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AGENTS REGULATIONS 2003 (NO 38 OF 2003)
2003
LEGISLATIVE ASSEMBLY FOR THE AUSTRALIAN CAPITAL
TERRITORY
AGENTS REGULATIONS
2003
SUBORDINATE LAW No SL2003-38
EXPLANATORY STATEMENT
Circulated
by authority of the
Attorney General
Jon
Stanhope MLA
AGENTS REGULATIONS 2003
SUBORDINATE
LAW No SL2003-38
Overview
The Agents Act 2003 was passed by the Legislative Assembly on 6 May 2003. The Agents Act regulates the conduct of real estate, stock and station, business, travel and employment agents through the imposition of a licensing and registration system and a complaints and disciplinary system. Consumers of agency services can lodge their grievances against agents with the Commissioner for Fair Trading who will investigate, and where appropriate, refer matters to the Consumer and Trader Tribunal for determination. The Agents Act 2003 replaces the former Agents Act 1968.
The object of this Regulation is to make regulations under the Agents Act
2003 with respect to the following matters:
• prescribing
stated units of competency from the Property Development and Management Training
Package PRD01 approved by the Australian National Training Authority (ANTA) as
the qualification for a real estate, stock and station and business
agent’s licence;
• providing that the underpinning knowledge for
a unit of competency in the Property Development and Management Training Package
PRD01 must be based on ACT law;
• prescribing stated requirements for
the renewal of a licence;
• prescribing stated units of competency from
the Property Development and Management Training Package PRD01 approved by ANTA
as a qualification for a salesperson and property manager employed by a licensed
real estate and stock and station agent, and a salesperson employed by a
business agent, and provision for assessment by a registered training
organisation confirming that a person already possesses the required
competencies as set out in Schedule 2;
• prescribing certain
information that must be included in an advertisement in a daily newspaper of a
person’s intention to apply for registration;
• providing stated
requirements for the renewal of a registration;
• setting a period of
five business days beginning on the day after a licensed agent changes their
main place of business address to notify the Commissioner for Fair
Trading;
• prescribing matters to be taken into account by the
Commissioner for Fair Trading in considering whether to grant an exemption from
the provisions of the Act that prevent a licensee from being in charge at more
than one place of business, or of the business of more than one
licensee;
• prescribing specific information or warnings that a
licensed agent or a salesperson must give to a consumer if they are giving
financial and investment advice about the sale or purchase of
land;
• imposing requirements as to the content of agency
agreements;
• prescribing purposes for which trust money not paid into
the compensation fund must be used;
• rules of conduct to be observed
by licence and certificate of registration holders in the exercise of their
functions;
• imposing a requirement on an auctioneer who advertises an
auction;
• transitional arrangements allowing existing salespeople and
property managers to continue to be employed after the commencement of the Act
and Regulation on condition that they successfully complete their educational
qualification within 2 years, and allowing new salespeople and property managers
employed after the commencement of the Act and Regulation to be employed on
condition they have enrolled in and obtained either a statement of attainment or
the requisite qualification within one year.
This Regulation is made
under the Agents Act 2003 including sections
25,36,49,50,52,60,68,71,83,100,163,171 and 178 (the general regulation-making
power).
PART 1 Preliminary
This regulation names the Regulation as the Agents Regulations
2003.
Regulation 2 Commencement
The regulations will
commence on 1 November 2003.
Regulation 3
Dictionary
This regulation explains that the dictionary at the end
of the Regulations is part of the substantive provisions of the
regulations.
This regulation makes it clear that the notes in the Regulations are
explanatory only and do not form part of the substantive provisions of the
Regulations
This regulation makes it clear that other legislation applies to offences
against these regulations.
Regulation 6 Qualifications for licences, Act s 25
This
regulation sets out the educational qualifications an applicant must satisfy to
become eligible for a real estate, stock and station and business agent’s
licence. Regulation 6(2) sets out the educational qualifications an applicant
must satisfy to become eligible for a real estate and stock and station
auctioneer’s licence. The regulation also sets out the educational
qualifications a travel agent must satisfy to become eligible for a travel
agent’s licence.
Regulation 7 Underpinning
knowledge for property development and management training package
This regulation makes it clear that the educational qualification
for a real estate, stock and station and business agent’s licence must be
based on ACT law.
Regulation 8 Renewal of licences, Act s
36
This regulation makes it clear that on renewal of a licence, the
licensee must have complied with any conditions imposed on the licence under the
Act and met any other condition put on the licence under section 34 of the
Act.
PART 3 Registration
Regulation 9
Qualifications for registration as a salesperson, Act s 50
This
regulation sets out the educational qualifications a salesperson including a
property manager (where appropriate) must satisfy to become eligible for a real
estate, stock and station and business agent’s certificate of
registration. An applicant for registration will be required to either complete
a course of study made up of specified competency units set out in Schedule 2,
or be assessed by a Registered Training Organisation as already possessing the
competencies prescribed in Schedule 2.
Regulation 10 Information to
be included in advertisement of intention to apply for registration, Act ss
52(2)
This regulation requires an applicant for registration to
include their full name and postal address in the advertisement notifying the
public of their intention to seek registration. The purpose of this regulation
is to give the public an opportunity to lodge an objection with the Commissioner
for Fair Trading stating the grounds upon which it is claimed that the applicant
is not eligible for registration. Upon receipt of an objection, the
Commissioner for Fair Trading will determine the objection.
Regulation 11 Renewal of registrations, Act paragraph
60(3)(b)
This regulation makes it clear that on renewal of a
registration, the salesperson or property manager must have complied with any
conditions imposed on the registration under the Act and met any other condition
put on the registration under section 58 of the Act.
PART 4 Conduct of
licensed agents, registered salespeople
Regulation 12 Notice of change of main place of business, Act ss
68(2)
This regulation requires a licensed agent to tell the
Commissioner for Fair Trading within five business days of a change in the
agent’s main place of business. The purpose of this regulation is to
facilitate enforcement and compliance with the
legislation.
Division 4.2 Management of licensed
agent’s business
Regulation 13 Licensed agent to be in
charge of business – exemptions, Act ss 71(3)
Subregulation
13(1) sets out the factors that the Commissioner for Fair Trading must consider
in determining whether to permit a place of business not to have a licensed
agent in charge.
Subregulation 13(2) sets out the factors that the
Commissioner for Fair Trading must consider in determining whether to permit one
licensee to be in charge of more than one place of business.
Division
4.3 Land – further provisions
This regulation sets out information or warnings that a licensed agent or
registered salesperson must give to a person if the licensed agent or
salesperson provides financial or investment advice that is intended to
influence the person to whom it is given in making a particular financial or
investment decision about the sale or purchase of land.
PART 5 Agency
agreements
Regulation 15 Content of agency agreements, Act
paragraph 100(1)(c)
This regulation prescribes the terms and
conditions of an agency agreement that must be included in agency agreements as
set out in schedules 3 – 7.
Schedule 3 sets out various terms that
must be included in all agency agreements. Schedule 4 contains terms that must
be included in agency agreements for the sale of residential property. Schedule
5 contains terms which must be included in a buyer’s agent agency
agreement. Schedule 6 contains terms that must in included in agency agreements
for the sale of rural land. Schedule 7 contains terms that must be included in
agency agreements for the sale of businesses.
Regulation 16 Use of excess trust money, Act s 163
This
regulation requires that any trust money not paid into the compensation fund
under section 162 of the Act must be used for the purposes set out in section
163(2) (a) to (g) of the Act.
Regulation 17 Rules of conduct for
agents, Act ss 171(1)
This regulation sets out the rules of conduct
that must be observed by licensed agents and registered salespeople including
property managers. A breach of a rule of conduct by a licensed agent or a
registered salesperson or property manager is a ground for disciplinary action
by the Consumer and Trader Tribunal.
Regulation 18 Rules of conduct
for auctioneers, Act s 171
This regulation requires an auctioneer to
include his or her name and licence number in an advertisement for an
auction.
PART 7 Transitional
provisions
Regulation 19 Eligibility for registration, Act s 49
– unregistered employees before commencement day
This
regulation allows existing salespeople and property managers to continue to work
in the industry after the Act and the regulations commence, on condition that
they obtain a qualification or statement of attainment from a registered
training organisation in each of the competency units set out in Schedule 2
within two years after the day these regulations commence.
Regulation
20 Eligibility for registration, Act s 49 – new employees on and after
commencement day
This regulation allows new salespeople and property
managers to work in the industry after the Act and the regulations commence on
condition that they have enrolled in the units of competency set out in Schedule
2 as an employee of a licensed agent when they apply for registration, and have
obtained competency in the units of competency set out in Schedule 2 with a
registered training organisation within one year from the day the regulations
commence.
Regulation 21 Expiry of Part 7
This regulation
notes that Part 7 expires two years after the day it
commences.
SCHEDULES 1 – 8
Schedule 1
– Qualifications for real estate, stock and station, and business
agents’ licences, units of competency in PRD01 - prescribes
competency units as set out in the Property Development and Management Training
Package – PRD01, approved by ANTA, which applicants for a real estate,
stock and station and business agent’s licence must complete to become
eligible to be licensed.
Schedule 2 - Registration of
salespeople, units of competency in PRD01 - prescribes competency
units as set out in the Property Development & Management Training Package
– PRD01 approved by ANTA, which applicants for a real estate, stock and
station and business certificate of registration must complete to become
eligible to be registered.
Schedule 3 - Terms applying to
all agency agreements - prescribes various terms that must be included
in all agency agreements to promote transparency and accountability in agency
agreements.
Schedule 4 - Terms specific to agency agreements for
sale of residential property - prescribes specific terms that must be
included in agency agreements for the sale of residential
property.
Schedule 5 - Terms specific to a buyers agent
agency agreements - prescribes specific terms which must be included
in a buyers agent agency agreement.
Schedule 6 - Terms specific
to agency agreements for sale of rural land - prescribes specific
terms that must be included in agency agreements for sale of rural
land.
Schedule 7 - Terms specific to agency agreements for sale
of business - prescribes specific terms that must be included in
agency agreements for sale of business.
Schedule 8 - Rules of
Conduct - prescribes general rules of conduct for licensed agents and
registered salespeople and property managers. Schedule 8.3 prescribes specific
rules for real estate agents and registered salespeople, property managers and
buyers’ agents. Schedule 8.4 prescribes specific rules for stock and
station agents and registered salespeople and property managers. Schedule 8.5
prescribes specific rules for business agents and salespeople they
employ.