Victorian Numbered Acts Victorian Numbered ActsFor sections 70, 70A, 70B, 70C, 70D and 70E of the Estate Agents Act 1980 substitute —
In this Division—
"estate agent" includes licensed estate agent and any person—
(a) whose estate agent's licence has expired or has been cancelled; or
(b) who is a director or officer of a corporation which is a licensed estate agent; or
(c) where the licence of a corporation has expired or has been cancelled, who was a director or officer of the corporation at the time the licence expired or was cancelled;
"trust account" includes any account of or with respect to any moneys received or held by a person in respect of any transaction by that person as an estate agent.
An inspector must produce his or her identity card for inspection—
(a) before exercising a power under this Division other than a requirement made by post; and
(b) at any time during the exercise of a power under this Division, if asked to do so.
Penalty: 10 penalty units.
An estate agent must, at all reasonable times at each office at which that estate agent carries on business as an estate agent, keep all documents (including trust accounts and records) relating to the business carried on at that office available for inspection or audit by an inspector in a form in which they can be readily and expeditiously inspected or audited by an inspector.
Penalty: 25 penalty units.
For the purpose of monitoring compliance with this Act or the regulations or carrying out any audit under this Act, an inspector may require an estate agent at a time and place specified by the inspector—
(a) to answer orally or in writing any questions put by the inspector relating to the estate agent's business as an estate agent;
(b) to supply orally or in writing information required by the inspector relating to that business;
(c) to produce to the inspector specified documents or documents of a specified class (including trust accounts and records) relating to that business.
For the purpose of monitoring compliance with this Act or the regulations or carrying out any audit under this Act, an inspector may require any person who has possession, custody or control of documents (including trust accounts and records) relating to an estate agent's business as an estate agent—
(a) to answer orally or in writing any questions put by the inspector relating to the estate agent's business as an estate agent;
(b) to supply orally or in writing information required by the inspector relating to that business;
(c) to produce to the inspector specified documents or documents of a specified class (including trust accounts and records) relating to that business.
(1) For the purpose of monitoring compliance with this Act or the regulations or carrying out any audit under this Act, the Director or an inspector may request a specified public body within a time specified by the Director or inspector—
(a) to answer orally or in writing any questions put by the inspector relating to an estate agent's business as an estate agent;
(b) to supply orally or in writing information required by the inspector relating to that business.
(2) An inspector can only make a request under sub-section (1) with the written consent of the Director.
(3) A specified public body must comply with a request under sub-section (1).
(4) In this section "specified public body" means—
(a) a Minister; or
(b) a public statutory authority; or
(c) a municipal council; or
(d) the Chief Commissioner of Police.
(1) For the purpose of monitoring compliance with this Act or the regulations or carrying out any audit under this Act, the Director or an inspector may require a specified person or body within a time specified by the Director or inspector—
(a) to answer orally or in writing any questions put by the inspector relating to an estate agent's business as an estate agent;
(b) to supply orally or in writing information required by the inspector relating to that business.
(2) An inspector can only make a requirement under sub-section (1) with the written consent of the Director.
(3) In this section "specified person or body" means—
(a) a person who is a publisher of a publication; or
(b) a person who is the owner or operator of a broadcasting service; or
(c) a person who is the owner or operator of a telecommunications service; or
(d) a person who is the owner or operator of a postal service; or
(e) a financial institution.
(1) If any documents (including trust accounts and records) are produced to an inspector under section 70C or 70D, the inspector may—
(a) inspect the documents or authorise a person to inspect the documents;
(b) make copies of or take extracts from the documents;
(c) seize the documents if the inspector considers the documents necessary for the purpose of obtaining evidence for the purpose of any proceedings under this Act or the regulations;
(d) seize the documents if the inspector—
(i) considers the documents necessary for the purpose of obtaining evidence for the purpose of any proceedings under any Consumer Act; and
(ii) believes on reasonable grounds, that it is necessary to seize the documents in order to prevent their concealment, loss or destruction or their use in the contravention of any Consumer Act;
(e) secure any seized documents against interference;
(f) retain possession of the documents in accordance with this Division.
(2) An inspector must not require a person to produce a document at a place other than the person's place of business or an office of the Director without the consent of the person.
(1) For the purpose of monitoring compliance with this Act or the regulations or carrying out any audit under this Act, an inspector, with the written approval of the Director, may apply to the Magistrates' Court for an order requiring a person at a time and place specified by an inspector—
(a) to answer orally or in writing any questions put by an inspector relating to an estate agency business; or
(b) to supply orally or in writing information required by an inspector in relation to an estate agency business; or
(c) to produce to the inspector specified documents or documents of a specified class in relation to an estate agency business.
(2) If the Magistrates' Court is satisfied on the basis of evidence presented by the Director that the order is necessary for the purpose of monitoring compliance with this Act or the regulations, the Court may grant the order sought.
(3) An order under this section must state a day, not later than 28 days after the making of the order, on which the order ceases to have effect.
(4) An inspector who executes an order under this section must, as soon as practicable after that execution, notify the Magistrates' Court in writing of the time and place of execution of the order.
(1) For the purpose of monitoring compliance with this Act or the regulations or carrying out any audit under this Act, an inspector, with the consent of the occupier of the premises, may—
(a) enter and search any premises;
(b) seize anything found on the premises which the inspector believes on reasonable grounds to be connected with a contravention of this Act or the regulations;
(c) examine and take and keep samples of any goods found on the premises which the inspector believes on reasonable grounds to be connected with a contravention of this Act or the regulations;
(d) inspect and make copies of, or take extracts from, any document found on the premises.
(2) An inspector must not enter and search any premises with the consent of the occupier unless, before the occupier consents to that entry, the inspector has—
(a) produced his or her identity card for inspection; and
(b) informed the occupier—
(i) of the purpose of the search; and
(ii) that the occupier may refuse to give consent to the entry and search or to the seizure of anything found during the search; and
(iii) that the occupier may refuse to consent to the taking of any sample of goods or any copy or extract from a document found on the premises during the search; and
(iv) that anything seized or taken during the search with the consent of the occupier may be used in evidence in proceedings.
(3) If an occupier consents to an entry and search, the inspector who requested consent must before entering the premises ask the occupier to sign an acknowledgment stating—
(a) that the occupier has been informed of the purpose of the search and that anything seized or taken in the search with the consent of the occupier may be used in evidence in proceedings; and
(b) that the occupier has been informed that he or she may refuse to give consent to the entry and search or to the seizure of anything or to the taking of any sample, copy or extract; and
(c) that the occupier has consented to such an entry and search; and
(d) the date and time that the occupier consented.
(4) If an occupier consents to the seizure or taking of any thing during a search under this section, the inspector must before seizing or taking the thing ask the occupier to sign an acknowledgment stating—
(a) that the occupier has consented to the seizure or taking of the thing; and
(b) the date and time that the occupier consented.
(5) An occupier who signs an acknowledgment must be given a copy of the signed acknowledgment before the inspector leaves the premises.
(6) If, in any proceeding, an acknowledgment is not produced to the court or a tribunal, it must be presumed, until the contrary is proved, that the occupier did not consent to the entry and search or to the seizure or taking of the thing.
(1) For the purpose of monitoring compliance with this Act or the regulations or carrying out any audit under this Act, an inspector may (with the assistance, if necessary, of another inspector or a member of the police force) do all or any of the following—
(a) enter and search any premises at which an estate agent is carrying on business at any time that the premises are open for business or between the hours of 9 a.m. and 5 p.m.;
(b) seize or secure against interference anything that the Director or inspector believes on reasonable grounds to be connected with a contravention of this Act or the regulations or with an audit under this Act that is found on or in the premises;
(c) inspect and make copies of or take extracts from any document kept on the premises.
(2) An inspector must not enter or search any premises under sub-section (1) unless, before that entry, the inspector has produced his or her identity card for inspection by the occupier of the premises.
(1) An inspector, with the written approval of the Director, may apply to a magistrate for the issue of a search warrant in relation to particular premises for the purpose of monitoring compliance with this Act or the regulations or the carrying out of any audit under this Act.
(2) If a magistrate is satisfied by the evidence, on oath or by affidavit, of the inspector that the warrant is necessary for the purpose of monitoring compliance with this Act or the regulations or the carrying out of any audit under this Act, the magistrate may issue a search warrant, in accordance with the Magistrates' Court Act 1989 , authorising an inspector named in the warrant, together with any other person or persons named or otherwise identified in the warrant and with any necessary equipment—
(a) to enter the premises specified in the warrant, if necessary by force; and
(b) to do all or any of the following—
(i) search for;
(ii) seize;
(iii) secure against interference;
(iv) examine and inspect;
(v) make copies of or take extracts from—
a thing or things of a particular kind named or described in the warrant and which the inspector believes, on reasonable grounds, to be connected with a contravention of this Act or the regulations or with an audit under this Act.
(3) A search warrant issued under this section must state—
(a) the purpose for which the search is required; and
(b) any conditions to which the warrant is subject; and
(c) whether entry is authorised to be made at any time of the day or night or during stated hours of the day or night; and
(d) a day, not later than 28 days after the issue of the warrant, on which the warrant ceases to have effect.
(4) Except as provided by this Act, the rules to be observed with respect to search warrants under the Magistrates' Court Act 1989 extend and apply to warrants under this section.
(1) On executing a search warrant, the inspector executing the warrant—
(a) must announce that he or she is authorised by the warrant to enter the premises; and
(b) if the inspector has been unable to obtain unforced entry, must give any person at the premises an opportunity to allow entry to the premises.
(2) An inspector need not comply with sub-section (1) if he or she believes on reasonable grounds that immediate entry to the premises is required to ensure—
(a) the safety of any person; or
(b) that the effective execution of the search warrant is not frustrated.
(1) If the occupier is present at premises where a search warrant is being executed, the inspector must—
(a) identify himself or herself to the occupier; and
(b) give to the occupier a copy of the warrant.
(2) If the occupier is not present at premises where a search warrant is being executed, the inspector must—
(a) identify himself or herself to a person (if any) at the premises; and
(b) give to the person a copy of the warrant.
A search warrant under section 70K authorises an inspector executing the search warrant, in addition to the seizure of any thing of the kind described in the warrant, to seize or take a sample of any thing which is not of the kind described in the warrant if—
(a) the inspector believes, on reasonable grounds, that the thing—
(i) is of a kind which could have been included in a search warrant issued under this Division; or
(ii) will afford evidence about the contravention of any Consumer Act; and
(b) in the case of seizure, the inspector believes, on reasonable grounds, that it is necessary to seize that thing in order to prevent its concealment, loss or destruction or its use in the contravention of this Act or any other Consumer Act.
(1) An inspector executing a search warrant who is authorised by that warrant to seize any thing may, if the thing cannot, or cannot readily, be physically seized and removed, issue an embargo notice in the prescribed form—
(a) by causing a copy of the notice to be served on the occupier; or
(b) if the occupier cannot be located after all reasonable steps have been taken to do so, by affixing a copy of the notice to the thing in a prominent position.
(2) A person who knows that an embargo notice relates to a thing and who—
(a) sells; or
(b) leases; or
(c) without the written consent of the inspector who issued the embargo notice, moves; or
(d) transfers; or
(e) otherwise deals with—
the thing or any part of the thing is guilty of an offence and liable to a penalty not exceeding 25 penalty units.
(3) It is a defence to a prosecution for an offence against sub-section (2) to prove that the defendant moved the thing or the part of the thing for the purpose of protecting and preserving it.
(4) Despite anything in any other Act, a sale, lease, transfer or other dealing with a thing in contravention of this section is void.
(1) If an inspector retains possession of a document taken or seized from a person under this Division, the inspector must give the person, within 21 days of the seizure, a copy of the document certified as correct by the inspector.
(2) A copy of a document certified under sub-section (1) shall be received in all courts and tribunals to be evidence of equal validity to the original.
(1) If an inspector seizes a document or other thing under this Division, the inspector must take reasonable steps to return the document or thing to the person from whom it was seized if the reason for its seizure no longer exists.
(2) If the document or thing seized has not been returned within 3 months after it was seized, the inspector must take reasonable steps to return it unless—
(a) proceedings for the purpose for which the document or thing was retained have commenced within that 3 month period and those proceedings (including any appeal) have not been completed; or
(b) the Magistrates' Court makes an order under section 70R extending the period during which the document or thing may be retained.
(1) An inspector may apply to the Magistrates' Court within 3 months after seizing a document or other thing under this Division, (or within a period extended by the Court under this section) for an extension of the period for which the inspector may retain the document or thing.
(2) The Magistrates' Court may order such an extension if it is satisfied that retention of the document or other thing is necessary—
(a) for the purposes of an investigation into whether a contravention of this Act or the regulations has occurred or for any audit under this Act; or
(b) to enable evidence of a contravention of this Act or the regulations to be obtained for the purposes of a proceeding under this Act.
(3) The Magistrates' Court may adjourn an application to enable notice of the application to be given to any person.
To the extent that it is reasonably necessary to determine compliance with
this Act or the regulations or to carry out any audit under this Act, an
inspector exercising a power of entry under this Division who produces his or
her identity card for inspection by the occupier of the premises or an agent
or employee of the occupier may require that person—
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(a) to give information to the inspector, orally or in writing; and
(b) to produce documents to the inspector; and
(c) to give reasonable assistance to the inspector.
A person must not refuse or fail, without reasonable excuse, to comply with a requirement of an inspector under this Division.
Penalty: 25 penalty units.
(1) A person is not excused from answering a question or producing a document under this Division on the ground that the answer or document might tend to incriminate the person.
(2) If the person claims, before answering a question, that the answer might tend to incriminate them, the answer is not admissible in evidence in any criminal proceedings, other than in proceedings in respect of the falsity of the answer.
A person must not—
(a) give information to an inspector
under this Division that the person believes to be false or misleading in any
material particular; or
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(b) produce a document to an inspector under this Division that the person knows to be false or misleading in a material particular without indicating the respect in which it is false or misleading and, if practicable, providing correct information.
Penalty: 25 penalty units.
Sections 120, 135, 136, 137, 138 and 139 of the Fair Trading Act 1999 apply (with any necessary modifications) in relation to the exercise or attempted exercise of a power of an inspector under this Division as if any reference in those sections to Part 10 of that Act were a reference to this Division.
(1) A written requirement by an inspector under this Division may be given personally or by registered post to a person—
(a) at the last known place of business, employment or residence of the person; or
(b) in the case of a body corporate, at the registered office of the body corporate.
(2) A person who provides a document or information in response to a requirement of an inspector under this Division may send that document or information to the Director by registered post.
(1) An inspector must not, except to the extent necessary to carry out the inspector's functions under this Division, give to any other person, whether directly or indirectly, any information acquired by the inspector in carrying out those functions.
Penalty: 25 penalty units.
(2) Sub-section (1) does not apply to the giving of information—
(a) to a court or tribunal in the course of legal proceedings; or
(b) pursuant to an order of a court or tribunal; or
(c) to the extent reasonably required to enable the investigation or the enforcement of a law of this State or of any other State or Territory or of the Commonwealth; or
(d) to the Business Licensing Authority established under the Business Licensing Authority Act 1998 ; or
(e) to any client of the estate agent, if the information is a report of the result of the carrying out of any function of an inspector under this Division if and only to the extent that it directly concerns that client; or
(f) with the written authority of the Director; or
(g) with the written authority of the person to whom the information relates.".