Tasmanian Bills Clause Notes Tasmanian Bills Clause Notes[Index] [Search] [Download] [Bill] [Help]
CLAUSE NOTES
Property Agents and Land Transactions Bill 2016
Part 1 – Preliminary
Clause 1 Short title
This sets out the name of the proposed Act.
Clause 2 Commencement
Provides that the Act is to commence on proclamation.
Clause 3 Definitions
Interpretation of the terms used in this Act. Some of the key terms include:
approved form – a form required by the Property Agents Board of
Tasmania for applications for licences
Board – means the Property Agents Board
employ – to engage under a contract for services
functions of a property representative – clarifies the roles of
performed by a person under the employ of a real estate agent or
property manager
general auctioneer – a person who holds a valid general auctioneer
licence
“Guarantee Fund” or “Fund” – means the Property Agents
Guarantee Fund under section 149
property agent – provides for four property agent occupations: real
estate agent, property manager, general auctioneer and property
representative
Clause 4 Application of Act
The Crown is not bound by any of the provisions of this Act.
This clause also provides that certain persons acting in specific legal
capacities are able to perform functions or activities as part of a real estate
agency business or property management business, including accountants.
Part 2 – Property Agents Board
Clause 5 Property Agents Board
Establishes the statutory office of the Property Agents Board.
The Board is to consist of five persons (a legal practitioner, property agents,
and other persons nominated by the Minister) as members of the Board, as
appointed by the Governor.
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The Board is a legal entity that can sue and be sued, and for whom judicial
notice must be taken.
Schedule 1 contains the requirements of membership and meetings of the
Board.
Clause 6 Functions of Board
Provides for the general functions of the Board. This includes providing
details for compliance, dispute resolution, educational and complaint
referral functions, as well as the reporting requirements to the Minister.
Clause 7 Powers of the Board
This clause provides for the general powers of the Board, including the
ability to impose, charge or waive fees payable under the Act.
Clause 8 Delegations
The Board may delegate any of its functions or powers under the Act,
except for the power to delegate or disciplinary actions.
Clause 9 Contracts
The Board may enter into contracts for persons to perform any of its
functions or powers under the Act, except for the power to delegate or
disciplinary actions.
Clause 10 Committees
Provides for the ability of the Board to establish committees for the
purpose of assisting with the performance of any functions or powers.
This clause details the requirements of membership and meetings of
committees, including remuneration and allowances.
Clause 11 Employees
Provides that the Board must employ an executive officer, who is to act as
the Secretary of the Board.
This clause also allows the Board to employ any other persons as necessary
Clause 12 Funds
This clause provides for the requirements of the Board in regard to money
it receives, including the ability to use funds to perform its functions and the
ability for the Board to invest money as required.
Clause 13 Accounts and Audits
The Board is required to keep proper and accurate records of its financial
transactions.
The Board must also prepare financial statements exhibiting a true and
correct record of its financial position and transactions in respect of the
preceding financial year. These reports are to be prepared within a certain
time following 1 July in each year.
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Clause 14 Annual Report
In addition to the accounts and audit reports, the Board is also to prepare
and present to the Minister a report on its operations annually.
The Minister is to table the Annual Report in Parliament.
Part 3 – Licensing of Property Agents
Clause 15 Licence types
This clause provides for the four types of licences the Board may issue.
Clause 16 Applications
Provides for the process for licence applications to the Board.
Applications to the Board must contain statements as to the applicant’s
criminal history, including a record of offences in Tasmania, as issued by the
Commissioner of Police, and a statement relating to the applicant’s record
of offences in any other jurisdiction.
The Board may request any other information or documents it considers
relevant when considering an application.
Clause 17 Consideration of application
The Board has the power to make any inquiry considered relevant or
necessary in relation to an application.
Clause 18 Suitability
The clause provides for the eligibility requirements an applicant, including
the need for relevant qualifications and a ‘fit and proper person’ test.
The Board has the power to refer to the Commissioner of Police the name
of the applicant and any information and documentation considered
relevant, in order to determine whether an applicant is a ‘fit and proper
person’. The Commissioner of Police must inquire into, and report to the
Board on any matters concerning the applicant.
This clause also details the circumstances where a natural person or
company will not be considered a fit and proper person to hold a property
agent licence.
Clause 19 Determination of applications
The Board may either grant or refuse an application for a property licence.
The Board must provide written notice of the outcome of the
determination and the reasons for refusal (if applicable).
Clause 20 Licence conditions
Provides for the ability of the Board to issue a licence with any conditions
considered appropriate, such as requiring the applicant or licence holders to
obtain specific qualifications or undergo further professional development.
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The Board also has the power to impose, change or rescind any conditions
at any time after a licence is granted.
The Board must notify applicants and licence holders in writing of any
conditions or changes to conditions, and it is an offence under the Act to
breach any licence condition imposed.
Clause 21 Licence periods
Provides that a property agent licence will be valid for a period of
12 months.
This clause also provides for the ability of the licence to be transferred to
the personal representative of a licence holder in the event of their death.
The licence will be valid for a period of 12 months from the date of death.
Clause 22 Renewals
Licence holders must apply to the Board to renew their licence at least 60
days prior to their licence expiring, and must include the fee payable and
any relevant documents and information.
Licences will remain valid until the renewal application has been considered
by the Board.
Clause 23 Surrender of licence
Provides that licence holders may surrender their licence at any time.
Clause 24 Record of suspended licences
Provides that the Board must provide a publically available record of all
suspended property agent licences.
Clause 25 Qualifications – Real estate agent
This clause provides for the required qualifications for a person or company
to hold a real estate agent licence.
Clause 26 Qualifications – property manager
This clause provides for the required qualifications for a person or company
to hold a property manager licence.
Clause 27 Qualifications – general auctioneer
This clause provides for the required qualifications for a person or company
to hold a general auctioneer licence.
Clause 28 Qualifications – property representative
This clause provides for the required qualifications for a person or company
to hold a property representative licence.
Part 4 – Register
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Clause 29 Register
Provides the Board is to maintain a publically available Register which is to
include the name and address of every property agent.
The Register is to be divided into four parts for each category of property
agent licence.
Clause 30 Part 1 of Register – real estate agent
This part of the Register is to contain the name and address of each real
estate agent who is carrying on a real estate agency business, as well as
contact details of the business. All other real estate agents are also to be
recorded.
Clause 31 Part 2 of Register – property manager
This part of the Register is to contain the name and address of each
property manager who is carrying on a property management business, as
well as contact details of the business. All other property managers are also
to be recorded.
Clause 32 Part 3 of Register – general auctioneer
This part of the Register is to contain the name and address of each general
auctioneer who is carrying on a general auctioneering business, as well as
contact details of the business. All other general auctioneers are also to be
recorded.
Clause 33 Part 4 of Register – property representative
This part of the Register is to contain the name and address of each
property representative.
Part 5 – Real Estate Agents and Property Managers
Clause 34 Real estate agency business
This clause establishes that it is an offence for a person to carry on a real
estate agency business unless they are a licensed real estate agent and are
listed in the Register.
Clause 35 Property management business
This clause establishes that it is an offence for a person to carry on a
property management business unless they are a licensed property manager
and are listed in the Register.
Clause 36 Management of real estate agency business
This clause establishes that it is an offence for a real estate agent to carry
on a real estate agency business unless the business is carried out at an
authorised place (as listed in the Register) and is managed by a licensed real
estate agent.
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A real estate agent can only manage one authorised place of business.
However, they may apply to the Board to manage up to 3 authorised
places of business, so long as they are within the same region.
A real estate agency business may be managed by a property
representative for a specified period.
Clause 37 Management of property management business
This clause establishes that it is an offence for a property manager to carry
on a property management business unless the business is carried out at an
authorised place (as listed in the Register) and is managed by a licensed
property manager or a real estate agent.
A property manager or real estate agent can only manage one authorised
place of business. However, they may apply to the Board to manage up to
3 authorised places of business, so long as they are within the same region.
A property management business may be managed by a property
representative for a specified period.
Clause 38 Employment of property representatives
It is an offence for a real estate agent or property manager to employ or
enter into a contract with an unlicensed person to perform the functions of
a property representative.
It is also an offence for a person to perform, or claim to be qualified to
perform, the functions of a property representative.
Clause 39 Limitations on employees of real estate agents
Provides that property managers, property representatives or real estate
agents can only be employed by one real estate agent or property manager
at a time.
Clause 40 Limitations on employees of real estate agents
Provides that property managers, property representatives or real estate
agents can only be employed by one real estate agent or property manager
at a time.
Clause 41 Suspended licence – employment limitations
It is an offence for real estate agents to employ any person with a
suspended property agent licence, except with the consent of the Board.
Clause 42 Suspended licence – employment limitations
It is an offence for property managers to employ any person with a
suspended property agent licence, except with the consent of the Board.
Clause 43 Property representatives
It is an offence to perform the functions of a property representative unless
the person is licensed as a property representative.
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Clause 44 Appointment of real estate agents
Provides that the appointment of real estate agents will not be valid unless
it is in writing and signed by all relevant parties (real estate agent and owner
of property or business).
This clause provides for the specific details that the appointment document
must include, including clearly establishing the terms of the agreement for
services, the termination procedure, and how any valuable consideration is
to be applied and calculated.
A copy of the document must be provided to all parties as soon as
practicable after it is signed.
Agency agreement appointments cannot last for more than 120 days, with
the exception that the agent is engaged by a property developer.
Clause 45 Commissions on appointment expiry
This clause provides that real estate agents are entitled to recover or retain
any valuable consideration for services in the situation where the specified
property is sold by the vendor within 90 days of the appointment expiring
or terminated, and the purchaser was introduced to the vendor or the
property by the real estate agent.
There is an exception to this clause where the sale of the specified
property was completed by another real estate agent under a valid written
appointment.
Clause 46 Appointment of property managers
Provides that the appointment of property managers will not be valid unless
it is in writing and signed by all relevant parties (real estate agent and owner
of property or business).
This clause provides for the specific details that the appointment document
must include, including clearly establishing the terms of the agreement for
services, the termination procedure, and how any valuable consideration is
to be applied and calculated.
A copy of the document must be provided to all parties as soon as
practicable after it is signed.
Clause 47 Disclosure of commissions
Provides for an offence where property agents fail to disclose any benefits
or commissions of $100 or more, they receive from third parties in
exchange for referrals.
Clause 48 Fees not recoverable in certain circumstances
This clause sets out a number of circumstances where actions cannot be
brought against a real estate agent, property manager or other person,
unless certain conditions are met.
Clause 49 Conflicts of interest - acquisition
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This clause sets out a number of offences for property agents, as both
individuals or through the course of business, where they acquire or
attempt to acquire, directly or indirectly, an interest in property that the
agent is instructed to sell. This includes interest being acquired on behalf of
a relative of the agent.
This clause provides a defence where the owner provides written approval
to the acquisition, prior to negotiations for the acquisition of interest are
entered into and full disclosure has been made by the person seeking
approval.
It is also a defence if the agent acted honestly and reasonably, and the
owner who sold the property is not substantially disadvantaged by the
acquisition.
Clause 50 Conflicts of interest – sale
It is an offence for a real estate agent to sell or attempt to sell an interest in
property which is owned by the agent, an employee of the agent, or a
relative of the agent, unless full disclosure has been made.
This clause provides a defence where it was not reasonable for the agent
to have known they were related to the owner of the property.
Clause 51 Franchising agreements
This clause provides for the requirements of real estate agents carrying on a
real estate agency business under a franchising agreement, including criminal
or civil liability for breaching other provisions of the Act.
Clause 52 Notices to be displayed
Provides that at each authorised place of business, a notice stating the real
estate agent’s name and licence details must be clearly displayed.
Clause 53 Notices to be displayed
Provides that at each authorised place of business, a notice stating the
property manager’s name and licence details must be clearly displayed.
Clause 54 Advertisements requirements
Provides that published advertisements must state the real estate agent’s
name and authorised place of business address.
Clause 55 Advertisements requirements
Provides that published advertisements must state the property manager’s
name and authorised place of business address.
Clause 56 False or misleading advertising
It is an offence for property agents to publish any material in relation to the
sale or letting of property that is known to be false or misleading.
Clause 57 Name under which real estate agents may carry on business
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Unless authorised by the Board, real estate agents must only carry on
business under the name of the agent or agents (if applicable).
Clause 58 Name under which real estate agents may carry on business
Unless authorised by the Board, property managers must only carry on
business under the name of the property manager or property managers (if
applicable).
Part 6 – Actions
Clause 59 Auctioneering
This clause establishes the offence where a person who is not licensed as a
general auctioneer carries on a general auctioneering business or purports
to be able to carry on the business.
It is also an offence to conduct a public auction of land unless the person is
a real estate agent, or is employed or contracted by a real estate agency
business, unless authorised by another Act, a Court or the auction is for a
charitable purpose.
Clause 60 Management of general auctioneering business
This clause establishes that it is an offence for a general auctioneer to carry
on a general auctioneering business unless the business is carried out at an
authorised place (as listed in the Register) and is managed by a licensed
general auctioneer.
Clause 61 Limitations on employees of general auctioneers
It is an offence for general auctioneers to employ any person with a
suspended property agent licence, except with the consent of the Board.
Clause 62 Name under which general auctioneers may carry on business
Unless authorised by the Board, general auctioneers must only carry on
business under the name of the auctioneer or auctioneers (if applicable).
Clause 63 Notices to be displayed
Provides that at each authorised place of business, a notice stating the
general auctioneer’s name and licence details must be clearly displayed.
Clause 64 Advertisements requirements
Provides that published advertisements must state the general auctioneer’s
name and authorised place of business address.
Clause 65 False or misleading advertising
It is an offence for general auctioneers to publish any material in relation to
the sale of property by auction that is known to be false or misleading.
Clause 66 Misrepresentations
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It is an offence for general auctioneers to knowingly make
misrepresentations as to the value, composition, structure, character,
quality, origin or manufacture of property which is for sale at public auction.
Clause 67 Bids by owner at public auction
It is an offence for an owner or person acting on the owner’s behalf to bid
with the intention of benefiting the owner, at a public auction in relation to
the land.
This clause provides the exception of where the land was owned by
multiple persons and one owner was attempting in good faith to acquire a
greater interest in the land.
Clause 68 Permissible owner bids
Provides for limited circumstances where an auctioneer may make a bid on
behalf of an owner.
The auctioneer must orally declare the intention to bid on behalf of the
owner.
Clause 69 Dummy bids
It is an offence for auctioneers to acknowledge a bid where no bid was
made.
Clause 70 Falsely acknowledged bid
It is an offence for a person to falsely claim they have made a bit at public
auction.
Clause 71 Public availability of conditions
This clause provides the conditions that must be made available for
publically inspection before real estate agents can conduct a public auction
of land.
Clause 72 Last vendor bids
Provides the process to be followed in the event where a public auction of
land is conducted where the land is not sold, and the auctioneer makes a
bid on behalf of the owner prior to concluding the auction.
The clause also provides for offences where information about the land is
published, unless the person did not have first-hand knowledge of the
auction.
Clause 73 Right to compensation for breach
Provides the right to claim compensation where a person has suffered a
demonstrable loss or damage as a result of a person to comply with this
Part of the Act.
Clause 74 Contrary conditions
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Any public auction condition that conflicts, restricts or modifies a
requirement under the Act is void.
Clause 75 Interpretation
Provides the definition of auction – means a public auction or private
auction.
Clause 76 Unlawful bidding agreements
This clause provides for the offences in relation to providing or receiving
consideration or reward to for abstaining from bidding at an auction.
Clause 77 Collusive practices
It is an offence for persons to colluding by means of unlawful promises,
which results in a person abstaining from bidding or agreeing to do anything
which prevents free and open competition at an auction.
Clause 78 Successful bidder to supply information
Provides that the successful bidder at an auction must provide certain
details to the auctioneer as soon as practicable after acceptance of the bid,
unless the details had already been supplied.
Clause 79 Notices given at auction
If approved by the Board, certain notices must be given prior to an auction.
Clause 80 Appointment of general auctioneers
Provides that unless granted leave by a Court, the appointment of general
auctioneers cannot be relied upon and will not be valid unless it is in writing
and signed by all relevant parties.
This clause provides for the specific details that the appointment document
must include, including clearly establishing the terms of the agreement for
services, how any valuable consideration is to be applied and calculated, and
how expenses are to be recovered.
A copy of the document must be provided to all parties as soon as
practicable after it is signed.
Clause 81 Disclosure of commissions
Provides for an offence where property agents fail to disclose any benefits
or commissions of $100 or more, they receive from third parties in
exchange for referrals.
Clause 82 Fees not recoverable in certain circumstances
This clause sets out a number of circumstances where actions cannot be
brought against a general auctioneer unless certain conditions are met.
Part 7 – Compliance and Discipline
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Clause 83 Interpretation
Interpretation of the terms used in this Part of the Act.
Clause 84 Code of Conduct
Provides that the Board must establish and review a Code of Conduct for
property agents, which regulates their professional practice, conduct and
discipline.
The clause also provides that the Board is to appropriately consult with
relevant industry and consumer representative bodies when establishing the
Code.
The Code is to be made publically available, as well as issued to every
property agent.
Clause 85 Application of the Code
The Code of Conduct is to provide guidance and requirements to property
agents in regard to unsatisfactory professional conduct and misconduct,
including the consequences for breaching the Code.
Clause 86 Conduct complaints
Provides for the ability for any person to make a complaint to the Board in
regard to a property agent’s conduct.
Complaints may be made against property agents who have had their
licence suspended or cancelled, and previous property agents.
Clause 87 Making of Complaints
This clause sets out the conditions and process in which a complaint may
be made.
Clause 88 Time limits
Complaints cannot be made more than 12 months after the conduct
complained about is alleged to have occurred, unless a longer period is
determined by the Board.
Complaints may be made about conduct alleged to have occurred prior to
the commencement of the Act.
Clause 89 Further information and verification
The Board has the power to request further information or verification by
statutory declaration, in relation to a complaint.
Clause 90 Notification of compliant
Provides that unless notice would prejudice an investigation of a complaint,
the Board is to provide notice to the property agent within 7 days of
accepting a complaint.
This clause also sets out the contents that must be included in the notice.
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Clause 91 Submission by property agent
The property agent may lodge a submission to the Board in response to
the complaint, within a specified period after being served notice.
The Board has discretion to extend this period, and must consider the
submission prior to making a determination about the compliant.
Clause 92 Summary dismissal of complaints
The Board may dismiss a complaint in certain circumstances, including if the
conduct complained about has already been rectified through appropriate
action.
Clause 93 Withdrawal of complaints
A complaint may be withdrawn at any time before the complaint has been
referred to the Tribunal, by serving a written notice on the Board and the
property agent.
The Board may continue to investigate the complaint if it is withdrawn, if it
is considered in the public interest to do so.
If a person withdraws a complaint, unless they have approval by the Board,
they have exhausted their right to make further complaint in respect to the
alleged conduct. However this clause does not prevent a complaint being
made by another person in respect to the same conduct.
Clause 94 Complaints to be investigated
Once the Board has accepted a conduct complaint, an investigation is to be
undertaken.
Clause 95 Investigations without complaint
Nothing in this Act prevents the Board from initiating an investigation as to
the conduct of a property agent.
There are no notice requirements for Board initiated complaint
investigations.
Clause 96 Appointment of investigator
The Board can appoint a committee or suitably qualified individual to
investigate complaints and provide the Board a written report on the
findings of the investigation.
Notice must be given to the property agent.
Clause 97 Powers of investigation
Provides that the Board is to request the property agent take a number of
actions in relation to the investigation, by way of written notice.
Property agents that fail to comply with the notice requirements or provide
false or misleading information or documentation, will be found guilty of
professional misconduct.
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Clause 98 Search warrants
Provides the ability for the Board to apply for a search warrant in relation
to an investigation.
This clause sets out the procedures in relation to search warrants.
Clause 99 Interim orders
If it is in the public interest to do so, the Board may issue a notice to the
property agent during the investigation, suspending their licence for a
specified period.
Clause 100 Powers of Board after investigation
Provides for the actions the Board may take following an investigation,
including dismissing the complaint, undertake compliance actions for minor
misconduct, or refer the compliant to the Tribunal.
Clause 101 Minor misconduct
Provides the procedure that must be taken by the Board if it is determined
that the complaint only amounts to minor misconduct.
This clause also sets out the circumstances where the complaint must be
referred to the Tribunal.
Clause 102 Criminal offence suspected
Provides the procedure that must be taken by the Board if there is
sufficient evidence that a person has committed a criminal offence, including
the forwarding of the evidence to the Commissioner of Police.
Clause 103 Application
Provides that this Division applies to the Tribunal or any further Tribunal is
established.
Clause 104 Establishment
Provides for the establishment and membership arrangements for the
Tribunal.
This clause provides that the President of the Tribunal is appointed by the
Governor.
Clause 105 Delegations
Provides the President the power to delegate all functions and powers
under the Act, with the exception of the power to delegate.
Clause 106 Responsibilities
This clause provides that the Board may request the Tribunal to develop
and submit a report on any of its activities or provide further information as
requested.
The costs of the Tribunal are to be borne by the Board.
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Clause 107 Powers
Provides for the powers of the Tribunal in relation to hearings, including the
provision of an offence in relation to non-compliance with a requirement or
direction made by the Tribunal.
Clause 108 Summons requirements
This clause sets out the requirements that must be met for a summons sent
by the Tribunal in relation to hearings.
Clause 109 Hearing procedures
This clause establishes the procedures for a conduct complaint hearing.
Clause 110 Determinations
Provides for the actions that may be taken by the Tribunal in relation to a
hearing, including suspension or cancellation of licences, prohibition of
conducting a property agent business for a set period or with conditions,
imposition of fines, cautions or reprimands.
The Tribunal may also require the agent to perform specified actions,
including submit to supervision, inspection or undertake further training.
This clause does not prevent any person from taking civil action against the
property agent for damages.
Clause 111 Costs and expenses
This clause provides the Tribunal the power to make orders for costs.
Clause 112 Notice of action
Provides for the notice requirements applicable to the Tribunal in relation
to determinations made and actions taken by the Tribunal.
This clause provides the power for the Tribunal to publish decisions to the
public, if considered necessary.
Clause 113 Indemnity
This clause provides indemnity for the President and members of the
Tribunal for any acts or omissions when made in good faith, and in the
performance of their functions and powers under this Act.
Clause 114 Power of the Board to suspend licence
Provides for the power of the Board to suspend property agent licences in
certain circumstances.
The Board is not required to hear from a property agent prior to
suspending the licence, and the suspension must be provided by way of
written notice.
This clause provides the power for the Board to publish the suspension to
the public, if considered necessary.
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Clause 115 Revocation of suspension
Provides that suspensions made by the Board or Tribunal may be revoked
if it is considered in the public interest to do so.
This clause provides the power for the Board to publish the revocation to
the public, if considered necessary.
Clause 116 Right to appeal
This clause sets out the rights of a person to appeal regarding decisions
made by the Board.
Clause 117 Review of decisions
This clause establishes that a decision by the Tribunal may be subject to
administrative review.
Part 8 – Control of Property Agents Carrying on Business
Clause 118 Protection of trust money
This clause provides for the procedure the Board must follow to protect
trust money in a trust account with an authorised deposit-taking institution,
held by a real estate agent, property manager or general auctioneer.
Clause 119 Appointment of receiver or manager
Provides the power to Board to consider defalcations or misappropriate of
funds by a property agent who is trusted with its charge.
This clause provides for the consideration of the inability to obtain property
agent trust money due to mental or physical infirmity, death or
disappearance, suspension or cancellation or termination of the right to
carry on property agency business.
The process for the Board to apply to a Magistrate to enable a person to
be a receiver of that trust money or be the manager of the property agent
business is also provided for.
Clause 120 Duty of receiver
Provides for the process by which a receiver can take control of trust
money under the control of a property agent, and gather in any other trust
money.
Clause 121 Receiver may require delivery of trust money and supply of information
This clause provides for a receiver of trust money to require the property
agent, or any other person having control of that trust money, to either
deliver up that money, accounts or records, or provide any information
considered necessary.
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Clause 122 Dealings with trust account
This provision establishes the procedure by which a receiver appointed in
respect of the trust money of a property agent can serve an authorised
deposit taking institution with a Magistrates order, to instruct that institution
to not permit any withdrawal to be made from the trust account, except by
the receiver.
Clause 123 Power to take proceedings to recover trust money
This clause enables a receiver to take proceedings to recover trust money
stolen, embezzled, misappropriated or dealt with in breach of trust, in his or
her name.
Clause 124 Magistrate may give directions
This clause provides for a magistrate to authorise the receiver to do what
the magistrate thinks necessary to carry out the objects of this Division.
Clause 125 Powers of manager
This clause establishes the particular powers of a manager appointed to
manage the business of a property agent.
Clause 126 Obligations of manager
This provides for an appointed manager to perform all functions that a
property manager would have been required to perform by this Act, any
other Act or by any agreement.
Clause 127 Magistrate may give directions
This clause provides for a magistrate to authorise and direct a manager to
do anything considered necessary in order to carry out the objects of this
Division, or to manage the business of a property agent.
Clause 128 Remuneration
This clause provides for a receiver or manager to be paid by way of
remuneration for any costs that are either agreed with the Board or
determined by a magistrate.
Clause 129 Reporting requirements
Provides for receivers or managers to report with information as required
to the Board.
Clause 130 Termination and appointment
This provision enables the Board to terminate or appoint a receiver by
applying for an order from a magistrate.
Clause 131 Professional indemnity insurance
This clause establishes that it is an offence for property agents under the
Act to fail to maintain appropriate professional indemnity insurance cover.
This clause also provides for what the insurance must cover, that it is
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provided for an approved insurance company, that evidence of such
insurance must be produced to the Board when required and that it must
be sufficient to comply with this provision.
Clause 132 Suspension of licence when professional indemnity insurance not in force
This clause establishes that property agents who fail to have professional
indemnity insurance cover as required by this Division are taken to be
suspended.
Property agents must inform the Board on each renewal of the insurance
cover.
Part 9 – Trust money, trust accounts and records
Clause 133 Trust money
This clause establishes what the definition of ‘trust money’ is under the Act,
and that all trust money received by the property agent is to be held upon
trust.
Clause 134 Trust account
This clause defines ‘trust account’ under the Act.
Clause 135 Trust money to be paid into trust account
It is an offence for property agents to fail to pay, or delay to pay, any trust
money that is received into a trust account.
This clause provides defences to this offence: if there is agreement by all
parties (there is no right to any interest on the money as a result), and that
money was paid into a trust account in the joint names of those parties.
Clause 136 Deficiency in trust account
This clause provides that it is an offence if a property agent, without
reasonable excuse, causes a deficiency in a trust account maintained by a
property agent or fails to pay or deliver any trust money.
This clause also establishes that as soon as a property agent becomes
aware of the deficiency, they must take reasonable steps must be taken to
rectify the deficiency.
Clause 137 Reporting certain irregularities and suspected irregularities
This provides for written notice of irregularities in trust accounts must be
given to the Board or to the Rental Deposit Authority, the Residential
Tenancy Commissioner, or any other prescribed person or body.
Clause 138 Accounts regulations
This clause establishes that certain regulations relating to trust money, trust
accounts and records may be made under this Act.
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Clause 139 Records of transactions
This clause specifies that the Board may approve of records kept by
property agents and the particular specifications that the Board requires.
Clause 140 Inspection of records
This clause provides for the power of the Board to serve written notice to
any authorised deposit-taking institution where accounts under this Division
may be kept, requiring that institution to undertake specified actions.
It is an offence if the institution fails to comply with the notice
requirements.
Part 10 – Property Agents Trust and Guarantee Fund
Clause 141 Property Agents Trust
This clause establishes the Property Agents Trust.
The Trust is a legal entity that can sue and be sued, and for whom judicial
notice must be taken.
This clause sets out the requirements for a Chair of the Trust, who is to be
appointed by the Governor.
Schedule 3 contains the requirements of membership and meetings of the
Trust.
Clause 142 Functions of the Trust
Provides for the general functions of the Trust. The functions of the Trust
include establishing and maintaining the guarantee fund, administering the
fund and paying compensation payable from the fund as required.
Clause 143 Powers of the Trust
This clause provides for the powers of the Trust to do anything necessary
in the performance of its functions.
Clause 144 Administrative accounts of the Trust
This provision establishes the procedures in relation to how money from
the guarantee fund may be used, including how payments to the Trust are
to be made, and the manner in which money is to be invested.
Clause 145 Accounts and reports
This clause establishes financial reporting and auditing requirements for the
Trust.
This clause also establishes that certain regulations relating to trust accounts
and records, and additional auditing requirements, may be made under this
Act.
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Clause 146 Protection of Trust members
This clause provides indemnity for all members or officers of the Trust, for
any actions done in good faith.
Clause 147 Board may enter into schemes of arrangement
This clause provides for the power of the Board to enter into schemes of
arrangements with authorised deposit-taking institutions for the keeping of
trust accounts.
This clause also sets out the scheme of arrangement requirements.
Clause 148 Trust accounts to be kept only with approved institutions
It is an offence for property agents to keep or maintain trust accounts with
unapproved deposit-taking institutions.
Clause 149 Property Agents Guarantee Fund
This clause establishes the Property Agents Trust Property Agents
Guarantee Fund.
This clause provides for the requirements of the Guarantee Fund, including
the ability for the Trust to cover its operating and administrative expenses,
and then pay all remaining money to the Fund.
The clause also sets out how the Trust applies the Fund, as jointly agreed
by the Minister and the Board, and the minimum amount the Fund is to be
maintained.
Clause 150 Use of surplus money in the Guarantee Fund
This clause establishes the procedure for the use of any surplus money in
the Guarantee Fund. The surplus must not be exhausted.
Clause 151 Administration of Guarantee Fund
This clause establishes that a trustee is to invest funds in any manner
authorised by law.
The clause also provides that any income derived from the investment of
funds is to be added to the Guarantee Fund.
Clause 152 Right to claim compensation
This clause establishes the ability for any person to apply to the Board for
compensation from the Guarantee Fund, for pecuniary or property loss
suffered by a person arising from criminal or fraudulent conduct of a
property agent under this Act.
This clause sets out the notice requirements that must be met prior to
making an application to the Board.
This clause also provides that the amount of loss does not cover the
amount that the applicant has recovered from any person in respect of the
loss.
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Clause 153 The Board may invite claims
This provision enables the Board to publish, by any manner considered
appropriate, an invitation for any persons eligible to claim against the
Guarantee Fund, to make an application to the Board within a specified
time.
Clause 154 Manner and time for making an application
This clause specifies the required manner and timeframe that an application
for compensation may be considered the Board.
Clause 155 Applicant for compensation to provide details of claim
Provides for the specific documentation that must accompany an
application for compensation.
Clause 156 Board may seek further particulars
Provides power for the Board to seek further information or
documentation from a person who has made an application for
compensation.
This clause also specifies procedures for requesting further information or
documentation.
Clause 157 Board to consider application
This clause provides for procedures the Board must follow in relation to an
application for compensation, including that a determination must be made
as to whether a loss has been suffered and the extent of compensation that
would cover the loss.
The Board is required to provide written notice of its determination,
including reasons to justify the determination, and informing the applicant of
their right to apply for review of the decision.
Clause 158 Recovery of claims under professional indemnity insurance
This clause establishes the power of the Board to compel an applicant to
instigate proceedings to recover any sum under professional indemnity
insurance, before making a determination in relation to an application for
compensation.
This clause also provides that if the Board requires an applicant to institute
proceedings, the Trust is to provide appropriate aid, including financial aid
from the Guarantee Fund.
Clause 159 Trust of determine compensation payable
Provides that the Trust must consider any recommendations of the Board
in relation to an application for compensation determination, and must
determine the amount of compensation payable to the claimant.
Clause 160 Notice of determination
The Trust is required to provide written notice of its determination,
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including reasons to justify the determination, and informing the applicant of
their right to apply for review of the decision.
Clause 161 Reviews
This clause establishes that a determination made by the Board or the Trust
under this Division may be subject to administrative review.
Clause 162 Payment of compensation
This clause establishes the procedures following a determination that
compensation is payable under this Division.
Clause 164 Subrogation
This clause establishes that the Trust is subrogated to the rights of the
person who receives compensation under this Division, against any other
person in relation to the occurrence that gave rise to the claim for
compensation. This means the Trust may attempt to recover the funds paid
from the Guarantee Fund to a claimant, from the property agent or such
person to which the claim relates.
Clause 165 Certain property agents may not claim
This clause establishes that property agents under this Act are not entitled
to make a claim for compensation in certain circumstances.
Part 11 – Miscellaneous
Clause 166 Obstruction
It is an offence for a person to obstruct, threaten or intimidate a person
performing a function or exercising a power under this Act.
Clause 168 Liability of directors
This clause provides immunity from the liability provisions for directors,
managers, secretaries or any other similar officer of a company, where they
can prove that the relevant offence was committed without their consent,
and they exercised sufficient diligence to prevent the offence from being
committed.
Clause 167 Infringement notices
Provides that infringement notices for offences under the Act may be
issued by the Board or an authorised person.
This clause sets out the procedures and serving requirements for
infringement notices.
This clause also establishes that certain regulations relating to infringement
notices and penalties payable may be made under this Act.
Clause 168 Service of documents
This provision establishes the procedures by which documents under this
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Act to be served.
Clause 169 Confidentiality
It is an offence for any person who obtains information under the Act to
disclose that information, except for certain circumstances.
Clause 170 Regulations
Provides for making of regulations for the purposes of this Act.
Clause 171 Administration of Act
The Minister for Building and Construction and the Department of Justice
are responsible for the administration of the Act.
Clause 172 Savings and transitional provisions
Provides for savings and transitional requirements under the Act, such as
the transitioning from Registration to licensing, the Tribunal and the Panel.
Clause 173 Consequential amendments of regulations
This clause provides that amendments to regulations as a result of this Act
do not prevent consequential amendments of those provisions by
regulation.
Clause 174 Consequential amendments
The legislation specified in Schedule 4 is amended as specified.
Clause 175 Legislation Repealed
The legislation specified in Schedule 5 is repealed.
Schedule 1 – Membership and Meetings of Board
Part 1 – Membership of Board
Clause 1 Membership
These provisions establish the membership requirements for the Property
Agents Board, including the appointment term of three years and that the
State Service Act 2000 does not apply to members of the Board.
Clause 2 Appointment conditions
These provide for the required conditions of appointment to the Property
Agents Board, including Board members are to receive remuneration
determined by the Minister as specified in their instrument of appointment.
This clause also states that members who are also State Service employees
are not entitled to remuneration, unless otherwise determined by the
Minister.
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Clause 3 Vacancies
This clause establishes the required procedure when there is a vacancy in
Board membership due to death, resignation, or removal from office.
This clause also sets out the circumstances where membership of the
Board may be terminated.
Clause 4 Validity of actions
Provides what the valid (and invalid) actions the Board, or a person acting
on the direction of the Board, involve.
Clause 5 Presumptions in respect of Board
This clause establishes that for any proceedings by or against the Board, it is
presumed that there was a quorum at a meeting of the Board, unless
evidence can be provided to the contrary.
Part 2 – Meetings of Board
Clause 1 Meetings
This clause establishes the required procedures to convene meetings of the
Board.
Clause 2 Presiding at meetings
This clause establishes that the Chair is to preside at meetings of the Board,
unless the Chair is not present in which case members may elect another
member to preside.
Clause 3 Procedure at meetings
This clause establishes the requirements for meetings of the Board,
including the need for a quorum of three members, and the procedures in
relation to questions, transactions, voting, adjournments and minutes and
determinations of the meeting.
Clause 4 Interests to be disclosed
It is a requirement for members of the Board to disclose any conflict of
interest, and must not be present during any meeting in relation to the
conflict.
Clause 5 Indemnity
This clause provides indemnity for the members, employees or agents of
the Board for any acts or omissions when made in good faith, and in the
performance of their functions and powers under this Act.
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Schedule 2 – Membership and Meetings of Tribunal
Part 1 – Membership of Tribunal
Clause 1 President
This clause establishes the appointment requirements for the President of
the Tribunal, including remuneration and termination.
Clause 2 Members of Panel
This clause establishes the appointment requirements for members of the
Panel on the Tribunal, including remuneration, conditions of office, and
resignation.
Part 2 – Meetings of Tribunal
Clause 1 Meetings of Tribunal
This clause provides for requirements for a Tribunal hearing, including the
need for a quorum of three members, appointment of persons to assist
members, and the appointment of a registrar of the Tribunal.
Schedule 3 – Membership and Meetings of Trust
Part 1 – Membership of Trust
Clause 1 Term of office
The term of office for a member of the Trust is three years.
Clause 2 Vacation of office
This clause establishes that the Governor may appoint a person to hold
office for the unexpired part of a member’s term, if the membership is
vacated before the end of their term of office.
This clause also provides that the performance of Trust functions are not
affected by vacancies or issues related to vacancies of membership.
Clause 3 Reappointment
Provides for eligibility for reappointment as a Trust member.
Clause 4 Holding other office
This clause allows members of the Trust to be able to hold office under
other Acts.
Clause 5 State Service Act
The State Service Act 2000 does not apply to members of the Trust.
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Clause 6 Fees and allowances
This clause establishes payment conditions that apply to Trust members.
Clause 7 Termination
This clause establishes the conditions under which the Governor may
remove a member from office, including inability, inefficiency, misbehaviour,
or physical or mental incapacity.
Clause 8 Vacation of office
This clause establishes the conditions under which the Governor must
terminate the appointment of an member of the Trust.
Clause 9 Resignation
Members of the Trust may resign at any time by written notice to the
Governor.
Part 2 – Meetings of Trust
Clause 1 Convening of meetings
This clause provides for requirements for a Trust meeting, including the
requirement for the Chair to convene meetings as required for the efficient
operation of the Trust, or when requested by a member of the Trust.
Clause 2 Presiding of meetings
This clause establishes that the Chair is to preside at meetings of the Trust,
unless the Chair is not present in which case members may elect another
member to preside.
Clause 3 Quorum and voting
This clause establishes that two members of the Trust constitute a quorum.
This clause also states that the presiding member has the deliberative vote,
and provides for the process for equal votes, casting of votes and
adjournments.
Clause 4 Procedure
This clause states that the Trust has the power to determine its own
procedures, except for sections of the Act that relate to Trust procedure.
The Trust must also keep a record of its proceedings.
Clause 5 Trust member not to act in certain circumstances
This clause provides for the requirements and conditions in which a Trust
member is not to act, and the requirement to disclose an direct or indirect
pecuniary interests.
This clause also states the disclosure requirements.
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Schedule 4 – Consequential Amendments
Australian Consumer Law (Tasmania) Regulations 2012
Clause 1 Removes the reference to the Property Agents and Land Transactions Act
2005 and substitutes with the Property Agents and Land Transactions Act
2016.
Conveyancing Act 2004
Clause 1 Removes the reference to the Property Agents and Land Transactions Act 2005
and substitutes with the Property Agents and Land Transactions Act 2016.
Clause 2 Removes the reference to the Auctioneers and Real Estate Agents Act 1991
and substitutes with the Property Agents and Land Transactions Act 2016.
Clause 3 Removes the reference to the Auctioneers and Real Estate Agents Act 1991
and substitutes with the Property Agents and Land Transactions Act 2016.
Justices Order 2004
Clause 1 Removes the reference to the Property Agents and Land Transactions Act 2005
and substitutes with the Property Agents and Land Transactions Act 2016.
Legal Profession Act 2007
Clause 1 Removes the reference to the Property Agents and Land Transactions Act 2005
and substitutes with the Property Agents and Land Transactions Act 2016.
Residential Tenancy Act 1997
Clause 1 Removes the reference to the Property Agents and Land Transactions Act 2005
and substitutes with the Property Agents and Land Transactions Act 2016.
Second-Hand Dealers and Pawnbrokers Act 1994
Clause 1 Removes the reference to the Property Agents and Land Transactions Act 2005
and substitutes with the Property Agents and Land Transactions Act 2016.
Security and Investigations Act 2002
Clause 1 Removes the reference to the Property Agents and Land Transactions Act 2005
and substitutes with the Property Agents and Land Transactions Act 2016.
Shop Trading Hours Act 1984
Clause 1 Removes the reference to the Property Agents and Land Transactions Act 2005
and substitutes with the Property Agents and Land Transactions Act 2016.
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Schedule 5 – Legislation Repealed
As a result of this Act, the following legislation is repealed.
Property Agents and Land Transactions Act 2005 (No. 75 of 2005)
Property Agents and Land Transactions Amendment Act (No. 2) 2009 (No. 52 of 2009).
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