Estate Agents (Amendment) Act 1994

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1 No. 86 of 1994 Section 1. Purpose 2. Commencement 3. Part II substituted TABLE OF PROVISIONS PART 1 PRELIMINARY PART 2 RESTRUCTURING PART IIA THE ESTATE AGENTS COUNCIL 6. Estate Agents Council 6A. Objectives of the Council 6B. Functions and powers of the Council 6c. Meetings of the Council PART IIB THE ESTATE AGENTS LICENSING AUTHORITY 7. Estate Agents Licensing Authority 7A. Membership of the Authority 7B. Functions of the Authority 7c. Powers of the Authority 7D. Authority to act in accordance with Council directions 7E. Staff 7F. Consultants 7G. Delegation 7H. Power of Authority to deal with disputes 8. Successors to the Board 8A. Transitional provision hearings 4. New Part VIIA inserted PART VIIA THE ESTATE AGENTS DISCIPLINARY AND LICENSING APPEALS TRIBUNAL 91 A. Constitution of Tribunal 91B. Functions and powers of the Tribunal 91c. Terms and conditions of appointment 9 ID. Allowances 91E. Resignation and termination 9IF. Acting Chairperson or Deputy Chairperson 91G. Acting members 91H. Proceedings of Tribunal not invalid by reason of vacancy 911. Chairperson or Deputy Chairperson to give directions 1957

2 91 J. Use of experts 91K. Fixing time and place for hearings 91L. Constitution of Tribunal 91M. Determination of questions before the Tribunal 91N. Appearance 91o. Evidence 91 P. Procedure of Tribunal 91Q. Determination of questions of law 91 R. Copy of determination and reasons for determination 91s. Authority to give effect to determination 9IT. Tribunal may request Authority to investigate matters 91u. Extension of time 91 v. Amendment of documents 91 w. Contempt of Tribunal 91 x. Registrar and staff of the Tribunal 91 Y. Appeals to the Supreme Court from decisions of the Tribunal PART 3 GENERAL AMENDMENTS 5. Changes to definitions 6. Increase in penalties for unlicensed trading and licence lending 7. Abolition of sub-agents' licences 8. Insertion of sections 13A and 13B 13A. Estate agents to be responsible for the acts of their representatives 13B. Auctioneers of real estate 9. Change to estate agent licence eligibility criteria 10. Amendments to requirements concerning corporate estate agents 11. Substitution of section Eligibility for employment as an agent's representative 16A. Authority must maintain register of people declared ineligible to be agents' representatives 16B. Offence to aid unqualified person to be an agent's representative 16c. Transitional provision concerning former sub-agents 12. Change to estate agent's licensing system 13. Substitution of section Automatic cancellation of licence on bankruptcy etc. 14. Insertion of sections 23-24B 23. Annual licence fee and statement 24. Extension of time 24A. Failure to comply with section 23 24B. If details given in application or annual statement change 15. Substitution of section Inquiries into estate agents 16. Substitution of section Inquiries into agents' representatives 17. Insertion of sections 29A and 29B 29A. Cancelled or suspended licence must be returned 29B. Agent etc. must properly supervise the operation of the agent's business 18. Changes concerning unlicensed branch managers 1958

3 19. Substitution of section 30AA 30AA. Duties of the officer in effective control of a corporation 30AB. Rural branch manager's licence 20. Insertion of sections 31 A-3 1 E 31A. Person involved in Guarantee Fund claim may regain licence etc. in special circumstances 31B. Bankrupt person may be allowed limited right to hold licence etc. 31c. Person with criminal record may be allowed limited right to hold licence etc. 3ID. Tribunal may impose conditions 31 E. Disability etc. of licensed estate agent 21. Substitution of section Name of estate agency business 22. Insertion of section 49A 49A. Offence not to give certain information about commission 23. Deregulation of commission rates 24. Statement concerning finance only to be given if finance promised 25. Consequential amendments 26. Agent does not have to sign sale of business statement 27. Insertion of section 53A 53A. Exemption concerning Legal Profession Practice Act 28. Substitution of section Default time limit on sole agency agreements 29. Relatives of employee of estate agent may buy through agent 30. Changes concerning power to enter into financial arrangements 31. Substitution of sections 60A and Appointment of authorised institutions to handle trust accounts 32. Trust money may be paid using an electronic funds transfer 33. Auditor to send Authority a report on ceased business 34. Changes concerning auditors' qualifications 35. Authority to be able to inspect the records etc. of unlicensed traders 36. Relocation of fund management agent provisions 37. Substitution of section Application of excess money in the Guarantee Fund 38. Authority to control investment of the Guarantee Fund 39. Clarification of who may claim from the Guarantee Fund 40. Insertion of sections 92A-92C 92A. Authority may waive fees 92B. Verification of details supplied to the Authority 92c. Complaints concerning estate agents etc. are privileged 41. Increase in penalty for providing false information 42. Insertion of section 94A 94A. Profit to be forfeited in case of unlicensed trading etc. 43. Insertion of section 95A 95A. Orders for fines and costs may be enforced through die Magistrates' Court 44. Changes to regulation making powers 45. Minor changes and statute law revision 46. Abolition of real estate auctioneers' licences 1959

4 PART 4 MINOR CONSEQUENTIAL AMENDMENTS 47. Minor consequential amendments 48. Consequential amendment of the Stamps Act PART 5 SAVINGS AND TRANSITIONAL PROVISIONS 49. Saving of existing Rules. 50. Application of change to definition of "small business" 51. Provisions concerning branch managers to have effect despite delayed commencement 52. New requirements concerning commissions etc. only apply to new engagements 53. Default time limits only apply to new agreements 1960

5 Victoria No. 86 of 1994 Estate Agents (Amendment) Act 1994 [Assented to 6 December 1994] The Parliament of Victoria enacts as follows: 1. Purpose PART 1 PRELIMINARY The purpose of this Act is (a) to abolish the Estate Agents Board; (b) to constitute an Estate Agents Council, an Estate Agents Licensing Authority, and an Estate Agents Disciplinary and Licensing Appeals Tribunal; (c) to make general amendments to the Estate Agents Act 1980 including (i) to abolish sub-agents' licences and to re-classify sub-agents as agents' representatives; 1961

6 Act No. 86/1994 (ii) to enable all estate agents and agents' representatives to conduct real estate auctions; (iii) to de-regulate the charging of commission by estate agents; id) to consequentially amend the Auction Sales Act Commencement (1) Part 1 comes into operation on the day on which this Act receives the Royal Assent. (2) Section 14 comes into operation on a day to be proclaimed after 31 December (3) Subject to sub-section (4), the remaining provisions of this Act come into operation on a day or days to be proclaimed. (4) If a provision referred to in sub-section (2) or (3) does not come into operation on or before 1 July 1996, it comes into operation on that day. 3. Part II substituted PART 2 RESTRUCTURING For Part II of the Estate Agents Act 1980 substitute PART IIA THE ESTATE AGENTS COUNCIL 6. Estate Agents Council (1) There is established an Estate Agents Council. (2) The Council is to consist of 8 members appointed by the Governor in Council of whom 1962

7 Act No, 86/1994 s. 3 (a) 3 are to be persons from the real estate industry, of whom at least 2 must be appointed from a panel of names of 8 persons who have for the previous 5 years been licensed estate agents practising as such submitted by The Real Estate Institute of Victoria Ltd; (b) 1 must be appointed from a panel of names of 3 persons who have for the previous 5 years been licensed estate agents practising as such submitted by The Victorian Stock Agents' Association Inc.; (c) 1 is to be a barrister and solicitor of the Supreme Court of Victoria of not less than 5 years standing; id) 1 is to be a member of either the Australian Society of Certified Practising Accountants or The Institute of Chartered Accountants in Australia; (e) 2 are to be persons who are not estate agents and are not employed in the estate agency industry or in the provision of services to estate agents. (3) The Chairperson and the Deputy Chairperson of the Council are to be appointed from among the members of the Council by the Governor in Council on the recommendation of the Minister. (4) A member of the Council (a) is, subject to this Act, entitled to hold office for such term not exceeding 3 years as is specified in the instrument of appointment and is eligible for re-appointment; 1963

8 s. 3 Estate Agents (Amendment) Act 1994 Act No (b) is entitled to be paid such remuneration and travelling and other expenses, if any, as is fixed by Order of the Governor in Council; (c) is not in respect of the office of the member subject to the Public Sector Management Act (5) The Governor in Council may at any time (a) remove a member of the Council from office; and (b) fill any vacancy in the office of a member of the Council. (6) The office of a member of the Council becomes vacant (a) at the expiration of the term of office; (b) if the holder of the office dies; (c) if the holder of the office resigns by writing addressed to the Governor in Council; (d) if the holder of the office is removed from office under sub-section (5); (e) if the holder of the office is absent without leave of the Council from 4 consecutive meetings of the Council; (/) if the holder of the office becomes an insolvent under administration; (g) if the holder of the office becomes incapable of performing the duties of the office. 6A. Objectives of the Council The objectives of the Council are (a) to promote appropriate standards of conduct and competency for persons in the real estate industry; 1964

9 Act No. 86/1994 s. 3 (b) to protect the interests of persons using real estate services; (c) to ensure that effective procedures exist for the resolution of disputes between persons specified in paragraphs (a) and (b); (d) to further the objectives specified in paragraphs (a), (b) and (c) as far as practicable in conjunction with relevant real estate industry associations. 6B. Functions and powers of the Council (1) The functions of the Council are (a) to monitor the operation of this Act and the regulations; (b) to assess the efficiency and effectiveness of regulation of the real estate industry under this Act and the need for further regulation or alternatives to regulation such as de-regulation or co-regulation; (c) to monitor the provision of services by estate agents and developments in the real estate industry generally; (d) to advise the Minister (i) in respect of any matter relating to the operation of this Act, including the impact of the deregulation of the charging of commission; (ii) on any matter referred to the Council by the Minister; (iii) in respect of any matter arising under paragraph (a), (b) or (c);

10 s. 3 Estate Agents (Amendment) Act 1994 Act No (e) to make recommendations to the Minister (i) on policies relating to the operation of this Act and the regulations; (ii) on policies relating to the real estate industry; (iii) relating to the application of grants under section 76; (J) to recommend to the Minister proposals for the reform of the Act and of the administration of the Act and of any law relevant to the provision of real estate services; (g) to carry out such other functions as are conferred on the Council under this Act or by the Minister by notice published in the Government Gazette. (2) The Council may exercise such powers as are necessary to perform its functions and to achieve its objectives including without limiting the generality of this sub-section (a) to implement policies relating to the administration of this Act; (b) to give directions to the Authority in respect of the implementation of such policies; (c) to recommend the making of regulations by the Governor in Council; (d) to monitor and evaluate the effectiveness of any procedures set up to deal with disputes between estate agents or between estate agents and persons dealing with estate agents relating to services or the charging of commission; 1966

11 Act No s. 3 (e) to recommend ways of improving such procedures; if) to approve the payment by the Authority of claims for compensation from the Estate Agents' Guarantee Fund; (g) to exercise such other powers as may be conferred on the Council under this Act. (3) The Council must exercise its powers and perform its functions subject to the direction and control of the Minister. (4) The Minister may give a direction to the Council on policy matters in writing by- (a) issuing a direction to the Council; or (b) approving a policy submitted by the Council to the Minister for approval. 6c. Meetings of the Council (1) Meetings of the Council must be presided over by the Chairperson or if the Chairperson is absent by the Deputy Chairperson of the Council. (2) If at the time fixed for the commencement of any meeting of the Council neither the Chairperson nor the Deputy Chairperson is present, the members present must elect one of their number to preside at the meeting. (3) If a member is unable for any reason to attend a meeting of the Council the Minister may nominate a person to, attend instead of that member. 1967

12 Act No. 86/1994. (4) A majority of members of the Council for the time being in office constitute a quorum. (5) Subject to the presence of a quorum the Council may act notwithstanding any vacancy in its membership. (6) The decision upon any matter by the majority of the members of the Council present at any meeting is the decision of the Council. (7) Subject to this Act, the Council may regulate its own procedure. PART llb THE ESTATE AGENTS LICENSING AUTHORITY 7. Estate Agents Licensing Authority (1) There is established a body corporate called the Estate Agents Licensing Authority. (2) The Authority (a) has perpetual succession; and (b) has a common seal; and (c) may sue and be sued in its corporate name; and (d) is capable of taking, purchasing, leasing, holding, selling, exchanging and disposing of real and personal property for the purposes of this Act; and (e) may do and suffer all acts and things which a body corporate may by law do and suffer and which are necessary or convenient for the purposes of this Act. (3) All courts must take judicial notice of the seal of the Authority affixed to a 1968

13 Act No s.3 document and, until the contrary is proved, must presume that it was duly affixed. (4) The common seal of the Authority must be kept in such custody as the Authority directs and must not be used except as authorised by the Authority. 7A. Membership of the Authority (1) The Authority consists of one member. (2) The Director is to be that member. 7B. Functions of the Authority The functions of the Authority are (a) to administer the licensing provisions of this Act; (b) to administer the Estate Agents' Guarantee Fund; (c) to ensure that estate agents and agents' representatives comply with trust account procedures, professional conduct rules and other requirements of this Act and the regulations; (d) to initiate inquiries before Tribunal; the (e) to deal with prosecutions, inquiries and complaints under this Act; if) to provide assistance and support to the Council, including at the direction of the Council to do any act, matter or thing incidental or conducive to the performance by the Council of its functions. 1969

14 Act No. 86/1994 7c. Powers of the Authority (1) Subject to this Act, the Authority has power to do all things that are necessary or convenient to be done for or in connection with the performance of its functions. (2) Without derogating from sub-section (1), the Authority has power, subject to the approval of the Minister and after consultation with the Council, to enter into agreements with approved industry associations. (3) An agreement under sub-section (2) (a) may contain such terms and conditions as are determined by the Authority; and (b) may provide for the performance by an approved industry association of a function of the Authority (other than a function under section 7H) on behalf of the Authority. (4) In this section and section 7G, "approved industry association" means (a) The Real Estate Institute of Victoria Ltd.; (b) The Victorian Stock Agents' Association Inc.; (c) any other industry association approved by the Minister by notice published in the Government Gazette for the purposes of this section. 1970

15 Act No s. 3 7D. Authority to act in accordance with Council directions (1) The Council may, with the approval of the Minister, give written directions to the Authority with respect to the conduct of the affairs of the Authority and the implementation of policies. (2) The Authority must (a) comply with any direction given under sub-section (1); and (b) report to the Council in respect of compliance with any direction in the manner and form determined by the Council. 7E. Staff (1) There may be appointed or employed under the Public Sector Management Act 1992 any officers and employees that are necessary for the purposes of this Act. (2) The Authority may enter into agreements or arrangements for the use of the services of any staff of a Department, statutory authority or other public body. 7F. Consultants (1) The Authority may engage persons with suitable qualifications and experience as consultants. (2) An engagement under sub-section (1), may be on any terms and conditions the Authority considers appropriate. 1971

16 Act No G. Delegation (1) The Authority may, by instrument under its common seal, delegate to (a) any person referred to in section 7E; or (b) an approved industry association any function or power of the Authority under this Act other than this power of delegation. (2) Before delegating a power or function under sub-section (1) (b), the Authority must consult with the Council and obtain the approval of the Minister. (3) The Director may by instrument in writing delegate to any person referred to in section 7E any function or power of the Director under this Act other than this power of delegation. 7H. Power of Authority to deal with disputes (1) The Authority may deal with any dispute that arises between an estate agent and a client of the estate agent or another estate agent or a member of the public. (2) However, the Authority must not deal with any dispute between an estate agent and a client of an estate agent concerning the amount of commission or outgoings charged by the agent unless the Authority is given notice of the dispute within 28 days of the day that the client receives an account for, or notice that the agent has taken from the agent's trust account, the amount in dispute. (3) Sub-section (2) does not apply if, in the opinion of the Authority, there are exceptional circumstances. 1972

17 Act No. 86/1994 (4) The Authority may refer to the Tribunal at any time a dispute concerning the amount of commission or outgoings charged. 8. Successors to the Board (1) On the commencement of section 3 of the Estate Agents (Amendment) Act 1994 (a) all property, rights and assets of the Estate Agents Board are by virtue of this Act vested in the Authority; (b) all liabilities of the Estate Agents Board are by virtue of this Act liabilities of the Authority; (c) subject to sub-section (3) and section 8A, the Authority is the successor in law of the Estate Agents Board. (2) If, immediately before the commencement of section 3 of the Estate Agents (Amendment) Act 1994, proceedings to which the Estate Agents Board or the Chief Executive Officer of the Board was a party were in existence, then, on and after that commencement, the Authority is substituted for the Estate Agents Board or the Chief Executive Officer as a party to the proceedings and has the same rights in the proceedings as the Estate Agents Board or Chief Executive Officer had. (3) Any reference in any Act, regulation, local law, subordinate instrument, certificate of title, deed, contract, order or other document to the Estate Agents Board in its capacity as a body able to conduct a hearing or inquiry is to be 1973

18 s. 3 Estate Agents (Amendment) Act 1994 Act No construed as a reference to the Tribunal, unless the contrary intention appears. (4) Any reference in any Act, regulation, local law, subordinate instrument, certificate of title, deed, contract, order or other document to the Estate Agents Board in any other capacity is to be construed as a reference to the Authority, unless the contrary intention appears. (5) Any reference in any Act, regulation, local law, subordinate instrument, certificate of title, deed, contract, order or other document to the Chief Executive Officer of the Estate Agents Board is to be construed as a reference to the Authority, unless the contrary intention appears. 8A. Transitional provision hearings (1) On the commencement of section 3 of the Estate Agents (Amendment) Act 1994 (a) any matter that is awaiting hearing by the Estate Agents Board is to be heard by the Tribunal; (b) any matter that is awaiting hearing under this Act by the Administrative Appeals Tribunal is to be heard by the Estate Agents Disciplinary and Licensing Appeals Tribunal; (c) any matter that the Estate Agents Board has begun to hear but in respect of which no determination has been made is to be determined as far as is practicable as if that Board had not ceased to exist and as if the Estate Agents (Amendment) Act 1994 had not been enacted; 1974

19 Act No s. 3 (d) any matter that the Administrative Appeals Tribunal has begun to hear but in respect of which no determination has been made is to be determined by that Tribunal as if the Estate Agents (Amendment) Act 1994 had not been enacted. (2) Any final determination made by the Estate Agents Board under sub-section (1) (c) or by the Administrative Appeals Tribunal under sub-section (1) (d) is to be treated as if it were a determination of the Estate Agents Disciplinary and Licensing Appeals Tribunal. (3) Any matter referred to in sub-section (1) (a) or (b) is to be determined on the basis of this Act as amended by the Estate Agents (Amendment) Act (4) If any difficulty arises in any matter because of the operation of this section, the Chairperson of the Tribunal may make any order he or she considers appropriate to resolve the difficulty. (5) The Chairperson may make such an order on the application of any party to the matter, or on his or her own motion. (6) An order under sub-section (4) has effect despite anything to the contrary in this Act in the form it was in before the commencement of the Estate Agents (Amendment) Act 1994 or in the regulations. (7) For the purposes of section 8A (1) (c), the Estate Agents Board continues in existence until the Board determines the matter. (8) For the purposes of this section a matter has begun only if evidence has been 1975

20 Act No New Part VIIA inserted taken by the body before which the matter is being conducted.'. After Part VII of the Estate Agents Act 1980 insert "PART VIIA THE ESTATE AGENTS DISCIPLINARY AND LICENSING APPEALS TRIBUNAL 91A. Constitution of Tribunal (1) There is established an Estate Agents Disciplinary and Licensing Appeals Tribunal consisting of (a) a Chairperson appointed by the Governor in Council; and (b) such number of Deputy Chairpersons as are appointed by the Governor in Council; and (c) such number of persons with experience in and who represent the interests of the real estate industry as are appointed by the Governor in Council; and (d) such number of persons with knowledge of natural persons who use real estate industry services and who represent their interests as are appointed by the Governor in Council; and (e) a person nominated by the Chief Commissioner of Police. (2) A person can not be appointed as the Chairperson or a Deputy Chairperson unless the person is a barrister and solicitor of the Supreme Court of Victoria of not less than 5 years standing. 1976

21 Act No s.4 91B. Functions and powers of the Tribunal (1) The Tribunal has the following functions and powers (a) to hear appeals under section 21 concerning the refusal of the Authority to grant licences; (b) to conduct inquiries concerning estate agents under, section 25 and inquiries concerning agents' representatives under section 28; (c) to hear appeals under section 13B and to determine applications under sections 31A, 31B and 31c; (d) to make determinations (including an award of costs) under this Act; (e) to determine disputes in relation to the charging of commission or outgoings and, in the case of excess commission or outgoings, to order the payment of compensation; (f) to hear appeals under section 81 in relation to claims against the Estate Agents' Guarantee Fund; (g) to do anything else required or permitted by this Act. (2) In determining whether an estate agent or agent's representative has charged excess commission or outgoings, the Tribunal must have regard to (a) the terms of any agreement between the parties to the dispute relating to the payment of commission and outgoings; (b) the real estate services performed by the estate agent or agent's representative; (c) whether or not the conduct of the estate agent or agent's 1977

22 s.4 Estate Agents (Amendment) Act 1994 Act No representative was unfair or unreasonable in the circumstances; (d) any other matter the Tribunal considers is relevant. (3) After conducting an inquiry in respect of a person under section 25 or 28, the Tribunal, if it considers it appropriate, may do any one or more of the following (a) admonish or reprimand the person; (b) require the person to pay the costs of and incidental to the inquiry; (c) cancel any licence held by the person and disqualify the person either permanently or temporarily from holding a licence; (d) suspend any licence held by the person for such period as the Tribunal determines; (e) impose any condition or limitation on any licence held by the person; (J) declare the person to be ineligible to hold a licence or to be an agent's representative either permanently or temporarily; (g) accept an undertaking from the person in the form determined by the Tribunal. (4) In addition to the powers conferred by sub-section (3), if the Tribunal determines that the person has contravened or failed to comply with this Act or the regulations, it may impose a fine not exceeding 50 penalty units on the person and specify by when the fine must be paid. (5) If the Tribunal cancels or suspends a licence, the cancellation or suspension 1978

23 Act No takes effect on the date specified by the Tribunal. (6) If the Tribunal suspends or cancels a licence, the person to whom the licence was issued must return the licence to the Authority within the period specified by the Tribunal by notice in writing given to the person. Penalty: 10 penalty units. (7) A person must pay any fine imposed by the Tribunal under sub-section (4) within the time specified by the Tribunal. Penalty: 10 penalty units. (8) If an estate agent fails to pay a fine by the required date, the Tribunal may without giving the agent an opportunity to be heard (a) suspend the agent's licence until the fine is paid; and (b) cancel the licence if the fine has still not been paid after the expiration of a further period of time equal to the initial period of time the agent had in which to pay the fine. (9) A reference to a person in this section includes a reference to any person who was an estate agent or agent's representative at the time of any breach or alleged breach of any relevant law, even though the person is not an estate agent or agent's representative at the time any action is taken under this Act. 91c. Terms and conditions of appointment (1) A person who is the Chairperson is to hold office for the period (not exceeding 5 years) and on the terms and conditions 1979

24 4 Estate Agents (Amendment) Act 1994 Act No determined by the Governor in Council but is eligible for re-appointment. (2) A person who is a Deputy Chairperson is to hold office for the period (not exceeding 5 years) and on the terms and conditions determined by the Governor in Council but is eligible for re-appointment. (3) A member of the Tribunal, other than the Chairperson or a Deputy Chairperson, is to hold office for the period (not exceeding 3 years) and on the terms and conditions determined by the Governor in Council but is eligible for re-appointment. (4) A member of the Tribunal is not, in respect of his or her office as a member, subject to the Public Sector Management Act D. Allowances A member of the Tribunal, other than a member who is an officer of the public service, must be paid such travelling and other allowances as are fixed for the time being by the Governor in Council. 91E. Resignation and termination (1) A member of the Tribunal may resign his or her office by delivering a signed letter of resignation to the Governor in Council. (2) If a member of the Tribunal becomes an insolvent under administration or is convicted of an offence punishable by imprisonment for 12 months or more, the Governor in Council must remove the member from office. 1980

25 Act No. 86/1994 s.4 (3) The Governor in Council may remove a member of the Tribunal from office if, in the opinion of the Governor in Council (a) the member becomes incapable of performing the duties of the office; or (b) the member is incompetent; or (c) the member has misbehaved. 91F. Acting Chairperson or Deputy Chairperson (1) If (a) there is a vacancy in the office of Chairperson or Deputy Chairperson; or (b) the Chairperson or Deputy Chairperson is, or is about to be, absent or for any reason is unable to perform the functions of the office the Governor in Council may appoint a Deputy Chairperson or a person who is not a member of the Tribunal to act as the Chairperson or Deputy Chairperson until the filling of the vacancy or during the absence or inability. (2) The Governor in Council (a) may, subject to this Act, determine the terms and conditions of appointment of an acting Chairperson or Deputy Chairperson of the Tribunal; and (b) may at any time terminate such an appointment. (3) The appointment of an acting Chairperson or Deputy Chairperson of the Tribunal made in anticipation of the 1981

26 s.4 Estate Agents (Amendment) Act 1994 Act No absence or inability of the Chairperson or a Deputy Chairperson has effect from and including the day on which the absence or inability commences. (4) The appointment of an acting Chairperson or Deputy Chairperson of the Tribunal ceases to have effect if he or she delivers a signed letter of resignation to the Governor in Council. (5) While the appointment of an acting Chairperson or Deputy Chairperson of the Tribunal remains in force, the acting Chairperson or Deputy Chairperson has and may exercise all the powers and perform all the functions of the Chairperson or Deputy Chairperson, as the case may be. 91G. Acting members (1) If a member (other than the Chairperson or a Deputy Chairperson) of the Tribunal is or is about to be absent or for any reason is unable to perform the duties of the office, the Minister may appoint a person qualified to be appointed as that member to act as the member during the absence or inability. (2) Where a person has been appointed under this section to act as a member during the absence or inability of a member and that member ceases to hold office without having resumed duty, the period of appointment of the person so appointed is deemed to continue until it is terminated by the Minister or until the expiration of 12 months from the date on which the absent member ceases to hold office, whichever first happens. 1982

27 Act No s. 4 91H. Proceedings of Tribunal not invalid by reason of vacancy Subject to section 91L, an act or determination of the Tribunal is not invalid by reason only of a vacancy in the office of Chairperson or a Deputy Chairperson or of any other member or of a defect or irregularity in, or in connection with, the appointment of a member or, in the case of a person appointed to act as Chairperson, Deputy Chairperson or a member, on the ground that the occasion for so acting had not arisen or had ceased. 91i. Chairperson or Deputy Chairperson to give directions The Chairperson or a Deputy Chairperson may, subject to any decision of the Tribunal, give directions and do whatever is necessary for the expeditious and just hearing and determination of any proceedings before the Tribunal. 91 j. Use of experts The Chairperson or a Deputy Chairperson may, subject to the approval of the Minister, retain experts to advise the Tribunal in respect of any proceedings before the Tribunal. 91K. Fixing time and place for hearings (1) The Chairperson or a Deputy Chairperson, must fix the time and place of proceedings before the Tribunal. (2) The Registrar must give a written notice to each party to proceedings of the time 1983

28 Act No and place for proceedings. the hearing of the (3) If a person to whom a notice has been given in accordance with sub-section (2) fails to attend at the time and place specified in the notice, the proceedings may be held in the absence of that person. 91L. Constitution of Tribunal (1) A proceeding before the Tribunal may be determined by the Chairperson or a Deputy Chairperson alone (a) if the proceeding is included in a class of proceedings that, under the regulations, may be heard and determined by the Chairperson or a Deputy Chairperson alone; or (b) if the Authority and the person who is the subject of the proceeding before the Tribunal both agree. (2) Subject to sub-section (1), a proceeding before the Tribunal must be determined by the Tribunal constituted by (a) the Chairperson or a Deputy Chairperson; and (b) at least one member selected by the Chairperson or Deputy Chairperson who is a person referred to in section 91A (1) (c); and (c) at least one member selected by the Chairperson or Deputy Chairperson who is a person referred to in section 91A (1) (d); and (d) such other members of the Tribunal (if any) that the Chairperson or 1984

29 Act No. 86/1994 s. 4 Deputy Chairperson thinks appropriate. 91M. Determination of questions before the Tribunal 91N. Appearance A question before the Tribunal must be decided according to the opinion of a majority of the members constituting the Tribunal. (1) In any proceedings before the Tribunal, a party to the proceedings may appear and be heard (a) personally; or (b) by a duly qualified legal practitioner; or (c) if the person is a body corporate, by a director, secretary or other officer of the body corporate; or (d) if the Tribunal determines that there are special circumstances in a particular case, by a person specified by the Tribunal. (2) The Director, either personally, by an ' officer or by a duly qualified legal practitioner, may appear in any proceeding before the Tribunal. (3) A person may be summoned at the direction of the Tribunal or at the request of a party to any proceeding before the Tribunal to appear before the Tribunal to give evidence at the proceeding and to produce such records (if any) as are referred to in the summons. (4) A summons to appear before the Tribunal must be issued by the Registrar 1985

30 s.4 Estate Agents (Amendment) Act 1994 Act No and may be served upon the person to whom it is directed by delivering a true copy of the summons to that person or by leaving a true copy for the person at the person's last or most usual place of abode or of business with a person who appears to reside at that abode or to be employed at that place of business and to be not less than 16 years of age. (5) A person whose appearance at a proceeding has been required by a summons served under sub-section (4) must attend the proceeding until he or she is discharged from further attendance by the Tribunal, regardless of any adjournments or postponements of the proceedings. (6) A person summoned to appear before the Tribunal must be paid such fees and allowances as are determined by the Tribunal if the person asks for them to be paid. (7) A person is not excused from answering any question or producing any document on the ground that the answer or document might tend to incriminate the person, but if the person claims, before answering the question or producing the document, that the answer or document might tend to incriminate the person, the answer or document is not admissible in evidence against the person in criminal proceedings, other than proceedings in respect of the falsity of the answer or document. 91o. Evidence (1) Evidence during a proceeding before the Tribunal 1986

31 Act No s.4 (a) may be given orally or in writing; and (b) if the Tribunal so requires, must be given on oath or by affirmation. (2) The Chairperson or a Deputy Chairperson may administer an oath or take an affirmation for the purpose of taking and receiving evidence at a hearing. 91P. Procedure of Tribunal (1) Subject to this section, proceedings before the Tribunal must take place in public. (2) If the Tribunal is satisfied that it is desirable to do so by reason of the existence of special circumstances, the Tribunal may direct that the proceedings before the Tribunal take place in private. (3) The Tribunal may order that the name of a person who is a party to or gives evidence in proceedings before the Tribunal must not be published. (4) The Tribunal is not bound by rules or practices as to evidence but may inform itself on any matter in such manner as it thinks fit. (5) Subject to this Part and the regulations. (a) the procedure of the Tribunal is in its discretion; and (b) the manner of convening, conducting and adjourning the proceedings of the Tribunal is in its discretion. 1987

32 Act No. 86/ Q. Determination of questions of law (1) The Tribunal may, of its own motion or at the request of a party, refer a question of law arising in a proceeding before the Tribunal, to the Supreme Court sitting as the Full Court for its opinion. (2) A question of law cannot be referred to the Supreme Court unless the member of the Tribunal presiding at the proceeding agrees to the referral. (3) The Supreme Court must give its opinion on a question of law referred to it. (4) If a question of law has been reserved for the opinion of the Supreme Court, the Tribunal must not, in that proceeding (a) give a decision to which the question is relevant while the reference is pending; or (b) proceed in a manner or make a decision that is inconsistent with the opinion of the Supreme Court on the question. 91R. Copy of determination and reasons for determination (1) The Tribunal must give a copy of its determination in a proceeding to each party to the proceeding. (2) Any person may request a copy in writing of the reasons for a determination of the Tribunal (a) before or within 14 days after the Tribunal made the determination; and (b) on payment to the Registrar of the prescribed fee (if any). 1988

33 Act No s. 4 (3) The Tribunal must comply with a request made under sub-section (2). (4) If the Tribunal gives its reasons for a determination in writing, it must include with those reasons its findings on material questions of fact and a reference to the evidence or other material on which those findings were based. 91s. Authority to give effect to determination The Authority must take such action (if any) as is necessary to give effect to a determination of the Tribunal. 91T. Tribunal may request Authority to investigate matters The Tribunal may request the Authority to investigate a matter that has arisen in or in relation to a proceeding by the Tribunal and, if the Minister consents, the Authority may investigate the matter. 91u. Extension of time (1) The Tribunal may on the application of the Authority, the Chief Commissioner of Police or a party or on its own motion extend any time limit fixed by this Act for doing any act or taking any proceeding or waive compliance with any procedural requirement. (2) The Tribunal may make an order under this section although an application for the making of the order was not made until after the expiration of the time appointed or fixed for doing the act or taking the proceeding. 1989

34 Act No. 86/ v. Amendment of documents (1) The Tribunal (a) on the application of (i) the Authority; or (ii) a party to the proceedings; or (Jb) on its own motion may at any time order that any document in the proceedings be amended subject to any order for adjournment or costs or otherwise that the Tribunal thinks fit. (2) The Tribunal may at any time correct a clerical mistake in an order or an error arising in an order from an accidental slip or omission. 91w. Contempt of Tribunal A person must not (a) insult a member in the performance of functions or the exercise of powers as a member at a proceeding before the Tribunal; or (b) interrupt a proceeding before the Tribunal; or (c) create a disturbance, or take part in creating or continuing a disturbance, in or near a place where the Tribunal is conducting a proceeding; or id) do any other act that would, if the Tribunal were a court of record, constitute contempt of that court. Penalty: 10 penalty units or imprisonment for 3 months. 1990

35 Act No s.4 91x. Registrar and staff of the Tribunal (1) There may be appointed or employed under the Public Sector Management Act 1992 a Registrar of the Tribunal and any other officers and employees that are necessary for the purposes of the Tribunal. (2) The Registrar must keep a register containing details of all proceedings before the Tribunal and of all determinations made by the Tribunal. (3) The Registrar must ensure that the register is available for public inspection at any time that the registry is open for business. 9lY. Appeals to the Supreme Court from decisions of the Tribunal (1) A party to a proceeding before the Tribunal may appeal to the Supreme Court, on a question of law, from a determination of the Tribunal in that proceeding. (2) An appeal is to be heard and determined by the Supreme Court sitting as the Full Court. (3) Section 74 of the County Court Act 1958 applies to an appeal as if a reference to the County Court in that section was a reference to the Tribunal and with any other modifications that are necessary to make the application effective. (4) An appeal must be instituted (a) not later than the 28th day after the day on which the parties to a 1991

36 s.5 Act No proceeding are given a copy of the Tribunal's determination; and (b) subject to and in accordance with the rules of the Supreme Court. (5) Despite sub-section (4) (a), if a party to a proceeding applies for a copy of the reasons for the Tribunal's determination within 14 days after the Tribunal makes the determination, he, she or it may institute an appeal against the determination not later than the 28th day after the day on which he, she or it is given a copy of the reasons. (6) The Supreme Court may at any time allow an extension of the time limits set out in sub-sections (4) and (5). (7) The Supreme Court on an appeal may make any order it thinks appropriate including, without limiting the scope of this power (a) an order affirming, varying or setting aside the determination of the Tribunal; and (b) an order remitting the case to be heard and decided again, either with or without the hearing of further evidence, by the Tribunal in accordance with the directions of the Supreme Court.". PART 3 GENERAL AMENDMENTS 5. Changes to definitions In section 4 of the Estate Agents Act 1980 (a) in the definition of "accounting records", for "Companies (Victoria) Code" substitute "Corporations Law"; 1992

37 Act No s. 5 (b) after the definition of "accounting records" insert '"agent's representative" means any person (a) who is not a licensed estate agent but who (i) is employed by, or who acts for or by arrangement with, a licensed estate agent; or (ii) is a director, member or officer of a corporation mat is a licensed estate agent; and (b) who performs for that estate agent any of the functions of an estate agent (other than work ordinarily performed by clerks, cashiers or accountants) regardless of whether his or her remuneration is by way of salary, wages, commission or otherwise;'; (c) the definitions of "approved name", "Board", "Chief Executive Officer" and "employer's copy" are repealed; (d) after the definition of "authorised investment" insert '"Authority" means the Estate Agents Licensing Authority established by section 7-'- (e) in die definition of "books", for "Companies (Victoria) Code" substitute "Corporations Law"; (/) in the definition of "branch manager", for "approved by the Board under" substitute "permitted by"; (g) after the definition of "commission" insert '"Council" means the Estate Agents Council established by section 6;'; 1993

38 Act No (h) after the definition of "declared corporation" insert ' "Director" has the same meaning as in section 4 of the Consumer Affairs Act 1972;'; (i) in the definition of "employ", for "a sub-agent" (wherever occurring) substitute "an agent's representative"; (/') before the definition of "letting" insert ' "externally-administered corporation" means a corporation (a) that is being wound up; (b) in respect of property of which a receiver, or a receiver and manager, has been appointed (whether or not by a court) and is acting; (c) that is under official management; or (d) that has entered into a compromise or arrangement with another person under Part 5 of the Corporations Law, the administration of which has not been concluded; "insolvent under administration" means a person who is a bankrupt in respect of a bankruptcy from which the person has not been discharged and includes (a) a person who has executed a deed of arrangement under Part X of the Bankruptcy Act 1966 of the Commonwealth (or the corresponding provisions of the law of another jurisdiction) where the terms of the deed have hot been fully complied with; and (b) a person whose creditors have accepted a composition under Part X of the Bankruptcy Act 1966 of the Commonwealth (or the corresponding provisions of the law of another 1994

39 Act No s. 5 jurisdiction) where a final payment has not been made under that composition;'; (k) in the definition of "licence", omit "or sub-agent's licence (as the case may be)"; (/) the definitions of "licensed auctioneer" and "licensed sub-agent" are repealed; (m) in the definition of "practising public accountant" (i) in paragraph (a), for "Companies (Victoria) Code" substitute "Corporations Law"; (ii) in paragraph (b), omit "in a full-time capacity"; (n) after the definition of "prescribed" insert '"professional conduct rules" means the regulations made, or deemed to have been made, under section 99 (gg);'; (p) in the definition of "record", for "sub-agents" substitute "agents' representatives"; (p) the definitions of "registered address" and "rules" are repealed; (q) after the definition of "registered office" insert '"Registrar" means the Registrar of the Tribunal;'; (r) after the definition of "residential property" insert '"sell" includes to sell by auction;'; (s) in the definition of "small business", for "$ " substitute "$ (or such other amount not exceeding $ that may be prescribed)"; (r) the definitions of "sub-agent" and "sub-agent's licence" are repealed; (w) for the definition of "Tribunal" substitute 1995

40 s.6 Act No '"Tribunal" means the Estate Agents Disciplinary and Licensing Appeals Tribunal established by section 91A; "working director" means, in relation to a corporation that carries on business as an estate agent, a director of that corporation who is engaged in the estate agency business of that corporation.'. 6. Increase in penalties for unlicensed trading and licence lending (1) After section 12 (1) of the Estate Agents Act 1980 insert "Penalty: 500 penalty units or imprisonment for 12 months.". (2) After section 12 (2) of the Estate Agents Act 1980 insert "Penalty: 1000 penalty units.". (3) After section 29 (1) of the Estate Agents Act 1980 insert "Penalty: 500 penalty units.". 7. Abolition of sub-agents' licences (1) In section 13 of the Estate Agents Act 1980 (a) sub-section (1) (a) is repealed; (b) in sub-section (1) (b), for "a sub-agent" substitute "an agent's representative"; (c) in sub-section (2) (i) for "licensed sub-agent" substitute "agent's representative"; (ii) omit all words and expressions after "under this Act". (2) Section 20 of the Estate Agents Act 1980 is repealed. 1996

41 Act No. 86/1994 s. 8 (3) In sections 21 (1) and (10) of the Estate Agents Act 1980, omit "or a sub-agent's licence". (4) Section 21 (9) of the Estate Agents Act 1980 is repealed. 8. Insertion of sections 13A and 13B After section 13 of the Estate Agents Act 1980 insert "13A. Estate agents to be responsible for the acts of their representatives If an estate agent employs an agent's representative, the estate agent is responsible, in tort and in contract, for any thing done or not done by the agent's representative (a) within the scope of the agent's representative's authority; or (b) for the benefit, or for the purported or intended benefit, of the estate agent or the estate agent's business. 13B. Auctioneers of real estate (1) A person must not conduct, or attempt to / conduct, an auction for the sale of any real estate or business unless the person is a licensed estate agent or is employed as an agent's representative (2) Sub-section (1) does not apply (a) to any person or sale listed in section 3 (2) of the Auction Sales Act 1958; or (b) to a person who auctions or attempts to auction any real estate or business (i) that is wholly or partially owned by the person; or

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