课 cppdsm4009 interpret legislation to complete agency

________________________________________ CPP40307 Certificate IV in Property Services (Real Estate)

CPPDSM4009 (Core) Interpret legislation to complete work in the Property Industry

Learner Guide © The Australian Salesmasters Training Co

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Contact Page

Australian Salesmasters Training Co P/L Registered Training Organisation #6854

Phone: Fax: Email: Mail:

(02) 9700 9333 (02) 9700 8988 Info@thesalesmasters.com.au PO BOX 638, Rosebery, NSW 2018

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Š Australian Salesmasters Training Co P/L (ASTC) ASTC believes that the content of these notes and checklists are accurate and current at the time of printing. ASTC does not make any warranty of any kind, what so ever expressed or implied, with respect to the contents. It is the responsibility of the real estate professional using the notes and checklist to verify any information before relying on it.

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Table of Contents Learner activities .......................................Error! Bookmark not defined.

Element 1 - Identify legal principles and legislative requirements affecting property operations. ............................................................. 6 Element 2 - Interpret legislative requirements affecting property operations……………………………………………………………………………………..…12 Element 3 - Identify changes to legislation and regulations affecting agency or organisation operations. .................................................... 27 Glossary of legal terms....................................................................... 40 Element 4 - Comply with relevant industry codes ............................... 57 Element 5 - Maintain records of legislation and industry codes………...71 Conclusion ......................................................................................... 72 Acts, Legislation and Forms .............................................................. 725 Our most sought after products and services ..................................... 74

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LEGISLATION Commonwealth Legislation Financial Services Reform Act Australian Securities and Investments Commission Act 1989 Australian Securities Commission Act 1989 Census and Statistics Act 1905 Competition Policy Reform Act 1995 Constitution Copyright Act 196 8 Corporations Act 2001 Freedom of Information Act 1982 Managed Investments Act 1998 Native Title Act 1993 Privacy Act 1988 Secret Commissions Act 1905 Sex Discrimination Act 1984 Trade Practices Act 1974 State and Territory Legislation Australian Capital Territory Agents Act 2003 (ACT) New South Wales Property, Stock and Business Agents Act 2002 (NSW) Fair Trading Act Northern Territory Agents Licensing Act (NT) Queensland Property Agents and Motor Dealers Act 2000 ( QLD) South Australia Land Agents Act 1994 (SA) Tasmania Auctioneers and Real Estate Agents Act 1991 (T AS) Victoria Estate Agents Act 1980 (Vic) Western Australia Real Estate and Business Agents Act 1978 (WA)

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ELEMENT 1 - IDENTIFY LEGAL PRINCIPLES AND LEGISLATIVE REQUIREMENTS AFFECTING PROPERTY OPERATIONS. 1.1 1.2 1.3

Legal framework in which property organisations operate is identified.

Components of statute law and their relationships are identified with respect to their application to practice in the property industry.

Source documents for legislation and regulations relating to provision of property services are identified and accessed.

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Introduction This unit of competency specifies the outcomes required to source and interpret legislation affecting real estate operations. It includes identifying and applying statutory interpretation techniques, identifying and tracking changes to relevant real estate legislation and industry codes of conduct and maintaining appropriate records. The performance criteria supports the work of licensed real estate agents and authorised representatives and the requirements for them to identify, interpret and apply legislation and industry codes of conduct affecting real estate operations

What is Law? • • • •

A set of rules or code of behaviour aimed at maintaining the orderly good conduct or relations of people within a society accepted by that society and capable of enforcement

• Developed out of: o Religion (Judeo/Christian/Islam) o Custom (baker’s dozen: 13) o Taboo (Sex with family members) o Trade (Animals traded must be disease free

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The Australian Legal System All societies develop systems and rules to regulate the behaviour of individuals and to resolve disputes. The legal system in Australia is based on the English legal system, which was brought to Australia when eastern Australia was settled by England in 1788. Other countries settled or colonised by England, such as the United States, Canada, India and New Zealand, also have similar legal systems

SYSTEM OF GOVERNMENT IN AUSTRALIA In countries that derive their legal system from England, such as Australia, there are three different arms of government: • the Legislature, which is responsible for enacting legislation. The Legislature is made up of democratically elected Members of Parliament.

• the Executive, which is responsible for implementing legislation and administering the affairs of government. In Australia, the Executive is made up o of the Queen and her Ministers. The Queen is represented at the Commonwealth level by the Governor -General and at the State level by the Governor of the o State.

• the Judiciary, which is responsible for making legally enforceable judgments about the legal rights and liabilities of people. The Judiciary is made up of judges and magistrates.

The Commonwealth of Australia and each State and Territory has a system of government known as the ‘Westminster system’. This is the system of government that developed in England alongside the common law. In the Westminster system, there is an overlap between the Legislature and the Executive, because the Executive is made up of Ministers (including the Prime Minister or Premier) who must all be Members of Parliament. The Ministers are all members of the political party or parties that together have a majority of Members of the lower house of the Parliament. The result is that in the Westminster system the Executive controls the lower house of Parliament.

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SYSTEM OF LAW IN AUSTRALIA There are two basic kinds of laws in Australia: statute law, which is made by a Parliament consisting of democratically elected members, and common law, which is law made by judges when deciding cases.

Statute law Statute law (also called legislation) may be made by the Commonwealth Parliament, or by the Parliament of a State or Territory.

An ACT (short for Act of Parliament) is a statute. Before an Act has been passed by Parliament, and received assent from the Queen’s representative, it is known as a BILL. An Act of Parliament can give other persons the power to make laws, e.g. giving a University the power to make by -laws. Laws made under the authority of an Act of Parliament are called subordinate, secondary or delegated legislation Common law Common law has its origins in England in the twelfth century, before there was any Parliament in England, when the King of England at that time (Henry II) appointed members of his court to hear complaints and do justice on his behalf. These officials were the first judges.

Judges making decisions drew on their notions of justice or fairness, sometimes customs or traditions, sometimes Roman law. Reasons for judges’ decisions were often recorded, and this body of case law, known as the common law, became the most important source of law for judges. In time, judges considered themselves to be bound to follow the precedents set by other judges in earlier cases.

Judicial independence The concept of judicial independence means that neither Parliament (the legislature) nor the Government (executive) can influence or determine the outcome of any particular case before a court, so that judges are able to act impartially and to make up their own minds about the merits of the case.

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Relationship between statute law and common law Since the nineteenth century, governments have greatly expanded their use of legislation in order to be able to address problems quickly, or to change the common law, or to create new areas of regulation. There are now very few areas of law that are untouched by statute law.

The way that a statute affects the common law depends on the intention of Parliament in enacting that statute. Statute law will override and replace the common law, if that is the intention of Parliament. The power of a Parliament to make law is limited only by the Constitution that sets out the powers and limitations of the Parliament.

It is not always Parliament’s intention to override the common law. In many cases, it is intended that statute law and common law will co -exist, with the statute law filling in a gap in the common law or modifying the common law in some way, but leaving the majority of the Government subject matter to be governed by the common law. In other cases, Parliament intends to completely replace the com mon law on a subject matter with a statutory scheme.

When Parliament wants to create a new set of laws in an area where there is no common law (for example, to impose taxes), legislation is necessary, because there is no common law requirement to pay taxes to the government.

Although Parliament can override common law by passing legislation, this does not mean that Parliament is dominant over judges and the courts

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2 INTERPRET LEGISLATIVE REQUIREMENTS AFFECTING PROPERTY OPERATIONS. 2.1 2.2 2.3

Structure of property legislation and regulations are identified.

Common interpretation problems with property legislation and regulations are identified.

Rules and techniques for interpreting property legislation and regulations are identified and applied.

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FEDERAL STRUCTURE OF AUSTRALIA The Constitution of the Commonwealth of Australia e stablished a Federal system of government. In a Federal system, the powers of government are shared between a central, national government (the Commonwealth) and between regional governments (the six States and other Territories).

The Commonwealth of Austr alia, and each State of Australia, has a written Constitution that sets out the basic structure of the system of government for the Commonwealth or the State concerned. The Constitution of the Commonwealth of Australia is an Act of the Imperial Parliament of the United Kingdom, passed by that Parliament in 1900. The Constitution of New South Wales is an Act of the Parliament of New South Wales, passed by that Parliament in 1902.

The Commonwealth Constitution provides that laws made by the Commonwealth Parliament prevail over any inconsistent State laws. However, the Constitution limits the subject matters about which the Commonwealth Parliament can legislate to matters specified in the Constitution, including interstate trade and commerce, taxation, defence, posts and telegraphs, banking, trading and financial corporations, external affairs, bankruptcy and insolvency, divorce and matrimonial causes, and conciliation and arbitration of industrial disputes extending beyond one State.

In contrast, State Parliaments are not limited by their Constitutions in the matters about which they can legislate. Areas in which the States but not the Commonwealth can pass legislation include health and general criminal matters.

The Commonwealth Constitution established the High Court of Australia, which is the highest court in Australia. Until 1986, parties to a case before the High Court could appeal to the Judicial Committee of the Privy Council in the United Kingdom, a court that hears appeals from courts in a number of Commonwealth countries. Appeals to the Privy Council were abolished by the Australia Act 1986 of the Commonwealth, and there is now no appeal from a decision of the High Court.

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SOURCES OF LAW IN AUSTRALIA

Constitution, 1900 The Australian Constitution is the set of rules by which Australia is run. It took effect on 1 January 1901 and to this day is the blueprint for how Australia is governed. It includes details on the composition of the Australian Parliament, how Parliament works, what powers the Parliament has, how federal and state Parliaments share power and the roles of the Executive Government and the High Court

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Key features of the Constitution Australia is a federal system in which the Constitution divides power between a national government (the Commonwealth) and state governments.

The Constitution describes the key features of the Australian federal system, including: • • • • •

the basic rules for the operation of the federation and the powers of the federal Parliament a federal government which governs the nation separate state governments, constitutions and laws which govern the individual states power and authority that is shared between federal and state parliaments, governments and courts a bicameral system with: single member representation for the House of Representatives.

This system is designed to elect major parties and support efficient government. o multi-member representation for the Senate. This system elects 12 senators for each state and is designed to protect the interests of the states. the High Court of Australia, which is the final court of appeal. The High Court interprets the Australian Constitution and resolves legal disputes between the Australian Parliament or government and the states. o

•

The Constitution and the High Court As a set of rules, a constitution requires interpretation and the adjudication of disputes which arise from those rules. People may wish and are entitled to test the meaning and application of a constitution. In Australia, it is the principal function of the High Court of Australia to interpret the constitution and to decide disputes about its meaning.

Sometimes the High Court is asked to decide whether it is the federal government or a state government which has the authority and responsibility to deal with a matter. At other times, because the Constitution provides specific limits to what the federal government is empowered to do, the High Court may be asked to decide whether a law made by the federal government is valid either in whole or in part.

The following table provides a summary of the Constitution:

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THE AUSTRALIAN CONSTITUTION Chapter & section Chapter 1: The Parliament Chapter 2: The Executive Government

Chapter 3: The Judicature

Chapter 4: Finance and Trade Chapter 5: The States Chapter 6: New States Chapter 7: Miscellaneous

Chapter 8: Alteration of the Constitution

Contents Sections 1 to 60 describe the composition and power of the federal Parliament.

Sections 61 to 70 describe the power of the most formal elements of executive government including the Queen, Governor General and the Federal Executive Council.

Sections 71 to 80 describe the composition and power of the High Court, federal court and state courts.

Sections 81 to 105 describe rules for money, property and interstate trade.

Sections 106 to 120 describe the rights and powers of the states.

Sections 121 to 124 deal with various iss ues regarding states and territories Sections 125 to 126 deal with establishing a seat of government and the Queen’s power to authorise the Governor-General to appoint deputies.

Section 128 describes a basic procedure for altering the Australian Constitution

Although many sections appear to be simple, they have led to different interpretations and legal arguments over the last century. Section 51 has turned out to be particularly significant because it lists the areas in which the Australian Parliament can make laws. These areas include taxes, defence, trade and commerce with other countries, marriage and divorce, immigration, postal services, invalid and old -age pensions.

Also of particular importance is Section 109, which states that if the Commonwealth and a state Parliament both pass laws on the same subject, the Commonwealth law over -rules the state law.

Surprisingly, the Constitution does not mention the Prime Minister or the cabinet, both of which are central to the working of government and the Parliament. For these and other reasons, some people argue that the Constitution is out of date and that constitutional reform is needed.

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Constitution, 1900 • Sec. 51 – specific powers of the Federal Government – if acts outside sec. 51 then ultra vires • Sec 107 – preserves for the states all the powers they had as colonies unless expressly granted to the Federal Government under sec. 51 (residual power of the states).

• Where there is a n inconsistency between Federal and State power – if it falls with sec. 51 the Federal (Commonwealth legislation) is paramount

Residual power of the states Section: • 107. Every power of the Parliament of a Colony which has become or becomes a State, shall, unless it is by this Constitution exclusively vested in the Parliament of the Commonwealth or withdrawn from the Parliament of the State, continue as at the establishment of the Commonwealth, or as at the admission or establishment of the State, as the c ase may be.

• 108. Every law in force in a Colony which has become or becomes a State, and relating to any matter within the powers of the Parliament of the Commonwealth, shall, subject to this Constitution, continue in force in the State; and, until provision is made in that behalf by the Parliament of the Commonwealth, the Parliament of the State shall have such powers of alteration and of repeal in respect of any such law as the Parliament of the Colony had until the Colony became a State.

• 109. When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid.

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The Constitution and the High Court As a set of rules, a constitution requires interpretation and the adjudication of disputes which arise from those rules. People may wish and are entitled to test the meaning and application of a constitution. In Australia, it is the principal function of the High Court of Australia to interpret the constitution and to decide disputes about its meaning.

Sometimes the High Court is asked to decide whether it is the federal government or a state government which has the authority and responsibility to deal with a matter. At other times, because the Constitution provides specific limits to what the federal government is empowered to do, the High Court may be asked to decide whether a law made by the federal government is valid either in whole or in part How the Constitution can be changed The Australian Constitution can be changed by referendum according to the rules set out in Section 128 of the Constitution.

A referendum is a national ballot on a question to change a part of the Australian Constitution. In a referendum the Parliament asks each Australian on the elector al roll to vote. Australians aged 18 years or older are eligible to vote on a specified change to the Constitution.

If a majority of people in a majority of states and a majority of people across the nation as a whole vote yes (called a double majority), t hen the part of the Constitution in question is changed. Otherwise the Constitution remains unchanged.

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Making Laws The federal Parliament’s legislative powers A new Commonwealth (national) law can only be m a d e , or an existing one changed or removed, by or under the authority of the federal Parliament, that i s, by or in accordance with an Act of Parliament.

Under Australia’s Constitution the federal Parliament can make laws only on certain matters.

These include: international and inter State trade; foreign affairs; defence; immigration; taxation; banking; insurance; marriage and divorce; currency and weights and measures; post and telecommunications; and invalid and old age pensions. The Australian States retain legislative powers over many areas such as local government, roads, hospitals and schools.

In some respects the legislative powers of the two Houses of the federal Parliament —the Senate and the House of Representatives —are not equal. In matters relating to the collection or expenditure of public money the Constitution gives a more powerful role to the House of Representatives —the House of Government. Bills which authorise the spending of money (appropriation bills) and bills imposing taxation cannot originate in the Senate. The Senate may not amend bills imposing taxation and some kinds of appropriation bill, or amend any bill so as to increase any ‘proposed charge or burden on the people’ but it can ask the House to make amendments to these bills.

Preparation of a bill A bill, which is a formal document prepared in the form of a draft Act, is no more than a proposal for a law or a change to the law. A bill becomes an Act —a law—only after it has been passed in identical form by both Houses of the Parliament and has been assented to by the Governor -General.

The original ideas for government legislation come from various sources. They may result from party policy, perhaps announced during an election campaign, from suggestions by Members and Senators or from interest groups in the community. Many proposals, especially those of a routine nature which may be thought of as matters of administrative necessity, originate in government departments.

In whichever way a proposal originates it is considered by Cabinet or the Prime Minister and, if agreed to, the Minister responsible has his or her department arrange preparation of a bill.

Bills are drafted by the Office of Parliamentary Counsel in accordance with detailed instructions issued by departments. Draft bills are usually examined by government party committees on which Members of Parliament belonging to the governing party or parties serve. The Parliamentary Business Committee of Cabinet determines the program of bills to be introduced for each parliamentary sitting period.

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Passage of a bill through the House —the normal routine During its consideration by the House a bill passes through successive stages, at which proposals are made (motions moved) in relation to the bill’s progress or content, speeches may be made for and against such proposals (debate) and the proposals are voted on (decisions of the House).

Giving notice Usually a Minister who wishes to introduce a bill gives written notice (advance warning) of his or her intention to the Clerk of the House, who arranges for the bill to be listed on the Notice Paper (the House’s agenda of business) fo r the next sitting day. The notice follows a standard format: I give notice of my intention to present, at the next sitting, a Bill for an Act to . . . [remainder of bill’s long title ].

The ‘long title’ is the bill’s full title and sets out in very broad terms the purpose or scope of the bill, for example ‘A bill for an Act to amend the Trade Practices Act 1974 and for related purposes’. Each bill also has a short title —in this case Trade Practices Amendment Bill 2001. Notice is not necessary for bills whic h appropriate money or bills dealing with taxation.

Presenting a bill to the House —first reading Bills are introduced when the House is dealing with government business).

First the Clerk announces the next notice from the Notice Paper, for example, ‘Notice No. 1’ and reads the short title of the bill, then a Minister stands and says ‘I present the . . . . . . . Bill 2008’, and hands a signed copy of the bill to the Clerk together with an explanatory memorandum (a document which explains the reasons for the bill and outlines its provisions). The Clerk stands and reads out the long title of the bill. This is known as its first reading. Copies of the bill (and the explanatory memorandum), which until this time have been treated as confidential, are then given to Members and made available to the public on the Parliament’s Internet site www.aph.gov.au/legis.htm The next step usually happens immediately with the Minister moving that the Bill ‘be now read a second time’. He or she then makes a speech (second reading speech) explaining the purpose, general principles and effect of the bill.

At the end of the Minister’s speech, debate on the bill is adjourned (deferred) and set down as an item of business for a future sitting. The purpose of this pause in proceedings is to give Members time to study the bill and its effects before speaking and voting on it, and to provide the opportunity for public discussion and reaction.

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The second reading speech (along with the explanatory memorandum) plays an important role in the legislative process and may be taken into account by the courts in deciding the meaning or intention of an Act.

Second reading debate The second reading debate is the discussion of the motion moved by the Minister. It is normally the most substantial debate that takes place on a bill. Its purpose is to consider the principles of the bill. Debate may cover, for example, reasons why the bill should be supported or opposed, the necessity for its proposals or alternative means of achieving the same objectives. Although listed on the Notice Paper ‘for the next sitting’, the second reading debate does not usually commence for several sitting days, and sometimes much later. The timing will depend on the Government’s legislative program and is usually negotiated with the Opposition.

When the debate resumes an opposition Member (usually the ‘shadow minister’) outlines the Opposition’s position on the bill. Government and opposition Members then usually speak in turn. The total time for the debate is not restricted by the standing orders, but in practice the number of speakers on each side is usually negotiated between the Government and Opposition and any independent Members.

At the end of the debate a vote is taken to decide the House’s view on the motion moved by the Minister— ‘That this bill be now read a second time’. If this is agreed to the House has agreed to the bill in principle and the Clerk stands and reads out the long title of the bill to signify the completion of this stage —the second reading.

Consideration in detail The purpose of this stage is to consider the text of the bill in detail, clause by clause, and to enable changes to it to be proposed. Proceedings are less formal than they are for the second reading debate and procedures can be more flexible. For example, Members may speak briefly (5 minutes each) an unlimited number of times on each proposal put forward.

Clauses are taken in their numerical order but, if no Member objects, a number of clauses may be taken together, the question put from the Chair being ‘That the clause (or clauses) be agreed to’. Often Members may be happy to consider the bill as a whole and in this case the question is simply ‘That the bill be agreed to’.

The form of an amendment may be by omitting, substituting, or adding words. When an amendment has been moved, the Chair proposes a question to the House usually in the form ‘That the amendment be agreed to’, although sometimes more complicated procedures may be necessary. I f the House votes to accept an amendment it must then decide on a further proposal ‘That the clause/clauses/bill as amended be agreed to’. These procedures ensure that every part of the bill is considered and agreed to with or without changes.

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However, Members may be in agreement that a particular bill does not need to be examined in detail. In this case the consideration in detail stage may be by -passed. The Chair ascertains the wish of the Members in the House and if no -one objects allows the bill to proceed directly to the third reading. Detailed debate is considered unnecessary for many bills which are supported by all parties or, in a technical or drafting sense, are very limited in scope or when, in the case of appropriation and taxation bills, private Members would be prevented from moving certain amendments.

Third reading This is the final stage in consideration of a bill and is usually a formality. Although the standing orders (written rules) provide for the third reading to take place on another sit ting after the consideration in detail has been completed, in practice the House allows the Minister to move the motion ‘That this bill be read a third time’ immediately. Debate at this stage is relatively rare and is restricted to the contents of the bill, that is, the matters contained in the clauses and schedules of the bill. When the motion has been agreed to, the Clerk again reads out the long title of the bill. This signifies that the bill has finally passed the House.

Alternative procedures Bills considered by the Main Committee Following the Minister’s second reading speech in the House, a bill may be referred to the Main Committee for the remainder of the second reading and the consideration in detail stages. The Main Committee is a committee established to be an alternative to the main Chamber of the House for the consideration of a restricted range of business. All Members of the House can take part in the debates in the Committee. It meets while the House is sitting, making it possible for two streams of legislation to be debated at the same time. Generally speaking, only bills on which there is potential for agreement to be reached are referred to the Main Committee, following consultation between the Government and the Opposition.

The Main Committee’s procedures are substantially the same as they are in the House. The Committee can amend the bill just as the House can and the same rules of debate apply.

However, the Main Committee operates by agreement—divisions cannot take place—and matters on which the Committee cannot agree are referred back to the House for decision there.

Before their third reading, bills which have been considered in the Main Committee go through an additional stage —the report stage—when the House considers and votes on the bill as reported back to it. Debate is restricted to matters the Main Committee could not agree on.

Cognate debate—bills debated together When there are two or more related bills before the House, if no Member objects, a ‘cognate’ second reading debate may take place, during which the bills are debated together. On Doc ID: CPPDSM4009 - Workbook (L) eLearning Approved by: DJackson File Location: S:\Learning & Assessment Resources\Real Estate\CPP40307 Certificate IV in Property Services (Real Estate) NSW\Assessment Tools\1. CPPDSM4009\CPPDSM4009 - Workbook (L) eLearning.doc

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the conclusion of the debate separate questions are put as required on each of the bills and they pass through other stages separately.

Imposing a time limit on debate— the guillotine If for some reason the Government wishes to hasten a bill’s progress, a Minister can declare it an ‘urgent bill’. The question ‘That the bill be considered an urgent bill’ is then put by the Chair and must be decided without debate. When a declaration of urgency h as been agreed to by the House, the Minister proceeds to move a motion specifying the times to be allotted for the various remaining stages of the bill. If these details are agreed to, when the time fixed for a stage has been reached, the debate is interrupted immediately and the questions necessary to dispose of that stage are put. This procedure is known as “the guillotine”. In recent years the Government has imposed a time limit on debate on a bill without first declaring it urgent. The de facto “guillotine” has the advantage of achieving the result required while avoiding one of the motions (and potential divisions). The change of procedure has resulted in a significant drop in the number of bills subject to a formal guillotine.

Reference to a committee It is possible for a bill to be referred for an advisory report to a committee which specialises in the subject area of the bill. The committee can hear witnesses and gather evidence relating to the bill and can recommend action to the House, although it cannot amend the bill itself.

Bills introduced from the Senate The great majority of government bills are initiated in the House of Representatives, because of the constitutional restrictions on the nature of bills which can originate in the Senate and because of the fact that most Ministers are Members of the House.

When a Senate bill has passed all stages in the Senate, it is transmitted to the House under cover of a formal message and introduced to the House by the Speaker reading the terms of the messa ge to the House. Subsequent proceedings follow the same processes as House bills.

Proceedings after leaving the House Transmission to Senate After a bill has passed the House the Clerk signs a certificate attached to the bill stating: THIS Bill originated in the House of Representatives; and, having this day passed, is now ready for presentation to the Senate for its concurrence.

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If the bill has been amended by the House it is reprinted before it is sent to the Senate. When the bill is ready, the Speaker signs a document, known as a ‘message’, addressed to the President of the Senate which reads: The House of Representatives transmits to the Senate a Bill for an Act . . . [remainder of long title of bill], in which it desires the concurrence of the Senate.

The message and bill are then delivered to the Senate by the Serjeant -at-Arms.

Senate proceedings The bill again goes through three readings in the Senate. When the bill has passed the Senate, the Senate then returns the bill to the House, either with or without amendments. The Senate may also request that the House make an amendment in cases where the Senate is prevented by the Constitution from making an amendment itself. Senate amendments and requests are considered by the House, and may be accepted or disagreed to.

Disagreement between the two Houses Where there are disagreements, messages may pass between the two Houses to seek to reach agreement as to the bill’s final form.

If the two Houses cannot agree, a bill may be ‘laid aside’ (not further pursue d). In circumstances provided for by the Constitution an unresolved disagreement may lead to the dissolution of both Houses by the Governor -General and elections for each House.

Assent When a bill has finally passed both Houses in identical form and been checked and certified accordingly by the Clerk of the House, it is presented to the Governor -General for assent. The words of assent used by the Governor -General are: In the name of Her Majesty, I assent to this Act. At this point the bill becomes an Act of Parliament and part of the law of the land, although the validity of the Act may be tested in court subsequently.

When a law comes into effect Acts do not necessarily come into operation immediately on assent, although this is common.

An Act may specify a particular date for commencement, perhaps retrospective, or the day of a stipulated event, or a date to be decided later by the Government and announced (‘proclaimed’) by the Governor-General. If no commencement date is specified in an Act, it comes in to effect on the 28 th day after it receives assent.

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which may make regulations, statutory rules, by -laws, orders, ordinances, instruments or det erminations according to the powers bestowed by an authorising Act of Parliament. Laws made in this way are known as delegated or subordinate legislation. Delegated legislation must be authorised by an Act, must be presented to both Houses of the Parliament and can be disallowed (vetoed) by a motion agreed to by either House. In some cases Acts provide that specific pieces of delegated legislation made under their authority must be approved by both Houses before coming into effect. All delegated legislation is closely scrutinised by the Senate Standing Committee on Regulations and Ordinances.

For more information House of Representatives Practice, 5th edn. Department of the House of Representatives, Canberra, 2005 pp 335 –429.

House of Representatives Standing Committee on Procedure. About time: Bills, questions and working hours. Report of the inquiry into reform of the House of Representatives. AG PS, Canberra, 1993. (Parliamentary Paper 194 of 1993) pp 4 –18.

House of Representatives Standing Committee on Procedure. Time for review: Bills, questions and working hours. Report of the review of procedural changes operating since 21 February 1994. AGPS, Canberra, 1995. (Parliamentary Paper 108 of 1995) pp 3–19.

Legislation Handbook, Department of the Prime Minister and Cabinet, Canberra, 2000 www.dpmc.gov.au/guidelines/docs/legislationhandbo ok.rtf For copies of bills, explanatory memoranda and second reading speeches: www.aph.gov.au/bills For information on the progress of bills through the House: House of Representatives Daily Bills List, published daily during sittings and available from www.aph.gov.au/bills

For a list of bills introduced and debated: Last week in the House, published weekly during sittings and available from About the House online at www.aph.gov.au/house/housenews Debates on bills can be found in Hansard available from www.aph.gov.au/hansard

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The legislative process Bills (proposed laws) may be introduced first in either the House of Representatives or the Senate but must be considered by each House in turn.

Draft bill ↓

House of Representatives Bill presented ↓

Main Committee (Second debating Chamber) Second reading (in principle debate)

First reading OR

Second reading (in principle debate) ←

↓

Consideration in detail (amendments may be made)

↓

Consideration in detail (amendments may be made)

↓

→

Possible reference to House of Representatives Standing Committee

←

↓

→

Third reading

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(Amendments must be agreed to by both Houses)

Senate Similar process to the House of Representatives

↓ ↑

Senate Committee may consider bill

Governor-General Assent

Law

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ELEMENT 3 - IDENTIFY CHANGES TO LEGISLATION AND REGULATIONS AFFECTING AGENCY OR ORGANISATION OPERATIONS. 3.1 3.2 3.3 3.4 3.5 3.6

Processes that lead to changes in property legislation and regulations are identified.

Source documents for amendment legislation relevant to the provision of agency or organisation services are identified and accessed Techniques for tracking amendments to property legislation and regulations are identified and applied.

Implications of changes to legislative and regulatory requirements are identified and addressed in line with agency or organisation practice.

Strategies for identifying amendments to legislation and regulations are implemented.

Changes to legislative and regulatory requirements are communicated to appropriate people .

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Strategies for change Strategies to implement change with regard to the regulation within the Property Services industry may include: • • • • • •

Detailed monitoring to identify proposed regulatory changes that may affect the Property Services industry in time to impact the outcome; Development of clients’ ritten responses to draft regulations which maximize the opportunity to influence change; Organizing and leading detailed discussions with responsible Departmental officials before and after draft regulations are published; Organizing and leading detailed discussions with responsible Ministerial staff; Developing and implementing a detailed outreach plan to engage influential MPs and Provincial representatives in the regulatory process when required

Statutory interpretation Importance of statutory interpretation Statutory interpretation is an important aspect of the common law. In about half of all reported cases in Australia, the courts are required to rule on the meaning of legislation.

Rules and techniques for interpreting real estate legislation and regulations may include: • aids to the interpretation of legislation, including: i. external: interpretations of legislation, Acts, Hansard/parliamentary papers, legal dictionaries and judicial interpretations – precedent ii. internal: objectives, legislation to be accessed as a whole, definitions and interpretation sections in legislation, headings, margin notes and punctuation • language conventions and expressions, including: • reading rules, including: • context i. golden ii. literal iii. mischief iv. Purposive • express mention of one thing to the exclusion of another • words interpreted through their connection with other words • words with the same meaning.

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Interpretation Acts The meaning of Commonwealth, State and Territory legislation is governed by the provisions in the Interpretation Act (or equivalent) for that jurisdiction. The usual rules set out in these statutes are well known. The prescribe the meanings of common terms and provide courts with clear directions to resolve a range of potential inconsistencies.

When reading a statute, make certain you understand the contents of the relevant Interpretation Act. The terms of the Interpretation Acts are not identical. Provisions with identical wordings are read differently by the courts depending on the jurisdiction.

Take the simple question: are section headings part of the Act? In the ACT, Queensland and Victoria, the answer is yes, but only in an Acts proclaimed after a certain date (which varies from state to state). In the Commonwealth, the Northern Territory, South Australia, Tasmania and Western Australia, the answer is always no. In NSW, the answer is no most of the time.

The Interpretation Acts for the different Australian jurisdictions are found online at http://www.austlii.edu.au/au/legis/cth/consol_ac t/: •

Acts Interpretation Act 1901 (Cth)

•

Acts Interpretation Act 1915 (SA)

•

Acts Interpretation Act 1931 (TAS )

•

Acts Interpretation Act 1954 (QLD )

•

Interpretation Act 1978 (NT)

•

Interpretation Act 1984 (WA)

•

Interpretation Act 1987 ( NSW)

•

Legislation Act 2001 (ACT)

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The Traditional Rules The traditional common -law approach to statutory interpretation was to "look at the words of the Act". This approach was founded on the assumption that the statute alone was a reliable guide to the intent of the Parliament. To assist the courts in interpreting legislation, judges relie d upon three general rules. These were the: literal rule. The literal rule dictated that the courts gave effect to the "ordinary and natural meaning" of legislation. mischief rule. This rule required the courts to interpret legislation in a manner consistent with its purpose: the "mischief" it was intended to remedy. golden rule. According to the golden rule, the courts were to interpret legislation in a manner which avoided obvious absurdities or inconsistencies. Obvious printing mistakes or simple slip s were set aside and the courts read legislation as if these errors were not there.

The traditional common law assumption was that the mischief and golden rules were subordinate to the literal rule. For this reason, the traditional rules of statutory interpretation are sometimes termed "literalism". In the United States the literal approach is often termed the "textualist" or "plain meaning" principle.

Rules of Language The traditional approach also relied heavily on a number of rules of language. Many of these are expressed in the form of a short Latin phrase. Three important rules of language were: •

• •

ejusdem generis : where a list of words are followed by more general words, the meaning of the general words is restricted to the same class as the words in the list. noscitur a sociis : the words of an Act take their meaning from the other words in the same section or sub -section. expressio unius est exclusio alterious : mention of one or more things of a particular class excludes all other members of the same class.

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Presumptions Another aspect of the traditional approach was the use of presumptions. The main presumptions include: • • • • •

a presumption against the extra -territorial effect of legislation a presumption that, where necessary, an Act should be "read down" so as to be within the constitutional power of the relevant legislature legislation was presumed not to interfere with the proprietary interests of individuals a presumption that penal or fiscal laws were be interpreted in favour of the individual if there were two or more reasonable interpretations a presumption against the retrospective application of legislation.

Aids to Statutory Interpretation These are divided into two types: i. intrinsic materials and ii. extrinsic materials.

Intrinsic Materials These include, in addition to the authorised text of a statute, those parts of a piece of legislation that do not form part of the text, including the long title, short title, preamble (only in older acts), notes, section headings and schedules.

Extrinsic Materials Extrinsic materials are anything outside the body of the legislation. They include: •

any additional material included in the authorised text of an Act.

•

reports of Royal Commissions, Law Reform Commissions, Committees of Inquiry or similar bodies placed before Parliament during consideration of the legislation.

•

reports of Joint or Select Committees made during the passage of the legislation.

•

treaties or other international agreements mentioned in the Act.

•

Explanatory Memoranda (or the equivalent) r elating to the legislation.

•

the text of Parliamentary debates.

•

Hansardt

In the past, the interpretation of extrinsic and intrinsic materials was subject to a number of complicated rules, the details of which were often in dispute. In determining the or dinary sense of words, the courts were generally free to consult any dictionary they wished, even when the court's choice might appear strained or illogical. Only parts of a printed Act were regarded as the actual text. The rules for reading Acts assigned Doc ID: CPPDSM4009 - Workbook (L) eLearning Approved by: DJackson File Location: S:\Learning & Assessment Resources\Real Estate\CPP40307 Certificate IV in Property Services (Real Estate) NSW\Assessment Tools\1. CPPDSM4009\CPPDSM4009 - Workbook (L) eLearning.doc

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limits to the use of different parts of the Act depending on whether the purpose of the court was constructive or contextual. In general, the courts were not allowed to use parliamentary materials, such as Second Reading Speeches, as aids to constructive interpretation of statutes.

Limits of Literalism The main argument in favour of literalism was that any other approach would represent a usurpation by non -elected judged of the legislative function of Parliament. Another argument was that certainty in the application of statute law would be diminished if judges were able, in effect, to rewrite the legislation.

The problem with common -law literalism is that it depends on a series of apparently arbitrary, judge -made rules. These threaten the legislative function of Parliament at least as much as any departure from strict literalism.

Another problem was more abstract. In practice, the meaning of an Act was generally not discoverable from its wording alone. Meaning derives from context, and the knowledge and assumptions which the courts bring to the task of interpretation. In these terms, it was absurd that courts were unable to make full use of documents (such as Second Reading Speeches or Parliamentary debates) which most clearly expressed Parliamentary intentions.

The third problem with literalism was that it was often an obstacle to revenue raising.

The traditional presumption that tax laws should be interpreted in the favour of taxpayers was a particular problem for legislators, as it provided opportunities for creative forms of tax avoidance.

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The Purposive Approach Section 15AA In other common law jurisdictions, the move away from literalism began as early as the 1960s. However, literalism prevailed in Australian courts until the late 1970s. The turning point was the introduction of section 15AA of the Acts Interpretation Act (Cth). The section provides that: "In the interpretation of a provision of an Act, the construction that would promote the purpose or object underlying the Act (whether that purpose o r object is expressly stated in the Act or not) will be preferred to a construction that would not promote that purpose or object. " Over the next decades, similar amendments were made to the State and Territory statutes which outlined the rules for the interpretation of Acts.

The judicial response to Section 15AA has been mixed. At one extreme has been a "business as usual" attitude among more conservative judges and academics. This is the view that section 15AA (and its State and Territory counterparts) states nothing new. According to this interpretation, Section 15AA requires recourse to a purposive approach only if there is an ambiguity or doubt as to the meaning of Act. In the absence of any uncertainty, the literal meaning should prevail. At other end of the spectrum is the view that Section 15AA requires the courts to interpret the text of an Act in purposive terms, even if the "plain meaning" of the words in their context would otherwise seem clear.

Section 15AB In 1984, the Commonwealth Parliament inserted a new section into the Acts Interpretation Act 1901. This was Section 15AB. Whatever the arguments about the impact of Section 15AA, 15AB seemed more revolutionary. It provides "in the interpretation of a provision of an Act, if any material not forming part of the Act is capable of assisting in the ascertainment of the meaning of the provisions, consideration may be given to that material ..."

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The Section went into great detail in listing the sources which could be employed in statutory interpretation: 1.

documents attached to the Act itself;

2.

relevant reports by Royal Commissions, parliamentary committees etc made to parliament before the Act was enacted;

3.

any treaties or other international agreements referred to in the Act;

4.

explanatory memorandum relating to the Bill;

5.

second reading speeches;

6.

any documents declared to be relevant by the Act;

7.

relevant material in the Journals of the Senate, Votes and Proceedings or other official records of Parliament.

Between literalism and the purposive approach Although the strict literal approach has been largely abandoned in Australia, many judges are still not comfortable with a purely purposive approach. For different reasons, the courts have placed many limitations on the application of section 15AB in practice.

These include the •

• •

the requirement that courts must discover ambiguity, absurdity or unreasonableness in the ordinary meaning of a statute before section 15 AB can be applied the principle that extrinsic materials cannot be used to overturn the ordinary meaning of an Act the discretion on the part of the courts to refuse to take into account extrinsic material which it thinks is wrong or which amount to no more than a statement of opinion regarding what the statute means.

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Precedent Although precedent was fundamental to the common law, it does not apply in quite the same way to statutory interpretation as it does in other areas. Courts are not bound to interpret legislation in accordance with the interpretations placed on similar provisions by other courts. Each court has an obligation to seek the meaning of a particular piece of legislation for itself.

Although the common law permitted the courts to make law through the use of precedent, this practice was not permissible in the field of statutory interpretation.

The courts were forbidden to treat legislation as representing a "stab at formulating a concept". Their task was to interpret the statute, not to extract from it general concepts which could be extended to guide the courts in a wider range of circumstances.

These distinctions did not mean that precedent was unimportant. Courts were usually expected to adhere to previous rulings on the same statute. This was based on the assumption that, if Parliament had not changed the wording of legislation following a court ruling, this was good reason to believe that the Parliament was satisfied with the court's interpretation.

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INTERPRETATION ACT 1987 - Extracts Definitions to be read in context

6 Definitions to be read in context Definitions that occur in an Act or instrument apply to the construction of the Act or instrument except in so far as the context or subject -matter otherwise indicates or requires.

Gender and number

8 Gender and number In any Act or instrument: (a) a word or expression that indicates one or more particular genders shall be taken to indicate every other gender, (b) a reference to a word or expression in the singular form includes a reference to the word or expression in the plural form, (c) a reference to a word or expression in the plural form includes a reference to the word or expression in the singular form, (d) a reference to a person does not exclude a reference to a corporation merely because elsewhere in the Act or instrument there is particular reference to a corporation (in whatever terms expressed), and (e) a reference to a person does not exclude a reference to an individual merely because elsewhere in the Act or instrument there is particular reference to an individual (in whatever terms expressed).

Meaning of may and shall

9 Meaning of may and shall (1) In any Act or instrument, the word “may”, if used to confer a power, indicates that the power may be exercised or not, at discretion.

(2) In any Act or instrument, the word “shall”, if used to impose a duty, indicates that the duty must be performed.

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Construction of amen ding Acts and instruments

10 Construction of amending Acts and instruments Words and expressions that occur in an Act or instrument that amends or repeals some other Act or instrument have the same meanings as they have in the other Act or instrument.

References to New South Wales to be implied

12 References to New South Wales to be implied (1) In any Act or instrument: (a)

a reference to an officer, office or statutory body is a reference to such an officer, office or statutory body in and for New South Wales, a nd (b) a reference to a locality, jurisdiction or other matter or thing is a reference to such a locality, jurisdiction or other matter or thing in and of New South Wales.

(2) In any Act or instrument, a reference to a body constituted by or under an Act or instrument need not include the words “New South Wal es” or “of New South Wales” merely because those words form part of the body’s name or title Headings etc

35 Headings etc (1) Headings to provisions of an Act or instrument, being headings to: (a) Chapters, Parts, Divisions or Subdivisions into which the Act or instrument is divided, or (b) Schedules to th e Act or instrument, shall be taken to be part of the Act or instrument.

(2) Except as provided by subsections (3) and (4): (a) a heading to a provision of an Act or instrument (not being a heading referred to in subsection (1)), (b) matter within a provision of an Act or instrument (being matter in parentheses that merely sets out a heading to or describes the effect of some other provision of the Act or instrument or of some other Act or instrument), or (c) a marginal note, footnote or endnote in an Act or instrument, shall be taken not to be part of the Act or instrument.

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(3) A heading to a provision of an Act or instrument (not being a heading referred to in subsection (1)) shall be taken to be part of the Act or instrument if, immediately before 1 February 1981 (being th e date on which section 3 of the Interpretation (Amendment) Act 1980 commenced), it was part of the Act or instrument.

(4) A heading to a provision of an A ct or instrument (not being a heading referred to in subsection (1)), or a marginal note, footnote or endnote in an Act or instrument, shall be taken to be part of the Act or instrument if: (a) it is referred to expressly, otherwise than by means of matter within some other provision of the Act or instrument (being matter in parentheses that merely sets out a heading to or describes the effect of the first mentioned provision) or by means of a symbol, in some other part of the Act or instrument, or (b) not being so referred to, it is a heading, marginal note, footnote or endnote to a table or form in the Act or instrument.

(4A) The number of a section, subsection, clause or subclause of an Act or instrument is taken to be part of the Act or instrument even though it appears in a heading to the section, subsection, clause or subclause.

(5) This section does not limit the application of section 34 in relation to the use of any heading, marginal note, footnote or endnote in the interpretation of the provision to which the heading, marginal note, footnote or endnote relates.

Reckoning of time

36 Reckoning of time (1) If in any Act or instrument a period of time, dating from a given day, a ct or event, is prescribed or allowed for any purpose, the time shall be reckoned exclusive of that day or of the day of that act or event.

(2) If the last day of a period of time prescribed or allowed by an Act or instrument for the doing of anything falls: (a) on a Saturday or Sunday, or (b) on a day that is a public holiday or bank holiday in the place in which the thing is to be or may be done, the thing may be done on the first day following that is not a Saturday or Sunday, or a public holiday or bank holiday in that place, as the case may be.

(3) If in any Act or instrument a period of time is prescribed or allowed for the doing of anything and a power is conferred on any person or body to extend the period of time: (a) that power may be exercised, and (b) if the exercise of that power depends on the making of an application for an extension of the period of time -such an application may be made, after the period of time has expired.

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Age

37 Age For the purposes of any Act or instrument, a person attains an age in years at the beginning of the person’s birthday for that age Style changes, roman numerals, colons and dashes

45E Style changes, roman numerals, colons and dashes (cf former ss 9D and 9 F of Reprints Act 197 ) (1) Legislation may be published under this Part: (a) with the omission of the enacting formula, and (b) with the omission of any comma before or after the year in the short title or citation of the legislation (or in references to the short title or citation of legislation of this or any other jurisdiction), and (c) with the omission of inverted commas around the short title or citation of legislation, and (d) with other changes to the format (but not to the text) of legislation so as to conform to current styles in the State.

(2) For the purposes of publication under this Part and for all other purposes: (a) roman numerals in legislation may be regarded as being interchangeable with the corresponding Arabic numerals, and (b) colons in legislation may be regarded as being interchangeable with dashes.

What Is delegated legislation?

Delegated (or subordinate or subsidiary) legislation refers to those laws made by persons or bodies to whom parliament has delegated law-making authority Where acts are made by parliament, each principal act makes provision for subsidiary legislation to be made, and will specify who has the power to do so under that act Delegated legislation can only exist in relation to an enabling act Delegated legislation contains the many administrative details necessary to ensure that the provisions of the act will operate successfully. It may be administered by Government Departments, Local Councils or Courts Regulations and Statutory Rules are the most common forms of delegated legislation.

They are made by the executive or a minister and apply to the general population. ByDoc ID: CPPDSM4009 - Workbook (L) eLearning Approved by: DJackson File Location: S:\Learning & Assessment Resources\Real Estate\CPP40307 Certificate IV in Property Services (Real Estate) NSW\Assessment Tools\1. CPPDSM4009\CPPDSM4009 - Workbook (L) eLearning.doc

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laws, and sometimes Ordinances, are made by a local government authority and apply to the people who live in that area. Rules commonly describe procedure to be followed in Courts Types of delegated legislation Delegated Legislation is a term which covers the vast amount of legislation made by government agencies and the Governor-General under authority of Acts of Parliaments, which delegate this power to agencies. This type of legislation is also known as Subordinate Legislation or, since 2005, Legislative Instruments. Within the broad area of Delegated Legislation the following more specific terms are sometimes used: Regulation The most common form of delegated legislation. Used for legislation of general application emanating from a government department. Published in the Statutory Rules series until 2004 and in the Select Legislative Instrument series from 2005 Rule Legislation specifying procedural formalities, eg court procedures such as the High Court Rules. Published in the Statutory Rules series until 2004 Ordinance Primary legislation of non self governing territories, made by a federal government department to apply to a particular territory. Also used for the legislation of some State local government bodies.

By-law Made by a statutory corporation having effect only within the area of responsibility of the authority. Also used for the legislation of some State local government bodies There is also a range of other delegated legislation which includes: Decisions, Declarations, Determinations, Directions, Orders, etc Glossary of Legal Terms Act Law passed by parliament, known as a 'bill' before assent by governor or governor general.

Adjournment When a case is put off to a later date.

Administrative law The rules governing decision making by public officials.

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Administrative Notices Provide guidance on practice and procedure required or followed by the Court in the District Registry to which the notice relates to supplement what might be contained in statutes or the Court’s Rules.

Admiralty The law and court with jurisdiction over maritime affairs in general.

Affidavit A written declaration made under oath before a notary public or other authorised officer.

Agent An independent person or company with authority to act on behalf of another.

Alternative dispute resolution See mediation Appeal An application to a higher court to review a decision of a lower court or tribunal. For example, an appeal from a decision of the Federal Circuit Court of Australia may be made to the Federal Court, and a decision of a single judge of the Federal Court may be the subject of an appeal to the Full Court of the Federal Court.

Appellate jurisdiction The power given to a court to hear appeals in certain matters.

Appellant Person, person's organisation or corporation that starts an appeal in a court. Applicants, appellants, respondents, defendants, etc., are generally called 'parties'.

Appellate courts Courts to which an appeal is made.

Applicant The individual, organisation or corporation who/which applies to the Court to start legal proceedings against another person or persons. Also known as ‘plaintiff’ in admiralty and corporations matters and in some other courts.

Application The document that starts most proceedings in the Federal Court.

Bar The practicing members of the legal profession.

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Barrister A lawyer who presents cases in higher courts.

Case at first instance A case for which no precedent is set.

Case law The area of law developed by the courts while hearing and determining disputes.

Cause of action A term used in the Federal Court’s case management system to classify proceedings commenced with the Court. There are sixteen main causes of action and five supplementary causes of action.

Civil law Laws regulating the behaviour of individuals; a form of private law.

Class actions See Representative proceedings Common law Case law developed in common courts. This term is sometimes used to describe all case law or judge made law.

Constitution A set of rules or principles according to which a state or other organisation is governed. A body of laws governing those who make laws. The Australian Constitution is an Act that sets out the structure of federal government and the powers of federal parliament.

Counsel A barrister.

Copyright A right that gives the author of an artistic work, for a limited period, the exclusive privilege of making copies of the work and publishing and selling the copies.

Criminal law Laws concerned with both the rights of the individual and of society as a whole.

Cross appeal An application by a respondent in an appeal also seeking a review of the lower court or tribunal decision and made in response to the appeal. A cross appeal is not required if the respondent is simply seeking that the decision of the lower court or tribunal be upheld.

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Cross claim A claim made in a proceeding by one party against a co-party, such as the first respondent (or defendant) against the second respondent (or defendant). However, if the claim in the proceeding is by one party against an opposing party, such as the respondent (or defendant) against the applicant (plaintiff), it is called a counter claim. A cross claim has to be closely connected to what is in dispute in the original claim or a counter claim.

Crown prosecutor Legal representative of the Crown who institutes criminal proceedings against the accused.

Custom A long established tradition or usage that becomes customary law if it is (a) consistently and regularly observed and (b) recognized by those states observing it as a practice that they must follow.

Customary law The way people live and their rules including ceremonies, songs, stories; a way of life governed by a system of beliefs.

Damages Compensation (usually money); most common outcome of civil cases.

Defence In the defence the respondent must answer each allegation made by the applicant in the statement of claim. Matters in dispute should be apparent when the defence is delivered.

Points of disagreement between the parties are referred to as “issues�. Where facts are admitted they cease to be an issue in the proceedings. Consequently, they need not be proved at the trial.

See also Reply Defendant Person brought to court and charged with a criminal offence. Applicants, appellants, respondents, defendants, etc., are generally called 'parties'.

Determination of fact The court's role to discover the truth.

Directions Orders made by the Court or a judge in relation to the conduct of a proceeding. Before the trial or hearing of a matter a judge may give directions so that the parties involved will be properly ready. The directions usually set down a list of steps to be taken by the parties and the deadline for those steps. The steps usually involve filing of material and defining the issues that require a decision by the Court.

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Disclosure Revealing all relevant information.

Discovery A process by which the parties involved in a legal proceeding must inform each other of documents they have in their possession and which relate to the matters in dispute between the parties.

Discretion The ability to choose whether to, or whether not to, proceed with a decision.

Discretionary When the decision is made on what seems fit for the circumstances.

Dissent To differ in opinion.

Docket system A system by which each case is allocated to a particular judge who will then see the case through to completion. In the Federal Court the system is called the Individual Docket System (IDS).

Equity The body of rules applied to where there is no relief under common law. equity: (From Latin Æquitas: 'even' or 'fair.') Being just, impartial, and fair. Justice applied in circumstances not covered by rules of law. estoppel (From Old French estoupail: 'stopper' or 'bung.') Legal rule that one cannot make an allegation or denial of fact that is contrary to one's previous actions or words.

Evidence Evidence is material that tends to prove or disprove a particular fact or facts. Evidence might be an object or thing, it might be a document or it might be oral testimony from a witness. Whether evidence can be used in a hearing will depend on its admissibility. This may depend on a number of matters and there are many rules of evidence which take account of such matters as the relevance and reliability of evidence.

Exhibit A document or item produced in court for the purpose of becoming part of the evidence in a proceeding.

Extinguish To wipe out, make nonexistent.

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Filing of documents The process of the Court accepting a document or documents lodged by a party to a proceeding.

First instance A proceeding heard in the Court’s original jurisdiction.

Fixed costs See Lump sum Full Court Three or more judges sitting together to hear a proceeding.

Hearing That part of a proceeding where the parties present evidence and submissions to the Court.

Human rights Basic rights intended to protect all people from cruel and inhumane treatment, threats to their lives, and persecution.

Injunction A court order making a person do, or refrain from doing, something.

Intellectual property Abstract property, such as a manuscript or computer software, over which the owner has legal possession.

Interlocutory application Interlocutory proceedings are for dealing with a specific issue in a matter - usually between the filing of the application and the giving of the final hearing and decision. An interlocutory application may be for interim relief (such as an injunction) or in relation to a procedural step (such as discovery).

Interrogatories A method of formal discovery wherein a lawyer serves upon the other party's lawyer a written document consisting of a set of questions. The party served must answer the questions, under oath and in writing.

Judgment The final order or set of orders made by the Court after a hearing, often accompanied by reasons which set out the facts and law applied in the case. A judgment is said to be ‘reserved’ when the Court postpones the delivery of the judgment to a later date to allow time to consider the evidence and submissions. A judgment is said to be ‘ex tempore’ when the Court gives the judgment orally at the hearing or soon after.

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Judicial discretion The right of a judge to make a choice, eg. in punishment.

Jurisdiction The extent of legal authority or power of the Court to apply the law. The Federal Court has jurisdiction under more than 150 Acts of the Commonwealth Parliament and has original and appellate jurisdiction.

Law A rule established by authority, society, or custom.

Legislation An act of parliament or piece of delegated legislation.

Litigants Individuals, organisations or companies who/which are the parties to a proceeding before the Court.

Lump sum (or fixed costs) The Court may fix an amount for professional costs to avoid the need to have the costs taxed.

Mediation or (Alternative Dispute Resolution) A process in which an impartial third party (the mediator) assists the parties in an attempt to bring about an agreed settlement or compromise, without requiring a decision of the Court.

Natural justice Rules of fair play originally developed in the common law courts.

Obiter dictum A judge's statement made during a judgment, but not part of the reason for the decision.

Original jurisdiction The authority or legal power to hear a case in the first instance.

Parties People involved in a court case. Applicants, appellants, respondents, defendants, are generally called ‘parties’.

Party and party costs Costs that have been fairly and reasonably incurred by the party in the conduct of the litigation.

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Plaintiff A party who initiates a civil action.

Pleadings Pleadings include formal written statements of an applicant's claim and a respondent's defence. All of the material facts the parties intend to allege at the trial and the issues in dispute are defined in the pleadings. The pleadings show what facts are in dispute and what issues the Court will need to determine.

Within the Federal Court Rules 2011, pleadings are defined to include: statement of claim, statement of cross claim, defence and reply. It does not include originating application, interlocutory application or affidavit.

Practice Notes and Administrative Notices The Court publishes Practice Notes and Administrative Notices. Practice Notes are issued by the Chief Justice on advice of the judges of the Court. Administrative Notices are issued by each District Registrar at the request, or with the agreement, of the judges in the District Registry to which the notice relates.

Practice Notes Provide guidance on practice and procedure required or followed by the Court nationally to supplement what might be contained in statutes or the Court’s Rules.

See also Practice Notes and Administrative Notices Precedents Judgments quoted as an authority for deciding a similar set of facts; must come from an equivalent or higher court. precedent: (From Latin prÆcedens: 'going before in time').

Prima facie case (Prima facie is Latin for 'at first sight' or 'on first consideration.') A showing of sufficient evidence to initially establish a petitioner's case. If such a case is made out, the opposing party is then required to respond; if not, the case will be dismissed.

Procedural fairness The just administration of rules that provide how parties go about enforcing their legal rights.

Proceeding The regular and orderly progression of a lawsuit, including all acts and events between the time of commencement and the judgment.

Professional costs Costs paid to the lawyer who represents a party to the proceeding.

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Ratio decidendi The legal reasoning on which a judgment is based.

Regulations The Federal Court and Federal Circuit Court Regulation 2012 which prescribe the filing and other fees that must be paid in relation to proceedings in the Federal Court.

Remedy Redress make up for a wrong.

Repeal Cancellation of a statute or part of a statute or act.

Reply The applicant may respond to the defence with a reply, although not for the sole purpose of denying the allegations in the defence. A reply is to raise facts and matters in answer to the allegations in the defence. See also Defence Representative proceedings Representative proceedings are commonly referred to as class actions. A class action allows one claimant to bring an action in court on behalf of a group of people. There are no limitations on the types of claims that can be brought through the class action system.

Some Examples of class actions that have been brought in Australia include: shareholder class actions; cartel class actions; product liability class actions; financial services and planners class actions.

Respondent The individual, organisation or corporation against whom/which legal proceedings are commenced. Also known as a ‘defendant’ in admiralty and corporations matters and in some courts. In an appeal it is the party who/which did not commence the appeal.

Rites Religious or solemn ceremonies that must be observed.

Rule of law The concept that everyone obeys the law; no one is above it.

Rules Rules made by the judges which set out the procedures for conducting a proceeding. The current rules of the Federal Court are the Federal Court Rules, Federal Court (Corporations) Rules 2000 (for proceedings under the Corporations Act 2001) and Federal Court (Bankruptcy) Rules 2016 (for proceedings under the Bankruptcy Act 1966).

Rules of standing Determining who is allowed to appear before the court.

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Self represented litigant A party to a proceeding who does not have legal representation and who is conducting the proceeding on his or her own behalf.

Separation of powers doctrine Division of the power among legislative, executive and judicial arms of government to provide for checks and balances.

Statement of claim In the statement of claim the applicant alleges all of the material facts that show that the applicant has a cause of action that is enforceable against the respondent. The statement of claim may formulate any question of law that the Court will be asked to determine. It must set out the orders sought by the applicant against the respondent.

Statutes Acts of parliament.

Statutory rule The generic name for all types of delegated legislation.

Subpoena A subpoena compels the appearance of a person at a trial to testify and to produce documents. A subpoena is a court order, and if properly issued and disobeyed, the disobedient person could be in contempt of court.

Summons A document issued by a court directing a person to appear before it.

Sunset clause A legal clause giving a final date after which no remedy may be sought, regardless of the grounds of complaint.

Taxation of costs The process by which a party in whose favour a costs order is made may apply to a taxing officer to have their costs quantified.

Terra nullius Empty land; land belonging to no one.

Tort A civil wrong where one person unreasonably interferes with the rights of another.

Trial Judicial examination and determination of issues between parties with or without a jury.

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Tribunal A specialised adjudication body. The term is generally used to refer to administrative dispute resolution bodies other than courts.

Ultra vires Where a body has acted outside its lawmaking powers.

Writ A written court order to do or refrain from doing something.

Legislation relevant to agency work List of Legislation The list below details the range of laws the Office of Fair Trading (OFT) administers with regard to the Property Services industry. Online access to the legislation may be obtained via the NSW Parliamentary Counsel's Office (PCO) database.

If you intend to use the list for legal research, you should be aware that amendments occur from time to time and may not be reflected in the consolidated version of an Act for a short period. The PCO website states that any amendments are usually consolidated within a 5 day period of their commencement. However, to identify fair trading laws that may still be before, or recently approved by the NSW Parliament, you can visit the Parliament House website www.parliament.nsw.gov.au (or equivalent alternative state government site)

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Legislation administered by Fair Trading Associations Incorporation Act 1984 Associations Incorporation Regulation 1999 Business Names Act 2002 Business Names Regulation 2004 Community Land Management Act 1989 Community Land Management Regulation 2007 Consumer Claims Act 1998 Consumer Claims Regulation 2007 Consumer Credit Administration Act 1995 Consumer Credit Administration Regulation 2002 Consumer Credit (New South Wales ) Act 1995 Consumer Credit Regulation 1995 in PDF format (size: 574k) * Consumer Credit (New South Wales) Special Provisions Regulation 2007 Consumer, Trader and Tenancy Tribunal Act 2001 Consumer, Trader and Tenancy Tribunal Regulation 2002 Contracts Review Act 1980 Conveyancers Licensing Act 2003 Conveyancers Licensing Regulation 2006 Fair Trading Act 1987 Fair Trading Regulation 2007 Landlord and Tenant Act 1899 Landlord and Tenant (Amendment) Act 1948 Landlord and Tenant Regulation 2004 Landlord and Tenant (Rental Bonds) Act 1977 Landlord and Tenant (Rental Bonds) Regulation 20 03 Property, Stock and Business Agents Act 2002 Property, Stock and Business Agents Regulation 2003 Residential Parks Act 1998 Residential Parks Regulation 2006 Residential Tenancies Act 1987 Residential Tenancies Regulation 2006 Strata Schemes Management Act 1996 Strata Schemes Management Regulation 2005 Valuers Act 2003 Valuers Regulation 2005 * Please note that the Consumer Credit Code (Qld) and accompanying Regulation is adopted to apply in NSW, under the Consumer Credit (New South Wales) Act 1995 .

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Relevant Legislation (Commonwealth) not administered by Fair Trading Financial Services Re form Act Australian Securities and Investments Commission Act 1989 Australian Securities Commission Act 1989 Competition and Consumer Act 2010 Competition and Consumer Regulations 2010 Commonwealth of Australia Constitution Act Copyright Act 1968 Corporations Act 2001 Freedom of Information Act 1982 Managed Investments Act 1998 Native Title Act 1993 Privacy Act 1988 Secret Commissions Act 1905 Sex Discrimination Ac t 1984

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Requirements for property dealings When do you need a licence?

Some people have established small businesses in NSW providing assistance to home owners wishing to privately sell their home without the intervention of a licensed real estate agent. The services offered through such businesses may include the preparation of fliers and signage a s well as assistance with ‘open house’ inspections.

These operators generally charge a set fee, rather then a percentage of the eventual selling price as agents do and believe they offer their clients a more personalised service than what may be provided b y a licensed agent.

Some of these services may be provided without a licence, while others fall under the jurisdiction of the Property, Stock and Business Agents Act 2002. Here are a few examples of the kinds of businesses we have examined in this area.

Peter’s one off showing Peter’s neighbour, Mar ilyn asks him to show some prospective buyers through her house while she is away on holidays. Peter does so, and the interested people subsequently purchase the property. Mar ilyn rewards John with a case of wine. In showing the house on this one -off occasion Peter does not need a licence.

Vince goes online Vince sets up a website from where he charges a fee to assist people sell their houses.

Vince advertises the properties on his website and includes his contact details in each one. He also produces the ‘for sale’ signs which he places on each property. Vince takes calls from interested prospects and passes them on to the vendors. To conduct this business, Vince would need a licence under the Property, Stock and Business Agents Act 2002.

Holiday David David sets up a website to take holiday accommodation bookings on behalf of several bed and breakfast accommodations operated by friends in his area. Visitors to his site are referred to his friends and David is paid a fee when accommodation is booked. David is carrying on a business and inducing people to enter into a transaction that gives the person a right to stay in the accommodation. He would require a licence under the Act to carry on his business.

However, under a specific exemption from the Act granted to short term accommodation booking agents (for stays of not more than 2 months), David does not need a licence if the stays are less than 2 months and he does not accept any money from people making a booking.

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Activities that do not require a licence As the examples above illustrate, only a limited range of services relating to the selling of real estate may be provided without holding a licence, such as: (a) placing vendors’ advertising on your web site provide d that any prospective purchaser can only contact the vendor to express their interest, and not you (b) assisting vendors with the preparation of signage for their property or the production of advertising fliers.

Before setting up any business of this kin d you should get legal advice to find out if you require a licence.

Activities that require a licence under the Act If you were to operate a business in the following manner you would require an appropriate licence under the Property, Stock and Business Ag ents Act 2002.

Carrying on a business, for reward and: (a) taking calls or interest from prospective purchasers and passing them on to the vendor (b) including your business's telephone or other contact details on advertising signage used by vendors (c) taking prospective purchasers through the property that is for sale, or accompanying the vendor when this is done (d) providing the contract for the sale of the property to prospective purchasers or discussing the merits of the property with them (e) introducing prospective purchasers to the vendor of the property (f) taking calls from prospective users of the holiday accommodation and passing them on to the owner of the property (g) directly arranging for the booking of accommodation by a third party in relation to holiday or short -term accommodation for which you act as an agent. For example, the taking of fees and rent.

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Other property businesses When do you need a licence?

Some people have established small businesses in NSW providing assistance to home owners wishing to privately sell their home without the intervention of a licensed real estate agent. The services offered through such businesses may include the preparation of fliers and signage as well as assistance with ‘open house’ inspections. These operators generally charge a set fee, rather then a percentage of the eventual selling price as agents do and believe they offer their clients a more personalised service than what may be provided by a licensed agent.

Some of these services may be provided without a licence, while others fall under the jurisdiction of the Property, Stock and Business Agents Act 2002. Here are a few examples of the kinds of businesses we have examined in this area.

John’s one off showing John’s neighbour, Mary asks him to show some prospective buyers through her house while she is away on holidays. John does so, and the interested people subsequently purchase the property. Mary rewards John with a case of wine. In showing the house on this one-off occasion John does not need a licence.

Phil goes online Phil sets up a website from where he charges a fee to assist people sell their houses. Phil advertises the properties on his website and includes his contact details in each one. He also produces the ‘for sale’ signs which he places on each property. Phil takes calls from interested prospects and passes them on to the vendors. To conduct this business, Phil would need a licence under the Property, Stock and Business Agents Act 2002.

Holiday Jeff Jeff sets up a website to take holiday accommodation bookings on behalf of several bed and breakfast accommodations operated by friends in his area. Visitors to his site are referred to his friends and Jeff is paid a fee when accommodation is booked. Jeff is carrying on a business and inducing people to enter into a transaction that gives the person a right to stay in the accommodation. He would require a licence under the Act to carry on his business.

However, under a specific exemption from the Act granted to short term accommodation booking agents (for stays of not more than 2 months), Jeff does not need a licence if the stays are less than 2 months and he does not accept any money from people making a booking.

Activities that do not require a licence As the examples above illustrate, only a limited range of services relating to the selling of real estate may be provided without holding a licence, such as: (a) placing vendors’ advertising on your web site provided that any prospective purchaser can only contact the vendor to express their interest, and not you (b) assisting vendors with the preparation of signage for their property or the production of advertising fliers.

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Before setting up any business of this kind you should get legal advice to find out if you require a licence. NSW Fair Trading cannot provide legal advice to you.

Managing or operating a boarding house You do not require a licence to manage or operate a general boarding house, but all boarding houses which provide accommodation to 5 or more people for a fee must be registered with Fair Trading. Operators of assisted boarding houses must obtain a licence from Ageing Disability & Home Care (ADHC). For more information go to the Boarding houses page on the Fair Trading website.

Activities that require a licence under the Act If you were to operate a business in the following manner you would require an appropriate licence under the Property, Stock and Business Agents Act 2002.

Carrying on a business, for reward and: (a) taking calls or interest from prospective purchasers and passing them on to the vendor (b) including your business's telephone or other contact details on advertising signage used by vendors (c) taking prospective purchasers through the property that is for sale, or accompanying the vendor when this is done (d) providing the contract for the sale of the property to prospective purchasers or discussing the merits of the property with them (e) introducing prospective purchasers to the vendor of the property (f) taking calls from prospective users of the holiday accommodation and passing them on to the owner of the property (g) directly arranging for the booking of accommodation by a third party in relation to holiday or short-term accommodation for which you act as an agent. For example, the taking of fees and rent.

Training and supervision requirements The Act also places stringent supervision and conduct responsibilities on agents. These requirements reflect the view that qualified supervision is paramount in the handling of large sums, such as those that are placed in trust during property transactions. The requirement also acknowledges the particular need in this industry for guidance in procedural matters and ethical conduct.

Further information If you still wish to conduct your business and provide the services for which a licence may be required, contact the Property Licensing Branch of NSW Fair Trading on 9619 8799.

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ELEMENT 4 - COMPLY WITH RELEVANT INDUSTRY CODES 4.1 4.2 4.3 4.4

Industry codes of conduct are sourced and accessed.

Relationship between industry codes of conduct and legislative requirements are identified.

Key principles and responsibilities of industry codes of conduct are interpreted and applied to own work.

Commitment to complying with industry codes of conduct is demonstrated through own ethical behaviour.

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Comply with relevant industry codes The Office of Fair Trading also has jurisdiction with regard to the following areas of real estate agency work: • • •

Rules of Conduct Grounds for disqualification of a person Notice to show cause

If Fair Trading is unable to reach an a resolution with regard to the above issues the matter may be referred to the NSW Civil and Administrative Tribunal (NCAT).

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Rules of Conduct Supervision The Property, Stock and Business Agents Act requires that all agency businesses be effectively controlled and supervised by a licensed agent.

Proper supervision is vital, particularly where large sums of money and trust accounts are involved. Proper supervision also helps promote ethical conduct in employees.

Poor supervision of employees can cause distress and financial loss for consumers. It leaves the door wide open for some employees to adopt unethical practices in their dealings with consumers, and can lead to negligence, misleading conduct and fraudulent use of trust money.

For these reasons, the Property, Stock and Business Agents Act introduces tighter requirements for the supervision and control of employees and clarifies the responsibilities of licensees for employees’ conduct.

Licensees in charge Each place of business must be in the charge of a licensee, who is responsible for the proper supervision of the business carried on there and for the actions of all employees.

An individual licensee is responsible for the supervision of their own place of business. A licensee who has more than one place of business must employ a licensee to be the person in charge at each other place of business. A corporation that holds a corporation licence must employ licensees to be in charge of each of the corporation’s places of business.

A licensee cannot be in charge of more than one place of business or act f or more than one licensee at a place of business. In very limited circumstances, the Commissioner for Fair Trading may grant an exemption from the licensee -in-charge requirements.

A licensee cannot be employed to be in charge of a place of business if they are also the licensee-in-charge of another place of business.

A licensee-in-charge of a place of business must hold a licence in the category relevant to the type of business carried on there. For example, a person in charge of a real estate agency business must hold a real estate agent’s licence.

In limited circumstances, the Director General may grant an exemption from the requirement that each separate agency office be under the charge of a separate licensee. For more information refer to the Exemptions to licensee -in-chargerule.

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Supervision requirements A licensee is responsible for the supervision of their business. A licensee employed by another licensee as the person in charge of a place of business is responsible for the proper supervision of the business carried on there. The licensee who owns the business also remains accountable for the actions of employees. Proper supervision entails: •

supervision of employees engaged in the business,

•

establishment of procedures designed to ensure that the provisions of the Property, Stock and Business Agents Act and Regulation and other relevant laws are complied with, and

•

monitoring the conduct of the business to ensure that those procedures are followed.

These requirements reflect the view that qualified supervision is paramount in the handling of large sums, such as those that are placed in trust during property transactions. The requirement also acknowledges the particular need in this industry for guidance of employees in procedural matters an d ethical conduct.

The Property, Stock and Business Agents Act adds further to the responsibilities of licensees by requiring that a licensee notify the Director General as soon as any failure to account for trust money is identified. Similarly, franchisors an d industry associations are required to notify the Director General in writing within 7 days of becoming aware of a failure to account by a licensee.

Director General’s guidelines on supervision The Act enables the Director General to issue guidelines for licensees as to what constitutes proper supervision. A failure to comply with the requirements of the guidelines is deemed to be a failure to properly supervise the business and carries a penalty not exceeding 200 penalty units ($22,000) in the case o f a corporation or `100 penalty units ($11,000) in any other case.

Initial supervision guidelines commenced on 1 March 2005. For more information refer to Property, Stock and Business Agents Act Section 32 guidelines.

Employees Licensees are prohibited from employing people who are disqualified from holding a licence or certificate of registration or who have had their application for a licence or certificate refused on the basis that are not a ‘fit and proper’ person to work in the industry. A person cannot be employed if their licence or certificate is suspended or cancelled.

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A certificate of registration holder is required to be employed by a licensee in order to carry on any of the work of a salesperson or registered manager.

All agency work by a certificate of registration holder must be done under the supervision of the licensee in charge of the place of business at which the certificate holder is employed. The licensee must hold a licence in the category relevant to the work carried out by the employee. For example, a stock and station salesperson must be supervised by the holder of a stock and station agent’s licence.

Real estate Rules of Conduct Real estate agents and salespersons are subject to Rules of Conduct, breach of which may result in a complaint being lodged with the Office of Fair Trading.

In New South Wales, these Rules are as follows: 1. Knowledge of Act and Regulations An agent must have a knowledge and understanding of the Act and the regulations under the Act and other relevant laws, (including laws relating to tenancy, fair trading, trade practices, anti -discrimination and privacy) as may be necessary to enable the agent to exercise his or her functions as agent lawfully.

2. Fiduciary obligations An agent must comply with the fiduciary obligations arising as an agent.

3. Honesty, fairness and professionalism An agent must act honestly, fairly and professionally with all parties in a transaction. An agent must not mislead or deceive any parties in negotiations or a transaction.

4. Skill, care and diligence An agent must exercise reasonable skill, care and diligence.

5. High pressure tactics, harassment or unconscionable conduct An agent must not engage in high pressure tactics, harassment or harsh or unconscionable conduct.

6. To act in client’s best interests An agent must act in the client’s best interest at all times unless it would be contrary to the Act or regulations under the Act or otherwise unlawful to do so.

7. Confidentiality An agent must not, at any time, use or disclose any confidential information obtained while acting on behalf of a client or dealing with a customer, unless: (a) the client or customer authorises disclosure, or (b) the agent is permitted or compelled by law to disclose.

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8. To act in accordance with client authority An agent must not act as an agent or represent himself or herself as acting as an agent on behalf of a person without written authority.

9. To act in accordance with client’s instructions An agent must act in accordance with a client’s instructions unless it would be contrary to this Act or regulations under the Act, or otherwise unlawful to do.

10. Licensee must ensure employees comply with the Act and regulations An agent who is the licensee -in-charge at a place of business must take reasonable steps to ensure other licensees or registered persons employed in the business conducted there comply with the Act and regulations under the Act. 11. Conflicts of interest An agent must not accept an appointment to act, or continue to act, as an agent if doing so would place the agent’s interests in conflict with the client’s interests.

12. Referral to service provider An agent who refers a principal or prospect to a service provider must not falsely represent to the principal or prospect that the service provider is independent of the agent.

A service provider is considered to be “independent” of an agent if: a) the agent receives no rebate, discount, commission or benefit for referring a client or customer to the service provider, and (b) the agent does not have a personal or commercial relationship with the service provider.

The following are examples of a personal or commercial relationship: (a) a family relationship, (b)

a business relationship,

(c)

a fiduciary relationship,

(d)

a relationship in which one person is accustomed, or obliged, to act in accordance with the directions, instructions or wishes of the other person.

If the service provider is not independent of the agent, the agent must disclose to the principal or prospect: (a) (b)

the nature of any relationship, whether personal or commercial, the agent has with the service provider, and the nature and value of any rebate, discount, commission or benefit the agent may receive, or expects to receive, by referring the client or customer to the service provider.

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13. Licensee not to recommend engagement of services of solicitor or licensed conveyancer acting for other party An agent must not recommend that a principal or prospect engage the services of a solicitor or licensed conveyancer, or firm of solicitors or licensed conveyancers, if the agent knows that the solicitor or licensed conveyancer, or the firm of solicitors or licensed conveyancers, acts or will be acting for the other party to the agreement concerned.

Sub-clause (1) does not prevent a n agent recommending that a principal or prospect engage the services of a solicitor or licensed conveyancer if no other solicitor or licensed conveyancer is available (for example, in a remote location).

If no other solicitor or licensed conveyancer is available, the agent must, in recommending their engagement, advise the principal or prospect that the solicitor or licensed conveyance is or will be acting for the other party.

14. Inducements An agent must not offer to provide to any other person any gi ft, favour or benefit, whether monetary or otherwise, in order to induce any other person to engage the services of the agent as agent in respect of any matter.

15. Soliciting through false or misleading advertisements or communications An agent must not solicit clients or customers through advertisements or other communications that the agent knows or should know are false or misleading.

16. Insertion of material particulars in documents An agent must not submit or tender to any person for signature a document, or cause or permit any document to be submitted or tendered to any person for signature, unless at the time of submission or tendering of the document all material particulars have been inserted in the document.

17. Duty to provide copy of signed documents An agent who submits or tenders a document to any person for signature, or who causes or permits a document to be submitted or tendered to any person for signature, must immediately after the person has signed the document give a copy of the document to the person.

18. Representations about the Act or regulations An agent must not falsely represent to a person the nature or effect of a provision of the Act or any regulation under the Act. An agent must not, either expressly or impliedly, falsely represent, whether in writing or otherwise, to a person that a particular form of agency agreement or any term of such an agreement is required by the Act or a regulation under the Act.

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19. Agency agreements must comply with regulations An agent must not enter into an agency agreement unless the agreement complies with any applicable requirements of the Property, Stock and Business Agents Regulation 2003, as required by section 55 of the Act.

Real estate agents and salespersons – sales 20. Preliminary physic al inspection of property for sale to be conducted by agent An agent must not act on behalf of a principal in respect of the sale of a property unless the agent has conducted a preliminary physical inspection of the property.

21. Sales inspection report required for property On completion of the physical inspection of the property, an agent must prepare and give to the principal a sales inspection report for the property. The report must specify the following and be signed by the agent: (a) the principal’s name and address, (b) the date of preparation of the report, (c) the agent’s name, business address and telephone number, (d) a description of the property, including the address of the property and such other details as may be necessary to enable the property to be readily identified, (e) a description of any fittings and fixtures that are to be included in the sale of the property, (f) any terms and conditions of sale known to the agent (for example, whether or not vacant possession is to be given), (g) the agent’s recommendation as to the most suitable method of sale of the property, (h) the agent’s estimate of the selling price (or price range) for the property, (i) details of any covenants, easements, defects, local government notices or orders affecting the property that are known to the agent, (j) details of any special instructions about the marketing and showing of the property, (k) the name, business address, telephone number and address for service of documents of the principal's solicitor.

22. Principal to be informed of offer The agent must, unless the principal has instructed to the contrary in writing, inform the principal of all offers of purchase as soon as practicable after receiving the offer up until exchange of contracts has taken place.

If the agent is not going to inform the principal of an offer, the agent must inform the person who made the offer that the offer will not be submitted to the principal.

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party by whom the offer is made. If the principal is informed orally, the agent must confirm the information in writing.

This clause does not apply to bids made in the course of an auction.

23. Setting aside minimum or reserve price at auction When the bidding at an auction does not reach the minimum or reserve price fixed for the property by the principal, the licensee conducting the auction must not set aside that price without the express permission of the principal or a person authorised to give that permission by the principal.

24. Information to be given when expression of interest deposit paid When an agent issues a receipt for an expression of interest deposit made prior to exchange of contracts, the agent must inform the person who paid the depo sit that the principal has no obligation to sell the property or the purchaser to buy the property and the deposit is refundable if a contract for the sale of the property is not entered into. The information must be provided in writing and may be provided on the receipt. The agent must promptly inform the principal when an expression of interest deposit has been paid.

The agent must promptly inform the person who paid the deposit when the agent becomes aware of any subsequent offer to purchase the property received from any other person. The agent must also advise the person who paid the deposit that they have the right to make further offers up until exchange of contracts has taken place.

25. Notifying managing agent of appointment to sell residential property If an agent accepts an appointment to sell residential property that is tenanted, the agent must immediately give written notice of the appointment to any agent responsible for managing the property.

26. Licensee must not accept payment for a referral An agent must not demand or accept a fee or other valuable consideration for referring the principal to a buyer’s agent.

27. Bidding on behalf of a telephone bidder An agent must not bid at an auction on behalf of a person who is giving instructions to the agent by telephone unless: (a) the written authority on the basis of which the agent bids on behalf of the person contains an acknowledgement that the person has been given a copy of the conditions that are applicable in respect of the sale, and (b) the agent is satisfied that the person has been given a copy of those conditions.

28. Agent participating in exchange of contracts for residential property If an agent participates in the exchange or making of a contract for the sale of residential property, the agent must serve a copy of the contract within 2 business days on:

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(a) each party to the contract, unless paragraph (b) requires the agent to serve a copy of the contract on a solicitor or conveyancer acting for the party, or (b) the solicitor or conveyancer acting for a party to the contract if the party has notified the agent, or it is apparent from the contract, that a solicitor or conveyancer is acting for the part

Real estate agents and salespersons – property management 29. Inspection rep ort An agent must, as soon as practicable after entering into an agency agreement in respect of the management of property, prepare and give to the principal an inspection report for the property. The inspection must include the following and be signed by the licensee: (a) the name and address of the principal, (b) the address of the property, (c) the date of preparation of the report, (d) the licensee’s name, licence number and business address, (e) a description of the exterior and interior condition of the property, including fittings, fixtures, improvements and anything provided with the property, (f) details of any work still to be completed by the principal on the property.

30. Inspection of property for rent An agent must accompany a prospective tenant on an inspection of the property.

An agent must not give the keys to a property to a prospective tenant, even for a short time.

The sub-clauses in rule 30 do not apply if the principal, and, if the property is currently let, the tenant, have authorised otherwise in writing.

31. Use of collection agent to collect rent A licensee must not use the services of a collection agent to collect rent on behalf of a principal unless the arrangements for the collection and holding of that rent pending its payment to the agent or the principal comply with such guidelines as the Commissioner for Fair Trading may issue from time to time under this clause (including guidelines requiring rent collected by a collection agent to be paid into and retained in a trust account ).

In this clause, collection agent means a person who collects rent as agent for and on behalf of a licensee.

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32. Maintenance or repairs of rental property An agent managing a rental property must promptly respond to and, subject to the principal’s inst ructions, attend to all requests by a tenant for maintenance of, or repairs to, the property.

If the principal has instructed that a repair not be carried out, the agent must inform the principal if the principal’s failure to carry out the repair would constitute a breach of any tenancy agreement in force in relation to the property.

33. Breach of tenancy agreement An agent managing a rental property must immediately notify the principal in writing if the agent becomes aware of a tenant’s breach of the tenancy agreement.

34. Notifying tenant of appointment to sell This clause applies if an agent managing a rental property is aware that: (a) the property is listed for sale, or (b) a real estate agent has been appointed to act on the sale of the property.

The agent must immediately give the tenant written notice of: (a) the intended sale of the property, or (b) the appointment of the real estate agent for the sale of the property (together with the name and contact details of the agent).

35. Final inspection of property An agent must take all reasonable steps to ensure that any final inspection of the property, on vacation of the property, is conducted in the presence of the tenant (unless otherwise authorised by the tenant).

Note. ‘Reasonable steps’ by an ag ent would comprise contacting the tenant to discuss suitable times for the inspection, arranging to meet at a particular time and place and proceeding to meet the tenant at the arranged time and place.

36. Obtaining tenant’s signature for rental bond refund An agent must not solicit or obtain the signature of a tenant to any document relating to the refund of a rental bond prior to the termination of the tenancy, unless the document directs the bond to be repaid in full to the tenant or transferred to another tenancy in accordance with the tenant’s directions.

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37. Co-operation about records, access and transfer If an agent is acting on behalf of a principal in the management of property and is advised by another agent that the other agent (the new agent) has been engaged to act on behalf of that principal in the management of that property, the agent must co - operate with the new agent in regards to access to the records of the principal, including but not limited to making the records reasonably available (ac cording to law), and facilitating the transfer of management functions between the agent and the new agent.

38. Disclosure of potential agency If an agent intends to act (or offers to act) for a principal in the management of property and is aware that an other agent is or other agents are managing that property for the principal, the agent must, unless the principal otherwise directs in writing, disclose their intention to act or to offer to act to the current agent or agents.

39. Confirmation of specific instructions – property management services Before or at the time of entering into an agency agreement under which the agent will provide property management services in respect of the leasing of residential property or rural land, the agent must prepare for inclusion in the agency agreement written confirmation of the extent of the agent’s authority to undertake the following duties in connection with the management of the property and any limitations on the agent’s authority to undertake those duties: (a) (b) (c) (d)

(e) (f) (g) (h) (i) (j)

obtaining references from prospective tenants, arranging inspections of the property by prospective tenants and choosing a tenant, entering into and signing a tenancy agreement (specifying the term for which the property may be let), undertaking inspections of the property, effecting repairs to and maintaining the property or engaging tradespersons to do so and limitations on expenditure that may be incurred by the agent without obtaining the principal’s approval, paying disbursements and expenses incurred in connection with the agent’s management of the property, collecting rent, receiving, claiming and disbursing rental bond money, serving notices for breach of the tenancy agreement or to terminate the tenancy agreement, undertaking the necessary steps to obtain vacant possession and recover any money owing to the principal in relation to the tenancy of the property, representing the principal in any tribunal or court proceedings in respect of the tenancy of the property,

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(k)

(l)

paying accounts for amounts owing in relation to the property (for example, water rates and charges, council rates, maintenance expenses and owners corporation levies), advertising the property for letting or re -letting, (m) reviewing the rent at the end of a tenancy.

40. Confirmation of specific instructions – leasing of property Before or at the time of entering into an agency agreement under which the agent will act for the owner of residential property or rural land in relation to the entering into a lease of the residential property or rural land, the agent must prepare for inclusion in the agency agreement written confirmation of the extent of the agent’s authority to undertake the following duties in connection with the entering into of the lease and any limitations on the agent’s authority to undertake those duties: (a)

obtaining references from prospective tenants, arranging inspections of the property by prospective tenants and choosing a tenant, (b) entering into and signing g a tenancy agreement, (c) undertaking an initial inspection of the property, (d) collecting initial rent payment, (e) receiving and disbursing rental bond money, (f) advertising the property for letting.

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5 5.1 5.2

MAINTAIN RECORDS OF LEGISLATION AND INDUSTRY CODES. Agency or organisation processes for maintaining records of changes to legislation and industry codes are identified.

Records of changes to legislation and industry codes are maintained.

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Techniques for tracking changes to legislation and rules For prudent caution it is recommended that you regularly visit the OFT website (ht://www.fairtrading.nsw.gov.au/Property_agents_and_managers.html ) for updates on legislation or Rules of Conduct.

Subscription to the OFT following email newsletters is highly recommended: • • • • •

What's New - for latest website updates and media releases The Letterbox - for renters, landlords and real estate agents Property Matters - for the property industry Foundations - for the home building industry Strata and community scheme updates

Other techniques to track amendments and changes may include: • •

government and industry newsletters and information sessions use of margin notes and tables of amendments to relevant records located in: i. agency administration ii. property management iii. property sales.

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Conclusion This module CPPDSM4009 Interpret legislation to complete work in the property industry has provided you with the skills to interpret legislation to complete agency work accurately and efficiently regarding statutory regulations you may encounter in the property industry. Awareness of statutory duty will be a major duty in your position and it is important for you, your client and the agency that awareness id maintained and updated. By applying the skills in this unit and developing them with application, you will feel confident to operate within the property services industry.

Congratulations on your efforts.

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Acts Legislations and Form

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Doc ID: CPPDSM4009 - Workbook (L) eLearning Approved by: DJackson File Location: S:\Learning & Assessment Resources\Real Estate\CPP40307 Certificate IV in Property Services (Real Estate) NSW\Assessment Tools\1. CPPDSM4009\CPPDSM4009 - Workbook (L) eLearning.doc

Date: 02/08/2016 Version: 8 P a g e | 74