the
regulations that creates the offence;
(c) the date, time and place of the offence;
(d) the nature of the offence and a brief
5 description of the offence;
(e) the infringement notice penalty for the
offence set out in the regulations;
(f) how the infringement notice penalty
may be paid;
10 (g) the time (not being less than 28 days
after the date on which the notice is
served) within which the infringement
notice penalty must be paid;
(h) that if the infringement notice penalty is
15 paid before the end of that time, the
matter will not be brought before the
Magistrates' Court unless the notice is
withdrawn within 28 days after the date
on which it was served;
20 (i) that the person is entitled to disregard
the notice and defend any proceedings
in respect of the alleged offence in the
Magistrates' Court;
(j) any other details required by the
25 regulations.
95C. Late payment of penalty
If a charge has not been filed, and a courtesy
letter has not been served, under Part 2 of
Schedule 7 to the Magistrates' Court Act
30 1989 in respect of the offence, the authorised
officer may accept payment of the
infringement notice penalty even if the time
specified in the notice as the time within
which the penalty may be paid has expired.
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95D. Withdrawal of notice
(1) The Director may withdraw an infringement
notice within 28 days after it was served by
serving a withdrawal notice on the person on
5 whom the infringement notice was served.
(2) If the penalty sought in the infringement
notice has been paid before the notice is
withdrawn, the Director must refund the
amount of the penalty on withdrawing the
10 notice.
(3) Proceedings for the offence in respect of
which an infringement notice has been
served may still be taken or continued
despite the withdrawal of the notice.
15 95E. Further proceedings concerning
infringement notices
(1) Subject to section 95D, if the penalty sought
in an infringement notice is paid within the
time specified in the notice or if the
20 authorised officer accepts the payment of the
penalty under section 95C, then--
(a) the person on whom the notice was
served has expiated the offence by that
payment; and
25 (b) no further proceedings concerning the
offence may be taken against that
person; and
(c) no conviction is to be recorded against
that person for the offence.
30 (2) If proceedings are taken against a person in
respect of an offence for which an
infringement notice was served on the person
and a court finds the person guilty of the
offence, the finding is not to be taken as a
35 conviction for any purpose except--
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(a) the making of the finding itself; and
(b) any later proceedings that may be taken
in respect of the finding itself
(including proceedings by way of
5 appeal or review).
(3) Sub-section (2) does not apply to
proceedings taken after the withdrawal of an
infringement notice.
(4) The payment of a penalty sought by an
10 infringement notice is not and must not be
taken to be--
(a) an admission of guilt in relation to the
offence in respect of which the notice
was issued; or
15 (b) an admission of liability for the purpose
of any civil claim or proceeding arising
out of the same occurrence, and the
payment does not in any way affect or
prejudice any such claim or proceeding.
20 (5) Nothing in this section prevents the Tribunal
from conducting an inquiry under section 25
or 28 and taking disciplinary action under
section 28A against a person for any act or
omission for which an infringement notice
25 was issued.'.
11. Insertion of supporting regulation-making powers
After section 99(f) of the Estate Agents Act 1980
insert--
"(fa) prescribing, for the purposes of sections 95A
30 to 95E--
(i) the offences under this Act or the
regulations in respect of which an
infringement notice may be issued; and
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(ii) the penalties that apply if those
offences are dealt with by an
infringement notice;".
Division 4--Other Matters
5 12. Definitions
(1) In section 4(1) of the Estate Agents Act 1980--
(a) in the definition of "approved industry
association", for paragraph (b) substitute--
"(b) the Stock and Station Agents'
10 Association Limited
A.C.N. 096 142 880;";
(b) in the definition of "estate agent" or
"agent"--
(i) in paragraph (c), for "for; or" substitute
15 "for--";
(ii) paragraph (d) is repealed;
(c) the definition of "practising public
accountant" is repealed;
(d) insert the following definitions--
20 ' "approved auditor" means a person
who--
(a) is a member of CPA Australia, the
National Institute of Accountants
or The Institute of Chartered
25 Accountants in Australia; and
(b) meets the requirements of one of
those bodies to practise as a public
accountant; and
(c) has obtained a degree in
30 commerce, accounting, business
studies or a similar discipline from
an Australian university or from a
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foreign university approved by the
Council; and
(d) has successfully completed any
courses of education required by
5 the Director under section 10B;
and
(e) has completed or substantially
assisted in carrying out the audit
of the trust accounts of at least
10 2 estate agents in respect of any of
the previous 3 audit years;
"CPA Australia" means CPA Australia
A.C.N. 008 392 452;
"publish" means publish by any means,
15 including by publication on the
Internet;
"registered education and training
organisation" means a registered
education and training organisation as
20 defined in section 3 of the Victorian
Qualifications Authority Act 2000;'.
(2) After section 4(2) of the Estate Agents Act 1980
insert--
'(3) A reference in this Act to--
25 (a) "he or she", "she or he", "him or her" or
"her or him" is to be read as including a
reference to "it", if the context permits;
(b) "his or her" or "her or his" is to be read
as including a reference to "its", if the
30 context permits.
(4) A reference in this Act to "people" includes a
reference to bodies corporate and politic,
unless the contrary intention appears.'.
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13. Variation of description of group to which Act does
not apply
For section 5(2)(f) of the Estate Agents Act 1980
substitute--
5 "(f) any person engaged for the purpose only of
auditing accounts under Part VI;".
14. Updating of name of accounting body
In section 6(2)(d) of the Estate Agents Act 1980,
for "the Australian Society of Certified Practising
10 Accountants" substitute "CPA Australia".
15. Deletion of function of the Council
Section 6B(2)(f) of the Estate Agents Act 1980 is
repealed.
16. Insertion of sections 10A10D
15 After section 10 of the Estate Agents Act 1980
insert--
'10A. Director may approve registered education
and training organisations
(1) For the purposes of section 14 or 16, the
20 Director may, by notice published in the
Government Gazette, approve a registered
education and training organisation to
conduct a prescribed course of instruction or
examination.
25 (2) The Director may, by notice published in the
Government Gazette, revoke an approval
made under sub-section (1).
(3) An approval, or a revocation of an approval,
takes effect on the date notice of the
30 approval or revocation is published in the
Government Gazette, or on any later date
specified in the notice.
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(4) In revoking the approval of an organisation,
the Director may provide for transitional
arrangements to minimise the disruption
caused to students as a result of the
5 revocation.
10B. Courses of education for approved auditors
(1) The Director, by notice published in the
Government Gazette, may prescribe courses
of education required to be completed by a
10 person wishing--
(a) to audit trust accounts under this Act;
or
(b) to be employed or engaged to assist in
the audit of trust accounts under this
15 Act.
(2) The Director may, by notice published in the
Government Gazette, revoke a prescription
of a course made under sub-section (1).
(3) A prescription, or a revocation of a
20 prescription, takes effect on the date notice
of the prescription or revocation is published
in the Government Gazette, or on any later
date specified in the notice.
(4) In revoking the prescription of a course, the
25 Director may provide for transitional
arrangements to minimise the disruption
caused to students as a result of the
revocation.
10C. Notice may be disallowed
30 (1) On or before the 6th sitting day after a notice
under section 10A or 10B is published in the
Government Gazette, the Minister must
ensure that a copy of the notice is laid before
each House of the Parliament.
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(2) A failure to comply with sub-section (2) does
not affect the operation or effect of the notice
but the Scrutiny of Acts and Regulations
Committee of the Parliament may report the
5 failure to each House of the Parliament.
(3) A notice may be disallowed in whole or in
part by either House of Parliament.
(4) Part 5 of the Subordinate Legislation Act
1994 applies to a notice as if--
10 (a) a reference in that Part to a "statutory
rule" were a reference to the notice; and
(b) a reference in section 23(1)(c) of that
Part to "section 15(1)" were a reference
to sub-section (1).
15 10D. Further publication of notices
(1) The Director must publish a notice under
section 10A or 10B on an Internet site
maintained by the Director or the Authority
as soon as is practicable after the notice is
20 published in the Government Gazette.
(2) A failure to comply with sub-section (1) does
not affect the validity of a notice.'.
17. Insertion of sections 12A12C
After section 12 of the Estate Agents Act 1980
25 insert--
"12A. Injunction to stop unlicensed trading
(1) The Director may apply to the Magistrates'
Court for an order requiring a person to do
one or more of the following--
30 (a) to stop carrying on the business of an
estate agent;
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(b) to not transfer or dispose of any money
or other property held on behalf of
another person in connection with an
unlicensed estate agency business.
5 (2) The Court may make the order if it is
satisfied that the person is carrying on the
business of an estate agent and is not a
licensed estate agent.
12B. Court may make a temporary order without
10 notice
(1) The Court may make a temporary order
under section 12A if it is satisfied--
(a) that there are reasonable grounds for
believing that the application under that
15 section might be successful; and
(b) that having regard to all the relevant
circumstances, the public interest will
be best served by the making of the
order.
20 (2) The Court may make a temporary order
without giving the person against whom the
order is sought an opportunity to be heard.
(3) In making a temporary order the Court--
(a) must specify the date on which the
25 order expires; and
(b) must not specify an expiry date that is
more than 30 days after the date it
makes the order.
(4) The Court may extend a temporary order, but
30 only if it has started to hear the application
under section 12A to which the order relates.
(5) The Court may extend a temporary order
under sub-section (4) until it gives its
decision on the application.
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(6) On the application of the Director or the
person against whom an order is sought
under section 12A, the Court may vary or
rescind any temporary order.
5 12C. Undertakings as to damages and costs
In an application for an order under
section 12A, if the Court has determined to
grant a temporary order, the Court must not,
as a condition of granting the temporary
10 order, require the Director or any other
person to give any undertaking as to
damages or costs.".
18. Permitted activities of agent's representatives
In section 13(2) of the Estate Agents Act 1980,
15 after "of an estate agent" insert "(other than
managing the day to day operation of an estate
agency office)".
19. Eligibility requirements for agent's licence
For section 14(1)(c) of the Estate Agents
20 Act 1980 substitute--
"(c) she or he has met any other requirements
establishing competency set out in the
regulations.".
20. Licensing of corporations
25 (1) In section 15(1)(a) of the Estate Agents
Act 1980, for "not less than one-half" substitute
"at least one".
(2) For sections 15(1A), 15(1B), 15(1C), 15(2),
15(2A), 15(3) and 15(3A) of the Estate Agents
30 Act 1980 substitute--
"(2) A corporation is not eligible to be granted an
estate agent's licence, or to hold or to
continue to hold an estate agent's licence, if
the spouse or domestic partner, parent,
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brother, sister or child (other than a licensed
estate agent) of an agent's representative who
is engaged in the estate agency business of
the corporation is a director of the
5 corporation.
(2A) Sub-section (2) does not apply to a
corporation if the corporation is a listed
corporation within the meaning of the
Corporations Act.
10 (3) A corporation is not eligible to be granted an
estate agent's licence if any of its directors
would be ineligible, under section 14(5), to
be granted an estate agent's licence as an
individual.".
15 21. Licensing of corporations--delayed changes
(1) For section 15(1) of the Estate Agents Act 1980
substitute--
"(1) Subject to this section, a corporation is not
eligible to be granted an estate agent's
20 licence, or to hold or to continue to hold an
estate agent's licence, unless the corporation
has a licensed estate agent acting as the
officer in effective control of its estate
agency business.".
25 (2) Sections 15(4) and 15(7) of the Estate Agents
Act 1980 are repealed.
Note: Section 2(2) provides for this section to come into
operation on 1 July 2005. Section 20 will come into
operation on a day to be proclaimed on or before
30 1 December 2003.
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22. Eligibility requirements for agent's representatives
(1) After section 16(1) of the Estate Agents Act 1980
insert--
"(1A) Despite sub-section (1), a person remains
5 eligible to be employed as an agent's
representative for 30 days after the person--
(a) has, in relation to anything he or she
has done or not done, a claim allowed
against the Estate Agents' Guarantee
10 Fund under Part VII or any
corresponding fund established under
any corresponding previous enactment;
or
(b) becomes an insolvent under
15 administration; or
(c) is convicted of, or has found proven
against him or her, any offence
involving fraud, dishonesty, drug
trafficking or violence which is
20 punishable by imprisonment for
3 months or more.
Note: Section 22A provides that if an agent's
representative is convicted of, or has found
proven against him or her, an offence described
25 in sub-section (1)(c), the conviction or finding
doesn't take effect (and thus the 30 day period
doesn't begin) until all avenues of appeal in
relation to the conviction or finding have been
exhausted.
30 (1B) A person who applies within the 30 day
period referred to in sub-section (1A) for
permission under section 31A, 31B or 31C to
be employed as an agent's representative
remains eligible to be employed as an agent's
35 representative until the application is
withdrawn or is refused by the Authority.".
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(2) For section 16(4)(a) of the Estate Agents Act
1980 substitute--
"(a) has been given--
(i) a copy of a certificate from the Chief
5 Commissioner of Police that indicates
that the person is not ineligible to be an
agent's representative under sub-
section (1)(c) and that--
(A) is not more than 6 months old; or
10 (B) is more than 6 months old, but
that is accompanied by a statutory
declaration of the person stating
that he or she has not been found
guilty of any disqualifying
15 offence; or
(ii) a copy of a notice given before 1 July
1998 by the former Estate Agents
Licensing Authority that indicates that
the person is not ineligible to be an
20 agent's representative under sub-section
(1)(c) and that is accompanied by a
statutory declaration of the person
stating that he or she has not been
found guilty of any disqualifying
25 offence; and
Note: The Estate Agents Licensing Authority was abolished
by virtue of section 68 of the Tribunals and
Licensing Authorities (Miscellaneous
Amendments) Act 1998 which came into operation
30 on 1 July 1998.".
(3) For section 16(7) of the Estate Agents Act 1980
substitute--
"(7) An estate agent must keep any document
obtained under sub-section (4) in relation to
35 an agent's representative for at least 2 years
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after the agent's representative ceases to be
employed by the agent in that capacity.
Penalty: 25 penalty units.
(8) A person is ineligible to be an agent's
5 representative if the person--
(a) gave the estate agent a copy of a
certificate or notice under sub-section
(4)(a)(i)(B) or (4)(a)(ii) before being
appointed; and
10 (b) fails to provide the agent, within
6 weeks of starting employment, with a
certificate from the Chief
Commissioner of Police that is not
more than 6 weeks old and that
15 indicates that the person is not
ineligible to be an agent's representative
under sub-section (1)(c).".
23. Repeal of transitional provision concerning agent's
representatives
20 Section 16C(4) of the Estate Agents Act 1980 is
repealed.
24. Housekeeping amendment
In section 21(4)(b) of the Estate Agents Act
1980, for "he is" substitute "he or she is".
25 25. Automatic cancellation of corporate licence
(1) After section 22(2) of the Estate Agents Act 1980
insert--
"(2A) A corporation's licence as an estate agent is
automatically cancelled 30 days after--
30 (a) the licence of a director who holds an
estate agent's licence is cancelled under
sub-section (1) or (2); or
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(b) the corporation is notified in writing by
the Authority that a director of the
corporation who is not a licensed estate
agent would, if the director were to
5 apply for a licence, be ineligible, under
section 14(5), to be granted an estate
agent's licence; or
(c) the corporation has a claim allowed
against the Estate Agents' Guarantee
10 Fund under Part VII; or
(d) the corporation is convicted of, or has
found proven against it, an offence
involving fraud, dishonesty, drug
trafficking or violence that, if it was a
15 natural person, would be punishable by
imprisonment for 3 months or more.
(2B) Sub-sections (2A)(a) and (2A)(b) do not
apply if the director ceases to be a director of
the corporation within the 30 day period
20 referred to in sub-section (2A).".
(2) After section 22(3) of the Estate Agents Act 1980
insert--
"(4) If a corporation whose licence would
otherwise be cancelled by sub-section (2A)
25 is eligible to apply for, and applies for,
permission under section 31CA within the
30 day period referred to in that sub-section,
the corporation's licence is only
automatically cancelled if the application is
30 withdrawn or is refused by the Authority.".
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26. Insertion of section 22A
After section 22 of the Estate Agents Act 1980
insert--
"22A. Delay of effect of certain convictions
5 (1) This section applies if one of the following
people is convicted of, or has found proven
against him or her, an offence involving
fraud, dishonesty, drug trafficking or
violence which is punishable by
10 imprisonment for 3 months or more--
(a) a person who is employed as an agent's
representative;
(b) a person (including a corporation) who
holds a licence as an estate agent;
15 (c) a person who is the director of a
corporation that holds an estate agent's
licence.
(2) For the purposes of sections 16 and 22, the
conviction or finding of guilt of the person
20 only takes effect on--
(a) the day on which the conviction or
finding is upheld or confirmed by the
last applicable court of appeal; or
(b) the day on which leave to appeal is
25 refused by the last applicable court of
appeal; or
(c) the day after the day on which the last
applicable appeal period ends--
whichever occurs last.".
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27. Inquiries into estate agents and agents'
representatives--additional grounds
(1) After section 25(1)(a) of the Estate Agents Act
1980 insert--
5 "or
(aa) has contravened or failed to comply with the
Sale of Land Act 1962; or".
(2) After section 25(2)(a) of the Estate Agents Act
1980 insert--
10 "or
(aa) has contravened or failed to comply with the
Sale of Land Act 1962 or has failed to pay
any fines imposed on him or her, or any
costs that he or she was required to pay
15 under this Act; or".
(3) After section 28(1)(c) of the Estate Agents Act
1980 insert--
"(ca) has contravened or failed to comply with the
Sale of Land Act 1962; or".
20 28. Section 29B substituted
For section 29B of the Estate Agents Act 1980
substitute--
"29B. Duties of agents and officers in effective
control
25 (1) This section applies to a natural person--
(a) who is a licensed estate agent who
carries on an estate agency business; or
(b) who is an officer in effective control of
the estate agency business of a
30 corporation.
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(2) The person must--
(a) be regularly and usually in charge at the
principal office; and
(b) give regular and substantial attendance
5 at that office; and
(c) properly control and supervise any
estate agency business carried on by the
agent or for which the person is
responsible; and
10 (d) take reasonable steps to ensure that any
estate agents, agents' representatives or
other employees of the business comply
with the provisions of this Act, the Sale
of Land Act 1962 and any other laws
15 relevant to the conduct of the business
while they are engaged in that business;
and
(e) establish procedures designed to ensure
that the business is conducted in
20 accordance with the law and good
estate agency practice; and
(f) monitor the conduct of the business in a
manner that will ensure, as far as is
practicable, that those procedures are
25 complied with; and
(g) properly control and supervise the
management of any branch office of the
estate agency business.
Penalty: 25 penalty units.
30 29C. Offence to procure contravention of
section 29B
A person involved in the management or
control of the estate agency business of a
licensed estate agent must not--
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(a) prevent or hinder another person from
complying with any duty imposed on
that other person by section 29B; or
(b) induce or procure another person to
5 contravene any duty imposed on that
other person by section 29B.
Penalty: 25 penalty units.".
29. Consequential repeal
Section 30AA of the Estate Agents Act 1980 is
10 repealed.
30. Insertion of section 31CA
After section 31C of the Estate Agents Act 1980
insert--
"31CA. Corporation may be allowed to hold licence
15 despite disqualifying factors
(1) A corporation may apply to the Authority for
permission to be granted, or to continue to
hold, an estate agent's licence even though--
(a) it, or one of its directors, is a person in
20 relation to whom a claim has been
allowed against the Estate Agents'
Guarantee Fund under Part VII or
against a corresponding fund
established under any corresponding
25 previous enactment; or
(b) it has been convicted of, or has had
found proven against it, an offence
involving fraud, dishonesty, drug
trafficking or violence that, if it was a
30 natural person, would be punishable by
imprisonment for 3 months or more; or
(c) one of its directors is a person who has,
within the last 10 years in Australia or
elsewhere, been convicted or had found
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proven against him or her any offence
involving fraud, dishonesty, drug
trafficking or violence which was
punishable by imprisonment for
5 3 months or more, but who is still
eligible to be a director of the
corporation under the Corporations
Law despite the conviction or finding
of guilt.
10 (2) An application must--
(a) be in the form approved by the
Authority; and
(b) contain the information required by the
Authority; and
15 (c) be accompanied by any documents
required by the Authority; and
(d) be accompanied by any fee required by
the regulations for the purposes of this
section.
20 (3) The Authority may give its permission if it is
satisfied--
(a) that the giving of the permission is not
contrary to the public interest; and
(b) in the case of an application made in
25 the circumstances described in sub-
section (1)(a)--
(i) that the person has refunded all
amounts paid out of the Fund or
the corresponding fund in respect
30 of the claim; and
(ii) that there were exceptional
circumstances which gave rise to
the claim against the person; and
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(iii) that having regard to the conduct
of the person before and after the
claim, there is no reasonable
expectation that the person will
5 not comply with this Act and the
regulations in future; and
(c) in the case of an application made in
the circumstances described in sub-
section (1)(a) involving a director or in
10 sub-section (1)(c), that there is a
substantive reason why the person
should remain a director of the
corporation.
(4) In considering an application, the Authority
15 may--
(a) conduct any inquiries it thinks fit;
(b) require the applicant to provide any
further information relating to the
application that the Authority thinks fit
20 in the manner required by the
Authority;
(c) seek advice and information on the
application from any other person or
body as it thinks fit.
25 (5) The Authority may refuse to give its
permission if the applicant does not provide
the further information required, or any
consent needed by the Authority to obtain
that information, within a reasonable time
30 after the requirement is made.
(6) If the Authority gives its permission, the
corporation is eligible to be granted, or to
continue to hold, an estate agent's licence,
despite anything to the contrary in section
35 15(3) or 22(2A).".
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31. Conditions may be imposed on permission
In section 31D(1) of the Estate Agents Act 1980,
for "or 31C" substitute ", 31C or 31CA".
32. Advertising by agents
5 (1) In sections 42(1) and 42(4) of the Estate Agents
Act 1980, omit "(whether in a newspaper or
otherwise)".
(2) In section 42(6)(b) of the Estate Agents Act
1980, omit "by being exhibited on a hoarding or
10 sign board or in other like manner or by means of
radio or television".
33. Insertion of sections 4545B
After section 44 of the Estate Agents Act 1980
insert--
15 '45. Continuing professional development
(1) The Director may require estate agents or
agent's representatives to undertake specified
training or professional development
activities.
20 (2) The Director must publish notice of the
making of a requirement in the Government
Gazette.
(3) A requirement takes effect on the date the
notice is published, or on any later date
25 specified in the notice.
(4) A requirement--
(a) may specify that it applies generally to
all agents or agent's representatives, or
only to specified classes or sub-classes
30 of agents or agent's representatives;
(b) may specify that every person to whom
it applies must undertake a specified
activity by a specified time;
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(c) may assign point (or other) values to
specified activities and require that a
person undertake within a specified
time activities that have a specified
5 total point (or other) value;
(d) must identify the providers of any
required activity;
(e) may provide for the Director--
(i) to extend a time limit that applies
10 to a person with respect to the
requirement;
(ii) to exempt, or partially exempt, a
class of person from having to
comply with the requirement on
15 specified grounds.
(5) If the Director makes a requirement under
this section, an agent or agent's
representative to whom the requirement
applies must not knowingly fail to comply
20 with the requirement.
Penalty: 25 penalty units.
45A. Requirement may be disallowed
(1) On or before the 6th sitting day after notice
of the making of a requirement is published
25 in the Government Gazette, the Minister
must ensure that a copy of the requirement is
laid before each House of the Parliament.
(2) A failure to comply with sub-section (1) does
not affect the operation or effect of the
30 requirement but the Scrutiny of Acts and
Regulations Committee of the Parliament
may report the failure to each House of the
Parliament.
(3) A requirement may be disallowed in whole
35 or in part by either House of Parliament.
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(4) Part 5 of the Subordinate Legislation Act
1994 applies to a requirement as if--
(a) a reference in that Part to a "statutory
rule" were a reference to the
5 requirement; and
(b) a reference in section 23(1)(c) of that
Part to "section 15(1)" were a reference
to sub-section (1).
(5) A reference to a requirement in this section
10 includes a reference to any amendment to a
requirement.
45B. Further publication of requirement
(1) The Director must publish a requirement
made under section 45 on an Internet site
15 maintained by the Director or the Authority
as soon as is practicable after notice of the
making of the requirement is published in the
Government Gazette.
(2) A failure to comply with sub-section (1) does
20 not affect the validity of a requirement.'.
34. Employment of agents' representatives
For section 47(2) of the Estate Agents Act 1980
substitute--
"(2) An agent's representative who is employed
25 by an estate agent must not undertake
employment under section 30(3) with
another estate agent as a branch manager for
that other agent.
Penalty: 25 penalty units.
30 (2A) An agent's representative who is employed
by an estate agent as a branch manager under
section 30(2) or 30(3) must not undertake
employment with another estate agent.
Penalty: 25 penalty units.".
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35. Substitution of section 48
For section 48 of the Estate Agents Act 1980
substitute--
"48. Notice of commission sharing must be
5 given
(1) This section applies if an estate agent agrees
to share any commission to which he or she
becomes entitled in respect of any estate
agency work with a person who is not--
10 (a) a licensed estate agent or an agent's
representative in his or her employ; or
(b) a licensed estate agent with whom he or
she is in partnership.
(2) Before obtaining a person's signature to an
15 engagement or appointment to do any estate
agency work on behalf of the person, the
agent must ensure that the person is given a
statement that complies with sub-section (3).
Penalty: 100 penalty units.
20 (3) The statement--
(a) must state that any commission the
agent is entitled to under the
engagement or appointment will be
shared with one or more other people;
25 (b) must identify by name every person
who is entitled to share the commission
with the agent; and
(c) must contain any other details required
by the regulations; and
30 (d) must be in a form approved by the
Director.
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(4) An estate agent must not pay to another
person any share of a commission that the
agent has obtained in respect of any estate
agency work if the agent failed to comply
5 with sub-section (2) in respect of the work.
Penalty: 100 penalty units.
(5) Nothing in this section applies to any
engagement or appointment entered into
before the date of commencement of
10 section 35 of the Estate Agents and Sale of
Land Acts (Amendment) Act 2002.".
36. Restriction on agent purchasing property
(1) At the foot of sections 55(1), 55(3) and 55(5) of
the Estate Agents Act 1980 insert--
15 "Penalty: 120 penalty units.".
(2) For section 55(9) of the Estate Agents Act 1980
substitute--
"(9) This section does not apply if property is
purchased by a person who is a shareholder
20 and not an employee of--
(a) an estate agent which is a corporation
the shares of which are listed on an
Australian Stock Exchange or which is
a prescribed corporation; or
25 (b) a stock and station agent which is a
co-operative registered under the
Co-operatives Act 1996 or a
co-operative company within the
meaning of Division 9 of Part III of the
30 Income Tax Assessment Act 1936 of
the Commonwealth that is taken to be
registered in Victoria.".
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(3) For sections 55(14) and 55(15) of the Estate
Agents Act 1980 substitute--
"(14) A person may make a purchase that would
otherwise be prohibited by this section if--
5 (a) the person applies in writing to the
Director before the contract of sale is
signed for permission to make the
purchase; and
(b) the Director notifies the person in
10 writing that the Director is satisfied that
the purchase would not be contrary to
the interests of the owner of the real
estate or business to be sold if the
conditions (if any) imposed by the
15 Director are complied with.
(15) If a person makes a purchase after receiving
a notice under sub-section (14)(b), the person
must comply with any conditions imposed
by the Director that are set out in the notice.
20 Penalty: 25 penalty units.".
37. Handling of trust money
After section 59(7) of the Estate Agents Act 1980
insert--
"(8) This section does not apply in relation to--
25 (a) a cheque received by an estate agent
from a tenant for the amount of bond
made payable to the Residential
Tenancies Bond Authority established
under the Residential Tenancies
30 Act 1997;
(b) a cheque received by an estate agent
from a person made payable to another
person in prescribed circumstances.".
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38. New section 59A inserted
After section 59 of the Estate Agents Act 1980
insert--
"59A. Unidentified trust money
5 (1) Section 59 also applies in relation to a
payment by electronic funds transfer that
is--
(a) received by an estate agent from a
person whom the estate agent cannot
10 identify for the purposes of keeping full
and accurate accounting records; or
(b) received by an estate agent who cannot
identify, for the purposes of keeping
full and accurate accounting records,
15 the person entitled to the payment.
(2) If, at the end of a period of 12 months that
started on the date of receiving a payment
referred to in sub-section (1), an estate agent
has--
20 (a) not identified the person from whom he
or she received the payment; or
(b) not identified the person entitled to the
payment--
the payment must be dealt with as unclaimed
25 moneys under the Unclaimed Moneys Act
1962.".
39. Keeping of trust accounts
(1) For sections 63(3) and 63(3A) of the Estate
Agents Act 1980 substitute--
30 '(3) Subject to sub-section (4), if an estate agent
receives money (including rent money) for
or on behalf of any other person, the agent
must--
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(a) immediately write out and give to the
person a receipt for the money; and
(b) retain a duplicate copy of the receipt (or
other record approved by the Director)
5 clearly marked with the word
"Duplicate" for a period of 7 years.'.
(2) For section 63(4) of the Estate Agents Act 1980
substitute--
"(4) An estate agent is not required to--
10 (a) retain a duplicate copy of a receipt in
relation to a cash payment if an
electronic record of the payment was
made as soon as was practicable after
the payment was received;
15 (b) give a receipt in relation to a payment
made in the form of a cheque or an
electronic funds transfer if--
(i) an electronic record of the
payment was made as soon as was
20 practicable after the payment was
received; and
(ii) the person making the payment
does not request a receipt;
(c) retain a receipt or the duplicate copy of
25 the receipt in relation to a payment
made in the form of a cheque or an
electronic funds transfer if an electronic
record of the payment was made as
soon as was practicable after the
30 payment was received.".
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40. New section 63A inserted
After section 63 of the Estate Agents Act 1980
insert--
"63A. Director's supervisory role in audits
5 (1) The Director may issue directions in relation
to the conduct of audits under this Part.
(2) An auditor must comply with--
(a) any direction issued by the Director
under sub-section (1); and
10 (b) any prescribed auditing standards.
(3) If the Director is satisfied that an auditor has
failed to comply with a direction issued
under sub-section (1), the Director may
direct that the auditor no longer audit an
15 estate agent's accounts of trust money.
(4) The Director must give the auditor a
reasonable opportunity to make written or
oral submissions, or both, before giving a
direction under sub-section (3).
20 (5) A direction under sub-section (3) must be
published in the Government Gazette and
takes effect on the day it is published in the
Government Gazette.
(6) As soon as is practicable after making a
25 direction under sub-section (3), the Director
must give a copy of the direction to each
approved industry association.".
41. Annual audit of trust accounts
(1) In section 64(1) of the Estate Agents Act 1980,
30 omit "by a person or firm qualified as prescribed
by section 66".
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(2) After section 64(1) of the Estate Agents Act 1980
insert--
"(1A) The agent must not engage a person or firm
as an auditor for the purposes of sub-section
5 (1) if the person or firm is not qualified
under section 66 to act as the auditor.
Penalty: 25 penalty units.".
42. Audits ordered by the Director
(1) In section 64A(1) of the Estate Agents Act 1980,
10 omit "by a person or firm qualified as prescribed
by section 66".
(2) After section 64A(1) of the Estate Agents Act
1980 insert--
"(1A) The Director must not engage a person or
15 firm as an auditor for the purposes of sub-
section (1) if the person or firm is not
qualified under section 66 to act as the
auditor.".
(3) In section 64A(4) of the Estate Agents Act 1980,
20 for "The costs" substitute "Subject to sub-section
(5), the costs".
(4) After section 64A(4) of the Estate Agents Act
1980 insert--
"(5) The Director may recover the costs of an
25 audit from the estate agent if--
(a) an auditor in the course of auditing the
agent's accounts discovers that the
accounts are not kept in a manner that
enables them to be properly audited; or
30 (b) any matter discovered in the course of
the audit appears to the Director on
reasonable grounds to involve
dishonesty, or a breach of this Part or
any other law, by the agent.
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(6) An estate agent to whom sub-section (5)
applies may apply to the Tribunal for a
review of the Director's decision to recover
the cost of the audit from the agent.".
5 43. Audit where business ceased during the year
(1) In section 64B(1)(b) of the Estate Agents Act
1980, omit "by a person or firm qualified as
prescribed by section 66".
(2) After section 64B(1) of the Estate Agents Act
10 1980 insert--
"(1A) The agent or executor, trustee or
administrator, as the case may be, must not
engage a person or firm as an auditor for the
purposes of sub-section (1) if the person or
15 firm is not qualified under section 66 to act
as the auditor.
Penalty: 25 penalty units.".
44. New section 64C inserted
After section 64B of the Estate Agents Act 1980
20 insert--
"64C. Unscheduled examination of accounts of
trust money
(1) An estate agent who is required by section
64(1) to have his or her accounts of trust
25 money audited must, in engaging or
renewing the engagement of the auditor,
require the auditor to conduct once during
the current financial year and each
subsequent financial year covered by the
30 engagement, without notice to the agent, a
random examination of the accounts of the
trust money held by the agent.
Penalty: 25 penalty units.
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(2) The auditor must as soon as is practicable
after completing the examination send a
report of the examination to the Director and
send a copy of the report to the agent.
5 (3) The powers given to, and the duties imposed
on, a person by section 64 (other than sub-
sections (1), (2), (3), (4) and (5)) apply with
any necessary modifications to an
examination conducted under this section.".
10 45. Qualifications of auditors
(1) For section 66(1) of the Estate Agents Act 1980
substitute--
"(1) A person is not qualified to act as an auditor
under section 64, 64A or 64B in respect of
15 an estate agent--
(a) unless he or she is an approved auditor;
(b) if he or she is, or at any time within
2 years before the last day of the period
in respect of which the audit is to be
20 made, has been, an employee or partner
of the agent, or of any partner of the
agent, whose trust account is to be
audited.".
(2) For section 66(3)(b) of the Estate Agents Act
25 1980 substitute--
"(b) all the members of the firm ordinarily so
resident are approved auditors; and".
(3) In section 66(6) of the Estate Agents Act 1980,
for "own name by a member of the firm who is a
30 practising public accountant" substitute "or her
own name by a member of the firm who is an
approved auditor".
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(4) At the end of section 66 of the Estate Agents Act
1980 insert--
"(10) A person who ceases to be qualified to audit
accounts of trust money must immediately
5 cease auditing any accounts of trust money
under this Act.
Penalty: 25 penalty units.
(11) Any audit of an account of trust money
purportedly carried out under section 64,
10 64A or 64B by a person who is not a
qualified auditor is not a valid audit for the
purposes of section 64, 64A or 64B.".
46. Agents having no accounts to audit
For sections 69(1) and 69(1A) of the Estate
15 Agents Act 1980 substitute--
"(1) It is not necessary for a licensed estate agent
to comply with section 64 or 64B in respect
of a financial year if the agent, in the course
of that year, neither received nor held any
20 money for, or on behalf of, any other person.
(1A) The Director may require, by notice in
writing, any licensed estate agent or any
executor, trustee or administrator of an estate
agent to make and deliver to the Director a
25 statutory declaration as to whether the estate
agent held any money for, or on behalf of,
another person during a period specified by
the Director in the notice.
(1B) If the Director imposes a requirement on a
30 person under sub-section (1A), the person
must comply with the requirement within the
time specified by the Director in the notice
imposing the requirement.
Penalty: 25 penalty units.".
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47. Standardisation of inspection provisions
In section 70 of the Estate Agents Act 1980--
(a) in sub-section (5)--
(i) for "impound or retain" substitute
5 "seize";
(ii) omit all words and expressions after "to
this section";
(b) sub-section (6) is repealed;
(c) in sub-section (7)(d), for "impounded or
10 retained" substitute "seized";
(d) for sub-section (8)(a) substitute--
"(a) orally; or".
48. New sections 70A70E inserted
After section 70 of the Estate Agents Act 1980
15 insert--
'70A. Order requiring supply of information and
answers to questions
(1) In this section "authorised person" means a
person authorised in writing by the Director
20 for the purposes of this section.
(2) For the purpose of monitoring compliance
with this Act, an authorised person may
apply to the Magistrates' Court for an order
requiring a person at a time and place
25 specified by the authorised person--
(a) to answer orally or in writing any
questions put by the authorised person
relating to an estate agency business; or
(b) to supply orally or in writing
30 information required by the authorised
person in relation to an estate agency
business; or
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(c) to produce to the authorised person
specified documents or documents of a
specified class in relation to an estate
agency business.
5 (3) The Court may grant the order if it is
satisfied, on the basis of the evidence
presented by the authorised person, that the
order is necessary for the purpose of
monitoring compliance with this Act or the
10 regulations.
(4) In granting an order, the Court must state a
day, not later than 28 days after the making
of the order, on which the order ceases to
have effect.
15 (5) If any documents are produced to the
authorised person under the order, he or she
may--
(a) inspect the documents or authorise
another person to inspect the
20 documents;
(b) make copies of, or take extracts from,
the documents;
(c) seize the documents if he or she
considers that the documents are
25 necessary for the purpose of obtaining
evidence for the purpose of any
proceedings against any person under
this Act or the regulations;
(d) secure any seized documents against
30 interference;
(e) retain possession of the documents in
accordance with this Part.
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(6) As soon as is practicable after executing the
order, the authorised person must notify the
Court in writing of--
(a) the time and place of execution; and
5 (b) the documents or classes of documents
seized; and
(c) if documents were seized under sub-
section (5)(c) in respect of a
contravention other than a
10 contravention for which the order was
granted, the contravention in respect of
which the documents were seized.
(7) The Court may direct the authorised person
to bring before the Court a document to
15 which sub-section (6)(c) applies so that the
matter may be dealt with according to law.
(8) The Court may direct that a document
brought before it under sub-section (7) be
returned to its owner, subject to any
20 conditions the Court thinks appropriate, if in
the opinion of the Court it can be returned
consistently with the interests of justice.
70B. Protection against self-incrimination
(1) It is a reasonable excuse for a natural person
25 to refuse or fail to give information or do any
other thing that the person is required to do
by or under this Part, if the giving of the
information or the doing of that other thing
would tend to incriminate the person.
30 (2) Despite sub-section (1), it is not a reasonable
excuse for a natural person to refuse or fail to
produce a document that the person is
required to produce by or under this Part,
even if the production of the document
35 would tend to incriminate the person.
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70C. Copies of seized documents
(1) If an authorised person retains possession of
a document seized from a person under this
Part, the authorised person must give the
5 person, within 21 days of the seizure, a copy
of the document certified as correct by the
authorised person.
(2) The certified copy is to be received in all
courts and tribunals to be evidence of equal
10 validity to the original.
70D. Retention and return of seized documents
(1) If an authorised person seizes a document
under this Part, the authorised person must
take reasonable steps to return the document
15 to the person from whom it was seized if the
reason for its seizure no longer exists.
(2) If the document seized has not been returned
within 3 months after it was seized, the
authorised person must take reasonable steps
20 to return it unless--
(a) proceedings for the purpose for which
the document was retained have
commenced within that 3 month period
and those proceedings (including any
25 appeal) have not been completed; or
(b) the Magistrates' Court makes an order
under section 70E extending the period
during which the document may be
retained.
30 70E. Magistrates' Court may extend 3 month
period
(1) An authorised person may apply to the
Magistrates' Court within 3 months after
seizing a document under this Part, or within
35 a period extended by the Court under this
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section, for an extension of the period for
which the authorised person may retain the
document.
(2) The Court may order such an extension if it
5 is satisfied that retention of the document is
necessary--
(a) for the purposes of an investigation into
whether a contravention of this Act or
the regulations has occurred; or
10 (b) to enable evidence of a contravention of
this Act or the regulations to be
obtained for the purposes of a
proceeding under this Act.
(3) The Court may adjourn an application to
15 enable notice of the application to be given
to any person.'.
49. Dishonesty offences
At the end of section 91 of the Estate Agents Act
1980 insert--
20 "(2) Without affecting the operation of Division 2
of Part I of the Crimes Act 1958, any agent's
representative or other employee of an estate
agency business who--
(a) fraudulently converts to his or her own
25 use--
(i) any money received or held by
him or her in the course of his or
her duties as an agent's
representative or other employee;
30 or
(ii) any money received or held by his
or her employer in the employer's
capacity as an estate agent; or
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(b) fraudulently omits to account for,
deliver or pay--
(i) any money received or held by
him or her in the course of his or
5 her duties as an agent's
representative or other employee;
or
(ii) any money received or held by his
or her employer in the employer's
10 capacity as an estate agent; or
(c) fraudulently renders an account of--
(i) any money received or held by
him or her in the course of his or
her duties as an agent's
15 representative or other employee
knowing such account to be false
in any material particular; or
(ii) any money received or held by his
or her employer in the employer's
20 capacity as an estate agent
knowing such account to be false
in any material particular--
is guilty of an indictable offence and is liable
to a penalty of not more than 500 penalty
25 units or to a term of imprisonment of not
more than 10 years.".
50. Regulation-making powers
In section 99 of the Estate Agents Act 1980--
(a) after paragraph (aa) insert--
30 "(b) requiring estate agents to give
consumers of their services information
in relation to those services in a form
specified by the regulations or
approved by the Director;";
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(b) in paragraph (e), omit "practising public
accountants and other";
(c) in paragraph (gf), after "examinations"
insert "and requirements establishing
5 competency".
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Endnotes
ENDNOTES
By Authority. Government Printer for the State of Victoria.
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